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The opinion of the court was delivered by Rosen, J.: A jury convicted Macio Palacio Jr. of first-degree murder under theories of premeditation and felony murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. We affirm his convictions. FACTUAL AND PROCEDURAL BACKGROUND On May 5, 2015, Stephen Gentry had an altercation with his girlfriend, Kaylee Ovalle. The next day, Ovalle went to collect her personal items from their shared apartment. She brought three people with her-her mother, Amber Ovalle (Amber); Amber's boyfriend, Chad Bennett; and Bennett's friend, Anthony Darby. They all drove together in Ovalle's grandfather's green pickup truck. When they arrived at the apartment complex, they encountered Gentry and another man in the parking lot. Bennett asked Gentry to give him the keys to the apartment. This led to an argument, and Darby punched Gentry in the face, breaking his glasses. After this incident, Ovalle, Amber, Bennett, and Darby left. Earlier in the day on May 6, 2015, Daniel Sims and Gentry were in Sims' apartment, which was located across the hall from Gentry's and Ovalle's apartment. Sims testified that on that day, he met Palacio when Palacio came to Sims' apartment with his girlfriend and Andrew Woodring. Palacio had a handgun with him and stayed at the apartment for about 30 minutes before leaving with his girlfriend and Woodring. After the three left, Sims and Gentry went to a convenience store across the street. When they returned, they encountered Bennett and Darby in the same parking lot where the earlier argument had occurred. A short time after this encounter, Sims went to Jerome Forbes' apartment, which was also located in the same apartment complex. Gentry and Forbes were both there. Gentry was very angry and wanted revenge. He wanted to fight Bennett and Darby. Gentry began calling people to try to find a gun. Palacio and Woodring arrived at Forbes' apartment, and Gentry asked Palacio, "Did you bring that?" Palacio responded, "I got that." Woodring, Forbes, Sims, Gentry, and Palacio drove in Woodring's Honda Civic to where Bennett lived and parked a block away. When they noticed that no one was home, they returned to the car. Before they left, headlights appeared in the street. Gentry wanted to wait to see "if it was them." A truck appeared and slowed down as it passed them. Gentry told Palacio to shoot. Palacio fired five shots towards the truck. Sims and Forbes ran away. Neighbors in the area testified to hearing gunshots around 9:30 p.m. on May 6, 2015, and then seeing a Honda Civic erratically speed away. One of the neighbors recorded the car's license plate. The police traced this car to Woodring. One of the shots hit Allie Saum, who had been sitting in the passenger seat of the truck. Vince Johnson, Saum's boyfriend, had been driving the truck. Neither of them knew Palacio or any of the codefendants. Saum died early the next morning. When police responded to the scene, they found five spent shell casings in the street and a projectile in the dash of Johnson's truck. Investigators eventually learned that Palacio might have been connected to Saum's death. Officers went to Palacio's house early in the morning on May 7, 2015 and took Palacio into custody. After they cleared the house, the officers allowed Palacio's girlfriend, Azucena Garcia, to go back into the house to get some belongings for her children. During one of her trips inside to collect belongings, Garcia attempted to conceal a Glock model 30, .45 caliber handgun. When officers discovered the gun, they also took Garcia into custody. A forensic scientist later testified that the casings in the street and the projectile in Johnson's dash were fired from this gun. Sergeant James Feldman and Lieutenant William Cox interviewed Palacio in connection with Saum's murder on May 7, 2015. The officers Mirandized Palacio before asking him any questions, and Palacio agreed to speak to them without an attorney present. Palacio told the officers that on the day in question, Woodring had asked him if he wanted to go with him to find Gentry-who had been jumped-but that he declined. Sergeant Feldman then told Palacio that he knew Palacio was at the shooting and that his gun was used. Lieutenant Cox told Palacio "I think about some poor girl's parents." At that point, Palacio stated "[h]onestly, I just want to talk to my attorney." The following interaction then took place: "[Sergeant Feldman:] That's fine. You are being charged with felony murder and shooting into an occupied vehicle. Your girlfriend is being charged with felony obstruction and child endangerment. "[Lieutenant Cox:] Do you have any felony convictions? "[Palacio:] Um, I have pending charges right now. "[Sergeant Feldman:] Drug convictions? "[Palacio:] Yes, sir. "[Sergeant Feldman:] Okay. So that's what's happening. "[Lieutenant Cox:] Well, we'll have you have a seat out here and get the paperwork together and get you next door. "[Palacio:] I'd like to say something else. "[Sergeant Feldman:] What's that? "[Palacio:] Um, you want to take a seat. "[Sergeant Feldman:] Do you want to continue talking? "[Palacio:] Yea. "[Sergeant Feldman:] Without an attorney present? "[Palacio:] Yea, I'll do that. "[Sergeant Feldman:] Okay. "[Palacio:] Um, honestly, I was there. "[Sergeant Feldman:] Mm-hmm. "[Palacio:] I was there. "[Sergeant Feldman:] Why don't you walk us through what happened then." Palacio then told officers he had gone with Woodring to meet with Gentry and then gone to the area where Ovalle lived. When they realized Ovalle was not there, the others said they should leave, but then a truck passed by and everybody started "freaking out." Eventually, Palacio admitted that he fired the gun towards the truck after Gentry told him to shoot. The State charged Palacio with first-degree murder under theories of premeditation and felony murder for the killing of Saum, attempted first-degree murder for the attempted killing of Johnson, criminal discharge of a firearm into an occupied vehicle, and conspiracy to commit aggravated battery. On October 7, 2015, Gentry filed a motion to change venue, arguing that significant pretrial publicity made it impossible for him to receive an impartial jury in Saline County. Gentry submitted numerous media articles covering the Saum murder with this motion. After an evidentiary hearing, the district court denied the motion. On February 22, 2016, Palacio filed a motion to suppress his confession. The district court judge suppressed the statements Palacio made in-between the time he asked for a lawyer and the time he told the officers he wanted to say something else. The judge declined to suppress any of his other statements. The case proceeded to trial, and the jury found Palacio guilty of first-degree murder under theories of premeditation and felony murder, attempt to commit first-degree murder, criminal discharge of a firearm, and conspiracy to commit aggravated battery. The district court judge sentenced Palacio to life imprisonment without the possibility of parole for 50 years for the first-degree murder conviction, 234 months' imprisonment for the attempted first-degree murder conviction, 59 months' imprisonment for the criminal discharge of a firearm conviction, and 6 months' imprisonment for the conspiracy to commit aggravated battery conviction. The judge ordered the three shortest sentences to run concurrent to the life sentence. Palacio appealed to this court. ANALYSIS Motion to Change Venue In the district court, Palacio argued that he was entitled to a change of venue under the Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kansas Bill of Rights because the pretrial publicity was so great he could not receive a fair and impartial trial in Saline County. Palacio also appeared to assert that he was entitled to a change of venue under K.S.A. 22-2616. The district court judge disagreed and denied Palacio's motion. Palacio appealed that decision. At oral argument, he stated that he only challenges the district court's conclusion with regard to his statutory right to a change in venue. We review the trial court's decision on a motion to change venue pursuant to K.S.A. 22-2616(1) for an abuse of discretion. An abuse of discretion occurs "when the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision." State v. Longoria , 301 Kan. 489, 509, 343 P.3d 1128 (2015). K.S.A. 22-2616(1) directs a trial court to grant a defendant's motion to change venue if it "is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county." In determining whether these circumstances exist, the trial court considers the following nine factors: " '(1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.' " Longoria , 301 Kan. at 510, 343 P.3d 1128 (quoting State v. Carr , 300 Kan. 1, Syl. ¶ 1, 331 P.3d 544 [2014], rev'd and remanded on other grounds , 577 U.S. ----, 136 S. Ct. 633, 193 L.Ed. 2d 535 [2016] ). The district court judge considered the nine-factor statutory test and made findings on each. She found that factors one and eight weighed "slightly in favor of a change in venue," and that factors two, three, seven, and nine did not weigh in favor of a change in venue. She also found that factors four, five, and six were inapplicable. Based on this she concluded that Palacio had not shown there was prejudice in the community significant enough to warrant a change in venue. Palacio argues that the district court judge abused her discretion when it held that the eighth factor-the severity of the crime-weighed slightly in favor of a change of venue because no reasonable person would agree. He asserts that it weighed "overwhelmingly in favor of prejudice." Palacio has not persuaded us. This court found that this factor weighed in favor of a change of venue in Carr , where the defendants were charged with multiple counts of capital murder and rape, among other severe crimes, and in Longoria , where the defendant was charged with capital murder. 300 Kan. at 81, 331 P.3d 544 ; 301 Kan. at 510, 343 P.3d 1128. Palacio was charged with first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. Because one of these crimes was a homicide, it was reasonable to conclude that this factor favored a change of venue. But, because all of the crimes are lesser crimes than those in Carr and Longoria , it was also reasonable to find that they only slightly weighed in favor of a change of venue. The district court judge did not abuse her discretion when it came to this conclusion. Consequently, Palacio's challenge to the court's denial of his motion to change venue fails. Motion to Suppress Confession Palacio argues that the district court violated his Fifth Amendment rights under the United States Constitution when it denied his motion to suppress his confession. He primarily argues that officers violated his rights because they continued interrogating him after he asked for a lawyer. In the alternative, he argues that his confession was involuntary because the police used coercive tactics. We use a bifurcated standard of review when considering a district court's decision on a motion to suppress evidence. State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016). First, we review the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, we do not reweigh the evidence or assess the credibility of witnesses. Second, we review the ultimate legal conclusion de novo. Patterson , 304 Kan. at 274, 371 P.3d 893. Palacio's request to speak to an attorney "The Fifth Amendment to the United States Constitution guarantees ... the right to have a lawyer present during custodial interrogation and the right to remain silent." State v. Walker , 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona , 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966] ). Certain "procedural safeguards are necessary to protect" these rights. Rhode Island v. Innis , 446 U.S. 291, 297, 100 S. Ct. 1682, 64 L.Ed. 2d 297 (1980). "More specifically, ... 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' " Innis , 446 U.S. at 297, 100 S.Ct. 1682 (quoting Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ). These safeguards are now known as the Miranda warnings-statements from law enforcement officials informing defendants of their rights. Innis , 446 U.S. at 297, 100 S.Ct. 1682. Once these warnings have been given, " 'the subsequent procedure is clear. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.' " Innis , 446 U.S. at 297, 100 S.Ct. 1682 (quoting Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602 ); see also State v. Salary , 301 Kan. 586, 604, 343 P.3d 1165 (2015) (If "the accused has unambiguously invoked the right to counsel, questioning must cease immediately and may be resumed only after a lawyer has been made available or the accused reinitiates the conversation with the interrogator."). Here, the district court judge made the following factual findings: "[A]fter defendant asked to speak to an attorney, Sergeant Feldman proceeded to advise the defendant of the offenses he and his girlfriend were being charged with. The officers then asked the defendant if he had any felony convictions or drug charges. After the defendant answered these questions, the officers stood up to leave and stated they would get the paperwork prepared. The defendant then stated he wanted to speak further to the officers and asked them to sit down. After Sergeant Feldman inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued. "The officers testified that defendant was asked whether he had any felony convictions or drug offenses, to determine whether he could be charged with being a felon in possession of a firearm." Palacio does not challenge these findings. He challenges the district court's legal conclusions based on these findings. Those were as follows: "The Court concludes that the responses the defendant gave to the officers as to whether he had any felony convictions or drug charges should be suppressed, as the questions were asked after the defendant invoked his right to counsel. The Court finds all other statements made by the defendant before he invoked his right to counsel and after he asked to continue to speak to them without an attorney were the product of his free and voluntary will and were made without any threats, coercion, or deceptive practices on the part of the officers. And so the parties will need to make the appropriate redactions." Palacio asserts that the statements the officers made and the questions they asked him immediately after he invoked his right to counsel were interrogative and, consequently, a violation of his constitutional rights. Based on this conclusion, he argues that everything he said to the officers after he invoked his right to counsel should have been suppressed. The State agrees that Palacio unambiguously invoked his right to counsel and that, as a result, all interrogation should have stopped until Palacio was provided a lawyer or he reinitiated the interrogation. But the State maintains that the questions the officers posed immediately after he asked for a lawyer were routine questions that did not amount to interrogation and were therefore permissible under the Fifth Amendment. They argue that Palacio then reinitiated the interrogation and thus any answers he provided to the line of questions that followed were admissible. The question we face is whether the officers' statements and the questions they asked of Palacio immediately after he invoked his right to counsel were interrogation. If they were, then the officers stepped over the constitutional line, because "[o]nce the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease." State v. Cosby , 285 Kan. 230, 242, 169 P.3d 1128 (2007). The interrogation can continue only after a lawyer has been made available or the suspect reinitiates the interrogation. Cosby , 285 Kan. at 242, 169 P.3d 1128. Although Palacio asked the officers to sit down and told them he wanted to talk without a lawyer present after he listened to those statements and answered the questions, his comments would not qualify as reinitiation if they occurred after interrogation. "A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights." Cosby , 285 Kan. at 242, 169 P.3d 1128 (citing Edwards v. Arizona , 451 U.S. 477, 482, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 [1981] ). The United States Supreme Court has described interrogation as "express questioning," or "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682. Although Innis seems to hold that "explicit questioning" always constitutes interrogation, most courts have interpreted it differently. In United States v. Booth , 669 F.2d 1231, 1237 (9th Cir. 1981), the Ninth Circuit said that the Court's opinion in Innis "appears to assume that direct questioning of a suspect in custody always constitutes interrogation. Other courts have so held. [Citations omitted.] However, we believe the reasoning supporting the Court's decision, indeed the very purpose behind Miranda itself, compels the conclusion that not every question posed in a custodial setting is equivalent to 'interrogation.' ... Many sorts of questions do not, by their very nature, involve the psychological intimidation that Miranda is designed to prevent." Booth , 669 F.2d at 1237. The court held that explicit questioning is only interrogation if it is " 'reasonably likely to elicit an incriminating response from the suspect.' " Booth , 669 F.2d at 1237 (quoting Innis , 446 U.S. at 301, 100 S.Ct. 1682 ); see also United States v. Bogle , 114 F.3d 1271, 1275 (D.C. Cir.), cert. denied 522 U.S. 938, 118 S.Ct. 350, 139 L.Ed.2d 272 (1997) (express questioning is not always interrogation because "[a] question that is not likely to elicit an incriminating response is not inherently coercive and therefore should not trigger the protections of Miranda "). While other courts have interpreted Innis more literally, see United States v. Montgomery , 714 F.2d 201, 202 (1st Cir. 1983) (express questioning is always interrogation), the Ninth Circuit's interpretation is certainly the more common reading of Innis . Skelton & Connell, The Routine Booking Question Exception to Miranda, 34 U. Balt. L. Rev. 55, 69-70 (2004) (collecting cases and explaining that at the time, only the First Circuit followed a rule that express questioning was always interrogation). This understanding comports with a plurality decision of the United States Supreme Court. In Pennsylvania v. Muniz , 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), it held that "[r]outine booking questions" are exempt from Miranda 's coverage. These include "questions to secure the 'biographical data necessary to complete booking or pretrial services,' " like questions regarding "name, address, height, weight, eye color, date of birth, and current age." Muniz , 496 U.S. at 601, 110 S.Ct. 2638. This court has never directly addressed whether explicit questioning is always interrogation. But our cases have indicated that it is not. In State v. Hebert , 277 Kan. 61, 70, 82 P.3d 470 (2004), officers asked a suspect in custody whether he wanted to share his side of the story. This court considered the question to constitute interrogation not because it was a question, but because the officers should have known the defendant would respond in an incriminating manner. 277 Kan. at 70, 82 P.3d 470 ; see also State v. Ninci , 262 Kan. 21, 36, 936 P.2d 1364 (1997) (questions were interrogation because the officers should have known they were likely to elicit an incriminating response). And in State v.Garcia , 233 Kan. 589, 664 P.2d 1343 (1983), we confirmed that routine booking questions are not interrogation because they are not likely to elicit an incriminating response. Finally we have also explained that a request that subjects identify themselves is not interrogation. State v. Taylor , 231 Kan. 171, 174, 642 P.2d 989 (1982). Today we confirm that express questioning is not per se interrogation. Rather, it is subject to the same test as an officer's other conduct. An officer's words or actions, including explicit questioning, is interrogation only if the officer should have known that the questioning was "reasonably likely to elicit an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682. We now consider whether any of the things the officers said to Palacio after he invoked his right to counsel were interrogation. Whether words or actions are likely to elicit an incriminating response "focuses primarily upon the perceptions of the suspect, rather than on the intent of the police." Innis , 446 U.S. at 301, 100 S.Ct. 1682. Courts should review what officers "should have known." Innis , 446 U.S. at 302, 100 S.Ct. 1682. In Hebert , this court concluded that an officer's question was interrogative when he asked whether the defendant would like to share his side of the story. 277 Kan. at 70, 82 P.3d 470. And in Ninci , the defendant was subject to interrogation when an officer asked him if he recognized a photograph of a primary suspect and why his car was in front of the victim's house during the same week as the murder. In contrast, in Garcia , 233 Kan. at 607, 664 P.2d 1343, this court found that questions on a personal history sheet were not interrogative. The questions asked for the defendant's "name, address, physical description, description of his car, names and addresses of relatives, prior arrests, and his parole officer." 233 Kan. at 602, 664 P.2d 1343. In a similar vein, some courts have held that declarative statements about what charges would be pursued against the subject or the evidence against them were not interrogation. United States v. Payne , 954 F.2d 199, 202 (4th Cir. 1992) ; Shedelbower v. Estelle , 885 F.2d 570, 573 (9th Cir. 1989). In State v. Thurber , 308 Kan. 140, 152, 420 P.3d 389 (2018), there was no concern that discussion between the defendant and an officer who held the defendant in custody amounted to interrogation because it was "small talk unrelated to the investigation." The comments and questions here were similar to the questions in Garcia and the discussions in Thurber . They were either declarative statements meant to inform Palacio of the reasons he and his girlfriend were in custody, or they were questions that did not otherwise concern Palacio's involvement in or knowledge of the crimes the officers were investigating. The officers were not offering any information for Palacio to consider or pressuring him to change his mind. Consequently, the comments and questions were not interrogation and they did not violate Palacio's Fifth Amendment rights. Because the officers did not continue to interrogate Palacio after he invoked his right to counsel, Palacio was free to waive his previously invoked right. An accused may do so with statements that "evince 'a willingness and a desire for a generalized discussion about the investigation' " and are " 'not merely [ ] a necessary inquiry arising out of the incidents of the custodial relationship.' " Walker , 276 Kan. at 947, 80 P.3d 1132 (quoting Oregon v. Bradshaw , 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 77 L.Ed. 2d 405 [1983] ). Palacio provided these statements here. The district court judge found that, after Palacio told the officers about his other convictions, "the officers stood up to leave and stated they would get the paperwork prepared." After they stood, Palacio "then stated he wanted to speak further to the officers and asked them to sit down. After Sergeant Feldman inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued." Based on these findings, we conclude that Palacio knowingly and intelligently waived his previously invoked right. His statements "showed a desire ... to re-engage in dialogue with law enforcement about the investigation." Thurber , 308 Kan. at 156, 420 P.3d 389. As a result, the interrogation that followed was proper under the Fifth Amendment. Voluntariness of Palacio's confession In the district court, Palacio advanced an alternative argument-that, even if he waived his right to counsel, his eventual confession was involuntary because the police used coercive tactics. Based on the Fifth Amendment right against self-incrimination and the Fourteenth Amendment Due Process Clause, a coerced confession is inadmissible. Dickerson v. United States , 530 U.S. 428, 433-34, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). Although "rare," a confession can be coerced even if officers complied with Miranda and the accused unambiguously waived the right to counsel. Berkemer v. McCarty , 468 U.S. 420, 433 n.20, 104 S. Ct. 3138, 82 L.Ed. 2d 317 (1984). The primary consideration when considering whether a confession was coerced is "voluntariness." State v. Swindler , 296 Kan. 670, 678, 294 P.3d 308 (2013). It is the State's burden to show "that a defendant's statements were voluntarily made." Swindler , 296 Kan. at 679, 294 P.3d 308. To decide whether a confession was involuntary, the court looks to the totality of the circumstances after considering a list of six nonexclusive factors: " '(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. [Citations omitted.]' " State v. Swindler , 296 Kan. 670, 678, 294 P.3d 308 (2013) (quoting State v. Gilliland , 294 Kan. 519, 528-29, 276 P.3d 165 [2012] ). In this case, the district court judge considered each of these factors before concluding that Palacio made his confession voluntarily. Palacio challenges the judge's decision with regard to the fifth factor only-the fairness of the officers in conducting the interrogation. The judge made the following findings and conclusions with regard to that factor: "The Court finds based upon the recorded interrogation that the officers spoke to the defendant in a polite and conversational tone. The defendant did not at any time-or, excuse me. The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview. No promises or threats were made. The Court finds that the defendant was treated fairly by the officers during the interrogation." Palacio disagrees with the court's conclusion that the officers did not threaten or coerce him. He asserts it was coercive to tell Palacio what he was being charged with and to tell him to think of Saum's parents, and that the officers meant to threaten him when they told him about his girlfriend's charges and asked about his felony convictions. We disagree. In State v. Swanigan , 279 Kan. 18, 39, 106 P.3d 39 (2005), this court held that the officers' repeated lie that a robbery suspect's fingerprints had been found on a window suggested a coerced confession. The officers also threatened to convey the suspect's lack of cooperation and charge him with additional crimes. Because the officers also took advantage of the suspect's low intellect and susceptibility to being overcome by anxiety, the totality of the circumstances showed that the resulting confession was involuntary. 279 Kan. at 39, 106 P.3d 39. In State v. Stone , 291 Kan. 13, 32, 237 P.3d 1229 (2010), this court again found that officers' tactics suggested coercion when they made untrue statements indicating the suspect's semen had been found on the pajamas of the victim. Sergeant Feldman testified that he told Palacio what he would be charged with so Palacio would know the charges. Sergeant Feldman indicated that Palacio's girlfriend had also been arrested, so he told Palacio what she would be charged with so he was also aware of her charges. Lieutenant Cox testified that he asked Palacio if he had any other felony convictions because he was trying to determine if Palacio would also be charged as a felon in possession of a firearm. Sergeant Feldman testified that he then asked Palacio if he had drug charges because "someone addicted to drugs cannot also possess a firearm." From this testimony, it appears that the officers did not tell any untruths, unlike the officers in Swanigan and Stone . Their statements could be perceived as threats-subtle hints that Palacio and his girlfriend are already in trouble and should talk to the officers. But the officers never explicitly threatened Palacio or promised to help him if he talked. This court made the same observation in State v. Sharp , 289 Kan. 72, 90, 210 P.3d 590 (2009), when considering whether officers had coerced a suspect's statements. Although it acknowledged that promises can be implicit, the officer's testimony indicated that he never intended to make an implicit promise. 289 Kan. at 90, 210 P.3d 590. Likewise, here, the officers both testified that they asked Palacio these questions because they wanted to know what other charges they could file against him-not as a threat, but as a matter of fact. Palacio also argues that Lieutenant Cox's statement to Palacio that "I think about some poor girl's parents," was coercive. Lieutenant Cox said this immediately before Palacio asked for an attorney. But "[p]olice appeals to the defendant's sympathies, such as by the now-famous 'Christian burial speech' ploy, 'do not automatically render a confession involuntary.' " LaFave, 2 Criminal Procedure § 6.2(c) (4th ed. 2019) (quoting Stawicki v. Israel , 778 F.2d 380, 383 [7th Cir. 1985] ). Rather, "[t]heir use must instead be considered in conjunction with the rest of the circumstances." Stawicki , 778 F.2d at 383. Because Palacio does not suggest that any of the other factors suggested coercion, this single statement fails to render his confession involuntary-even if it was coercive. Consequently, the district court judge did not err when she found that the officers did not threaten, coerce, or engage in deceptive practices, concluded that Palacio's confession was voluntary, and denied his motion to suppress. We affirm the convictions. Johnson, J., concurs in the result.

The opinion of the court was delivered by Rosen, J.: During the course of child in need of care (CINC) proceedings, Alicia and Sam relinquished custody of the four children in their care to relatives through a legal guardianship, after which the CINC proceedings were either terminated or became dormant. Alicia and Sam later sought to terminate the guardianship. The district court refused to grant them relief, holding that the best interests of the children militated against returning custody to Alicia and Sam. The Court of Appeals disagreed and reversed the district court. This court granted the guardians' petition for review. Because we determine that the district court findings were insufficient to allow proper appellate review, we remand the case to the district court for more complete and specific findings. FACTS The record informs us that Alicia is the natural mother of S.D., V.D., and D.D. Sam is the natural father of S.D., V.D., and B.H. In 2010, Alicia and Sam were arrested on drug-related charges. Because all of the children had been living with Alicia and Sam at the time of the arrest, the children were placed in temporary foster care. On September 1, 2010, the Wilson County Attorney filed CINC petitions regarding all four children. On the same day, the court entered orders giving temporary physical custody of the children to Sam's cousin, Malinda, and her husband, Gregory. Each child was adjudicated a child in need of care. On October 14, 2010, Malinda filed a petition for guardianship and conservatorship requesting that the court appoint her and Gregory coguardians and coconservators for all four children. Following a hearing, on December 23, 2010, the district court granted the petition and appointed Malinda and Gregory coguardians and coconservators of B.H., S.D., and V.D. The order also purported to terminate the CINC cases concerning those three children. The court did not rule regarding the guardianship and conservatorship of D.D. It continued her case until March 7, 2011, so that D.D.'s natural father had adequate time to participate in the proceedings. D.D.'s father did not respond and, on March 10, 2011, the district court appointed Malinda and Gregory coguardians and coconservators of D.D. and purported to terminate the CINC case concerning her. On the same day that it appointed Malinda and Gregory guardians of D.D., the district court ruled on child support. The journal entry indicates the Kansas Department of Social and Rehabilitation Services (SRS) had moved to intervene in the guardianship proceeding. In the journal entry, the court found that the guardians had received $ 795.39 in monthly cash assistance from SRS for each of the children-D.D., S.D., and V.D. The court ordered Alicia and Sam to reimburse SRS for these payments. It further ordered Alicia and Sam to each pay the guardians $ 407 per month for the support of the children. Alicia and Sam were eventually convicted of felony drug charges and sentenced to prison terms. Sam served two and a half years in prison and was released in July 2013. Alicia served four and a half years in prison and was released in December 2014. Alicia was paroled to the guardians' house in Osawatomie, Kansas, and lived there for a short time with them and the children. After three or four months, Alicia moved to Louisburg before eventually settling in Paola with her boyfriend and his daughter. She saw the children occasionally when she requested to see them and the children were not busy. S.D., V.D., and D.D. stayed overnight at her house once. By 2016, she was approximately $ 17,000 in arrears in child support. During his incarceration, Sam called the children once every few months. He also sent them letters. After his release, he immediately moved to the state of Washington. He informed Malinda that he could not see the children before his move because he was being paroled to Washington. Sam called Malinda one month after he arrived in Washington and informed her he would come see the children at Christmas. He did not make the visit. Malinda did not hear from Sam until March of 2014 when he called her on the phone. Sam made no attempts to see the children after his release from prison. He began making child support payments in March 2016 after his employer received paperwork indicating he needed to garnish Sam's wages. The payments were sporadic and depended on whether Sam had work. Sam owed about $ 25,600 in arrearages. On July 26, 2016, Alicia and Sam filed a petition to terminate the guardianship and conservatorship. They argued that they had a constitutional right to their children and, because they now had the means to care for the children, the guardianship and conservatorship should be terminated and the children should be returned to their custody. The guardians moved to dismiss the petition. They asserted that Alicia and Sam were presumptively unfit under K.S.A. 2016 Supp. 38-2271. Consequently, they argued, Alicia and Sam could not terminate the guardianship. A hearing was held on the petition to terminate the guardianship. On March 16, 2017, Alicia and Sam moved the court to open the record and take additional evidence that did not exist before the hearing. The court granted the motion and ordered a hearing. The judge also stated that he would interview the children again. The hearing was held on April 28, 2017, and the court heard testimony about the guardians' fitness, efforts by Alicia and Sam to spend time with the children, and the children possibly changing their minds about with whom they wanted to reside. On July 18, 2017, the district court denied the petition to terminate the guardianship. It made a number of legal observations before ruling: that K.S.A. 59-3091(h) required that it terminate the guardianship unless there was clear and convincing evidence that it was still needed; that it was the guardians' burden to show that Alicia and Sam were "still unfit" or that "exceptional circumstances" existed; and that, when the parents are unfit or extraordinary circumstances exist, the best interests of the children should be considered. The court concluded that extraordinary circumstances existed and that terminating the guardianship would be contrary to the best interests of the children. It ruled that, because it found that extraordinary circumstances existed, it would not determine whether Alicia and Sam were fit parents. Based on all of this, the court concluded there was clear and convincing evidence that the guardianship should not be terminated. Alicia and Sam appealed the decision. The Court of Appeals reversed the district court after concluding that the district court erred when it considered the best interests of the children. In re Guardianship and Conservatorship of B.H ., No. 118188, 2018 WL 4517544, at *6 (Kan. App. 2018) (unpublished opinion). It held that the district court should have applied the parental preference doctrine because it did not make a finding of parental unfitness, it failed to identify the extraordinary circumstances, and the evidence would not support a finding of extraordinary circumstances. 2018 WL 4517544, at *6. Applying the parental preference doctrine, the Court of Appeals reversed the district court order and remanded the case with directions to terminate the guardianship. 2018 WL 4517544, at *6-7. We granted the guardians' petition for review. ANALYSIS This appeal focuses on the interplay between the Kansas Code for Care of Children, K.S.A. 2018 Supp. 38-2201 et seq., and the Kansas Probate Code's Act for Obtaining a Guardian or a Conservator, or both, K.S.A. 59-3050 et seq. The appeal must be understood in light of two distinct kinds of proceedings at the district court level: the guardianship action of the present appeal, and CINC proceedings filed as separate actions under different case numbers. No appeals were taken in the CINC proceedings; indeed, it is unclear what orders were entered in the CINC proceedings, although at least one was apparently terminated following the approval of the guardianship by the probate court. K.S.A. 2018 Supp. 38-2201(a) states: "any orders pursuant to [the Code for Care of Children] shall take precedence over any similar order under ... article 30 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, guardians and conservators, ... until jurisdiction under this code is terminated." K.S.A. 2018 Supp. 38-2203(a) states: "Proceedings concerning any child who may be a child in need of care shall be governed by this code ...." In the present case, however, the proceedings under the Code for Care of Children were subordinated to proceedings under the chapter 59 guardianship and conservatorship statutes. Under the Code for Care of Children, jurisdiction is obtained over a child upon the filing of a petition under the code. K.S.A. 2018 Supp. 38-2203(c). Jurisdiction over the child continues until the child becomes 18 years of age (with exceptions for children still attending high school), or the child is adopted, or the child has been discharged by the court. K.S.A. 2018 Supp. 38-2203(c). Following an adjudication that a child is a child in need of care, a court is to consider various factors relating to the welfare of the child and then make dispositional decisions. K.S.A. 2018 Supp. 38-2255. If the court awards custody of the child to a party outside the home, a permanency plan must be prepared, which will include considerations for future reintegration into the home. K.S.A. 2018 Supp. 38-2255(e) ; K.S.A. 2018 Supp. 38-2264. If the court deems reintegration a viable alternative, a reintegration plan should be developed as part of a court-approved permanency plan. The permanency plan is subject to at least annual court review. If the court deems reintegration not a viable alternative, the State must file a motion within 30 days seeking termination of parental rights or the appointment of a permanent custodian. K.S.A. 2018 Supp. 38-2255(f). Courts are authorized to appoint permanent custodians, a legal relationship created strictly for the resolution of CINC cases when termination of parental rights is not in the best interests of the child but placement of the child in the parental home is also not in the child's best interests. See K.S.A. 2018 Supp. 38-2272. Such a permanent custodianship may be created with the consent and agreement of the parents and the approval of the court. K.S.A. 2018 Supp. 38-2272(a)(1). The district court retains jurisdiction over the child unless the court enters an order terminating jurisdiction. K.S.A. 2018 Supp. 38-2272(b). If a permanent custodian is appointed, the parents retain strictly limited rights and responsibilities: the obligation to pay child support and medical support; the right to inherit from the child; and the right to consent to adoption of the child. K.S.A. 2018 Supp. 38-2272(h). In the present case, it appears that the Code for Care of Children procedures were followed at least as far as having the children declared children in need of care. From testimony in the record, we can speculate that some kind of hearings were held regarding permanency. It appears, however, that no permanency plans were created and no plans for reintegration were either adopted or found unfeasible. No permanent custodians were appointed and Alicia and Sam's rights were not terminated. Instead, the statutory process for determining custody was short-circuited by the initiation of guardianship proceedings. This process violated the mandates of the Code for Care of Children, which "creates a legislatively designated framework of sequential steps of judicial proceedings with each step occurring in a specific order leading toward permanency in the child's placement." In re N.A.C ., 299 Kan. 1100, Syl. ¶ 5, 329 P.3d 458 (2014). K.S.A. 59-3091 sets out the manner for terminating a guardianship or conservatorship. K.S.A. 59-3091(a) provides: "At any time following the appointment of a guardian or a conservator, any person, including the ward or conservatee, may file a verified petition with the court requesting that the court find that the ward or conservatee is no longer in need of a guardian or a conservator, or both, and requesting that the court terminate the guardianship or conservatorship, or both." Following a hearing, "if the court does not find, by clear and convincing evidence, that the ward or conservatee is in need of a guardian or conservator, or both, the court shall order that the guardianship or conservatorship, or both, be terminated as provided for herein." K.S.A. 59-3091(h). Ordinarily, voluntary guardianships are exactly that: voluntary. For that reason, they may be terminated at any time and for any or no reason. See Nelson, Child Custody, Parenting Time, and Third-Party Visitation , Practitioner's Guide to Kansas Family Law § 6.8.2(a) 2d ed. 2010. But several circumstances inform us that the present case does not involve an ordinary voluntary guardianship. Alicia and Sam were facing involuntary separation from their children because they were going to prison. They were also facing the prospect of losing their parental rights, and they opted for the guardianship as a means to avoid CINC final orders. The CINC cases entered a state of limbo: the record on appeal contains no judicial determination that the status of the parental fitness ever changed or that the children were no longer children in need of care, although the CINC cases may have been terminated. In In re Guardianship of Williams , 254 Kan. 814, 869 P.2d 661 (1994), this court set out several principles relevant to the present case. "The best interests of the child test ... has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. However, absent highly unusual or extraordinary circumstances it has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent." 254 Kan. at 826, 869 P.2d 661. In support of this rule, the Williams court quoted Herbst v. Herbst , 211 Kan. 163, 163, 505 P.2d 294 (1973) : " 'In the absence of an adjudication that a natural parent is unfit to have custody of a child, the parent has the paramount right to custody as opposed to third parties-even, as here, they happen to be her own parents and the child's grandparents.' " 254 Kan. at 826, 869 P.2d 661. The court also referred to In re Eden , 216 Kan. 784, 786-87, 533 P.2d 1222 (1975), which rejected the best interests test in disputes between strangers and natural parents who are not unfit and who are able and willing to care for the children. The court cited with approval 67A C.J.S., Parent and Child § 26, p. 253, which states that, when there is no intent permanently to relinquish custody, but a parent surrenders a child temporarily because of illness or financial difficulties, the parent has the right to reclaim custody when the situation changes for the better. 254 Kan. at 827, 869 P.2d 661. It also cited Elrod, Child Custody Prac. and Proc. § 4.06 (1993), noting a general rule that parents as natural guardians have superior rights to the custody of their child over nonparents " 'unless the parents are unfit or extraordinary circumstances exist.' " 254 Kan. at 827-28, 869 P.2d 661. This court concluded: "We adhere to the rule that absent highly unusual or extraordinary circumstances the parental preference doctrine is to be applied in a custody dispute over minor children when the dispute is between a natural parent who has not been found unfit and a nonparent." ( Emphasis added.) 254 Kan. at 828, 869 P.2d 661. This rule applies even if "at the time the natural parent seeks their custody [the guardians] are giving the children proper and suitable care and have acquired an attachment for them." 254 Kan. 814, Syl. ¶ 2, 869 P.2d 661. As to what constitutes "extraordinary circumstances," the Williams court quoted In re Kailer , 123 Kan. 229, 231, 255 P. 41 (1927) : " '[T]he welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents' right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be intrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves.' " 254 Kan. at 822, 869 P.2d 661. Kailer predated the Code for Care of Children, and we do not consider its list of factors to be exhaustive. Williams simply places the responsibility on a district court to decide whether particular circumstances are extraordinary. Alicia and Sam argue that these principles from Williams mandate termination of the guardian and custodial relationship. But these principles apply to ordinary circumstances for creating guardianships. See In re R.C ., 21 Kan. App. 2d 702, 708, 713, 907 P.2d 901 (1995), rev. denied 259 Kan. 928 (1996) (distinguishing Williams , which dealt with truly voluntary guardianships, from cases arising out of the Code for Care of Children, and holding that CINC-motivated guardianships require consideration of best interests of children). It is possible that various factors, whether procedural peculiarities, family relationships, or other issues that may arise in the exceptional case, may justify a finding of extraordinary circumstances. Williams simply informs us that the best interests of the children-standing alone-do not take precedence over the preference of parents to retain or regain custody of their children. The district court stated that, "having found extraordinary circumstances exist, this Court does not determine whether or not Sam and Alicia are fit parents ...." The Court of Appeals made much of this non-determination. See 2018 WL 4517544, at *4-5. The Court of Appeals gave little weight to the parties' conflicting evidence about parental fitness, because the district court order was based on the existence of extraordinary circumstances, not on a finding of parental unfitness. The proper venue for determining parental fitness would have been, of course, the proceedings under the Code for Care of Children. As noted earlier, orders pursuant to the Code take precedence over similar orders under the Probate Code relating to guardians and conservators. K.S.A. 2018 Supp. 38-2201(a). If the statutory requirements under the Code for Care of Children had been followed, Alicia and Sam could have sought to persuade the court in the CINC proceedings that they were fit and that the children should be reintegrated into their homes. For reasons that do not appear in the record, that did not happen in the present case. Instead, a guardianship proceeding appears to have taken the place of the required CINC proceedings. As a consequence, parental fitness was left undetermined, as was any plan for reintegration. The district court explicitly found that "extraordinary circumstances exist in this case." The court also listed facts that contributed to a conclusion that the best interests of the children would be served by maintaining the guardianship and custodianship. The court noted the earlier determinations that the children were in need of care; the earlier CINC proceedings finding that remaining in the home or returning home would be contrary to the welfare of the children; the special educational and socializing needs of the children that had not been met by Alicia and Sam but were being met by the guardians; the children residing in the custody of the guardians for more than six years; and separating the children would be harmful to them. It is not clear, however, which of these many factors were the basis for the district court's legal conclusion that extraordinary circumstances existed. It is further unclear whether the district court's determination that extraordinary circumstances are present here was intended to be an independent finding of fact, a stand-alone legal conclusion finding allowing the court to consider the children's best interests, or a conclusion based on the series of factual findings that preceded it. It may be that at least some of the factors relating to best interests were also considered grounds for finding extraordinary circumstances, but the order does not state that is the case. It is also possible that the district court considered the overall circumstances, including the truncated CINC proceedings, to be extraordinary, without considering any particular factor sufficient to lead to that conclusion. Whether extraordinary circumstances exist is a mixed question of law and fact. The district court makes factual findings about the circumstances, and it makes a legal conclusion about whether these circumstances are extraordinary. See, e.g., Gannon v. State , 303 Kan. 682, 699-700, 368 P.3d 1024 (2016). The appellate court reviews the factual findings to determine whether they are supported by clear and convincing evidence, which is to say, whether the reviewing court is convinced that a rational fact-finder could have found the determination to be highly probable. See K.S.A. 59-3091(h) (clear and convincing evidence necessary to support rejecting request to terminate custodial relationship); In re Adoption of B.B.M ., 290 Kan. 236, 244, 224 P.3d 1168 (2010). The question of law would be subject to unlimited review. See, e.g., State v. Kahler , 307 Kan. 374, 400, 410 P.3d 105 (2018), cert. granted --- U.S. ----, 139 S. Ct. 1318, 203 L.Ed.2d 563 (2019). If the reviewing court finds no error in the lower court's determination that extraordinary circumstances exist, then determinations regarding children's best interests are reviewed for abuse of discretion. See In re R.S ., 50 Kan. App. 2d at 1116, 336 P.3d 903. Unfortunately, in the present case, this paradigm for review cannot be followed. While the district court made findings of fact and reached conclusions of law, it is impossible to disentangle the findings from the conclusions and to sort out which findings supported which conclusions. In general, litigants must object to inadequate findings of fact and conclusions of law in order to give the trial court the opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. When no objection is made, this court presumes the district court found all facts necessary to support its judgment, although this court may nevertheless order a remand if the lack of specific findings precludes meaningful review. McIntyre v. State , 305 Kan. 616, Syl. ¶ 1, 385 P.3d 930 (2016) ; Dragon v. Vanguard Industries , 282 Kan. 349, 356, 144 P.3d 1279 (2006). When it is impossible to discern from the appellate record the factors on which the district court relied to find extraordinary circumstances, however, this court must remand for additional factual findings and legal conclusions. Progressive Products, Inc. v. Swartz , 292 Kan. 947, 961-62, 258 P.3d 969 (2011). Alicia and Sam did not object to the sufficiency of the findings on the record. But instead of remanding for more complete findings, the Court of Appeals remanded "with directions to terminate the guardianship and conservatorship in a reasonable and timely manner." 2018 WL 4517544, at *7. Such a remedy carries with it the consequence that children will be separated and returned to the custody of parents who have been found to be providing them with inadequate parental care and who maintained minimal support and contact with them, and the parents would successfully circumvent statutorily mandated procedures for developing permanency and reintegration plans. Significantly, the court in several of the CINC proceedings here expressly found that "remaining in the home or returning home would be contrary to the welfare of the child(ren)." The CINC proceedings were terminated without any revision of that finding apparent in the record. The remedy ordered by the Court of Appeals overrides that finding and potentially places the children in custodial settings contrary to their welfare. CONCLUSION We therefore conclude that the better resolution is to remand this case to the district court for findings and legal conclusions that suffice to allow appellate review. The court should make factual findings about the circumstances and state those findings in its order. From there, the court should make a legal conclusion about whether those circumstances are extraordinary. If extraordinary circumstances exist, then the court should specify the factors leading to the determination that the best interests of the children supports maintaining or terminating the custodial relationships. We address one final point raised by the guardians. They argue that this court lacks statutory jurisdiction to entertain this appeal. They contend that, by terminating the CINC proceedings without making permanency orders, the district court must have intended the guardianship to be a permanent placement. They then argue, without citing authority, that the denial of a motion to change permanent custody is not an appealable order under the Code for Care of Children. But this case was filed in probate court, and K.S.A. 2018 Supp. 59-2401a(b)(5) permits appeals from "any final order, judgment or decree entered in any proceeding pursuant to: ... the act for obtaining a guardian or conservator, or both ...." We have no difficulty holding that this statutory language is broad enough to encompass an order denying a motion to terminate a guardianship. However, the issue highlights the confused nature of the proceedings below. Alicia and Sam, the Court of Appeals, and, to some extent, the district court sought to take the care of the children out of the purview of the Code for Care of Children and place it in the jurisdiction of the Probate Code. This shift violated the stated purpose of the Code for Care of Children, which was to make "the safety and welfare of a child ... paramount in all proceedings under the code." K.S.A. 2018 Supp. 38-2201(b)(1). The parties and the courts are now faced with the task of sorting out the proceedings that have taken place under these separate and distinct statutory schemes. It is anticipated that the district court will accomplish that task on remand. Judgment of the Court of Appeals reversing the district court is reversed. We remand to the district court with directions as stated above.

Per Curiam: Two police officers approached Fran Amilcar Andrade-Reyes, who was seated in a car lawfully parked in an apartment complex parking lot. The first officer stood near the driver's door and the second near the front passenger's door. The first officer immediately asked Andrade-Reyes what he had in his hands, which were clenched and held in front of him. When Andrade-Reyes failed to respond, the officer repeated the question several times and eventually commanded Andrade-Reyes to open his hand. Andrade-Reyes did so and dropped a small bag containing cocaine. He was charged with possession of cocaine and possession of drug paraphernalia. Before trial, Andrade-Reyes filed a motion to suppress evidence, arguing the officers obtained the evidence as the result of an unlawful seizure. The district court denied the motion, finding the encounter was voluntary. Andrade-Reyes appealed, and the Court of Appeals affirmed. State v. Andrade-Reyes , No. 115044, 2017 WL 1425858 (Kan. App. 2017) (unpublished opinion). On review of that decision, we hold that the officers unlawfully detained Andrade-Reyes and conducted an illegal search. Accordingly, we suppress the evidence and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Officers Megan Larson and Michael Jason Gross, while on bicycle patrol just after midnight, noticed a car in a dark area of an apartment complex parking lot. The officers observed two people seated in the driver's and front passenger's seats. They parked their bicycles several parking stalls away from the car but did not activate the bicycles' headlamps or emergency lights. Officer Larson approached the vehicle on foot and stood by the driver's door. Officer Gross followed and stood near the front passenger door. The officers directed the beams of their flashlights into the vehicle as they approached. According to Officer Larson, the passenger, Andrade-Reyes, appeared startled. He reached down toward the floorboard as the officers approached. Officer Larson testified that she could not tell what Andrade-Reyes was doing. When she got closer to the vehicle, she noticed Andrade-Reyes sitting upright with his hands tightly clenched and held out in front of him. She thought this was highly unusual and immediately began asking Andrade-Reyes what was in his hands. Andrade-Reyes did not answer or open his hands when first asked or upon repeated inquiry. Andrade-Reyes eventually moved his right hand past his right knee, dropping something and bringing his hand back up to show Officer Larson it was empty. Officer Larson then asked Andrade-Reyes what was in his left hand. Officer Larson apparently said, "What's in your hand? What's in your hand? Open your hand." (At least that is how the State quoted the body camera audio, which is not in the record on appeal.) Andrade-Reyes eventually opened his left hand, dropping a bag containing a white residue, later determined to be cocaine. The State charged Andrade-Reyes with possession of cocaine and possession of drug paraphernalia. He filed a motion to suppress evidence, arguing the officers unlawfully seized him. The district court denied his motion, finding the encounter was voluntary. Alternatively, the district court found the officers were justified in detaining Andrade-Reyes "[b]ecause of his evasiveness, they were very nervous about what was going on here and his reaction [to] things made them nervous." The district court found Andrade-Reyes' behavior "odd." The district court also cited Officer Larson's testimony, which the district court summarized as describing Andrade-Reyes as looking "like a deer in the headlights. He was breathing very, very heavy, and she even described how his carotid artery was going." The district court went on to find that Officer Larson's voice on the body camera's audio sounded "nervous." The court further found that Officer Larson did not know if there "was ammunition or a razor blade, a weapon," which caused the officers to be "very concerned." Accordingly, the district court concluded that even if the situation was considered a seizure "it was reasonable for the officers to justify what happened here" because of officer safety concerns. The district court then concluded the seizure "fit in the stop and frisk exception." The case proceeded to a bench trial on stipulated facts, and Andrade-Reyes preserved his objection to his seizure and the subsequent search. The district court convicted him of possession of cocaine and possession of drug paraphernalia and sentenced him to 10 months' imprisonment, suspended to 12 months' supervised probation. Andrade-Reyes timely appealed his convictions and sentence. The Court of Appeals affirmed the district court, holding the encounter was consensual, or, alternatively, any seizure was justified by the officers' safety concerns. See Andrade-Reyes , 2017 WL 1425858, at *4. Andrade-Reyes timely filed a petition for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision). ANDRADE-REYES WAS UNLAWFULLY SEIZED Andrade-Reyes argues his encounter with the officers became an investigatory detention-a seizure under the Fourth Amendment to the United States Constitution-when Officer Larson repeatedly asked him what was in his hand and eventually told him to open his hand. The State asserts, however, the encounter was voluntary and not a seizure. Both the district court and the Court of Appeals agreed with the State and held Andrade-Reyes' motion to suppress lacked merit. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Two aspects of this provision must be considered here: (1) Was Andrade-Reyes seized? (2) If so, was the seizure and resulting search reasonable? As to the first consideration, courts generally classify contacts between police and individuals into four categories. Some categories describe a seizure and others do not. The four categories are: consensual encounters, also called voluntary encounters; investigative detentions, commonly known as Terry stops; public safety stops; and arrests. State v. Thompson , 284 Kan. 763, 772, 166 P.3d 1015 (2007) ; see K.S.A. 22-2402 ; Terry v. Ohio , 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968). Principles articulated by the United States Supreme Court governing each of these categories direct our consideration of reasonableness-the second consideration demanded by the Fourth Amendment. See, e.g., Arizona v. Gant , 556 U.S. 332, 129 S. Ct. 1710, 173 L.Ed. 2d 485 (2009) (discussing parameters of reasonableness related to arrest and searches incident thereto); Florida v. Royer , 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L.Ed. 2d 229 (1983) (voluntary encounters); Terry , 392 U.S. 1, 88 S.Ct. 1868 (investigatory detentions); Camara v. Municipal Court , 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed. 2d 930 (1967) (public safety stops). The district court and the Court of Appeals determined the encounter between the police and Andrade-Reyes fit the first category of a consensual encounter. Generally, courts do not consider a consensual encounter to be a seizure that triggers the protections of the Fourth Amendment. Consent itself makes the encounter reasonable, and the State need not establish that the officers had probable cause before initiating the encounter. In other words if the encounter was voluntary, the State need not establish that the officers approached the car with a reasonable suspicion that Andrade-Reyes had committed, was about to commit, or was committing a crime. See Florida v. Bostick , 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L.Ed. 2d 389 (1991) ; Terry , 392 U.S. at 19 n.16, 88 S.Ct. 1868. The district court alternatively found that, if a seizure occurred, the stop-and-frisk exception applied. Under this exception, which was recognized in Terry , 392 U.S. at 21-22, 88 S.Ct. 1868, an officer may seize or stop an individual even if lacking probable cause to arrest the individual as long as the officer has a reasonable suspicion of criminal activity. And under some circumstances the officer may frisk the individual. As later summarized by the Court, Terry allows a stop and frisk if two conditions are met: "First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L.Ed. 2d 694 (2009). To consider how these concepts fit with the facts of the encounter between police and Andrade-Reyes, we first consider whether the encounter was voluntary. We then consider when reasonable suspicion arose that would justify an investigatory detention. Finally, we consider whether the reasoning of Terry extends to allow the detention and questioning for officer safety purposes even if the officers lacked a reasonable suspicion. The encounter was not voluntary. For an encounter to be voluntary, courts examine whether the officer's conduct would convey to a reasonable person that he or she was free to terminate the encounter. State v. Reiss , 299 Kan. 291, 298-99, 326 P.3d 367 (2014) ; Thompson , 284 Kan. at 775, 166 P.3d 1015. Appellate courts review a district court's factual findings related to this test for substantial competent evidence and conduct a de novo review of the district court's legal conclusions. Thompson , 284 Kan. at 776, 166 P.3d 1015. Here, the facts are not disputed. Instead, the dispute involves the district court's and Court of Appeals panel's legal conclusions. We thus exercise de novo review. In Thompson , we considered whether an interaction between an officer and a driver after a traffic stop's conclusion could be considered voluntary. We listed several nonexclusive factors that tend to establish a voluntary encounter, including "knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver's license and other documents, and a physical disengagement before further questioning." 284 Kan. at 811, 166 P.3d 1015. We also set out factors that tend to establish a continued detention-a seizure-including: "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory, the prolonged retention of a person's personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or the display of emergency lights. [Citations omitted.]" 284 Kan. at 811, 166 P.3d 1015. No particular factor is determinative or paramount. 284 Kan. 763, Syl. ¶ 20, 166 P.3d 1015. And these factors can apply to circumstances other than traffic stops that the State argues were a voluntary encounter. See, e.g., State v. Williams , 297 Kan. 370, 377, 300 P.3d 1072 (2013). Here, some factors suggest the officers seized Andrade-Reyes and others do not. As the Court of Appeals noted, the officers did not display a weapon, block the vehicle with the bicycles, activate the bicycles' emergency lights, or act in a threatening manner. Andrade-Reyes , 2017 WL 1425858, at *3. These factors were weighty enough in the district court's and the Court of Appeals panel's assessment for both courts to conclude the encounter was voluntary. On the other hand, the officers approached the vehicle late at night in a dark area of the parking lot. The car was legally parked. There were no bystanders. Officer Larson did not introduce herself or state her reason for approaching the vehicle. Nor did she indicate Andrade-Reyes was free to leave or to refuse to answer questions. Instead, with the beam of her flashlight shining into the car, she immediately began asking Andrade-Reyes what was in his hands. Significantly, she did not take Andrade-Reyes' silence or lack of a physical response as an indication he did not wish to interact with the officers. Instead, according to the district court's findings, her voice became "nervous" and she persisted in asking him what was in his hands until he opened them. Although we do not have the body camera footage available to us, at the suppression hearing, the State seemingly quoted from it, stating that Officer Larson asked: "What's in your hand? What's in your hand? Open your hand." In other words, Officer Larson commanded or ordered Andrade-Reyes to open his hand. Further, although the officers did not activate their emergency lights or park their bicycles behind the vehicle, they stood near the doors of the car-one officer on each side. Andrade-Reyes, as a passenger, had no control over moving the car itself. These factors are much like-and even stronger indications of a seizure than-those in Williams , 297 Kan. 370, 300 P.3d 1072, where we held a detention had occurred. In Williams , two officers approached Deron D. Williams as he walked alone on a sidewalk parallel to a deserted street at 2:30 a.m. The officers pulled their patrol vehicle near Williams and activated their emergency lights. The officers got out of their vehicle and positioned themselves on either side of Williams and immediately began asking questions without indicating he was free to leave. This court found a reasonable person in Williams' circumstances would not have felt free to leave. See Williams , 297 Kan. at 379, 300 P.3d 1072. One fact distinguishes Williams from the circumstances facing Andrade-Reyes, however. In Williams , the officers activated their emergency lights, but here they did not. Nevertheless, the Williams decision's reliance on the New Mexico Supreme Court's decision in State v. Soto , 143 N.M. 631, 179 P.3d 1239 (2008), suggests the presence of lights did not weigh heavily in this court's determination that a reasonable person in Williams' position would not have felt free to ignore the officers. In Soto , the officers did not activate emergency lights during the encounter. Yet the New Mexico Supreme Court held officers exhibited a show of authority when, late at night, they pulled their patrol car alongside Charles Soto, who was riding his bicycle on a deserted street. The officers immediately began questioning Soto about his activities and asked for his identification. The Soto court held a reasonable person would not have felt free to leave because of the officers' conduct in immediately asking questions, the isolated location, and the late hour. See 143 N.M. at 632-35, 179 P.3d 1239. As in Soto and Williams , the immediate questioning of Andrade-Reyes, the isolated location, and the late hour are important factors. In addition, Andrade-Reyes' reaction distinguishes his situation from other cases where we have held that a voluntary encounter is not transformed into a seizure simply because an individual responds to questions or provides identification when approached and questioned by an officer. See, e.g., State v. Lee , 283 Kan. 771, 775-78, 156 P.3d 1284 (2007) (concluding voluntary encounter did not evolve into investigatory detention "simply because the officer asked [the defendant] for permission to conduct a pat-down search for weapons" and the defendant "chose to voluntarily comply" with officer's request). The Court of Appeals panel cited the decision of a different Court of Appeals panel that reached the same holding as Lee . See Andrade-Reyes , 2017 WL 1425858, at *3 (citing State v. Jennings , 33 Kan. App. 2d 244, 250-51, 99 P.3d 1145 [2004], rev. denied 279 Kan. 1009 [2005] [citing and discussing other cases] ). The point those cited cases make is that the detainee gave "voluntary answers" and answered questions under circumstances where "the officers' behavior up to and including the time that [the officer] asked [for the detainees'] consent ... [did] not communicate to a reasonable person that he or she was not free to leave the premises" or refuse to answer questions. Jennings , 33 Kan. App. 2d at 250, 99 P.3d 1145. Here, however, Andrade-Reyes did not respond. Officer Larson testified that when she asked Andrade-Reyes what was in his hands "[h]e just stayed there with his hands clenched just looking at me and wouldn't move." Rather than accepting that he had the right not to consent to a continuation of the encounter, she repeatedly asked her question and eventually issued a command. Even though Officer Larson spoke in a normal voice and was not loud, rude, or intimidating, her demeanor does not negate her persistence or her command to Andrade-Reyes to open his hands. Andrade-Reyes' lack of response was permissible and cannot be weighed against him if this was a voluntary encounter. In a voluntary encounter, "[t]he person approached ... need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." Royer , 460 U.S. at 498, 103 S.Ct. 1319. And if the person declines, "[h]e may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." 460 U.S. at 498, 103 S.Ct. 1319. In summary, the totality of the circumstances lead us in our de novo review to a different conclusion from the one reached by the district court and the Court of Appeals panel. The encounter occurred late at night in a dark parking lot with no one else around. Two uniformed police officers approached the vehicle while shining their flashlights on Andrade-Reyes and the driver. The officers did not identify themselves or explain why they were there. Instead, they stood on either side of the vehicle near the doors, and, in a nervous voice, Officer Larson repeatedly asked Andrade-Reyes to open his hands and then ordered him to do so despite his lack of response. Given those circumstances, a reasonable person in Andrade-Reyes' situation would not have felt free to terminate the encounter. Simply put, Andrade-Reyes did not voluntarily engage in an encounter. He thus was seized for purposes of the Fourth Amendment. See Reiss , 299 Kan. at 298-99, 326 P.3d 367. The officers lacked reasonable suspicion to detain Andrade-Reyes . Accordingly, to detain Andrade-Reyes for a Terry investigative detention, the officers needed to at least have a particularized and objective basis, supported by specific and articulable facts, for suspecting Andrade-Reyes of criminal activity. See Terry , 392 U.S. at 21, 88 S.Ct. 1868. But the State implicitly conceded in its arguments to the district court that the officers lacked reasonable suspicion of criminal activity when they approached the car. The district court seemed to agree. It concluded the encounter became a stop-and-frisk situation. And that conclusion was based on facts that became known late in the encounter-when Andrade-Reyes "drops it, and they see it in plain sight, and they do take it," presumably referring to the white substance that the officers suspected to be cocaine. The existence of reasonable suspicion at that point near the end of the encounter does not justify what happened before that point-Officer Larson's repeated requests and eventual order for Andrade-Reyes to open his hands. Without a justification for the detention and conduct during this time, Andrade-Reyes' motion to suppress has merit. See Terry , 392 U.S. at 13, 88 S.Ct. 1868 ("Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions."). To avoid this result, the State must demonstrate that reasonable suspicion arose before that point. But the State does not articulate a valid basis for reasonable suspicion prior to Andrade-Reyes dropping the white substance. Before that, the officers knew only that, after midnight, Andrade-Reyes sat in a car legally parked in a high-crime area, he was extremely nervous, he had reached toward the floor, his hands were clenched, and he did not respond to Officer Larson's questions. These facts did not cause either officer to articulate a subjective belief that a particular crime had occurred, was occurring, or was about to occur or even that they reasonably suspected any criminal activity. Nor did the district court make a clear finding that these facts supported an objective belief of reasonable suspicion or probable cause. See Terry , 392 U.S. at 21, 88 S.Ct. 1868 (holding that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion"). Perhaps the district court did not find a reasonable suspicion before the officers saw what was in Andrade-Reyes' hands because these facts are highly ambiguous and subject to innocent explanations. Unlike a car stop where a driver knows police are in pursuit and a furtive movement might be a factor in forming reasonable suspicion (albeit often a weak one), here the circumstances do not indicate that Andrade-Reyes knew Officer Larson and Officer Gross were police officers when he first saw them. The officers did not activate the emergency lights or the headlamps on their police bicycles, and they did nothing to identify themselves as police officers. As Officer Larson testified, it was a very dark area of the parking lot. So dark, in fact, they could not tell what might be going on in the vehicle. Andrade-Reyes reasonably would have had the same difficulties telling what was going on outside the car. Then, when the officers approached, it would have been difficult for Andrade-Reyes to see who was approaching because the officers directed the beams of their flashlights into the car. Given the fact it was a high-crime area, Andrade-Reyes could have been concerned the individuals approaching the car may have been trying to rob him. That belief could innocently explain his odd behavior and nervousness, including an inference that he was hiding something from potential robbers when he reached toward the floorboard. As we have discussed, Andrade-Reyes had the right to refuse to answer questions and his refusal cannot furnish the grounds for reasonable suspicion. As Andrade-Reyes points out, these circumstances are highly analogous to those in State v. Epperson , 237 Kan. 707, 703 P.2d 761 (1985). In Epperson , late one night, an officer saw a legally parked car in a high-crime area with two men seated inside. When the occupants saw the officer's patrol car they appeared startled and the passenger appeared to reach down toward the floorboard. The occupants exited the vehicle and began to walk away before the officer stopped his patrol car. The officer told them to stop and began questioning them about why they were in the area. This court held: "The officer had no knowledge of any prior crime; he had not seen or heard of any nearby break-in or other offense and had no reason to suspect these defendants of any such crime. He did not see them commit any offense. Their car was lawfully parked in an area where cars of customers of the private club frequently parked, although there were closer parking spaces available. They did not appear to be armed. The officer was suspicious but he had no objective facts upon which to form a belief that the men were involved in criminal activity. That the men appeared startled when the patrol car emerged from the alley, that the passenger appeared to reach down to the floorboard area, and that the men got out of the car and started to walk away, is not indicative of criminal activity." Epperson , 237 Kan. at 713, 703 P.2d 761. Similarly, Officer Larson and Officer Gross did not testify to knowing of any recent criminal activity and the vehicle was legally parked. The fact the encounter occurred late at night in a high-crime area is not indicative of criminal activity, nor is Andrade-Reyes appearing startled and reaching toward the floorboard. See Epperson , 237 Kan. at 713, 703 P.2d 761. Under the totality of the circumstances, the officers did not have reasonable suspicion to detain Andrade-Reyes. He thus was subject to an unlawful seizure that tainted the subsequent discovery of the white substance. Accordingly, the evidence should have been suppressed unless another basis exists for allowing the questioning and the search. See Thompson , 284 Kan. at 772, 166 P.3d 1015. Officer safety concerns alone do not justify an investigatory detention. The district court, in discussing an alternative ruling, relied on officer safety concerns in ruling the evidence should not be suppressed. The district court did so in the context of making its ruling that the stop-and-frisk-exception had been satisfied, implicitly concluding the encounter evolved into an investigatory detention. The Court of Appeals panel skipped over whether there was a lawful investigatory detention and focused instead on whether the seizure was justified by officer safety concerns, relying on this court's decision in Reiss , 299 Kan. 291, 326 P.3d 367. See Andrade-Reyes , 2017 WL 1425858, at *4. ("However, even if we were to characterize the encounter as a seizure, it was a reasonable one."). We reject the reasoning of the district court and the panel's alternative justification. First, as to the district court's ruling, we have noted that the United States Supreme Court has recognized the stop-and-frisk exception applies if two conditions are met: "First, the investigatory stop (temporary detention) must be lawful .... Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous." Johnson , 129 S. Ct. at 781-82. Thus, our conclusion that reasonable suspicion did not justify an investigatory detention means the district court erred in its conclusion of law. Without a valid stop, there cannot be a valid frisk. This leaves the Court of Appeals' proposition that officer safety can independently justify a detention and search. Generally, consenting to an encounter does not grant officers permission to frisk or search. Another consent, this one agreeing to a search, is usually necessary. The United States Supreme Court Justice Harlan explained this in his concurring opinion in Terry : "[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection." Terry , 392 U.S. at 32, 88 S.Ct. 1868 (Harlan, J., concurring). Summarizing caselaw related to this point, a leading treatise explains these principles mean an officer cannot initiate a search simply because he or she believes an individual may be armed: "[I]n the absence of some legitimate basis for the officer being in immediate proximity to the person, a degree of suspicion that the person is armed which would suffice to justify a frisk if there were that basis will not alone justify such a search. For example, if a policeman sees a suspicious bulge which possibly could be a gun in the pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may not approach him and conduct a frisk. And this is so even though the bulge would support a frisk had there been a prior lawful stop. Likewise, if an officer, lacking the quantum of suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field interrogation, he may not frisk the person interrogated upon suspicion he is armed; in such a case the officer may protect himself by not engaging in the confrontation." 4 LaFave: A Treatise on the Fourth Amendment, Search & Seizure § 9.6(a) (5th ed. 2018). See State v. Dean , 42 Kan. App. 2d 558, 562, 214 P.3d 1190 (2009) ("[A]n officer must be able to point to specific, articulable facts to support reasonable suspicion for both the stop and the frisk."). Some exceptions are recognized, however. One of those exceptions broadly encompasses the situation that arose in Reiss , 299 Kan. 291, 326 P.3d 367 -the case relied on by the Court of Appeals panel. This exception recognizes that officers conducting a valid investigatory detention might encounter an officer safety issue arising from the activities of someone the officer did not intend to detain, often companions of the detainee. See 4 LaFave, § 9.6(a) and n.6. Such a situation arose in Reiss and justified a seizure. In Reiss , an officer observed a vehicle without its lights on-the target vehicle-and activated his emergency lights. Rex Reiss was driving a vehicle immediately behind the target vehicle. When he saw the emergency lights, he pulled over and parked directly behind the target vehicle. The officer testified he did not have room to park between Reiss' vehicle and the target vehicle and, for safety reasons, did not want to park in front of the target vehicle. Consequently, he parked behind Reiss. Reiss angrily charged toward the officer, demanding to know why he had been stopped. The officer ordered Reiss to return to his vehicle. Once Reiss had done so, the officer approached Reiss and requested his driver's license and proof of insurance. We held Reiss was seized when he submitted to the officer's order to return to his vehicle. But the seizure was reasonable in light of legitimate officer safety concerns because of Reiss' aggressive behavior. Reiss , 299 Kan. at 301-03, 326 P.3d 367. Although the officer did not intend to initiate a traffic stop of Reiss' vehicle, "the circumstances ... were so similar to a traffic stop that we [found] cases analyzing seizures in that context instructive." Reiss , 299 Kan. at 300, 326 P.3d 367. In doing so, we drew parallels between Reiss' situation and that of a passenger travelling in a lawfully stopped vehicle. We noted that traffic stops pose dangers to police officers, and the danger to both the officer and the occupants of the vehicle is minimized when the officer exercises command over the situation. For this reason, officers may order the passenger of a lawfully stopped vehicle to either exit the vehicle, remain in the vehicle, or return to the vehicle if they have already exited. See Reiss , 299 Kan. at 300-01, 326 P.3d 367 (citing Arizona v. Johnson , 555 U.S. 323, 330, 129 S. Ct. 781, 172 L.Ed. 2d 694 [2009] ; Maryland v. Wilson , 519 U.S. 408, 413-14, 117 S. Ct. 882, 137 L.Ed. 2d 41 [1997] ). The Wilson Court recognized a traffic violation does not give an officer reasonable suspicion or probable cause to detain the passengers of a vehicle during a traffic stop. But an order to exit the vehicle is a small intrusion on individual liberty because "as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle." Wilson , 519 U.S. at 413-14, 117 S.Ct. 882. And the stop itself stems from the officer having reasonable suspicion or probable cause to believe the driver has committed a traffic offense. See Wilson , 519 U.S. at 413, 117 S.Ct. 882. So "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop ." (Emphasis added.) Wilson , 519 U.S. at 415, 117 S.Ct. 882. The officer's safety concern justifies the restraint on the passengers' liberty while the officer is pursuing a legitimate traffic stop. But nothing in Wilson suggests an officer can detain the passengers for an unrelated investigatory purpose. See 519 U.S. at 413-15, 117 S.Ct. 882. Similarly, in Reiss , the officer needed to protect his safety during a traffic stop. Reiss was not the target of the stop and the officer did not have reasonable suspicion to initiate a stop on Reiss' vehicle. But Reiss' presence and aggressive behavior created an officer safety concern that justified the officer exercising control over the scene and ordering Reiss to return to his vehicle. Due to these unique circumstances, we found the officer took "an eminently reasonable measure to preserve officer safety" by ordering an angry motorist to return to his vehicle. Even though the officer's order constituted a seizure, it was not unreasonable under the circumstances. Reiss , 299 Kan. at 302, 326 P.3d 367. Unlike a passenger of a lawfully stopped vehicle, however, the officer did not have reasonable suspicion to detain Reiss or any occupant of his vehicle. Further, once Reiss had returned to his truck, the officer's safety concern of not wanting to turn his back on Reiss to effectuate the traffic stop on the other vehicle, could be "resolved by advising Reiss he was now free to go." 299 Kan. at 302, 326 P.3d 367. Accordingly, we held the officer's additional action of requesting Reiss' driver's license and proof of insurance was an unreasonable investigatory detention because it was not supported by reasonable suspicion. 299 Kan. at 302-03, 326 P.3d 367. Reiss recognized narrow and limited grounds for the initial seizure; thus, it must be considered in context. When a seizure is "an eminently reasonable measure to preserve officer safety" it does not violate the Fourth Amendment. Reiss , 299 Kan. at 302, 326 P.3d 367. Some courts have extended this principle to encounters that begin as consensual but develop into a situation in which a seizure for officer safety reasons is reasonable. Professor LaFave's treatise on search and seizure has summarized these cases, indicating they recognize a "limited exception," which it explains by stating: "If the officer has commenced a nonseizure confrontation without a pre-existing reasonable suspicion supporting a frisk, but such suspicion suddenly appears (most likely because of the suspect's conduct), then the officer is entitled to frisk for his own protection." 4 LaFave, § 9.6(a) and n.14 (citing United States v. Ellis , 501 F.3d 958 [8th Cir. 2007] [occupant of house consented to police entry, but another occupant "act[ed] nervously and reach[ed] toward his pocket" providing suspicion justifying search]; State v. Mann , 271 Conn. 300, 857 A.2d 329 [2004] [allowing pat-down during consensual encounter after officers developed reasonable suspicion individual was armed and posed an immediate danger]; People v. Colyar , 374 Ill.Dec. 880, 996 N.E.2d 575 [2013] [citing LaFave's statement of exception and concluding "(t)hat is precisely what happened here," as "(o)nly after the nonseizure interrogation had commenced did they develop a reasonable suspicion that the vehicle's occupants were armed and dangerous"]; Commonwealth v. Stephens , 451 Mass. 370, 374, 383, 885 N.E.2d 785 [2008] [nonseizure encounter with persons within parked cars, when officer saw one "holding a black object in the area of his chest, which he quickly lowered to the area of his lap," officer "was justified in 'opening the door, securing the defendant's hands and ordering the defendant from the car for a pat frisk limited to finding weapons' "] ). We need not determine whether we agree with those decisions or the exception they recognize because, even if we did, the facts here do not meet the requirement that a seizure based only on officer safety concerns must be no more than "a small intrusion on individual liberty." Reiss , 299 Kan. at 301, 326 P.3d 367. In other words, the seizure must be strictly limited in duration, scope, and purpose to address the officer's safety concern, which, on its own, does not constitute reasonable suspicion to detain. Reiss , 299 Kan. at 301-03, 326 P.3d 367. The type of seizure contemplated by Reiss thus may be more limited than what is permitted in a traditional Terry stop. See Reiss , 299 Kan. at 301-04, 326 P.3d 367 ; see also Terry , 392 U.S. at 20-23, 88 S.Ct. 1868 (borrowing the balancing of interests test first articulated in Camara , 387 U.S. 523, 87 S.Ct. 1727, applying it to encounters such as the one in Terry and holding it would be unreasonable to require police to take unnecessary risks simply because they lack probable cause to arrest where reasonable suspicion of criminal activity). In applying Reiss to the current facts, the Court of Appeals did not acknowledge the important distinction between "a small intrusion on individual liberty" for officer safety concerns and an investigatory detention. See Andrade-Reyes , 2017 WL 1425858, at *4. Here, the officers' safety concerns are distinguishable from Reiss . As Andrade-Reyes points out, he did not make an aggressive or hostile move toward the officers. They approached him; he did not approach them. Officer Gross testified the door was closed and the window was rolled up. Andrade-Reyes made no movements other than moving his right hand in response to Officer Larson's repeated questions. He did not reach out toward the officers and did not reach toward the floorboard. Officer Larson testified that Andrade-Reyes was very nervous and looked like "a deer in the headlights." But he did not show aggressive behavior like Reiss. Officer Larson testified she was concerned Andrade-Reyes might have had "a razor blade or ammo in his hands." While those things could potentially pose a danger, Officer Larson's actions were not justified under the circumstances because the door was closed and the window was rolled up. It is hard to imagine what danger, if any, loose ammunition could pose absent the presence of a firearm, which Officer Larson did not indicate she suspected to be either in the car or on Andrade-Reyes' person. Without a firearm, Andrade-Reyes could have conceivably stabbed at the officers with loose ammunition or thrown it at them. But doing so would not be possible through a closed door and window. Likewise, Andrade-Reyes would not have been able to harm the officers with a razor blade through a closed door and window. As Officer Gross testified, Andrade-Reyes never reached toward either officer. Neither officer claimed Andrade-Reyes ever reached for the door handle or tried to lower the window. His hands were clenched but they were where the officers could see them. And his refusal to open his hands necessarily precluded him from grabbing a weapon from elsewhere in the vehicle or opening the window or door. Andrade-Reyes did not answer Officer Larson's question about what was in his hands and did not initially respond to her request to open his hand-he did not show a willingness to participate in a voluntary encounter. So it may have been reasonable to ask Andrade-Reyes to keep his hands where the officers could see them and remain in the vehicle until the officers could leave. See Reiss , 299 Kan. at 301-03, 326 P.3d 367. Giving such directions would be analogous to the officer ordering Reiss to return to his vehicle. This court held "Reiss' liberty interest to remain outside his truck was small, if present at all. And the intrusion on his liberty was 'minimal.' " The officer's order "merely reinstated the conditions existing before Reiss' rash decision to exit his truck." Reiss , 299 Kan. at 302, 326 P.3d 367. Similarly, telling Andrade-Reyes to remain in the vehicle and keep his hands where the officers could see them would be minimally intrusive because he was already seated in the vehicle before the officers arrived and did not appear to try to exit when he first noticed the officers or when they made contact. And he was already holding his fists out where the officers could see them. A limited and momentary restraint on Andrade-Reyes' liberty would not have been unreasonable because of the officers' safety concerns. But those concerns arose because Andrade-Reyes did not wish to answer Officer Larson's questions or show her what was in his hands. In other words, his unwillingness to show or tell Larson what was in his hands is the reason relied on for involuntarily detaining him to continue to ask him what was in his hands. This is unreasonable. See Royer , 460 U.S. at 498, 103 S.Ct. 1319 (recognizing right to refuse to answer questions and holding person could not be detained for refusing). Officer Larson's repeated questioning about what Andrade-Reyes had in his hands constituted an investigatory detention; it went beyond "merely reinstat[ing] the conditions existing before [the encounter]." Reiss , 299 Kan. at 302, 326 P.3d 367. But Officer Larson did not have reasonable suspicion of criminal activity to detain Andrade-Reyes; thus, the detention was unlawful. Accordingly, all evidence obtained as a result must be suppressed because it was tainted by an unlawful seizure. See Reiss , 299 Kan. at 304, 326 P.3d 367. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded.

The opinion of the court was delivered by Stegall, J.: After the Saline County District Court found Clay Snyder not competent to stand trial, the Kansas Department for Aging and Disability Services (KDADS) initiated involuntary commitment proceedings against him. Ultimately, the Pawnee County District Court found Snyder was mentally ill and dangerous under K.S.A. 2017 Supp. 59-2946(e) and (f)(3) and ordered him committed to Larned State Hospital (Larned) for care and treatment. Snyder appeals from this commitment order, alleging equal protection and due process violations and challenging the sufficiency of the evidence. Finding Snyder's constitutional rights were not violated and the evidence was sufficient to involuntarily commit him, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2012 Snyder was charged with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child in Saline County. Snyder filed a motion to determine his competency to stand trial, triggering a lengthy cycle of competency evaluations, judicial findings of incompetency, treatment to restore competency, and renewed efforts by the State to take Snyder to trial. This process has now spanned years and has been interrupted and prolonged at least twice by involuntary commitment proceedings under the Kansas Care and Treatment Act for Mentally Ill Persons (Care and Treatment Act), K.S.A. 59-2945 et seq. Snyder's competency detainment is the subject of a separate case, this day decided. See In re Habeas Corpus Petition of Snyder , 307 Kan. ----, --- P.3d ----, 2018 WL 3596196 (2018) (No. 117,167, this day decided). Thus far, competency restoration efforts have proven unsuccessful. In November 2016, the Saline County District Court again found Snyder was not competent to stand trial with no substantial probability that he would attain competency in the foreseeable future. Consequently, as directed by Kansas statute, the court ordered KDADS to commence involuntary commitment proceedings against Snyder. See K.S.A. 2017 Supp. 22-3303(1) ("If such probability does not exist, the court shall order the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated."). Three months later, KDADS filed a petition for determination of mental illness in Pawnee County, alleging Snyder was a mentally ill person subject to involuntary commitment for care and treatment at Larned. The Pawnee County District Court held a bench trial on March 21, 2017. KDADS presented one witness, psychologist Jessica Zoglman, who testified about a report she wrote to the court recommending that Snyder be committed for inpatient treatment at Larned. The parties entered five exhibits into evidence: (1) KDADS's petition for determination of mental illness, which included two of Snyder's competency evaluations; (2) Zoglman's curriculum vitae; (3) Zoglman's report to the court; (4) Snyder's recent Larned intake assessment; and (5) Snyder's petition for writ of habeas corpus in a separate case. Zoglman testified that she reviewed Snyder's Larned admission records, which included an intake assessment completed by the admitting psychiatrist, and the two competency evaluations attached to the petition. She also conducted an interview with Snyder on March 10, 2017, and interacted with him in her duties as Larned unit psychologist. These records and interactions formed the basis of her report. Ultimately, she concluded Snyder was mentally ill, dangerous to others, and in need of treatment. Zoglman testified that Snyder met the criteria for the diagnosis of "Intellectual Disability, mild as severity, as well as a number of different substance use disorders that are currently in remission." In her report, Zoglman stated she "ruled out a paraphilic related diagnosis at the present time" but noted Snyder's "[e]ncounter for mental health services for perpetrator of nonparental child sexual abuse" was a condition that might be the focus of clinical attention. Zoglman testified that she used the word "condition" because Snyder did not meet the "habit criteria" for a diagnosis. A discrepancy between Zoglman's testimony and report caused confusion about whether Snyder fit the definition of a "mentally ill person" for purposes of involuntary commitment. In her report, Zoglman did not check the box to indicate that Snyder was a mentally ill person. As Zoglman explained, the standardized report form defined "mentally ill person" in accordance with K.S.A. 2017 Supp. 59-2946(f)(1), which excludes persons solely diagnosed with an intellectual disability from being mentally ill persons subject to involuntary commitment. But this definition did not apply to Snyder, who was charged with an off-grid felony and found incompetent to stand trial. Instead, Snyder was subject to the definition of "mentally ill person" found in K.S.A. 2017 Supp. 59-2946(e), which does not contain this exclusion. See K.S.A. 2017 Supp. 22-3303(1) ("[F]or such proceeding, 'mentally ill person subject to involuntary commitment for care and treatment' means a mentally ill person, as defined in subsection [e] of K.S.A. 59-2946... who is likely to cause harm to self and others, as defined in subsection [f][3] of K.S.A. 59-2946."). Zoglman clarified that under the correct definition, she believed Snyder was a mentally ill person. Furthermore, Zoglman concluded Snyder met the "likely to cause harm" criteria set forth in K.S.A. 2017 Supp. 59-2946(f)(3) because, though he posed no immediate threat to himself, without supervision he could be dangerous to others because he did not understand the seriousness of the charges against him. As Zoglman explained, "The important piece is his lack of insight into that seriousness. You know when speaking with him for an interview ... he was aware that his charges are related to, you know a sexual offense of a child. However, he indicated that it wasn't serious and so to me ... he has a lack of insight, lack of appreciation for that seriousness. With the ... severity level of his charges being off grid, it is a concern that if he does not see that his current legal situation is a serious matter that potentially without supervision other actions or other things could happen." Finally, Zoglman testified that Snyder needed treatment. She explained that treatment would not "cure" Snyder's intellectual disability; however, treatment such as group and individual therapy could help Snyder interact more appropriately, function better, and live with less stress. She concluded that "intensive supervision in a locked facility is care that is needed for Mr. Snyder." Snyder testified briefly about his disability and the competency restoration classes he took at Larned. He demonstrated a poor understanding of the nature of his disability and the legal proceedings against him. The defense called no other witnesses. The district court found Snyder met the criteria for involuntary commitment under the Care and Treatment Act as modified by K.S.A. 2017 Supp. 22-3303, stating: "I'm making the finding at this point that you meet the criteria for 3303, you're charged with an off-grid felony, there is a belief by the person who prepared the report that there is potential for dangerousness, you meet the criteria, so what happens then is that we do a care and treatment action." That same day, the court entered an order stating, "After hearing all the evidence, statements and arguments of counsel, the Court finds by clear and convincing evidence that Clay Robert Snyder is a mentally ill person subject to involuntary commitment for care and treatment." Snyder timely appealed the commitment order to the Court of Appeals. We subsequently transferred the case to this court on our own motion. See K.S.A. 20-3018(c) ("At any time on its own motion, the supreme court may order the court of appeals to transfer any case before the court of appeals to the supreme court for review and final determination."). ANALYSIS 1. Snyder was not denied equal protection. Snyder argues he was denied equal protection under the Fifth and Fourteenth Amendments because K.S.A. 2017 Supp. 22-3303 subjected him to a different standard for involuntary commitment based on his off-grid felony rape charge. He lodges an as-applied challenge, claiming there is no rational basis to distinguish between him and others who share his diagnosis based on the severity of charges alone. We disagree and conclude a conceivable rational basis exists to make such distinction. "Determining a statute's constitutionality is a question of law subject to unlimited review." Brennan v. Kansas Insurance Guaranty Ass'n , 293 Kan. 446, 450, 264 P.3d 102 (2011). To the extent we must engage in statutory interpretation, our review is likewise unlimited. Lozano v. Alvarez , 306 Kan. 421, 423, 394 P.3d 862 (2017). The parties agree rational basis scrutiny applies and that is the standard we apply. See Heller v. Doe , 509 U.S. 312, 319-21, 113 S.Ct. 2637, 125 L.Ed. 2d 257 (1993) (applying rational basis review to equal protection challenge involving the mentally ill when the parties failed to argue for heightened scrutiny). Under rational basis review, we determine "whether a statutory classification bears some rational relationship to a valid legislative purpose." Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc. , 292 Kan. 285, 316, 255 P.3d 1186 (2011) ; see Heller , 509 U.S. at 320, 113 S.Ct. 2637. This standard is a " 'very lenient' " one. Downtown Bar and Grill v. State , 294 Kan. 188, 195, 273 P.3d 709 (2012) (quoting Peden v. Kansas Dept. of Revenue , 261 Kan. 239, 258, 930 P.2d 1 [1996] ). As the United States Supreme Court directed, "[A] classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller , 509 U.S. at 320, 113 S.Ct. 2637 ; see Downtown Bar and Grill , 294 Kan. at 195, 273 P.3d 709. Under the Care and Treatment Act, a district court must find by clear and convincing evidence that a person is a "mentally ill person subject to involuntary commitment for care and treatment" in order to impose civil commitment. K.S.A. 2017 Supp. 59-2966(a). The definition of a "mentally ill person subject to involuntary commitment for care and treatment" breaks down as follows: (1) the individual must be "a mentally ill person"; (2) who "lacks capacity to make an informed decision concerning treatment"; (3) who is "likely to cause harm to self or others"; and (4) "whose diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance abuse; antisocial personality disorder ; intellectual disability ; organic personality syndrome; or an organic mental disorder." (Emphasis added.) K.S.A. 2017 Supp. 59-2946(f)(1)-(3). "Mentally ill person" is defined as: "[A]ny person who is suffering from a mental disorder which is manifested by a clinically significant behavioral or psychological syndrome or pattern and associated with either a painful symptom or an impairment in one or more important areas of functioning, and involving substantial behavioral, psychological or biological dysfunction, to the extent that the person is in need of treatment." K.S.A. 2017 Supp. 59-2946(e). Thus, the Care and Treatment Act excludes from involuntary commitment a mentally ill person solely diagnosed with an intellectual disability. See State v. Johnson , 289 Kan. 870, 882, 218 P.3d 46 (2009) (holding that a person solely diagnosed with an organic mental disorder does not meet the definition of a "mentally ill person subject to involuntary commitment for care and treatment" under K.S.A. 59-2946 [f][1] ). However, K.S.A. 2017 Supp. 22-3303 changes the definition of "mentally ill person subject to involuntary commitment for care and treatment" for an individual like Snyder who has been charged with an off-grid felony and found incompetent to stand trial. Under K.S.A. 2017 Supp. 22-3303, a district court must determine whether an incompetent defendant charged with a felony has "a substantial probability of attaining competency to stand trial in the foreseeable future." If no such probability exists, the court "shall order the secretary for aging and disability services to commence involuntary commitment proceedings" under the Care and Treatment Act. K.S.A. 2017 Supp. 22-3303(1). Importantly, the statute provides unique commitment criteria for incompetent defendants charged with certain high-severity crimes: "When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or subsection (b) of K.S.A. 21-5505, subsection (b) of 21-5506, subsection (b) of 21-5508, subsection (b) of 21-5604 or subsection (b) of 21-5812, and amendments thereto, and commitment proceedings have commenced, for such proceeding, 'mentally ill person subject to involuntary commitment for care and treatment' means a mentally ill person, as defined in subsection (e) of K.S.A. 59-2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59-2946, and amendments thereto. The other provisions of subsection (f) of K.S.A. 59-2946, and amendments thereto, shall not apply ." (Emphasis added.) K.S.A. 2017 Supp. 22-3303(1). See Johnson , 289 Kan. at 880-81, 218 P.3d 46 (noting that K.S.A. 22-3303 modifies the definition of "mentally ill person subject to involuntary commitment for care and treatment" for certain high severity crimes). So while K.S.A. 2017 Supp. 59-2946(f)(1) generally excludes from involuntary commitment mentally ill persons whose sole diagnosis is an intellectual disability, K.S.A. 2017 Supp. 22-3303 removes this exclusion for one subset of mentally ill persons-those charged with specified crimes. Herein lies the distinction at the heart of Snyder's equal protection challenge. The question before us, then, is whether the fact that Snyder has been charged with one of these serious crimes provides a rational basis for treating Snyder differently from other persons who share his diagnosis for purposes of involuntary commitment under the Care and Treatment Act. See Heller , 509 U.S. at 320, 113 S.Ct. 2637 ; Downtown Bar and Grill , 294 Kan. at 195, 273 P.3d 709. The answer is that it does. In arriving at this answer, we need look no further than our own precedent. In State v. Johnson , the defendant was charged with involuntary manslaughter for killing his passenger in a car accident. As a result of the accident, the defendant suffered a traumatic brain injury that rendered him incompetent to stand trial. Yet, we held the defendant could not be involuntarily committed for care and treatment "because his sole diagnosis was an organic mental disorder" and he was not charged with a specified crime under K.S.A. 22-3303. 289 Kan. at 880-82, 218 P.3d 46. In so holding, we recognized the competing interests the Legislature balanced in K.S.A. 22-3303 : "As the legislature noted, the competing interests are protecting public safety on the one hand, and providing services and support for persons with disabilities on the other. If a person is incompetent to stand trial and also cannot be committed for mental illness treatment, that person is simply returned to the community without supervision, in derogation of public safety. Yet, if a person has a condition that cannot be improved through treatment, e.g. , a traumatic brain injury, then involuntarily committing that person under K.S.A. 59-2945 et seq. is akin to a life sentence without possibility of parole. In 2001, the legislature struck a balance between the competing interests by amending K.S.A. 22-3303(1) to add a provision which would permit the involuntary commitment of persons who are incompetent to stand trial because of one of the excepted diagnoses listed in K.S.A. 59-2946(f)(1), but who have been charged with certain crimes." 289 Kan. at 884, 218 P.3d 46. Indeed, it is entirely rational for the Legislature to limit the involuntary commitment of people who are mentally ill solely because of an intellectual disability to those charged with certain serious crimes. It is not irrational for the Legislature to conclude that a person charged with an off-grid felony-like raping a child-could be more dangerous to the public than someone charged with a lesser crime, or not charged with any crime at all. Thus, the distinction made-and the resulting difference in treatment-between Snyder and others who share his diagnosis arising out of the charges against Snyder is a reasonable one. Furthermore, the Legislature "has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or a mental illness as statutorily defined," but need not exercise this authority to the fullest extent. In re Care & Treatment of Hay , 263 Kan. 822, 833, 953 P.2d 666 (1998). In Hay , we held the distinctions within the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq., did not violate equal protection because: "Equal protection of the law does not require the State to choose between attacking every aspect of public danger or not attacking any part of the danger at all. As we said in Manzanares v. Bell , 214 Kan. 589, 615, 522 P.2d 1291 (1974) : ' "[T]he legislative authority ... is not bound to extend its regulations to all cases which it might possibly reach. The legislature 'is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest.' " ' " Hay , 263 Kan. at 833, 953 P.2d 666. Stated differently, equal protection does not require the Legislature to civilly commit all mentally ill persons who pose a danger to themselves or others-instead, it may rationally distinguish between them based on the level of harm posed to the public. Before concluding, we note that Snyder relies on Jackson v. Indiana , 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed. 2d 435 (1972), to establish his equal protection challenge. But in Jackson , the Supreme Court held the indefinite detainment of a defendant solely on account of his incompetency to stand trial violated the Equal Protection Clause because it condemned him to "permanent institutionalization" without the showing required for civil commitment. 406 U.S. at 730, 92 S.Ct. 1845. Thus, the problem in Jackson was that the defendant was, in effect, institutionalized for life without the protection of a statutorily prescribed involuntary commitment procedure for care and treatment-a problem not presented here. Because a rational basis exists to distinguish between Snyder and others who share his diagnosis based on his off-grid felony charge, we hold Snyder has suffered no equal protection violation. 2. Snyder was not denied due process. Snyder claims his civil commitment violates due process because: (1) K.S.A. 2017 Supp. 22-3303 substitutes Snyder's charges for proof that he is dangerous; (2) Snyder's intellectual disability is not a mental illness; and (3) the State cannot provide treatment that will cure or improve his intellectual disability. We disagree and hold the Care and Treatment Act as applied to Snyder via K.S.A. 2017 Supp. 22-3303 does not violate due process. Furthermore, we hold the Due Process Clause does not obligate the State to release individuals like Snyder from civil commitment simply because their mental conditions cannot be cured. Civil commitment is a "significant deprivation of liberty that requires due process protection." Addington v. Texas , 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed. 2d 323 (1979). As the Supreme Court has stated, "[T]he Due Process Clause requires the State in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous." Jones v. United States , 463 U.S. 354, 362, 103 S.Ct. 3043, 77 L.Ed. 2d 694 (1983) ; see Kansas v. Hendricks , 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed. 2d 501 (1997) ("We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as 'mental illness' or 'mental abnormality.' "); Cooper v. Oklahoma , 517 U.S. 348, 368, 116 S.Ct. 1373, 134 L.Ed. 2d 498 (1996) ("[D]ue process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of 'surviving safely in freedom.' "); Foucha v. Louisiana , 504 U.S. 71, 75-76, 112 S.Ct. 1780, 118 L.Ed. 2d 437 (1992). Snyder claims that K.S.A. 2017 Supp. 22-3303 substitutes the type of charges brought against him for proof that he is actually dangerous. However, a cursory review of the plain language of the statute makes it apparent that this is not the case. To involuntarily commit Snyder under the Care and Treatment Act as applied to Snyder via K.S.A. 2017 Supp. 22-3303, the State was required to prove not only that he was charged with an off-grid crime but also that he was "likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59-2946." Consequently, this argument is without merit. Snyder also argues the State failed to prove he is mentally ill because his intellectual disability is a "developmental disorder" that does not qualify as a "mental illness." He points to the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5), which defines "neurodevelopmental disorders" to include intellectual disabilities. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, p. 33 (5th ed. 2013). But, he fails to define "mental illness" for purposes of this argument. Indeed, it appears the DSM-5 does not even use the nomenclature "mental illness." Regardless, the medical community's definitions of mental health concepts are not binding on the Legislature in this context. In Hendricks , the Supreme Court rejected a similar argument that a "mental abnormality" cannot be a "mental illness" for purposes of civil commitment because the term "mental abnormality" is "a term coined by the Kansas Legislature, rather than by the psychiatric community." 521 U.S. at 358-59, 117 S.Ct. 2072. The Court held: "Contrary to Hendricks' assertion, the term 'mental illness' is devoid of any talismanic significance. Not only do 'psychiatrists disagree widely and frequently on what constitutes mental illness,' Ake v. Oklahoma, 470 U.S. 68, 81 [105 S.Ct. 1087, 84 L.Ed.2d 53] (1985), but the Court itself has used a variety of expressions to describe the mental condition of those properly subject to civil confinement. See, e.g., Addington , [441 U.S. at] 425-426 [99 S.Ct. 1804] (using the terms 'emotionally disturbed' and 'mentally ill'); Jackson v. Indiana, 406 U.S. 715, 732, 737 [92 S.Ct. 1845, 32 L.Ed.2d 435] (1972) (using the terms 'incompetency' and 'insanity'); cf. Foucha, 504 U.S. at 88 [112 S.Ct. 1780] (O'CONNOR, J., concurring in part and concurring in judgment) (acknowledging State's authority to commit a person when there is 'some medical justification for doing so'). "Indeed, we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U.S. 354, 365, n. 13 [103 S.Ct. 3043, 77 L.Ed.2d 694] (1983). As a consequence, the States have, over the years, developed numerous specialized terms to define mental health concepts. Often, those definitions do not fit precisely with the definitions employed by the medical community. The legal definitions of 'insanity' and 'competency,' for example, vary substantially from their psychiatric counterparts. See, e.g., Gerard, The Usefulness of the Medical Model to the Legal System, 39 Rutgers L. Rev. 377, 391-394 (1987) (discussing differing purposes of legal system and the medical profession in recognizing mental illness). Legal definitions, however, which must 'take into account such issues as individual responsibility ... and competency,' need not mirror those advanced by the medical profession. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxiii, xxvii (4th ed.1994)." 521 U.S. at 359, 117 S.Ct. 2072. As we explained in In re Vanderblomen , 264 Kan. 676, 681, 956 P.2d 1320 (1998) : "We do not believe there is any reason to link the constitutionality of a statute to the changing tides of psychiatric thought as reflected in the most recent version of the DSM." Because the DSM is frequently revised, "it would be foolhardy to allow its altered provisions to render otherwise valid and comprehensible legislation unconstitutional." 264 Kan. at 681, 956 P.2d 1320. Likewise, we decline to substitute the "changing tides" of the DSM for the statutory definitions here for purposes of proceedings under the Care and Treatment Act. Indeed, Snyder does not contest the fact that according to the statutory definition applicable to him- K.S.A. 2017 Supp. 59-2946(e) -he is a "mentally ill person." The gravamen of Snyder's due process complaint is that in his view, involuntary commitment of a person who qualifies as a mentally ill person under Kansas law only because of an incurable disability is unconstitutional. The claim is essentially that such involuntary commitment can only be lawfully justified by treatment that has the potential to cure or improve a person's mental condition. Applying this novel rule, Snyder argues the State cannot confine him because his intellectual disability cannot be cured or improved (calling it "untreatable"). For purposes of our analysis, we will assume Snyder's disability will permanently impair him to some degree, regardless of treatment. Even so, the question remains-does the Due Process Clause forbid the State from civilly committing an individual like Snyder whose mental condition cannot be cured or improved through treatment? The answer is no. Snyder cites O'Connor v. Donaldson , 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed. 2d 396 (1975), and Youngberg v. Romeo , 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed. 2d 28 (1982), for the proposition that the State must provide treatment that can cure or improve his disability. However, Snyder misapprehends the import of these decisions. In O'Connor , the Supreme Court expressly declined to address the issue, stating, "[T]here is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the State." 422 U.S. at 573, 95 S.Ct. 2486. In Youngberg , the Court held that a severely mentally disabled person subject to civil commitment had the right to "minimally adequate or reasonable training to ensure safety and freedom from undue restraint." 457 U.S. at 319, 102 S.Ct. 2452. But, the Youngberg Court similarly declined to consider whether "a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se , even when no type or amount of training would lead to freedom." 457 U.S. at 318, 102 S.Ct. 2452. Instead, the Supreme Court has strongly indicated that a state may civilly commit an individual whose mental condition cannot be successfully treated. In Hendricks , the Court held the civil commitment of a sexually violent predator under the SVPA was nonpunitive even though his "mental abnormality" was untreatable. The Court emphasized that it had "never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." 521 U.S. at 366, 117 S.Ct. 2072. As the Court explained, "A State could hardly be seen as furthering a 'punitive' purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease. Accord, Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380 [22 S.Ct. 811, 46 L.Ed. 1209] (1902) (permitting involuntary quarantine of persons suffering from communicable diseases). Similarly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions. Cf. Greenwood v. United States, 350 U.S. 366, 375 [76 S.Ct. 410, 100 L.Ed. 412] (1956) ('The fact that at present there may be little likelihood of recovery does not defeat federal power to make this initial commitment of the petitioner'); O'Connor v. Donaldson, 422 U.S. 563, 584 [95 S.Ct. 2486, 45 L.Ed.2d 396] (1975) (Burger, C. J., concurring) ('[I]t remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of "cure" are generally low')." 521 U.S. at 366, 117 S.Ct. 2072. See Seling v. Young , 531 U.S. 250, 262, 121 S.Ct. 727, 148 L.Ed. 2d 734 (2001) (In Hendricks , "We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions."). Applying Hendricks , we hold the Due Process Clause does not obligate the State to release individuals from civil commitment who have been properly found to be mentally ill and dangerous "simply because they [can]not be successfully treated for their afflictions." 521 U.S. at 366, 117 S.Ct. 2072. Accordingly, the fact that Snyder's intellectual disability cannot be cured or improved through treatment does not prevent the State from civilly committing him in accordance with other statutory and constitutional safeguards. 3. The State presented sufficient evidence that Snyder is likely to cause harm to others. On appeal, Snyder also challenges the sufficiency of the evidence used to involuntarily commit him. Specifically, he argues the State did not present clear and convincing evidence that he is dangerous to himself or others. The State claims Zoglman's testimony provided sufficient evidence to support the lower court's findings that Snyder meets the "likely to cause harm" standard set forth in K.S.A. 2017 Supp. 59-2946(f)(3). We conclude the district court's finding was backed by substantial competent evidence and affirm. When the sufficiency of the evidence is challenged, we do not "reweigh the evidence and will not disturb a lower court's factual findings when they are supported by substantial competent evidence." Doug Garber Construction, Inc. v. King , 305 Kan. 785, 791, 388 P.3d 78 (2017). The State was required to prove by clear and convincing evidence that Snyder was "likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others." K.S.A. 2017 Supp. 59-2946(f)(3). We conclude that Zoglman's testimony was sufficient to support the district court's finding that Snyder posed a danger to others. Zoglman reviewed the information contained in Snyder's competency file. She personally interviewed Snyder. She is a person with the necessary training and experience to opine on the likelihood and potential for future harm that may be caused by individuals with Snyder's diagnosis. She testified that Snyder was aware his charges were related to the sexual abuse of a child but believed they were not serious. As Zoglman summarized: "[D]ue to the severity of his charges and his lack of insight into the seriousness of his current legal situation, he is considered potentially dangerous to others without proper supervision." The district court was able to view and assess the credibility of the testimony of both Zoglman and Snyder. Viewing the evidence in a light most favorable to the State, we hold the State presented sufficient evidence that Snyder was likely to "cause substantial physical injury or physical abuse" to others. K.S.A. 2017 Supp. 59-2946(f)(3). Though the evidence regarding Snyder's dangerousness was slim, it cleared the minimum threshold. Lastly, Snyder raises two arguments that we decline to address today: (1) that his competency detainment violated due process under Jackson ; and (2) that the long-term civil commitment of the intellectually disabled violates Section 1 of the Kansas Bill of Rights. The first argument is not within the scope of this appeal but is properly addressed in Snyder's habeas action this day decided. See Snyder , 307 Kan. ----, --- P.3d ----. The second is not preserved because Snyder raises it for the first time on appeal without invoking an exception to Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34). See State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Finding no error, we affirm the order of Snyder's involuntary commitment. Affirmed.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Thomas Caleb Boone, of Hays, an attorney admitted to the practice of law in Kansas in 1982. On November 20, 2017, 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 timely filed an answer to the complaint on January 18, 2018. A proposed probation plan was filed January 22, 2018. Stipulations signed by respondent and the office of the Disciplinary Administrator were filed August 7, 2018. Upon motion to continue which was granted on March 7, 2018, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on August 28, 2018, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent stipulated to violating KRPC 3.4 (d) (2019 Kan. S. Ct. R. 353) (failure to comply with discovery request) and KRPC 8.4(d). 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 .... "DA12201 "12. In 2010, the respondent filed suit on behalf of C.Z. against the Osawatomie State Hospital, the Kansas Secretary of SRS and the Director of the Osawatomie State Hospital in Miami County, for injuries sustained while C.Z. was a patient of the hospital in 2008. "13. On October 31, 2011, defendants filed a motion to dismiss based on the respondent's failure to prosecute the case. In the motion, counsel for the defendants alleged: 'This case will soon have been on file for fifteen (15) months. Soon it will be a year since the Plaintiff made effort to serve the moving Defendants. No written discovery has been propounded to Defendants and no depositions have been scheduled or taken by Plaintiff. The moving Defendants are aware of no action Plaintiff's counsel has taken to pursue the prosecution of the above-captioned case.' The record does not reference the court's order related to this motion. "14. On January 3, 2012, the parties jointly moved to dismiss the case without prejudice. The court granted the motion. On August 20, 2012, under the savings statute, the respondent refiled the case. "15. On March 24, 2014, the court issued a case management order which set the following deadlines: a. the parties were required to exchange lists of proposed non-expert witnesses and exhibits by May 5, 2014; b. the plaintiff was required to make his expert witness disclosure by June 16, 2014; c. the plaintiff was to undergo the statutory medical examination by August 22, 2014; d. the parties were to complete discovery by September 8, 2014; and e. the parties were to file all dispositive motions by October 6, 2014. "16. The respondent failed to comply with the court's case management order. "17. On June 16, 2014, the court held another case management conference. According to the court's notes, the court set the following deadlines: a. the respondent was required to prepare the case management conference order; b. the plaintiff was required to provide a list of proposed non-expert witnesses and exhibits within five days; c. the plaintiff was required to file a statement of monetary damages within five days; d. the plaintiff was required to make its expert witness disclosure by August 1, 2014; e. the plaintiff was to undergo the statutory medical examination by September 10, 2014; f. the parties were to complete discovery by October 10, 2014; and g. the parties were to file all dispositive motions by November 21, 2014. Finally, the court scheduled another case management conference for September 5, 2014. "18. On June 20, 2014, the respondent filed a non-expert witness and exhibit list as required. The respondent failed to file the statement of monetary damages as required. "19. The respondent also failed to draft a case management conference order as directed by the court. As a result, counsel for the defendants drafted a case management order on August 8, 2014. "20. The respondent failed to disclose an expert witness by August 1, 2014, as ordered by the court. On August 18, 2014, the respondent filed a motion for an extension of time to disclose an expert witness. "21. On September 5, 2014, the court held the next scheduled case management conference. The court ordered the parties to develop a new case management order. The parties agreed to the following deadlines: a. the plaintiff was to file discovery responses by September 12, 2014; b. the plaintiff was to file the written statement of monetary damages by September 12, 2014; c. the plaintiff was required to make the expert witness disclosure by September 22, 2014; d. the plaintiff was to undergo the statutory medical examination by November 7, 2014; e. the parties were to complete discovery by December 8, 2014; and f. the parties were to file all dispositive motions by January 19, 2015. After agreeing to the new deadlines, on September 8, 2014, counsel for the defendant drafted a proposed case management conference order and emailed the proposed order to the respondent. The respondent failed to sign and return the case management order. "22. The respondent failed to provide discovery by September 12, 2014. The respondent failed to provide a written statement of monetary damages by September 12, 2014. The respondent failed to disclose his expert witness by September 22, 2014. "23. On October 2, 2014, counsel for the defendants filed a second motion to dismiss for failure to prosecute. "24. On October 6, 2014, the respondent filed a designation of expert witness by fax. The respondent named Don Horton, R.N. as the expert witness. The respondent signed the designation. The respondent included certain factual allegations and the following to summarize Mr. Horton's opinions: 'The expert witness believes these Defendants negligently failed to promulgate policies, procedures and/or systems to ensure that the proper hospital personnel could take quick corrective action in this instance. In the alternative, the hospital personnel who did receive the warnings described above, failed to act prudently in light of these warnings and failed to protect the Plaintiff from three threatening male patients. The expert witness believes that the warnings which Tim and she timely gave to the Defendants and/or their employees were more than sufficient to enable them to act in a timely fashion to easily and effectively protect the Plaintiff by physically intervening and physically separating the male patients from her before she was finally attacked.' "25. Also on October 6, 2014, the respondent filed plaintiff's statement of monetary damages. "26. On October 24, 2014, the respondent filed a response to the defendant's motion to dismiss. "27. On October 29, 2014, the court entered a second amended case management order which had previously been approved by the parties. It appears that the second amended case management order was drafted with the expectation that it would be entered in September, 2014. Many of the deadlines delineated in the order had passed by the time the order was signed. In addition, the court set the following deadlines: a. the defendant was required to make expert witness disclosures by November 7, 2014; b. the plaintiff was required to undergo the statutory medical examination by November 7, 2014; c. the parties were required to complete all discovery by December 8, 2014; and d. the parties were required to file all dispositive motions by January 19, 2015. "28. On November 7, 2014, the respondent filed a second designation of expert witness, naming Gerald Gentry, Ph.D., as an expert in the case. The document contained the same opinion language as the designation of Mr. Horton. See ¶ 24, above. Again, the designation was signed by the respondent. "29. Also on November 7, 2014, the court heard the defendants' motion to dismiss. During the hearing, the respondent indicated that he filed the second expert witness designation because Mr. Horton was unavailable. The court took the motion under advisement. "30. The respondent provided counsel for the defendant authorization to contact Mr. Horton to discuss the initial expert witness designation. On November 17, 2014, the defendants filed an objection to plaintiff's expert witness designation because Mr. Horton 'never agreed to be an expert witness and [he] informed [the respondent] that he did not believe Plaintiff had a case.' The respondent responded indicating that he was negligent in taking notes of interviews with potential expert witnesses and attributed the statements of another to Mr. Horton. "31. On April 29, 2015, the court took up the defendant's objection to the plaintiff's expert witness disclosure and a motion for sanctions. The parties were afforded an opportunity to argue the issues. "32. On May 16, 2016, the court issued a written ruling on the objection and motion. The court found that the respondent failed to prosecute the plaintiff's case. The court found that it had been more than seven years since the date of the alleged injury and that the time lapse would affect the memory of witnesses and make it impractical, if not impossible, for the defendants to present a defense. "33. The court found that the respondent missed numerous deadlines. The court stated that the 'Plaintiff has, with very rare exception, failed to comply with deadlines set by this Court or agreed to by Plaintiff.' "34. The court noted that the 6th Judicial District Local Rule 14 requires a party designating an expert to submit, '[a] written report signed by the witness' which 'shall contain a complete statement of all opinions to be expressed and the bases and reasons therefore.' Neither untimely expert witness designation filed by the respondent complied with Local Rule 14. The district court concluded: '... [expert witness designations] were neither signed by the expert holding the opinions, nor contained a complete statement of all opinions to be expressed and the bases and reasons therefore as evidenced by the false disclosure of Don Horton and the arguments by counsel regarding the deposition testimony of Gerald Gentry.' The court further explained that had the respondent complied with the local rule, the respondent would not have provided the 'untrue witness designation of Mr. Horton because Mr. Horton would have had to review and sign the disclosure, affording Plaintiff the opportunity to realize the mistaken identity.' "35. As a result, the court sanctioned the respondent by dismissing the case. "36. On June 16, 2016, the respondent filed a request that the court alter or amend its judgment and/or grant a new hearing on the motion to dismiss and/or grant relief from judgment. The respondent's requests were denied. "37. The respondent filed a notice of appeal in the case on September 23, 2016. The respondent filed three motions requesting extensions of time to file an opening brief. On August 4, 2017, the Kansas Court of Appeals affirmed the district court's decision. a. The Kansas Court of Appeals found that the respondent failed to provide citations to the record as required by court rule to support his claim that the court found fraud on the part of the respondent as a basis for dismissing C.Z.'s case. The court stated that the respondent did not support his argument with citations because there was no evidence in the record that the district court based the dismissal on fraud. b. The court also found that the delay caused prejudice to the defendants in the case. The court noted that defense counsel had contacted all eight employees of the hospital who were present at the time of the alleged incident with C.Z. Out of the eight, only two remembered C.Z. and none remembered the alleged incident. c. Additionally, the court concluded that the respondent's conduct in repeatedly missing deadlines interfered with the judicial system. d. Finally, the court found that there was 'ample evidence from which a reasonable person could have found that Boone failed to prosecute C.Z.'s case to such an extent that dismissal was warranted.' "38. Three days after the Kansas Court of Appeals released its opinion, Chief Judge Arnold-Burger, of the Kansas Court of Appeals, reported the respondent's conduct in this case to the disciplinary administrator's office. "39. On September 1, 2017, the respondent filed a motion for rehearing or modification. The court denied the respondent's motion for rehearing or modification with the Kansas Court of Appeals. The respondent filed a petition for review with the Kansas Supreme Court. On April 27, 2018, the court denied the respondent's petition for review. "DA12772 "40. The president of Kape Roofing and Gutters retained Michael Alley to collect $ 5,100 from C.M.C. Mr. Alley filed a mechanic's lien against C.M.C.'s house and sent a demand letter to C.M.C. After Mr. Alley filed the mechanic's lien, C.M.C. placed signs in his yard critical of Kape's work. "41. Later, Kape's president retained the respondent to file suit against C.M.C. and Community First National Bank (hereinafter 'the bank') in Dickinson County, Kansas, on behalf of himself and Kape (hereinafter 'the plaintiffs'). On July 9, 2012, the respondent filed suit in Dickinson County on behalf of the plaintiffs. On August 3, 2012, the respondent filed an amended petition. The respondent sought a permanent injunction against C.M.C. as well as damages for defamation, tortious interference with a prospective business advantage, and breach of contract. The respondent also sought to foreclose on the mechanic's lien. During the litigation, the respondent asserted that the plaintiffs' damages were $ 7,200,000 in lost income and profits and $ 250,000 for pain, suffering, and mental anguish. "42. C.M.C. filed an answer and counterclaim alleging fraud and the tort of outrage. The bank filed an answer on November 15, 2012. "43. On December 31, 2012, the bank served the plaintiffs with discovery. The respondent did not timely respond to the request for discovery. Counsel for the bank conferred with the respondent on several occasions regarding the production of timely discovery. However, the respondent did not timely file the responses to discovery nor did the respondent lodge an objection to the discovery requests. On April 4, 2013, the bank filed a motion to compel discovery. "44. On January 24, 2013, C.M.C. served discovery on the plaintiffs. The respondent did not timely provide the discovery. Counsel for C.M.C. conferred with the respondent on numerous occasions to secure discovery and avoid court action. On April 5, 2013, counsel for C.M.C. sent a Golden Rule letter. However, the respondent did not timely file responses to discovery nor did he make any objections. On April 15, 2013, C.M.C. filed a motion to compel discovery. "45. The court scheduled a hearing on the motions to compel discovery for April 26, 2013. The respondent had a schedule conflict with that date. The respondent called counsel for C.M.C. and asked her to agree to an order continuing the case. Counsel for C.M.C. refused to do so. Additionally, counsel for the bank did not agree to continue the hearing. "46. On April 25, 2013, the respondent's father, Thomas [C.] Boone, an attorney licensed in Kansas, filed a motion to continue the case. The respondent's father, however, had not entered an appearance in the litigation. The court did not grant the senior Boone's motion. "47. The respondent did not appear at the hearing held April 26, 2013. "48. Following the hearing, the court entered an order that if the respondent failed to provide the discovery within 10 days, the court would strike the plaintiffs' pleadings and dismiss the case. The court ordered the respondent to pay $ 1,300 to counsel for C.M.C. and $ 1,125 to counsel for the bank. The respondent did not provide discovery as ordered but the respondent did file a timely motion for an extension of time. Thereafter, the parties engaged in discovery. "49. On January 27, 2014, the defendants filed a motion for summary judgment. The court scheduled a pretrial conference for March 7, 2014. "50. In advance of the scheduled pretrial conference, on February 19, 2014, the respondent contacted opposing counsel and asked for their agreement to a continuance of the pretrial conference because he was scheduled to be out-of-state taking a deposition. Opposing counsel agreed to a continuance to a date certain in April, 2014. However, the respondent failed to file a motion and set forth the reason for the continuance. Additionally, the respondent also failed to circulate a proposed order to opposing counsel. "51. Because the respondent failed to file a motion and circulate a proposed order, on February 26, 2014, counsel for C.M.C. sent the respondent an electronic mail message, reminding him to file a motion and proposed order. The respondent failed to do so. "52. On March 3, 2014, counsel for C.M.C. spoke with the respondent and again reminded him to file a motion and proposed order. The respondent did not file a motion or provide a proposed order continuing the pretrial conference. "53. The court held the pretrial conference as scheduled. The respondent failed to appear. Counsel for C.M.C. moved to strike the pleadings filed by the respondent on behalf of the plaintiffs. The court granted the defendants' joint motion for partial summary judgment, the court denied the plaintiffs' motion for punitive damages, the court granted C.M.C.'s motion to add claims for punitive damages, and the court struck the plaintiffs' pleadings, including the plaintiffs' answer to C.M.C.'s counterclaims. The plaintiffs lost their cause of action because the respondent failed to file a motion to continue the pretrial conference. "54. On May 20, 2014, the respondent filed a motion asking the court to provide his client relief from what he described as the default judgment entered by the court as a result of the hearing which occurred on March 7, 2014. The respondent also requested permission to file an interlocutory appeal. On May 28, 2014, C.M.C. responded by pointing out that the court had not entered a default judgment. The court denied the respondent's motion. "55. The court scheduled a jury trial on C.M.C.'s counterclaims for July 17, 2014. The court ordered the parties to exchange proposed jury instructions. The respondent failed to exchange proposed jury instructions. "56. On June 25, 2014, the respondent filed an untimely motion for summary judgment. "57. At a subsequent status conference, the district court ordered that the trial be a bench trial rather than a jury trial because the respondent failed to file proposed jury instructions. The court refused to consider the respondent's motion for summary judgment because it was untimely. "58. At the July 17, 2014, bench trial, the court granted judgment in favor of C.M.C. The court rejected the plaintiffs' advice of counsel defense and reaffirmed the previous finding that the mechanic's lien claim was improper and out of time. The court found that the plaintiffs caused C.M.C. substantial financial loss, engaged in outrageous conduct, and intentionally and maliciously committed deceptive acts. The court ordered the plaintiffs to pay compensatory damages of $ 88,000, punitive damages in the amount of $ 10,000, a civil penalty of $ 10,000, and $ 20,000 for attorney fees. "59. The respondent appealed the court's decisions. In affirming in part and reversing in part, the Kansas Court of Appeals stated: 'Our policy in Kansas is to try lawsuits on their merits and not to award judgments based on the inaction of trial counsel. Unfortunately, this case is an example of the struggle a trial judge has when a lawyer fails to do what he is supposed to do in a timely way. A Kansas judge, keeping in mind the rights of the parties, has the authority and duty to sanction parties and lawyers as needed in order to bring a legal action to a just conclusion. Justice seldom arises from letting a case remain idle. In doing so, however, the judge must establish appropriate sanctions with an eye on what was done or not done. When setting sanctions, the judge must also consider the consequences of that lawyer's inaction. The more flagrant, harmful, foul deserve the more serious sanction. 'We see no evidence in the record that Kape Roofing and Gutters, Inc. was complicit in Caleb Boone's failure to appear for a pretrial conference. We vacate the ultimate sanction of striking Kape's pleadings. We remand for reconsideration of imposing a more reasonable sanction. .... 'Contemplating this string of not doing things when they needed to be done makes us understand why the judge was exasperated with Boone's recurrent inattention to the case and his duty to move it forward. We understand the frustration the trial judge experienced when counsel delayed the resolution of this lawsuit. 'We cannot tell from this record whether Boone did all of this deliberately or was simply negligent. If it was deliberate, then he was disrespectful of the very system he has sworn to uphold. If he was negligent, then he did his client a grave disservice. 'Further, we cannot tell from this record if Boone's client participated in a strategy of delay. This concerns us because the sanction of striking pleadings affects Kape the most. Should a litigant be penalized for the negligence of its agent? If Kape was in no way responsible for Boone's inaction, failure to appear, or move for a continuance, is it reasonable to punish his client? If there is evidence of complicity then we see where imposing the ultimate sanction is appropriate. We just cannot affirm such an action with the record we have before us. .... 'We affirm that Boone's failure to appear at the pretrial conference was subject to sanction. But we vacate the striking of all of Kape's pleadings on Count II as unreasonable in the light of the record submitted on appeal and remand the matter for the court's reconsideration of a more appropriate sanction.' "60. During the appellate process the plaintiffs were required to file a $ 150,000 supersedeas bond to stay the execution of the judgments. When the case was remanded by the Kansas Court of Appeals to the district court for further proceedings, the parties settled the case. The plaintiffs paid C.M.C. and his attorneys $ 30,000 from the supersedeas bond in exchange for a mutual release. "Conclusions of Law "61. The respondent stipulated that he violated KRPC 1.1 (competence), KRPC 1.3 (diligence), and KRPC 8.4(d) (conduct prejudicial to the administration of justice). In addition, based on the above findings of fact, the hearing panel concludes that the respondent also violated KRPC 8.4(c) (dishonest conduct). Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 8.4(c) (dishonest conduct), and KRPC 8.4(d) (conduct prejudicial to the administration of justice), as detailed below. " KRPC 1.1 "62. 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.' "63. The respondent stipulated that his failure to comply with Local Rule 14 in designating an expert witness in C.Z.'s case, violated KRPC 1.1. Local Rule 14 requires '[a] written report signed by the witness' which 'contain[s] a complete statement of all opinions to be expressed and the bases and reasons therefore.' Both untimely expert witness designations were signed by the respondent and not by the experts. Also, both untimely expert witness designations did not contain a complete statement of the bases and reasons for the opinions. "64. Additionally, on appeal, the respondent asserted that the court found that he engaged in fraud and that was the basis for the dismissal of C.Z.'s case. The Kansas Court of Appeals noted that the respondent failed to provide citations to the record as required by court rule to support his claim that the court based the dismissal of C.Z.'s case on the respondent's fraud. The Kansas Court of Appeals explained that the respondent could not have provided citations to the record as required by court rule because the district court did not base the dismissal on the respondent's fraud. The respondent exhibited a lack of competence in alleging that the district court's dismissal was based on fraud when it was not. "65. Finally, in the appeal the respondent filed in the Kape litigation, the respondent argued that the district court improperly granted the defendant default judgment. The court did not grant the defendant default judgment. Rather, the district court sanctioned the respondent by striking the plaintiffs' pleadings. The respondent exhibits a lack of competence in alleging that the district court's action was a default judgment when it was a sanction leveled because of the respondent's lack of diligence. "66. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1. " KRPC 1.3 "67. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent his clients. "68. The respondent stipulated that his failure to timely prosecute C.Z.'s case amounted to a violation of KRPC 1.3. The respondent's failure to prosecute C.Z.'s case led to the defendant's filing their first motion to dismiss. "69. The respondent also stipulated that his failure to comply with multiple case management orders in C.Z.'s case also violated KRPC 1.3. The respondent failed to provide witness and exhibits lists, have the plaintiff submit to the statutory medical examination, timely make an appropriate expert witness designation, timely respond to discovery requests, and timely file the statement of monetary damages. As a result of the respondent's repeated failures to comply with case management orders, on October 6, 2014, the defendants filed a second motion to dismiss for failure to prosecute the case. The respondent's lack of diligence in represent[ing] C.Z. was so extreme that the district court granted and the Kansas Court of Appeals upheld the unusual sanction of dismissal. "70. The respondent also failed to prepare a case management order as directed by the court. The respondent's failure to prepare a case management order exhibited a lack of diligence in violation of KRPC 1.3. "71. The respondent stipulated that his failure to comply with discovery in the Kape litigation and his failure to file a motion to continue the March 7, 2014, hearing violated KRPC 1.3. Because the respondent failed to file a motion to continue the March 7, 2014, hearing, the court dismissed his clients' pleadings. And, while the Kansas Court of Appeals reversed the district court on this point, the respondent's failure to file the motion negatively impacted his clients nonetheless. "72. Because the respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concludes that the respondent violated KRPC 1.3. " KRPC 3.4 "73. In litigation, an attorney must comply with court orders and cooperate in the discovery phase of the case. When an attorney fails to do what he is supposed to do, the attorney's client and the administration of justice are not served. KRPC 3.4(d) prohibits attorneys from, 'mak[ing] a frivolous discovery request or fail[ing] to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.' "74. The respondent stipulated that he violated KRPC 3.4(d) in representing C.Z. and the plaintiffs in the Kape litigation by failing to promptly comply with discovery requests. The respondent's failure to comply with discovery requests resulted in significant delays in both cases. " KRPC 8.4(c) "75. 'It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). "76. In this case, the respondent filed an expert witness designation which attributed certain opinions to Don Horton, R.N., which Mr. Horton did not hold. The hearing panel does not find the filing of the expert witness designation to be a violation of the rule, as the hearing panel accepts the respondent's explanation that he failed to take accurate notes and confused which individual had agreed to serve as an expert witness. However, on November 7, 2014, the respondent argued that he filed a second expert witness designation, not because he inadvertently included the wrong name, but because Mr. Horton was unavailable. The respondent's statement to the court was dishonest. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(c). " KRPC 8.4(d) "77. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). "78. The respondent engaged in conduct that was prejudicial to the administration of justice when he filed an expert witness designation naming Mr. Horton as an expert witness when Mr. Horton did not agree to be an expert witness and when Mr. Horton did not hold the opinions which the respondent attributed to him. "79. The respondent stipulated that his conduct in failing to prosecute C.Z.'s case violated KRPC 8.4(d). The respondent's conduct in representing C.Z. caused significant delay and resulted in the dismissal of her cause of action, prejudice to the defendants, and prejudice to the administration of justice. "80. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d). "American Bar Association Standards for Imposing Lawyer Sanctions "81. In making its 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. "82. Duty Violated . The respondent violated his duty to his clients, the legal profession, and the legal system. "83. Mental State . The respondent knowingly violated his duties. "84. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to his clients, the legal profession, and the legal system. "Aggravating and Mitigating Factors "85. 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 four occasions, as detailed below: 1) On June 16, 2000, the Kansas Supreme Court placed the respondent on two years' probation for having violated KRPC 1.3 (diligence), KRPC 3.1 (meritorious claims and contentions), KRPC 3.2 (expediting litigation), KRPC 3.4(c) (disobey obligation), KRPC 3.4(d) (discovery), and KRPC 8.4(d) (conduct prejudicial to the administration of justice). 2) On October 26, 2001, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.1 (competence). 3) On May 1, 2001, the Kansas Supreme Court issued an order to the respondent to show cause why his probation should not be revoked. The respondent appeared before the Kansas Supreme Court and established that he had taken steps to resolve the problems. The Court extended the respondent's probation for an additional three years. 4) On April 18, 2003, the Kansas Supreme Court extended the respondent's probation for an additional five years for having violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 3.1 (meritorious claims and contentions), and KRPC 4.2 (represented party). 5) On November 13, 2009, the Kansas Supreme Court discharged the respondent from probation. 6) On April 3, 2018, the disciplinary administrator informally admonished the respondent for having violated KRPC 8.4(d) (conduct prejudicial to the administration of justice). b. Dishonest or Selfish Motive . The respondent provided false information to the court in C.Z.'s case when he told the court that a second expert witness designation was necessary because Mr. Horton was not available. The respondent's misconduct in this regard was motivated by dishonesty. c. A Pattern of Misconduct . The respondent failed to appear in court twice and repeatedly failed to timely comply with deadlines in both cases. As such, the hearing panel concludes that the respondent engaged in a pattern of misconduct. d. Multiple Offenses . The respondent committed multiple rule violations. The respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 3.4(c) (disobey obligation), KRPC 3.4(d) (discovery), KRPC 8.4(c) (dishonest conduct), and KRPC 8.4(d) (conduct prejudicial to the administration of justice). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. e. Vulnerability of Victim . C.Z. was vulnerable to the respondent's misconduct. f. Substantial Experience in the Practice of Law . The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1982. At the time of the misconduct, the respondent had been practicing law for more than 30 years. "86. 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 . During the period of time when the respondent engaged in the misconduct, the respondent's father became ill. The respondent provided care for his father until his father's death. The respondent's personal situation contributed to his 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 and several rule violations. c. Remorse . At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct. d. Remoteness of Prior Offenses. The discipline imposed in 2000 and 2001 is remote in time but not in character to the misconduct in this case. "87. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the 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. '6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. '6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. '6.22 Suspension is [generally] appropriate when a lawyer know[ingly] ... violat[es] a court order or rule, and [there is] injury or potential injury to a client or a party, or [causes] 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 injury or potential injury to a client, the public, or the legal system. '8.2 Suspension is generally appropriate when a lawyer has been reprimanded 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 the profession.' "Recommendations of the Parties "88. The disciplinary administrator recommended that the respondent's license be indefinitely suspended. Counsel for the respondent recommended that the respondent's license be indefinitely suspended but that the suspension be suspended and that the respondent be placed on probation. "Consideration of Probation "89. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides: '(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 the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.' "90. The respondent developed a workable, substantial, and detailed plan of probation. The respondent provided a copy of the proposed plan of probation to the disciplinary administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal complaint. The respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan. "91. However, some of the misconduct, in this case, cannot be corrected by probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell , 296 Kan. 860, 868, 295 P.3d 572 (2013) ('Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.'). "92. And, finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. The respondent has an extensive disciplinary record. Specifically, the respondent spent nine years on probation for having violated many of the same rules the respondent violated in [t]his case. Any benefits to be gained by supervision should have already been realized. Accordingly, the hearing panel concludes that probation is not appropriate in this case. "Recommendation of the Hearing Panel "93. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent's license be indefinitely suspended. "94. 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) (2019 Kan. S. Ct. R. 257). 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 panel's final hearing report. With no exceptions before us, the panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). Furthermore, the facts before the hearing panel establish by clear and convincing evidence the charged misconduct in violation of KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 3.4(d) (2019 Kan. S. Ct. R. 353) (failure to comply with discovery request); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The evidence also 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. The hearing panel unanimously recommended that respondent be suspended indefinitely from the practice of law. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator also recommended that the respondent be indefinitely suspended. The respondent requested indefinite suspension, that the suspension be stayed, and that respondent be placed on probation according to his proposed plan of probation. Given the serious nature of the respondent's conduct underlying the allegations in this case coupled with his lengthy prior history of disciplinary offenses, we deny his request to be placed on probation in lieu of suspension. In particular, as pointed out by the Disciplinary Administrator at oral argument before this court and by the hearing panel, the misconduct in this case is not amenable to probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell , 296 Kan. 860, 868, 295 P.3d 572 (2013) ("Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts."). We therefore adopt both the hearing panel's and the Disciplinary Administrator's recommendation of indefinite suspension and order that he be subject to a reinstatement hearing under Supreme Court 219 (2019 Kan. S. Ct. R. 270) before his suspension may be lifted. CONCLUSION AND DISCIPLINE IT IS THEREFORE ORDERED that Thomas Caleb Boone be and he is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240) effective upon the date of filing of this opinion; that he not be granted probation; and that he undergo a reinstatement hearing under Rule 219(d). IT IS FURTHER ORDERED that the respondent comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268). 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. Nuss, C.J., and Beier, J., not participating. Daniel Cahill and Steven C. Montgomery, District Judges, assigned. REPORTER'S NOTE: District Judge Cahill and District Judge Montgomery were appointed to hear case No. 120,744 vice Chief Justice Nuss and Justice Beier respectively under the authority vested in the Supreme Court by K.S.A. 20-2616 and by art. 3, § 6(f) of the Kansas Constitution.

Per Curiam: Matthew Cone seeks review of the Court of Appeals' decision affirming his involuntary commitment under the Kansas Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. Cone challenges the Court of Appeals' holding that the district court did not abuse its discretion in finding that the actuarial tools used to estimate sex offenders' risk of reoffending met the Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), standard for admissibility of expert testimony. Cone also contends that the evidence was insufficient to support the jury's verdict that he met the SVPA's definition of a sexually violent predator. We affirm. FACTUAL AND PROCEDURAL SUMMARY For acts committed in 2012, Cone was convicted of aggravated indecent solicitation of a child less than 14 years of age and sentenced to 36 months in prison. Shortly before his release from prison in November 2014, the State filed a petition to involuntarily commit Cone to the Larned State Hospital under the SVPA. To effect the commitment, the State had to prove that Cone met the definition of a sexually violent predator, which included establishing that he suffers from a mental abnormality or personality defect that makes him likely to commit repeat acts of sexual violence. The State planned to meet that burden through the use of expert witnesses who would rely in part on the Static-99R and Static-2002R tests, which are actuarial tools used to estimate sex offenders' risk of reoffending. Before the SVPA jury trial, Cone sought to exclude evidence of the results of the Static-99R and Static-2002R tests by challenging their relevance and reliability. At the hearing on the admissibility of the Static tests, the district court heard testimony from all three experts who went on to testify at Cone's trial as well as two additional experts for the State, psychologists Dr. Derek Grimmell and Dr. Thomas Kinlen. The district court applied the Daubert standard, which was adopted in this state in 2014. See K.S.A. 2017 Supp. 60-456(b). Using the Daubert factors, the district court found it was more likely than not that the actuarial tests were scientifically reliable and admissible. At trial, the State proffered the expert testimony of two doctors, Carol Crane and Angelina Johnson. Dr. Crane reviewed Cone's history, reviewed a police affidavit discussing one of Cone's victims' statements, interviewed Cone, and used the Static-99R and Static-2002R tools to determine Cone's risk of recidivism rate. Dr. Crane diagnosed Cone with pedophilic disorder and opined that he met the criteria for commitment as a sexually violent predator. Dr. Crane was concerned that Cone's sexual interest in children had not been sufficiently addressed; he had difficulties in relaying what he had learned in a sexual offender treatment program, which called into question whether he could utilize what he had learned in treatment when he was released into the community. The doctor also pointed to past incidents that demonstrated Cone's poor impulse control. For instance, when he was age 16, Cone and some friends set fire to a park bathroom. On another occasion, Cone broke into a house that he thought was abandoned and jammed a screwdriver into an electrical outlet. Dr. Johnson also concluded that Cone is a sexually violent predator. In conducting her evaluation, Dr. Johnson relied on her review of Cone's records, a forensic interview, and the Static tools. Dr. Johnson also diagnosed Cone with pedophilic disorder, but she included the additional diagnosis of antisocial personality disorder. Dr. Johnson said that Cone's antisocial personality disorder contributed to his likelihood to reoffend because a key feature of the disorder is a persistent disregard for the rights and welfare of others and persistent recurrent opposition to the law. Dr. Johnson testified that Cone's antisocial personality and pedophilic disorders were "a dangerous combination for somebody that struggles in the way Mr. Cone does." She discussed Cone's inability to control his behavior, pointing to Cone's description of sexual abuse against a four-year-old victim as beginning with Cone tickling the child and proceeding to abuse because he was unable to resist an urge. Dr. Johnson was also concerned that Cone did not seem to have retained the information from the prison's sexual offender treatment program and she believes that Cone lacks the tools to cope with urges toward children. Further, his relapse prevention plan was not adequate because Cone did not understand what triggered his arousal and did not grasp the coping skills needed to deal with such arousal. As stated above, both of the State's experts utilized the Static-99R and Static-2002R actuarial risk assessment tools in their evaluations. These tests are actuarial scores that rely on objectively scored risk factors, or historical data, that research has indicated can predict future behavior. Dr. Crane gave Cone a score of 6 (out of 10) on the Static-99R, while Dr. Johnson gave a score of 5. Those scores placed Cone's risk of reoffending in the range of 13.8 to 23 percent, which fall into the moderate and high risk categories. On the Static-2002R, both doctors arrived at a score of 8, with a 29 to 40 percent risk of being rearrested for a new sexual offense, placing Cone in the moderate-to-high risk category. The defense countered with its own expert, Dr. Robert Barnett. In preparing his evaluation, Dr. Barnett reviewed records, conducted a forensic interview of Cone, and administered testing. Dr. Barnett disagreed with the pedophilic disorder and antisocial personalitydisorder diagnoses of the State's experts. He related that Cone had said that he was embarrassed and ashamed about his behavior and was committed to not repeating it. Dr. Barnett opined Cone had a relatively good ability to control his behavior. Dr. Barnett testified that he does not use the Static assessments because the idea that you can accurately predict the percentage of probability that a person will reoffend is invalid. He characterized the tests as a misuse of statistics and probability because generalized group data cannot be applied meaningfully to an individual. Nevertheless, Dr. Barnett testified that he had reviewed an unsigned Static-99R test in Cone's records that reflected a risk assessment score of 4. Dr. Barnett opined that based upon the information that Cone had lived with a female partner for more than two years, the score should have been 3. He then opined that his score of 3, Dr. Johnson's score of 5, and Dr. Crane's score of 6 were not unusual for this test because it is given by people who are not trained and not licensed to practice psychology. Cone also testified on his own behalf. He described a chaotic childhood, which included multiple moves, family drug use, and foster care placement. Cone related that he had been molested by a preacher when he was six years old, although he never told anyone about it because the preacher had warned Cone that he would go to hell if he told. When Cone was 15, he was adjudicated for two counts of endangering a child because he bribed his 6-year-old nephew with candy and molested him two to three times. When Cone was 21, he was convicted of aggravated indecent solicitation of a child less than 14 as a result of abusing his cousin's girlfriend's 4-year-old daughter. Cone testified that he was asleep and dreaming about his own sexual abuse as a child. When he awoke, the child was there and asked Cone to scratch her stomach. Cone went further and asked the child to pull her pants down so he could touch her. The jury found that Cone was a sexually violent predator subject to involuntary commitment. Cone filed a motion for judgment notwithstanding the verdict arguing, inter alia , that the Static tests should not have been admitted and that the evidence was insufficient to support the jury verdict. The district court denied the motion. Cone timely appealed to the Court of Appeals. The panel held that the district court did not abuse its discretion in admitting expert testimony regarding the Static-99R and Static-2002R actuarial risk assessment tools under the Daubert standard. In re Care & Treatment of Cone , No. 116801, 2017 WL 3668891, at *3-6 (Kan. App. 2017) (unpublished opinion). Further, the panel noted that this case did not present the overwhelming evidence often seen in sexually violent predator commitments, but that viewing the evidence in a light most favorable to the State, the panel found sufficient evidence to support the jury's verdict. 2017 WL 3668891, at *9. This court granted Cone's petition for review. ADMISSIBILITY OF EXPERT TESTIMONY ON RISK ASSESSMENT TOOLS With regard to expert testimony, the issue raised and argued by the parties throughout this case, which issue was the only one decided by the lower courts, is whether expert testimony on the results of the actuarial risk assessment tools-the Static-99R test and the Static-2002R test-is admissible under the Daubert standard, as adopted in this state by K.S.A. 2014 Supp. 60-456(b). That statutory provision is substantively identical to Federal Rule of Evidence 702, which was amended in 2000 to follow the holding in Daubert . Our statute now reads as follows: "If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). Standard of review A district court's admission of expert testimony is generally reviewed for an abuse of discretion. In re Care & Treatment of Girard , 296 Kan. 372, 376, 294 P.3d 236 (2013). To the extent interpretation of statutes is concerned, review is de novo. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). Analysis Before analyzing the issue put before us by the parties and the lower courts, we pause to note that the parties do not argue Daubert is the incorrect standard to apply in a SVPA proceeding. The State's supplemental brief asserts that the issue of whether the Daubert standard applies in a SVPA proceeding is not before this court because the district court applied Daubert and the State did not cross-appeal this finding. We recognize that a provision in the SVPA states as follows: "Notwithstanding K.S.A. 60-456 , and amendments thereto, at any proceeding conducted under K.S.A. 59-29a01 et seq., and amendments thereto, the parties shall be permitted to call expert witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted." (Emphasis added.) K.S.A. 2014 Supp. 59-29a06(c). See also L. 2011, ch. 92, § 3 (adding this section to the statute). One might ruminate on the effect of the proviso-"[n]otwithstanding K.S.A. 60-456"-on the Legislature's subsequent adoption of the Daubert standard in K.S.A. 2014 Supp. 60-456(b). But at the time that provision became effective, Kansas courts were analyzing the admissibility of scientific testimony from expert witnesses under the standard announced in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923). The Frye test required that, to be admissible, expert opinion testimony had to be generally accepted as reliable within the expert's particular field. In Girard , decided after the effective date of K.S.A. 2011 Supp. 59-29a06(c) and before the 2014 " Daubert amendment" to K.S.A. 60-456(b), this court declared that the admission of scientific evidence in a SVPA action had to pass the Frye test, 296 Kan. at 376, 294 P.3d 236 ; that the actuarial tests used to assess a sex offender's risk of reoffending were scientific evidence, 296 Kan. at 378, 294 P.3d 236 ; and that "the actuarial risk assessments pass Frye scrutiny." 296 Kan. at 379, 294 P.3d 236. Pointedly, Girard did not mention the 2011 amendments to K.S.A. 59-29a06 or indicate that, going forward, there would be a statutory constraint on applying the general test for admitting scientific evidence from expert witnesses in a SVPA action. In changing the general test in this state from the Frye test to the Daubert test, the Legislature did not specify that it was inapplicable in a SVPA action. Moreover, given that the State did not cross-appeal the district court's determination that the Daubert test applied and that the parties do not provide any argument as to why this court should not follow Girard 's tack, we will proceed by presuming that the Daubert test applies to the admissibility of the challenged actuarial tests in this SVPA action. In Daubert , the Supreme Court recognized that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. 509 U.S. at 587, 113 S.Ct. 2786. However, the Court noted that this did not remove all qualifications for admissibility of scientific evidence; rather, the trial judge has a gatekeeping obligation to ensure that scientific evidence is relevant and scientifically reliable. 509 U.S. at 589, 113 S.Ct. 2786. To that end, Daubert provided a list of nonexclusive factors a trial judge could use to fulfill this gatekeeping requirement: whether the theory or technique can and has been tested; whether it has been subject to peer review; the rate of error; the existence and maintenance of standards; and whether the theory or technique has general acceptance among the relevant scientific community. 509 U.S. at 592-94, 113 S.Ct. 2786. Daubert emphasized that these factors were not exclusive and that the trial court's overarching inquiry should be the scientific validity, evidentiary relevance, and reliability of the evidence. 509 U.S. at 593-95, 113 S.Ct. 2786 ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 149-50, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (trial judge's gatekeeping function applies to all expert testimony, not just scientific testimony, and a court may consider the Daubert factors when deciding admissibility). Cone does not challenge the qualifications of the State's experts, and so our inquiry is focused entirely on a determination of reliability. Although the factors provided in Daubert are nonexclusive, Cone does not argue that any additional factors should be considered in weighing the admissibility of the actuarial tests, other than to point to the concerns expressed by the Court of Appeals, i.e., the differences in percentages generated by the two tests and the tests' failure to account for offender treatment. Primarily relying on the testimony of his expert, Cone challenges the panel's analysis of each of the Daubert factors. We will consider Cone's arguments on each factor, but ultimately we reach the same conclusion as the panel. Whether the theory can be (and has been) tested In Daubert , the Supreme Court stated the following with regard to this factor: " 'Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.' Green[, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643,] 645 [1992]. See also C. Hempel, Philosophy of Natural Science 49 (1966) ('[T]he statements constituting a scientific explanation must be capable of empirical test'); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ('[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability') (emphasis deleted)." 509 U.S. at 593, 113 S.Ct. 2786. Cone argues that the reliability of Static-99R and Static-2002R cannot be tested because: (1) the experience of the person administering the test can impact the results; (2) the tests underestimate recidivism rates but do not quantify the percentage of underestimation; and (3) the developers of the Static instruments have not released the initial raw data used to develop those instruments. Those arguments are not persuasive. The State presented evidence that the Static-99R has been subject to two categories of testing: how reliably people can score the test; and how reliably the test predicts future sexual offending. The State also presented evidence that the Static-2002R has been tested, as well as evidence that using the tests in tandem has been tested. Cone's first point-that the experience of the person administering the test can affect the results-actually refutes his argument. The only reason researchers know this is because the Static instruments have, in fact, been tested. Second, Cone asserts that the tests underestimate recidivism rates but cannot quantify by what percentage. In response to a question about the average rates of recidivism provided by the assessments, Dr. Grimmell said that average rates are the rates that someone will reoffend and be reconvicted. He explained that there are many reoffenses that are not detected, which has "been studied and we have estimates of how large that affect is." The State presented evidence of dozens of tests in which the Static instruments have been re-verified by tracking sex offenders over time to measure recidivism rates-one such study followed more than 7,000 sex offenders to determine the accuracy of both the Static-99R and Static-2002R tests. In short, Cone's argument is unavailing. Similarly, Cone's argument regarding the lack of access to the raw data used to develop the Static tests fails in the light of the repeated re-verifications of the tests over the years. Dr. Grimmell testified that the raw data is not commonly used in this field, and that those numbers were not necessary to verify the accuracy and results of the Static tests. The Static instruments have been repeatedly tested, verified, and updated; the absence of the initial raw data did not impede the testing. In summary, the Static tests have been subject to testing and therefore satisfy this Daubert factor. Whether the theory or technique has been subject to peer review and publication The Daubert Court said that scrutiny by the scientific community is a pertinent component of good science because it increases the likelihood that flawed methodology will be detected. 509 U.S. at 593, 113 S.Ct. 2786. As noted, the Static-99R and Static-2002R have been subject to numerous reviews and tests. Dr. Grimmell testified that these instruments have been tested at least 42 times regarding how well they predict reoffending. As noted, another study followed over 7,000 offenders to determine whether the tests' predicted rates of reoffending were accurate. More than 100 articles have been published in peer review journals on the subject. This Daubert factor is satisfied. Known or potential rate of error Cone argues that the Static tests are unreliable because they have an unknown rate of error. Cone's expert, Dr. Barnett, challenged the tests on this basis. But the district court found Dr. Grimmell's testimony on behalf of the State more persuasive. Dr. Grimmell said the Static-99R error rate was developed using something called the area under the curve (AUC) concept. The AUC concept means "in a field where you have less than total knowledge, how accurate are you, and since we're predicting the future, we will always have less knowledge in total." The Static-99R's AUC is .72. This means there is a 72% chance that a randomly selected recidivist will have a higher score on the instrument than a randomly selected nonrecidivist. The Static-2002R has a slight advantage over the Static-99R, with an AUC of .75. The State also presented expert testimony regarding the intraclass coefficient, which measures how consistently the tests can be administered by an experienced examiner. The Static-99R's intraclass coefficient was .85 on a scale of 0 to 1, which is considered "bordering on excellent." The Static-2002R had a slightly better scoring prediction. Cone is correct that Dr. Grimmell candidly admitted that the 72% statistic cannot be applied to a single case because in a single case, the prediction will either be right or wrong. But Cone overlooks other testimony from Dr. Grimmell explaining that the Static assessments are "not meant to be the be-all and end-all." Instead, the probability gives the assessor "a starting point risk range." The Static assessments are used in conjunction with individual evaluation including a clinical interview and the individual's historical data. Cone's argument goes more to the credibility of the evidence than its admissibility. There is a quantifiable rate of error; it just is not measured in a manner that Cone might prefer. And just as the rate of error is but one factor in the overall analysis of the admissibility of the Static tests, the Static tests themselves are but one factor in the overall inquiry in the SVPA proceeding. This factor does not invalidate the tests. Existence and maintenance of standards controlling the technique's operation Dr. Grimmell testified that the standards for scoring the tests are set out in manuals with very detailed instruction on how to score the tests. Cone argues that the only manuals and standards available are those published on the internet by a group founded and directed by Karl Hanson, one of the creators of the Static assessment tools. But as the Court of Appeals stated, "[i]t makes sense that the persons who developed the test would also include instructions on the technique's operation." Cone , 2017 WL 3668891, at *5. On this factor, Cone's argument simply lacks merit. General acceptance within the relevant scientific community Under the Frye standard, general acceptance within the scientific community was the primary inquiry. Daubert did not remove the general acceptance inquiry, but rather demoted it to simply one factor to be considered in the overall analysis. Girard , 296 Kan. at 379, 294 P.3d 236. Indeed, in Girard we explicitly held that the predecessor to the Static-99R assessment tool satisfied the general acceptance inquiry. 296 Kan. at 377-79, 294 P.3d 236. Cone concedes that the tests are widely accepted. All of the experts, including Cone's expert, testified to that effect. Granted, Dr. Barnett opined that the tests are controversial and warned that just because something is accepted does not mean it is valid. Nevertheless, given the testimony from all experts in this case regarding the tests' widespread acceptance, this factor is satisfied. Additional factors/concerns The Court of Appeals discussed "a couple concerning aspects about the tests." Cone , 2017 WL 3668891, at *6. First, the panel noted that the two tests generated different results for Cone's percentage risk of reoffending-one score on the Static-99R predicted an 18 to 23 percent risk of reoffending, while the Static-2002R resulted in a 29 to 40 percent risk. But the panel pointed out that, although the results may initially appear to be disparate, the scores fall within the same categories, i.e., moderate to high risk. Next, the panel discussed the fact that the tests fail to account for offender treatment-meaning that offenders who successfully complete treatment will likely have the same score after treatment as they had before. Nevertheless, as Dr. Grimmell testified, the tests are but one tool used in the overall evaluation of an offender. Likewise, as the panel noted, Daubert contemplated that even admissible expert testimony could be subjected to " '[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' " 2017 WL 3668891, at *6 (quoting Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ). Conclusion The panel ultimately concluded "that the district court did not abuse its discretion in admitting the actuarial tests." 2017 WL 3668891, at *6. We agree. The district court considered conflicting expert testimony on the reliability of the Static tests and found that they were admissible. In performing its gatekeeping function, the district court did not abuse its discretion. SUFFICIENCY OF THE EVIDENCE In order to prove that a person is a sexually violent predator, the State must show: "(1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior." In re Care & Treatment of Williams , 292 Kan. 96, 106, 253 P.3d 327 (2011) (citing K.S.A. 2010 Supp. 59-29a02 [a]; Kansas v. Crane , 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 [2002] ; PIK Civ. 4th 130.20). Cone concedes that he was convicted of a sexually violent offense but argues generally that the evidence was insufficient to establish the other elements. In his petition for review, Cone specifically "argues that the evidence was not sufficient to diagnose him as having Pedophilia, and thus commit him under the SVPA." Standard of review When reviewing the sufficiency of the evidence in a sexually violent predator determination proceeding, the court views the evidence in the light most favorable to the State, and must be convinced that a reasonable fact-finder could have found that the State met its burden to demonstrate beyond a reasonable doubt that the person is a sexually violent predator. Williams , 292 Kan. at 104, 253 P.3d 327. Analysis The SVPA defines "mental abnormality" as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." K.S.A. 2017 Supp. 59-29a02(b). The SVPA does not define "personality disorder." In that regard, both parties rely on the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). Dr. Crane and Dr. Johnson both testified that Cone met the diagnostic criteria for pedophilic disorder under the DSM-5. The DSM-5 provides the following diagnostic criteria for pedophilic disorder: "A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger). "B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty. "C. The individual is at least age 16 years and at least 5 years older than the child or children in Criterion A." DSM-5, § 302.2, p. 697. Cone does not contend that pedophilic disorder is insufficient to satisfy the mental abnormality or personality disorder element of a sexually violent predator. Rather, he argues that there is insufficient evidence to support the doctors' diagnoses of pedophilic disorder. For instance, he denies admitting to Dr. Crane that he had experienced the requisite fantasies, so he asserts that she was not permitted to infer from his behavior that he had such fantasies. But the DSM-5 "Diagnostic Features" section on pedophilic disorder provides: "The diagnostic criteria for pedophilic disorder are intended to apply both to individuals who freely disclose this paraphilia and to individuals who deny any sexual attraction to prepubertal children ... despite substantial objective evidence to the contrary." DSM-5, § 302.2, p. 698. Therefore, Dr. Crane was not required to have a statement from Cone that he had sexual fantasies about prepubertal children in order to render her diagnosis. Moreover, both of the State's experts, Dr. Crane and Dr. Johnson, evaluated Cone and opined that his statements denying that he no longer had fantasies about children were not credible. This was based not only on their observations of Cone but also their review of Cone's statements and behavior at the time of his 2012 arrest, and the statements and records about Cone's past behaviors. Granted, Cone's expert, Dr. Barnett, countered that he had seen no evidence of Cone having the requisite fantasies and urges within the previous six months, which he opined was crucial. Dr. Barnett also noted other factors outside of the DSM-5 that contradicted a diagnosis of pedophilic disorder, such as Cone's lack of a compulsive interest in children, the fact that he had not actively sought work or recreational opportunities in places frequented by children, and the fact that he did not collect child pornography. But it is not our function to assess the credibility of the experts' competing testimony when assessing the sufficiency of the evidence. Williams , 292 Kan. at 104, 253 P.3d 327. The jury, which has the responsibility to assess credibility and weigh competing evidence, heard the testimony of Doctors Crane, Johnson, and Barnett and made its decision. The evidence was sufficient for the jury to believe the diagnosis of pedophilic disorder. Cone also challenges the sufficiency of the evidence to support Dr. Johnson's additional diagnosis of antisocial personality disorder. But then Cone argues that, if the pedophilia diagnosis is invalid, the antisocial personality disorder would not satisfy the mental abnormality or personality disorder element of a sexually violent predator. Perhaps, then, our finding that the pedophilic disorder diagnosis was supported by substantial competent evidence renders moot Cone's challenge to the antisocial personality disorder diagnosis. Nevertheless, without reweighing the evidence or reassessing witness credibility and viewing the evidence in the light most favorable to the State, we would hold that the evidence was sufficient for that diagnosis. Cone makes a cursory argument on the sufficiency of the evidence to support the elements that he was likely to commit repeat acts of sexual violence and that he has serious difficulty controlling his dangerous behavior. Essentially, he recites the evidence he presented that was favorable to him, urging us to accept that evidence as refuting the expert testimony of Dr. Crane and Dr. Johnson. Again, the fact that Cone put on evidence to refute the State's evidence does not render the State's evidence insufficient. The State's evidence, if believed by the jury, was sufficient to support its verdict that Cone is a sexually violent predator under the SVPA. CONCLUSION In summary, we hold that on the record before us the district court did not err in admitting the results of the Static-99R test and Static-2002R test as meeting the reliability standard under Daubert , as codified in K.S.A. 2017 Supp. 60-456(b). Further, the State presented sufficient evidence to support the jury's verdict that Cone is a sexually violent predator under the SVPA. Affirmed.

Malone, J.: This appeal began when Joshua D. Allison appealed the district court's order denying his K.S.A. 60-1507 motion alleging ineffective assistance of counsel at his criminal trial. In the process of the appeal, this court remanded for an evidentiary hearing pursuant to State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986), for examination of Allison's claim that the counsel appointed to represent him in district court in the K.S.A. 60-1507 proceeding was ineffective. On remand, the district court found that Allison's K.S.A. 60-1507 counsel had provided deficient representation, and the court ordered a new hearing on Allison's original K.S.A. 60-1507 motion. The State seeks to appeal from that ruling, presenting to us a jurisdictional issue of first impression in Kansas. For the reasons stated below, we find that this court lacks jurisdiction over the issue raised by the State in this appeal, so we dismiss the appeal without prejudice until we have a final decision from the district court in the K.S.A. 60-1507 proceeding. FACTUAL AND PROCEDURAL BACKGROUND We will review the complex factual and procedural background presented in this appeal. In 2012, a jury found Allison guilty of two counts of aggravated robbery and two counts of driving while suspended, and the district court sentenced him to a controlling term of 274 months' imprisonment. Allison filed a direct appeal, and this court affirmed his convictions on November 8, 2013. State v. Allison , No. 108,340, 2013 WL 5976066 (Kan. App. 2013) (unpublished opinion). Notably, Allison tried to bring an ineffective assistance of trial counsel claim in his direct criminal appeal, but this court declined to address the claim for the first time on appeal. Allison did not file a petition for review to the Kansas Supreme Court in his criminal case. On April 25, 2014, Allison filed a pro se motion for habeas corpus relief pursuant to K.S.A. 60-1507. In the motion, Allison alleged that his trial counsel in his criminal case, Rustin Rankin, had failed to provide effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Allison offered many examples of the purported ineffective assistance of counsel, including (1) failure to appear for scheduled court hearings and giving no reason for his absence; (2) failure to strike a juror during voir dire; (3) failure to file pretrial motions; (4) failure to challenge the complaint or information as defective; (5) failure to investigate and interview relevant individuals; (6) failure to object to evidence admitted and testimony presented at trial; (7) failure to call witnesses; (8) failure to request jury instructions; and (9) failure to file a motion for arrest of judgment. Allison's motion was assigned to the same judge who presided over his criminal trial, and the district court appointed Philip J. Bernhart to represent Allison in the K.S.A. 60-1507 proceeding. The district court held an evidentiary hearing on January 27, 2015. At the hearing, Allison presented testimony from six witnesses, including himself and Rankin. On April 22, 2015, the district court issued its written order finding that Rankin had provided constitutionally sufficient assistance of counsel, and so the district court denied Allison's K.S.A. 60-1507 motion. Allison appealed to this court and obtained new appointed counsel to represent him on appeal. As part of the appeal, Allison filed a motion for remand pursuant to State v. Van Cleave for the district court to determine whether Allison was denied his statutory right to the effective assistance of counsel in the K.S.A. 60-1507 proceeding. On March 23, 2016, after noting the absence of a response from the State, the presiding judge of this court's motions panel granted Allison's motion for remand. The order stated in part: "This matter is remanded to the district court for the limited purpose of allowing it to determine whether [Allison] was denied his statutory right to the effective assistance of counsel at the K.S.A. 60-1507 hearing.... "... This court retains jurisdiction over the appeal. Briefing is stayed. If [Allison] receives an adverse decision from the district court upon remand and wishes to have it reviewed by this court, he may submit an amended notice of appeal within 14 days of the entry of that judgment. [Allison] is ordered to serve and file with the Clerk of the Appellate Courts a report on the status of the proceedings by April 22, 2016." Notably, this court's order outlined no procedure for the parties to take if Allison received a favorable decision from the district court upon remand. On December 19, 2016, the same judge who presided over the prior hearings held an evidentiary Van Cleave hearing on the effectiveness of Allison's K.S.A. 60-1507 counsel, Bernhart. Allison and Bernhart both testified at the hearing, which concluded on March 1, 2017. On June 23, 2017, the district court filed its written order and found that Bernhart had "failed to review ... the sentencing transcript; jury trial voir dire transcript; [and] closing arguments transcript of either counsel; the only transcript reviewed by Mr. Bernhart was the trial transcript." The district court also found that before the initial K.S.A. 60-1507 hearing, Bernhart did not review most of the State's discovery; he had no contact with Rankin; he did not review Rankin's files on Allison; he did not review Rankin's bills for services purportedly rendered to Allison; and he did not inquire into disciplinary proceedings pending against Rankin which eventually led to his disbarment. The district court concluded: "The only way to remove the taint of the prior proceedings is to grant [Allison] a new hearing on the original 60-1507 petition." On July 5, 2017, after receiving the district court's order, this court issued an order to show cause noting that "[t]he district court's ruling that [Allison] is entitled to a new hearing on his K.S.A. 60-1507 motion appears to render this appeal moot," and ordering the parties to show cause why the appeal should not be dismissed. The day before the responses to the show-cause order were due, the State filed a notice of cross-appeal "from the decision of the Court dated June 23, 2017." In its cross-appeal docketing statement, the State conceded that the order it was appealing from was not a final decision because Allison's "appeal of the trial court's order denying [his] claim of ineffective assistance of trial counsel ... remains pending before the Court of Appeals." Even so, the State cited K.S.A. 2017 Supp. 60-1507(d) as the statutory authority for its appeal. On July 28, 2017, both parties responded to this court's order to show cause as to why the appeal should not be dismissed as moot. The parties agreed that Allison's issues on appeal were moot but the State expressed its intention to "docket a new appeal as the appellant" from the district court's ruling following the Van Cleave hearing. On the same day, Allison filed a motion for involuntary dismissal of the State's cross-appeal. Then on July 31, 2017, the State docketed a separate appeal, Case No. 118,043, in which it purported to appeal the district court's order granting a new hearing on Allison's K.S.A. 60-1507 motion. Allison also filed a motion for involuntary dismissal of the new appeal. On August 1, 2017, the presiding judge of this court's motions panel issued an order in this case that stated: "Appellant's direct appeal is dismissed as moot. This appeal will continue under the State's cross-appeal, although the State will now be referred to as the Appellant and Mr. Allison as the Appellee." On August 8, 2017, this court issued a show-cause order in both this appeal and Case No. 118,043, noting that "these appear to be the exact same appeal," and ordering the parties to show cause why the cases should not be consolidated. On the same day, this court issued an order in both cases denying Allison's motion for involuntary dismissal. But the order specifically stated: "If [Allison] continues to believe that this court lacks jurisdiction[,] he should brief this matter for the panel assigned to hear the merits of this appeal." Finally, on August 28, 2017, this court issued an order consolidating Case No. 118,043 with this appeal. DOES THIS COURT HAVE JURISDICTION OVER THIS APPEAL ? On appeal, the State contends that the district court erred in granting Allison a new hearing on his K.S.A. 60-1507 motion because of ineffective assistance of counsel in the initial proceedings. The State argues that the district court did not analyze Bernhart's conduct under the objectively reasonable performance standard. The State also argues that the district court did not assess whether there was a reasonable probability that, but for Bernhart's purported errors, the outcome of the K.S.A. 60-1507 proceeding would have been different. Allison contends that this court lacks jurisdiction over the State's appeal because it is an improper interlocutory appeal from the district court's ruling that Allison is entitled to a new hearing on his K.S.A. 60-1507 motion. Alternatively, Allison argues that the district court did not err in granting him a new hearing after finding that Bernhart failed to provide Allison with effective assistance in the prosecution of his K.S.A. 60-1507 motion. The State filed no reply brief and has not responded to Allison's claim that this court lacks jurisdiction over this appeal. We will first address Allison's claim that this court lacks jurisdiction over the State's appeal. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017). " '[T]he right to appeal is entirely statutory,' and 'the limits of appellate jurisdiction are imposed by the legislature.'' " State v. LaPointe , 305 Kan. 938, 941-42, 390 P.3d 7 (2017). In other words, "Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders." Williams v. Lawton , 288 Kan. 768, 778, 207 P.3d 1027 (2009). A K.S.A. 60-1507 motion is a civil proceeding, so an appeal from such an action is governed by K.S.A. 60-2101 et seq. K.S.A. 2017 Supp. 60-2102(a)(4) provides for an appeal to the Kansas Court of Appeals as a matter of right from "[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law." "A 'final decision' generally disposes of the entire merits of a case and leaves no further questions or possibilities for future directions or actions by the lower court. The term 'final decision' is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case. [Citation omitted.]" Kaelter v. Sokol , 301 Kan. 247, 249-50, 340 P.3d 1210 (2015). K.S.A. 2017 Supp. 60-2102(c) also provides for interlocutory appeals under specific circumstances and at this court's discretion. But neither party argues that this court has jurisdiction under K.S.A. 2017 Supp. 60-2102(c), and a review of the record on appeal shows that the procedures required to invoke this jurisdiction have not been followed. Thus, if this court has jurisdiction over the issue raised by the State in this appeal, it must be under K.S.A. 2017 Supp. 60-2102(a)(4). As already discussed above, the State conceded in its docketing statement for its cross-appeal that the order it is appealing from was not a final decision. The State also identified the statutory authority for its appeal as K.S.A. 2017 Supp. 60-1507(d), which states: "An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." (Emphasis added.) It is unclear how K.S.A. 2017 Supp. 60-1507(d) applies to grant this court jurisdiction, as the district court's order granting Allison a new hearing was not a final judgment on his application for a writ of habeas corpus. The K.S.A. 60-1507 motion that started this case argued that Allison received ineffective assistance of trial counsel in his criminal case. This issue remains pending and was not resolved by the district court's order from which the State now appeals. In its response to Allison's motion for involuntary dismissal, the State argued that the district court's order from which it seeks to appeal "erases the prior [ K.S.A. 60-1507 ] proceeding and orders a new hearing-that decision is no different than if the lower court had found ineffective assistance in a proceeding in the first instance rather than on remand.... Such an order is appealable." To support its argument, the State cited McHenry v. State , 39 Kan. App. 2d 117, 177 P.3d 981 (2008). In that case, the State appealed from a district court's order in a K.S.A. 60-1507 proceeding finding that McHenry's trial counsel in his criminal case was ineffective and ordering that McHenry " 'be discharged from custody unless the state of Kansas chooses to again prosecute [McHenry], in which event a new trial is ordered.' " 39 Kan. App. 2d at 119, 177 P.3d 981. This court found that the State had the right to appeal the district court's decision under K.S.A. 2007 Supp. 60-2102(a)(4). 39 Kan. App. 2d at 119, 177 P.3d 981. As Allison notes in his brief, McHenry is materially distinguishable from this case. In McHenry , the district court's order finding ineffective assistance of counsel terminated the civil K.S.A. 60-1507 proceeding; the next step was to retry McHenry in his criminal case. 39 Kan. App. 2d at 119, 177 P.3d 981. This court recognized this same distinction in Moll v. State , 41 Kan. App. 2d 677, 680-82, 204 P.3d 659 (2009), rev. denied 290 Kan. 1094 (2010): "Viewing a habeas corpus action under K.S.A. 60-1507 as an independent and original civil proceeding, such an action is terminated by the district court's order either granting or denying relief to the movant. [Citations omitted]. Once a district court has ruled on the relief requested, the civil proceeding has ended, except for any appeal of the decision." ( Emphasis added.) 41 Kan. App. 2d at 681, 204 P.3d 659. Based on McHenry and Moll , a district court's order in a civil K.S.A. 60-1507 proceeding finding ineffective assistance of counsel and granting the petitioner a new criminal trial is a final decision appealable by the State because such an order terminates the civil proceeding. But that is not the situation we have here. The district court's order from which the State now appeals did not terminate the civil proceeding. Instead, it vacated the original K.S.A. 60-1507 order-from which Allison originally brought this appeal-and ordered a new hearing on the K.S.A. 60-1507 motion. As Allison argues, this situation is more like the granting of a new civil trial under K.S.A. 2017 Supp. 60-259(a)(1). "[A]n order granting a new trial ... is generally not a final or appealable order." NEA-Topeka v. U.S.D. No. 501 , 260 Kan. 838, 843, 925 P.2d 835 (1996) ; see also Nickels v. Board of Education of U.S.D. No. 453 , 38 Kan. App. 2d 929, 932, 173 P.3d 1176 (2008). Here, the district court found a legal defect in Allison's initial K.S.A. 60-1507 hearing so it granted him a new one. This action is not a final decision subject to appeal. The understanding that a district court's order extending the civil proceedings is not a "final decision" is not limited to orders for a new trial. For example, our Supreme Court has dismissed for lack of jurisdiction an appeal from a district court's order setting aside its prior dismissal of a case when the appeal "was not brought in accordance with the statute governing interlocutory appeals." Wiechman v. Huddleston , 304 Kan. 80, 81, 370 P.3d 1194 (2016). Although the order from which the State now appeals occurred on remand by this court and it did fully resolve the limited question on remand-whether Allison's K.S.A. 60-1507 counsel was ineffective-the order did not dispose of the entire merits of the greater controversy at issue in the civil proceedings-whether Allison's trial counsel in his criminal case was ineffective. Instead, it was an intermediate step toward resolving that issue. The State may ultimately choose to appeal or cross-appeal the district court's ruling at the Van Cleave hearing once we have a final decision in the civil K.S.A. 60-1507 proceeding. But to allow the State now to appeal this intermediate ruling would run contrary to this court's longstanding aversion to inefficient, piecemeal appeals and its general preference for appeals only from final resolution of the case or in exceptional circumstances. See Goldman v. University of Kansas , 52 Kan. App. 2d 222, 229, 365 P.3d 435 (2015) (" 'Piecemeal appeals are discouraged and are considered exceptional.' "). In sum, we conclude that this court lacks jurisdiction over the issue raised by the State in this appeal. The order from which the State seeks to appeal was not a final decision that terminated the civil K.S.A. 60-1507 proceeding in district court. The State may choose to appeal the district court's intermediate ruling at the Van Cleave hearing when we have a final decision from the district court in the K.S.A. 60-1507 proceeding. Appeal dismissed.

On October 18, 2013, this court suspended the respondent's license to practice law for a period of 12 months. The court ordered that the respondent undergo a reinstatement hearing prior to consideration of reinstatement. See In re Bowman , 298 Kan. 231, 310 P.3d 1054 (2013). Following a reinstatement hearing, on November 24, 2015, this court granted the respondent's petition for reinstatement and reinstated the respondent's license to practice law, subject to a term of probation. On November 21, 2018, the respondent filed a motion for discharge from probation, along with affidavits demonstrating compliance with the terms of probation. On November 28, 2018, the Disciplinary Administrator filed a response, confirming that the respondent fully complied with the conditions imposed upon her by the court and offering no objection to the respondent's discharge from probation. This court, having reviewed the motion, the affidavits, and the response of the Disciplinary Administrator, finds that the respondent should be discharged from probation. IT IS THEREFORE ORDERED that the respondent is discharged from probation and from any further obligation in this matter and this proceeding is closed. IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to the respondent.

The opinion of the court was delivered by Rosen, J.: Elgin Robinson Jr. appeals the district court's denial of his postconviction motion to compel discovery. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2008, a Sedgwick County jury convicted Elgin Robinson Jr. of capital murder, rape, aggravated kidnapping, aggravated indecent liberties with a minor, and violation of a protection from abuse order. The district court sentenced him to life imprisonment without parole plus 247 additional months. Robinson appealed, and this court affirmed his convictions. State v. Robinson , 293 Kan. 1002, 270 P.3d 1183 (2012). On May 18, 2012, Robinson filed a motion under K.S.A. 60-1507 arguing ineffective assistance of counsel. The district court denied the motion after a nonevidentiary hearing, and the Court of Appeals affirmed. Robinson v. State , No. 111,923, 2016 WL 1169381 (Kan. App. 2016) (unpublished decision), review denied 306 Kan. 1320, 367 P.3d 1284 (2017). In 2015, Robinson filed a pro se "motion to compel exculpatory discovery pursuant to K.S.A. 60-237 and Brady/Giglio rules." Robinson argued that the State had withheld information suggesting that a witness who testified against him-Detective Timothy Relph-was not credible. In response to Robinson's motion, the State noted that K.S.A. 2015 Supp. 22-3212, not K.S.A. 2015 Supp. 60-237, governs discovery in criminal cases and does not address any duty to disclose information in a postconviction setting. The State acknowledged that under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 153-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the State has a continuing duty to disclose evidence favorable to the defense, even after conviction, if the State knew of that evidence during trial. However, the State argued that it had no " Brady / Giglio " information regarding Detective Relph and, therefore, Robinson's motion was meritless. The district court denied Robinson's motion. It concluded that, "[b]ecause the State is not in possession of any information covered by Defendant's Motion, there is no information for the Court to order the State to produce." Robinson moved for reconsideration. In this pro se motion, Robinson asked the district court to conduct an in camera review of Relph's personnel file to determine whether the file contained "information that is deemed Brady/Giglio material." Robinson alleged that Relph had lied under oath at a federal trial and that the State did not disclose the information. Again, the district court denied Robinson's motion. The judge observed that Robinson had cited no rule of criminal procedure allowing for "a post-conviction motion for Brady / Giglio information of a witness who had testified in the Defendant's underlying trial." It concluded that, if Robinson had been improperly denied such evidence during trial, his remedy was a direct appeal or motion under K.S.A. 60-1507. Furthermore, the court ruled, the State "averred that it had no Brady / Giglio information regarding Detective Relph," and Robinson's allegations of perjury, without something more specific, was not enough "to rebut the State's affirmative claim that no such Brady / Giglio information exists ...." Robinson appealed the ruling to this court. ANALYSIS Robinson invoked K.S.A. 2015 Supp. 60-237 as authority for his postconviction motion for discovery. The district court denied relief in part because it concluded Robinson had not cited authority for such relief. This issue requires interpretation of K.S.A. 2015 Supp. 60-237. We review issues of statutory interpretation de novo. State v. Brosseit , 308 Kan. 743, 748, 423 P.3d 1036 (2018). K.S.A. 2015 Supp. 60-237(a)(1) provides that, "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery." The statute directs the movant to file the motion "in the court where the action is pending ." (Emphasis added.) K.S.A. 2015 Supp. 60-237(a)(2). The statute then details when a party may file a motion, depending on whether the party seeks disclosure of witnesses, answers, designations, production, or inspection. K.S.A. 2015 Supp. 60-237(a)(3). With regard to production or inspection, the statute provides that a party may move for an order compelling these actions when it has requested production or inspection under K.S.A. 2015 Supp. 60-234 and the other party has failed to comply. K.S.A. 2015 Supp. 60-237(a)(3)(B)(iv). Nothing in this statute permits a postconviction motion to compel discovery in a criminal case. There was no pending action here, and Robinson never moved for an order compelling production or inspection under K.S.A. 2015 Supp. 60-234. At oral argument, Robinson conceded that K.S.A. 2015 Supp. 60-237 does not authorize the relief he seeks. Accordingly, we affirm the district court's decision denying relief. The district court is affirmed.

Bruns, J.: BNSF Railway Company (BNSF) appeals its conviction for violating K.S.A. 66-273. This statute prohibits a railroad company from allowing its trains to stand upon a railroad crossing for more than 10 minutes without leaving an opening at least 30 feet wide on the public roadway. Following a bench trial, the district court found that a BNSF train blocked two crossings in Chase County for approximately four hours. Because we find that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq. (2016), preempts K.S.A. 66-273, we reverse BNSF's conviction as a matter of law. FACTS BNSF operates a rail line through Chase County on which it operates freight trains. Both BNSF and Union Pacific operate trains on the track. Although BNSF does not have a rail yard or terminal in Chase County, it does have a side track adjacent to the main track near Bazaar. The side track is used to change crews, to perform maintenance, to allow other trains to pass, and for various other reasons. There are two grade crossings-located within several hundred feet of each other-where the main line and side tracks intersect with public roadways northeast of Bazaar. One is at the intersection with Norton Creek Road and the other is at the intersection with T Road. According to BNSF, it built the two grade crossings so closely together to minimize inconvenience for local residents whose property is only accessible by crossing the railroad tracks. Yet, as BNSF acknowledges, trains occasionally block both railroad crossings. This case involves one of those occasions. Shortly after 6 a.m. on the morning of December 19, 2016, the Chase County Sheriff's Department received a call reporting a stopped train blocking both of the railroad crossings. Sheriff Richard Dorneker arrived at the scene around 8 a.m. He spoke to a BNSF employee who he saw walking up and down the tracks. Although the BNSF employee told Sheriff Dorneker that he had to check the train, he evidently offered no additional information regarding why the train was stopped. After assessing the situation, Sheriff Dorneker instructed someone in his office to call BNSF in an attempt to clear the railroad crossings. Although the Sheriff's office apparently placed three phone calls to BNSF, the crossings remained blocked until 9:54 a.m. As a result, Sheriff Dorneker issued BNSF a citation-which listed Engine No. 7220 and Engine No. 8169-for blocking the railroad crossings for four hours and six minutes in violation of K.S.A. 66-273. Prior to trial, BNSF moved to dismiss the citation. In the motion, BNSF argued that the State had failed to come forward with sufficient evidence for the case to proceed to trial. BNSF also argued that federal law preempts the Kansas statute. The district court heard the motion on March 14, 2017. On April 18, 2017, the district court denied the motion. In its memorandum decision, the district court found that the State had come forward with sufficient evidence to go to trial. In addition, the district court ruled that federal law did not preempt K.S.A. 66-273. On June 1, 2017, the district court held a bench trial. The State offered the testimony of Sheriff Dorneker and several residents affected by the blocked railroad crossings on the morning of December 19, 2016. Several area residents testified that they missed work that day because the crossings were blocked. Likewise, because of the blocked crossings, service technicians were unable to reach the house of one resident who had no water and was having problems with his heating system. At the close of the State's evidence, BNSF moved for acquittal and the district court took the motion under advisement. In its defense, BNSF called one of its terminal managers to testify. Through this witness, BNSF introduced evidence regarding a locomotive event recorder for Engine No. 7220. An event recorder records a train's speed, braking, throttle position, location, and other information. Apparently, the event recorder showed that Engine No. 7220 stopped near Bazaar for only 7 minutes and 40 seconds to transfer crews. It also showed that Engine No. 7220 was about 20 miles southeast of Wichita at 9:54 a.m. There was no evidence presented about Engine No. 8169. The BNSF terminal manager also testified about various alternatives to blocking the railroad crossings that might be available. He testified that it would not be "conducive to business" to run shorter trains on the rail line. He also testified that the train could be "cut" to allow motor vehicles to use the roadway but suggested that this was not a practical solution. He explained that someone would have to walk to the place where the train could uncoupled-which could be more than a mile away from the engine-and then go through multiple steps to uncouple the cars. He also explained the process of recoupling the cars, which includes federally mandated air brake testing, could take as much as two hours to complete. In rebuttal, the State recalled Sheriff Dorneker as a witness. He acknowledged that he might have been mistaken about the engine numbers. At the conclusion of the evidence, BNSF again moved for acquittal based on the lack of identification as well as on federal preemption. After hearing the closing arguments presented by counsel, the district court took the case under advisement. On July 7, 2017, the district court entered a journal entry denying BNSF's motions and finding it guilty of violating K.S.A. 66-273. Specifically, the district court found that a BNSF train blocked the crossings for 3 hours and 52 minutes. Accordingly, it ordered BNSF to pay a fine of $4,200 fine plus court costs. ANALYSIS Contentions of the Parties On appeal, BNSF contends that we should reverse its conviction for violating K.S.A. 66-273 for three reasons. First, BNSF argues that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq., preempts K.S.A. 66-273. Second, BNSF argues that the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101 et seq. (2016), preempts the K.S.A. 66-273. Third, BNSF argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that it was guilty of violating K.S.A. 66-273. In response, the State contends that we should affirm BNSF's conviction. The State argues that federal law does not preempt K.S.A. 66-273. Instead, the State maintains that the Kansas antiblocking statute is a valid exercise of traditional police powers to protect public health and safety. The State also argues that it presented sufficient evidence at trial to prove beyond a reasonable doubt that BNSF violated K.S.A. 66-273. Federal Preemption of State Law The Supremacy Clause of Article VI of the United States Constitution establishes the doctrine of federal preemption: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Consequently, "the Supremacy Clause invalidates state laws that interfere with, or are contrary to, federal law." Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc ., 292 Kan. 285, 294, 255 P.3d 1186 (2011). Whether federal preemption exists and the scope of the preemption are questions of congressional intent. See Cipollone v. Liggett Group, Inc ., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In determining whether Congress intended for federal preemption to apply in a given case, we must first look to the "language of the preemption statute and the 'statutory framework' surrounding it." Medtronic, Inc. v. Lohr , 518 U.S. 470, 485-86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Because federal preemption involves an interpretation of law, our review of the issue is unlimited. See Northern Natural Gas Co. v. ONEOK Field Services Co ., 296 Kan. 906, Syl. ¶ 1, 296 P.3d 1106 (2013). Federal preemption can be either express or implied. Board of Miami County Comm'rs , 292 Kan. at 294, 255 P.3d 1186. Express preemption occurs "when Congress makes its intent known through explicit statutory language." 292 Kan. at 295, 255 P.3d 1186. Implied preemption happens "when congress does not expressly preempt state law, but its intent to do so can be inferred from a statutory or regulatory scheme." 292 Kan. at 296, 255 P.3d 1186. The Kansas Supreme Court has also recognized several analytical subcategories of implied preemption: "Broadly speaking, a preemption analysis divides into two principal categories: express and implied preemption. Implied preemption is further divided into two analytical subcategories: field preemption and conflict preemption. Then, yet a third strata of analytical subcategories is used when examining claims of conflict preemption: per se conflict and obstacle preemption. [Citations omitted.] Even though it is analytically helpful to consider the relationship of these categories, it must be remembered that these analytical categories are not 'rigidly distinct.' English , 496 U.S. at 79 n.5 [110 S.Ct. 2270]. For example, 'field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress' intent (either express or plainly implied) to exclude state regulation.' English , 496 U.S. at 79 n.5 [110 S.Ct. 2270]." Board of Miami County Comm'rs , 292 Kan. at 294-95, 255 P.3d 1186. Furthermore, our Supreme Court has enumerated several ways that federal law can preempt state laws: "Absent an express statement by Congress that state law is preempted preemption occurs where there is an actual conflict between federal and state law; where compliance with both federal and state law is, in effect, physically impossible; where Congress has occupied the entire field of regulation and leaves no room for states to supplement federal law; or when the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress." Doty v. Frontier Communications Inc. , 272 Kan. 880, Syl. ¶ 4, 36 P.3d 250 (2001). In evaluating the scope of federal preemption in a particular case, " '[t]he purpose of Congress is the ultimate touchstone.' " Medtronic, Inc ., 518 U.S. at 485, 116 S.Ct. 2240 (quoting Retail Clerks v. Schermerhorn , 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 [ (1963) ] ). When Congress fails to expressly preempt state law, " 'there is a strong presumption that Congress did not intend to displace state law.' " Doty , 272 Kan. 880, Syl. ¶ 5, 36 P.3d 250. This presumption is based on the principle of federalism. This principle-which is "central to the constitutional design"-recognizes "that both the National and State Governments have elements of sovereignty the other is bound to respect." Arizona v. United States , 567 U.S. 387, 398, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Because states are "independent sovereigns in our federal system, [courts] have long presumed that Congress does not cavalierly pre-empt state-law causes of action." Medtronic, Inc. , 518 U.S. at 485, 116 S.Ct. 2240. The presumption against preemption "is not triggered when the State regulates in an area where there has been a history of significant federal presence." United States v. Locke , 529 U.S. 89, 109, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). In other words, "the presumption does not apply if the area of regulation is one where the interests at stake are 'uniquely federal' in nature." Board of Miami County Comm'rs , 292 Kan. at 296, 255 P.3d 1186 (quoting Boyle v. United Techs. Corp. , 487 U.S. 500, 504, 108 S.Ct. 2510, 101 L.Ed.2d 442 [ (1988) ] ). As our Supreme Court has recognized, "the federal regulation of railroads ... is both pervasive and comprehensive." Board of Miami County Comm'rs , 292 Kan. at 297, 255 P.3d 1186 (citing Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co. , 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 [ (1981) ] ); see also Fayard v. Northeast Vehicle Servs., LLC , 533 F.3d 42, 46 (1st Cir. 2008) ("Historically, federal regulation of railroads has been extensive."). Interstate Commerce Commission Termination Act The Interstate Commerce Commission Termination Act of 1995 (ICCTA), 49 § U.S.C. 10101 et seq., abolished the Interstate Commerce Commission, which had been in existence since 1887. The ICCTA also created the Surface Transportation Board (STB) to regulate rail transportation in the United States. 49 U.S.C. § 10501(a)(1) (2016). "Congress has delegated to the [STB] exclusive jurisdiction to regulate 'transportation by rail carriers' and 'the construction, acquisition, operation, abandonment, or discontinuance' of rail facilities ... with the instruction that the agency 'ensure the development and continuation of a sound rail transportation system' [citation omitted]." City of South Bend, IN v. Surface Transp. Bd. , 566 F.3d 1166, 1168 (D.C. Cir. 2009). The ICCTA expressly provides that the STB has jurisdiction over: "(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and "(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive ." (Emphasis added.) 49 U.S.C. § 10501(b). The ICCTA also contains an express preemption provision, which states: "Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law ." (Emphasis added.) 49 U.S.C. § 10501(b). For these reasons, we found in Wichita Terminal Ass'n v. F.Y.G. Investments, Inc. , 48 Kan. App. 2d 1071, 1081, 305 P.3d 13 (2013) : "[I]t is apparent 'that a state or local law that permits a non-federal entity to restrict or prohibit the operations of a rail carrier is preempted under the ICCTA.' Norfolk Southern Ry Co. v. City Of Alexandria , 608 F.3d 150, 158 (4th Cir. 2010). But states and municipalities 'may exercise traditional police powers ... to the extent that the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions.' Green Mountain R.R. Corp. v. Vermont , 404 F.3d 638, 643 (2d Cir. 2005). Therefore, the ICCTA 'preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.' Adrian & Blissfield R. Co. v. Village of Blissfield , 550 F.3d 533, 539 (6th Cir. 2008)." "[S]tate or local statutes or regulations are preempted categorically [by the ICCTA] if they 'have the effect of "managing" or "governing" rail transportation.' " Delaware v. Surface Transportation Bd. , 859 F.3d 16, 19 (D.C. Cir. 2017) (quoting Norfolk S. Ry. Co. , 608 F.3d at 157 ). In other words, a categorical preemption analysis focuses on "the act of regulation itself, not the effect of the state regulation in a specific factual situation." Green Mountain R.R. Corp. , 404 F.3d at 644 ; see also New Orleans & Gulf Coast Ry. Co. v. Barrois , 533 F.3d 321, 332 (5th Cir. 2008) (noting that the categorical preemption analysis focuses on " 'the act of regulation itself' " and not on the reasonableness of a particular state statute or regulation). Furthermore, "[s]tate statutes or regulations that are not categorically preempted may still be impermissible if, as applied, they would have the effect of unreasonably burdening or interfering with rail transportation." Delaware v. Surface Transportation Bd. , 859 F.3d at 19 (citing Franks Inv. Co. LLC v. Union Pac. R. Co. , 593 F.3d 404, 414 [ (5th Cir. 2010) ] ; Adrian & Blissfield R. Co. , 550 F.3d at 541 ). Notwithstanding, under the principle of federalism, states retain certain traditional police powers over public health and safety concerns. In particular, states continue to have the power to impose "rules of general applicability" that do not target the operation of rail carriers. Ass'n of American Railroads v. South Coast Air Quality Management Dist. , 622 F.3d 1094, 1098 (9th Cir. 2010) ; see also N.Y. Susquehanna & W. Ry. Corp. v. Jackson , 500 F.3d 238, 254 (3d Cir. 2007) ("[F]or a state regulation to pass muster, it must address state concerns generally, without targeting the railroad industry."). As the United States Court of Appeals for the Second Circuit has found, the type of statutes or regulations that generally address state concerns include "[e]lectrical, plumbing and fire codes, direct environmental regulations ... and other generally applicable, non-discriminatory regulations and permit requirements." Green Mountain R.R. Corp. , 404 F.3d at 643. Application of ICCTA to K.S.A. 66-273 The statute at the center of this dispute is K.S.A. 66-273, which states: "Each and every railroad company or any corporation leasing or otherwise operating a railroad in Kansas is hereby prohibited from allowing its trains, engines or cars to stand upon any public road within one half mile of any incorporated or unincorporated city or town, station or flag station, or upon any crossing or street, to exceed ten minutes at any one time without leaving an opening in the traveled portion of the public road, street or crossing of at least thirty feet in width." (Emphases added.) Moreover, K.S.A. 66-274 provides: "Any railroad company or corporation operating a line of railroad in Kansas failing or neglecting to comply with K.S.A. 66-273, and amendments thereto, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine ...." As the State correctly points out, Kansas has a long history of regulating how long a rail carrier can let its trains, engines, or cars block a public roadway at a railroad or grade crossing. In fact, the forerunners to K.S.A. 66-273 and K.S.A. 66-274 were enacted in 1897. In its present form, K.S.A. 66-273 was enacted in 1923. At no point over the past 121 years has any state or federal court addressed whether federal law preempts K.S.A. 66-273 or its predecessors. In Denton v. Missouri, K. & T. Ry. Co. , 90 Kan. 51, 54, 133 P. 558 (1913), the Kansas Supreme Court found that Gen. Stat. 1909, § 7142-a predecessor to K.S.A. 66-273 -"was clearly intended to prevent the impeding of traffic, by providing that except for limited periods a strip thirty feet wide should be kept open for travel." Two years later, in Walker v. Missouri Pac. Ry. Co. , 95 Kan. 702, 706, 149 P. 677 (1915), our Supreme Court again addressed Section 7142 of the General Statutes of 1909. In doing so, it found that the "statute must be so construed as to permit trains to stop anywhere to prevent accidents." From a review of these cases in light of the plain language of K.S.A. 66-273, it is apparent that the statute-both historically and in its present form-is an attempt by the Kansas Legislature to protect public health and safety. Nevertheless, K.S.A. 66-273 is not a law of general applicability. Rather, as the State recognizes in its brief, K.S.A. 66-273 is a "railroad regulation" that-on its face-applies only to a "railroad company or any corporation leasing or otherwise operating a railroad in Kansas." Although we agree with the State that trains blocking railroad crossings can be a safety hazard, the plain language of K.S.A. 66-273 targets the railroad industry. It specifically prohibits trains, engines, or train cars from blocking a public roadway for more than 10 minutes without leaving an opening of at least 30 feet in width between train cars. For these reasons, we conclude that the ICCTA preempts K.S.A. 66-273 because it has an effect on railroad operations that is more than incidental or remote. Nearly all of the federal and state courts that have considered the issue of whether the ICCTA preempts state laws regulating how long a train can block a railroad crossing have concluded that they are categorically-or completely-preempted because they specifically target railroad operations. See, e.g., Friberg v. Kansas City S. Ry. Co ., 267 F.3d 439 (5th Cir. 2001). Similarly, the federal and state courts that have considered whether the ICCTA preempts civil claims for alleged violations of state antiblocking statutes have also found them to be preempted. See, e.g., Elam v. Kansas City S. Ry. Co ., 635 F.3d 796 (5th Cir. 2011) ("Mississippi's antiblocking statute directly attempts to manage KCSR's switching operations, including KCSR's decisions as to train speed, length, and scheduling."). Friberg v. Kansas City S. Ry. Co . was one the first cases to address preemption in the context of an antiblocking statute. In its opinion, the United States Court of Appeals for the Fifth Circuit held that the ICCTA preempted a Texas law that prohibited trains from blocking streets or railroad crossings for more than five minutes. 267 F.3d at 441, n.2, 444. The Fifth Circuit found that regulating the time a train could occupy a rail crossing affects things such as train speed, length, and scheduling. 267 F.3d at 443. It also found that decisions as to train speed, length, and scheduling were economic decisions. 267 F.3d at 444. The Fifth Circuit ultimately concluded that the ICCTA preempted the Texas antiblocking law. 267 F.3d at 444. Since 2001, nearly all of the federal and state courts that have considered the issue have continued to follow in the same line of reasoning used by the Friberg court. See, e.g., CSX Transp., Inc. v. Williams , No. 3:16CV2242, 2017 WL 1544958, at *2 (N.D. Ohio 2017) (unpublished opinion) (holding that the ICCTA preempted the Ohio statute "because it purports to regulate rail transportation by dictating how railroads conduct their operations at crossings"); People v. Burlington N. Santa Fe R.R ., 209 Cal. App. 4th 1513, 148 Cal.Rptr.3d 243 (2012) ("The State of California, by regulating the time a stopped train can occupy a public rail crossing, has necessarily and directly attempted to manage railroad operations."); Burlington N. & Santa Fe Ry. Co. v. Dep't of Transp ., 227 Or. App. 468, 206 P.3d 261 (2009) (holding that Oregon's antiblocking regulation was "by its express terms, an 'operating rule' and a 'regulation of rail transportation' "). The State asks us to adopt the contrary view taken by the Indiana Court of Appeals in State v. Norfolk S. Ry. Co. , 84 N.E.3d 1230 (Ind. App. 2017). This was the only case in the nation to hold that the ICCTA did not preempt a state antiblocking law. With minimal analysis, the Indiana Court of Appeals concluded that neither the ICCTA nor the FRSA preempt Indiana's antiblocking statute. Norfolk S. Ry. Co. , 84 N.E.3d at 1236-38. After the parties had filed their briefs in this appeal, the Indiana Supreme Court agreed to review the case. See State v. Norfolk S. Ry. Co. , 98 N.E.3d 70 (April 12, 2018). Recently, the Indiana Supreme Court handed down its opinion in State v. Norfolk S. Ry. Co. , 107 N.E.3d 468 (Ind. 2018). In its opinion, the Indiana Supreme Court held that the ICCTA expressly and categorically preempts the Indiana antiblocking statute because it regulates rail transportation. 107 N.E.3d at 470. In reaching this conclusion, the Indiana Supreme Court joined every other federal and state court that has examined the ICCTA's preemptive effect on state antiblocking statutes. Specifically, the Indiana Supreme Court found: "[S]ince Indiana's blocked-crossing statute is a remedy that directly regulates rail operations, the ICCTA categorically preempts it. See Wedemeyer v. CSX Transp., Inc. , 850 F.3d 889, 894-95 (7th Cir. 2017) ('Categorical preemption occurs when a state ... action is preempted on its face,' including when states 'deny a railroad the ability to conduct some part of its operations.'). This holding mirrors those of several other jurisdictions addressing blocked-crossing preemption under the ICCTA. See Elam , 635 F.3d 796 ; Friberg , 267 F.3d 439 ; Maynard v. CSX Transp., Inc. , 360 F.Supp.2d 836 (E.D. Ky. 2004) ; People v. Burlington N. Santa Fe R.R. , 209 Cal. App. 4th 1513, 148 Cal.Rptr.3d 243 (2012) ; Burlington N. & Santa Fe Ry. v. Dep't of Transp. , 227 Or.App. 468, 206 P.3d 261 (2009) ; City of Seattle v. Burlington N. R.R. , 145 Wash. 2d 661, 41 P.3d 1169 (2002) (en banc)." 107 N.E.3d at 477. Much like this case, the State of Indiana argued that the antiblocking statute was "not preempted because the ICCTA's core concern is economic regulation." Norfolk S. Ry. Co. , 107 N.E.3d at 476. In finding that federal preemption under the ICCTA is not limited only to economic regulations, the Indiana Supreme Court reasoned: "First, the line between economic and non-economic regulations 'begins to blur' in many cases, including this one. City of Auburn v. U.S. Gov't , 154 F.3d 1025, 1031 (9th Cir. 1998). Environmental, traffic, or safety regulations 'amount to "economic regulation," ' Eel River , 220 Cal.Rptr.3d 812, 399 P.3d at 62, when they stymie railroads' key operational choices-choices they would otherwise make for economic reasons. See id. , 220 Cal.Rptr.3d 812, 399 P.3d at 62-64. So the blocked-crossing statute's effects on train length, speed, and scheduling are indistinguishable from economic regulations. See Friberg , 267 F.3d at 444. "Second-and more fundamentally-even if an economic focus were in Congress's mind, it is not in the ICCTA's text. See 49 U.S.C. § 10501(b). Plain text, when we have it, 'begins and ends our analysis.' Puerto Rico , 136 S.Ct. at 1946. Here the preemption provision plainly does not limit preemption to economic regulations. 49 U.S.C. § 10501(b) ; see Friberg , 267 F.3d at 444 (noting 'the all-encompassing language of the ICCTA's preemption clause')." Norfolk S. Ry. Co. , 107 N.E.3d at 476. As we recognized in Wichita Terminal Ass'n , 48 Kan. App. 2d at 1079, 305 P.3d 13, the ICCTA was enacted " 'to reflect the direct and complete preemption of state economic regulation of railroads.' H.R. Rep. 104-311, at 95-96 (1995)." However, the ICCTA "does not preempt only explicit economic regulation." New York Susquehanna & W. Ry. Corp. v. Jackson , 500 F.3d 238, 252 (3d Cir. 2007). Instead, the ICCTA "preempts all 'state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.' " 500 F.3d at 252 (quoting Fla. E. Coast Ry. Co. v. City of W. Palm Beach , 266 F.3d 1324, 1331 [ (11th Cir. 2001) ] ). We note that in City of Norton v. Lowden , 84 F.2d 663 (10th Cir. 1936), the United States Court of Appeals for the Tenth Circuit cited the current version of K.S.A. 66-273 in a case involving an effort by the City of Norton to open a street at grade across the yards of the Rock Island Railway. Although the Tenth Circuit did not address preemption, it recognized that when a train is required to uncouple at a grade crossing, there is a resulting loss of time, disruption of schedules, and delays. 84 F.2d at 666. While such things may be difficult to value, they have a direct impact on railroad operations. Similarly, in CSX Transp., Inc. v. City of Plymouth , 92 F.Supp.2d 643 (E.D. Mich. 2000), aff'd 283 F.3d 812 (2002), the United States District Court for the District of Eastern Michigan identified several factors that may also have an economic impact on railroad companies in complying with the Michigan antiblocking statutes. These factors include such things as a train's length, the performance of federally mandated air brake tests, as well as the coupling and uncoupling of cars. 92 F.Supp.2d at 646. Ultimately, the court held that the ICCTA preempts the Michigan statute because compliance with antiblocking statutes would have an economic impact on the operation of railroad companies. 92 F.Supp.2d at 658-59. Furthermore, the court recognized that "if there is to be a limit on the amount of time that a train is permitted to block a crossing, it must come from the federal government." 92 F.Supp.2d at 659. Likewise, in Canadian Nat'l Ry. Co. v. City of Des Plaines , No. 1-04-2479, 2006 WL 345095 (Ill. App. 2006) (unpublished opinion), the Illinois Court of Appeals held that the ICCTA preempted a city ordinance that prohibited a stopped train from blocking an intersection for more than 10 minutes. As in this case, the City argued "that the ordinance [was] a valid use of the City's police power to protect the health and safety of its citizens and therefore is not preempted by the ICCTA." 2006 WL 345095, at *2. Canadian National argued that compliance with the city ordinance may result in the uncoupling of train cars to allow motor vehicles passage at railroad crossings. It also noted that even if the train cars were uncoupled, it would take longer than 10 minutes to put the train back together and undergo air brake testing required by federal law. The Illinois Court of Appeals held that the ICCTA preempts the City's ordinance because it had a significant effect on the operation of railroad companies. 2006 WL 345095, at *3. The State suggests that K.S.A. 66-273 does not have "the direct effect of managing or governing rail transportation" because it only applies to standing or stopped trains. From a review of the cases cited above as well as from a review of the record in this case, we find several examples of reasons that a train may be required to stop. These reasons include such things as allowing another train to pass, responding to an emergency, switching out crews, performing maintenance, and coupling or uncoupling a train car. Unfortunately, trains sometimes block railroad crossings while such operations take place. See Burlington N. & Santa Fe Ry. Co. , 227 Or. App. at 474, 206 P.3d 261. So we find that regulating how long a train may stop has both economic and practical effects that are not "merely incidental" to the operation of rail carriers. See Elam , 635 F.3d at 807. While it is true that the ICCTA does not expressly address the blocking of railroad crossings, it does preempt "all state or local laws that may reasonably be said to have the effect of managing or governing the operations of a rail carrier." Wichita Terminal Ass'n , 48 Kan. App. 2d 1071, Syl. ¶ 6, 305 P.3d 13. Although the State may continue to exercise traditional police powers to protect public health and safety, it can only do so as "long as the application of such laws or regulations has only a remote or incidental effect on rail transportation." 48 Kan. App. 2d 1071, Syl. ¶ 7, 305 P.3d 13. In other words, such a law "must address state concerns generally, without targeting the operation of the railroad industry." N.Y. Susquehanna & W. Ry. Corp. , 500 F.3d at 254. Although K.S.A. 66-273 serves an admirable purpose, a review of the plain language of the statute reveals that it is not a law that applies generally to the public. Instead, it specifically targets the operation of rail carriers by regulating the time trains may occupy railroad crossings without moving or uncoupling. The statute also has more than a remote or incidental effect on rail transportation. See Franks Inv. Co. LLC , 593 F.3d at 411 ("mandat[ing] when trains can use tracks and stop on them is attempting to manage or govern rail transportation in a direct way"). Thus, K.S.A. 66-273 infringes on the exclusive jurisdiction of the STB to regulate the rail transportation system in the United States. CONCLUSION We, therefore, conclude that the ICCTA preempts K.S.A. 66-273 and that BNSF's conviction should be reversed as a matter of law. Because of this decision, we will not address the merits of BNSF's contention that the FRSA also preempts K.S.A. 66-273. Likewise, we will not address the merits of BNSF's contention that there was insufficient evidence presented at trial upon which it could have been found guilty of violating K.S.A. 66-273 beyond a reasonable doubt. Reversed.

Per Curiam: Dane Laron Taylor appeals the revocation of his probation. After being convicted by a jury of multiple felonies while on probation, Taylor contends the district court abused it discretion when it denied his request for intermediate sanctions instead of imposing his underlying sentences. We find no abuse of discretion and affirm. In 13CR265, Taylor pled no contest to possession of more than 25 grams, but less than 450 grams, of marijuana with the intent to distribute and unlawful use of drug paraphernalia. The district court sentenced him to 65 months' incarceration for possession with the intent to distribute and 10 months' incarceration for the unlawful use of paraphernalia. However, the district court granted a downward dispositional departure, suspended Taylor's sentence, and ordered him to serve 36 months' probation. While on probation in 13CR265, Taylor pled guilty in 14CR2393 to driving under the influence (DUI), driving while suspended, and driving while a habitual violator. The district court sentenced Taylor to 12 months in jail for the DUI and 12 months in jail for driving while suspended and driving while a habitual violator. However, the district court suspended the sentences and placed Taylor on 90 days' house arrest with 12 months' probation for the DUI. It also suspended the sentences for driving while suspended and driving while a habitual violator and placed Taylor on 12 months' probation. Later, in 16CR1491, a jury convicted Taylor of three counts of aggravated assault with a deadly weapon, aggravated robbery, criminal possession of a firearm, distribution of hallucinogenic drugs, and two counts of possession of drug paraphernalia. The State moved to revoke his probation in 13CR265 and 14CR2393. The district court conducted a joint sentencing and probation revocation proceeding. After sentencing Taylor in 16CR1491, the district court addressed the State's motion to revoke probation in 13CR265 and 14CR2393. Although he maintained his innocence, Taylor acknowledged the district court could take judicial notice of his convictions in 16CR1491 and acknowledged the convictions would show he violated his probation. Taylor also stipulated he failed to remain drug and alcohol free. The State recommended Taylor serve his underlying sentences because he committed very serious felonies while on probation. Taylor argued the district court should find it would be manifest injustice to run his sentences consecutively and requested a 120- or 180-day intermediate sanction instead of incarceration. The district court ordered Taylor serve his underlying sentences in 13CR265 and 14CR2393 but ran the sentences concurrent to each other. Unless otherwise required by law, probation is a privilege not a matter of right. State v. Gary , 282 Kan. 232, 237, 144 P.3d 634 (2006). Here, Taylor acknowledged the district court could take judicial notice of the basis for his parole violation-his new convictions in 16CR1491. After determining a probation violation occurred, the district court must determine whether the violation warranted revocation of probation. State v. Skolaut , 286 Kan. 219, 227, 182 P.3d 1231 (2008). This court reviews the district court's decision to revoke probation for an abuse of discretion. See State v. Brown , 51 Kan. App. 2d 876, 879, 357 P.3d 296 (2015), rev. denied 304 Kan. 1018 (2016). An abuse of discretion occurs if the district court's action was arbitrary, fanciful, or unreasonable or if the decision was based on an error of law or fact. State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). The party asserting the trial court abused its discretion bears the burden of showing an abuse of discretion. State v. Huckey , 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). Taylor argues the district court abused its discretion when it bypassed intermediate sanctions and ordered him to serve his underlying sentences in 13CR265 and 14CR2393. Under these facts, he claims it would serve the ends of justice to impose intermediate sanctions in 13CR265 and 14CR2393 after his 110-month prison sentence in 16CR1491. However, Taylor also acknowledges K.S.A. 2017 Supp. 22-3716(c)(8)(A) permits the district court to bypass intermediate sanctions, revoke probation, and impose a prison sentence if the district court determines the probationer committed a new felony or misdemeanor while on probation. Here, the court took judicial notice of his convictions in 16CR1491 for three counts of aggravated assault with a deadly weapon, aggravated robbery, criminal possession of a firearm, distribution of hallucinogenic drugs, and two counts of possession of drug paraphernalia. Although he maintains his innocence, he was found guilty by a jury. K.S.A. 2017 Supp. 22-3716(c)(8)(A) states: "[T]he court may revoke the probation ... of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D)." (Emphasis added.) Here the district court simply chose to follow K.S.A. 2017 Supp. 22-3716(c)(8)(A), utilizing its discretionary authority to impose the underlying sentences in 13CR265 and 14CR2393. The district court's decision to not impose intermediate sanctions upon revoking Taylor's probation was not based on an error of law or fact, and it was not arbitrary, fanciful, or unreasonable. The district court did not abuse its discretion. Affirmed.

In a letter signed January 29, 2018, addressed to the Clerk of the Appellate Courts, respondent Kevin M. Manz, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2018 Kan. S. Ct. R. 261). At the time the respondent surrendered his license, a disciplinary complaint was pending, alleging that the respondent violated Kansas Rule of Professional Conduct 8.4(b) (2018 Kan. S. Ct. R. 381) (misconduct), based on his three felony convictions of grand theft for embezzling a total of $1,044,073.43 from three not-for-profit organizations. This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. IT IS THEREFORE ORDERED that Kevin M. Manz 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 Kevin M. Manz 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 (2018 Kan. S. Ct. R. 262).

Standridge, J.: Attorney Linus Baker filed a request under the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., with Katherine Stocks, the Court Administrator for the Tenth Judicial District, asking to inspect and copy digital audio recordings from court proceedings in a case in which he was neither a party nor counsel for a party. After the request was denied, Baker brought an action against Stocks, alleging that she had violated the KORA as well as his common-law and constitutional rights to access the audio recordings. The district court granted Stocks' motion to dismiss, holding that the recordings were exempt from disclosure under the KORA and specifically under Kansas Supreme Court Rule 362 (2018 Kan. S. Ct. R. 407). But neither the KORA nor Rule 362 specifically prohibit or restrict the disclosure of audio recordings of open court proceedings; thus, the digital audio recordings requested by Baker were open public records under the KORA. Accordingly, we find the district court erred by shielding the audio recordings from disclosure. FACTS On September 2, 2015, Johnson County Sheriff's Department officials went to Baker's residence to serve a temporary order of protection from abuse (PFA) on Baker's adult daughter. When the officials arrived at the scene, one of the sheriffs picked up Baker's granddaughter after mistakenly assuming that she was a child referenced in the custody portion of the PFA order. On September 30, 2015, Baker faxed an open records request to the Johnson County District Court, asking to inspect and copy audio files from two open court hearings that had occurred in the PFA case on September 4, 2015, and September 8, 2015. Baker was neither a party in the PFA case nor counsel for a party in the PFA case. After making his request, Baker exchanged a series of phone calls with Stocks, who informed Baker on multiple occasions that audio recordings were exempt from disclosure under the KORA but written transcripts were not; thus, Stocks advised Baker to submit a request for a court reporter to transcribe the audio recordings of the two hearings. When Baker continued to insist that he was entitled to the audio recordings, Chief Judge Kevin P. Moriarty denied Baker's request. Baker e-mailed Stocks to ask for reconsideration of his request, and they exchanged several e-mails, which once again resulted in Stocks informing Baker that the audio recordings were exempt from disclosure under the KORA but written transcripts were not; therefore, Baker should request written transcripts of the proceedings. On January 3, 2017, Baker filed a pro se petition against various Johnson County officials, alleging violations of 42 U.S.C. § 1983 (2016) and state law claims of trespass, false arrest and imprisonment, assault, and battery based on the September 2, 2015 incident at his residence. Relevant to this appeal, Baker also named Stocks as a defendant, alleging that her refusal to provide him with the requested audio recordings violated: (1) the KORA, (2) Baker's common-law right to judicial records, and (3) his constitutional right to due process and equal protection under the Fourteenth Amendment to the United States Constitution and his right to access public information under the First Amendment to the United States Constitution. Baker requested declaratory and injunctive relief, compensatory damages, attorney fees, and costs. In response, Stocks filed a motion to dismiss. Stocks argued, in relevant part, that (1) audio recordings of court hearings were not subject to disclosure under the KORA or Supreme Court rules, (2) Baker had no common-law or constitutional right to access the audio recordings, (3) Baker's request to access the audio recordings was moot because counsel already had provided the recordings to Baker in response to a discovery request, and (4) Baker was not entitled to attorney fees. The district court granted Stocks' motion to dismiss. The court found the audio recordings were exempt from disclosure under the KORA and Kansas Supreme Court Rule 362. The court further found that Baker had no constitutional or common-law right to listen to the audio recordings, that Baker's claims were moot because Stocks already had provided Baker with a copy of the requested recordings, and that Baker was not entitled to attorney fees because Stocks' decision to deny Baker's KORA request was made in good faith and therefore was proper. The district court certified its ruling as a final judgment under K.S.A. 2017 Supp. 60-254(b). Baker timely appeals. This court permitted the American Civil Liberties Union (ACLU) to file a brief as amicus curiae. ANALYSIS 1. Mootness The district court held that Baker's claims were moot because Stocks already had provided Baker with the requested audio recordings. A case is moot when the controversy between the parties has ended and any judgment of the court would be ineffective. State ex rel. Slusher v. City of Leavenworth , 285 Kan. 438, 454, 172 P.3d 1154 (2007). As a general rule, Kansas appellate courts do not decide moot questions or render advisory opinions. Skillett v. Sierra , 30 Kan. App. 2d 1041, 1046, 53 P.3d 1234 (2002). Because the mootness doctrine is a court-made doctrine and is not jurisdictionally based, it is amenable to exceptions. State v. Montgomery , 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012). One commonly applied exception is the circumstance where a moot issue is capable of repetition and raises concerns of public importance. Because mootness is a doctrine of court policy, our review of the issue is unlimited. State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012). The parties agree that after Baker filed the present action, Stocks provided him with the requested audio recordings. We find, however, that this fact alone does not render the case moot because the issue here is one that is both capable of repetition and involves public importance. Voluntary cessation of illegal activity may moot litigation if " '(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.' " See Stano v. Pryor , 52 Kan. App. 2d 679, 683, 372 P.3d 427 (2016). Although Stocks ultimately provided Baker with the audio recordings he sought, it appears she only did so pursuant to the rules of discovery. Stocks continues to advance the argument that Baker was not entitled to the recordings under the KORA. Thus, the question of whether audio recordings of open court proceedings are available to the public under the KORA is an issue capable of repetition. In addition to being capable of repetition, this issue involves public importance, meaning " 'something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.' " Hilton , 295 Kan. at 851, 286 P.3d 871. The right of the public to obtain audio recordings of court proceedings clearly involves a matter of public importance. For both of these reasons, we find Baker's claims are not moot. 2. Motion to dismiss Baker argues the district court erred by granting Stocks' motion to dismiss. Specifically, Baker claims that the district court improperly relied on Supreme Court Rule 362 in holding that the recordings were exempt under the KORA and that the court's ruling otherwise violated his common-law and constitutional rights of access to court records. Baker also maintains that he is entitled to attorney fees as a result of Stocks' unlawful denial of access to the recordings. In its amicus curiae brief, the ACLU argues that the public and the press have a common-law right to inspect and obtain copies of electronic recordings of court proceedings. a. Standard of review We review a district court's decision to grant a motion to dismiss independently, with no required deference to the district court. Platt v. Kansas State University , 305 Kan. 122, 126, 379 P.3d 362 (2016). We view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them; if those facts and inferences state any claim upon which relief can be granted, then the dismissal was improper. Cohen v. Battaglia , 296 Kan. 542, 545-46, 293 P.3d 752 (2013). The issues presented to the court require us to construe statutes enacted by the Kansas Legislature and rules adopted by the Kansas Supreme Court. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 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. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). The principles of statutory construction also apply to construction of Supreme Court rules. If the language of a Supreme Court rule is clear, courts are bound by the rule's language. Kansas Judicial Review v. Stout , 287 Kan. 450, 460, 196 P.3d 1162 (2008). Determining whether the district court correctly applied the KORA and a particular KORA exception to disclosure is a question of law involving interpretation of statute. Wichita Eagle & Beacon Publishing Co. v. Simmons , 274 Kan. 194, Syl. ¶¶ 3, 50 P.3d 66 (2002) ; Cypress Media, Inc. v. City of Overland Park , 268 Kan. 407, 416, 997 P.2d 681 (2000). The KORA's exceptions to disclosure are to be narrowly interpreted, and the burden is on the public agency opposing disclosure. Telegram Publishing Co. v. Kansas Dept. of Transportation , 275 Kan. 779, 785, 69 P.3d 578 (2003) ; Wichita Eagle & Beacon Publishing Co. , 274 Kan. 194, Syl. ¶ 3, 50 P.3d 66. b. The Kansas Open Records Act The KORA, K.S.A. 45-215 et seq., was passed by the Legislature "to ensure public confidence in government by increasing the access of the public to government and its decision-making processes." Data Tree v. Meek , 279 Kan. 445, 454, 109 P.3d 1226 (2005). The Legislature has declared it to be "the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act." K.S.A. 45-216(a). The Legislature also directed that the KORA "shall be liberally construed and applied to promote such policy." K.S.A. 45-216(a). To that end, K.S.A. 45-218(a) provides: "All public records shall be open for inspection by any person, except as otherwise provided by this act." The right to inspect also generally includes a right to copy. See K.S.A. 2017 Supp. 45-219(a) ("Any person may make abstracts or obtain copies of any public record to which such person has access under this act."). K.S.A. 2017 Supp. 45-221(a), which contains the statutory exceptions to disclosure, sets out in detail 55 categories of records that public agencies are not required to disclose. Significantly, the KORA does not prohibit disclosure of records contained within these exceptions but instead makes their release discretionary with the agency's official records custodian. Harris Enterprises, Inc. v. Moore , 241 Kan. 59, 63-64, 734 P.2d 1083 (1987). In denying Baker access to the audio recordings he sought, the district court relied on K.S.A. 2017 Supp. 45-221(a)(1), which provides, in relevant part, that a public agency is not required to disclose "[r]ecords the disclosure of which is specifically prohibited or restricted by federal law, state statute or rule of the Kansas supreme court." (Emphasis added.) The district court held that Stocks was not required to disclose the recordings sought by Baker because the recordings were prohibited or restricted from disclosure by Supreme Court Rule 362. Rule 362 provides: "Written transcripts of electronic recordings shall be prepared by court personnel under the direction of the clerk of the district court. The person making the transcript shall certify under seal of the court that the transcript is a correct transcript of the specified proceedings as recorded. Upon request of counsel, the clerk of the district court shall make arrangements for counsel to review the electronic recordings of the case involved. The clerk may correct a transcript of recorded proceedings upon stipulation by counsel or upon order of the court." 2018 Kan. S. Ct. R. 407. The district court construed the language in Supreme Court Rule 362 as restrictive in nature, limiting access to any electronic recording of a court proceeding to only (1) counsel of record (2) for the sole purpose of determining the accuracy of a transcript prepared by a court reporter based on the electronic recording: "[Supreme Court Rule 362] provides that the counsel of record in the recorded proceeding may ask the court clerk to permit counsel to review the electronic recording of the case involved. The purpose of this review is to allow counsel to determine the accuracy of the prepared transcript and to permit the person certifying the transcript to correct any errors that the parties or court determine exist in the transcript. "Neither the court rules nor the statutes provide for any other situation under which an individual can obtain access to the original electronic recording of the proceedings. A person may obtain a transcript of the proceedings by following the procedure set out in the Supreme Court Rules, including payment of the cost of preparation of the transcript. .... "The Kansas Supreme Court rules provide a reasonable procedure for access to the record of court proceedings. Those rules are an exception to the KORA. The court finds that the KORA exempts the recording Baker seeks from disclosure other than [b]y using the procedure for requesting a transcript described in the court rules." Stocks asks us to affirm the district court. But to do so, we would have to find that the Kansas Supreme Court intended the use of electronic recordings in courtrooms to be limited to helping the court reporter prepare a transcript and assisting counsel to correct any transcription error. Construing Rule 362 in the manner suggested by Stocks is not only contrary to the clear and unambiguous language used by the Supreme Court in the rule, but also is incompatible with the framework within which the Supreme Court categorized the rule. Because this section of our opinion involves application of the KORA and then, in turn, a Supreme Court rule, we find it helpful to undertake a step-by-step analysis. We begin with the KORA. Subject to certain exceptions, the KORA requires all public records to be open for inspection. See K.S.A. 45-218(a). Court records are generally open public records. See Stephens v. Van Arsdale , 227 Kan. 676, 686-88, 608 P.2d 972 (1980). A court record includes: "(1) all original papers and exhibits filed in the district court; "(2) the court reporter's notes and transcripts of all proceedings; "(3) any other court authorized record of the proceedings, including an electronic recording ; and "(4) the entries on the appearance docket in the district court clerk's office." (Emphasis added.) Kansas Supreme Court Rule 3.01(a) (2018 Kan. S. Ct. R. 19). Public agencies are not required to disclose "[r]ecords the disclosure of which is specifically prohibited or restricted by ... rule of the Kansas supreme court." (Emphasis added.) K.S.A. 2017 Supp. 45-221(a)(1). In turn, Rule 362 provides that "[u]pon request of counsel, the clerk of the district court shall make arrangements for counsel to review the electronic recordings of the case involved. The clerk may correct a transcript of recorded proceedings upon stipulation by counsel or upon order of the court." (2018 Kan. S. Ct. R. 407.) Although there is language in this rule that could be construed as compulsory ("shall make arrangements"), there is no language in the rule that could be construed as prohibitory or restrictive, as required by the KORA to qualify as an exception to disclosure. In sum, we find no indication from the plain and unambiguous language used in the rule from which we can conclude that our Supreme Court intended to prohibit or restrict public access to electronically recorded hearings of open court proceedings. Our finding in this regard is supported by the Supreme Court's decision not to mention or refer to the KORA in Rule 362. This decision is notable given that the KORA is specifically referenced in other Supreme Court rules. See Supreme Court Rule 1.03(h) (2018 Kan. S. Ct. R. 2) (governing administration of KORA for public records maintained by district and appellate courts); Supreme Court Rule 106(d)(4) (2018 Kan. S. Ct. R. 167) (Subject to certain exceptions, "marriage licensing documents in the custody of a district court are confidential and are not subject to disclosure under the Kansas Open Records Act, K.S.A. 45-215 et seq .... Marriage licensing documents created before October 1, 2015, may be closed in whole or in part by redaction at the discretion of the chief judge of a judicial district or in accordance with an applicable exception to the Kansas Open Records Act."); Supreme Court Rule 167 (2018 Kan. S. Ct. R. 216) ("A juror questionnaire is not a public record under the Kansas Open Records Act."); Supreme Court Rule 196(a)(10) (2018 Kan. S. Ct. R. 229) (defining the term " 'Records officer' " as "the person responsible for safeguarding the access under the Kansas Open Records Act ... to records held by a court"); Supreme Court Rule 1102(b) (2018 Kan. S. Ct. R. 571-72) ("For purposes of complying with the Kansas Open Records Act, K.S.A. 45-215 et seq. , the public information director for the Kansas Supreme Court is the official custodian of all district judicial nominating commission records, and the clerk of the Kansas appellate courts is the official custodian of all Supreme Court nominating commission records."). As noted above, construing Rule 362 as an across-the-board restriction and prohibition against the public accessing electronic recordings of open court proceedings also is incompatible with the framework within which the Supreme Court categorized the rule. The Kansas Supreme Court has authority to adopt administrative rules and policies for all courts of this state. K.S.A. 20-101 (citing section 1 of article 3 of the Kansas Constitution ). The Kansas Supreme Court has organized the rules it adopted into the following categories: • Rules Relating to Supreme Court, Court of Appeals, and Appellate Practice • Rules Relating to District Courts • Rules Relating to Discipline of Attorneys • Rules Relating to the State Board of Examiners of Court Reporters • Required Continuing Judicial Education • Rules Relating to Judicial Conduct • Rules Relating to Admission of Attorneys • Rules Relating to Continuing Legal Education • Rules Relating to Mediation • Media Coverage of Judicial Proceedings • Rules Relating to Judicial Nominating Commission • Rules Relating to Certification and Education (Municipal Court Judges) • Rule Relating to the Child Support Guidelines Advisory Committee • Rule Relating to Access to Justice Committee • Rule Relating to Alternative Dispute Resolution Council • Rule Relating to Supreme Court Task Force on Permanency Planning • Rules Relating to Language Access Significantly, Rule 362, which the district court found to be a specific restriction and prohibition against disclosure of electronic recordings of open court proceedings, is not categorized as a general rule relating to the district courts but instead is categorized as a subsection within the Rules Relating to the State Board of Examiners of Court Reporters: • Rules Relating to the State Board of Examiners of Court Reporters ? Rule 301 State Board of Examiners of Court Reporters ? Rule 302 Membership-Appointment ? Rule 303 Organization-Quorum ? Rule 304 Duties and Powers; Immunity ? Rule 305 Meetings ? Rule 306 Rules ? Rule 307 Application-Examination Fee ? Rule 308 Examination ? Rule 309 Issuance of Certificates ? Rule 310 Title and Right to Its Use; Annual Renewal of Certificate ? Rule 311 Suspension or Revocation ? Rule 312 Temporary Certificate ? Rule 313 Fund-Expenses ? Rules 350-359 Official Court Reporters ? Rules 360-366 Electronic Recording-Transcripts ? Rule 360 Recording Equipment ? Rule 361 Identification of Transcripts ? Rule 362 Corrections of Transcripts ? Rule 363 Electronic Transcript ? Rule 364 Clerk of the Court Duties ? Rule 365 Orders for Transcripts That Rule 362 is categorized as one adopted by the State Board of Examiners of Court Reporters is further support for our finding that the Supreme Court did not intend Rule 362 to constitute a sweeping prohibition and restriction of public access to electronically recorded hearings of open court proceedings. Rather than prohibiting or restricting access to electronic recordings created, Rule 362 provides a framework for counsel to access electronic recordings after a court reporter has transcribed the hearing. A rule relating to court reporters that permits counsel to access electronic recordings to determine the accuracy of the prepared transcript stands in stark contrast to a broad rule enacted by the Kansas Supreme Court that specifically prohibits and restricts public access to all electronic recordings of proceedings under the KORA. Although not discussed by the district court, Stocks and the ACLU both suggest that the recordings sought by Baker were exempt under another KORA provision, K.S.A. 2017 Supp. 45-219(a). This statute provides, in relevant part: "A public agency shall not be required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices, unless such items or devices were shown or played to a public meeting of the governing body thereof." K.S.A. 2017 Supp. 45-219(a). But a plain and unambiguous reading of the statute indicates that the audio-visual items referenced in K.S.A. 2017 Supp. 45-219(a) are akin to items that might be introduced or admitted as exhibits in a court proceeding. In that context, a court would only be required to provide copies of these items if they were shown or played in a public court proceeding. The language in K.S.A. 2017 Supp. 45-219(a) referencing "similar audio or visual items or devices" cannot be read to include an audio recording of the court proceeding itself. See Ullery , 304 Kan. at 409, 372 P.3d 1135 (when statute is plain and unambiguous, appellate court should refrain from reading something into statute that is not readily found in its words). In any event, K.S.A. 2017 Supp. 45-219(a) only refers to the public's right to copy the listed items and does not in any way prohibit the public's ability to inspect them. Finally, Stocks alleges that the audio recordings were not subject to mandatory disclosure under the KORA because they are considered part of the court reporter's notes. See K.S.A. 2017 Supp. 45-221(a)(20) (exempting notes from disclosure). This argument is unpersuasive because this case does not involve a recording by a court reporter to be used as notes to assist in preparation of a transcript of the proceedings. Again, a court reporter may use an electronic recording of a court proceeding to assist in the preparation of a transcript. But an audio recording of open court proceedings-as we are dealing with in this case-does not fall into the category of court reporter's notes. See Supreme Court Rule 3.01(a)(2) and (3) (2018 Kan. S. Ct. R. 19). In short, there is no Kansas statute or Supreme Court rule that specifically prohibits or restricts the disclosure of audio recordings of open court proceedings. See K.S.A. 2017 Supp. 45-221(a)(1). The district court's reliance on Supreme Court Rule 362 was erroneous and did not promote the public policy of opening public records for inspection as determined by the Legislature. See K.S.A. 45-216(a). 3. Attorney fees The only remaining argument we need to address is Baker's request for attorney fees. K.S.A. 2017 Supp. 45-222(d) provides: "In any action hereunder, the court shall award costs and a reasonable sum as an attorney's fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency's denial of access to the public record was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation." Overlooking the fact that Baker has appeared pro se during all relevant proceedings below and continues to do so on appeal, in order for attorney fees to be awarded under K.S.A. 2017 Supp. 45-222(d), an agency's action must be both "not in good faith" and "without a reasonable basis in fact or law." The district court decided this issue on a motion to dismiss and without a factual or evidentiary hearing. As a result, there is simply no evidence in the record before us to show that Stocks' actions in responding to Baker's request were not made in good faith. In addition, whether audio recordings of open court proceedings are exempt from disclosure under the KORA is a question of first impression for Kansas courts. Thus, it cannot be said that Stocks' actions were necessarily without a reasonable basis in fact or law at the time she denied Baker's request. See Data Tree , 279 Kan. at 468, 109 P.3d 1226. Baker is not entitled to an award of attorney fees. The district court's decision finding the audio recordings were exempt from disclosure under the KORA and Supreme Court Rule 362 is reversed. Because Baker's claims against Stocks are moot with respect to the specific audio recordings at issue in this case, however, remand to the district court in this particular case appears unnecessary. Baker's request for attorney fees is denied. Reversed.

The opinion of the court was delivered by Biles, J.: An intoxicated Pablo Gonzalez shot and killed his friend, Levi Bishop, while they celebrated New Year's Eve. A jury convicted Gonzalez of unintentional second-degree murder. On appeal, Gonzalez challenges: (1) the unintentional second-degree murder statute's constitutionality; (2) the evidence's sufficiency; (3) the trial court's actions in answering a jury question; and (4) the court's failure to give a limiting instruction about certain evidence. The Court of Appeals affirmed. State v. Gonzalez , No. 112,841, 2016 WL 3202555 (Kan. App. 2016) (unpublished opinion). We affirm. FACTUAL AND PROCEDURAL BACKGROUND The facts are mostly undisputed, except whether Gonzalez knew his gun was loaded as events unfolded. Gonzalez and his friends-Levi (the victim), Bailey Bishop (Levi's sister; Gonzalez' girlfriend), Jeff Swisher (Levi's step-brother), and Zachary Cashman-attended various New Year's Eve parties. At some point, the four men wanted to return to the first party and Gonzalez drove them. Cashman and Swisher passed out in the back seat. Around 4:30 a.m. on January 1, 2014, Gonzalez drove to Andrew Schindler's house. Gonzalez and Levi got out of the car. When Gonzalez stepped out, his gun fell onto the ground. He picked it up, put it in his pocket, and walked around the car where Schindler and Levi were talking. According to Schindler, Gonzalez "was pointing [the gun] around and being stupid." Schindler testified Gonzalez pointed the gun at Schindler's head once or twice. He told Gonzalez to stop. Schindler headed into the house to get cigarettes so they would leave. Schindler saw John Syrokos walking toward Gonzalez and Levi from down the street. Syrokos testified he left a party around 4:30 a.m. and started walking home. He saw Gonzalez pull his handgun out and chamber a round. Gonzalez called out asking Syrokos to identify himself. Feeling scared, Syrokos said his name, and, as they got closer, Gonzalez put the gun under his coat. Syrokos continued home after 10 or 15 minutes. When he got home, he called the sheriff's office to report what he saw. Shortly thereafter, the shooting occurred only a couple of blocks from Schindler's house. Schindler testified it must have happened "[w]ithin five minutes of [them] leaving [his] house." At approximately 4:45 a.m., St. Marys Police Officer Mark Lamberson was at the police station when he saw a car pull into the parking lot and heard honking. Gonzalez approached and banged on the station door. Lamberson described Gonzalez as intoxicated, "emotional, scared, frantic, [and] distraught." Gonzalez said he needed "help" because he had "shot [his] boy in the face." As the two approached the car, the officer noticed a gun on the ground near the driver's side. Levi was dead in the passenger seat. Swisher stood outside and Cashman was crying in the back seat. Lamberson took the gun, which had one round in the chamber. He arrested Gonzalez. The State charged Gonzalez with intentional second-degree murder, an alternative count of unintentional second-degree murder, and one count of aggravated assault. A jury convicted him of unintentional second-degree murder and acquitted him of aggravated assault. The court imposed a 123-month prison sentence. Gonzalez timely appealed. A Court of Appeals panel affirmed. Gonzalez , 2016 WL 3202555, at *1. Gonzalez petitioned this court for review, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals' decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018 ). CONSTITUTIONALITY OF THE CRIME OF CONVICTION Gonzalez claims for the first time on appeal that the statute defining unintentional second-degree murder is unconstitutionally vague. He advances three reasons. First, he claims State v. Deal , 293 Kan. 872, 269 P.3d 1282 (2012), blurred the distinction between unintentional second-degree murder and involuntary manslaughter because it held the second-degree murder statute focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death. Second, he asserts amendments to the definition of " 'recklessly' " in K.S.A. 2016 Supp. 21-5202(j), made unintentional second-degree murder and involuntary manslaughter the same crime. Third, he cites Johnson v. United States , 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed. 2d 569 (2015), to argue the unintentional second-degree murder statute requires a jury to first make a determination of the "ordinary" reckless killing, which "creates grave uncertainty." Additional Facts In discussing Gonzalez' vagueness claim, it is helpful to review how the jury was instructed about two of the crimes charged. After instructing the jury on intentional second-degree murder, which is not relevant here, the trial court instructed on unintentional second-degree murder under K.S.A. 2016 Supp. 21-5403(a)(2) and involuntary manslaughter under K.S.A. 2016 Supp. 21-5405(a)(1). The relevant instructions provided as follows: Instruction No. 11 stated: "If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Intentionally, you should then consider the lesser included offense of Murder in the Second Degree, committed Unintentionally. "To establish this charge, each of the following claims must be proved: "1. The defendant killed Levi William Bishop unintentionally but recklessly under circumstances that show extreme indifference to the value of human life . "2. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas. "A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that 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." (Emphasis added.) Instruction No. 11 further stated: "If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Unintentionally, you should then consider the lesser included offense of Involuntary Manslaughter. "To establish this charge, each of the following claims must be proved: "1. The defendant killed Levi William Bishop. "2. It was done recklessly. "3. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas. "A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that 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." Instruction No. 7 stated: "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." Instruction No. 10 stated: "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." Standard of Review "Determining a statute's constitutionality is a question of law subject to unlimited review. We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Further, we must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent. State v. Gaona , 293 Kan. 930, 957-58, 270 P.3d 1165 (2012)." State v. Soto , 299 Kan. 102, 121, 322 P.3d 334 (2014). Because Gonzalez challenges the statute's constitutionality, he carries the burden of overcoming that presumption. " 'A statute must clearly violate the constitution before it may be struck down.' [Citations omitted.] 'This court not only has the authority, but also the duty, to construe a statute in such a manner that is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.' [Citation omitted.]" State v. Robinson , 261 Kan. 865, 874-75, 934 P.2d 38 (1997). Discussion Unintentional second-degree murder is defined as: "[T]he killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. " (Emphasis added.) K.S.A. 2016 Supp. 21-5403(a)(2). Involuntary manslaughter is defined as: "[T]he killing of a human being committed ... [r]ecklessly." K.S.A. 2016 Supp. 21-5405(a)(1). "A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2016 Supp. 21-5202(j). Instruction No. 11 captures the statutory distinction by requiring the jury to find the killing was committed "under circumstances that show extreme indifference to the value of human life" to convict Gonzalez of unintentional second-degree murder. The instruction clearly did not require this finding to convict him of involuntary manslaughter. But Gonzalez contends the statutory phrase "under circumstances manifesting extreme indifference to the value of human life" is unconstitutionally vague because it fails to sufficiently distinguish for the jury a difference between unintentional second-degree murder and involuntary manslaughter. He offers the same three arguments he raised before the panel without explaining to this court why the panel was wrong. In determining whether a criminal statute is so vague that it violates due process, appellate courts conduct a two-prong inquiry, asking: (1) whether the statute gives fair warning to those potentially subject to it; and (2) whether it adequately guards against arbitrary and unreasonable enforcement. State v. Bollinger , 302 Kan. 309, 318, 352 P.3d 1003 (2015). Gonzalez' argument falls in the second category by questioning whether the jury could distinguish between the crime of conviction and involuntary manslaughter. In Robinson , the court considered whether the phrase "extreme indifference to the value of human life" was unconstitutionally vague as used when describing the elements for unintentional but reckless second-degree murder-also known as depraved heart murder. The defendant argued the statute did not adequately differentiate itself from reckless involuntary manslaughter. The court rejected this by holding, "Based on the plain language of the depraved heart second-degree murder statute and the legislative history behind it, the legislature intended for the depraved heart murder statute to carry a higher degree of culpability than the reckless involuntary manslaughter statute, thereby making the two statutes distinguishable." (Emphasis added.) Robinson , 261 Kan. at 875, 934 P.2d 38. The Robinson court further noted the unintentional second-degree murder statute was different from involuntary manslaughter because "[d]epraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life." 261 Kan. at 876, 934 P.2d 38. In other words, the statutory language used in the unintentional second-degree murder statute "describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter." 261 Kan. at 878, 934 P.2d 38. The court explained: "The phrase in the depraved heart murder statute requiring the 'extreme indifference to the value of human life' indicates, as the legislature intended, that this statute requires a higher degree of recklessness than that required by the reckless involuntary manslaughter statute. If a jury is given a lesser included instruction on reckless involuntary manslaughter, then the jury must assume that some killings fall under this crime. Thus, the jury is put on notice that it must determine whether a reckless killing involves an extreme degree of recklessness and is depraved heart murder or involves a lower degree of recklessness and is involuntary manslaughter. The jury does this by determining whether a particular reckless killing indicates an extreme indifference to the value of human life which is beyond that indifference present in all reckless killings. [Citation omitted.]" Robinson, 261 Kan. at 876-77, 934 P.2d 38. 1. The reliance on Deal is misplaced. Gonzalez argues Deal clarified that the "recklessness" involved in reckless homicide refers to the risk of death, which reflected a departure from Robinson . But he misreads the case. A jury convicted Deal of unintentional second-degree murder. Deal argued he acted intentionally in beating a victim, so there was no evidence to support an argument that he acted unintentionally in inflicting the blows. The Deal court rejected this argument, holding the unintentional second-degree murder statute "focuses culpability on whether a killing is intentional , not on whether a deliberate and voluntary act leads to death." ( Emphasis added.) 293 Kan. at 873, 269 P.3d 1282. After noting this same background, the Gonzalez panel concluded that Deal did not depart from Robinson . Gonzalez , 2016 WL 3202555, at *6. Notably, Gonzalez advances no argument explaining why the panel was wrong in its analysis, and we fail to discern any. The Deal court specifically noted there was evidence, including Deal's own statement that he did not intend to kill his victim, to support the conviction for unintentional but reckless second-degree murder. Deal , 293 Kan. at 885-86, 269 P.3d 1282. Gonzalez' arguments regarding Deal are without merit. 2. The amended definition does not make the statute unconstitutionally vague. The statutory definition of "recklessly" was enacted as part of the 2010 Kansas Criminal Code recodification. L. 2010, ch. 136, § 13. It states: "A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow , and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Emphasis added.) K.S.A. 2016 Supp. 21-5202(j). Before the recodification, K.S.A. 21-3201(c) provided, "Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The term 'gross negligence' ... [is] included within the term 'recklessness' as used in this code." Gonzalez argues inclusion of "result" in the current definition makes the phrase "under circumstances manifesting extreme indifference to the value of human life" unconstitutionally vague because "every time a person disregards an unjustifiable risk that a death will occur in gross deviation of the reasonable standard of care, it will show extreme indifference to the value of human life on some level." He contends failure to "qualif[y] in some way" the extreme indifference language leaves a jury unable to distinguish between unintentional second-degree murder and involuntary manslaughter. But that unsupported claim ignores the recognized spectrum of culpability for the results of one's reckless acts. Under our statutes, "[r]ecklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter." Robinson , 261 Kan. at 877-78, 934 P.2d 38. The instructions required the jury to place Gonzalez' conduct on that spectrum by deciding whether the facts showed he was not just reckless in disregarding the risk that Levi would die, but also extremely indifferent to the value of human life. In other words, as the panel correctly noted, "To convict a defendant charged with unintentional second-degree murder, the State is required to prove not only that the defendant consciously disregarded a substantial and unjustifiable risk that death will result from existing circumstances but also that the defendant did so under 'circumstances manifesting extreme indifference to the value of human life.' [Citation omitted.] Although recklessness is an essential element to prove the offense in both statutes, the unintentional second-degree murder statute still requires an additional element." Gonzalez , 2016 WL 3202555, at *6. The bottom line is that the new definition does not alter Robinson 's rationale-a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Robinson , 261 Kan. at 878, 934 P.2d 38. Gonzalez' argument is without merit. 3. The claim based on Johnson is misplaced. Gonzalez next asserts the United States Supreme Court's holding in Johnson , 135 S.Ct. 2551, invalidates Robinson . In that federal case, the Government sought an enhanced sentence under the Armed Career Criminal Act, which imposed an increased prison term if a defendant had three previous convictions for a " 'violent felony.' " 135 S.Ct. at 2555. The term "violent felony" was defined to include "any felony that 'involves conduct that presents a serious potential risk of physical injury to another.' " 135 S.Ct. at 2555. The Court held this denied "fair notice to defendants and invites arbitrary enforcement by judges," such that "[i]ncreasing a defendant's sentence under the clause denies due process of law." 135 S.Ct. at 2557. The Johnson Court pointed out two features making the federal statute unconstitutionally vague. First, it left "grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." 135 S.Ct. at 2557. This is because in applying the language a court must assess "whether a crime qualifies as a violent felony 'in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.' " 135 S.Ct. at 2557. Second, the language left "uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." 135 S.Ct. at 2558. Gonzalez argues the same vagueness appears in our unintentional second-degree murder statute. Quoting Robinson , 261 Kan. at 877, 934 P.2d 38, he claims "[t]o the extent that unintentional second-degree murder requires something 'which is beyond that indifference present in all reckless killings,' it would require a jury to make a determination of the 'ordinary' reckless killing." But that argument fails. The Kansas statute does not require a jury to imagine an ordinary reckless killing to determine if a defendant killed a human being "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 2016 Supp. 21-5403(a)(2). Rather, "[t]he jury does this by determining whether a particular reckless killing indicates an extreme indifference to the value of human life which is beyond that indifference present in all reckless killings." (Emphasis added.) Robinson , 261 Kan. at 877, 934 P.2d 38. Put another way, a jury applies the statutory definition of unintentional second-degree murder to the real-world facts before it. This process does not require a jury to imagine anything. Gonzalez' jury only had to look at the facts as alleged, determine whether those facts were properly proven, and then apply them to the offense's elements as correctly set forth in the jury instructions. And Johnson itself makes this distinction. The Court noted there are many federal and state laws requiring "gauging the riskiness of conduct in which an individual defendant engages on a particular occasion " and held there is no doubt of "the constitutionality of [those] laws that call for the application of a qualitative standard such as 'substantial risk' to real-word conduct; 'the law is full of instances where a man's fate depends on his estimating rightly ... some matter of degree.' " Johnson , 135 S.Ct. at 2561. K.S.A. 2016 Supp. 21-5403(a)(2) calls for application of a distinguishing qualitative standard-"extreme indifference to the value of human life"-to real-world conduct. Johnson does not invalidate Robinson ' s rationale; indeed, it reaffirms the constitutionality of statutes like the ones at issue in Robinson and the current case. Finally, Gonzalez insists the statute is unconstitutionally vague because the jury asked for clarification about the difference between the two crimes. But this court rejected that same argument in State v. Cordray , 277 Kan. 43, 51-52, 82 P.3d 503 (2004) (statute's vagueness not shown by jury asking for clarification of the phrase "extreme indifference to the value of human life"). Gonzalez offers no reason to revisit Robinson and its progeny and does not overcome the statute's presumption of constitutionality. SUFFICIENCY OF THE EVIDENCE Gonzalez concedes he shot and killed Levi but contends the evidence does not support the jury's finding he acted under circumstances manifesting extreme indifference to the value of human life. He argues he did not know the gun was loaded and did not intend to kill Levi. He sets out evidence showing he had no motive to kill Levi, e.g., they were long-time friends; they had no conflicts; and Gonzalez sought help for him. He further insists-in an argument tied to the previous issue just discussed-that the State failed to introduce evidence about other cases involving "ordinary" recklessness in an involuntary manslaughter case for the jury to compare with his case. The panel rejected the sufficiency claim. Gonzalez , 2016 WL 3202555, at *8-9. So do we. Standard of Review "In order to meet the sufficiency of the evidence standard, there must be evidence supporting each element of a crime." State v. Williams , 299 Kan. 509, 528, 324 P.3d 1078 (2014), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016). An appellate court reviews sufficiency by "looking at all the evidence in a light most favorable to the prosecution and determining whether 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). In doing so, the appellate court generally will "not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations." Williams , 299 Kan. at 525, 324 P.3d 1078. Additional Facts According to Gonzalez' testimony at trial, the group left a New Year's Eve party, drove out of town, and did some shooting with his handgun before dropping by Schindler's house. While Swisher and Cashman were sleeping in the back, Gonzalez pointed the gun at his own head. Levi said, "Don't do that." Gonzalez responded that it was not loaded. He pointed it at Levi and pulled the trigger. The gun discharged. Gonzalez tried to call 911 on his cell phone but was too drunk. Gonzalez acknowledged he pulled the trigger and admitted he was responsible for Levi's death. He testified he did not know the gun was loaded and did not intend to kill Levi. Gonzalez said he was familiar with guns. He further said he had known Levi for 10 years, liked him, and had been dating Levi's sister for almost four years. When interviewed the morning of the shooting, Gonzalez claimed it was accidental and blamed the trigger safety on the gun or a bump in the road. His blood-alcohol level was .25, which is over three times the driving limit. Gonzalez was intoxicated when interviewed. The coroner testified Levi died from a gunshot wound to the neck. From the markings around the wound, the coroner said the gun must have been nearly against the neck when discharged. Cole Goater, a Kansas Bureau of Investigation forensic scientist, examined the gun and tested it for functionality and trigger pull. Goater said the gun operated properly and the trigger pull was within standard specifications. There was nothing unusual when Goater fired the weapon. He said all four safety features functioned correctly. He also testified someone would be able to tell if a cartridge was in the chamber because the gun had a loaded-chamber indicator. He said the safety mechanisms are "designed to prevent the striker from moving forward" unless the trigger is pulled. A defense expert also testified the trigger had to be pulled for the gun to fire, that the four safety mechanisms were working properly, and the gun was functionally sound. He said one could "see" or "feel" that the gun was cocked. Discussion Gonzalez argues he did not know the gun was loaded, so his conduct does not rise to extreme indifference to the value of a human being, but he ignores contradictory evidence. When viewed in the light most favorable to the prosecution, the evidence shows: (1) Gonzalez was very drunk; (2) he chambered a round in the gun after the four had been out shooting it; (3) he casually pointed the loaded weapon at two others-Schindler and Syrokos; (4) he was experienced with guns; (5) the gun functioned properly, including all the safety features; (6) the gun had a functioning loaded-chamber indicator; (7) one could see when the gun was cocked; and (8) the gun was nearly against Levi's neck when discharged. Based on our standard of review, sufficient evidence supports Gonzalez' conviction of unintentional second-degree murder under K.S.A. 2016 Supp. 21-5403(a)(2). Two cases previously mentioned- Deal , 293 Kan. 872, 269 P.3d 1282, and Cordray , 277 Kan. 43, 82 P.3d 503 -bolster this conclusion. In Deal , the defendant confronted the victim about an alleged incident with Deal's girlfriend. While arguing, Deal struck the victim in the head with a tire iron. Deal told law enforcement officers he did not intend to kill the victim. The Deal court concluded "hitting someone in the head with a metal bar" showed "a realization of danger and a conscious and unjustifiable disregard of that danger in circumstances manifesting an extreme indifference to the value of human life." Accordingly, the evidence was sufficient to support the conviction. 293 Kan. at 885-86, 269 P.3d 1282. In Cordray , the defendant accidently shot and killed the victim while trying to intimidate a group of people in a vehicle who were trespassing. The Cordray court held the evidence showing defendant fired into darkness in the direction of a vehicle he knew was occupied was sufficient for a rational fact-finder to find him guilty of unintentional second-degree murder. 277 Kan. at 56, 82 P.3d 503. Similarly, the evidence in Gonzalez' case establishes not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life-among them: chambering the gun, holding it nearly against the victim's neck, and pulling the trigger. We hold the evidence is sufficient to support the jury's verdict. RIGHT TO BE PRESENT Gonzalez claims the district court's procedure when answering a jury question violated his right to be present at every critical stage of the trial. Additional Facts During deliberations, the jury asked: "Can you provide more clarification of the differences between the murder in the second degree, committed unintentionally and the Involuntary Manslaughter?" There is no discussion in the record about what happened next. There is only the jury's written question and a typed answer signed by the judge, stating: "Your question is whether I can provide more clarification of the differences between the murder in the second degree, committed unintentionally and the Involuntary Manslaughter. "Please refer to the instructions provided to you." Standard of Review When the same acts or omissions violated both the defendant's constitutional and statutory rights, an appellate court applies "only the more rigorous of the two harmless error standards-the federal constitutional harmless error standard. [Citations omitted.] Under the federal standard, 'error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record.' " State v. Verser , 299 Kan. 776, 789, 326 P.3d 1046 (2014). In other words, this court must conclude " 'there is no reasonable possibility that the error contributed to the verdict.' " 299 Kan. at 789, 326 P.3d 1046. "Four factors assist our evaluation of whether a district judge's communication with the jury outside the presence of the defendant is harmless under the constitutional standard: '(1) the overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.' [Citation omitted.]" Verser , 299 Kan. at 789-90, 326 P.3d 1046. Discussion Given the record's silence, we assume the court prepared the response without Gonzalez or his attorney present. See State v. Betts , 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis , 283 Kan. 569, 158 P.3d 317 (2006). In Kansas, a defendant has a statutory right to be present during discussion of any written jury question unless the defendant waives that right. K.S.A. 2016 Supp. 22-3420(d). Any act or omission violating K.S.A. 2016 Supp. 22-3420(d) also violates K.S.A. 2016 Supp. 22-3405(a), requiring a defendant in a felony case to be present at every stage of the trial, and the " 'guarantee of the Sixth Amendment to the United States Constitution that a criminal defendant may be present at every critical stage of his or her trial.' " Verser , 299 Kan. at 788, 326 P.3d 1046. The State did not cross-petition for review of the panel's determination that Gonzalez' constitutional and statutory rights to be present were violated, so that much is settled. See State v. McBride , 307 Kan. 60, 62-63, 405 P.3d 1196 (2017) (only issue on review is whether error was harmless when the State did not cross-petition for review of the Court of Appeals' error determination). Moving to the four factors set out in Verser , the panel held, "[T]he State's case against Gonzalez was strong and ... the evidence was sufficient to support the jury's finding of guilt of unintentional ... second-degree murder," and therefore concluded "[t]his factor weighs in favor of a finding that the error was harmless." Gonzalez , 2016 WL 3202555, at *10. In his petition for review, Gonzalez challenges this by arguing sufficient evidence is not strong evidence. But as shown above the evidence is strong. Gonzalez pointed the loaded pistol nearly against Levi's neck and voluntarily pulled the trigger, resulting in Levi's death. The panel was correct in holding the State's case was strong. Cf. Verser , 299 Kan. at 790, 326 P.3d 1046 (after discussing the evidence, the court held the State's case against Verser was strong). The panel held the second factor "may weigh equally" because the record is silent whether there was an objection made at trial. Gonzalez , 2016 WL 3202555, at *10. Gonzalez does not challenge the panel's decision on this factor other than noting it cannot be properly evaluated without a record. We agree with the panel. For the third factor, the panel stated, "[T]he substance of the jury's question related to a critical aspect of trial," but the court's response was innocuous and insignificant. Gonzalez , 2016 WL 3202555, at *10. It reasoned the trial court's answer had no "substantive information" but merely directed the jury to follow the original instructions. 2016 WL 3202555, at *10. The panel held this weighed in favor of harmless error. 2016 WL 3202555, at *10. Gonzalez claims the panel is wrong. He argues this factor is about whether the inquiry's substance, i.e., his state of mind, was a critical aspect of the trial, not whether the information in the answer was innocuous. The caselaw, though, looks to all of the circumstances. For example, the Verser court considered whether the information conveyed in answer to the jury's question was innocuous and insignificant and held that because the court's "answer was not substantive at all," the error was harmless. Verser , 299 Kan. at 790, 326 P.3d 1046. In Gonzalez' case, the question concerned an important element of the crime, but the district court's response simply directed the jury back to the instructions already given. We hold the third factor weighs in favor of harmlessness. As to the fourth factor, the panel noted, "Gonzalez did not pursue any posttrial remedies to correct the district court's presumed procedural error," and determined this factor weighs in favor of harmlessness, citing State v. Bowen , 299 Kan. 339, 358, 323 P.3d 853 (2014). 2016 WL 3202555, at *10. But Bowen does not support the panel's holding because both Bowen and his counsel knew of the communication but chose not to pursue any posttrial remedies. Bowen , 299 Kan. at 358, 323 P.3d 853. In Gonzalez' case, there is no record Gonzalez or his counsel knew of the jury's communication with the court. See State v. Herbel , 296 Kan. 1101, 1115, 299 P.3d 292 (2013) (Herbel and his counsel's lack of awareness of ex parte communication means failure to seek posttrial remedies cannot be held against him); see also K.S.A. 22-3417 ("[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him."). The panel erred in considering the fourth factor. We weigh this factor in Gonzalez' favor. See Herbel , 296 Kan. at 1115, 299 P.3d 292. Reviewing the four factors as a whole, the panel's ultimate determination was correct that the error was harmless. The strength of the evidence supporting the jury's verdict and the fact the district court simply referred the jury back to the admittedly correct jury instructions supports holding any lack of presence when composing the response was harmless beyond a reasonable doubt in light of the entire record. RIGHT TO PUBLIC TRIAL Gonzalez next argues the trial court violated his constitutional right to a public trial based on the assumption the trial court responded to the jury question in private, which he bases in turn on the lack of a record it was done in open court. He claims Kansas caselaw makes "it clear that even partial closure implicates the Public Trial Clause," citing State v. Dixon , 279 Kan. 563, 599, 112 P.3d 883 (2005) (closure when announcing verdict constituted a Public Trial Clause violation), disapproved of on other grounds by State v. Wright , 290 Kan. 194, 224 P.3d 1159 (2010). Gonzalez further insists a criminal defendant's right to a public trial is so fundamental that this amounts to a structural error and requires reversal. The panel disagreed and held "the right to public trial did not attach to the process of reading, discussing, and responding to the jury question," providing a comprehensive analysis under a "two-part 'experience and logic' test" adopted in State v. Reed , 302 Kan. 227, 240-43, 352 P.3d 530 (2015) (courtroom locked to consider a victim's availability to testify). Gonzalez , 2016 WL 3202555, at *11-12. Gonzalez fails to take issue with the panel's analysis or present any support for his position that the court's written response violated his right to a public trial. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191, 106 P.3d 483 (2005). Under similar circumstances, we have declined to address the public trial question. See, e.g., Bolze-Sann , 302 Kan. 198, 218, 352 P.3d 511 (2015) ("We have never characterized a district court's failure to comply with the deliberating jury procedures provided in K.S.A. 22-3420 [3] or later statutes as a violation of the constitutional right to a public trial."); Verser , 299 Kan. at 790-91, 326 P.3d 1046 (defendant claimed the jury-answer procedure violated public trial right but did not explain how that procedure implicated that right; the court declined to consider it). We do so again in this case. JURY QUESTION RESPONSE As mentioned above, during deliberations the jury requested clarification on how to differentiate unintentional second-degree murder from involuntary manslaughter. In a written response, the court referred the jury to the original instructions. On appeal, Gonzalez argues this failed to provide a meaningful response to the request. Gonzalez suggests, based on Robinson, that "a meaningful answer to the jury's question may have been along the lines of" the following: "You must assume that some reckless killings are involuntary manslaughter. You must determine whether a particular reckless killing involves an extreme degree of recklessness or involves a lower degree of recklessness. You do this by determining whether a particular reckless killing indicates an extreme indifference to the value of human life which is beyond that indifference present in all reckless killings. If you have a reasonable doubt between the two offenses, you cannot convict Mr. Gonzalez of unintentional second-degree murder." Standard of Review "[A] district court's response to a mid-deliberation jury question is reviewed for abuse of discretion." State v. Lewis , 299 Kan. 828, 856, 326 P.3d 387 (2014) (citing State v. Novotny , 297 Kan. 1174, 1186, 307 P.3d 1278 [2013] ; State v. Wade , 295 Kan. 916, 920, 287 P.3d 237 [2012] ). The abuse of discretion standard is well known: "Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011). When it is necessary to decide if a trial court's response was a correct statement of law, an appellate court is presented with a legal question, which is subject to unlimited review. Lewis , 299 Kan. at 856, 326 P.3d 387. But when considering whether the trial court erred giving one of multiple legally appropriate responses, the appellate court gives the district court the deference of determining only whether no reasonable person would have given the response adopted by the district court. 299 Kan. at 856, 326 P.3d 387. Upon a finding of error, an appellate court conducts a harmless error analysis under K.S.A. 2016 Supp. 22-3414(3), which states: "No party may assign as error the giving or failure to give an instruction, including a lesser included crime 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.) This court has held K.S.A. 22-3414(3) provides a preservation rule for jury instruction claims on appeal and has applied this same rule in the context of a mid-deliberation jury question. Lewis , 299 Kan. at 855, 326 P.3d 387 (citing State v. Hoge , 276 Kan. 801, 817-18, 80 P.3d 52 [2003] ). In Gonzalez' case, there was nothing in the record as to whether Gonzalez properly objected to the trial court's answer to the jury question. Discussion During deliberations, when a jury desires to be informed as to any part of the law or evidence arising in the case, the court must "respond to all questions from a deliberating jury in open court or in writing." K.S.A. 2016 Supp. 22-3420(d). The court in Gonzalez' case responded to the jury question in writing by referring it back to the original jury instructions. In Wade , 295 Kan. 916, Syl. ¶ 1, 287 P.3d 237, the court held that a trial court has an obligation to respond to a jury's request to be informed on a point of law. In that case, the only dispute involved Wade's state of mind and intent at the time of the victim's killing. Wade claimed the trial court erred by failing to adequately respond to a jury question about the definition of premeditation. The Wade court held the district court did not abuse its discretion by "simply directing the jury's attention back to the instructions," which was a permissible way of responding when the instructions already given were correct statements of the law. 295 Kan. at 922-23, 287 P.3d 237. Following Wade 's reasoning, the trial court was permitted to refer the jury back to the original instructions, which correctly stated the law. See State v. Peck , 237 Kan. 756, Syl. ¶ 6, 703 P.2d 781 (1985) ("When the question has already adequately been covered by the original instructions, the trial court may decline to answer and may direct the jury to re-read the instructions already given."). Instruction No. 11 set forth the elements for the offenses of unintentional second-degree murder and involuntary manslaughter. And the term "recklessly" was defined for the jury, consistent with its statutory definition with one difference-Instruction No. 11 omitted the phrase "circumstances exist" from the statutory definition. That difference is neither challenged by Gonzalez nor did it alter the meaning of reckless in this case. Instruction No. 11 correctly provided the elements of the two offenses at issue. Instruction No. 10 stated that "[w]hen 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." Moreover, Instruction No. 7 stated that "[e]ach crime charged against the defendant is a separate and distinct offense" and the jury "must decide each charge separately on the evidence and law applicable to it, uninfluenced by [its] decision as to any other charge." The original instructions adequately and correctly stated the applicable law. "This court has long held that appellate courts presume that juries follow the instructions given by district courts." State v. Sisson , 302 Kan. 123, 131, 351 P.3d 1235 (2015). Nor do we find much substantive assistance for the jury from Gonzalez' suggested response in his appellate briefing as quoted above. The jury was correctly tasked by Instruction No. 11 to determine if there was an "extreme indifference to the value of human life." See K.S.A. 2016 Supp. 21-5403(a)(2) (defining unintentional second-degree murder). Otherwise, the original instructions taken as a whole covered the same ground as the suggestion. Instruction No. 11's format communicated to the jury there were two crimes to consider with a distinct additional element for unintentional second-degree murder. See Robinson , 261 Kan. at 876-77, 934 P.2d 38. The only additional guidance arguably in the suggested language is that it distinguished between the "degree of recklessness" required for the two crimes, but this was also communicated by the fact of the additional element. And Instruction No. 10 told the jury if it had a reasonable doubt between the two offenses, it could only convict Gonzalez of the lesser offense. We hold the district court did not abuse its discretion by referring the jury back to the given instructions. FAILURE TO ISSUE A LIMITING INSTRUCTION Finally, Gonzalez argues the district court sua sponte should have issued a limiting instruction regarding evidence that was admitted independent of K.S.A. 2016 Supp. 60-455. He contends such an instruction was required by State v. Santos , No. 109,456, 2014 WL 3731916 (Kan. App. 2014) (unpublished opinion). Additional Facts Prior to trial, the State filed a motion seeking admission of other bad acts evidence "to show intent, absence of mistake or accident, and a course of conduct by the defendant." In the motion, the State detailed several prior instances in which Gonzalez had confrontations with others while using a handgun, including his encounter with Syrokos on the night of the shooting. The court denied the motion, ruling the evidence was irrelevant. During trial, the State moved to reconsider a portion of that ruling. The State insisted Syrokos' testimony was admissible independent of K.S.A. 2016 Supp. 60-455 because his encounter with Gonzalez occurred around the same time as Levi's death. The State noted Syrokos confronted Gonzalez 10 or 15 minutes before the shooting. Gonzalez objected, arguing the evidence was more prejudicial than probative. The district court admitted the testimony because it was relevant to the crime and admissible outside of K.S.A. 2016 Supp. 60-455. Gonzalez concedes he did not request a limiting instruction. He also does not challenge the district court's ruling that the evidence was admissible independent of K.S.A. 2016 Supp. 60-455 or its rejection of his argument that the evidence was more prejudicial than probative. Standard of Review "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)." State v. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). Discussion The panel held a limiting instruction was not legally appropriate because the evidence was not admitted under K.S.A. 2015 Supp. 60-455. Gonzalez , 2016 WL 3202555, at *15. In doing so, the panel noted that "because the encounter at issue occurred near in time to the charged offenses in this case-aggravated assault and [Levi]'s death-this evidence was admissible independent of K.S.A. 2015 Supp. 60-455." 2016 WL 3202555, at *15 (citing State v. King , 297 Kan. 955, 963-64, 305 P.3d 641 (2013) [" K.S.A. 60-455 does not apply if the evidence relates to crimes or civil wrongs committed as part of the events surrounding the crimes for which [the defendant] was on trial-that is, the res gestae of the crime."] ). In Santos , the case Gonzalez relies on, the State charged the defendant with "possession of cocaine, DUI, transporting an alcoholic beverage in an open container, failure to stop at a stop sign, and driving without a license." Santos , 2014 WL 3731916, at *1. The driving without a license charge was dismissed, and a jury convicted Santos of all remaining charges except for possession of cocaine due to a hung jury. At a second trial on the possession charge, a jury convicted Santos. On appeal, Santos claimed a limiting instruction was appropriate for evidence about the DUI investigation. The Santos panel held "a limiting instruction may have been legally appropriate" although "the evidence did not contravene K.S.A. 2013 Supp. 60-455." The panel reasoned, "There is at least a possibility that the jury could have inferred that Santos had the propensity to commit other crimes because he was being investigated for a DUI." 2014 WL 3731916, at *6. The panel ultimately concluded the error was not clearly erroneous. 2014 WL 3731916, at *7. Gonzalez' reliance on Santos is misplaced. Contrary to Santos , this court has held when the prior bad acts evidence is not subject to K.S.A. 60-455 a limiting instruction is not legally appropriate and there is no error in failing to give one. State v. Charles , 304 Kan. 158, 176, 372 P.3d 1109 (2016), abrogated on other grounds by State v. Huey , 306 Kan. 1005, 399 P.3d 211 (2017). The Charles court held: " ' 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 [305 P.3d 641]. 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)." Charles , 304 Kan. at 175-76, 372 P.3d 1109. The Gonzalez panel correctly held the district court did not err in failing to give a limiting instruction because the evidence was admitted independent of K.S.A. 2016 Supp. 60-455. CUMULATIVE ERROR We have assumed one error regarding the jury question conference because the record does not reflect Gonzalez or his counsel were present when the matter was discussed. One error is insufficient to support reversal under the cumulative error doctrine. State v. Sean , 306 Kan. 963, 993, 399 P.3d 168 (2017). Our holdings make it unnecessary to consider the State's pending motion for remand to determine facts surrounding the court's consideration of the jury question. We deny that motion as moot. Affirmed.

Per Curiam: Abram F. Velo appeals the district court's decision revoking his probation and ordering him to serve his underlying prison sentences in three separate cases. We granted Velo's motion for summary disposition in lieu of briefs pursuant to Kansas Supreme Court Rule 7.041A (2018 Kan. S. Ct. R. 47). The State has filed a response and requested that the district court's judgment be affirmed. In 15CR2693, Velo was convicted of criminal possession of a firearm and received a sentence of 13 months' imprisonment. In 16CR1420 and 16CR2031, Velo was convicted in each case of possession of methamphetamine and received a sentence of 22 months' imprisonment in each case. The district court ordered the sentences to run consecutively and placed Velo on probation for 18 months in the first case and 12 months each in the last two cases. The record reflects that Velo violated his probation on two separate occasions, and each time the district court imposed intermediate sanctions. Then, on June 9, 2017, the Stated alleged that Velo had violated his probation for the third time by failing to maintain employment, failing to report to his probation officer, failing to submit to substance abuse testing, and failing to maintain the GPS monitoring device in compliance with the court's order. At a hearing on July 18, 2017, based on Velo's stipulation and evidence presented by the State, the district court found that Velo had violated his probation on all the grounds alleged by the State. Velo requested that he remain on probation, or, in the alternative, that he receive modified sentences. In support of Velo's request, he pointed out that he had violated many of the conditions of his probation because he had contracted MRSA and he had become very ill and also that he would benefit from drug treatment which he could not receive in prison. However, the district court revoked Velo's probation and ordered him to serve his underlying prison sentences. Velo timely appealed in each case, and the cases have been consolidated on appeal. On appeal, Velo claims the district court "abused its discretion when revoking [his] probation and imposing his underlying sentences." However, Velo acknowledges that the district court has discretion to revoke probation upon a showing that the defendant has violated the terms of probation. The procedure for revoking a defendant's probation is governed by K.S.A. 2017 Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions of probation, the decision to revoke probation rests in the district court's sound discretion. State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Mosher , 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting the district court abused its discretion bears the burden of showing such an abuse of discretion. State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012). A district court abuses its discretion by committing an error of law in the application of K.S.A. 2017 Supp. 22-3716 when revoking a defendant's probation. See State v. Still , No. 112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion). Here, the record reflects that Velo already had violated his probation on two prior occasions and received an intermediate sanction each time. He then violated his probation for a third time on multiple grounds. The district court's decision to revoke Velo's probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of fact or law. Velo has failed to show that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentences. Affirmed.

Per Curiam: This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Curtis N. Holmes, of De Soto, an attorney admitted to the practice of law in Kansas in 2008. After Holmes appeared in person for a hearing before a panel of the Kansas Board for Discipline of Attorneys, the panel unanimously determined he violated Kansas Rules of Professional Conduct (KRPC) 1.4 (2018 Kan. S. Ct. R. 293) (communication); 1.16(a)(1) (2018 Kan. S. Ct. R. 333) (withdrawing from representation); 5.5(a) (2018 Kan. S. Ct. R. 363) (unauthorized practice of law); 8.1 (2018 Kan. S. Ct. R. 379) (false statement in connection with disciplinary matter); 8.4(c) (2018 Kan. S. Ct. R. 381) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. 262) (notification of clients upon suspension). Before the panel, the disciplinary administrator recommended a 6-month suspension from the practice of law. The panel ultimately recommended a 1-year suspension. At the hearing before this court, the disciplinary administrator endorsed the panel's findings but continued to recommend a 6-month suspension. Holmes filed certain exceptions to the panel's findings, as well as to the recommended discipline. Before the panel and this court, Holmes requested that he be placed on probation. However, he has not complied with Supreme Court Rule 211(g) (2018 Kan. S. Ct. R. 251) requiring him to immediately implement his proposed plan and later provide the Clerk of the Appellate Courts and the disciplinary administrator an affidavit that he is complying with the terms and conditions of the proposed plan. We hold that clear and convincing evidence establishes the rule violations found by the panel, and we agree with the panel that a 1-year suspension is the appropriate discipline. A minority of this court would impose a less severe sanction. FACTUAL AND PROCEDURAL BACKGROUND On January 9, 2017, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging violations of the KRPC. Holmes filed an answer on February 6, 2017, and an amended answer on April 24, 2017. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 9, 2017, at which Holmes appeared personally. 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 .... "10. Rule 208(a) requires all attorneys to register with the Clerk of the Appellate Courts and pay the annual registration fee prior to July 1 each year. The rule includes a 'grace' period, providing attorneys until July 31 of each year to forward the form and pay the annual registration fee without penalty. However, '[a]ttorney registration fees received by the Clerk of the Appellate Courts after July 31 of the year in which due shall be accompanied by a $100 late payment fee.' Rule 208(d). "11. On July 29, 2015, the respondent mailed his attorney registration form and fee to the Clerk of the Appellate Courts. The Clerk did not receive the respondent's registration form and fee until after July 31, 2015. Under Rule 208(d), the respondent was required to pay a late fee of $100 because the registration form and fee were not received until after July 31, 2015. The respondent failed to provide the late fee of $100. "12. On August 8, 2015, the respondent received a letter from the Clerk of the Appellate Courts, sent via certified mail, informing the respondent that his registration had not been received before August 1, 2015, and that his license to practice law would be suspended if he did not pay the late fee of $100 within 30 days. The respondent did not pay the late fee of $100 within 30 days. "13. On October 6, 2015, the Supreme Court entered an order suspending the respondent's license to practice law for failing to pay the late fee of $100. On October 8, 2015, the Clerk sent the order of suspension to the respondent by certified mail to the respondent at the respondent's registration address. Prior to the entry of the order of suspension, the respondent was on notice that such an order would follow if the respondent did not pay the late fee. "14. On October 13, 2015, the United States Postal Service attempted to deliver the certified mailing at 4:32 p.m., leaving a notice. "15. On October 14, 2015, prior to 10:48 a.m., the respondent called the Clerk of the Appellate Courts and spoke with Debbie Uhl. During the conversation, the respondent stated that he had mailed the registration form and fee in plenty of time to arrive before August 3, 2015, that he had received the notice regarding the late fee, and that he did not believe that he owed the late fee, so he did not send it. "16. At the hearing on this matter, the witnesses' testimony varied regarding what Ms. Uhl stated during the telephone conversation. Based on all the evidence presented to the hearing panel, the hearing panel concludes that Ms. Uhl informed the respondent that the Supreme Court had suspended the respondent's license to practice law. Ms. Uhl asked the respondent if he had received the order of suspension. The respondent indicated that he had not received the order of suspension. Thus, despite the fact that the respondent had not yet signed for the certified mail, he had actual knowledge that his license was suspended on October 14, 2015. "17. After the respondent's license to practice law was suspended, the respondent continued to practice law in multiple cases, as detailed below. "18. G.M., E.M., and El.M. rented property from C.W. C.W. asserted that .... G.M., E.M., and El.M. failed to timely pay their rent. As a result, C.W. filed an eviction suit against G.M., E.M., and El.M. Carol Hall represented C.W. in the eviction action. The respondent represented G.M., E.M., and El.M. in the eviction action. "19. Additional difficulties arose between the parties, and C.W. filed a protection from stalking case against G.M., Leavenworth County District Court Case No. 2015-DM-828. G.M. then filed a protection from stalking case against C.W., Leavenworth County District Court Case No. 2015-DM-854. Robert H. Hall, Carol Hall's husband and law partner, represented C.W. in the protection from stalking cases. "20. On October 14, 2015, the Honorable Michael D. Gibbens held a hearing in the eviction case at 1:00 p.m. While the respondent was in the courtroom shortly before 1:00 p.m., he left the courtroom and went into the hallway to look for his clients just before the case was called. G.M., E.M., and El.M. arrived and met with the respondent regarding the eviction case. "21. The judge called the case. G.M., E.M., and El.M. did not appear. Additionally, the respondent was not in the courtroom when the judge called the case. As a result, the court entered default judgment and a writ for possession of the premises in favor of C.W. The respondent returned to the courtroom and requested that the court set aside the default judgment. The judge told the respondent that he would have to file a written motion to set aside the default judgment and writ. "22. Even though the respondent knew prior to the time of the hearing that his license to practice law had been suspended, the respondent did not inform opposing counsel, the court, or his clients. "23. The writ for possession of the premises was served on the respondent's clients. The writ directed the respondent's clients to vacate the premises prior to October 20, 2015, at 11:00 a.m. The order provided that the sheriff's office would remove them at that time if they had not vacated the premises. "24. On October 15, 2015, the day after the respondent had actual knowledge of the suspension, the respondent entered his appearance on behalf of V.S., in Johnson County District Court, case number 15CV6206. The respondent sought and obtained a continuance of a hearing that was set for that day. The respondent failed to inform the court, opposing counsel, or his client that his license to practice law had been suspended. "25. At the time of the suspension, the respondent represented B.M., a respondent in a domestic case filed in Leavenworth County District Court, case number 2015-DM-356. Lawrence Henderson represented the opposing party. Previously, a status conference had been scheduled for October 15, 2015. The respondent and Mr. Henderson agreed to continue the status conference to October 28, 2015. "26. On October 17, 2015, at 9:23 a.m., the respondent signed the certified mail receipt for the suspension order. According to the respondent, the respondent wrote a check in the amount of $100 payable to the Clerk of the Appellate Courts. The Clerk of the Appellate Courts did not receive a check from the respondent dated October 17, 2015. "27. On October 17, 2015, the respondent served a motion to set aside order for immediate possession and a memorandum in support of motion to set aside order for immediate possession in the eviction action filed against G.M., E.M., and El.M. on C.W. On October 19, 2015, the respondent filed those pleadings in court. Later that same day, the respondent sought and obtained an ex parte temporary order setting aside the writ of immediate possession. At the time he served and filed the pleadings and sought the ex parte order, the respondent did not inform his clients, opposing counsel, or the court that his license had been suspended. "28. Prior to the suspension of the respondent's license to practice of law, the respondent represented R.G. in a domestic case pending in Leavenworth County District Court, case number 2014-DM-904. Pamela Burton represented the opposing party in that case. On October 17, 2015, the respondent served discovery responses in R.G.'s case on Ms. Burton. The respondent filed pleadings in that case on October 19, 2015. The respondent did not inform his clients, opposing counsel, or the court that his license to practice law had been suspended. "29. On October 19, 2015, the respondent met with G.M., E.M., El.M., and a deputy with the Leavenworth County sheriff's office about the October 20, 2015, deadline in the writ. Again, the respondent did not inform his clients that his license to practice law had been suspended. "30. Previously, the court scheduled a hearing in the protection from stalking cases for October 19, 2015. Prior to the hearing, Mr. Hall saw the respondent at the courthouse. Later, Mr. Hall memorialized the exchange as follows: 'Carol: 'This morning at approximately 10:45 am I went through security at the Justice Center on my way to the PFS hearing concerning the [C.W. and G.M.] PFS case. Mr. Holmes was sitting on the bench just east of the security entrance. After I passed through security I went over to Mr. Holmes to see if he was going to represent [G.M.] in the PFS case. He indicated he was going to represent her and had told her to ask for a continuance since he was waiting for a ride from his wife, due to his car having broken down. 'He launched into speaking about the eviction case where you are representing [C.W.]. He said he had filed a motion to set aside the writ that was issued and had already spoken with Judge Gibbons [sic ] as well as the sheriff's office. I asked him for a copy of the motion that he filed and told him that you had not received it. He said he "sent it up" and did not have a copy. I handed him a copy of the Order For Immediate Possession that you gave me to give to him. I told him you had tried to fax it, but without success; he said you had to call first, then indicate (I think to his secretary) that you wanted to send a fax, then fax it. He acknowledged having received it by email from you. 'He suggested that the PFS cases should be continued until his client could get moved out. I told him that was a good idea and we agreed on November 16, 2015 for the new date in the PFS cases. I told him I would convey that to Judge Dawson and I did so about 15 minutes later. He indicated that his client had tried to rent another place, but had been declined because on (sic) the pending eviction case. ... We agreed it would facilitate resolution for his client to get moved out-the sooner, the better-and that, hopefully, we could then resolve the PFS cases by agreement.' "31. When Mr. Hall appeared before Judge Dawson to seek and obtain a new hearing date in the two protection from stalking cases, Mr. Hall referenced the agreement with the respondent. The respondent, however, did not appear in court. The respondent did not inform his clients, Mr. Hall, or the court that the respondent's license had been suspended. "32. On October 19, 2015, the court entered orders continuing the protection from stalking cases to November. In the orders, the respondent is listed as G.M.'s counsel. "33. During the afternoon hours of October 19, 2015, Ms. Hall emailed the respondent to set a date for a hearing in the eviction action. In the email, Ms. Hall proposed several dates, including October 23, 2015. The respondent called Ms. Hall and agreed to an expedited hearing on October 23, 2015, at 11:00 a.m. The respondent did not tell Ms. Hall that his license was suspended. "34. At the time his license was suspended to practice law, the respondent represented G.B. in an appeal from a municipal court conviction, Leavenworth County District Court case number 2015-CR-573. Previously, the court had scheduled a trial for October 20, 2015. On October 20, 2015, the respondent sought and obtained opposing counsel's consent and continued the trial to November, 2015. The respondent did not inform opposing counsel, the court, or his client that his license to practice law was suspended. "35. On October 22, 2015, the respondent wrote a check in the amount of $100 payable to the Clerk of the Appellate Courts. The respondent delivered the check to the Clerk of the Appellate Courts. "36. On October 22, 2015, the respondent called Ms. Hall and left a message asking Ms. Hall to call him regarding the eviction case. Ms. Hall replied to the message by email that same day asking the respondent to draft an agreement. "37. On October 23, 2015, the Leavenworth County District Court Administrator informed Judge Michael D. Gibbens that the respondent's license to practice law was suspended. The hearing in the eviction action was scheduled to be heard in Judge Gibbens' court at 11:00 a.m. that day. "38. Ms. Hall had several hearings before Judge Gibbens on October 23, 2015, prior to the 11:00 a.m. setting. Before the 11:00 a.m. hearing, Judge Gibbens informed Ms. Hall the respondent's license to practice law was suspended. "39. The respondent arrived for the hearing shortly before 11:00 a.m. and entered the courtroom. The respondent approached Ms. Hall and asked her to come to speak with him in the hallway. In the hallway, the respondent told Ms. Hall that his license to practice law was suspended. The respondent told Ms. Hall that he had just learned of the suspension a day or so prior and was reluctant to leave a phone message to that effect. The respondent asked Ms. Hall to cancel the 11:00 a.m. hearing and to agree to allow his clients until the following Monday to vacate the premises. The respondent's clients were not present. "40. Ms. Hall informed her client of the respondent's offer. Her client declined the offer. Shortly after 11:00 a.m., on October 23, 2015, Judge Gibbens entered the courtroom. The respondent was in front of the bar at counsel table when the following exchange occurred: 'JUDGE GIBBENS: Be seated. All right, Mr. Holmes, before I call this case, the Court's been advised that you were administratively suspended from the practice of law effective October the 6th. 'MR. HOLMES: Right. I became aware of that in the last few days. 'JUDGE GIBBENS: Okay. Have you been reinstated yet? 'MR. HOLMES: I've done everything I can. I've actually been advised it's been processed and it should be effective Monday. 'JUDGE GIBBENS: Okay. Well, you can't appear here today. 'MR. HOLMES: I understand. I've been advised by the Disciplinary Administrator the thing I need to do is to show up and let the Court know that, let opposing counsel know that. I would have let my client know that but I can't get a hold of them and they're not present. 'JUDGE GIBBENS: All right. 'MR. HOLMES: But I will be doing that. And I have discussed the matter with Ms. Hall. 'JUDGE GIBBENS: All right. You may withdraw then. Thank you. 'MR. HOLMES: Thank you.' "41 After the respondent left the courtroom, the court entered a default order for immediate possession and issued a writ against the respondent's clients to vacate the premises. "42. Later that day, October 23, 2015, the respondent came to Ms. Hall's office to deliver a client file to Mr. Hall in an unrelated case. Ms. Hall came to the reception desk and took the file from the respondent. The respondent began to discuss the eviction action with Ms. Hall. Because the respondent was not licensed to practice law, Ms. Hall told the respondent that he needed to leave. "43. On October 23, 2015, the respondent sent a letter to the disciplinary administrator, self-reporting his conduct. The respondent's letter provided: 'Please be advised that in the hopes of compliance with the rules of professional conduct, I am providing notice of a handful of matters in which I appeared in Court to represent clients which occurred apparently after the entry of an order regarding but prior to my notification of an administrative suspension. 'Pursuant to the Supreme Court Rules regarding annual registration, I mailed my Attorney Registration documents and fees on the 29th day of July, 2015. I had anticipated they would be received on or before the 31st day of July, 2015, in time to renew my registration before being deemed late. However, a few weeks later, I received a notice by certified mail that my registration renewal documents were not processed until Monday, August 3rd, 2015, and were therefore deemed late. 'I thereafter attempted to contact the registration office to object and/or to request a further explanation for the late fee. I cannot recall the precise date of the call but believe it was in late August. In any event, I had hoped to avoid having to send the late fee if I could receive a better explanation for the delay and possibly have the determination reversed. I did not receive a follow-up response from the registration office, and admittedly I waited to follow up on the issue until thirty (30) days had lapsed. 'Nevertheless, I again called and poke [sic ] with the registration clerk about the same issue, I believe on October 14th, and was advised the registration office could provide me no precise explanation for the processing delay but that it was possible the registration renewal documents were either received late, or they had been received on time but were left in the lock box until they could be processed after the weekend of August 1st and 2nd, 2015. I was then informed that I would be contacted by an individual who could better explain or resolve the matter the following day; however, as of this date I have received no such contact. 'Although I was aware that it had been more than thirty (30) days since I had been notified of the late fee issue, I ultimately prepared and mailed the late fee payment with the additional form to the registration office the same day. I had hoped that despite the delay, I might be able to avoid an administrative suspension. In over twenty (20) years of practice, I have never incurred this issue and so I was uncertain as to how the entire process worked. 'Unfortunately, I received notice of the suspension a few days later on October 17th, 2015. After reviewing the information, I immediately prepared and sent the reinstatement fee. I also sent the Continuing Legal Education reinstatement fee. I only learned after sending the reinstatement fee, that it had been received by the registration office but that they had not received the late fee I had mailed days earlier. Accordingly, I immediately wrote and delivered another check for the late fee. Accordingly, I have undertaken all action to reinstate my license, which by this time may already be reinstated or, as I have been advised, should be reinstated imminently. However, as of the current date, I still have no knowledge as to whether the late fee sent nearly a week and a half ago was ever received, which further concerns me given the original delay in having the initial renewal fee payment processed. 'In any event, to my knowledge, there are no other impediments to my license other than the late payment fee issue, and the delay was largely occasioned as a result of the fact that I did not believe I [sic ] payment would be received late in the first place, and my admitted stubbornness over the issue. 'I understand that an administrative suspension order was issued on October 5th or 6th, 2015; however, it was only after I received the notice of suspension that I became aware it had actually been issued. As such, after the order was issued but prior to my notice thereof I admittedly appeared in state court to represent clients on a handful of occasions. The first occasion was October 6th, 2015, in Leavenworth County, ... The matter concerned a Motion to Determine Child Support Arrearages which I had filed some months earlier. The hearing merely consisted of notification to the Court that the parties had reached a previously negotiated agreement. The second hearing was on October 7 in two related child in need of care cases also in Leavenworth County. My client did not appear, and the matters were essentially continued until the month of November. The third matter was another child in need of care case held in Johnson County on October 8th, 2015, where I merely appeared and indicated my intention to withdraw and was excused by the Court. The fourth hearing ... was held on October 15th and considered a temporary protection order which had been initially filed on a Pro Se basis ... who asked that I appear on her behalf at the hearing. [She] had also filed a Motion to Modify Custody in a companion domestic case which she also wished me to handle but which was not scheduled at that time. The hearing was continued and the Judge expressed his intention to appoint a Guardian Ad Litem to represent the interests of the children for whom the temporary protection order had been issued. The final hearing involved the sentencing ... on October 16th, in Olathe Municipal Court. The sentencing was based upon a plea and sentencing agreement which had been negotiated earlier. 'I would not have appeared in any of these hearings had I actually been aware of the administrative suspension, and I have not appeared in any further hearings since [having] been notified of the administrative suspension. In addition, there have been no formal disciplinary proceedings filed in the State of Kansas against me at any time and to my knowledge there are no matters pending. 'Should you have any questions regarding this matter please fee [sic ] free to contact me.' "44. The respondent included false information in his October 23, 2015, letter to the disciplinary administrator. See ¶ 65. "45. On October 26 or 27, 2015, the respondent called Mr. Henderson and asked if he would agree to continue the October 28, 2015, hearing scheduled in G.M.'s case. The respondent explained that he needed the continuance because his daughter was getting married in Idaho on October 28, 2015. The respondent did not disclose that his license to practice law was suspended. However, Mr. Henderson had previously learned that the respondent's license was suspended. Mr. Henderson did not agree to the continuance, because he was concerned that by agreeing to the continuance he would be aiding the respondent in the unauthorized practice of law. "46. On October 27, 2015, Kate Baird, deputy disciplinary administrator, responded to the respondent's letter self-reporting the misconduct. In the letter, Ms. Baird believing that the respondent has not practiced law after learning of the suspension order, told the respondent that she would hold the matter and asked the respondent to provide her with written notification when his license was reinstated. "47. On October 28, 2015, [the] Supreme Court issued an order reinstating the respondent's license to practice law in Kansas. "48. On November 6, 2015, the respondent notified the disciplinary administrator that his license had been reinstated. In that letter, the respondent disclosed additional misconduct, as follows: 'Thank you for your letter dated October 27th, 2015. Per your request, I am advising that I received the reinstatement order and was reinstated to practice on October 28th and have resumed practice. 'I should also advise in connection with my prior letter that I had also prepared and filed a few pleadings after the October 6th, 2015, period of suspension. As you may recall, I did not receive any notice thereof until late afternoon of [the] 17th of October. 'In a Johnson County divorce case No. 15-CV-6299 I entered an appearance and submitted an Answer to a Petition and a Motion to Set-Aside Temporary Orders on or about October 14th; however, this was prior to my receipt of the notice of suspension and upon my subsequent notification of the suspension, I appeared in person at a previously scheduled hearing the following week and advised the Court and counsel as well as my client of the suspension. The hearing was then continued for a few weeks. 'I also prepared and filed a Motion to Set-Aside [sic ] a Default Judgment in a Leavenworth County wrongful detainer case No. 2015-LM-952. The Motion was also prepared and signed prior to the time I received my notice, but it was received by the Court Clerk and filed the following Monday and thereafter scheduled by the Court for an expedited hearing to take place on the 23rd of October. Nevertheless, on that date I appeared in Court just prior to the time scheduled for the hearing and notified the Court and Counsel of my administrative suspension. I had been unable to reach my clients prior to that time who, I later learned, were actually in the process of relocating from the residence which was the subject of the action and could not be reached by telephone. Nevertheless, the matter proceeded to a second default after I was excused from the Courtroom by the Court. 'In addition, I received answers from my client by e-mail to a series of discovery requests in Leavenworth Case No. 2014-DM-904. I prepared a formal discovery response which was e-mailed to opposing counsel on October 9th. The discovery answers were later signed by me and verified by my client also prior to my receiving notice of the suspension, but they were deposited in the mail, together with several items of personal mail, the day after I had received notice. I have no excuse for having these items mailed out after I had received notice other than the fact that they had been prepared and included a couple of days earlier together with a large stack of personal mail all of which was sent out at the same time. This was an oversight on my part and was not intentional as it would have been just as easy to have waited to send the discovery answers out until the following week after I received the reinstatement. 'In a criminal case, Leavenworth County Case No. 15-CR-573, a court trial had been scheduled several weeks earlier to take place on the 21st of October. I was unable to contact the Judge to notify him of my administrative suspension; however, with the consent of opposing counsel the matter was continued prior to the day of the trial and rescheduled for [the] 17th day of December. 'I submitted no other pleadings of which I am aware, nor did I appear at any other hearings about which I have not previously advised your office. I can say, if there were any such additional matters to speak of, I can represent that none of them were conducted after my receipt of the notice of suspension. 'Should you have any questions regarding this matter, please [feel] free to contact me.' "49 The respondent's November 6, 2015, letter to the disciplinary administrator's office contained false information. See ¶ 66. "50. On November 4, 2015, Ms. Hall filed a complaint with the disciplinary administrator regarding the respondent's unauthorized practice of law. "51. On November 16, 2015, Ms. Burton filed a complaint with the disciplinary administrator regarding the respondent's unauthorized practice of law. "52. On December 3, 2015, the respondent wrote to the disciplinary administrator's office, responding to Ms. Hall's complaint and Ms. Burton's complaint. In the respondent's correspondence to the disciplinary administrator's office, the respondent again made false statements. "53. In the respondent's December 3, 2015, letter to the disciplinary administrator's office, the respondent admitted that he violated KRPC 3.3 (by omission), KRPC 3.4(c), and KRPC 5.5. "Conclusions of Law "54. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Rule 218, as detailed below. " KRPC 1.4 "55. KRPC 1.4 provides: '(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. '(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' "56. The respondent violated KRPC 1.4 by failing to inform his clients that his license to practice law had been suspended. Because the respondent failed to notify his clients of the suspension of his license, his clients were not able to make informed decisions regarding the representation. The hearing panel concludes that the respondent violated KRPC 1.4. " KRPC 1.16 "57. After the respondent's license to practice law was suspended, the respondent owed certain obligations to his current clients. Specifically, KRPC 1.16(a)(1) provides: 'Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if ... the representation will result in violation of the rules of professional conduct or other law.' "58. In this case, despite that his license to practice law was suspended, the respondent continued to represent his clients and did not withdraw from the representations as required by KRPC 1.16(a)(1). As such, the hearing panel concludes that the respondent violated KRPC 1.16(a)(1). " KRPC 5.5 "59. KRPC 5.5(a) prohibits the unauthorized practice of law. Additionally, Rule 208(e) provides that 'the practice of law after suspension constitutes a violation of KRPC 5.5 'and Rule 218(c) provides that '[i]t is the unauthorized practice of law and a violation of KRPC 5.5 for ... a suspended ... attorney to practice law after the Supreme Court enters an order suspending ... the attorney.' "60. In his December 3, 2015, letter, the respondent admitted to intentionally practicing law at a time when his license to do so had been suspended: '... That being said, I fully admit that the Motion and Memorandum were later filed the morning of October 19th, 2015. These were filed along with a Certificate of Service for some discovery answers which had originally been emailed to opposing counsel on October 9th, 2015. 'I found myself caught in a proverbial Catch 22 situation, and I acted as I believed was in my client's and not my own best interests at the time.' "61. On October 6, 2015, the Supreme Court issued an order suspending the respondent's license to practice law. After the Supreme Court suspended the respondent's license to practice law, the respondent continued to practice law. In addition to the matters disclosed in his October 23, 2015, self-report letter, the respondent also engaged in the following unauthorized practice of law: a. On October 14, 2015, the respondent met with G.M., E.M., and El.M. regarding the eviction case. The respondent requested that the judge set aside the default judgment and the writ for possession of the premises. See ¶¶ 20, 21. b. On October 15, 2015, the respondent entered his appearance on behalf of V.S. and obtained a continuance of a hearing that was set for that day. See ¶ 24. c. On October 15, 2015, the respondent discussed his representation of B.M. with Mr. Henderson and entered into an agreement to continue the status conference set that day. See ¶ 25. d. On or after October 14, 2015, the respondent drafted a motion and memorandum to set aside the order for immediate possession. On October 17, 2015, the respondent served a motion and memorandum to set aside the order for immediate possession in the eviction case against G.M., E.M., and El.M. See ¶ 27. e. On October 17, 2015, the respondent served discovery responses on the opposing party in R.G.'s case. See ¶ 28. f. On October 19, 2015, the respondent filed pleadings in R.G.'s case. See ¶ 28. g. On October 19, 2015, the respondent filed the motion and memorandum to set aside the order for immediate possession in the eviction case. The respondent also sought and obtained an ex parte order granting his motion to set aside the order for immediate possession. See ¶ 27. h. On October 19, 2015, the respondent met with G.M., E.M., and El.M. regarding the deadline in the writ[ ]for immediate possession. See ¶ 29. i. On October 19, 2015, the respondent discussed the eviction case and the PFS cases with Mr. Hall. See ¶ 30. j. On approximately October 19, 2015, the respondent spoke with Ms. Hall regarding the eviction case and agreed to a hearing date of October 23, 2015. See ¶ 33. k. On October 20, 2015, the respondent sought and obtained opposing counsel's agreement to continue a trial scheduled for that day to November, 2015, in a case involving G.B. See ¶ 34. l. On October 22, 2015, the respondent called Ms. Hall regarding the eviction case. See ¶ 36. m. On October 23, 2015, the respondent asked Ms. Hall to continue the hearing set in the eviction case. See ¶ 39. n. On October 23, 2015, [the respondent] appeared in Judge Gibbens court for the eviction hearing. See ¶ 40. o. On October 23, 2015, the respondent went to Mr. and Ms. Hall's law office. The respondent delivered a client file to Mr. Hall. The respondent attempted to discuss the eviction action with Ms. Hall. See ¶ 42. p. On October 26 or 27, 2015, the respondent contacted Mr. Henderson regarding G.M.'s case, seeking an agreement to a continuance of a hearing scheduled for October 28, 2015. See ¶ 45. "62. Because the respondent continued to practice law after his license was suspended, the hearing panel concludes that the respondent violated KRPC 5.5(a). " KRPC 8.1 and KRPC 8.4(c) "63. Engaging in dishonest conduct is a serious violation of the Kansas Rules of Professional Conduct. KRPC 8.1 prohibits engaging in dishonest conduct in connection with a bar application or a disciplinary matter: 'An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.' KRPC 8.4(c) prohibits dishonest conduct generally. 'It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' "64. The respondent sent three letters to the disciplinary administrator's office regarding his conduct in this case. In each of the letters, the respondent made misrepresentations and omitted material information necessary to prevent a misapprehension of the facts. "65. The respondent's October 23, 2015, letter included false statements: a. The respondent stated, 'However, a few weeks later, I received a notice by certified mail that my registration renewal documents were not processed until Monday, August 3rd, 2015, and were therefore deemed late.' The respondent's statement is false. He received the certified mail five days after his registration was received, on August 8, 2015. b. The respondent asserted that he mailed a check on October 14, 2015: 'Nevertheless, I again called the poke [sic ] with the registration clerk about the same issue, I believe on October 14th, ... 'Although I was aware that it had been more than thirty (30) days since I had been notified of the late fee issue, I ultimately prepared and mailed the late fee payment with the additional form to the registration office the same day.' However, during his testimony on this same subject, he testified: 'It was also my understanding that the first part of October there would be-the suspensions would be processed at some time after that, and come the first week in October I had kind of a come to Jesus moment, so to speak, and basically thought I better get my late fee out. In fact, I did so. That would have been-it's referenced in Respondent's Exhibit No. 1. It would have been check No. 2254. 'What's interesting about this is, in fact, while all of the checks before and after 2254 were processed, 'um, that particular check was not, and that would have been the late fee. 'Um, and I don't know what happened to it. That, I cannot account for. .... 'As a consequence that-the late fee check would have been mail[ed]. And, again, I'm not certain of the date, but somewhere between the 9th, 10th, at the latest, at the very latest the 13th of October of 2015. 'That would coincide with the telephone call that I made to the registration office having sent the check out, and basically trying to, I guess, kind of intercept it. ... The late fee had been sent, but I was hoping that I could avoid negotiating it.' Either the respondent's statement in his letter that he mailed the check 'the same day' as his October 14, 2015, conversation with the attorney registration office or his statement that he mailed it between October 9, 2015, and October 13, 2015, must be false. c. The respondent's statement that he had 'not appeared in any further hearings since being notified of the administrative suspension' was also false, as the respondent appeared in court the same day he forwarded his self-report letter to the disciplinary administrator's office. d. Finally, despite the date of the respondent's letter, the respondent failed to disclose his extensive unauthorized practice of law which occurred October 17, 2015, through October 23, 2015. For example, as later disclosed in his December 3, 2015, correspondence: '... That being said, I fully admit that the Motion and Memorandum were later filed the morning of October 19th, 2015. These were filed along with a Certificate of Service for some discovery answers which had originally been emailed to opposing counsel on October 9th, 2015.' Moreover, the respondent also engaged in the unauthorized practice of law as detailed in ¶¶ 21-42 above. In this regard, the respondent's letter is false by omission. "66. The respondent's November 6, 2015, letter also contained false information: a. The respondent stated that he did not receive notice of the suspension until late afternoon on October 17, 2015. First, the respondent was on notice beginning in August that his license would be suspended if he failed to pay the late fee. Second, Ms. Uhl told the respondent on October 14, 2015, that his license was suspended. Third, on October 13, 2015, the United States Postal Service attempted to deliver the order of suspension. Finally, on October 17, 2017, at 9:23 a.m., the respondent signed for the certified mailing which contained the order of suspension. b. The respondent stated that he advised the court that his license to practice law had been suspended. The respondent did not advise the court; rather the court advised the respondent that the court learned that the respondent's license had been suspended. "67. Finally, the respondent made false statements in his December 3, 2015, letter to the disciplinary administrator: a. The respondent falsely stated, '[w]eeks later I learned the reinstatement had not been processed until August 3rd.' The respondent signed for a certified mailing on August 8, 2015, which included information notifying the respondent that his registration was late and a late fee was required. b. The respondent also stated, 'I prepared and mailed the late fee I believe either the first full week or the first of the second full week in October.' Either this statement is false or the respondent's statement in Exhibit 1 that he mailed a check to cover the late fee the same day he spoke to the registration clerk (October 14) is false. See ¶ 65(b) above. c. The respondent's statement that 'the notice came as a somewhat unexpected surprise to me at the time,' is at least disingenuous, if not actually false. First, he is charged with knowing the rules which govern our profession. Second, he received a notice on August 8, 2015, that his license would be suspended if he did not forward a late fee within 30 days, which he knew he did not [d]o. Third, Ms. Uhl told the respondent[ ] his license was suspended on October 14, 2015. d. The respondent stated: '... Prior to the hearing, I formally advised the [sic ] Judge Gibbens of the administrative suspension, and he asked me if I had been reinstated, I informed him that to my knowledge the reinstatement order had not been issued but that based upon my previous conversations with the registration office it would probably be reinstated the following Monday, October 26th, 2015.' And, 'I would also note that I did notify the Court and counsel of the administrative suspension on October 23rd, 2015, with the understanding at the time that they were not aware.' Again, the respondent did not notify Judge Gibbens of the suspension. Rather, at the outset of the October 23, 2015, hearing, Judge Gibbens informed the respondent that he had been informed that the respondent's license to practice law was suspended. "68. Accordingly, the hearing panel concludes that the respondent repeatedly made false statements in his letters to the disciplinary administrator's office in violation of KRPC 8.1 and KRPC 8.4(c). " KRPC 8.4(d) "69. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). "70. The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to inform the courts, opposing counsel, and his clients that his license to practice law had been suspended. Additionally, hearings were postponed and clients, opposing counsel, and courts were burdened with needless appearances and extensions of time. Moreover, the respondent engaged in conduct that is prejudicial to the administration of justice when he filed pleadings and appeared in court on behalf of clients after his license to practice law was suspended. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d). " Rule 218 "71. After an attorney's license has been suspended by the Supreme Court, the attorney is required, by court rule, to take certain action: '(a) Attorney's Duty. When the Supreme Court issues an order or opinion suspending or disbarring an attorney or striking the attorney's name from the roll of attorneys, the attorney must, within 14 days of the order or opinion: (1) notify each client, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law and the client should obtain new counsel; (2) notify all opposing counsel, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law; (3) notify all courts where the attorney is counsel of record and the chief judge of the district in which the attorney resides, in writing, that the attorney is suspended, disbarred, or is no longer authorized to practice law; (4) file a motion to withdraw in each case in which the attorney is counsel of record ....' "72. In this case, the respondent failed to notify each client in writing that his license to practice law was suspended, in violation of Rule 218(a)(1). Additionally, the respondent also failed to notify all opposing counsel in writing that his license to practice law was suspended, in violation of Rule 218(a)(2). (The only time the respondent notified anyone of the suspension was on October 23, 2015, when the respondent albeit untimely, orally notified Ms. Hall that his license to practice law had been suspended.) The respondent failed to notify all courts where the respondent was counsel of record and the chief judge of the district where the respondent resides that his license to practice law was suspended, in violation Rule 218(a)(3). Finally, the respondent likewise failed to file motions to withdraw in each case in which the respondent was counsel of record, in violation of Rule 218(a)(4). The hearing panel concludes that the respondent repeatedly violated Rule 218(a)(1), Rule 218(a)(2), Rule 218(a)(3), and Rule 218(a)(4). "American Bar Association Standards for Imposing Lawyer Sanctions "73. 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. "74. Duty Violated . The respondent violated his duty to the public and the legal profession to maintain his personal integrity. The respondent also violated his duty to his clients and to the legal system to proper[l]y communicate. Finally, the respondent violated his duty to the legal system to comply with court rules. "75. Mental State . The respondent knowingly violated his duties. "76. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to his clients, opposing counsel, courts, and the administration of justice. "77. 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 two occasions. On July 25, 2005, the Idaho Supreme Court suspended the respondent's license to practice law in the State of Idaho for a period of 15 months. Following 11 months of actual suspension, respondent was placed on probation for a period of one year, for having violated Rule 1.1, Rule 1.3, Rule 1.4, Rule 1.7(b), and Rule 8.4(c). On December 31, 2013, the disciplinary administrator informally admonished the respondent for having violated KRPC 8.4(d). b. Dishonest or Selfish Motive. The respondent's misconduct was motivated by dishonesty and selfishness as he provided false and self-serving information to the disciplinary administrator's office. Further, the respondent has minimized his misconduct throughout these proceedings. Accordingly, the hearing panel concludes that the respondent's misconduct was motivated by dishonesty and selfishness. c. A Pattern of Misconduct. The respondent repeatedly provided false and misleading information to the disciplinary administrator's office regarding his knowledge of the suspension and the extent of his unauthorized practice of law. Thus, the respondent has engaged in a pattern of misconduct. d. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Rule 218. Accordingly, the hearing panel concludes that the respondent committed multiple offenses. e. Submission of False Evidence, False Statements, or Other Deceptive Practices during the Disciplinary Process. In his written correspondence to the disciplinary administrator's office during the investigation as well as throughout the disciplinary proceedings, the respondent misrepresented facts stated and omitted facts necessary to prevent a misapprehension of the facts. During his closing argument, the respondent acknowledged that he has emotional difficulty handling the truth: 'With respect to the conversation with Ms. Uhl, I didn't call because I received notice, I called because I had sent out a late fee. Whether you choose to believe that or not, you're going to believe what you believe, but that was the purpose of the conversation. I think it could be interpreted either way, but I was calling to say, you know, I sent in a late fee, I'm trying to avoid the late fee before suspension comes out, is there a way for me to deal with this? I haven't gotten a suspension order, but I'd like to be able to deal before I do. .... '... I-in hindsight, hindsight is 20/20, there's a lot of things I could have done. But when you're in the moment, you act, sometimes in desperation, sometimes out of panic. You don't set out to do anything wrong. You don't set out intentionally-this wasn't like I was going in to rob a bank, any plan like that. This is something that came as a bit of a surprise, and I tried to protect my client. I was acting in their behalf. At least that was my intention. This was not something I was doing for myself. 'I was dishonest with regards to acting on behalf of my client where I knew that the license had been suspended, but the prior week it was more negligent. This wasn't something that I actually knew. It's something that I should have known, perhaps should have made myself aware of, should have thought through. Again, hindsight is 20/20, and you kick yourself every time you think of what should have happened. 'I didn't appreciate the effect that it would have [on] my clients. I think, perhaps, the full extent not even until today. 'Um, I don't know how much more my clients would have done, or could have done, had they known any sooner, but I didn't tell them early enough. And we're talking about days here. This is not something that was a long period of time. From beginning to end, we're talking about a couple weeks. And so that period, yeah, I didn't act as I should have. And there are things I could have done proactively weeks earlier, as I've indicated. 'Do I acknowledge, absolutely. Did I acknowledge everything at the time that I sent in some self-reports, probably not. Again, it was my way of dealing with it. I didn't-I simply couldn't do everything, say everything. 'Um, it came out in fits and spurts. 'Um, it's still coming out. I didn't make what I perceived to be a material misrepresentation in any of those reports. There's no flat out lie anywhere. Did I under report? I did. And I think that was, again, not because I was out to do that, but because I simply had difficulty emotionally handling it. 'One thing that I need to be clear on, 'um, and then I think it came out, I did indicate, in those reports, that I had told Judge Gibbens that I had been suspended. This is not something that I was out to misrepresent. That was simply my recollection. 'Um, turns out I was mistaken, but this was not an intentional misrepresentation. And I think, again, it was based upon what was my intention of going in.' The hearing panel would like to point out that the respondent acknowledged that he (unintentionally) misrepresented reporting to the court that he was suspended. The respondent minimized this misrepresentation by stating that he was simply mistaken. The appearance before the court occurred on October 23, 2015. In his November 6, 2015, supplemental self-report, the respondent stated: '[O]n that date I appeared in Court just prior to the time scheduled for the hearing and notified the Court and Counsel of my administrative suspension.' A review of the transcript of the proceedings before Judge Gibbens shows that at the outset of the proceedings, the judge informed the respondent that he learned that the respondent's license was suspended and the judge did not allow the respondent to make an appearance. Whether the respondent informed the court is relevant under Rule 218(a). The hearing panel is troubled by this statement which serves as a repeated example of the respondent's continuous minimization of his misconduct. f. Substantial Experience in the Practice of Law. The Idaho Supreme Court admitted the respondent to practice law in the State of Idaho in 1991. Considering the prior Idaho suspension, at the time of the misconduct in this case, the respondent had been practicing law for approximately 25 years. The respondent has nine years of practice in Kansas. "78. 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 no mitigating circumstances present. "79. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: '5.11 Disbarment is generally appropriate when: ... (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious[ly] adversely reflects on the lawyer's fitness to practice. '5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law. '6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. '6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. '6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding. '6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury 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 injury or potential injury to a client, the public, or the legal system.' Unfortunately, the ABA Standards do not provide clear guidance in this case. The respondent's conduct fits in standards which indicate reprimand, suspension, and disbarment. "Recommendation of the Parties "80. The disciplinary administrator recommended that the respondent be suspended from the practice of law for no less than 6 months. "81. The respondent recommended that his plan of probation be adopted and that he be allowed to continue to practice law. The respondent also suggested that the hearing panel add additional terms to his plan of probation. "82. Because the respondent requested that he be placed on probation, the hearing panel must consider the provisions of Rule 211(g)(3). That rule provides: '(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 the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.' "83. While the hearing panel finds that the respondent timely filed his plan of probation, the hearing panel finds that the respondent's plan of probation is not workable, substantial, and detailed as required by the rule, in that the plan does not provide terms and conditions to ensure that the misconduct is not repeated and that his clients, the courts, and the legal system are properly protected. "84. The hearing panel also concludes that the plan of probation was not put into effect prior to the hearing by complying with each of the terms and conditions. "85. Additionally, the misconduct in this case cannot be corrected by probation. The hearing panel finds that the respondent's misconduct includes dishonest conduct. Previously, the Supreme Court found that probation is not appropriate when dishonest conduct is involved. In re Stockwell , 296 Kan. 860, 295 P.3d 572 (2013) (Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.). "86. Finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. "87. The respondent's written communications with the disciplinary administrator's office, at best contained material misrepresentations of fact and at worst, were deliberate attempts to hide the truth from the disciplinary administrator's office. By omitting a large number of relevant facts and by minimizing other facts, the respondent clearly made numerous false representations and inferences of material fact. Such conduct is unacceptable in a practicing attorney. During his closing argument, the respondent attempted to explain that these resulted from his emotional difficulty in acknowledging the truth in this case. See ¶ 77(e) above. "88. An attorney's word must be his bond. When an attorney cannot be trusted to be honest and complete in the recitations of facts, the attorney should no longer be entrusted with a license to practice law. "89. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of one year. The hearing panel further recommends that prior to reinstatement, the respondent be required to undergo a hearing pursuant to Rule 219. At the reinstatement hearing, the hearing panel recommends that the respondent provide clear and convincing evidence that he no longer has emotional difficulty handling the truth. "90. 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) (2018 Kan. S. Ct. R. 251). 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] ). Holmes was given adequate notice of the formal complaint, to which he filed an answer. He was also given adequate notice of the hearing before the panel where he appeared in person. Holmes filed exceptions to the final report of the panel on October 27, 2017. When exceptions are taken to a hearing panel report, "[t]his court does not reweigh the evidence or assess the credibility of witnesses. 'Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel's findings. If so, the findings will stand. [Citations omitted.]' " In re Hawkins , 304 Kan. 97, 117-18, 373 P.3d 718 (2016) (quoting In re Trester , 285 Kan. 404, 408-09, 172 P.3d 31 [2007] ); see In re Bishop , 285 Kan. 1097, 1105-06, 179 P.3d 1096 (2008). While Holmes filed exceptions to certain of the panel's findings of fact, he does not contest the panel's conclusions that he violated KRPC 1.4 (2018 Kan. S. Ct. R. 293) (communication); 1.16(a)(1) (2018 Kan. S. Ct. R. 333) (withdrawing from representation); 5.5(a) (2018 Kan. S. Ct. R. 363) (unauthorized practice of law); 8.1 (2018 Kan. S. Ct. R. 379) (false statement in connection with disciplinary matter); 8.4(c) (2018 Kan. S. Ct. R. 381) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. 262) (notification of clients upon suspension). Holmes concedes that the uncontested factual findings made by the panel are sufficient, standing alone, to establish each of these instances of attorney misconduct. Nonetheless, we will discuss each of the claimed exceptions in turn. Did Holmes have actual knowledge of his suspension on October 14, 2015? Holmes first asserts that "while he knew or should have known his license would be suspended for non-payment of the late fee in this matter, he nevertheless was not made aware of the order of suspension until ... October 17th, 201[5]." During the hearing, the disciplinary administrator introduced an October 14, 2015, email from Uhl to Jason Oldham timestamped at 10:48 a.m. The email stated Holmes had just called and was upset that he owed a late fee because he believed he mailed his registration information in plenty of time for renewal. The email also indicated Holmes said "he has not received his suspension notice yet." (Emphasis added.) During the hearing, Uhl testified in situations such as these, she ordinarily looks up the attorney on the computer to check his or her status. Although Uhl could not specifically recall if she told Holmes his license was suspended, she felt "very confident [she] would have," otherwise she would not have made this statement in the email. The evidence before the panel that Uhl affirmatively told Holmes that he was suspended during the phone call on October 14 was thin. But ultimately, Holmes' admission that he was aware of the suspension on October 17 is sufficient to establish the rule violations as found by the panel. Because the specific fact in contention-the substance of the October 14 phone call-is not necessary to any of the ultimate conclusions reached by either the panel or by this court, we disregard this factual finding without deciding whether it is supported by clear and convincing evidence. Did Holmes enter his appearance in a Johnson County case on October 15, 2015? Holmes next claims the panel's finding that he appeared on October 15 in Johnson County District Court case number 15CV6206 is "completely contrary to the evidence adduced at the hearing." But the disciplinary administrator correctly points out that Holmes has confused his appearance in the Johnson County case with his nonappearance in the Leavenworth County case on the same day. The electronic docket in the Johnson County case contains the judge's bench notes, which state Holmes appeared with his client and the case was continued to November 5, 2015. And during oral arguments before this court, Holmes again argued the panel erred by finding he appeared in Leavenworth County, though he conceded there may have been a misunderstanding regarding the county. He has confused the two hearings. The record contains clear and convincing evidence that supports the panel's finding. Did Holmes fail to notify his clients, opposing counsel, and courts of his suspension? Holmes also takes issue with the parenthetical statement made in paragraph 72 of the Amended Final Hearing Report: "(The only time the respondent notified anyone of the suspension was on October 23, 2015, when the respondent albeit untimely, orally notified Ms. Hall that his license to practice law had been suspended.)" Holmes claimed in his testimony that he told "a variety of clients" and "a number of attorneys what had happened." He restates this assertion in his brief but fails to provide a citation to the record supporting his claim. See Supreme Court Rule 6.02(a)(4) (2018 Kan. S. Ct. R. 35) ("The facts included in the statement must be keyed to the record on appeal by volume and page number. The court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal."). To the extent Holmes is relying on his testimony to controvert the panel's finding, he is simply asking the court to reweigh his testimony against the evidence presented by the disciplinary administrator, which is beyond the scope of this court's review. See In re Biscanin , 305 Kan. 1212, 1220, 390 P.3d 886 (2017). Regardless, Holmes concedes he failed to notify every court, client, and opposing counsel. He merely quibbles with the panel's characterization that he only notified one person. Thus he does not materially controvert the factual finding. See Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. 262-63) (requiring a suspended or disbarred attorney to notify "each" client, "all" opposing counsel, and "all" courts where the attorney is counsel of record of the suspension or disbarment in writing). Did Holmes engage in the unauthorized practice of law on October 23, 2015? Holmes next claims he did not engage in the unauthorized practice of law when speaking with Ms. Hall on October 23, 2015. Ms. Hall stated Holmes approached her in the courtroom that day and asked to discuss a case in the hallway. Once outside, she claimed Holmes asked her if they could continue the eviction case and agree that his clients would move out of the duplex on Monday. Ms. Hall told him she would have to discuss it with her client. Ms. Hall told her client that Holmes did not have a license to practice law. Thereafter, Ms. Hall secured a default judgment for her client. Later that day, Holmes appeared at Ms. Hall's office to deliver a file unrelated to the eviction case. Ms. Hall claimed Holmes asked about the status of the eviction case, and she responded that she could not talk about it and that he needed to leave. Holmes then tried to continue to discuss the case, and she reiterated that he needed to leave, so he left. On cross-examination, Holmes asked Ms. Hall about their conversation outside the courtroom: "[I]n fact, I didn't attempt to negotiate anything with you, did I? I simply advised you I had been contacted by [my clients], they were in the process of moving out. It was a courtesy to you, I was simply letting you know that they would be out, as I understood, that following Monday. Does that sound correct?" Ms. Hall answered: "No, it does not sound correct." The record contains clear and convincing evidence that supports the panel's finding that Holmes engaged in the unauthorized practice of law during his interaction with Ms. Hall on October 23 by engaging in settlement negotiations on behalf of his clients while his license was suspended. See In re O'Leary , 303 Kan. 456, 460, 462, 362 P.3d 1092 (2015) (attorney who engaged in settlement negotiations on behalf of client after the attorney's license was suspended violated KRPC 5.5 [a] ). Did Holmes make false statements and misrepresentations during the disciplinary process? Lastly, Holmes controverts the extent to which he submitted false or misleading statements during the disciplinary process. With one notable exception, he concedes he made the alleged statements and that those statements were either not true or were misleading, but he offers mitigating circumstances to explain those statements. The thrust of his argument appears to be that the misrepresentations arose innocently out of his poor memory rather than a knowing intent to deceive the panel. He attempted to explain his reasons as follows: "I-in hindsight, hindsight is 20/20, there's a lot of things I could have done. But when you're in the moment, you act, sometimes in desperation, sometimes out of panic. You don't set out to do anything wrong. You don't set out intentionally-this wasn't like I was going in to rob a bank, any plan like that. This is something that came as a bit of a surprise, and I tried to protect my client. I was acting in their behalf. At least that was my intention. This was not something I was doing for myself. "I was dishonest with regards to acting on behalf of my client where I knew that the license had been suspended, but the prior week it was more negligent. This wasn't something that I actually knew. It's something that I should have known, perhaps should have made myself aware of, should have thought through. Again, hindsight is 20/20, and you kick yourself every time you think of what should have happened. "I didn't appreciate the effect that it would have [on] my clients. I think, perhaps, the full extent not even until today. 'Um, I don't know how much more my clients would have done, or could have done, had they known any sooner, but I didn't tell them early enough. And we're talking about days here. This is not something that was a long period of time. From beginning to end, we're talking about a couple weeks. And so that period, yeah, I didn't act as I should have. And there are things I could have done proactively weeks earlier, as I've indicated. "Do I acknowledge, absolutely. Did I acknowledge everything at the time that I sent in some self-reports, probably not . Again, it was my way of dealing with it. I didn't-I simply couldn't do everything, say everything. 'Um, it came out in fits and spurts. 'Um, it's still coming out. I didn't make what I perceived to be a material misrepresentation in any of those reports. There's no flat out lie anywhere. Did I under report? I did. And I think that was, again, not because I was out to do that, but because I simply had difficulty emotionally handling it." (Emphasis added.) Before this court, Holmes admitted that his October 23, 2015, self-report letter violated KRPC 8.1. Moreover, regardless of Holmes' seemingly innocent explanations for other false or misleading statements, with only one exception discussed below, he does not contend his statements were actually true. Holmes admitted misleading statements during the disciplinary process are sufficient in themselves to support the panel's finding of a KRPC 8.1 violation. The only specific claim Holmes made that he continues to claim was actually true is his insistence that Uhl did not actually tell him he was suspended during the phone conversation on October 14. The disciplinary administrator alleged and the panel found this to be false. As already discussed above, we have noted that the record evidence concerning what was actually said during that phone call is thin. Uhl testified she did not recall the specific nature of the conversation. She could only testify to her ordinary practice on such calls. Because this specific factual finding is not necessary to support any of the rules violations found by the panel, we have disregarded it. We do take this opportunity to simply note that merely mounting a nonfrivolous defense against allegations of misconduct during an attorney discipline proceeding is insufficient, standing alone, to establish an additional rule violation, even if that defense is ultimately unsuccessful. Mitigating Circumstances "Mitigating or aggravating circumstances which affect the nature or degree of discipline to be imposed or recommended in a matter shall be fully set forth in the panel report." Supreme Court Rule 211(f) (2018 Kan. S. Ct. R. 252). In arriving at the appropriate discipline, the panel must consider the evidence presented as to aggravating and mitigating circumstances and determine the weight to be assigned to each. Hawkins , 304 Kan. at 142, 373 P.3d 718. On appeal, this court determines whether it agrees with the panel's findings regarding aggravating and mitigating circumstances. In re Kline , 298 Kan. 96, 220-21, 311 P.3d 321 (2013). Although the panel found no mitigating circumstances present, Holmes argues there are four: (1) his actions on October 23, 2015, were necessary to save his clients from eviction; (2) Holmes notified the courts and Ms. Hall of his suspension; (3) he "immediately undertook action to remedy" his suspension when he received notice of the order of suspension; and (4) he expressed remorse over his conduct. The unauthorized practice of law is not something this court takes lightly. And we remain unconvinced that Holmes comprehends the seriousness of his misconduct. Far from "helping" his clients by engaging in the unauthorized practice of law, Holmes' conduct hurt them if for no other reason than it hindered them from obtaining licensed counsel. Half measures to notify some people of a suspension while continuing to practice law without a license are not mitigating factors, but in fact demonstrate ongoing dishonesty and conduct that reflects adversely on an attorney's fitness to continue practicing law. As for Holmes' remorse, we are always inclined to give attorneys who seek second chances every benefit of the doubt. This is in large part why the court maintains a robust program for probation for disciplined attorneys. But Holmes has failed to fully avail himself of this opportunity. At the hearing, Holmes called Neal Fowles-an attorney from whom Holmes was renting office space-to testify. Fowles briefly testified that he would be willing to supervise Holmes during a period of probation. On cross-examination, however, it was revealed that Fowles was only generally aware of the facts of the disciplinary case, and he had not read the terms of the proposed probation plan. During the hearing before this court, Holmes admitted that although he had provided the panel with a plan of probation, he had not fully implemented it. Our rules provide that once a respondent provides the panel and disciplinary administrator a proposed plan of probation, he or she "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." Supreme Court Rule 211(g)(2) (2018 Kan. S. Ct. R. 253). In addition, Holmes did not file with this court an affidavit assuring us that he was fully complying with the terms of his probation plan. See Supreme Court Rule 211(g)(5). We do not find probation appropriate under these circumstances. Appropriate Discipline The hearing panel unanimously recommended that Holmes be suspended for one year. The disciplinary administrator recommended to the panel-and maintains before us now-that Holmes should be suspended for six months. Holmes believes suspension is too harsh and requests published censure or suspension with supervised probation. "This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases its disciplinary decision on the facts and circumstances of the violations and the aggravating and mitigating circumstances present. In re Johanning, 292 Kan. 477, 490, 254 P.3d 545 (2011). And although not mandated by our rules, this court and disciplinary panels '[h]istorically' turn to the ABA Standards for Imposing Lawyer Sanctions to guide the discipline discussion. See ABA Compendium of Professional Responsibility Rules and Standards (2012); see also In re Woodring, 289 Kan. 173, 180, 186, 210 P.3d 120 (2009) (discussing and applying ABA Standards); In re Rumsey, 276 Kan. 65, 78-79, 71 P.3d 1150 (2003) (citing and discussing ABA Standards). "Under the ABA Standards, four factors are considered in assessing punishment: (1) the ethical duty violated by the lawyer; (2) the lawyer's mental state; (3) the actual or potential injury resulting from the misconduct; and (4) the existence of aggravating and mitigating circumstances. See Rumsey, 276 Kan. at 78 [71 P.3d 1150] (listing the four components of the ABA Standards' framework); ABA Standard § 3.0." Hawkins , 304 Kan. at 140, 373 P.3d 718. The hearing panel found that the following aggravating circumstances were present: (1) prior disciplinary offenses; (2) dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple offenses; (5) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; and (6) substantial experience in the practice of law. During the hearing, Holmes was asked to describe his prior disciplinary offenses in Idaho, and he explained: "Well, we got to go back to the 1990s. In addition to my practice of law, I did have a side business, which I don't have anymore, and I wouldn't have anymore, 'um, and it was-basically, it was a portrait photographer. I had a very attractive client who had indicated to me that she was-she had-I think she had been a model, or mom had been a model, or something like that. Came out I was-I did the photography, and she approached me about taking pictures with her children and-that would be nude. 'Um, I agreed to that. In fact, eagerly. 'Um, and, you know, in hindsight, I think that this was probably something that was maybe in her head in a theoretical, but I pressed, you want to do this, you want to do this, you want to do this, and we did. It was a horrible incident. The kids were-she had twin boys that were infants and they were, 'um, not wanting any of this to happen. And, 'um, I was still interested in-in doing this, and I took pictures of her, as well as tried to get pictures with her and the boys. " 'Um, at first this was not something that caused a problem with her, at least that's what I understood. I continued to represent her for a number of months thereafter. And then her case went south, largely because of a recommendation of a child custody investigation that found that she would be-that the father, the husband, should be primarily-the primary caregiver for the children, and I think that that led her to blame me. It came out that this had happened. I had admitted it. I had understood-at least understood in hindsight, this is something that was consensual, but came to realize, no, I was probably pushing her to do this. 'Um, and I admitted it and it resulted in a period of suspension." Holmes also described a situation in which he prepared a document for a client that was never filed, which ultimately barred a cause of action. In arguing suspension is not warranted, Holmes cites In re Sutton , 298 Kan. 793, 316 P.3d 741 (2014). In that case, the panel found Sutton engaged in the unauthorized practice of law in several cases, including one case after Sutton had received notice that the review committee had found probable cause that he had practiced law without a license. After adopting the panel's findings, this court suspended Sutton for six months. 298 Kan. at 800-01, 316 P.3d 741. Holmes believes his conduct was not as egregious as Suttons', so suspension is not warranted. "This court has taken the position that, while prior cases may have some bearing on the sanctions that the court elects to impose, those prior cases must give way to consideration of the unique circumstances that each individual case presents. This court concerns itself less with the sanctions that were appropriate in other cases and more with which discipline is appropriate under the facts of the case before us. [Citations omitted.]" In re Colvin , 300 Kan. 864, 874, 336 P.3d 823 (2014). Considering all the facts and circumstances of this case, and in deference to the panel that heard the evidence before it, we adopt the panel's recommendation and impose a one-year suspension from the practice of law. A minority of the court would adopt the disciplinary administrator's six-month suspension recommendation. CONCLUSION AND DISCIPLINE IT IS THEREFORE ORDERED that Curtis N. Holmes be and he is hereby disciplined by suspension for a period of one year in accordance with Supreme Court Rule 203(a)(2) (2018 Kan. S. Ct. R. 234) effective upon the date of filing of this decision; that he not be granted probation; and that he undergo a reinstatement hearing pursuant to Supreme Court Rule 219(d) (2018 Kan. S. Ct. R. 264). IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 218 (2018 Kan. S. Ct. R. 262). IT IS FURTHER ORDERED that the costs of these proceedings be assessed to respondent and that this decision be published in the official Kansas Reports. Nuss, C.J., and Beier, J., not participating. G. Gordon Atcheson, J., and Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Judge Atcheson, of the Kansas Court of Appeals, and Senior Judge Malone were appointed to hear case No. 118,310 vice Chief Justice Nuss and Justice Beier respectively, under the authority vested in the Supreme Court by K.S.A. 20-3002(c) and by K.S.A. 20-2616.

The opinion of the court was delivered by Biles, J.: The Fourth Amendment to the United States Constitution requires that traffic stops not be measurably extended beyond the time necessary to process the infraction prompting the stop-unless there is consent, or a reasonable suspicion of or probable cause to believe there is other criminal activity. Rodriguez v. United States , 575 U.S. ----, 135 S.Ct. 1609, 1615, 191 L.Ed. 2d 492 (2015). In the current case, the State seeks interlocutory review of a district court decision suppressing from evidence 38 pounds of marijuana seized after a traffic stop along I-70. The court found the stop was impermissibly extended. A Court of Appeals panel affirmed. State v. Schooler , No. 116,636, 2017 WL 2212102, at *6 (Kan. App. 2017) (unpublished opinion). We granted review and now reverse. The issue is whether the lower courts correctly concluded the stop was unconstitutionally extended. The analysis is complicated by the timing and other details attendant to the stop, including the deputy's questions and the driver's responses. See State v. Jimenez , (No. 116,250 this date decided), --- Kan. ----, ----, --- P.3d ----, slip op. at 19, 2018 WL 3077771 (noting circumstances dictate how a court views an officer's progressive questioning during a traffic stop). As opposed to the lower courts, we determine that (1) discrepancies between the driver's statements and the vehicle-related documents justified the deputy's questioning; (2) the questioning occurred simultaneously with the deputy's appropriate steps in processing the traffic stop; and (3) the circumstances provided reasonable suspicion to extend the detention for a drug dog sniff. We remand the case to the district court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND The facts are undisputed and supported by an audio/video recording. We must detail what happened because "[a]ssessing whether an officer unreasonably prolonged a stop involves 'highly fact-specific inquiries.' " United States v. Hill , 849 F.3d 195, 201 (4th Cir. 2017) ; see also Jimenez , slip op. at 20, --- Kan. at ----, --- P.3d ---- (Caselaw "requires careful case-by-case evaluation to determine how the officer conducted or ordered the activities associated with the traffic stop."). In February 2016, Shaun Schooler was driving a rented 2016 Dodge pickup eastbound on I-70 when Geary County Sheriff's Deputy Justin Stopper noticed snow obstructing the license tag's lower half. The deputy initiated a traffic stop. He approached Schooler's vehicle from the passenger side, explained the reason for the stop, and asked for his driver's license and vehicle registration, which in this instance was a rental agreement. As Schooler complied, the deputy immediately asked where he was coming from. He responded Denver, Colorado, heading to Kansas City to fly back home to California. He told Stopper he had flown in to Kansas City before traveling to Denver. The rental agreement, however, stated the vehicle was rented in California a few days earlier and was due back at the same location a couple of days after the stop. The deputy later testified the rental location and dates were peculiar to him because of Schooler's explanations about his travel itinerary. Stopper asked why Schooler was in Denver. He said he was skiing with friends and had dropped off a 16-foot trailer. Stopper asked why he did not fly out of Denver. Schooler explained "it was just cheaper to do it that way." Stopper asked Schooler to confirm he flew into Kansas City, and Schooler volunteered: "The car rental is from San Diego. I totally know that it is. It's just how they did it with the trailer and stuff, sir." When Stopper suggested "normally" a "different rental place" is not listed on a rental agreement, Schooler said "it's not all me." Schooler offered to produce airline tickets and began searching for them inside the vehicle. While Schooler looked for his tickets, Stopper asked what kind of trailer he dropped off and expressed disbelief the truck could accommodate that trailer type. Stopper asked where he picked up the trailer. Schooler said in Kansas City from a friend. Stopper asked how that "work[ed] out[.]" While Schooler continued to search for his airline tickets, Stopper commented on a "giant duffel bag" the officer saw in the truck's back seat. Schooler could not locate his airline tickets and believed they were in another backpack, which he asked to get from the back seat. Because it was cold, Stopper suggested they sit in his patrol vehicle. Schooler agreed. The deputy later testified he suspected criminal activity as he left the truck's passenger side to return to his own vehicle. He said his suspicions at this point were based on detecting the odor of air fresheners from the rental vehicle; observing multiple cell phones, the large duffle bag, other items, and debris in the passenger compartment; and noting the peculiarities with Schooler's explanations about his travels and the vehicle rental arrangement. The deputy texted for a drug dog. At this point, about three minutes had passed from the stop. Inside the patrol car, the deputy continued questioning while reviewing Schooler's driver's license and rental documents and entering information into his vehicle's mobile data terminal. He asked when Schooler got to Kansas City. He responded "they rented it" on Friday, he "got into Kansas City on Saturday, [and] skied Sunday, Monday." He reiterated, "[T]hey did rent [the vehicle] out of San Diego," and he "just picked it up in Kansas City." He explained he had a truck stolen and "Geico Insurance rented it, in [his] name, and [he] picked it up in Kansas City." He said either Geico or Enterprise "took [the truck] out" to Kansas City. During this time, Schooler searched a backpack he brought into the patrol vehicle for airline tickets. He never found them. Stopper continued prodding, saying he had "never heard of anything like this happening." Schooler said he took the trailer to Colorado to help out some friends. When Stopper asked their names, Schooler said, "Oh. Alright." Then, after a pause, he asked if he was "in some kind of trouble ...." Stopper responded, "Well, your story's a little odd. I'm just trying to make sure everything's on the up-and-up and legit here." The encounter had lasted five minutes and 45 seconds at this point. About six minutes into the stop, the deputy received responses on his mobile data terminal advising him that Schooler was on federal supervised release. Stopper learned there were no outstanding warrants and the vehicle registration checked out properly. Schooler denied being "on probation or anything," but said he had been arrested "for a few things ...." Schooler soon admitted his supervised release status but denied being on probation. When asked why he was on federal supervised release, Schooler sighed and said "that was," paused, sighed, and then told Stopper he was not "up to [unintelligible] no good" and was "just trying to get home." About seven minutes and 30 seconds into the stop, Stopper radioed his dispatch with Schooler's driver's license number and date of birth. He explained at the suppression hearing he did this to get additional information and verify what Schooler was telling him because the mobile data terminal could not access the appropriate databases. While waiting, the deputy returned to questioning about "pretrial status and stuff" because he knew "most times" a person on pretrial supervision is not supposed to leave the state. The deputy asked what Schooler got in trouble for, and Schooler said it was for controlled substances. Stopper asked how much and Schooler said "very little." Stopper asked why it was federal supervision, and Schooler said "it was on a base" in 2005. Stopper expressed disbelief Schooler was still on probation in 2016, and Schooler said that status would last another five years. The deputy asked what kind of controlled substance and Schooler said "a little bit of cocaine ...." Stopper later testified he believed the probation term Schooler described meant the conviction was "probably [for] more than just a little bit of cocaine." Stopper resumed questioning about the trailer and trip to Colorado. Schooler said he picked it up from a friend's friend. At about nine minutes and 40 seconds into the stop, the deputy asked Schooler if he was "being truthful" because he had "never heard anything like this." Schooler said there was nothing for him to lie about. Schooler offered to make a phone call. The deputy declined but persisted in asking why the friends did not move their own trailer and commenting it was a long way out of the way. Schooler could not recall from whom he picked up the trailer. Stopper then asked how much Schooler's baggage fees were because the large duffel bag was probably expensive to take on a plane. He also noted Schooler had other large items in the truck, which Schooler said mostly came from the duffel bag, although that bag appeared full. At about 11 minutes and 45 seconds into the stop, the deputy explained to Schooler he was continuing to wait for record check verifications. Stopper asked Schooler to verify his address again, asked him to explain his supervised release, and inquired about prior arrests. The deputy asked Schooler if he was "actually supposed to be out of the state." Stopper again asked when Schooler flew into Kansas City. At about 13 minutes into the stop, the deputy radioed to dispatch variations in the vehicle license tag numbers, noting the snow was obscuring some letters and numbers and some might have been reported incorrectly earlier. At that point, the deputy received a radio call that seems to have conveyed additional criminal history information. Then, referring to Schooler's earlier statement that he had been arrested for "a little bit of cocaine," Stopper said, "I think that was more than just a little bit, it said importation." Schooler responded, "[I]t's just what they hit me with, sir," saying it was a federal matter and happened on a military base. Almost 15 minutes into the stop, the deputy again read license plate number variations into the radio. At 17 minutes into the stop, the deputy explained he was giving Schooler a warning ticket for the obscured license plate and asked Schooler for his signature. Stopper then told Schooler, "[Y]ou're good to go." This was 18 minutes into the stop. Almost immediately, the deputy said, "Mr. Schooler, can I ask you a couple more questions?" As Schooler began to say he "just [wanted] to get back on the road," Stopper asked if he had contraband, large amounts of currency, or firearms in his vehicle. Schooler said he did not and denied a request to search the truck. Stopper told Schooler he was being detained because "[y]our story's garbage. I believe criminal activity is afoot." The stop lasted 18 minutes and 30 seconds up to this point. A drug dog arrived 11 minutes later. Schooler continued denying anything illegal was in the truck. The dog alerted. Inside the duffle bag, 38 pounds of marijuana and a set of scales were discovered. Schooler was arrested and charged with narcotics offenses. See K.S.A. 2017 Supp. 21-5705(a) (possession with intent to distribute); K.S.A. 79-5208 (dealer possessing marijuana without tax stamp). The district court suppression hearing Schooler moved to suppress the marijuana and other evidence seized in the search, arguing delays in calling for the driver's license and vehicle plate checks resulted from questioning unrelated to the stop and were unsupported by reasonable suspicion. He claimed the deputy, in effect, conceded he lacked reasonable suspicion to detain him when he told Schooler he was "good to go." The State countered that travel plan inquiries as a generic category do not extend a traffic stop. It also argued the deputy was permitted to follow up on inconsistent or implausible answers because Schooler's story was questionable from the outset, so the officer had a duty to verify the rental vehicle's lawful possession and resolve the inconsistencies. The State contended Schooler's "bizarre story" was enough to detain him for the dog sniff and argued there was reasonable suspicion because Schooler lied about his criminal history. At the district court's suppression hearing, Stopper was the only witness. He testified he had worked for the Geary County Sheriff's Department for more than seven years. Two years before that he was a Junction City police officer. The State did not specifically claim Stopper had specialized training in drug interdiction. The deputy testified he reviewed Schooler's documents, entered information into his mobile data terminal, provided information to dispatch, and "engaged [Schooler] in general conversation" about his travel plans. On cross-examination, Stopper said he was looking even more into the rental agreement because "the story ... just did not make sense." He was "very suspicious" of Schooler's claim he got a California vehicle rental in Kansas City. The deputy also doubted the "insurance company rented a vehicle for him in Kansas City for a trip that he had already planned." The deputy explained that while talking to Schooler he was continuing to check the rental agreement and Schooler's driver's license, name, and date of birth. He explained he needed to call dispatch to confirm the computer report received on his mobile data terminal because Schooler denied being on probation. On cross-examination, the deputy agreed he already had that information on his onboard computer but was confirming it through dispatch because "[t]hey see a lot more returns from wanted individuals and stuff like that than I do." This explanation went unchallenged. Stopper said he calculated Schooler's supervised release period would be 15 years, which suggested to him that "it was probably more than just a little bit of cocaine." And the deputy testified he suspected more than just a traffic violation from the outset because he could smell air freshener "[i]mmediately upon reaching the passenger side of the truck," which was "odd coming from a rental vehicle." He explained it was "extremely rare to actually encounter a rental vehicle that somebody has put air freshener into. I know the rental companies don't actually leave air fresheners in there, and they don't put them in there. They'll clean them and make them smell nice, but they won't leave an air freshener in there that's going to smell that much for that amount of time." This was important to Stopper because he "had numerous cases where subjects have used air fresheners to conceal the odor of drugs[,]" "[s]pecifically in rental vehicles." He also "noticed numerous cell phones" in the truck, and that "it's common for smugglers of drugs to actually utilize numerous cell phones while conducting their business." He retrieved three cell phones from the truck cabin after the dog alerted according to the traffic stop video. He described one as a "burner." The deputy also explained that as he approached the vehicle from the passenger side, he "noticed an extremely large duffle bag sitting on the back seat that, based on my experience with dealing with people that fly different places for short amounts of time, they're generally not going to take a huge duffle bag that takes up the entire back seat with them on a flight, along with numerous amounts of other luggage that were in the vehicle as far as backpacks and boxes and stuff like that." Stopper also noted he first requested a drug sniffing dog "probably after getting back to [the] patrol vehicle after meeting with [Schooler] at his." At another point in his testimony, the deputy summarized the circumstances leading him to detain Schooler as: "The odor of air freshener coming out of the rental vehicle. The large duffle bag on the back seat. The multiple cell phones. His lying about his travel plans. His lying about his criminal history. And his criminal history. They all played into my decision that there was criminal activity present." He explained he asked Schooler for permission to search the vehicle once he advised him he was being detained because it would speed up the process since there were difficulties locating an available dog. But he also said had a dog not been available, he was prepared to request a search warrant based on the information he had at this point. The State admitted the traffic stop audio/video recording as an exhibit, as well as several photographs taken during and after the vehicle search. One photograph shows the completely full duffle bag and other backpacks and a large box and debris in the back seat and front passenger area. The district court decision In a written ruling, the district court ordered all evidence of illegal contraband suppressed. It set out factual findings in 10 numbered paragraphs, noting the officer was suspicious of criminal activity shortly after beginning the stop when he received Schooler's driver's license and rental agreement. The court found Stopper questioned Schooler for nearly 18 minutes before advising him he was "good to go." The court then held: "This [traffic stop's] mission was over the second Stopper advised Schooler he was free to leave, 11-12 minutes prior to the drug dog's arrival. Further, this mission would have been completed for an additional several minutes prior to the drug dog arriving had Lt. Stopper been diligent in his records check." The court concluded: "In this case, there is no question that the duration of the traffic stop was extended, in fact, multiple times. Lt. Stopper delayed the initial call to dispatch, delayed the secondary information for dispatch, and delayed the stop for the dog sniff after the Defendant was told he was free to leave. Police action that extends the traffic stop in any measurable amount is unlawful. "Here, the Defendant was stopped by Lieutenant Stopper for a minor traffic infraction that was never actually addressed. Stopper did not immediately call in the Defendant's driver's license and waited over six minutes from the initial contact to do so. Further, the Deputy delayed nearly fourteen minutes before calling in the obstructed tag. Stopper began writing a warning citation nearly seventeen minutes into the stop, and finally advised the Defendant he was free to leave approximately eighteen minutes in to the stop." The court reached these additional conclusions: (1) the deputy exceeded the encounter's scope at the outset without facts to establish a reasonable suspicion of other crimes, which rendered the resulting detention unreasonable; (2) Schooler's responses would not give a reasonable officer any further reasonable suspicion to detain him; (3) the deputy "conceded" there was no reasonable suspicion to detain Schooler after issuing a warning ticket and advising he was free to leave; and (4) the deputy had no reasonable suspicion to detain Schooler while waiting for the drug dog. The Court of Appeals decision The State filed a timely interlocutory appeal. See K.S.A. 2017 Supp. 22-3603 ; State v. Newman , 235 Kan. 29, 34, 680 P.2d 257 (1984) (noting suppression must substantially impair the State's case to pursue interlocutory appeal). It argued the district court erred because: (1) the questions about Schooler's travel plans did not unlawfully extend the stop; (2) Stopper had reasonable suspicion to detain him based on the circumstances identified at the suppression hearing; (3) the deputy's reasonable suspicion was not "[p]urged" by Stopper telling Schooler he was "good to go"; and (4) the wait for the drug dog was reasonable. The panel affirmed, reasoning that "[a]t the very least, once ... Stopper issued the warning ticket, he needed reasonable suspicion other than the reason for the initial stop in order to extend the encounter to allow the drug dog to come to the scene." Schooler , 2017 WL 2212102, at *6. The panel explained: "[W]e cannot replace our judgment for that of the district court regarding factual issues so long as they are supported by substantial competent evidence. Moreover, we are not to reweigh the evidence or to determine credibility. Based on our review of the record, we find substantial evidence to support the district court's finding that there was no articulated reasonable suspicion to extend the stop after the warning ticket had been issued . Furthermore, we find as a matter of law that absent such a reasonable suspicion, the extension of the traffic stop in order to conduct a dog sniff violated the Constitution's protection against unreasonable seizures." (Emphasis added.) 2017 WL 2212102, at *6 (citing Rodriguez, 135 S.Ct. at 1612 ). The panel agreed it was proper for the deputy "to briefly inquire about a driver's travel plans as part of a traffic stop." 2017 WL 2212102, at *5. But it did not decide whether the stop became unreasonable at any time before Stopper issued the warning ticket. It said only that the stop's overall duration was "not unreasonable per se, this amount of time to check Schooler's driver's license, to determine if he had any outstanding warrants, to look at the rental documents, and to give him a warning ticket for the snow on his license plate-that could have likely been brushed away within a matter of seconds-is at least questionable." 2017 WL 2212102, at *5. The State petitioned us to review the panel's decision, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). ANALYSIS The State contends the panel erred by failing to address whether the deputy had reasonable suspicion to extend the traffic stop under the totality of the circumstances. Traffic stops are seizures under the Fourth Amendment and are subject to its limitations. Whren v. United States , 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed. 2d 89 (1996) ; City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). There is no challenge to the initial stop, so we consider it lawful. We are concerned only with whether the stop became an illegal seizure as it evolved. This turns on whether the deputy measurably extended the stop without reasonable suspicion of other criminal activity. Rodriguez, 135 S.Ct. at 1615 ; see also Pianalto , 301 Kan. at 1011, 350 P.3d 1048 (to comply with Fourth Amendment, officer conducting stop must have reasonable suspicion detainee has committed, is committing, or is about to commit a crime). Standard of review Faced with a motion to suppress evidence, the State bears the burden of proving a lawful search and seizure. K.S.A. 22-3216(2) ; State v. Gray , 306 Kan. 1287, 1302, 403 P.3d 1220 (2017). The State tries to meet its burden by defending the deputy's questioning as necessary follow up because of: (1) the driver's conflicting and implausible responses; (2) the developing information the deputy obtained that progressively raised his suspicions; and (3) the overlap with recognized tasks attendant to a routine traffic stop. As to the trial court's decision, " 'an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. ... Substantial evidence refers to evidence that a reasonable person could accept as being adequate to support a conclusion. ... This court does not reweigh the evidence, assess the credibility of the witnesses, or resolve evidentiary conflicts. [Citations omitted.]' State v. Mattox , 305 Kan. 1015, 1035, 390 P.3d 514 (2017)." State v. Brown , 306 Kan. 1145, 1151, 401 P.3d 611 (2017). The essential facts are not in dispute and are verified by the audio/video recording. The district court expressed no credibility determinations about the deputy's suppression hearing testimony, which paralleled the recording. The district court's dual rulings-that the deputy did not diligently complete the stop and lacked reasonable suspicion to extend it after issuing the warning ticket-make our inquiry more complex than in Jimenez , which involved whether travel plan questioning during a traffic stop is categorically justified. Jimenez , slip op. at 10, --- Kan. at ----, --- P.3d ----. For Schooler's case, we must scrutinize: (1) the deputy's progressive inquiry and its relationship to any extension of the stop; and (2) whether the deputy had reasonable suspicion to extend the stop once he detained Schooler to wait for the dog sniff. The State's failure to justify the stop at either juncture will render the seizure unconstitutional. And because the facts are not disputed, we assess both as questions of law. State v. Sharp , 305 Kan. 1076, 1081, 390 P.3d 542 (2017) (holding whether reasonable suspicion exists is a question of law; legal conclusion as to its existence is reviewed de novo and underlying factual findings are reviewed for substantial competent evidence). The deputy's progressive questioning did not impermissibly extend the stop In Jimenez , we described Fourth Amendment jurisprudence relating to traffic stops-particularly given Rodriguez and its progeny, which this court had not explored before. Neither the panel nor the district court had the benefit of that decision, but it guides the analysis. The Jimenez court noted a routine traffic stop is a seizure under the Fourth Amendment, more analogous to an investigative detention than a custodial arrest. This means courts treat a traffic stop, whether based on reasonable suspicion or probable cause, under the longstanding limitations set forth in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), for nonconsensual police-citizen contacts. Jimenez , slip op. at 11, --- Kan. at ----, --- P.3d ----. In Rodriguez , the United States Supreme Court explained that beyond simply deciding whether to issue a traffic ticket, an officer's "mission" during such stops typically includes ordinary inquiries to (1) check the driver's license; (2) determine whether there are outstanding warrants against the driver; and (3) inspect the vehicle's registration and proof of insurance. Rodriguez , 135 S.Ct. at 1615. The officer also may take "negligibly burdensome precautions" to complete the stop safely. 135 S.Ct. at 1616. But "[o]n-scene investigation into other crimes," the Court stated, "detours from that mission." 135 S.Ct. at 1616 ("Highway and officer safety are interests different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular."). The Jimenez court concluded Rodriguez "means that during a stop an officer may not conduct nonconsensual inquiries unrelated to the mission in a way that prolongs the stop-without the reasonable suspicion ordinarily demanded to justify detaining an individual." Jimenez , slip op. at 12, --- Kan. at ----, --- P.3d ----. But it also noted "these limitations do not mean police perform their duties with a blind eye." Slip op. at 13, ---Kan. at ----, --- P.3d ----. In State v. Morlock , 289 Kan. 980, 996, 218 P.3d 801 (2009), the court made this same point: "An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When 'the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions .' " (Emphasis added.) As to general travel plan questioning, the Jimenez court rejected the State's argument that such questions were simply routine occurrences in a traffic stop that never require independent suspicion to justify an officer in measurably extending a detention to ask them. Jimenez , slip op. at 20, ---Kan. at ----, --- P.3d ----. It stated: "[A] plain reading [of Rodriguez ] shows the Court's intention to clarify that any traffic stop extension without reasonable suspicion or consent-by even a de minimis length of time-amounts to an unreasonable seizure when the delay is based on anything but the articulated components of the stop's mission. Rodriguez , 135 S.Ct. at 1615. Noticeably, travel plan questioning is not on the Court's enumerated short list of things to do-even though travel inquiries were made during the stop under study in Rodriguez." (Emphasis added.) Slip op. at 15-16, --- Kan. at ---- - ----, --- P.3d ----. With that in mind, the Jimenez court concluded " Rodriguez does not envision unbridled travel plan questioning as a staple of traffic stop inquiries. Circumstances will dictate whether and to what extent such questions are part of the mission ." (Emphasis added.) Slip op. at 16. It then emphasized the need to examine closely how a traffic stop unfolds: "To be clear, we are not suggesting Rodriguez and its progeny instruct that all travel plan questioning will be outside an officer's traffic stop mission. The circumstances will determine that. Such inquiries would be within a particular stop's mission if it were shown they 'serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.' Rodriguez , 135 S.Ct. at 1615. For example, and without prejudging specific scenarios, consider when a vehicle is noticed veering off the roadside. Asking how long the driver has been behind the wheel reasonably could be seen as exploring fatigue issues, which relates to the initial infraction and safe vehicle operation. Similarly, asking whether the driver is under the influence could be related to that same infraction. In both instances, the responses may explain the erratic driving and might arguably be related to the officer's decision 'whether to issue a traffic ticket ....' 135 S.Ct. at 1615. But such inquiry would be much harder to justify when the stop is 'for a loud muffler, a burned-out license plate light, or a just-ended parking violation.' 4 Search & Seizure § 9.3(d)." Jimenez , slip op. at 18-19, --- Kan. at ---- - ----, --- P.3d ----. Schooler's stop exemplifies the illustrations above. Travel plan questioning in his case would not be seen as-nor is it claimed to be-relevant to a traffic infraction for a license tag obscured by snow. But see State v. Lowery , (No. 116,637, this day decided), --- Kan. ----, ----, --- P.3d ----, slip op. at 9, 2018 WL 3077211 (noting some travel plan inquiries are appropriate when infraction is driving too close to vehicle in front). Despite this, we conclude Deputy Stopper's questioning did not impermissibly extend the stop because the questioning occurred concurrently with the tasks the deputy was performing to complete the stop and was justified by discrepancies between Schooler's story and the rental agreement. Stopper's initial questioning about where Schooler was going to and coming from coincided with the request at the passenger side window for his driver's license and vehicle registration. The documents Schooler produced showed the vehicle was a rental from California due back at the same location in a few days. And the panel noted, it was not improper for the deputy to inquire briefly about travel plans during this traffic stop. Schooler , 2017 WL 2212102, at *5. Moreover, a noticeable disconnect between the driver's explanations and the vehicle documentation available on the scene warranted additional inquiries. See Jimenez , slip op. at 13, --- Kan. at ----, ---P.3d ---- (noting law enforcement suspicions aroused by detainee's responses and circumstances may be satisfied by further inquiry); Morlock , 289 Kan. at 996, 218 P.3d 801. The deputy testified during his initial contact he almost immediately became suspicious of other criminal activity. He noticed air freshener odor coming from the rental vehicle; observed multiple cell phones, the large duffle bag, and other items and debris in the passenger compartment; and could not reconcile Schooler's explanations with the vehicle rental arrangement. He texted for a drug dog after this first exchange, which the panel agreed was appropriate, assuming the dog's involvement would not extend the traffic stop. 2017 WL 2212102, at *5. There is no suggestion it was improper for the pair to return to the patrol vehicle to process the driver's license and vehicle information. And once inside the vehicle, the audio recording reflects the deputy's further questioning about Schooler's travel and the truck rental simultaneously occurred as the deputy used his mobile data terminal. The remaining conversation followed up on the responses received from Schooler and the replies the deputy got from the records checks over his mobile terminal and the radio. The district court made limited factual findings about the events leading up to Schooler issuing the warning ticket. It simply found: "4. Lieutenant Stopper explained the reason for the stop to the Defendant, and both parties eventually ended up in Stopper's vehicle. During this time, Lieutenant Stopper indicated that he began conducting his 'enforcement action.' "5. While conducting the 'enforcement action' for the Defendant's partially obstructed license plate, Lieutenant Stopper began to interrogate the Defendant about his travel plans, rental vehicle and past criminal history. "6. After nearly 18 minutes of 'enforcement action' for the partially obstructed license plate, the Defendant was issued Notice to Appear #58123 and informed that he was 'good to go.' " The district court's legal conclusions appear to encompass these earlier events: "In this case, there is no question that the duration of the traffic stop was extended, in fact multiple times. Lt. Stopper delayed the initial call to dispatch, delayed the secondary information for dispatch, and delayed the stop for the dog sniff after the Defendant was told he was free to leave. Police action that extends the traffic stop in any measurable amount is unlawful. "Here, the Defendant was stopped by Lieutenant Stopper for a minor traffic infraction that was never actually addressed. Stopper did not immediately call in the Defendant's driver's license and waited over six minutes from the initial contact to do so. Further, the Deputy delayed nearly fourteen minutes before calling in the obstructed tag. Stopper began writing a warning citation nearly seventeen minutes into the stop, and finally advised the Defendant he was free to leave approximately eighteen minutes in to the stop." To the extent there are additional factual findings not listed in the numbered paragraphs implicitly embedded within the district court's legal conclusions, they are not supported by the recording or the deputy's testimony-the only evidence from the suppression hearing. It is undisputed the deputy used his mobile data terminal to enter the driver's license and vehicle information shortly after getting inside his patrol car. He had responsive information back six minutes into the stop and that information conflicted with Schooler's story. This inconsistency appropriately spurred additional inquiry. And while it is true the deputy did not "call in" to dispatch until a few minutes later, as the district court found, Stopper explained he had already used his mobile data terminal for that and was radioing dispatch only for additional verification because of the discrepancies he noticed. Dispatch, the deputy explained, could access more information than was available through his mobile terminal. This explanation was not challenged by Schooler or the district court, and no adverse credibility determination was made detracting from the deputy's testimony. To be sure, there are circumstances in our caselaw supporting a finding that an officer was deliberately stalling. See, e.g., State v. Wendler , 47 Kan. App. 2d 182, 190-92, 274 P.3d 30 (2012) (holding evidence supported conclusion officer was intentionally delaying, noting long periods when officer did nothing). But we do not see support for such a finding in the record before us. Similarly, the panel did not analyze this early in-vehicle timeframe other than an aside that its duration was possibly "questionable" but not unreasonable per se. Schooler , 2017 WL 2212102, at *5. It is difficult to make anything from that. See Jimenez , slip op. at 21-22, --- Kan. at ---- - ----, --- P.3d ---- (expressing concern panel's comment about reasonableness of the stop's length was "alluding to a standard expressly rejected by Rodriguez , i.e., a rule-of-thumb approach, under which the time taken ... is compared to what would be 'ordinary' for a similar encounter"). Importantly, neither lower court considered whether there was overlap in the deputy's inquiries with the tasks required to complete the stop's mission. See Jimenez , slip op. at 15, --- Kan. at ----, --- P.3d ---- ("This suggests officers engaging in traffic stops in Rodriguez ' wake must be attentive to how and when they conduct what may be viewed as unrelated inquiries. They must be especially careful to ensure nonconsensual inquiries occur concurrently with the tasks permitted for such stops so that they will not measurably extend the time it would otherwise take. We would more simply describe this today as multitasking."). We hold that up to the time the deputy advised Schooler of his detention, the deputy did not impermissibly extend the traffic stop's duration. The recordings show the deputy was continuously engaged with Schooler as the officer processed the traffic stop while trying to satisfy his suspicions about the conflicts in what he was observing and being told. Reasonable suspicion at the time of detention The district court's decision and the panel's affirmation of it focus on the moment the deputy advised Schooler he was being detained. And there is no question the traffic stop was measurably extended from that point while waiting for the drug dog, so the legal question is whether the deputy had reasonable suspicion to detain Schooler at this time. There are two points to consider. The first is whether there is a factual or legal consequence to the deputy telling Schooler he was "good to go," when in fact Stopper intended to continue to detain him. The second is whether under the totality of the circumstances, Stopper had reasonable suspicion of other criminal activity to wait for the dog. As to the first, the district court held, "[L]ieutenant Stopper effectively conceded that he did not have reasonable articulable suspicion to detain Mr. Schooler by issuing him a warning and advising him that he was free to leave." (Emphasis added.) But the district court cited no authority that such a statement serves as a binding admission on what is a legal conclusion. See State v. Young , 228 Kan. 355, 614 P.2d 441 (1980) ("It is only agreements and admissions of fact which are within the authority of the parties litigant or their attorneys. A court may not be bound by agreements and admissions of the parties as to matters of law or legal conclusions."). Similarly, the panel hinted there was some legal significance to the deputy telling Schooler he was "good to go." Schooler , 2017 WL 2212102, at *6 ("[I]t is hard to justify the continued questioning and detention of Schooler. This is especially true because Lieutenant Stopper went so far as to tell Schooler that he was free to go."). But these suggestions are contrary to the caselaw. To be clear, the question is not whether the deputy tricked Schooler into voluntarily consenting to a vehicle search or extending the detention by saying "good to go." Schooler gave no consent. We reserve that analysis for another day. Instead, we must decide whether the "good to go" statement is somehow legally relevant in deciding if the deputy had an objectively reasonable suspicion that Schooler was engaged in criminal activity other than the traffic infraction. As to that, the answer is "no" because our inquiry is limited to whether the facts the deputy knew supported further detention. United States v. Williams , 271 F.3d 1262, 1271 (10th Cir. 2001) (holding officer telling motorist he was free to leave did not affect determination of whether the officer had reasonable suspicion for later detention because "[a]lthough the record indicate[d] that the officer subjectively intended that the [motorist] was free to go, the relevant inquiry ... is based on the objective facts known to the officer, not upon the officer's subjective state of mind"); see also United States v. McHugh , 639 F.3d 1250, 1258 (10th Cir. 2011) (rejecting argument that officer lacked reasonable suspicion to conduct Terry stop based on officer's admission that he had no reason at time of stop to think defendant had committed a crime, because "[t]he detaining officer's ' "subjective beliefs and intentions" are, quite simply, irrelevant' " in assessing reasonableness of officer's actions); cf. Heien v. North Carolina , 574 U.S. ----, 135 S.Ct. 530, 539, 190 L.Ed. 2d 475 (2014) (holding reasonable suspicion may be based on officer's reasonable mistake of law, but mistake must be objectively reasonable, since courts do not examine officers' subjective understanding); Whren , 517 U.S. at 812-13, 116 S.Ct. 1769 (foreclosing "any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved"; noting the Court had "never held, outside the context of inventory search or administrative inspection ... that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment"); State v. Johnson , 293 Kan. 1, 5, 259 P.3d 719 (2011) ("Seizures are generally permissible if ' "an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime." ' "). Reasonable suspicion is " ' "a particularized and objective basis" for suspecting the person stopped of criminal activity.' " State v. DeMarco , 263 Kan. 727, 735, 952 P.2d 1276 (1998). "Something more than an unparticularized suspicion or hunch must be articulated." 263 Kan. at 735, 952 P.2d 1276. It is a lower standard than probable cause. "What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer." State v. Martinez , 296 Kan. 482, 487, 293 P.3d 718 (2013). The totality of the circumstances standard "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed. 2d 740 (2002). A reviewing court must give "due weight" to the factual inferences drawn by both the district court and law enforcement officers. Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed. 2d 911 (1996). The totality of the circumstances standard does not envision a reviewing court pigeonholing each factor as to innocent or suspicious appearances. Instead, the court determines whether all the circumstances justify the detention. " 'The relevant inquiry is not whether particular conduct is "innocent" or "guilty," but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. [Citation omitted.] The totality of the circumstances standard precludes a "divide-and-conquer analysis" under which factors that are "readily susceptible to an innocent explanation [are] entitled to 'no weight.' " [Citations omitted.]' " Sharp , 305 Kan. at 1081-82, 390 P.3d 542. At the same time, while the standard does not permit officers or the courts to selectively choose the facts that would establish reasonable suspicion, it recognizes "events and conditions giving rise to reasonable suspicion are fluid rather than fixed, and the existence of reasonable suspicion may change once new facts are observed by or become known to law enforcement." Sharp , 305 Kan. at 1085, 390 P.3d 542. The State argues Stopper had reasonable suspicion to detain Schooler based on: (1) the air freshener odor; (2) the multiple cell phones; (3) Schooler's vague, evasive, and inconsistent statements about his travel plans and criminal history; and (4) his actual criminal history. Air freshener odor in a rented vehicle has been held to contribute to reasonable suspicion because of its known use for masking drug odor. United States v. Foley , 206 F.3d 802, 804, 806 (8th Cir. 2000) (trooper testified this was suspicious and that air fresheners were frequently used to mask the drug odor; record revealed "sufficient articulable facts, including the presence of a masking odor, [driver's] nervous behavior, [driver's] inability to recall the name of his purported daughter-in-law, and the vast divergence between his and [passenger's] allegations regarding travel accommodations ... to sustain reasonable suspicion"); see also United States v. Lyons , 510 F.3d 1225 (2007) (10th Cir. 2010) (concluding totality of circumstances, including officer's belief he smelled air freshener, provided reasonable suspicion to extend traffic stop). Similarly, Kansas caselaw recognizes: "[A] 'masking agent,' despite having legitimate retail purposes, may also be used to conceal drugs and certainly may be considered in the reasonable suspicion calculus. United States v. West , 219 F.3d 1171, 1178-79 (10th Cir. 2000). The weight assigned to the odor, however, varies with the circumstances. State v. Malone , 274 Wis. 2d 540, 683 N.W.2d 1 (2004)." State v. Moore , 283 Kan. 344, 358, 154 P.3d 1 (2007). The Moore court did not explain how the circumstances affect the factor's weight. But it cited a Wisconsin case, Malone , 274 Wis. 2d 540, 683 N.W.2d 1, in which the court found seven or eight air fresheners in a car occupied by three young men raised suspicion and justified reasonable inquiry. In the other case cited, West , the court noted the "Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis." 219 F.3d at 1179 (holding officer had probable cause to search car trunk when he detected smells of methamphetamine and air freshener, driver was extremely nervous during encounter, and driver had prior criminal record for serious offenses). "Discrepancies in travel plans or histories have been used as objective reasonable suspicion factors in other cases, depending on the nature of the discrepancy. 'As with unusual travel plans, inconsistencies in information provided to the officer during the traffic stop may give rise to reasonable suspicion of criminal activity.' " DeMarco , 263 Kan. at 739, 952 P.2d 1276. Discrepancies that arouse suspicion include "an individual's internally inconsistent statements [and] the inconsistencies between a passenger and driver's statements regarding travel plans." United States v. Davis , 636 F.3d 1281, 1291 (10th Cir. 2011). The Tenth Circuit has distinguished merely unusual travel plans, which do not contribute to reasonable suspicion, and "bizarre, inconsistent and evasive" ones, which do. United States v. Simpson , 609 F.3d 1140, 1151 (10th Cir. 2010). The court explained the distinction: "We have credited inconsistent travel plans as a factor contributing to reasonable suspicion when there are lies or inconsistencies in the detainee's description of them. For example, a police officer could reasonably believe a travel plan was implausible-and the person was lying-if that person claimed that he or she had left a certain city by car an hour ago if the officer pulled over that person, 200 miles from the city. To this extent, the factor seems noncontroversial: lies, evasions or inconsistencies about any subject while being detained may contribute to reasonable suspicion. In contrast, this circuit has been reluctant to deem travel plans implausible-and hence a factor supporting reasonable suspicion-where the plan is simply unusual or strange because it indicates a choice that the typical person, or the officer, would not make." Simpson , 609 F.3d at 1148-49. Compare Simpson, 609 F.3d at 1152-53 (travel plans contributed to reasonable suspicion when defendant claimed he drove from Nebraska to Reno, Nevada, just to spend one night there playing "21" at his friend's house, but despite the trip's great length and short duration, the defendant could not say when he left and when he planned to return), and United States v. Santos , 403 F.3d 1120 (10th Cir. 2005) (travel plans suggested criminal activity when driver [1] gave the officer multiple versions about the length of his intended stay at his destination, [2] was inconsistent about details such as whether a person he intended to visit was his sister or half-sister, and [3] was unable to recall his mother's telephone number or the ages of his sister's children, because confusion about details often indicates story is being fabricated), with United States v. Wood , 106 F.3d 942, 944 (10th Cir. 1997) (travel plans did not suggest criminal activity when unemployed driver [1] claimed to be on six-week vacation; [2] told officer he rented car in San Francisco instead of Sacramento, but corrected mistake when confronted with it; and [3] despite rental agreement reflecting car due back in Sacramento, explained that rental company was aware of his plans to use car for one-way travel). Criminal history alone cannot support reasonable suspicion. "But in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus. ... Moreover, when the individual lies about having a criminal history, the inference of wrongdoing is all the more powerful." Santos , 403 F.3d at 1132-33 (reasoning that a driver's denial that he had a prior criminal record, when in fact he had a criminal history for drugs, was "the most powerful reason the district court offered for sustaining the finding of reasonable suspicion"); see also United States v. McRae , 81 F.3d 1528 (10th Cir. 1996) (reasoning defendant's untruthful answer to whether he had criminal record contributed to articulable suspicion permitting officer to inquire after traffic stop whether defendant was carrying contraband and seek permission to search the car). Schooler, of course, gave inaccurate and incomplete responses about his criminal history. The recording shows the deputy located three cell phones, which he observed at the stop's outset. Possessing multiple cell phones is relevant, but of questionable weight. In United States v. Vaughan , 700 F.3d 705, 712 (4th Cir. 2012), there were four phones in a car containing two people, at least two "of the pre-paid type known to the detaining officer to be associated with narcotics trafficking." The Fourth Circuit held "the presence of the phones constitute[d] a valid factor in a reasonable suspicion analysis." 700 F.3d at 712. But in United States v. Townsend , 305 F.3d 537, 544 (6th Cir. 2002), there were "three cellular telephones in the passenger compartment" and the officers claimed the presence of multiple phones "was typical of drug couriers." The Sixth Circuit reasoned, "Three cell phones in one car does seem slightly odd, and we are certainly not prepared to hold that the presence of several cell phones cannot contribute to reasonable suspicion .... This factor, however, is weak and is not accompanied in this case by more substantially suspicious factors." 305 F.3d at 544-45 (holding no reasonable suspicion despite several "relatively minor" factors recognized as valid considerations in forming reasonable suspicion, including: dubious travel plans based on defendant's uncertainty about destination-family-member's address; multiple cell phones; Bible in vehicle, said to be used to deflect suspicion; and use of third-party vehicle belonging to defendant's mother and for which defendant was an insured driver). We hold that when the deputy advised Schooler he was being detained, there was objectively reasonable suspicion of other criminal activity to extend the detention for the dog sniff. At that point, in addition to the air freshener, multiple cell phones, and discrepancies with the rental document, Schooler gave evasive answers to questions about his travel plans, suggesting he was making the details up as the conversation went along. More importantly, he gave ambiguous, if not false, answers to questions about his criminal history involving narcotics, suggesting he was trying to downplay or deflect Stopper's attention from the facts. Based on these circumstances, the deputy had an objectively reasonable, articulable suspicion of wrongdoing to justify the detention for the dog sniff. The lower courts erred in reaching the contrary conclusion. Reversed and remanded.

The opinion of the court was delivered by Stegall, J.: In this expedited appeal from a child in need of care (CINC) proceeding under the Kansas Code for Care of Children (Revised Code), K.S.A. 2016 Supp. 38-2201 et seq., we consider whether a Kansas appellate court has jurisdiction to review a denial of a motion to terminate parental rights under K.S.A. 2016 Supp. 38-2273(a). In this case, a grandfather moved to terminate the parental rights of his grandson's parents. The district court appointed the grandfather as the child's permanent custodian but declined to terminate the father's parental rights. The Court of Appeals then dismissed the grandfather's appeal for lack of jurisdiction. Because the plain language of K.S.A. 2016 Supp. 38-2273(a) does not provide the right to appeal the district court's order denying the grandfather's motion, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Whether we have jurisdiction is a question of law that, in this case, hinges on statutory interpretation. Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 609, 244 P.3d 642 (2010). Given the narrow question of law presented, we recite only those facts necessary for a basic understanding of the case. T.S. was born while his mother (Mother) was incarcerated in 2008. Mother was released from prison a few weeks after his birth. At first, the two lived briefly with Mother's family in Oklahoma. Then they lived with T.S.'s father (Father) in Wichita for a short time. Finally, Mother and T.S. moved in with T.S.'s maternal grandfather (Grandfather) and his wife (collectively, Grandparents) in Wichita. Except for a few months, T.S. has lived with Grandparents his entire life. Mother and T.S. lived with Grandparents until April 2013 when Mother allegedly participated in a robbery of Grandparents' home. Grandfather promptly filed a CINC action and requested temporary custody of T.S., citing concerns with Mother's and Father's criminal conduct. The Sedgwick County District Court subsequently granted Grandfather temporary custody of T.S. It also ordered Mother and Father to submit to drug testing and limited them to supervised visitation with T.S. Both parents signed achievement plans with the goal to reintegrate with T.S. The district court held an adjudication hearing. Mother stipulated to the allegations in the CINC petition and waived her right to a hearing. After hearing evidence from the remaining parties, the court found T.S. was a child in need of care. The court voiced concerns about Father's criminal history, drug use, and mistreatment of women but noted Father had made some positive progress. In the end, the court ordered that T.S. remain in Grandfather's custody and expanded Father's visitation rights. Shortly after that, Grandfather moved for findings of unfitness and termination of Mother's and Father's parental rights or, in the alternative, for an order appointing Grandfather as T.S.'s permanent custodian. Grandfather alleged, among other things, that Father was violent toward Mother, abused drugs and alcohol, taught T.S. to fight, and failed to establish a healthy lifestyle for T.S. A few months later, the district court held a disposition hearing and ordered that T.S. remain in Grandfather's custody. At that time, the court found it was in T.S.'s best interests to postpone the hearing on the motion to terminate parental rights. In the meantime, the court held permanency hearings but kept T.S. in Grandfather's custody. The court held a hearing on Grandfather's motion in February and March 2015. Mother had consented to the appointment of a permanent custodian for T.S. beforehand. After hearing extensive evidence, the court ruled that Grandfather proved by clear and convincing evidence that Father is unfit. As a result, the court appointed Grandfather as T.S.'s permanent custodian. Yet the court declined to terminate Father's parental rights, finding it "would not be in the child's best interests." Father appealed the finding of unfitness, and Grandfather cross-appealed the decision not to terminate Father's parental rights. The Court of Appeals affirmed the district court's finding of Father's unfitness and appointment of Grandfather as permanent custodian. In re T.S. , No. 114,895, 2017 WL 2896086, at *7-8 (Kan. App. 2017) (unpublished opinion). These rulings are not before us because Father did not petition for review. See Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 172, 298 P.3d 1120 (2013) ("A party aggrieved by a decision of the Court of Appeals on a particular issue must seek review in order to preserve the matter for Kansas Supreme Court review."). In ruling on Grandfather's cross-appeal, the panel first examined whether it had jurisdiction to review a denial of a motion to terminate parental rights under K.S.A. 2016 Supp. 38-2273(a). The panel ordered the parties to show cause why Grandfather's cross-appeal should not be dismissed for lack of jurisdiction under In re A.S. , 52 Kan. App. 2d 173, 364 P.3d 1203 (2015), which held the same statute "does not provide the right to appeal the denial of a motion to terminate parental rights." 52 Kan. App. 2d 173, Syl. ¶ 3, 364 P.3d 1203. Grandfather claimed In re A.S. was wrongly decided, and the panel retained the appeal through oral argument. In re T.S. , 2017 WL 2896086, at *8. Ultimately, the panel dismissed Grandfather's cross-appeal for lack of jurisdiction under the plain language of K.S.A. 2016 Supp. 38-2273(a). 2017 WL 2896086, at *10. It reasoned: " K.S.A. 2016 Supp. 38-2273(a) states: 'An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.' It clearly provides for appellate review of any of five different types of orders in CINC proceedings: (1) temporary orders of custody, (2) orders of adjudication, (3) disposition orders, (4) orders finding a parent unfit, and (5) orders terminating parental rights. The statute does not provide appellate jurisdiction for any order regarding the termination of parental rights, only an order which terminates parental rights. Thus, we agree with the statement in In re A.S. : 'Nowhere in the statute does it provide the right to appeal when a motion to terminate parental rights has been denied.' 52 Kan. App. 2d at 177, 364 P.3d 1203. The plain language unambiguously omits any such right. "... [A]s the court noted in In re A.S. , the plain language of K.S.A. 2016 Supp. 38-2273(a) is unambiguous and whether policy concerns dictate there be appellate review from orders not to terminate parental rights is a question for the legislature." 2017 WL 2896086, at *10. We granted Grandfather's petition for review of the dismissal. ANALYSIS Grandfather claims the Court of Appeals erred when it dismissed his appeal for lack of jurisdiction because the plain language of K.S.A. 2016 Supp. 38-2273(a) permits him to appeal the order denying his motion to terminate Father's parental rights. He argues the phrase "any order of ... termination of parental rights" means any order regarding termination, including one that denies termination. K.S.A. 2016 Supp. 38-2273(a). We disagree and affirm the Court of Appeals. Whether jurisdiction exists is a question of law subject to unlimited review. Fuller v. State , 303 Kan. 478, 492, 363 P.3d 373 (2015). "Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction demonstrates this principle, stating the Kansas Supreme Court shall have 'such appellate jurisdiction as may be provided by law.' Kan. Const., art. 3, § 3. Under this provision, this court may exercise jurisdiction only under circumstances allowed by statute; this court does not have discretionary power to entertain appeals from all district court orders." Svaty , 291 Kan. at 609-10, 244 P.3d 642. Questions of statutory interpretation are likewise subject to unlimited review. In re A.D.T. , 306 Kan. 545, 551, 394 P.3d 1170 (2017). The fundamental rule of statutory interpretation is that legislative intent governs if it can be discerned. We begin this inquiry with the plain language of the statute. Nationwide Mutual Ins. Co. v. Briggs , 298 Kan. 873, 875-76, 317 P.3d 770 (2014). Indeed, "statutory language is an appellate court's paramount consideration because 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." In re Estate of Strader , 301 Kan. 50, Syl. ¶ 3, 339 P.3d 769 (2014) ; Wright v. Noell , 16 Kan. 601, 607 (1876). When, as here, "a statute is plain and unambiguous, this court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it." Cady v. Schroll , 298 Kan. 731, 738-39, 317 P.3d 90 (2014) ; see State v. Gray , 306 Kan. 1287, 1294, 403 P.3d 1220 (2017) ("we read the statutory language as it appears, without adding or deleting words"). The Revised Code's jurisdiction statute, K.S.A. 2016 Supp. 38-2273(a), states: "An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights." Grandfather is an "interested party" who may appeal certain orders. See K.S.A. 2016 Supp. 38-2202(m) ("interested party" includes "the grandparent of the child"). The statute creates five categories of appealable orders in a CINC case. In re N.A.C. , 299 Kan. 1100, 1109, 329 P.3d 458 (2014). Grandfather claims an order denying a motion to terminate parental rights fits within the last category: "termination of parental rights." To this end, he argues that "any order of ... termination of parental rights" means any order regarding the termination of parental rights. And so an order declining to terminate parental rights would fall under that umbrella. Conspicuously absent from K.S.A. 2016 Supp. 38-2273(a) is any mention of, say, an order denying or involving the termination of parental rights. And of course, we cannot add words to the statute. See Gray , 306 Kan. at 1294, 403 P.3d 1220 ; see also Murphy v. National Collegiate Athletic Assn. , 584 U.S. ----, 138 S.Ct. 1461, 1486, --- L.Ed.2d ---- (2018) (Thomas, J., concurring) ("courts cannot take a blue pencil to statutes"). So Grandfather hangs his hat on the word "any," arguing it expands the meaning of a termination order to include any related order. This argument presumes that "any" modifies "order of ... termination of parental rights" in the first place. For purposes of this opinion, we assume the same. Even so, we conclude that an order of "termination of parental rights" means what it plainly says-an order ending parental rights, not leaving them intact. See Black's Law Dictionary 1700 (10th ed. 2014) (defining "termination" as "[t]he act of ending something"). The adjective "any" in no way alters this meaning. As used in K.S.A. 2016 Supp. 38-2273(a), "any" is an indefinite adjective that quantifies the thing it modifies but does not change its substantive meaning. See Webster's New World College Dictionary 64 (5th ed. 2014) (defining the adjective "any" as "some, no matter how much or how little" and "without limit"); see also United States v. Gonzales , 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed. 2d 132 (1997) ("Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.' Webster's Third New International Dictionary 97 [1976]."). This concept was perhaps best illustrated in Price v. Time, Inc. , 416 F.3d 1327 (11th Cir. 2005). There, the Eleventh Circuit considered whether Alabama's shield statute protected a reporter from being compelled to reveal a confidential source for a magazine article. The outcome depended on whether the plain meaning of the phrase "any newspaper" included magazines. As the court succinctly explained: "While the scope of the 'any' adjective is plenty wide to sweep in all of the noun category that follows, it ordinarily does not sweep beyond that category. The term 'any dog' does not mean 'any dog or cat' unless a cat is a dog. Likewise, the term 'any newspaper' does not mean 'any newspaper or magazine,' unless a magazine is a newspaper. So, we are back where we started, looking for the plain meaning of the word 'newspaper.' " 416 F.3d at 1336. See United States v. Stock , 728 F.3d 287, 295 (3d Cir. 2013) ("[T]he adjective 'any' can broaden the scope of the noun ... to its natural boundary, but not beyond."); see also The Late Show with Stephen Colbert (CBS television broadcast March 21, 2018) (when asked by show host Stephen Colbert, "Is a hot dog a sandwich?" Colbert's guest-Justice Ruth Bader Ginsburg-answered, "You tell me what a sandwich is, and then I'll tell you if a hot dog is a sandwich."). The same reasoning applies here. Because the adjective "any" does not expand the category it modifies, we arrive back where we started-with the plain meaning of the phrase "order of ... termination of parental rights." K.S.A. 2016 Supp. 38-2273(a). This means an order that ends parental rights, and nothing more. Put simply, the order Grandfather appeals from is a cat, not a dog. In In re N.A.C. , we held post-termination orders issued under K.S.A. 2012 Supp. 38-2264(h) are not subject to appellate review because they do not fall within one of the five categories of appealable orders in a CINC case. In re N.A.C. , 299 Kan. at 1120-21, 329 P.3d 458. In so holding, we reasoned: " 'We simply cannot create a new category of appeals so that appeals like this one may be heard. Nor should we. The legislature has worked hard to create a comprehensive Code for Care of Children. It has attempted to balance the protection of the rights of children, parents, and other interested parties .... We respect the choice the legislature has made here.' " 299 Kan. at 1121, 329 P.3d 458 (quoting In re A.F. , 38 Kan. App. 2d 742, 746, 172 P.3d 63 [2007] ). We likewise refuse to create a new category of CINC appeals where the Legislature has declined to do so. See Hoesli v. Triplett, Inc. , 303 Kan. 358, 362, 361 P.3d 504 (2015) ("When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be."). Thus, the panel below correctly held that K.S.A. 2016 Supp. 38-2273(a)"does not provide appellate jurisdiction for any order regarding the termination of parental rights, only an order which terminates parental rights," and whether Grandfather's appeal should be heard is a question for the Legislature. In re T.S ., 2017 WL 2896086, at *10 ; see In re A.S. , 52 Kan. App. 2d at 177, 364 P.3d 1203. Accordingly, we hold K.S.A. 2016 Supp. 38-2273(a) does not provide the right to appeal a denial of a motion to terminate parental rights and affirm the dismissal of Grandfather's appeal for lack of jurisdiction. As a final matter, Grandfather also argues that dismissing this appeal would deny him due process. But Grandfather neither cites supportive authority for this argument nor demonstrates why we should adopt it otherwise. As we have stated, "Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue." McCain Foods USA, Inc. v. Central Processors, Inc. , 275 Kan. 1, 15, 61 P.3d 68 (2002). Because Grandfather failed to brief this issue, we consider it waived or abandoned. 275 Kan. at 15, 61 P.3d 68. Affirmed.

The opinion of the court was delivered by Stegall, J.: In the early morning hours of June 16, 2009, Jesse J. Atkins was walking from a bar to his hotel when he was hit by a drunk driver. He suffered catastrophic injuries. At the time, Atkins was a laborer working an out-of-town roofing job. Atkins sought workers compensation benefits, but the Workers Compensation Board denied compensation, finding Atkins' injuries did not arise out of and in the course of his employment. The Court of Appeals affirmed. We hold substantial evidence supports the Board's decision to deny benefits. FACTUAL AND PROCEDURAL BACKGROUND The relevant facts in this case are not in dispute. Atkins worked for Webcon, Inc. as a general laborer. Webcon was a Hutchinson-based commercial roofing company. It employed multiple work crews and contracted for both local and out-of-state jobs. Crew members were paid hourly and would receive a small bonus if they finished the job on time. At the time of his injuries, Atkins was working on a crew that was reroofing a grain elevator in Enid, Oklahoma. Webcon expected it would take several months to complete the job. Atkins was considered part of Webcon's "core group" of laborers who were typically assigned to large or difficult projects. For this job, the crew would meet on Monday mornings at Webcon's premises, load into company trucks, and travel to Enid for the week. The crew returned to Hutchinson on Friday afternoons. They were paid while traveling between Hutchinson and Enid. Although crew members were ostensibly permitted to drive their personal vehicles to Enid, Webcon would not have reimbursed them for fuel or mileage. Not surprisingly, crew members never asked to drive their own vehicles. While in Enid, the crew stayed at the Baymont Inn, which Webcon selected. Each room housed two crew members. Webcon paid for the room and all meals. Crew members also received an additional $25 payment for each night they stayed in Enid. Each work day around 6 or 7 a.m., the crew left the hotel in company trucks to travel to the worksite; they returned to the hotel around 6 or 7 p.m. Crew members were paid from the time they departed until they arrived back at the Baymont. Upon their return, crew members were no longer under Webcon's supervision and were free to do what they wished. Crew members were permitted to use the company trucks to run errands if they received permission from a foreman. However, they were not permitted to take a company truck to a bar. Across the street from the Baymont was a Ramada Inn. Unlike the Baymont, the Ramada had a bar. It was common for crew members to walk to the Ramada after work to have drinks. On the evening of June 15, 2009, the crew returned from the worksite and grilled dinner together at the Baymont. After dinner, Atkins and a coworker, Nick Wittekind, walked to the Ramada to have drinks and play darts. Wittekind eventually left around 11:30 p.m. and walked back to the Baymont by himself. At 2:20 a.m., Atkins was walking alone back to the Baymont when he was struck by a vehicle driven by an intoxicated driver. Atkins' injuries were severe. Doctors had to amputate his right leg, a finger, and a toe. In addition to extensive internal injuries, Atkins lost vision in his right eye and underwent several skin grafts. In October 2009, Atkins submitted an application for hearing with the Division of Workers Compensation of the Kansas Department of Labor. Following a preliminary hearing, an administrative law judge (ALJ) determined Atkins' injuries were the result of a hazard created by the conditions of his employment, namely his required travel to Enid. The ALJ ordered temporary total disability and directed Webcon to pay Atkins' medical treatment. The Board affirmed the ALJ's preliminary order, reasoning that once Atkins departed from Hutchinson in a company truck, he "assumed the duties of his job and the entire undertaking [was] an indivisible one." In April 2014, the ALJ conducted a regular hearing. The ALJ ultimately concluded travel was an intrinsic part of Atkins' job and that Atkins "was injured as the result of traveling to Enid, Ok. to complete a work related errand." As such, it found Atkins' injuries arose out of and occurred in the course of his employment. The Board reversed, disagreeing that travel was intrinsic to Atkins' work. Relying on a pair of Court of Appeals' opinions, the Board determined Atkins was a fixed-situs employee who was not at work at the time of his injuries. It concluded: "Claimant was not at work in his employer's service at the time of his injury, nor did his injury arise out of the nature, conditions, obligations or incidents of his employment with respondent. Claimant's work day ended when he was delivered to the Baymont Inn. Claimant's time spent at the Ramada Inn bar had no connection to his employment. Respondent received no benefit from claimant spending time at a bar and walking back to his room at 2:25 in the morning. Claimant was not engaged in a custom of his employment or activity contemplated as work-related by respondent." The Court of Appeals affirmed the Board's decision, and we granted Atkins' petition for review. Atkins v. Webcon , No. 113117, 2016 WL 299084 (Kan. App. 2016) (unpublished opinion). ANALYSIS The only contested issue is whether Atkins' injuries arose out of and in the course of his employment as defined by the Kansas Workers Compensation Act (KWCA), K.S.A. 44-501 et seq. Standards of Review Pursuant to the KWCA, the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs our review. See K.S.A. 2008 Supp. 44-556(a) (expressly adopting the KJRA as the means by which courts review Board actions). The KWCA further provides that "[s]uch review shall be upon questions of law." K.S.A. 2008 Supp. 44-556(a). We have stated numerous times that "[t]he determination of whether the Board's findings of fact are supported by substantial competent evidence is such a question of law." Titterington v. Brooke Insurance , 277 Kan. 888, 894, 89 P.3d 643 (2004) ; see Scott v. Hughes , 294 Kan. 403, 415, 275 P.3d 890 (2012) ( Scott II ); Mudd v. Neosho Memorial Regional Med. Center , 275 Kan. 187, 191, 62 P.3d 236 (2003) ; Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc. , 268 Kan. 33, 34, 991 P.2d 406 (1999). Indeed, while the interpretation or construction of the KWCA is a question of law, "once that interpretation or construction has occurred, the ultimate question of whether an accident arises out of and in the course of employment is a question of fact." Scott , 294 Kan. at 415, 275 P.3d 890 ; see Williams v. Petromark Drilling, 299 Kan. 792, 795, 326 P.3d 1057 (2014) ("If there was substantial competent evidence to support the Board's finding that the tire blowout occurred while [employee] was in the course and scope of his employment, ... then the Court of Appeals' limited role required it to affirm the Board."); Foos v. Terminix , 277 Kan. 687, 691, 89 P.3d 546 (2004) ("[W]hether there has been an accidental injury arising out of and in the course of employment is a question of fact, and its determination will not be disturbed by an appellate court where there is substantial evidence to sustain it."); Newman v. Bennett , 212 Kan. 562, Syl. ¶ 3, 512 P.2d 497 (1973) ("Whether an accident arises out of and in the course of the workman's employment depends upon the facts peculiar to the particular case."); Carter v. Alpha Kappa Lambda Fraternity, 197 Kan. 374, 376, 417 P.2d 137 (1966) ("The question of whether there has been an accidental injury arising out of and in the course of the employment is a question of fact and when determined by the district court the finding will not be disturbed by this court where there is substantial evidence to sustain it."); see also Graber v. Dillon Companies , 52 Kan. App. 2d 786, 798, 377 P.3d 1183 (2016). Pursuant to K.S.A. 2017 Supp. 77-621(c)(7), a reviewing court shall grant relief only if "the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole[.]" When reviewing an agency action under K.S.A. 2017 Supp. 77-621(c)(7), " 'the appellate court is limited to ascertaining from the record if substantial competent evidence supports the agency findings .' " Bd. of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n , 306 Kan. 298, 326, 393 P.3d 601 (2017). " 'Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined.' " In re Equalization Appeal of Wagner , 304 Kan. 587, 599, 372 P.3d 1226 (2016) ; see Kotnour v. City of Overland Park , 43 Kan. App. 2d 833, 837, 233 P.3d 299 (2010) ("Although [ K.S.A. 77-621 ] does not define the term 'substantial evidence,' case law has long stated that it is such evidence as a reasonable person might accept as being sufficient to support a conclusion."). K.S.A. 2017 Supp. 77-621(d) dictates how to conduct such a review: "For purposes of this section, 'in light of the record as a whole' means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review." Subsection (d) was added to K.S.A. 77-621 only a few days after Atkins was injured. See L. 2009, ch. 109, § 28. Prior to the statutory change, courts upheld Board findings even though there was evidence in the record to support contrary findings. See Hall v. Dillon Companies, Inc. , 286 Kan. 777, 780, 189 P.3d 508 (2008). The insertion of (d) altered an appellate court's analysis in three ways: "(1) It requires review of the evidence both supporting and contradicting the Board's findings; (2) it requires an examination of the presiding officer's credibility determination, if any; and (3) it requires review of the agency's explanation as to why the evidence supports its findings." Redd v. Kansas Truck Center , 291 Kan. 176, 182, 239 P.3d 66 (2010). Because "the KJRA provisions in effect at the time of the agency action are controlling[,]" and the Board denied benefits on January 7, 2015, the new substantial competent evidence standard applies in this case. See 291 Kan. at 183, 239 P.3d 66. That said, interpreting the statutory phrase "arising out of and in the course of employment" is a question of law, not fact. See Scott v. Hughes , 281 Kan. 642, 644, 132 P.3d 889 (2006) ( Scott I ) ("[T]he potentially dispositive legal question in this appeal is one requiring interpretation of the Workers Compensation Act.... Statutory interpretation and construction present questions of law over which this court's review is unlimited."). If the Board's decision is premised on an error of law, it will be infirm regardless of its findings of fact, though those same findings may still support the result when the error of law is remedied. See In re Tax Exemption Application of Westboro Baptist Church , 40 Kan.App.2d 27, 49, 189 P.3d 535 (2008) ("[W]hen an agency tribunal reaches the right result, its decision will be upheld even though the tribunal relied upon the wrong ground or assigned erroneous reasons for its decision.") (citing In re Tax Appeal of Colorado Interstate Gas Co. , 258 Kan. 310, 317, 903 P.2d 154 [1995] ). We do not defer to an ALJ's or the Board's interpretation of a workers compensation statute. Douglas v. Ad Astra Information Systems , 296 Kan. 552, 559, 293 P.3d 723 (2013). Courts apply the KWCA impartially to both employers and employees. K.S.A. 2008 Supp. 44-501(g) ; Scott I , 281 Kan. at 645, 132 P.3d 889. Atkins carries the burden of demonstrating his injuries arose out of and in the course of his employment. See K.S.A. 2008 Supp. 44-501(a). Atkins' injuries did not arise out of or in the course of his employment. An employer is liable to pay compensation for an employee's "personal injury by accident arising out of and in the course of employment." K.S.A. 2008 Supp. 44-501(a). " 'The two phrases arising "out of" and "in the course of" employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq. , have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase "out of " employment points to the cause or origin of the worker's accident and requires some causal connection between the accidental injury and the employment. An injury arises "out of" employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises "out of" employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase "in the course of " employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer's service. [Citations omitted.]' " Scott II , 294 Kan. at 416, 275 P.3d 890. We have long stated an injury happens in the course of employment " 'when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.' " Sumner v. Meier's Ready Mix, Inc. , 282 Kan. 283, 288, 144 P.3d 668 (2006) (quoting 1 Larson's Workers' Compensation Law § 12, p. 12-1 [1999] ); see Estate of Soupene v. Lignitz , 265 Kan. 217, 222-23, 960 P.2d 205 (1998) (same); Fairchild v. Prairie Oil & Gas Co. , 138 Kan. 651, 655, 27 P.2d 209 (1933) (" 'An injury occurs in the course of employment when it is within the period of the employment at a place where the employee reasonably may be in performing his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto.' "). And although it is impossible to establish a bright-line test to determine whether an injury arises out of employment, "the focus of inquiry should be on whether the activity that results in injury is connected to, or is inherent in, the performance of the job." Bryant v. Midwest Staff Solutions, Inc. , 292 Kan. 585, 596, 257 P.3d 255 (2011) ; see Moore v. Venture Corp. , 51 Kan.App.2d 132, 140, 343 P.3d 114 (2015). Simply put, " '[t]he right to compensation benefits depends on one simple test: Was there a work-connected injury?' " Bryant , 292 Kan. at 595, 257 P.3d 255. In defining the words "arising out of and in the course of employment," the Legislature has stated: "The words 'arising out of and in the course of employment' ... shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of the employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence. ... "The words, 'arising out of and in the course of employment' as used in the workers compensation act shall not be construed to include injuries to employees while engaged in recreational or social events under circumstances where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee's normal job duties or as specifically instructed to be performed by the employer." K.S.A. 2008 Supp. 44-508(f). The first paragraph of subsection (f)-which is currently located in K.S.A. 2017 Supp. 44-508(f)(3)(B) -codifies the longstanding "going and coming rule." See, e.g., Chapman v. Victory Sand & Stone Co. , 197 Kan. 377, 382, 416 P.2d 754 (1966) (noting it was first codified in 1917). The going and coming "rule," however, is more aptly characterized as a statutorily defined "exclusion" to the "arising out of and in the course of employment" language in the KWCA. See Sumner , 282 Kan. at 288, 144 P.3d 668. "In other words, a worker who is traveling to and from work is not generally covered by the Act because mere travel to and from work does not, by definition, arise out of and in the course of employment." Scott , 294 Kan. at 414, 275 P.3d 890. Because an employee travelling to and from work faces the same risks and hazards as the general public, the risks encountered are not causally related to employment. Thompson v. Law Offices of Alan Joseph , 256 Kan. 36, 46, 883 P.2d 768 (1994). Atkins invokes the "going and coming rule" to coverage under the KWCA in order to get to what is commonly referred to as an exception to the "rule"-the "intrinsic travel exception." But the intrinsic travel exception is not so much an exception as it is an exercise in statutory interpretation. When interpreting the going and coming exclusion, we have recognized that when travel is an intrinsic part of the employee's job, the employee has already assumed the duties of his or her employment when they are "going and coming." See Williams , 299 Kan. at 795, 326 P.3d 1057 ("If there was substantial competent evidence to support the Board's finding that the tire blowout occurred while Williams was in the course and scope of his employment, i.e. , during travel intrinsic to his duties for Petromark, then the Court of Appeals' limited role required it to affirm the Board."); Scott II , 294 Kan. at 421, 275 P.3d 890 ("If travel to the job site on the morning of the accident was an intrinsic aspect of Hughes' job, then the going and coming rule did not apply to remove him from the Act; he was within the course and scope of his employment and was entitled to fellow servant immunity from plaintiffs' civil suits."); Estate of Soupene , 265 Kan. at 225, 960 P.2d 205 ("[T]he accident occurred in the course of Soupene's employment, as he had assumed the duties related to his employment when he began responding the emergency call."); Kennedy v. Hull & Dillon Packing Co. , 130 Kan. 191, 196, 285 P. 536 (1930) (a travelling salesman's "employment enjoined upon him traveling from place to place within his territory almost continuously in the discharge of his duties. He was using the highway in his employer's service when he was injured and was much more exposed to its hazards than people generally."). Thus, although we have often referred to the intrinsic travel "exception," it is no more an exception than the going and coming rule is a rule. That is, the inherent travel exception is an interpretive explanation of the contours of K.S.A. 2008 Supp. 44-508(f). Equipped with this understanding of the statute, fact-finders can then discern whether "the employee has already assumed the duties of employment once he or she heads out for the day's work." Halford v. Nowak Construction Co. , 39 Kan.App.2d 935, 942, 186 P.3d 206 (2008) (Leben, J., concurring); see Craig v. Val Energy, Inc. , 47 Kan.App.2d 164, 168, 274 P.3d 650 (2012) (explaining that the inherent travel "exception" is merely a "method to determine whether an employee has already assumed the duties of employment when he or she is going to or returning from work"). Here, Atkins has availed himself of this court-made maze of "rules" and "exceptions" to the rules (along with the attendant caselaw) to claim that because travel to Enid, Oklahoma, was intrinsic to his job, his injuries must be compensable. Both the Board and the Court of Appeals followed Atkins down this analytical path, though each concluded travel was not intrinsic because Atkins had become a "fixed-situs" employee who had established a temporary residence at the Baymont. See Atkins , 2016 WL 299084, at *5-6 (citing Butera v. Fluor Daniel Construction Corp. , 28 Kan. App. 2d 542, 18 P.3d 278 [2001], and Ostmeyer v. Amedistaff, L.L.C. , No. 101909, 2009 WL 4931359 [Kan. App. 2009] [unpublished opinion] ). We conclude that pursuing this line of analysis concerning whether travel was intrinsic to Atkins' work needlessly complicated this case. Once our focus is returned to its proper place-Did Atkins' injuries arise out of and in the course of employment?-it quickly becomes apparent that the going and coming exclusion contained in K.S.A. 2008 Supp. 44-508(f) is simply irrelevant. Atkins essentially contends that the going and coming exclusion cannot be invoked against him to deny coverage under the KWCA because the intrinsic travel exception applies to him. We agree with Atkins that the going and coming exclusion is inapposite here, but not because of the intrinsic travel exception. Rather, the facts simply demonstrate that Atkins was not going to or coming from work when he was injured. Atkins and Wittekind walked to the bar after dinner to have a few drinks and unwind after a day of work. While at the bar, Atkins was not fulfilling a work related duty. While walking from the bar back to his hotel room in the early morning hours, Atkins was not on the way to assuming any of the duties of his employment. The plain language of K.S.A. 2008 Supp. 44-508(f), therefore, makes it clear the going and coming exclusion is not at issue here. The whole tenor of the dispute below, however, suggests an assumption by everyone that if the "intrinsic travel exception" applied, Atkins' injuries must be compensable. But that approach simply begs the more basic factual question as to whether the injuries arose out of and in the course of employment. It is on this more fundamental ground that the case can be decided-and decided with relative ease. Reviewing the record as a whole, we conclude substantial competent evidence supports the Board's ultimate finding that Atkins' injuries did not arise out of and in the course of his employment. Atkins' injuries did not occur while he was fulfilling work duties or doing something incidental to those duties. See Sumner , 282 Kan. at 288, 144 P.3d 668. Staying at the Baymont Inn while the roofing crew was in Enid may have been incidental to his work duties. If Atkins' injuries had arisen from that fact-in a hotel fire for example-we would have a different case and possibly a different result. But his presence at the hotel is not the operative fact in this case. Atkins was injured while walking between a bar and the hotel in the middle of the night. And that activity is too far removed from any of Atkins' work duties to properly be described as incidental to those duties. We recognize Atkins suffered traumatic injuries, and we are sympathetic to how his life has been drastically altered by them. But applying the law to the facts, we conclude the findings of fact supported by substantial competent evidence demonstrate that those injuries did not arise out of or in the course of his employment. See Bryant , 292 Kan. at 595, 257 P.3d 255. Accordingly, we affirm the Court of Appeals as being right for the wrong reason. See Whye v. City Council for City of Topeka , 278 Kan. 458, 464, 102 P.3d 384 (2004) ("The Court of Appeals is affirmed as right for the wrong reason."). Affirmed.

The opinion of the court was delivered by Beier, J.: Defendant Josiah R. Bunyard appeals his convictions for battery, aggravated battery, attempted violation of a protective order, and intimidation of a witness. During the course of his case, Bunyard was very active in his defense. At a motions hearing on the Friday before his trial was to begin on Monday, Bunyard interjected during argument before the court. The district judge told Bunyard that he could either speak through his appointed lawyer or represent himself. Given those options, Bunyard said he would represent himself. After discussing the matter with counsel, Bunyard temporarily dropped the issue. But, before the conclusion of the hearing, Bunyard again interjected and stated that he wanted it on the record that he was "unequivocally" asserting his right to self-representation. The judge refused to take up the matter of self-representation at that time, instead telling Bunyard that he must file a written motion if he wanted to represent himself. Bunyard did not file a written motion or otherwise reassert the right to self-representation when court reconvened the next week. Before the Court of Appeals, Bunyard raised multiple issues. Included among them was denial of his right to self-representation. The Court of Appeals rejected this claim and the other claims Bunyard raised and affirmed his convictions and sentence. See State v. Bunyard , No. 112,645, 2016 WL 1719607, at *17 (Kan. App. 2016). Bunyard filed a petition for review by this court, which was granted. We hold that there was structural error in the handling of Bunyard's invocation of his right to self-representation, and we reverse the Court of Appeals decision and the judgment of the district court. The case must be remanded to district court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND To resolve Bunyard's appeal, it is not necessary to recite the facts leading to the charges against him in detail. Highly summarized, the State alleged that Bunyard choked and broke the jaw of his girlfriend, Jennifer Wood. After Bunyard was arrested and ordered not to have any contact with Wood, Bunyard sent a letter to a mutual friend that the State alleged was intended to be passed to Wood. See 2016 WL 1719607, at *1. At the Friday pretrial hearing referenced above, the district judge took up two motions, including the State's motion to introduce Wood's preliminary hearing testimony at trial. The State had unsuccessfully attempted to find Wood to secure her attendance and live testimony. Multiple witnesses testified about the State's efforts to locate Wood. After the testimony concluded, Mark Sevart, Bunyard's appointed counsel, argued that the State was not diligent enough to render Wood unavailable to testify. In the alternative, Sevart argued, even if Wood qualified as legally unavailable, it would be inappropriate to admit her preliminary hearing testimony, because, according to him, the cross-examination of Wood conducted by Bunyard's previous counsel, Charles O'Hara, was insufficient to satisfy the Confrontation Clause. During the State's response to Sevart's argument, the prosecutor noted that he had new information on the whereabouts of another witness, for which both the State and defense had requested a material witness warrant. During a colloquy between the judge and the State about that witness, Bunyard interrupted. The transcript of the hearing includes the following exchange: "THE COURT: So you're not seeking to have her declared unavailable since, apparently, she's recently been located? "[THE STATE]: That's correct. .... "THE DEFENDANT: Your Honor, could I please be heard? "THE COURT: Mr. Bunyard, you have appointed counsel who has filed this motion or is responding to this motion, so you're either having Mr. Sevart argue this case-or are you representing yourself? Which is it? "THE DEFENDANT: "I'll represent myself, if that's the choice. I will definitely- "THE COURT: You're seeking to have Mr. Sevart taken off this case? "THE DEFENDANT: If those are my options, then, yes. "THE COURT: What are you asking, Mr. Bunyard? "THE DEFENDANT: I'm asking to be heard right now. "THE COURT: About what? "THE DEFENDANT: About what we're having the hearing on. I have some information that-they've given you information that's not correct. "THE COURT: Mr. Sevart, why don't you take a moment ... and speak off the record with your client. Do you expect this to be a lengthy conversation? "MR. SEVART: Well, Your Honor, perhaps we should reconvene Monday, as far as-or, I mean, later today, I guess, too, but, I mean, I know you've got some other items- "[THE STATE]: At the very minimum, I'd ask that you authorize a material witness warrant for Ms. Wood. We need to have the weekend to try to find her. "THE COURT: Mr. Sevart, why don't you take a few minutes and speak with him there at counsel table, and then we'll see if we can resolve this. "[THE STATE]: Do you want me to step out, Judge? "THE COURT: No. You're fine." When the court came back on the record, the judge noted that the prosecutor had left the courtroom briefly while Sevart and Bunyard spoke. The judge then asked Sevart to inform the court of Bunyard's decision. "MR. SEVART: Your Honor, I think the points that my client wanted to raise that may or may not make any difference but should be presented to you are, apparently, Mr. O'Hara was retained with respect to one of the earlier cases. His status, whether he was appointed or just showed up or whatever with respect to this case, I guess, is not real clear. ... "THE COURT: Well, let me stop you right there, and let's nail this down. .... "THE COURT: Mr. O'Hara generally doesn't take appointments on criminal cases, so if he was present, whether pro bono or in relation to another case, he was not-you would agree he was not appointed by the Court to represent Mr. Bunyard on this case at the preliminary hearing; correct? On this case. "THE DEFENDANT: He was not retained by Mr. Bunyard, either. "THE COURT: That is not my question, Mr. Bunyard. I am addressing my question to Mr. Sevart, not to you. "My question, Mr. Sevart, is: Was he appointed by the Court to represent Mr. Bunyard? "MR. SEVART: No." The district judge and Sevart then continued to discuss O'Hara and whether there had been any objection raised at the preliminary hearing to his representation of Bunyard. As the judge was about to rule on one of the motions, Bunyard again interjected during the following exchange: "MR. SEVART: What ... I was getting to, Your Honor, is I think we can get to the motion on the witness, as far as the issuance of the warrant, and if the Court would reserve ruling until Monday with respect to the preliminary hearing-the usage of the preliminary hearing transcript, it may be moot if they locate her. But perhaps we have time so the Court can review that transcript, and then, also, I can visit with my client a little further and we can reconvene Monday morning on this motion. "THE COURT: All right. I'm going to go ahead and rule on the one motion. "THE DEFENDANT: I want it on the record I wish to represent myself unequivocally. "THE COURT: Mr. Bunyard, for the time being, I'm not going to take up an oral motion made at this time. I'm going to give you an opportunity to speak further with Mr. Sevart. I'm also going to give you an opportunity, if you decide to pursue that route, to file a proper motion to the Court. But we're not going to address that at this time. "THE DEFENDANT: How will I get that to- "THE COURT: Mr. Bunyard, that's all there is to say on that issue. "THE DEFENDANT: How will I get it to the Court? How do I tell them that? "THE COURT: Mr. Bunyard, you seem quite familiar with the procedures in filing pro se motions, so I'm not going to dictate to you how to represent yourself or proceed in that fashion if you want to. "THE DEFENDANT: The Court is-there's no mail going out for the weekend. There's no way I can get it there. "THE COURT: Mr. Bunyard, we're not addressing this matter further. "SHERIFF'S DEPUTY: Do you want him removed, sir? "THE COURT: We'll-we'll proceed." The judge then ruled that Wood was unavailable and that the transcript of her preliminary hearing testimony could be introduced by the State at trial. He then concluded the motions hearing. When Bunyard's trial began on Monday, before jury selection began, the district judge and parties addressed several outstanding issues. "THE COURT: Thank you. We're here this morning on the day of trial. We have spent the morning in some conversations in chambers and with defense counsel and the prosecuting attorney dealing with several outstanding issues trying to reach a resolution on some of them, addressing some last-minute matters. At this point, we're going to place on the record several things and address several outstanding matters. "To recap, on Friday, February 21st, we appeared and, to clarify and confirm with counsel, at that time as to the [S]tate's motion to determine witness availability I did find that as to witness Jennifer Wood that reasonable diligence had been shown by the [S]tate and, therefore, the preliminary hearing transcript of Ms. Wood could be used at trial. "I ruled as to the consolidation of these two cases that resulting from two or more acts or transactions connected together, or constituting parts of a common scheme or plan, that these cases would be consolidated. "The Motion to Suppress ... filed by Mr. Sevart was withdrawn as the [S]tate indicated they did not intend to use any evidence taken from the defendant's home at trial. "There were three separate motions to endorse; all of those were granted without objection. And I believe those were all the motions that were filed by either the defense or the [S]tate that were outstanding that needed to be dealt with Friday, correct? .... "THE COURT: All right. Obviously, depending on the trial, the [S]tate could reserve the right to bring something up in rebuttal. But, other than that, that is your understanding, Mr. Sevart, of all of the motions? "MR. SEVART: Your Honor, of the motions that- "THE COURT: Filed by you. "MR. SEVART: Yes, filed by me. We do have some issues with respect to some pro se motions and if we could address that[,] I'd appreciate it. "THE COURT: All right. Then at this time it looks like we need to address Mr. Bunyard and Mr. Sevart on this. There have been a number of pro se motions filed by the defendant, my understanding would be while he was represented by various attorneys in this case, and we need to-without having a clear record on what remains at issue, we need to address that. So, Mr. Sevart, how are you proposing we proceed? "MR. SEVART: Your Honor, if the Court would allow, what I would propose that we do is to-I guess, a formal method would be to withdraw all of those pretrial motions and in lieu of that have me present to the Court by way of oral motion the issues, I guess, that are-that are outstanding with respect to items raised in those pretrial motions. In other words, to substitute, I guess, maybe, is a better word, an oral presentation this morning that would dispose of all remaining issues and, therefore, I guess, all those other pretrial motions can be withdrawn or resolved by way of a substitution oral motion. "THE COURT: All right. Mr. Bunyard, you are aware that you have filed a number of motions purporting to represent yourself during the course of this case, and at this time you've had an opportunity to speak with Mr. Sevart either on Friday, over the weekend, or this morning about how you wish to proceed on those motions. "THE DEFENDANT: I'm sorry, I didn't understand exactly what you said. "THE COURT: Have you had an opportunity to speak with Mr. Sevart about all of the pro se motions that you have filed? "THE DEFENDANT: Yes. He's-he's got a list that-that is going to sum up the ones that are still relevant and-yeah. "THE COURT: All right. Mr. Bunyard, you have filed a lot of motions, and at this point because it's unclear exactly what is still at issue from your perspective, or what has or has not been ruled upon, what Mr. Sevart is proposing, and I'm prepared to do, is you're going to withdraw, if you would like, all of your motions. So all of the motions you have filed you're basically saying you no longer want them heard, and then what Mr. Sevart is saying is he will now make an oral motion on the ones that, apparently, you two have discussed and that you still believe are relevant; you understand that? "THE DEFENDANT: Yes, sir. "THE COURT: And is that what you want to do? Do you want to, at this time, withdraw all of the motions that you, yourself, have personally filed in this case? "THE DEFENDANT: As long as he argues the ones still that we've discussed that he's going to do, as long as that's still going to take place, then, yeah. "THE COURT: That's my understanding. Mr. Sevart has spoken with you and he says that he knows what you still want to be heard. He's going to make an oral motion on those. But, as far as your written motions, you're fine with withdrawing all of those motions and not having those motions heard where you would basically tell me what your arguments were. "THE DEFENDANT: Again, as long as he argues the ones that we've discussed, yes. "THE COURT: All right. Then, at this time, I'm going to show all of the pro se motions that you have filed to date that haven't already been ruled upon in some fashion by another judge as being withdrawn at this time. And you don't object to that, correct, Mr. Bunyard? "THE DEFENDANT: Again, as long as all this is argued that we're talking about that I've discussed with him, I do not object. "THE COURT: All right. In that case, Mr. Sevart, I'll allow you to proceed with your first oral motion." Sevart then argued the substance of several of the pro se motions, and the district judge ruled upon them. After the conclusion of evidence and closing arguments at trial, the jury returned guilty verdicts on all four counts. The district judge sentenced Bunyard to 144 months on the aggravated battery conviction. For each of the three other counts, he imposed a sentence of six months in jail to run concurrent to the aggravated battery sentence. When the Court of Appeals took up Bunyard's self-representation issue, the panel noted that "a district court cannot effectively filibuster a criminal defendant's spontaneous request for self-representation by refusing to rule on the request or by imposing requirements that the defendant reassert that request in a detailed written form or in successive hearings to secure a ruling." Bunyard , 2016 WL 1719607, at *4 (citing State v. Vann , 280 Kan. 782, 794, 127 P.3d 307 [2006] ). Likewise, the panel said, a district judge cannot "act in a manner likely to foster the impression the request will necessarily be denied or withhold a discussion of the implications of self-representation to stymie a defendant's desire to represent himself or herself." 2016 WL 1719607, at *4. Nevertheless, the panel ruled that there had been no "functional or deliberate" undermining of Bunyard's right to represent himself. 2016 WL 1719607, at *4. "Bunyard was exceptionally active personally in the defense of the charges both through his extensive pro se filings and his comments during court appearances. Yet, he did not make a request for self-representation until the district court mentioned it a couple of days before trial. Bunyard did not then act on the district court's direction by preparing even a nominal or bare-bones motion for self-representation-something that was within his capacity." 2016 WL 1719607, at *4. The panel also noted that Bunyard did not "resurrect" the issue on the morning of trial, when, in its words, he "affirmatively assented" to counsel's argument on other outstanding pro se motions. 2016 WL 1719607, at *4. We granted Bunyard's petition for review of the Court of Appeals decision. DISCUSSION The extent of the right to assistance of counsel and the related right to self-representation is a question of law over which this court exercises unlimited review. See State v. Jones , 290 Kan. 373, 376, 228 P.3d 394 (2010). The United States Supreme Court has held "that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation." Vann , 280 Kan. at 793, 127 P.3d 307 (citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 [1975] ). " 'The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.' " Jones , 290 Kan. at 377, 228 P.3d 394 (quoting Faretta , 422 U.S. at 819, 95 S.Ct. 2525 ). "A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed on the record of the dangers and disadvantages of self-representation. The choice is to be made ' "with eyes open." ' " State v. Graham, 273 Kan. 844, 850, 46 P.3d 1177 (2002). There is obvious potential tension between the right to counsel and the right, as a layperson, to represent oneself. " 'Because the right to proceed pro se is at odds with the right to be represented by counsel, "[t]he courts must indulge 'every reasonable presumption against waiver' of the right to counsel, and will 'not presume acquiescence in the loss of fundamental rights [i.e., the right to counsel].' " [Citation omitted.] "[U]nlike the right to counsel, the right to self-representation can be waived by mere failure to assert it." [Citation omitted.]' State v. Lowe, 18 Kan. App. 2d 72, 74-75, 847 P.2d 1334 (1993)." Vann , 280 Kan. at 793, 127 P.3d 307. Still, "[a] trial court may not measure a defendant's competence to waive his or her right to counsel by evaluating the defendant's 'technical legal knowledge.' " Jones , 290 Kan. at 377, 228 P.3d 394 (citing Godinez v. Moran , 509 U.S. 389, 399-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 [1993] ). Whether a lawyer could better represent a defendant also is not the question for the court to decide. See State v. Lowe , 18 Kan. App. 2d 72, 75, 847 P.2d 1334 (1993). The Supreme Court of the United States has held that a failure to honor a criminal defendant's properly asserted right to self-representation is structural error. " 'Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to "harmless error" analysis. The right is either respected or denied; its deprivation cannot be harmless.' " Vann , 280 Kan. at 793, 127 P.3d 307 (quoting McKaskle v. Wiggins , 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 [1984] ). Two previous cases-one from this court and one from the Court of Appeals are instructive here. In the first, State v. Vann , the State charged defendant Durayl Vann with attempted first-degree murder, among other crimes. Two months after the district court appointed counsel for Vann, he filed a pro se motion requesting different counsel and alleging a conflict of interest between himself and counsel. Vann did not serve counsel with a copy of the motion, and the motion was not addressed at Vann's preliminary hearing, which was held a few days after the motion was filed. The day after the preliminary hearing, Vann sent a letter to the clerk, asking about the motion for new counsel. A few days later, Vann filed several more pro se motions, including a motion to proceed pro se and retain stand-by counsel. The presiding district judge forwarded the letter Vann had written to the clerk to Vann's counsel and advised that if counsel wanted a hearing on the matter, he needed to contact the court and a hearing would be scheduled. Vann , 280 Kan. at 786-87, 127 P.3d 307. Before trial, the State reminded the district judge that Vann had filed pretrial pro se motions. The judge responded that he did not ordinarily hear pro se motions when a defendant had representation. But, if the defendant wanted to discuss the motions with his counsel and have counsel bring them before the court, the judge said, he would hear them. Vann's counsel did not want to bring any other motions before the court, and Vann did not say anything to the court about the motions at that time. Vann did not raise any of his pro se motions again until the court heard a motion for new trial after Vann's convictions. Vann then brought up his motion for new counsel. The district judge told Vann that he should have called the court's attention to the motion on the morning of trial. At sentencing, Vann again brought up his pro se motion for new counsel, and the district judge again declined to address it. On appeal, this court addressed whether the district court's refusal to address Vann's motion to proceed pro se with stand-by counsel violated his right to self-representation. The court framed the dispositive issue as "whether the defendant clearly and unequivocally asserted his right to self-representation prior to trial." 280 Kan. at 794, 127 P.3d 307. Cf. State v. Cromwell , 253 Kan. 495, 505, 856 P.2d 1299 (1993) (right of self-representation unqualified if asserted before trial; after trial starts, district judge has discretion to grant request). The State argued that Vann's "failure to serve the motion on counsel, request a hearing, or to raise the issue at the pretrial motions hearing was a waiver of the right to self-representation." Vann , 280 Kan. at 794, 127 P.3d 307. This court disagreed. "The defendant's motion 'to proceed pro se and retain the attorney as consultant in an advis[o]ry capacity' was a clear and unequivocal assertion of the right to proceed pro se prior to trial. While we acknowledge that the defendant had filed other motions requesting the appointment of a new attorney, this did not change the fact that the defendant expressed a desire to proceed pro se. In fact, the existence of these other motions was a greater reason for the court to conduct a further inquiry into the defendant's position. "Once the defendant asserted his constitutional right to self-representation by pretrial motion, his counsel was advised of the existence of the defendant's pro se motions by letter from the district court, and the defendant was told by the court that it would not consider motions raised by the defendant himself. The defendant subsequently explained to the court that counsel had advised him against raising his pro se motions. Based on these facts ... a possibility certainly existed at the pretrial motions hearing that the defendant allowed defense counsel to continue representing him because he felt that he had no other choice." 280 Kan. at 794, 127 P.3d 307. This court stated that a holding to the contrary would mean "a defendant would bear the burden of continually reasserting his or her right to self-representation or it is waived." 280 Kan. at 794-95, 127 P.3d 307. But "where the defendant allows defense counsel to continue representing him without reasserting his right to self-representation, it does not constitute a waiver of that right." 280 Kan. at 795, 127 P.3d 307. Because the district judge failed to consider Vann's pretrial assertion of his right to self-representation, we reversed his convictions and remanded the case for new trial. 280 Kan. at 795, 127 P.3d 307. The second case, State v. Lowe , from the Court of Appeals lent support to our court's decision in Vann . See Vann , 280 Kan. at 793-95, 127 P.3d 307 (citing Lowe , 18 Kan. App. 2d at 74-76, 79, 847 P.2d 1334 ). In Lowe , counsel for defendant Michael Lowe informed the district judge that her client wished to represent himself. The judge then spoke directly to Lowe: " '[THE COURT:] She said you wanted to represent yourself, which I need to bring you in here and tell you what the law is on that. " 'The only way I can do that is if I make a finding that it would not be of benefit to you to have a lawyer in the case, is the only way that I can let you be your own lawyer. " 'I've never been a defendant in a case. I've been a lawyer in a case; I've been a judge in a case. I tell you, you don't want to try and undertake that yourself, when you are so close to it, when you are the defendant. " 'I've tried a number of defendants and you are better off letting the lawyer make the legal decisions. Whether you enter a plea or not or that sort of matter, that's up to you; your lawyer doesn't have nothing to say about that. But where to stand and, oh, legal things I'm talking about, you know, how to make a legal argument on whether a piece of evidence is permissible or not, you are better off with a lawyer, I'm telling you. " 'Another thing, you have a right to be in your proper clothes in your case. Your lawyer told me you wouldn't say one way or the other. We have a suit of clothes. I'll get those. We have those up here. We'll let you go to the library, jury room, put on your proper clothes. You don't have to. That's up to you. " 'Another reason I moved up here from my courtroom is that holding cell is wired for sound. If you participate-you don't have to-but you can hear everything going on from back there. " 'It's your case. I'm not trying to tell you what to do about it. I want to make sure that you know what's going on. If you want a trial, that's what we'll do right here this afternoon. We want to do everything right and proper and participate in it, being it's your case. " 'Do you understand where you are at? " 'What did you want to do? " 'THE DEFENDANT: I want a trial. " 'THE COURT: Did you want to be out here? " 'THE DEFENDANT: Yeah. " 'THE COURT: Do you want to put on your civilian clothes? " 'THE DEFENDANT: No. " 'THE COURT: Okay. Now, when the people see-there's been so much publicity on the orange jumpsuits-they'll know where you are at. I'll tell the jury that they may not consider that, that has nothing to do with anything. If they consider the fact that you are in that orange jumpsuit, they are acting improperly. I'll tell them that but it's whatever you want to do as far as dress. " 'THE DEFENDANT: I'm fine like this. " 'THE COURT: You want to wear your orange jumpsuit? " 'THE DEFENDANT: Yes. " 'THE COURT: I advise you again you don't have to. I advise you to please listen to your lawyer. She has your best interests at heart, no matter what you think right now. I understand this is a very tense moment. It's a rough case but your lawyer cares a lot about helping people. I've seen her try other cases. She's a good lawyer. I wouldn't be afraid to have her represent me if I was in your shoes. " 'Do you have any questions whatsoever about what's going on? Do you understand what you are charged with? " 'THE DEFENDANT: (Indicating affirmatively.) " 'THE COURT: You are ready to go forward? " 'THE DEFENDANT: (Indicating affirmatively.)' " 18 Kan. App. 2d at 73-74, 847 P.2d 1334. The Court of Appeals panel rejected the State's assertion that counsel could not invoke the right to self-representation on behalf of her client. "The [district] court understood that Lowe was asserting his right to self-representation and acted accordingly by proceeding to advise Lowe concerning the dangers inherent in self-representation." 18 Kan. App. 2d at 75, 847 P.2d 1334. But then the district judge erred, telling Lowe that in order for him to represent himself, the judge would have to find "that it would not be of benefit to [Lowe] to have a lawyer in the case." 18 Kan. App. 2d at 75, 847 P.2d 1334. In fact, no requirement for such a finding existed. The counseling on the benefits of legal representation that followed the judge's misstatement of the law was "consistent with the requirement that ... a defendant must make a knowing and intelligent waiver of the right to counsel." 18 Kan. App. 2d at 76, 847 P.2d 1334 (citing Faretta , 422 U.S. at 835, 95 S.Ct. 2525 ; State v. Cunningham , 222 Kan. 704, 706-07, 567 P.2d 879 [1977] ). "However, when all the court's statements are reviewed, we cannot conclude Lowe made a knowing and intelligent decision regarding his right to represent himself. The court specifically stated that Lowe would be better off with counsel and, after explaining the pitfalls of self-representation, did not give Lowe the opportunity to state whether he wanted to represent himself. When the court's statements and actions are viewed in toto , there is the danger that Lowe understood not only that his request had been denied, but also that there was no possibility the court would allow him to represent himself." Lowe , 18 Kan. App. 2d at 76, 847 P.2d 1334. The Lowe panel also quoted extensively from the Third Edition of the Kansas Criminal Law Handbook, edited by Judge Michael Barbara, for the information a prudent and careful judge should share with a defendant who asserts a right to represent himself or herself: " 'The judge should inform the defendant: " '1. That at any time he or she could change his or her mind and retain counsel to represent him or her or petition the court for appointment of counsel to represent him or her [to] assist with his or her defense. " '2. That no postponement would be permitted at any time during the proceeding for the reason that counsel was newly brought into the case. " '3. That the court may and will terminate self-representation if the defendant deliberately engages in serious and obstructionist misconduct before the court or in any proceeding. " '4. That the court [considers] it detrimental for the defendant not to accept or employ counsel to represent him or her. " '5. That if the defendant is allowed to represent himself or herself, he or she must follow all legal rules applicable to the trial of any criminal action. " '6. That there are numerous dangers and disadvantages to self-representation, including the following: (a) The law provides for numerous pretrial motions available to the defendant, which are of a technical nature, the advantage of which the defendant would lose if allowed to represent himself or herself; (b) The defendant's vocabulary may impede clear communication with the court and opposing counsel; (c) Judges will not act on behalf of a defendant in asserting objections or making appropriate motions where ordinarily it is the duty of counsel to call such matters to the court's attention; (d) The district attorney will not assist in the defense of the case; (e) The rules of law are highly technical and will not be set aside in view of his or her status; (f) A defendant may waive constitutional, statutory, and common law rights unknowingly; (g) If the defendant is in custody, it is difficult for a defendant in custody to locate witnesses, interview them, prepare subpoenas, and have them served. " '7. Of the maximum sentence for the offense .... " 'After receiving the defendant's responses, the court must make findings that the defendant understood the nature of the questions and statements of the court, and that he or she has made a knowing and intelligent waiver of counsel and a knowing and intelligent decision to represent himself or herself. The court should then allow the defendant to appear without counsel. " 'In some instances, the court may provide counsel for the defendant only for purposes of giving advice to the defendant, if the defendant expressly requests it. Counsel will sit with the defendant throughout the trial, but will not participate without the express request of the defendant or by order of the court, if the court first determines that the defendant is not competent nor qualified to continue with his or her own defense.' " 18 Kan. App. 2d at 76-77, 847 P.2d 1334. The handbook's advice to district judges faced with a criminal defendant's invocation of the right of self-representation is still sound today. See Cateforis, Kansas Criminal Law 11-9 (5th ed. 2016). The Lowe panel then completed its examination of the record before it: "In the procedure described, the court is to make a finding that the defendant has made a knowing and intelligent waiver of counsel and a knowing and intelligent decision to proceed pro se. To make that finding, the court must at some point ask defendant, after all dangers and disadvantages of self-representation have been explained, whether defendant still wants to proceed pro se. "In the present case, the court touched on areas relevant to informing Lowe of the dangers and disadvantages of self-representation but, following that explanation and before continuing with the trial, the court failed to ask Lowe if he still wanted to proceed pro se. Defendant was not afforded the opportunity to make the choice described in Faretta between proceeding with counsel or proceeding pro se. "The State argues Lowe waived his right to represent himself by failing to reassert his right to self-representation and by allowing counsel to continue to represent him when the proceedings continued. In McKaskle , 465 U.S. at 183, 104 S.Ct. 944, the Supreme Court noted that '[o]nce a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.' In McKaskle , the defendant asserted his right to proceed pro se, but then requested counsel's help in questioning a witness. The defendant also acquiesced in some of the motions made by counsel while objecting to others. "We find no waiver of the right to self-representation in the present case. Here, Lowe did not invite counsel's subsequent participation. At most, he allowed counsel to continue without reasserting his request to represent himself. After the court had explained some of the pitfalls of self-representation, Lowe was not given the opportunity to state whether he wanted to represent himself before counsel continued her representation of Lowe. In this context, Lowe could have believed the court had denied his request and there was nothing more he could do. In Orazio v. Dugger , 876 F.2d 1508, 1512 (11th Cir. 1989), the court held that, once a request to proceed pro se has been conclusively denied, a defendant is not required to continually reassert the right to self-representation to avoid a waiver of the previously invoked right." 18 Kan. App. 2d at 77-78, 847 P.2d 1334. Like Vann, Bunyard filed multiple pro se motions during the pendency of his prosecution. Then-admittedly at the eleventh hour and only when prompted by what may have been intended as a rhetorical question by an all-but-fully-exasperated trial judge-Bunyard made more than one clear statement that he wished to proceed pro se. Despite this expressly "unequivocal" invocation of his right to self-representation, the district judge did not counsel Bunyard with a view toward ascertaining Bunyard's informed wishes. Rather, the judge put off addressing Bunyard's request, saying that he would not address it at all unless Bunyard filed a written motion. Bunyard had no practical way to file a written motion over the weekend, and the judge's demand for such a motion appeared to leave Bunyard, like Lowe, without recourse on the issue. In this context, Bunyard's silence on Monday when other pro se motions were heard was understandable. He had been left with a firm impression that he would not be permitted to represent himself. His failure to reassert his right to do so in such circumstances and his allowance of counsel's representation during the trial did not amount to an implicit decision not to pursue self-representation. Bunyard's pretrial requests to represent himself were not, as the State argues, "simply based on his desire to ensure that certain arguments were advanced on his behalf." The record certainly demonstrates that he believed he had information and argument not being explained on Friday by his counsel, and that prompted his interruption of the proceedings. But, at that point, the judge presented Bunyard with a choice: Either allow counsel to proceed without interference or represent yourself. Bunyard chose the latter. And his choice did not change after his consultation with counsel. Instead, he "unequivocally" repeated his choice on the record. At that point the law required that he be advised about the perils of proceeding pro se and then permitted to do so if he made a knowing and intelligent waiver of his right to counsel. Instead, the judge told Bunyard that the subject of self-representation would not be addressed on Friday and erected a writing requirement barrier that was virtually guaranteed to thwart Bunyard's express intention. The judge then ruled on the very motion on which Bunyard had tried to be heard, and he never took up the subject of self-representation again. Using the words of the Court of Appeals panel but reaching the opposite conclusion, we hold that regardless of whether there was a "deliberate undermining" of Bunyard's right to represent himself, there was certainly a "functional" undermining of that right. See 2016 WL 1719607, at *4. The judge's error was structural, and it requires us to reverse all of Bunyard's convictions. CONCLUSION Because we conclude that the violation of defendant Josiah R. Bunyard's right to self-representation was structural error, we reverse the Court of Appeals decision and the judgment of the district court. This case is remanded to district court for further proceedings.

The opinion of the court was delivered by Beier, J.: This is defendant Kristofer J. Wright's direct appeal from his conviction for first-degree premeditated murder and conspiracy to commit murder. We previously issued a decision remanding the case for an evidentiary hearing in district court to establish a record on whether a violation of Wright's right to be present at a continuance hearing caused reversible harm. State v. Wright , 305 Kan. 1176, 390 P.3d 899 (2017). The hearing has now been conducted; we retained appellate jurisdiction. Having evaluated the results of the hearing on remand, we hold that there was no reversible error resulting from the violation of Wright's right to be present, from any related allegation of error based on his lawyer's later failure to argue in favor of dismissal for violation of the speedy trial statute, or from the prosecution's failure to bring Wright to trial within 90 days of his arraignment. We also have reviewed Wright's remaining appellate challenges to his convictions, one of which deals with the content of the jury instruction on premeditation, one of which addresses the prosecutor's erroneous statement about that content during the instructions conference with the district judge, and one of which challenges the content of the instruction on intent. None of these challenges requires reversal. FACTUAL AND PROCEDURAL BACKGROUND The facts of Wright's crimes are irrelevant to his purely legal arguments and thus will not be recited here. Our earlier decision recited the procedural history necessary to an understanding of Wright's appellate claim that his right to be present at all critical stages of the prosecution against him had been violated. Of course, our remand continued the development of the procedural history on that claim, and the following further recitation provides necessary context for our ultimate disposition. Immediately after issuance of our earlier decision, the State filed a motion for rehearing or modification. Before that motion could be ruled upon, Judge Warren M. Wilbert, the district judge who had presided over the docket call at which Wright's counsel, Timothy A. Frieden, successfully sought the continuance Wright did not want, telephoned and sent a letter to this court, attempting to explain what was likely to have occurred when the continuance was granted. The court filed Judge Wilbert's letter with the Clerk of the Appellate Courts, and the parties were notified of Judge Wilbert's efforts to contact the court. Wright's appellate lawyer then filed a motion seeking to have a district judge other than Judge Wilbert assigned on remand. By order dated May 26, 2017, this court denied the State's motion for rehearing or modification and granted Wright's motion to have a different judge assigned to conduct the evidentiary hearing on remand. This court's order also gave further, more explicit instructions for the hearing and its aftermath, stating: "We emphasize that the issue before this court is whether Wright's presence would have made any difference in the decision to grant the continuance. In order to arrive at findings on this question, the district judge assigned by Chief Judge [James] Fleetwood must give both Wright and his lawyer on the one hand and the State on the other hand an opportunity for an on-the-record, evidentiary hearing. "After that hearing is held, the district judge must produce a journal entry containing his or her factual findings. That journal entry must be added to the appellate record before us in this case. Neither a telephone call nor a letter to any member of the court or to the appellate clerk will be sufficient for the judge to discharge his or her duty under this order or under our [earlier] opinion. "A transcript of any hearing held on the issue also must be produced and added to the appellate record. "When both the journal entry and the transcript of any hearing have been added to the appellate record, counsel for Wright and for the State shall file a joint notice with the appellate clerk that the case is ready for further appellate review by this court. No further briefing or oral argument will be permitted." On October 5, 2017, the parties filed the required joint notice. Chief Judge Fleetwood had assigned himself to conduct the evidentiary hearing, which was held on August 8, 2017. Wright, Frieden, two prosecutors, and Judge Wilbert testified at the hearing. As of the time of the August 19, 2013, grant of the continuance for which Wright was not present, the State still had 35 of its 90 statutory days to bring the defendant to trial. Instead, trial did not commence until the following February-after intervening, unchallenged events further delayed it beyond its second setting of October 21, 2013. The witnesses at the evidentiary hearing mentioned five possibilities for what would have occurred on the day Frieden obtained the continuance had Wright been present to voice his objection: 1. A less-than-35-day continuance would have been granted and charged to the State, and the case would have been brought to trial within the statutory 90 days. 2. Wright would have been persuaded to acquiesce in the continuance sought by Frieden, meaning the continuance would have been correctly charged to the defense. 3. The continuance would have been granted and charged to the defense despite Wright's objections, because his expectation that his counsel would be ready for trial so quickly in a murder case was unrealistic. 4. Judge Wilbert would have ordered a 30-day continuance under K.S.A. 2013 Supp. 22-3402(e)(4) based on the court's crowded docket, and the case would have been brought to trial within 90 days. 5. The State would have been granted a 90-day material evidence continuance under K.S.A. 2013 Supp. 22-3402(e)(3), which would have avoided speedy trial concerns. Judge Fleetwood made a factual finding that Judge Wilbert was aware of the five possibilities, regardless of the more limited information that Judge Wilbert's letter to this court had conveyed. Judge Fleetwood also found that Option 1, the scenario the prosecutors had described as most likely, would have occurred if Wright had been present and objecting. The trial would have been continued, because local procedures for alerting the court to the need for a judge to try the case that day had not been followed, and no judge was available to try it. The defendant had no statutory right to trial that day . The State would have been required to take a continuance charged to it, and prosecutors and the court would have ensured that the defendant's trial began within the next 35 days, i.e., before expiration of the statutory time limit of 90 days. If, by the time of the next trial setting, the prosecutors continued to believe that certain cell phone and tower records were important for the State's case, and they had not received them, they would have been free to seek a material evidence continuance of up to an additional 90 days. Because the records ultimately were obtained well within what would have been that additional 90 days, the State could have met its speedy trial obligation. As mentioned, Wright advances two other appellate challenges related to his claim that the violation of his right to be present caused his statutory right to speedy trial to be violated, a right he cannot vindicate effectively on appeal. See State v. Brownlee , 302 Kan. 491, 511, 354 P.3d 525 (2015) (interpreting K.S.A. 22-3402 ; even if continuance originally attributed to defense is attributed to State on appeal, appellate remedy very limited). First, Wright alleges that he was denied conflict-free counsel when Frieden did not argue Wright's pro se motion to dismiss based on the speedy trial statute. The record before us demonstrates that Wright filed a pro se motion to dismiss on October 10, 2013-52 days after Frieden sought and obtained a continuance on August 19, i.e., 17 days after the expiration of 90 days from Wright's arraignment. Wright argued that his right to be present had been violated and that attribution of the continuance to him without his agreement violated his statutory right to a speedy trial. On October 21, 2013, the date of the second trial setting resulting from the continuance Frieden had obtained, Wright was with Frieden in court before Judge Wilbert when the substance of the pro se motion was discussed. Frieden informed the judge that he had wanted the August continuance and had thought Wright was "on board" with that plan but that Wright had objected. Judge Wilbert noted that there had been only one continuance. One of the prosecutors, Jennifer Amyx, informed the judge that new discovery had just been sent to Frieden. Judge Wilbert asked Wright if he would give Frieden more time to prepare for trial, given the seriousness of the charges. Wright said no. Wilbert then told Wright that he would be forcing Frieden to go to trial unprepared-"biting off your nose to spite your face"-and said that a continuance on a first-degree murder case was not unusual. The judge declined to dismiss and again continued the case, this time attributing the continuance to the State. On November 8, 2013, Wright again was in court with Frieden when Judge Joseph Bribiesca considered Wright's pro se motion. Frieden told Judge Bribiesca that he did not believe he could argue the motion. The judge agreed: "Wright is, in essence, taking the position that there were continuances taken by the defense that he didn't authorize. ... And so that ... places you, Mr. Frieden, in a rather compromising position of, on the one hand, you're his attorney, you represent him, and on the other hand, ... [Wright] is taking the position that he didn't authorize you to request continuances on his behalf, so I don't see how you can argue the motion either." The judge then told Wright to tell him "what it is [Wright wanted] to tell" him. Wright explained that he had told Frieden he did not want any continuances and that he wanted to be present at all critical stages of the proceedings. Wright said that Frieden told him "that he wanted to take a vacation on my trial" but Wright was firm that he wanted no continuances. Wright was unsure how a continuance was credited to him and why he had not been present to object when it was sought. When Judge Bribiesca heard from the State, Amyx referred him to letters Wright had written to Frieden before August 19, in which Wright asserted his right to be present and said he wanted no continuances. But Amyx pointed out that the letters also sought further investigation of the case less than two weeks before the first trial setting. She stated that a single continuance on a first-degree murder case was reasonable and that dismissal would be inappropriate. She also stated that no prosecutor had been present on August 19 either; had one been present, the State "would have made a record under the statute ... that there was material evidence which was unavailable, that reasonable efforts had been made to procure the evidence, and there was grounds to believe that it would have been procured within the next 90 days and the trial could be commenced within that time." Judge Bribiesca noted that Wright, despite his insistence on speed, had also requested further investigation and had wanted Frieden to file a motion to sever his case from that of a codefendant. The judge continued: "[Wright's] asking his lawyer to do all these things, and his lawyer can't do all these things on his behalf in a matter of 24 hours. It takes time to gather up all this information. It takes time to file motions and have 'em heard. It takes time to review any records that are obtained by way of either discovery or through an attorney's own investigation, with the help of an investigator or doing it himself. .... "The defendant cannot be heard now to scream that his speedy trial right has been violated as a result of him making demands on his lawyer to obtain information and file motions on his behalf, but it wasn't done fast enough to satisfy him." Wright was again permitted to comment. He reiterated that he had told Frieden that he did not want any continuances charged to him, but he acknowledged that he had also requested further investigation by Frieden. Judge Bribiesca ruled that the speedy trial statute required only that Frieden consult with Wright on continuances, not that Wright approve them, and that Wright had "caused the continuance that took place on [August 19] because [he asked] his lawyer to do all these things." He therefore denied the pro se motion to dismiss. Wright also argues on appeal that the State's failure to bring him to trial within 90 days, despite being on notice of his assertion of his statutory right to speedy trial, was reversible prosecutorial error. One of Wright's three remaining appellate issues centers on the wording of the premeditation jury instruction and the way in which one of the prosecutors advocated for that wording. As mentioned in our previous decision, Frieden eventually withdrew as Wright's counsel and was replaced by Steven Mank, who represented Wright through trial and posttrial proceedings in the district court. Mank objected during conference with the trial judge to the State's proposed premeditation instruction. The proposed instruction listed factors a jury may consider in inferring the existence of premeditation. It read: "Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. The circumstances which may give rise to an inference of premeditation include but are not limited to: 1. The nature of the weapon used, 2. A lack of provocation, 3. The defendant's conduct before and after the killing, 4. Threats and/or declarations made by the defendant before and after the killing, and 5. Lethal blows inflicted after the deceased was felled and rendered helpless." Mank conceded that the instruction correctly stated the law but argued that the listing of the factors was more appropriate for closing argument and that the factors in the instruction would "[draw] too much attention" to them. Prosecutor Robert Short responded: "Judge, our response is two-fold. One, this is wording directly taken from case law in the state of Kansas. In fact, in the case law it references this instruction being used in a closing where it was not part of the instructions. The better practice, according to that case, was to include it in the instructions, and so we have taken it word for word, proposed it to the Court to include in the instruction." The trial judge overruled Mank's objection: "[T]here's a number of cases where the ... appellate courts have cited this language with apparent approval. And therefore, the Court doesn't see a problem with giving this instruction to the jury." Wright's final appellate argument focuses on the language of the jury instruction on intent. His counsel did not challenge the language at trial. The instruction read: "A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State." RIGHT TO BE PRESENT AND RELATED CHALLENGES We have already ruled that Wright's right to be present at all critical stages of his prosecution was violated when he was absent from the August 19 proceeding in which Frieden successfully requested the continuance. Wright , 305 Kan. at 1178, 390 P.3d 899. The question remaining before us is whether that error was harmless. Would that continuance or some other continuance that avoided a speedy trial violation have been granted anyway, even if Wright was present and objecting? The transcript of the evidentiary hearing and Chief Judge Fleetwood's findings on remand now enable us to answer that question. Four of the five options discussed by the witnesses at the evidentiary hearing on remand have debilitating weaknesses. Option 2's concept that Wright could have been persuaded to acquiesce in the continuance is simply not supported by substantial competent evidence in the record. As discussed in our earlier decision and more extensively above, Wright was dogged in asserting his right to speedy trial. He insisted well in advance of August 19 that he wanted no continuances and consistently repeated that assertion throughout the original proceedings in the district court, before this court, and on remand. He was not cowed by the skepticism he faced from Judge Wilbert or from Judge Bribiesca; without Frieden's meaningful assistance, he advocated powerfully for his position on the pro se motion to dismiss. We have no reason, other than Judge Wilbert's belief he could have been persuasive, to think Wright would have behaved differently had he been present on August 19. Option 3-granting of the continuance and attribution of it to the defense despite Wright's objections, because his expectation that his counsel would be ready for trial so quickly in a murder case was unrealistic-does not appear to be supported by law. A defendant's right to speedy trial is not defense counsel's to waive without his or her client's agreement. Automatically allowing counsel to waive without that agreement could render any statutory or constitutional protection of the defendant's right to speedy trial practically worthless in any case in which a serious crime has been charged. In addition, we note that the testimony at the remand hearing about this option was unclear as to how long a continuance might have been granted, meaning we cannot know if it truly would have mitigated the violation of speedy trial harm threatened to result from violation of Wright's right to be present on August 19. As to Option 4, granting of a court continuance, the testimony from Judge Wilbert was unequivocal and emphatic; Wright's case was not going to go to trial on August 19, the date of the first trial setting. But generally a court continuance is designed as a fail-safe when a case cannot be brought to trial within the statutory time limit; both Judge Wilbert and the prosecutors testified that this case could have been prioritized and brought to trial within the permitted 90 days. A court continuance 35 days before expiration of the 90-day limit in this case would not have been appropriate. On Option 5, a 90-day material evidence continuance granted to the State, again, there is an evidentiary infirmity. The prosecutors' testimony was internally inconsistent-on the one hand, asserting that the State's case was already very strong and ready to go by the time the continuance was granted and certainly could have been tried within 90 days and, on the other hand, stating that certain cell phone and tower records were still needed to rule out the existence of exculpatory information or corroborate the State's witnesses. All of this being said, it is apparent from Chief Judge Fleetwood's findings that he recognized the factual and legal weaknesses in Options 2 through 5 listed by the witnesses. He sifted the wheat from the chaff, identifying the first option as the one supported by the facts and the law and the one most likely to have occurred had Wright been permitted to be present at the time his counsel sought the August continuance. That option-granting a less-than-35-day continuance and charging it to the State-would have been the sensible course. And it would have brought the case to trial within the 90 days permitted by the speedy trial statute. Wright was not, as Chief Judge Fleetwood recognized, entitled to trial on August 19 . He was entitled to trial within 90 days and he would have gotten it. His presence on August 19 would not have prevented a continuance from being granted. It merely would have shortened the length of the continuance and pushed the court and the State to meet the 90-day deadline. There is no evidence or argument that the State's case would have been meaningfully weakened by the accelerated schedule, and there is no evidence or argument that Wright's case would have been strengthened. Under such circumstances, we cannot say that Wright's absence when the defense continuance was granted on August 19 resulted in reversible harm. This outcome also dooms Wright's appellate claims that he is entitled to reversal of his convictions because he was denied conflict-free counsel to argue his pro se motion to dismiss and because violation of his statutory right to speedy trial stemmed from prosecutorial error. We need not decide the predicate issue of whether there was error on either of these bases; we can assume it for purposes of argument. But any such error, if it existed, was as harmless as the error that underlay these claims, the denial of Wright's right to be present on August 19. Regardless, Wright would have gone to trial and he would have been convicted. He might have arrived at that result by a slightly different route, but his ultimate destination was bound to be the same. CONTENT OF PREMEDITATION INSTRUCTION Wright's fourth issue on appeal deals with the content of the premeditation instruction. Wright asserts that the trial judge erred by including language from our caselaw regarding factors that may be considered by a jury when drawing an inference on the existence of premeditation. This appellate issue was fully preserved for appeal through Mank's objection at trial. Our decision on the merits of this claim is controlled by our recent decision in State v. Bernhardt , 304 Kan. 460, 472, 372 P.3d 1161 (2016). As Mank conceded, the language is a correct statement of the law. It was not error for the trial judge to include it in the premeditation instruction. PROSECUTORIAL ERROR IN INSTRUCTIONS CONFERENCE Wright's fifth issue on appeal challenges one of the prosecutor's statements during the jury instructions conference with the trial judge. When defense counsel Mank objected to inclusion of the list of factors in the premeditation instruction discussed above, the prosecutor stated that prior caselaw indicated it was "better practice" for judges to include the factors in the premeditation instruction. In fact, no such caselaw exists, and the prosecutor's statement to the contrary was legally erroneous. Nevertheless, Wright's appellate issue has at least two fatal weaknesses. First, there is nothing in the record that demonstrates that the prosecutor's erroneous statement was solely responsible for the judge's decision to include the factors in the instruction. And, second, as discussed in response to the preceding issue, inclusion of the factors was not erroneous. CONTENT OF INTENT INSTRUCTION Wright's final complaint on appeal was not preserved at trial. He now insists that the district court's jury instruction on intent was "ineptly drawn, unconstitutional and prevented the State from meeting its burden of proof," and he invokes preservation exceptions for newly asserted claims involving only a question of law arising on proved or admitted facts and determinative of the case and for those whose consideration is necessary to serve the ends of justice or prevent the denial of fundamental rights. See State v. Reed , 306 Kan. 899, 902, 399 P.3d 865 (2017) (listing three exceptions that allow issue to be raised for first time on appeal). We are not fully persuaded that Wright's amorphous claim is a good candidate for a jurisprudential exception to the requirement of preservation for appellate review. Wright argues in his brief that the instruction, modeled on K.S.A. 2016 Supp. 21-5202(h), cannot be legally correct: "In short, absent a statement from a defendant as to what he did and what his desired outcome was, the State can't prove anything to be intentional. The plain language states that intent is based completely on the desire or conscious objective of the defendant. And no guidance is given as to what this means or how it can ever be proved by the [S]tate. In short, the language is a constitutional nullity." Even if we were to accept Wright's invitation to a more fulsome discussion of this issue, we would rule against him, disposing of it in the same manner that we disposed of similar claims raised by the same appellate counsel on behalf of a different client in State v. Thach , 305 Kan. 72, 378 P.3d 522 (2016). In Thach , we declined to specifically address the "constitutional nullity" aspect of the defendant's argument raised for the first time on appeal. We did, however, interpret K.S.A. 2016 Supp. 21-5202(h) -which provides that "[a] person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result"-to mean that "the State may use circumstantial evidence to prove a defendant's conscious objective or desire to engage in the conduct or cause the result of a charged crime." Thach , 305 Kan. at 84, 378 P.3d 522. Specifically, a defendant need not testify to be convicted. CONCLUSION We reject all of defendant Kristofer J. Wright's arguments for reversal of his convictions for premeditated first-degree murder and conspiracy to commit murder and affirm the judgment of the district court.

The opinion of the court was delivered by Beier, J.: This appeal addresses current law on whether a criminal defendant's claim of actual innocence excuses procedural defaults that would otherwise bar litigation of motions filed under K.S.A. 60-1507. Defendant Danny E. Beauclair pleaded no contest in 2001 to one count of rape of a child under 14 years of age and one count of aggravated criminal sodomy of a child under 14 years of age. After an unsuccessful direct appeal, approximately two years after his original plea, Beauclair filed a motion to withdraw plea. The motion was based in part on a claim of newly discovered evidence, which consisted of a signed affidavit from the victim that, if believed, would have exonerated Beauclair of both crimes. At an evidentiary hearing on the motion, Beauclair's attorney did not secure the attendance of the recanting victim or admit live testimony from her. Because the victim was absent, the district court judge treated her affidavit as inadmissible hearsay and did not reach the merits of Beauclair's motion. On appeal, that decision was upheld. Since that time, Beauclair has filed multiple pro se motions seeking relief on a variety of grounds. In this case, arising from a K.S.A. 60-1507 motion filed in August 2012, Beauclair raised a claim of ineffective assistance of counsel on an intervening K.S.A. 60-1507 motion. It is undisputed that the motion underlying this appeal was untimely and successive. To avoid the resulting procedural bars, Beauclair has argued manifest injustice based on his claim of actual innocence. The district judge summarily denied Beauclair's August 2012 motion without an evidentiary hearing. A Court of Appeals panel affirmed. We granted Beauclair's petition for review. As explained below, we hold that Beauclair's assertion of actual innocence entitles him to an evidentiary hearing to determine its credibility, specifically, whether it establishes manifest injustice or exceptional circumstances sufficient to require the district court to address the merits of his ineffective assistance of counsel claim. FURTHER FACTUAL AND PROCEDURAL BACKGROUND In 2001, two years after he was charged, Beauclair entered his no contest pleas. See State v. Beauclair , 281 Kan. 230, 231, 130 P.3d 40 (2006) ( Beauclair III ). The victim was Beauclair's stepdaughter. Beauclair's direct appeal, which challenged a technical error in his sentence, provided him no relief. See State v. Beauclair , No. 88,885, --- Kan.App. ----, ----, 67 P.3d 180, slip op. at 2 (Kan. App.) ( Beauclair I ) (unpublished opinion), rev. denied 276 Kan. 970 (2003). In the motion to withdraw plea that followed, Beauclair advanced several arguments, including newly discovered evidence. The new evidence was that the victim had recanted her accusations in a signed declaration, which was attached to the motion. As mentioned, at the hearing on the motion, Beauclair's counsel did not require the recanting victim to appear and testify. District Judge Matthew J. Dowd rejected Beauclair's motion to withdraw plea, treating the declaration as inadmissible hearsay. Beauclair appealed Judge Dowd's decision. A Court of Appeals panel reversed because Beauclair had been misinformed about the maximum sentence he faced. See State v. Beauclair , No. 91,999, 2005 WL 1805159, at *2 (Kan. App. 2005) ( Beauclair II ) (unpublished opinion), rev'd 281 Kan. 230, 130 P.3d 40 (2006). The panel did not reach the merits of Beauclair's remaining issues, including his assertion that newly discovered evidence demonstrated his actual innocence. This court granted review and reversed the panel's decision on the one sentencing issue it had addressed. The case was remanded to the Court of Appeals to address the remainder of Beauclair's issues. Beauclair III , 281 Kan. at 242, 130 P.3d 40. On remand, the panel affirmed Judge Dowd's denial of Beauclair's motion to withdraw plea. See State v. Beauclair , No. 91,999, 2006 WL 3409225 (Kan. App. 2006) ( Beauclair IV ) (unpublished opinion), rev. denied 283 Kan. 930 (2007). It touched only briefly-and dismissively-on Beauclair's claim of exonerating new evidence. "Beauclair claims the trial court abused its discretion by ignoring the affidavit of the victim he presented which he claims exonerates him. When Beauclair pled, he waived the right to confront his accusers. State v. Solomon, 257 Kan. 212, 221, 891 P.2d 407 (1995). "Further, at any trial, the recantation affidavit would be looked upon ' "with utmost suspicion." ' State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980)." Beauclair IV , 2006 WL 3409225, at *2. In 2007, Beauclair filed a motion to correct his sentence. Among the issues he raised was a challenge to his sentence based on conviction of a "general" rather than a "specific" offense. According to Beauclair, "aggravated incest is a 'specific' offense, as compa[ ]red to rape and sodomy, a 'general' offense." In support of this argument, Beauclair noted that "the alleged victim has now done not just one, not just two, but now three signed 'Decla[ ]rations' against interest exonerating this Defendant of all Counts here." Beauclair did not, however, argue directly that actual innocence entitled him to relief. Less than a month later, Beauclair filed a Motion to Withdraw Plea and Set Aside Judgment of Conviction and Memorandum in Support Thereof. One of the issues Beauclair raised was new evidence from the recanting victim. But the 30-plus-page pleading said little else on the topic: "Recantation would be a job for a jury to decide, this case is an extraordinary and unusual case, as such the court should grant the illegal sentence here, and dismiss case for no jurisdiction and for Due Process violations also. ... There is a showing of 'manifest injustice' by clear and convincing evidence here. But for counsel's performance was both deficient and prejudicial by not citing the statutes and how they appl[i]ed was deficient and prejudicial as the court in[ ]turn refused to consider the 'recantation' of the only witness that had 'direct examination' on Feb. 27, 2001. As such, caused the defendant to stay in prison needlessly causing cruel and unusual punishment. "The alleged victim has now signed a 3rd declaration dated 3-30-2007, which exonerates the defendant of all counts." Then District Judge Evelyn Z. Wilson denied Beauclair's motion and later issued an order summarily denying Beauclair's motion to withdraw plea and a motion for rehearing of his motion to withdraw plea. According to Judge Wilson's order, the issues had already been "fully litigated." Beauclair appealed all of Judge Wilson's rulings. In State v. Beauclair , No. 100,161, 2010 WL 596992, at *6 (Kan. App.) ( Beauclair V ) (unpublished opinion), rev. denied 290 Kan. 1096 (2010), a Court of Appeals panel affirmed. The panel applied the procedural rules for a K.S.A. 60-1507 motion to Beauclair's motion to withdraw plea and treated it as successive. The panel held that Beauclair had failed to allege, much less demonstrate, manifest injustice, which was necessary for it to entertain a successive motion. 2010 WL 596992, at *4. In addition, the panel addressed a new ineffective assistance of counsel claim raised for the first time on appeal. Beauclair had argued that counsel at the original motion to withdraw hearing was ineffective for failing to present live testimony from the recanting victim. The panel concluded that Beauclair "never [sought] to justify the applicability of one of the exceptions" to permit the court to entertain an issue raised for the first time on appeal, a reference to the following exceptions: "(1) that the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) that consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) that the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assign[ment of] a wrong reason for its decision." 2010 WL 596992, at *5 (citing State v. Hawkins , 285 Kan. 842, 845, 176 P.3d 174 [ (2008) ] ). The panel also noted that "a recantation is generally viewed with suspicion" and said "Beauclair's admission of guilt to multiple individuals makes the victim's recantation suspect. Therefore, it is highly doubtful the court would have given much weight to [the victim's] testimony." Beauclair V , 2010 WL 596992, at *6. After the Court of Appeals decision, Beauclair continued to file pro se motions: • March 22, 2011: Motion to Correct Breach of Plea Bargain. • March 22, 2011: Motion for Recusal. • April 11, 2011: Motion to Correct Illegal Sentence. • April 20, 2011: Motion to Correct Breach of Diversion. • June 2, 2011: Motion for Resentencing Hearing. In a July 2011 Memorandum Decision and Order, Judge Wilson denied Beauclair's motion for recusal. A month later she issued another Memorandum Decision and Order addressing the four remaining motions, denying each as "successive and an abuse of remedy." This pattern continued the next year when Judge Wilson denied another of Beauclair's motions-this time, a Motion to Correct Illegal Sentence-in March 2012. Again, Judge Wilson denied the motion as successive and an abuse of remedy. On August 2, 2012, Beauclair filed the pro se K.S.A. 60-1507 motion that has led to this appeal. The motion raised five issues: (1) actual innocence; (2) violation of due process through the State's reliance on diversion statements; (3) violation of due process because of the judge's failure to inform Beauclair of his right against compulsory self-incrimination; (4) violation of due process through failure to inform Beauclair that he would have to serve postrelease supervision; and (5) violation of due process because Beauclair was convicted without a recitation of facts supporting each element of the crimes. Beauclair also asserted that his claim of actual innocence constituted manifest injustice entitling him to withdraw his pleas. Beauclair noted that "he is actually innocent of the offense asserting that his main accusers have now recanted/repudiated prior recantations. He attaches the affidavits which delve deeper into the substantive allegations, than that testified to by [M.M.] There ... are also substantive affidavits by other family members who were privy to the allegations and offer intrinsic evidence and extrinsic evidence as to why the allegations were made in the first place." Beauclair attached 22 affidavits and declarations from the victim and others who had previously alleged abuse by Beauclair and from family members familiar with the circumstances surrounding the original allegations and his subsequent plea agreement. Rather than arguing actual innocence as a stand-alone claim for relief, Beauclair appears to have argued it as a "gateway" claim to excuse his procedural defaults and allow the court to reach the merits of his other claims. Beauclair acknowledged what the Court of Appeals had stated: "[R]ecanted affidavits are looked upon with suspicion." Nonetheless, he asserted, "the law requires an evidentiary hearing in order to allow defense to establish challenged testimony was false. The Court cannot simply make a conclusory denial to believe the challenged testimony and disbelieve recanted testimony." In June 2013, Beauclair filed a pro se supplement to his pending K.S.A. 60-1507 motion labeled "Supplemental Petition of Habeas Corpus." In this supplement, Beauclair argued that his original postconviction counsel had been ineffective. The focus of the claim was the original motion to withdraw plea. Among other things, Beauclair included as grounds counsel's failure to have the recanting victim testify. Beauclair also raised a litany of other issues, alleging that his direct appeal counsel was ineffective; that his pleas were not intelligently entered; that the State breached its contract with him by not allowing him to be placed on diversion; that the lawyers who represented him at the time of his sentencing were ineffective; that his pleas were coerced; that the trial court lost jurisdiction over his case when it failed to find probable cause at an early hearing; and that his counsel was ineffective at the time of his plea hearing. Beauclair requested a full evidentiary hearing on the motion. In a July 2013 Memorandum Decision and Order, Judge Wilson concluded that the motion, files, and record "conclusively show that Beauclair is not entitled to relief." As a result, an evidentiary hearing was not necessary and the motion was summarily denied. Judge Wilson concluded that Beauclair's K.S.A. 60-1507 motion was time-barred even if the court began the K.S.A. 60-1507 one-year clock when Beauclair's last motion to withdraw plea became final on April 4, 2007: Beauclair's "opportunity to timely file, absent manifest injustice, ended April 4, 2008." On the subject of manifest injustice, Judge Wilson discounted Beauclair's actual-innocence claim: "In an attempt to avoid these procedural bars, Beauclair argues that his main accusers have recanted their statements, which he claims proves he is actually innocent of the crimes for which he was convicted. In support, Beauclair attached a number of affidavits to his motion. To establish actual innocence, a petitioner must demonstrate that 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.' Schlup v. Delo , 513 U.S. 298, 327 [115 S.Ct. 851, 130 L.Ed.2d 808] (1995). The Court is not persuaded that Beauclair has met his standard to prove he is actually innocent. "Beauclair's reliance on the affidavits is neither new nor persuasive. Beauclair argued in a prior Motion to Withdraw Plea that an affidavit from the victim exonerated him. The Kansas Court of Appeals rejected this argument. ... In addition, Beauclair presented many of the same affidavits with his previous 'Motion for Resentencing Hearing[,]' which the Court denied in July 2011. Accordingly, Beauclair's actual innocence claim does not excuse him from the bar against successive motions. Beauclair has made several previous attempts to set aside his convictions and sentences, all of which have been unsuccessful. All of Beauclair's current claims could have, and should have, been raised on his direct appeal or in one of his previous motions to withdraw plea. In addition, even considering Beauclair's current claims on the merits, the Court determines Beauclair is not entitled to relief." Judge Wilson then briefly addressed each of Beauclair's grounds for relief and concluded that he was not entitled to relief on any of them. Her decision included Beauclair's claim of ineffective assistance of his postconviction counsel, which had been raised in his supplement. "Beauclair fails to [show] how his counsel's performance fell below an objective standard and, if so, how that performance created prejudice. "In his supplemental petition, Beauclair claims that his post-conviction counsel was ineffective because he failed to raise specific claims and cite to specific cases, which Beauclair alleged causes prejudice. Beauclair's arguments merely reflect discontent with the strategy of his counsel, which is not enough to meet his burden to establish ineffective counsel. Therefore, the Court will deny relief for this claim as well. "In summary, Beauclair's Petition is time barred absent a showing of manifest injustice, which Beauclair fails to establish. Additionally, Beauclair's continued submission of petitions is successive pursuant to Supreme Court Rule 183(d) ; therefore the Court is not required to revisit and can deny any motions as an abuse of remedy. Last, many of Beauclair's claims have previously been decided and the law of the case doctrine precludes reconsideration of those issues." On Beauclair's appeal to the Court of Appeals, once he had the benefit of counsel, he raised three issues: (1) whether his ineffective assistance of counsel claim was time-barred or successive; (2) whether he should be permitted to raise an additional constitutional issue for the first time on appeal; and (3) whether the district judge erred in summarily denying his claim of ineffective assistance of counsel. The new issue Beauclair had sought to raise on appeal was ineffective assistance of his plea counsel because of her dual representation of Beauclair and his wife. Beauclair sought reversal of his convictions and remand to the district court for new trial. In the alternative, he asked that now Chief Judge Wilson's ruling on his motion be reversed and the case remanded for a district court evidentiary hearing on its merits. Our Court of Appeals rejected Beauclair's claims and affirmed the district court. See Beauclair v. State , No. 112,556, 2016 WL 852859 (Kan. App. 2016) ( Beauclair VI ) (unpublished opinion). The panel began its analysis by outlining procedural limitations on pursuit of a K.S.A. 60-1507 motion and then said that a movant may avoid the one-year time bar of K.S.A. 60-1507(f) only to prevent manifest injustice. The panel listed three factors outlined in Vontress v. State , 299 Kan. 607, 616, 325 P.3d 1114 (2014), superseded by statute as stated in Hayes v. State , 307 Kan. 9, 14, 404 P.3d 676 (2017), for determining the existence of manifest injustice, including whether a prisoner sets forth a "colorable claim of actual innocence." But the panel ultimately decided Beauclair had failed to demonstrate that the factors favored him. Regarding actual innocence, the panel recognized that "[a]n affidavit or declaration purportedly from a crime victim exonerating a defendant because the charged offense never happened commonly might tilt in favor of an evidentiary hearing even on an untimely 60-1507 motion, since it bears on actual innocence and, if true, presents a factual ground for relief worthy of further consideration." Beauclair VI , 2016 WL 852859, at *2. But the panel discounted the recantation of the victim here because "Beauclair told the Topeka police detective that he sexually abused his stepdaughter in ways that factually and legally supported the charges to which he later pleaded no contest." 2016 WL 852859, at *2. Ultimately, the record did not "sufficiently advance a claim that Beauclair is actually innocent and, thus, to suggest there might be manifest injustice in applying the time bar of K.S.A. 60-1507(f) to his motion." 2016 WL 852859, at *3. The panel also rejected Beauclair's newly raised claim of ineffective assistance of plea counsel. It explained its reasoning: "The conflict is this: For about 6 weeks in mid-1999, the lawyer who was then representing Beauclair in the criminal investigation of his stepdaughter's accusations was also representing the girl's mother-Beauclair's wife-in [an ongoing child in need of care] case. During that time, another lawyer represented Beauclair in the CINC case. As best we can tell from the record on appeal in this case, the district court judge handling the CINC case simply allowed the lawyers in that proceeding to switch clients. So the lawyer representing Beauclair in the criminal investigation also represented him in the CINC case from that point. All of that took place months before the State filed criminal charges against Beauclair." 2016 WL 852859, at *3. The panel assumed, without deciding, that the dual representation was improper but concluded that at most it was "a potential or technical conflict with respect to the criminal case." 2016 WL 852859, at *4. "In the face of the evidence in the criminal case, the decision to plead hardly seems unreasonable or the product of some purported conflict arising from the CINC proceedings." 2016 WL 852859, at *4. "[T]he issue simply does not establish a claim worthy of review in a collateral attack on a conviction launched years after the fact." 2016 WL 852859, at *4. Beauclair filed a petition for review by this court, raising two issues: (1) whether he has stated a colorable actual-innocence claim and (2) whether he has shown actual prejudice because of his plea counsel's conflict in representing both him and his wife. He sought a district court evidentiary hearing on his claim of actual innocence. We granted review. As framed by Beauclair's petition, his two issues are intertwined. Beauclair relies on his actual-innocence claim to overcome the fact that his K.S.A. 60-1507 motion would otherwise be barred as untimely. The panel rejected this approach, based in part on what it understood to be Beauclair's "confession" of his crimes against his stepdaughter to a police detective; Beauclair had not directly disputed that fact before the Court of Appeals. But, in his petition to this court, Beauclair argues that the "confession" the panel relied on was false, coerced by his plea counsel to benefit Beauclair's wife. He then details multiple problems with plea counsel's representation that he attributes to her conflict of interest, attempting to establish prejudice from her ineffective assistance. The deficient representation, he asserts, "relates to his colorable claim of actual innocence in that her legal advice to him was that he must confess to a crime he did not commit in order to be reintegrated with his children and be granted diversion." DISCUSSION Our standard of review on denial of a K.S.A. 60-1507 motion is dependent on the means the district court employed to dispose of it. A district court has three options to resolve such a motion: "(a) determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (b) determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held after appointment of counsel. If the court then determines there is no substantial issue, the court may deny the motion; or (c) determine from the motion, files, records, or preliminary hearing that there is a substantial issue requiring an evidentiary hearing." Fischer v. State , 296 Kan. 808, Syl. ¶ 3, 295 P.3d 560 (2013). For a summary dismissal of a K.S.A. 60-1507 motion, the standard of review is de novo. An appellate court must determine whether the motion, files, and records of the case conclusively show that the movant is entitled to no relief. State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015). Untimeliness We first note that after Beauclair filed the K.S.A. 60-1507 motion now before us, the Legislature amended the portion of the statute governing the one-year time limit. At the time of filing, K.S.A. 60-1507(f) provided that any action under the section must be brought within one year of the movant's direct appeal becoming final, unless the time limit was extended "to prevent a manifest injustice." In 2014's Vontress , we set out the following nonexhaustive list of factors to assist in determining whether the manifest injustice standard had been met: "(1) whether the prisoner provides persuasive reasons or circumstances that prevented him or her from filing the K.S.A. 60-1507 motion within the 1-year time limitation; (2) whether the merits of the prisoner's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) whether the prisoner sets forth a colorable claim of actual innocence." 299 Kan. 607, Syl. ¶ 8, 325 P.3d 1114. In 2016, the Legislature amended the statute and abrogated Vontress . The amendment made "it clear that courts are limited to considering (1) a movant's reasons for the failure to timely file the motion and (2) a movant's claims of actual innocence." Hayes , 307 Kan. at 14, 404 P.3d 676 ; see also K.S.A. 2017 Supp. 60-1507(f)(2)(A). Under the new statute, "actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence." K.S.A. 2017 Supp. 60-1507(f)(2)(A). As discussed below, the additional explanation of "actual innocence" in the Legislature's recent amendment informs our analysis of what Beauclair must demonstrate to overcome the procedural bar erected by the untimeliness of his motion. Before Vontress , Kansas appellate courts were inconsistent in interpreting "manifest injustice" in a K.S.A. 60-1507 context. Most reviewing courts focused on the reasons for the delay rather than the merits of the motion. Vontress , 299 Kan. at 614, 325 P.3d 1114. After Vontress ' clarification of the standard, few decisions addressed actual innocence and the procedures for asserting it. Two Court of Appeals opinions in this period, however, are worth addressing. In Woods v. State , 52 Kan. App. 2d 958, 379 P.3d 1134 (2016), rev. denied 306 Kan. 1332 (2017), a Court of Appeals panel addressed whether a prisoner who had pleaded guilty could use an actual-innocence claim to have his successive and untimely K.S.A. 60-1507 motion heard. The movant had previously challenged his plea but failed to have it withdrawn. The panel concluded it was required to "accept as both a matter of fact and a matter of law that [the prisoner's] plea was freely and voluntary entered upon the advice of competent and effective counsel." 52 Kan. App. 2d at 966, 379 P.3d 1134. Moreover, " '[a] plea of guilty is admission of the truth of the charge and every material fact alleged therein.' " 52 Kan. App. 2d at 966, 379 P.3d 1134 (quoting K.S.A. 22-3209[1] ). Ultimately, "upon a plea of guilty, there can be no review of the sufficiency of the evidence in a K.S.A. 60-1507 proceeding." 52 Kan. App. 2d at 967, 379 P.3d 1134. In Neer v. State , No. 111,230, 2015 WL 1310815 (Kan. App. 2015) (unpublished opinion), a Court of Appeals panel addressed movant Edward Neer's out-of-time K.S.A. 60-1507 motion in which he argued that newly discovered evidence entitled him to a new trial. Neer had attached an affidavit to his motion in which the victim recanted her trial testimony and stated Neer was innocent. Because of questions about the credibility of the recantation given the time that had passed since Neer's conviction, the district judge denied the motion without an evidentiary hearing. On appeal, the panel applied an abuse of discretion standard to the district judge's denial of an evidentiary hearing. "[B]efore a new trial is granted based on a prosecution witness' recantation of his or her testimony, the district court must determine the truth of the recantation as well as the weight that should be given to it. The district court is required to grant a new trial only when satisfied the recantation is true and material. ... [A] district court cannot make such a credibility determination without an evidentiary hearing. And ... credibility cannot generally be determined through cold affidavit testimony. "To establish the right to a new trial based upon newly discovered evidence, it must be of such materiality that it would be likely to produce a different result upon retrial. And while it certainly can be argued that 'recantation by the complaining witness or victim would generally fulfill this materiality requirement,' we are only faced with the narrow question whether the district court abused its discretion in not granting an evidentiary hearing. [Citations omitted.]" Neer , 2015 WL 1310815, at *4. To determine whether Neer's claims warranted an evidentiary hearing, the panel turned to the three factors an appellate court considers when determining whether an evidentiary hearing is needed on a request for a new trial based on newly discovered evidence. See Moncla v. State , 285 Kan. 826, 840, 176 P.3d 954 (2008). Those factors are: "(1) whether the motion alleges facts which do not appear in the original record which, if true, would entitle [the movant] to relief; (2) whether the motion adequately identifies readily available witnesses whose testimony would support these new facts and demonstrate that [the movant] should receive a new trial; and (3) whether [the movant's] newly discovered evidence could have been produced at trial through the exercise of reasonable diligence." 285 Kan. at 840, 176 P.3d 954. The panel concluded that Neer was entitled to an evidentiary hearing. "[T]he affidavit clearly allege[d] facts that, if true, would ... support Neer's claim of innocence." Neer , 2015 WL 1310815, at *6. And, given the ability of a court to compel the witness' attendance and testimony, any "reluctance of a witness to testify" did not "foreclose Neer's right to an evidentiary hearing." 2015 WL 1310815, at *6. An evidentiary hearing was necessary for the court "to assess the credibility of [the witness'] recantation and its materiality to Neer's convictions in this case." 2015 WL 1310815, at *7. Woods is significant mainly because the movant in that case had entered a guilty plea, thus admitting all of the facts underlying the criminal charge. Beauclair, in contrast, entered no contest pleas that did not constitute legally binding admissions of guilt. Neer is significant for at least two reasons. First, in holding that an evidentiary hearing was necessary, the panel correctly emphasized the importance of a district judge's ability to assess the credibility of witnesses who had changed their stories and, at least in the first instance, to measure the materiality of the new information in relation to the movant's conviction. Neer's actual-innocence claim also arose under different procedural circumstances than those surrounding Beauclair's. As to the motion before us now, Beauclair has asserted his actual-innocence claim as a gateway to defeat the procedural time bar that otherwise prohibits reaching the merits of his substantive claims. Neer, on the other hand, asserted a substantive claim of actual innocence, arguing that newly discovered evidence established he was actually innocent and required a new trial. In addressing assertions of actual innocence in federal habeas corpus proceedings, the United States Supreme Court has differentiated between procedural and substantive claims. In Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed. 2d 808 (1995), petitioner Lloyd E. Schlup alleged that constitutional error deprived his jury of critical evidence establishing his innocence. The district court denied Schlup's petition without conducting an evidentiary hearing and declined to reach its merits. The United States Supreme Court granted certiorari to consider whether a standard enunciated in Sawyer v. Whitley , 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed. 2d 269 (1992), provided adequate protection "against the kind of miscarriage of justice that would result from the execution of a person who is actually innocent." 513 U.S. at 301, 115 S.Ct. 851. In Sawyer , a federal habeas petitioner alleged that he was innocent of aggravators that would authorize imposition of the death penalty rather than alleging that he was innocent of the underlying crime. To show "actual innocence," the Court held, "one must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." 505 U.S. at 335, 112 S.Ct. 2514. The Schlup Court rejected the Sawyer standard in favor of one first articulated in Murray v. Carrier , 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed. 2d 397 (1986). Carrier stated: "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." 477 U.S. at 496, 106 S.Ct. 2639. The Schlup Court distinguished Schlup's procedural actual-innocence claim from the substantive actual-innocence claim asserted by habeas petitioner Leonel Torres Herrera in Herrera v. Collins , 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed. 2d 203 (1993). "In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment. Under petitioner's theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a 'constitutionally intolerable event.' Id., at 419 [113 S.Ct. 853] (O'Connor, J., concurring)." Schlup , 513 U.S. at 314, 115 S.Ct. 851. The Herrera Court had observed: "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." 506 U.S. at 400, 113 S.Ct. 853. The rule had been grounded "in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact." 506 U.S. at 400, 113 S.Ct. 853. Although Herrera's substantive claim was not grounded in an independent constitutional violation that had occurred during trial, the Court left open the possibility of entertaining such claims. In contrast, in the Schlup case involving a procedural actual-innocence claim, the Court said: "His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel ... and the withholding of evidence by the prosecution ... denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish 'cause and prejudice' sufficient to excuse his failure to present his evidence in support of his first federal petition, ... Schlup may obtain review of his constitutional claims only if he falls within the 'narrow class of cases ... implicating a fundamental miscarriage of justice[.'] Schlup's claim of innocence is offered only to bring him within this 'narrow class of cases.' " Schlup , 513 U.S. at 314-15, 115 S.Ct. 851. In short, based on the distinction between procedural and substantive actual-innocence claims, the Court concluded that Schlup should not face as high a burden of proof as Herrera. Schlup's claim of innocence would not provide a basis for relief in and of itself. Relief would be dependent upon Schlup's later ability to demonstrate the merit of his substantive claims under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) (setting standard for relief for ineffective assistance of counsel), and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) (setting standard for relief when government has withheld exculpatory evidence). Schlup , 513 U.S. at 315, 115 S.Ct. 851. Schlup's claim of innocence was " 'not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.' " 513 U.S. at 315, 115 S.Ct. 851 (citing Herrera, 506 U.S. at 404, 113 S.Ct. 853 ). More important, "a court's assumptions about the validity of the proceedings that resulted in conviction are fundamentally different in Schlup's case than in Herrera's." 513 U.S. at 315, 115 S.Ct. 851. In Herrera, the claim had been evaluated on the assumption that Herrera's trial had been error free. "In such a case, when a petitioner has been 'tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants,' ... it is appropriate to apply an ' "extraordinarily high" ' standard of review." 513 U.S. at 315-16, 115 S.Ct. 851. In contrast, Schlup's actual-innocence claim was coupled with a claim of constitutional error at trial. "For that reason, Schlup's conviction may not be entitled to the same degree of respect as one, such as Herrera's, that is the product of an error free trial. "... Schlup's evidence of innocence need carry less of a burden. In Herrera ... the evidence of innocence would have had to be strong enough to make his execution 'constitutionally intolerable' even if his conviction was the product of a fair trial. For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial." Schlup , 513 U.S. at 316, 115 S.Ct. 851. To ensure that application of the federal exception allowing disregard of procedural bars would remain "rare" and invoked in the "extraordinary case" while ensuring that it would extend relief "to those truly deserving," the Court tied the exception to the petitioner's claim of innocence. "[A] prisoner retains an overriding 'interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain.' .... '[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.' 477 U.S., at 496 [106 S.Ct. 2639] ; see also Smith v. Murray , 477 U.S. [527 at], 537, [106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) ], quoting Carrier , 477 U.S., at 496 [106 S.Ct. 2639]. .... "... To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. ... "... [T]he individual interest in avoiding injustice is most compelling in the context of actual innocence. ... [C]oncern about the injustice that results from the conviction of an innocent person ... is reflected, for example, in the 'fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.' " 513 U.S. at 321, 324, 325,[115 S.Ct. 851] (quoting In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 25 L.Ed. 2d 368 [ (1970) ] [Harlan, J., concurring] )." Schlup , 513 U.S. at 321-25, 115 S.Ct. 851. The Schlup Court invoked Carrier 's requirement that a federal habeas petitioner show that a constitutional violation has "probably" resulted in the conviction of one who is actually innocent: "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. The petitioner thus is required to make a stronger showing than that needed to establish prejudice. At the same time, the showing of 'more likely than not' imposes a lower burden of proof than the 'clear and convincing' standard required under Sawyer. The Carrier standard thus ensures that petitioner's case is truly 'extraordinary,' McCleskey [v. Zant], 499 U.S. [467 at], 494, [111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) ], while still providing petitioner a meaningful avenue by which to avoid a manifest injustice. .... "... In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on 'actual innocence' allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial. ... The habeas court must make its determination concerning the petitioner's innocence 'in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.' " Schlup , 513 U.S. at 327-28, 115 S.Ct. 851. But the consideration of a broader array of evidence does not change the meaning of "innocence" in federal court. "The Carrier standard reflects the proposition, firmly established in our legal system, that the line between innocence and guilt is drawn with reference to a reasonable doubt." Schlup , 513 U.S. at 327-28, 115 S.Ct. 851. The high Court has since further refined the contours of the Carrier test it adopted in Schlup . In House v. Bell , 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed. 2d 1 (2006), the Court made clear that the types of "new reliable evidence" it had previously listed-exculpatory scientific evidence, trustworthy eyewitness accounts, critical physical evidence-were not intended to exhaust the possibilities. 547 U.S. at 537, 126 S.Ct. 2064. The Court also observed that, after fully developing a record, a "habeas court must consider ' "all the evidence," ' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under 'rules of admissibility that would govern at trial.' ... Based on this total record, the court must make 'a probabilistic determination about what reasonable, properly instructed jurors would do.' ... The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." 547 U.S. at 538, 126 S.Ct. 2064. The Carrier standard "does not require absolute certainty about the petitioner's guilt or innocence." 547 U.S. at 538, 126 S.Ct. 2064. The petitioner's burden at the gateway stage is merely to demonstrate "that more likely than not any reasonable juror would have reasonable doubt." 547 U.S. at 538, 126 S.Ct. 2064. And, "[b]ecause a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record. ... [T]his may include consideration of 'the credibility of the witnesses presented at trial.' " 547 U.S. at 538-39, 126 S.Ct. 2064. This court has not previously addressed what constitutes "a colorable claim of actual innocence," regardless of whether actual innocence was advanced as a procedural tool, as here, or as an independent substantive claim. The preamendment version of K.S.A. 60-1507 mentioned only manifest injustice. K.S.A. 60-1507(f)(2). Vontress listed factors to be considered under the rubric of manifest injustice; yet it did not fully elaborate on the contours of actual innocence. See Vontress , 299 Kan. at 616, 325 P.3d 1114. The Legislature's recent amendment in K.S.A. 2017 Supp. 60-1507(f)(2)(A) is more revealing and instructive. It not only mentions "a colorable claim of actual innocence" as a basis for finding manifest injustice but also mirrors the federal Carrier standard. Compare K.S.A. 2017 Supp. 60-1507(f)(2)(A) ("more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence"), with Schlup , 513 U.S. at 327, 115 S.Ct. 851 ("more likely than not that no reasonable juror would have convicted him in the light of the new evidence"). This striking congruence in language and the United States Supreme Court's thorough articulation of the appropriateness of such a standard when a court is confronted with an actual-innocence claim used as a gateway beyond a procedural default in a postconviction proceeding combine to persuade us to adopt the Carrier standard as well. Applying that standard to Beauclair's actual-innocence claim, we turn first to his petition for review argument that he clearly stated in his K.S.A. 60-1507 motion that he is innocent of the crimes underlying his convictions, and that, further, his statement was made under oath and should therefore be taken as true at this stage of the proceedings. We reject this argument as untenable. See Swenson v. State , 284 Kan. 931, 938, 169 P.3d 298 (2007) ( K.S.A. 60-1507 movant must make more than conclusory contentions, must state evidentiary basis in support of claims, or evidentiary basis must be in record before motion warrants evidentiary hearing). The practical result of this court adopting Beauclair's position would be evisceration of the one-year time limit. Every late K.S.A. 60-1507 motion could allege actual innocence on the movant's word alone as a gateway to consideration of the motion's merits. As the United States Supreme Court noted in Schlup , an exception comparable to Kansas' "manifest injustice" should remain "rare" and be applied only in the "extraordinary" case. 513 U.S. at 321, 115 S.Ct. 851. Beauclair's suggested rule would make application of the exception anything but "rare" and "extraordinary." That being said, Beauclair's further criticism of the Court of Appeals panel's weighing of the statements in the affidavits and declarations supporting his motions is on the mark. K.S.A. 60-1507(b) requires a hearing on a motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." The affidavits and declarations at issue in this case prevent a court from reaching the necessary conclusion under the K.S.A. 60-1507(b) standard, when it is correctly applied. As the panel acknowledged in its opinion, "An affidavit or declaration purportedly from a crime victim exonerating a defendant because the charged offense never happened commonly might tilt in favor of an evidentiary hearing even on an untimely 60-1507 motion, since it bears on actual innocence and, if true, presents a factual ground for relief worthy of further consideration." Beauclair VI , 2016 WL 852859, at *2. Nevertheless, the panel apparently felt free to disregard the affidavits and declarations. According to it, "Beauclair told the Topeka police detective that he sexually abused his stepdaughter in ways that factually and legally supported the charges to which he later pleaded no contest." 2016 WL 852859, at *2. The panel used the factual conflict it perceived between the affidavits and declarations on the one hand and Beauclair's earlier statement to the detective on the other to conclude that Beauclair had not sufficiently advanced a claim of actual innocence. 2016 WL 852859, at *3. This is not the same thing as holding that the materials before the court "conclusively" foreclosed relief. If relief was not conclusively foreclosed, Beauclair would have a statutory right to advance his substantive claims. The panel's harsh credibility assessment of the recantations and its attendant weighing and resolution of apparent factual conflict are not the tasks of appellate courts. See State v. Ward , 292 Kan. 541, 581, 256 P.3d 801 (2011). In addition, we cannot ignore new information that has come to light in proceedings before us on Beauclair's petition for review. This new information includes Beauclair's allegation that his statement to the detective was untrue-a product of his conflicted plea counsel's insistence that he take responsibility for the crimes to benefit counsel's other client, Beauclair's wife, in the CINC litigation. Moreover, Beauclair asserts, with some support in correspondence with plea counsel, that counsel told him his selfless admission of guilt would make him eligible for a diversion, allowing him and his family to be reunited. Simply put, because the recantations and Beauclair's explanation of why he would have made a false confession may meet the Carrier standard as it is now echoed in K.S.A. 2017 Supp. 60-1507(f)(2)(A) -i.e., they may make it more likely than not that no reasonable juror would have convicted him-we remand to the district court for an evidentiary hearing in which the judge hears live testimony on the gateway claim of actual innocence. That claim will qualify as "colorable" if there is "sufficient doubt" about Beauclair's guilt "to undermine confidence" in his conviction "without the assurance" that the conviction "was untainted by constitutional error." See Schlup , 513 U.S. at 317, 115 S.Ct. 851. If that threshold is reached, the one-year time limit of K.S.A. 60-1507(f) should be excused and the district judge should then address the merits of Beauclair's K.S.A. 60-1507 motion. Successiveness Judge Wilson also denied Beauclair's motion because it qualified, in her view, as successive. The Court of Appeals did not expressly address whether Beauclair's actual-innocence claim could excuse this procedural infirmity, but we must, because successiveness poses an independent obstacle to consideration of the substantive merits of Beauclair's motion. Under K.S.A. 60-1507(c), a sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. See also Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 223) (sentencing court may not consider successive motion by same movant when ground for relief determined against movant in prior motion; prior determination on merits; and justice not served by reaching merits of subsequent motion); State v. Trotter , 296 Kan. 898, 904, 295 P.3d 1039 (2013) ( K.S.A. 60-1507 movant presumed to have listed all grounds for relief). To avoid having a second or successive K.S.A. 60-1507 motion dismissed as an abuse of remedy, the movant must establish exceptional circumstances. State v. Mitchell , 284 Kan. 374, Syl. ¶ 5, 162 P.3d 18 (2007). "Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant [from] raising the issue in a preceding [K.S.A.] 60-1507 motion." 284 Kan. 374, Syl. ¶ 5, 162 P.3d 18. The burden to make such a showing lies with the movant. Wimbley v. State , 292 Kan. 796, 805, 275 P.3d 35 (2011). We have no hesitation in holding that a colorable claim of actual innocence based on a crime victim's recantation of the testimony that forms the basis for the charge against a defendant qualifies as "an unusual event ... that prevented the defendant [from] raising the issue" previously. Thus, if Beauclair is successful on remand in showing a colorable claim under the Carrier standard, he will meet not only the manifest injustice standard to excuse untimeliness but also the exceptional circumstances standard to excuse successiveness. On the way to this conclusion, we also note that Beauclair's earliest effort to draw the district court's attention to the validity or lack of validity of his actual innocence claim was stymied by his K.S.A. 60-1507 counsel's failure to secure live testimony from Beauclair's stepdaughter. The remand for an evidentiary hearing on actual innocence that we order today will provide an opportunity to remedy counsel's omission and the subsequent-and possibly undue-short shrift given Beauclair's actual-innocence claim by district and appellate judges. CONCLUSION We reverse the Court of Appeals decision affirming the district court's summary denial of Danny E. Beauclair's K.S.A. 60-1507 motion and remand to the district court for an evidentiary hearing on his gateway claim of actual innocence. Should that claim be determined to be colorable under the standard this court has described above, the untimeliness and successiveness of Beauclair's motion shall not bar consideration of its merits. Luckert and Rosen, JJ., not participating. Michael J. Malone, Senior Judge, and F. William Cullins, District Judge, assigned. REPORTER'S NOTE: Senior Judge Malone and District Judge Cullins were appointed to hear case No. 112,556 vice Justice Luckert and Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616 and by art. 3, § 6(f) of the Kansas Constitution respectively.

Per Curiam: The State petitioned to have Robert Lee Smith civilly committed as a sexually violent predator. Due to numerous continuances, some of which were obtained without Smith being present and most of which were at the request of or with the consent of his attorney, Smith's trial did not occur until over two years after the petition was filed. On appeal, he argues that the district court erred in not granting his motion to dismiss the proceedings because of unconstitutional delay. He makes two key arguments. First, Smith argues that he had a right to be present when continuances were requested. Because we find that there is no such right to be present for continuance requests in a civil proceeding, this claim of error fails. Smith also argues that his right to a speedy trial was violated by the long delay between petition, probable cause hearing, and final trial. But we find that after applying the constitutional test set out in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972), the district court properly found that Smith's right to a speedy trial was not violated. Accordingly, we affirm. FACTUAL AND PROCEDURAL HISTORY Smith was previously convicted of rape, indecent solicitation of a child, and sexual battery. The day before Smith was scheduled to be released from prison the State filed a petition seeking to have Smith civilly committed under the Kansas Sexually Violent Predator Act (KSVPA). Counsel was appointed for Smith the same day the State filed the petition. Based on the petition, the district court found probable cause and set a hearing where probable cause could be contested a few days later, on March 17, 2015. Smith's counsel was not present for the scheduled hearing. At the hearing, Smith stated: " 'I want to have a hearing today and I'm entitled to an attorney today.' " At the time the State appeared to believe that Smith's appointed counsel had not received the notice of the hearing. The hearing was rescheduled to March 23, 2015. On March 19, 2015, Smith's counsel filed several motions. It appears that Smith wanted the motions heard before the probable cause hearing. The State requested three extensions to respond to Smith's motions. On April 9, 2015, the court granted the continuance requests "without hearing and without appearances based on [Smith] having no objection." The probable cause hearing was then scheduled for May 27, 2015. Approximately two weeks before the hearing, the district court judge informed the parties, through email, that he would be unable to hold the probable cause hearing on May 27, 2015, due to a scheduled surgery. The judge indicated that the parties could either: (1) have the hearing reassigned to another judge on the same day, or (2) continue the case to a later date. Counsel for Smith, through email, stated that he did not object to a continuance. The probable cause hearing was held on July 9, 2015. The court took the matter under advisement. Approximately two months later, the court found that probable cause existed to believe Smith was a sexually violent predator and ordered him transported to Larned State Security Hospital for an evaluation. In October 2015, counsel for Smith filed a motion to alter or amend judgment. The State requested additional time to file a response. Later, the court denied Smith's motion and scheduled a jury trial for May 23, 2016. On May 10, 2016, Smith's counsel, with approval from Smith, requested a continuance on the trial and setting of a discovery schedule. An "Agreed Pretrial/Case Management Order" was submitted to the court, setting a trial date of April 3, 2017. On November 9, 2016, Smith's counsel was allowed to withdraw from the case, after 21 months of representation, due to changes in counsel's office. No other explanation was given by the court and the attorney's motion to withdraw is not in the record on appeal. Smith objected to his attorney's withdrawal from the case, noted that the attorney was still licensed to practice law in Kansas, and had represented him appropriately. He complained, correctly, that this would result in further delay in his case. Another attorney was appointed but subsequently withdrew due to a conflict of interest. A third attorney was appointed on December 9, 2016. On December 23, 2016, Smith filed a pro se motion to dismiss, arguing that his constitutional rights were being violated. On February 8, 2017, Smith filed a pro se motion to be present at all critical stages in any court proceeding. On February 23, 2017, Smith's third attorney filed a motion for continuance because Smith was retaining private counsel. A fourth attorney, Smith's present counsel, entered his appearance on February 28, 2017. On March 17, 2017, a hearing was held where Smith's present counsel requested another continuance. Smith's counsel explained that he needed more time to resolve pretrial issues and obtain an expert witness for Smith. Smith indicated to the court that he was concerned with the delay. The State responded that it was prepared to go to trial on April 3, 2017. The court explained that in order to go to trial in April, Smith would have to do so without an expert. After discussing the matter with his attorney, Smith agreed to a continuance of the trial to July 31, 2017. In May 2017, Smith filed a motion to dismiss for due process violations. The court denied Smith's motion, finding that the Barker factors weighed in favor of the State. A bench trial on stipulated facts was held on July 27, 2017, and Smith was found to be a sexually violent predator and ordered committed. Smith timely appeals. ANALYSIS Smith did not have a statutory or a constitutional right to be present for continuance hearings. Smith first argues that he had a right to be present at continuance hearings to voice his objection to a continuance. Citing our Supreme Court's decision in State v. Wright , 305 Kan. 1176, 1178, 390 P.3d 899 (2017), he argues that his "right to be present at every critical stage was clearly violated." The State does not respond to this argument. Standard of Review Whether an individual's right to be present at a critical stage of a proceeding is violated is an issue of law over which appellate courts exercise unlimited review. 305 Kan. at 1178, 390 P.3d 899. Discussion The Kansas Supreme Court recently held that "[a] continuance hearing is a critical stage of a criminal trial, requiring the defendant's presence." 305 Kan. 1176, Syl. ¶ 1, 390 P.3d 899. Wright was a criminal case where Wright wrote multiple letters from jail stating that he did not want any more continuances and that he was " 'invok[ing] [his] right to be present at all critical stages.' " 305 Kan. at 1177, 390 P.3d 899. Wright's attorney appeared before the district court, without Wright, and requested a continuance, delaying Wright's trial past the statutory speedy trial deadline. On appeal, the Kansas Supreme Court relied on the speedy trial statute , K.S.A. 2012 Supp. 22-3402, to find that a defendant has a right to be present and object to a request for a continuance. See 305 Kan. at 1178, 390 P.3d 899. Because violation of the statutory right to speedy trial in a criminal case requires dismissal, the court in Wright found that if a defendant is "denied his or her right to be present and object at a continuance hearing, and the continuance is granted, it is unlikely there will be a remedy on appeal even if an appellate court later attributes the continuance time to the State." 305 Kan. at 1178, 390 P.3d 899. The court noted that "if a personal objection from the defendant is going to be more than a hollow gesture, it needs to be heard and adjudicated in the district court." 305 Kan. at 1178, 390 P.3d 899. Smith argues that the holding in Wright applies in the current case because of the similarities between "criminal cases and cases filed under the Sexually Violent Predator Act." But, the current case is not a criminal case and different statutes apply. See K.S.A. 2017 Supp. 59-29a01 et seq. ; Kansas v. Hendricks , 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding that proceedings under the KSVPA are not criminal proceedings). The criminal speedy trial statute states: "If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 150 days after such person's arraignment on the 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." K.S.A. 2017 Supp. 22-3402(a). Also at play in Wright was the Sixth Amendment's Confrontation Clause that requires "[i]n all criminal prosecutions , the accused shall enjoy the right ... to be confronted with the witnesses against him ...." (Emphasis added.) U.S. Const. amend. VI. The United States Supreme Court has also recognized this same right as "protected by the Due Process Clause [of the Fifth Amendment] in some situations where the criminal defendant is not actually confronting witnesses or evidence against him." United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed. 2d 486 (1985). The KSVPA provisions are markedly different. The KSVPA contains two pertinent timing provisions. The first addresses the time between petition and the finding of probable cause stating: "Within 72 hours after a person is taken into custody ... or as soon as reasonably practicable or agreed upon by the parties, such person shall be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the detained person is a sexually violent predator." K.S.A. 2017 Supp. 59-29a05(b). The second addresses the time between a finding of probable cause and the trial. Under this provision the trial must be held "[w]ithin 60 days" of the finding of probable cause. K.S.A. 2017 Supp. 59-29a06(a). The trial may be continued upon the request of either party for good cause. K.S.A. 2017 Supp. 59-29a06(a). Moreover, unlike K.S.A. 2017 Supp. 22-3402(a), the time limitations set out in the KSVPA are not mandatory. Under the KSVPA "any time requirements set forth in [the KSVPA] ... are intended to be directory and not mandatory and serve as guidelines for conducting proceedings under [the KSVPA]. K.S.A. 2017 Supp. 59-29a01(b). At least one other panel of this court has found that due to these differences a patient in a SVP action has no right to be present at a continuance hearing. See In re Care & Treatment of Kristek , No. 115,148, 2016 WL 6139743, at *4 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1318, --- P.3d ---- (2017). We find the panel's analysis persuasive. First, an action under the KSVPA is a civil, not a criminal, proceeding. As such, the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights do not apply. See U.S. Const. amend. VI ("In all criminal prosecutions ...."); Kan. Const. Bill of Rights, § 10 ("In all prosecutions ...."). Next, unlike the situation in Wright , a failure to meet the timeline set out by statute in a KSVPA proceeding does not require the case to be dismissed. Because of the lack of a mandatory dismissal provision in the KSVPA, the need for the defendant to be present is not as urgent. See K.S.A. 2017 Supp. 59-29a01(b). Accordingly, we find that Smith had no statutory or constitutional right to be present when the numerous continuances were requested by his attorneys. The district court did not err in finding that Smith's due process rights were not violated. Although he did not have a right to be present when his attorney or the State requested continuances, we agree with Smith that unreasonably continuing the case may impact his due process rights under the Fifth and Fourteen Amendments to the United States Constitution. Civil commitment under the KSVPA constitutes a deprivation of liberty which requires some due process protections, including protection against excessive delay. In re Care & Treatment of Ellison , 305 Kan. 519, 526, 385 P.3d 15 (2016). Standard of Review Whether Smith's due process rights were violated because of the time between the petition, probable cause hearing, and trial presents a mixed question of law and fact. We review the factual findings underpinning a district court's application of the Barker factors for substantial competent evidence, but we review the legal conclusions drawn from those facts de novo. In re Care & Treatment of Ellison , 305 Kan. at 533, 385 P.3d 15. Consideration of the Barker factors In In re Care & Treatment of Ellison , 305 Kan. at 532, 385 P.3d 15, the Kansas Supreme Court held that the appropriate test for determining whether an individual's due process rights were violated due to an excessive delay was set out by the United States Supreme Court in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182. When a court is determining whether an individual's due process rights were violated due to a delay the court should address four factors: (1) length of the delay; (2) reason for the delay; (3) individual's assertion of his or her right; and (4) prejudice to the individual. 407 U.S. at 530, 92 S.Ct. 2182. Length of delay "When balancing the Barker factors, 'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." In re Care & Treatment of Ellison , 305 Kan. at 534-35, 385 P.3d 15 (quoting Barker , 407 U.S. at 530, 92 S.Ct. 2182 ). In this case, Smith's bench trial occurred over 800 days after the petition was filed and almost 700 days after probable cause was found to exist. Smith, the State, and the district court agree that this length of time is sufficient to warrant an examination of the remaining factors. There is substantial competent evidence to support this finding. Reasons for delay The second factor is characterized as an inquiry into whether the State or the individual is more to blame for the delay. Doggett v. United States , 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed. 2d 520 (1992). When considering this factor the court should assign different weights to different reasons. Barker , 407 U.S. at 531, 92 S.Ct. 2182. For example, a deliberate attempt to delay the trial in an effort to hamper the defense should be weighed heavily against the State. 407 U.S. at 531, 92 S.Ct. 2182. On the other hand, "a valid reason, such as a missing witness, should serve to justify appropriate delay." 407 U.S. at 531, 92 S.Ct. 2182. Additionally, any period of delay that is attributable to the individual should be considered a valid delay. In re Care & Treatment of Ellison , 305 Kan. at 535-36, 385 P.3d 15. Continuances obtained by defense counsel also count against the individual, even when the individual did not want the continuance. 305 Kan. at 536, 385 P.3d 15. Delay of probable cause hearing Under the KSVPA, after a petition is filed a probable cause hearing should occur "[w]ithin 72 hours ... or as soon as reasonably practicable or agreed upon by the parties." K.S.A. 2017 Supp. 59-29a05(b). The time period between March 13, 2015, when the petition was filed, and July 9, 2015, the probable cause hearing, was 118 days. The ruling on probable cause occurred on September 4, 2015, 175 days from the initial petition. The first delay in March 2015 occurred because Smith's counsel was not present for the initial probable cause hearing. Smith's counsel was not aware of the appointment. The district court did not discuss this period in its decision. This delay should not be attributed to Smith. The next delay occurred in late March 2015, because Smith's counsel wanted multiple motions heard before the probable cause hearing. The district court correctly attributed this delay to Smith. Substantial competent evidence supports the district court's finding. The next delay occurred because the district judge was unavailable on May 27, 2015. In an email sent to counsel on May 15, 2015, the judge offered two choices: (1) proceed as scheduled with a new judge; or (2) continue the hearing. Smith's counsel agreed to continue the case through email and stated that it should be an "agreed continuance." The district court found that although "[Smith] was not responsible for that delay, [he] nevertheless consented to it." The delay from May 27 to July 9, 2015, was agreed upon by the parties and should not be weighed against the State. The district court heard evidence on July 9, 2015, and found that probable cause existed. The court took the matter under advisement and issued its ruling on September 4, 2015. The district court found that the delay between the hearing and the decision was reasonable because the judge had taken issues under advisement. After probable cause was found the parties mutually agreed upon a trial date of May 23, 2016. The district court's findings of the time between the petition and finding of probable cause are supported by substantial competent evidence. Further, the ultimate legal conclusion was correct. While there was a significant delay between the petition and the finding of probable cause, most of the delay is attributable to Smith. Delay between finding of probable cause and trial There was also a significant delay between the finding of probable cause and the trial. Under the KSVPA a trial should be held within 60 days of the probable cause hearing. K.S.A. 2017 Supp. 59-29a06(a). However, "[t]he trial may be continued upon the request of either party and a showing of good cause." K.S.A. 2017 Supp. 59-29a06(a). The trial did not occur on May 23, 2016. Instead, on May 10, 2016, Smith's counsel requested a continuance and sought a discovery schedule. In his email, Smith's counsel stated that Smith approved of the request. Smith now alleges that he did not agree to the continuance. A pretrial order was approved by the court in October 2016 which rescheduled the trial for April 3, 2017. The district court later noted this delay was significant but it was requested by Smith and for his benefit. The district court correctly noted that the continuance from May 2016 to April 2017 should be attributed to Smith. See In re Care & Treatment of Ellison , 305 Kan. at 535, 385 P.3d 15. Further, the delay is attributable to Smith even though he now states that he did not agree to the continuance. See State v. Rivera , 277 Kan. 109, 116-17, 83 P.3d 169 (2004) (rejecting argument that defense counsel's continuances should not be weighed against defendant because defendant did not approve them). The next significant event that occurred was Smith's appointed counsel withdrawing, the appointment and subsequent withdrawal of Smith's second counsel, and the appointment of Smith's third counsel. Smith's third appointed counsel sought a continuance in February 2017 because Smith planned to hire private counsel. Smith's current counsel entered his appearance in late February 2017. We do pause to note that we are puzzled and concerned about why, just a few months short of trial, Smith's initial appointed counsel would be allowed to withdraw against Smith's wishes, with no clear reason in the record. In fact, the district judge noted in his memorandum order that there was no motion to withdraw in the file and he had no independent recollection of why he allowed counsel to withdraw-obviously with no advance notice to Smith. It does appear, as Smith argues in his brief to this court, that Smith "was at the mercy of his attorneys." In February 2017, Smith's counsel requested a continuance of the April trial date in order to familiarize himself with the case and obtain the services of an expert witness. The State requested a trial date of July 31, 2017, so that it would have time to review the expert's report. The State also stated that it was prepared to proceed with trial in April. Smith expressed his desire to have his trial at an earlier date. Smith was once again given a choice: (1) go to trial in April with no expert; or (2) go to trial in July and have the opportunity to retain an expert. After conferring with his attorney, Smith agreed to schedule the trial on July 31, 2017. The bench trial occurred on July 27, 2017. After weighing the above information, the district court correctly found that this delay should be attributed to Smith. Ultimately, the district court found that after probable cause was found every "major continuance ... was at the request of [Smith] for the benefit of [Smith]." The court also found that the only delays that could be attributed solely to the State were delays requested to extend the briefing schedule and the delay while the trial judge took matters under advisement. The court found those delays did not weigh heavily against the State. The district court's findings are supported by substantial competent evidence. A majority of the delay in this case is attributable to Smith. Smith's assertion of right This court weighs an individual's efforts to assert his or her right to a speedy trial. In re Care & Treatment of Ellison , 305 Kan. at 537, 385 P.3d 15. When an individual asserts his or her right to a speedy trial it should be considered strong evidence of whether the individual is being deprived of his or her right. 305 Kan. at 538, 385 P.3d 15. Smith first asserted his right to a timely trial in a pro se motion in December 2016. That particular motion was stricken because "[Smith] has counsel. [Smith] is not entitled to 'hybrid' representation." The reference to hybrid representation is a result of Smith essentially asking for trial to occur without delay, while his counsel had already requested continuances of Smith's trial date. Smith first asserted his right through counsel in a motion to dismiss filed in May 2017. In In re Care & Treatment of Ellison , the court noted that an assertion that the case be dismissed for speedy trial violations is not a protected value under Barker . Instead, the individual should assert that a speedy trial on the merits occur. In re Care & Treatment of Ellison , 305 Kan. at 538, 385 P.3d 15. However, the court in In re Care & Treatment of Ellison also seemed to construe this requirement liberally. See 305 Kan. at 538-39, 385 P.3d 15 (noting Ellison did not specifically request speedy trial). In this case, the State does not contest that Smith asserted his right to a speedy trial. The State argues that Smith's assertion of his right was instead tainted by his continued requests for continuances. The district court noted that Smith, through his counsel, requested continuances. Additionally, the court noted that as to one of those continuances Smith was provided with an opportunity to have the trial in April 2017, a mutually agreed upon date. Smith agreed to continue the case in an effort to obtain a favorable expert witness. The district court concluded that the fact "this case is being tried on July 31 is not a factor that can be weighed against the State." This is incorrect. Smith asserted his objections to the delay in having his trial. This factor should weigh in favor of Smith, or against the State, but when considering the totality of the circumstances the weight given is minimal. See 305 Kan. at 539, 385 P.3d 15 (noting factor carried little weight because motions did not clearly assert the right and Ellison delayed setting motions for hearing). Prejudice to Smith Prejudice is " 'assessed in the light of the interests of [individuals] which the speedy trial right was designed to protect[:] .... (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.' " 305 Kan. at 539, 385 P.3d 15 (quoting Barker , 407 U.S. at 532, 92 S.Ct. 2182 ). The United States Supreme Court made it clear that the possibility of an impaired defense is the most important factor to consider. Barker , 407 U.S. at 532, 92 S.Ct. 2182. In this case, Smith's ability to present a defense was likely improved, rather than impaired, by the delay. Without the delay Smith would not have had an expert witness to testify on his behalf. Although we are troubled by the fact that his first attorney, who was in the case for almost two years, had not already designated an expert witness. Additionally, the extra delay helped his retained counsel familiarize himself with the case. However, the other two factors should still be considered. Smith was certainly prejudiced by his continued time in custody. The time Smith spent in custody is essentially dead time. As our Supreme Court pointed out in Ellison , had Smith been committed in compliance with the time guidelines in the KSVPA, he would have received treatment and several opportunities to petition for his release, opportunities he did not have while sitting in the county jail awaiting a trial. 305 Kan. at 541, 385 P.3d 15. Smith undoubtedly suffered from some level of anxiety while he was incarcerated. The district court found that the issue of prejudice was ultimately "a wash." We believe this is a close call, but we find that substantial competent evidence supports this finding. On the one hand, Smith was prejudiced by the lengthy incarceration, but on the other that same lengthy incarceration was often at the behest of his attorneys who sought to provide the best possible defense available to Smith. Balancing the Barker factors Because there is substantial competent evidence to support each of the Barker findings made by the district court, there is support for the district court's legal conclusion that Smith's due process rights were not violated. While there was a significant delay between the initial petition and the final trial, much of that delay is attributable to Smith and his attorneys. The delay that is attributable to the State is minimal and not unreasonable. Under these circumstances, the district court did not err in denying Smith's motion to dismiss. Affirmed.

On October 9, 2015, this court ordered the respondent, Jared Warren Holste, disciplined by a two-year suspension, stating that he could apply for reinstatement after six months, subject to terms and conditions specified. See In re Holste , 302 Kan. 880, 358 P.3d 850 (2015). On August 31, 2016, respondent filed a motion for early reinstatement with a proposed probation plan, approved by the Disciplinary Administrator's office. The Disciplinary Administrator's office filed a response on September 7, 2016, not opposing the respondent's motion for early reinstatement. On October 21, 2016, an order issued by this court reinstated the respondent to the practice of law in Kansas, subject to the terms and conditions of the probation plan of 18 months. See In re Holste , 305 Kan. 377, 382 P.3d 850 (2016). On June 12, 2018, the respondent filed a motion for discharge from probation. The Disciplinary Administrator filed a response to the motion on June 13, 2018, informing the court that it did not object to the respondent's motion for discharge from probation. IT IS THEREFORE ORDERED that the respondent's motion for discharge from probation be granted. IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to the respondent.

Arnold-Burger, C.J.: To determine whether to sentence a driving under the influence (DUI) offender in Kansas to a misdemeanor, meaning one or fewer prior DUI convictions, or a felony, meaning two or more prior DUI convictions, the court must verify the number of prior convictions. A conviction is defined as including not only prior convictions under K.S.A. 2016 Supp. 8-1567 but also including "a violation of an ordinance of any city ... which prohibits the acts that [ K.S.A. 8-1567 ] prohibits." K.S.A. 2016 Supp. 8-1567(i)(1). Timothy J. Williams was convicted of a felony DUI because he had a prior DUI conviction under K.S.A. 8-1567 and another DUI conviction under a similar Wichita municipal ordinance. He argues that the district court improperly counted his Wichita municipal DUI because the city ordinance did not prohibit the same acts prohibited by K.S.A. 8-1567. We agree and vacate his sentence and remand for sentencing as a second-time offender under K.S.A. 2016 Supp. 8-1567(b)(1)(B). Williams also asserts that he was improperly convicted of refusing to take a breath test under K.S.A. 2012 Supp. 8-1025, which was found to be unconstitutional by the Kansas Supreme Court. We agree and reverse his conviction for refusing to take a breath test. FACTUAL AND PROCEDURAL HISTORY In 2013, Williams was charged with refusing to submit to a breath test to determine the presence of alcohol; felony DUI; and failure to maintain a single lane. In order to establish that the DUI charge was a felony, the complaint referenced in part a prior DUI conviction in the Wichita Municipal Court. In 2012, Williams was convicted of DUI under Wichita Municipal Ordinance (W.M.O.) 11.38.150. Williams filed a motion to dismiss the charge of refusing to submit to a breath test arguing that K.S.A. 2012 Supp. 8-1025 was unconstitutional because it criminalized his refusal to submit to a breath test. He also filed a motion to dismiss the felony DUI charge, arguing that his prior conviction for DUI under W.M.O. 11.38.150 could not be used as a prior DUI conviction for purposes of determining the level offense. The district court denied both motions. The State and Williams proceeded to a bench trial on stipulated facts. At the bench trial, Williams preserved his arguments regarding the constitutionality of the criminalization of his refusal to submit to a breath test and the use of the Wichita municipal conviction for enhancement of his DUI from a misdemeanor to a felony. The district court judge found Williams guilty on all counts. At sentencing, Williams again objected to his criminal history rearguing that his DUI conviction under W.M.O. 11.38.150 could not be used as a prior DUI when determining his sentence in the present case. The court denied Williams' objection. Williams was sentenced on Counts 1 and 2 to concurrent 12-month sentences. He was ordered to serve 72 hours in jail, followed by 2,088 hours of work release, with a $1,750 fine on each count. Williams was also ordered to serve 12 months of postimprisonment supervision. Williams was fined $50 on Count 3. Williams timely appeals, arguing that his conviction under K.S.A. 2012 Supp. 8-1025 was unconstitutional and that the district court erred by considering his Wichita Municipal DUI for purposes of enhancing his sentence. ANALYSIS Williams' conviction for refusing to submit to a breath test under K.S.A. 2012 Supp. 8-1025 must be vacated. Williams' conviction for refusing to submit to a test to determine presence of alcohol or drugs arose from K.S.A. 2012 Supp. 8-1025. On appeal, he argues that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional by the Kansas Supreme Court and therefore his conviction must be vacated. He is correct. In State v. Ryce , 303 Kan. 899, Syl. ¶ 1, 368 P.3d 342 (2016), aff'd on reh. 306 Kan. 682, 396 P.3d 711 (2017), the Kansas Supreme Court found that K.S.A. 2016 Supp. 8-1025 is unconstitutional. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication that the Supreme Court is departing from its previous position. State v. Meyer , 51 Kan.App. 2d 1066, 1072, 360 P.3d 467 (2015). Because the Kansas Supreme Court declared K.S.A. 2016 Supp. 8-1025 unconstitutional, Williams' conviction under that statute must be reversed. The district court erred when it sentenced Williams to a felony DUI by including his prior Wichita municipal conviction for DUI as part of the felony sentencing calculus. Williams was charged with felony DUI. The offense was classified as a felony because it was alleged that he had two prior DUI convictions in the preceding 10 years, one in Sedgwick County and one in the Wichita Municipal Court. As it applies to the facts of this case, under Kansas DUI law, for purposes of determining whether the offense was properly classified as a felony a conviction is defined as including "a violation of an ordinance of any city ... which prohibits the acts that [ K.S.A. 8-1567 ] prohibits." K.S.A. 2016 Supp. 8-1567(i)(1). On appeal, Williams argues that the district court could not consider his Wichita Municipal Court DUI conviction under W.M.O. 11.38.150 because the Wichita ordinance did not, in January 2013, prohibit the same acts that 8-1567 prohibits. The difference between the state statute and the city ordinance is clear. Both the city ordinance and the state law prohibit operating a "vehicle" while under the influence of alcohol or drugs or with an alcohol concentration of .08 or more-using the exact same language. K.S.A. 2016 Supp. 8-1567(a) ; W.M.O. 11.38.150(a). The difference comes in the definition of the term "vehicle." Under State law, the term includes "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except electric personal assistive mobility devices or devices moved by human power or used exclusively upon stationary rails or tracks." K.S.A. 2016 Supp. 8-1485. At the time Williams was convicted Wichita defined "vehicle" as " 'every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.' " City of Wichita v. Hackett , 275 Kan. 848, 850, 69 P.3d 621 (2003). Because Wichita did not contain an exception for devices moved by human power it considered riding a bicycle while under the influence of alcohol a DUI, while the State did not. We pause to note that W.M.O. 11.04.400 was recently changed to define "vehicle" to mirror the State's definition of "vehicle." See W.M.O. 11.04.400 (Ord. No. 50-317, § 1, adopted September 13, 2016). Wichita has also adopted a separate ordinance of bicycling under the influence of alcohol or drugs. W.M.O. 11.48.190 (Ord. No. 50-316, §§ 1, 2, adopted September 13, 2016). Whether the definition of a conviction under K.S.A. 2016 Supp. 8-1567(i)(1) includes a city ordinance that is not identical-but is in fact broader than the state law, is a matter of statutory construction. Our standard of review is de novo. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). 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. 303 Kan. at 813, 368 P.3d 331. Both the Kansas Court of Appeals and the Kansas Supreme Court have considered this issue before. This argument is not new to this court and, with one exception, prior panels have all found that a Wichita municipal DUI conviction, as it existed before September 13, 2016, could not be counted for enhancement purposes because the city ordinance was broader than the state law. See State v. Lamone , 54 Kan.App. 2d 180, 193, 399 P.3d 235 (2017), petition for rev. granted February 26, 2018 (because Wichita ordinance is broader, and fact-finding would be needed, cannot be used for sentence enhancement); State v. Fisher , No. 115277, 2017 WL 2021526, at *5 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1323 (2017) (same); State v. Mears , No. 115278, 2017 WL 1534748, at *6 (Kan. App. 2017) (unpublished opinion), rev. granted 306 Kan. 1327 (2017) (same); State v. Schrader , No. 115196, 2017 WL 947631, at *4 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1329 (2017) (same, although interpreting similar provisions in K.S.A. 2014 Supp. 21-6811 [c][2] ). But see State v. Gensler , No. 112523, 2016 WL 2610262, at *5 (Kan. App. 2016) (unpublished opinion), rev. granted 306 Kan. 1323 (2017) (applying modified categorical approach to determine that based on the fact that the traffic tickets in the prior Wichita Municipal Court convictions said Gensler was driving a truck-and therefore not a bicycle-the court properly counted the convictions for enhancement purposes). All have been accepted for review by the Kansas Supreme Court. Likewise, all panels of our court addressing the issue outside of the Wichita municipal DUI context have held that K.S.A. 2016 Supp. 8-1567(i) means that a municipal ordinance or an out of state statute must prohibit the same acts that are prohibited under K.S.A. 2016 Supp. 8-1567(a). See, e.g., State v. Stanley , 53 Kan. App. 2d 698, Syl. ¶ 3, 390 P.3d 40 (2016), rev. denied 304 Kan. 1022 (2017) (Missouri DUI is broader than Kansas law therefore a Missouri conviction cannot be used for enhancement purposes); State v. Butler , No. 107767, 2013 WL 1457958, at *1-3 (Kan. App. 2013) (unpublished opinion) (Texas DUI statute broader than Kansas, so conviction cannot a be used for enhancement); State v. Wood , No. 105128, 2012 WL 718928, at *2 (Kan. App. 2012) (unpublished opinion) (Lenexa ordinance that simply prohibited operating " 'under the influence of alcohol' " instead of operating " 'under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle' " resulted in the Lenexa ordinance being broader than the statute and therefore the Lenexa DUI could not count as a prior DUI conviction under state law); State v. McClain , No. 104263, 2011 WL 3795476, at *2 (Kan. App. 2011) (unpublished opinion) (DUI conviction under 1978 Overland Park ordinance that merely prohibited operating a vehicle under the influence of alcohol, without the additional language of " 'to a degree that renders the person incapable of safely driving a vehicle' " could not be used for enhancement purposes). But when the ordinance and the statute are identical, prior municipal ordinance DUI convictions do count as prior convictions under state law. State v. Hurt , No. 108290, 2013 WL 4404195, at *5 (Kan. App. 2013) (unpublished opinion); State v. Miller , No. 108302, 2013 WL 1943153, at *8 (Kan. App. 2013) (unpublished opinion) (same). The Kansas Supreme Court has weighed in on this issue once, in City of Wichita v. Hackett , 275 Kan. 848, 69 P.3d 621 (2003). Hackett was the first, and so far the only, case in which our Supreme Court was confronted with a municipal DUI ordinance that was broader than the state DUI statute. Hackett involved the same ordinance at issue here, W.M.O. 11.38.150. Hackett directly appealed his municipal conviction for DUI on a bicycle. He argued that the City of Wichita had no authority to expand the definition of vehicle beyond that contained in state law. The Supreme Court disagreed and concluded that "the City of Wichita has the authority to prohibit the operation of bicycles while under the influence of alcohol." 275 Kan. at 852, 69 P.3d 621. But the Supreme Court next addressed whether Hackett's municipal conviction also qualifies as a prior conviction for state sentencing purposes under the Kansas DUI statute, K.S.A. 8-1567. The court found that it did not. The court relied on the language of then K.S.A. 8-1567(l) (now K.S.A. 2016 Supp. 8-1567 [i][1] ) which provided, as it does now, that for current sentencing purposes, a prior " ' "conviction" includes being convicted of a violation of ... an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits ....' " (Emphasis added.) 275 Kan. at 852, 69 P.3d 621. "These statutes disclose that the legislature intended to limit the consequences of a DUI conviction to those acts proscribed by state law. Operating a bicycle while under the influence, though a violation of the city code, is not a DUI under K.S.A. 8-1567. Such a conviction therefore does not count for state sentencing purposes concerning the instant offense or subsequent offenses." ( Emphasis added.) 275 Kan. at 853, 69 P.3d 621. The issue in Hackett was merely one of statutory construction. Because K.S.A. 2016 Supp. 8-1567(i) has its own internal provision regarding how prior convictions are reviewed to enhance a current DUI sentence, the court simply needed to review and interpret the statutory language. What is meant by the requirement that the ordinance "prohibit the acts that this section prohibits" in order to be considered a conviction? Does it mean the city ordinance must be identical (or perhaps narrower) than the state law to count the conviction for sentencing purposes? In the opening paragraph of Hackett the court set out the issues on appeal. The pertinent issue, and its short answer, was stated as: "Does a conviction for DUI as defined under the [Wichita] City ordinance qualify as a conviction under K.S.A. 8-1567 ? No." 275 Kan. at 849, 69 P.3d 621. That seems to end the matter. Our Supreme Court has made it clear that 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. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). It would not be an unreasonable reading of the statute to find that the plain meaning of the statute prohibits counting any DUI conviction under a city ordinance that varies at all from state law as a prior conviction for sentence enhancement purposes. This interpretation also seems reasonable given a DUI conviction has collateral consequences under state law beyond just the sentence. It also impacts other provisions regarding the suspension of the defendant's driver's license and results in certain enhancements under the revised Kansas Sentencing Guidelines Act (KSGA). See K.S.A. 2016 Supp. 8-1014 ; K.S.A. 2016 Supp. 8-1567(j) ; K.S.A. 2016 Supp. 21-6811(c). Moreover, the language of the internal sentencing enhancement provision of K.S.A. 2016 Supp. 8-1567(i)(1) is different than the corresponding provisions of the KSGA that require the statutes be "comparable." K.S.A. 2016 Supp. 21-6811(e). The Legislature did not use the word "comparable" in the DUI statute, so it must have meant something different. "It is presumed the legislature understood the meaning of the words it used and intended to use them ... in their ordinary and common meaning." Boatright v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). Our Supreme Court has found that comparable does not mean identical. State v. Williams , 299 Kan. 870, 873, 326 P.3d 1070 (2014) (citing State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 [2003], overruled on other grounds by State v. Dickey , 301 Kan. 1018, 1032, 350 P.3d 1054 [2015] [ Dickey I ] ). This leads to a reasonable conclusion that "prohibits the acts that this section prohibits" means the ordinance must be identical. But the language quoted later in the body of the opinion that "such a conviction" does not count for sentencing purposes, has raised the question of some of our panels regarding whether the Supreme Court meant that a Wichita DUI conviction that involved a person on a bicycle would not be counted, but a Wichita DUI conviction involving a person driving a truck would be counted because that provision is identical to State law. See Mears , 2017 WL 1534748, at *4-5, 394 P.3d 899. And why should it matter? Because to determine whether a person was convicted of driving a truck or a bicycle would require fact-finding by the court beyond the mere conviction itself. Based on cases that have been issued since Hackett , such judicial action may violate a defendant's constitutional rights. So our court has routinely compared the Wichita DUI law in light of those constitutional rights. We examine the constitutional overlay to the statute. As Justice Stegall pointed out in State v. Dickey , 305 Kan. 217, 221, 380 P.3d 230 (2016) ( Dickey II ), even though "the proper classification of a prior crime is exclusively a matter of state statutory law" there is a "thick overlay of constitutional law." Hackett was decided after Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) -which held that a fact, other than the existence of a previous conviction , used to increase a criminal defendant's sentence above the statutory maximum must be proved to a jury beyond a reasonable doubt-but before a long line of constitutional law cases that make up the "thick overlay" to which Justice Stegall refers. Post- Apprendi caselaw regarding consideration of prior convictions to enhance a sentence For several years after the United States Supreme Court issued its decision in Apprendi , little thought was given to counting prior convictions for sentence enhancement purposes. Based on Apprendi , it was believed that such action did not have any constitutional implications. But 13 years later in Descamps v. United States , 570 U.S. 254, 269, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the United States Supreme Court made it clear that when the prior crime of conviction is broader than the generic crime to which it is being compared-requiring the court to look beyond the mere fact of a conviction and examine the facts that gave rise to the conviction-the right to a jury trial under the Sixth Amendment to the United States Constitution is implicated. 570 U.S. at 269, 133 S.Ct. 2276. The Kansas Supreme Court adopted this reasoning for the first time in Dickey I , 301 Kan. at 1038-39, 350 P.3d 1054. The methods for determining whether the court would have to impermissibly look at underlying facts in violation of the defendant's Sixth Amendment rights were defined as the categorical approach and the modified categorical approach. 301 Kan. at 1037, 350 P.3d 1054. The categorical approach is appropriate when the statute sets out a single set of elements constituting the crime. "If the elements of the prior conviction are the same as, or narrower than, the elements of the corresponding crime ... , then the prior conviction may be counted as a predicate offense." 301 Kan. at 1037, 350 P.3d 1054. As recently clarified by the United States Supreme Court in Mathis v. United States , 579 U.S. ----, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016), elements are what the jury must find beyond a reasonable doubt at trial to convict the defendant. When a statute defines a single crime with a single set of elements, the analysis is straightforward. The example provided by the United States Supreme Court in Mathis is helpful. Generic burglary is unlawfully entering a building with the intent to steal. In California, however, the burglary statute included lawful or unlawful entry into a building with the intent to steal as burglary. Accordingly, a shoplifting offense could be classified as a burglary. The California statute was clearly broader. A jury would only have to find beyond a reasonable doubt that the defendant entered a building to convict. Because a jury would not have had to find that there was an unlawful entry, a sentencing court would have to look beyond the conviction to the underlying facts of the offense-was the entry in the case unlawful or lawful. Such an inquiry is prohibited under the Sixth Amendment. 136 S.Ct. at 2248-49. Similarly, a statute may define various factual means to commit a single element. For example, again from Mathis , a statute may require the use of a deadly weapon as an element of the crime. It may go on to state that a knife, gun, bat, or similar weapon all qualify as a deadly weapon. Because such a listing merely defines different factual ways to satisfy the element of "deadly weapon," the jury is not required to agree on which kind of deadly weapon was used, merely that a deadly weapon was used. 136 S.Ct. at 2249. In Mathis , the generic crime of burglary was defined as unlawful entry into a building or other structure. The statute under which Mathis was convicted in Iowa was broader, prohibiting unlawful entry into any building, structure, or land, water, or air vehicle . The jury would not have had to decide which of the various factual scenarios was present, just that one of them was present. But generic burglary does not prohibit entry into a land, water, or air vehicle. For sentencing purposes, the court would be required to look at which type of place was entered to determine if the conviction should count as a prior to enhance the sentence. Such an inquiry is prohibited under the Sixth Amendment. 136 S.Ct. at 2248-49. The modified categorical approach is used to determine which elements played a part in the defendant's conviction. Again, what did the jury have to find to convict the defendant? Mathis , 136 S.Ct. at 2253. It is still an elements-only inquiry. This is true even if the sentencing judge knows or can easily discover that the actual facts underlying defendant's prior conviction satisfy the elements of the offense to which it is compared. 136 S.Ct. at 2251. This approach is used when the prior conviction statute is divisible-in other words, when the statute under which the defendant previously was convicted provides alternative ways of committing the crime, each with its own set of elements, sometimes even with different punishments. Under the modified categorical approach, the court can look at a limited set of documents to determine which set of statutory elements it should use for purposes of comparing that prior conviction with the elements of the current comparable offense. So, the modified categorical approach lets the court look at a few documents from the prior conviction only to determine which alternative set of elements in the prior conviction statute it should compare to the current comparable offense. Descamps , 570 U.S. at 257-58, 133 S.Ct. 2276. Not to over emphasize, but it is never an examination of facts, only a review of elements. An example may clarify this distinction. To commit an aggravated robbery requires a defendant commit a robbery and either be armed with a deadly weapon or inflict bodily harm upon a person-two entirely distinct ways of violating the statute. K.S.A. 2016 Supp. 21-5420(b)(1), (2). If the fact to be determined from the conviction were whether the defendant had a deadly weapon, the armed robbery conviction alone would not be sufficient. But the court could look at the judgment to see if the defendant was convicted of violating K.S.A. 2016 Supp. 21-5420(b)(1), the section of the statute identifying a deadly weapon as an essential element. The documents, however, may not be used to prove the fact itself but merely to point out the applicable statutory violation underlying the crime of conviction. The fact must then be evident from the statutory elements. That is, the court must look to the statutory elements of the crime of conviction as codified to discern the fact rather than the case-specific circumstances supporting the particular defendant's guilt. The sentencing judge could be confident that the jury would have had to find the defendant guilty of having a deadly weapon in order to convict. Given this background, we find-as have all but one other panel of this court-that the modified categorical approach would not be appropriate in determining whether Williams had a prior DUI conviction involving something other than a bicycle, although such information would be easy to determine. The ordinances in question simply list various facts that make up the definition of vehicle. The list of vehicles is broader than the state law. Each type of vehicle is not a separate element of the offense. The defendant's conviction was for operating a vehicle in violation of K.S.A. 2016 Supp. 8-1567. The jury would not have had to determine which type of vehicle. Because without looking at further documentation and facts not proven to a jury we cannot conclude that a jury found beyond a reasonable doubt that he was driving a truck or car, Williams' municipal conviction for DUI cannot be used for enhancement purposes under a constitutional analysis. The sentencing impact of our decision is considered. Finally, we are compelled to note that although we are remanding this for resentencing pursuant to K.S.A. 2016 Supp. 8-1567(b)(1)(B), the only guaranteed benefit Williams will get from such a resentencing is the reclassification of his crime from a felony to a misdemeanor. The district judge sentenced Williams to 1 year in jail and a $1,750 fine. That is the statutory maximum for a second-time offense under K.S.A. 2016 Supp. 8-1567(b)(1)(B). Although the mandatory minimums vary for a second and third offense, there is no requirement that the court sentence an offender to the statutory minimum, the court simply cannot exceed the statutory maximum. Similarly, as it relates to crime classifications under the KSGA, simply because a prior offense does not fit the criteria as a person crime, does not mean the prior offense is not counted at all. It is simply not given the designation of person crime that serves to increase the maximum sentence. Judges are not required to turn a blind eye to a person's total criminal history. They are free to consider all prior convictions and the facts related to said convictions as long as such consideration does not enhance a defendant's sentence beyond the statutory maximum. Accordingly, other than the felony classification, there was nothing improper about the individual sentence imposed, although on remand the judge may, in his or her discretion, reduce the sentence to the mandatory minimum sentence for a second-time offender. It is also important to note that nothing prevents the district judge from considering Williams' prior record including the facts of his Wichita DUI in making a sentencing decision that does not statutorily enhance his sentence beyond the maximum. So the district judge would have the discretion to impose the same sentence imposed on January 15, 2016. In sum, Williams' conviction for refusing the breath test is reversed and his sentence vacated. His sentence for DUI is vacated, and the case is remanded for the district court to sentence him under K.S.A. 2016 Supp. 8-1567(b)(1)(B).

The opinion of the court was delivered by Biles, J.: A jury convicted Jack R. LaPointe of aggravated robbery and aggravated assault. From the evidence, the jury knew hairs found on clothing believed to be worn by the perpetrator probably did not belong to LaPointe. Years later, LaPointe requested DNA testing under K.S.A. 2017 Supp. 21-2512, which authorizes postconviction analysis of biological material for first-degree murder and rape cases. The district court granted the motion over the State's vigorous objections. The analysis confirmed one hair did not belong to LaPointe, while the other was inconclusive but probably not his. He now seeks a new trial, claiming these test results would have changed the original trial's outcome. Lower courts denied that relief. LaPointe appeals. The State cross-appeals over the preliminary battles lost opposing testing. We unanimously affirm the decision denying LaPointe a new trial. The district court did not abuse its discretion when it determined there was no reasonable probability these results would have changed the original trial's outcome. See K.S.A. 2017 Supp. 21-2512(f)(2) (reciting test for granting new trial). As to the State's cross-appeal, we unanimously hold LaPointe was in state custody for purposes of K.S.A. 2017 Supp. 21-2512(a) (permitting DNA testing for a person "in state custody" convicted of first-degree murder or rape), even though he was in a federal prison when he applied for testing. As to the State's objection that LaPointe's crimes were not statutorily eligible for DNA testing, a majority agrees. That portion of the State's cross-appeal is sustained. In so deciding, we overrule State v. Cheeks , 298 Kan. 1, 310 P.3d 346 (2013) ( Cheeks I ), which expanded postconviction DNA testing to a second-degree murder defendant to avoid perceived equal protection problems. FACTUAL AND PROCEDURAL BACKGROUND In October 2000, a man robbed a Roeland Park Payless store at gunpoint, taking about $1,000 stuffed into a shopping bag. A store clerk, customers, and others in a nearby parking lot provided general descriptions, but only one witness later identified LaPointe. Police found a plaid shirt and baseball hat at a breezeway in a nearby apartment complex. They discovered a pair of gloves in a different breezeway. A tracking dog led officers to a blue bandana under a car in the complex parking lot. Head hairs were found on the clothing. LaPointe was eventually charged. At trial, Robert Booth, chief criminologist for the Kansas City, Missouri, crime lab, testified the hairs most likely did not belong to LaPointe, although he allowed there was a possible "remote explanation" that LaPointe could still be the source. This could happen, he said, if LaPointe changed the way he maintained his hair after the officers found the clothing and before a known sample was obtained from LaPointe for comparison. Booth characterized this possibility as rare. Booth testified that "just because [the hairs] may not be his or doesn't match does not mean he never wore the garb itself. He could have worn them and not shed any hair or we didn't find the hair he shed." On cross-examination, Booth would not agree the person who shed the hairs was "most likely the person most recently to have worn the items." But when asked if it would "be more likely than not," Booth responded "probably so." Booth ultimately concluded the hairs probably were not LaPointe's. A State DNA expert testified the lab could not extract sufficient material from the bandana, shirt, cap and gloves to make a DNA comparison. There were three usable latent fingerprints from the crime scene, but none matched LaPointe's. The State's strongest evidence came from Michael Norton, who said he committed the crime with LaPointe. Norton testified in exchange for immunity. He said the two planned to commit a robbery in a "low-key" area. The pair would split the proceeds, and LaPointe would pay Norton to satisfy a debt. Norton said the plan was to park in a residential area, hopefully an apartment complex where the vehicle would be inconspicuous. LaPointe chose the Payless. Norton parked the car in the adjacent apartment complex to wait while LaPointe robbed the store. Norton testified LaPointe wore blue jeans and a sweater and was holding a baseball cap and a handkerchief when he got out of the car. LaPointe used a sawed-off shotgun he got from Norton. About 10-15 minutes passed before Norton saw LaPointe standing outside a store next to the Payless. About five minutes later, LaPointe came running back with the money, the handkerchief, and the gloves. Testifying in his own defense, LaPointe confirmed he had known Norton since 1998. He also confirmed he lost a pistol belonging to Norton, who demanded money for it. LaPointe testified he got a sawed-off shotgun and gave it to Norton. He denied seeing Norton the day of the robbery and denied committing the crimes. Additional evidence we will detail later conflicted with or corroborated these accounts. The jury convicted LaPointe. The district court sentenced him to the middle grid-block sentence of 233 months for aggravated robbery and to the middle grid-block sentence of 12 months for the aggravated assault. The court ordered LaPointe's sentences to run consecutive to each other and to existing West Virginia, Kansas, and federal sentences. LaPointe's criminal history score was an A. The battles over DNA testing In 2014, LaPointe tried to invoke K.S.A. 2014 Supp. 21-2512 for postconviction DNA testing of the biological material found on the clothing thought to have been worn by the robber. An obvious question was whether his crimes qualified for this because the statute allows only persons convicted of first-degree murder or rape to request testing under specific circumstances. LaPointe noted our court's caselaw had expanded the statute's scope based on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Cheeks I , 298 Kan. at 11, 310 P.3d 346 (statute violates equal protection as applied to individuals convicted of second-degree murder and sentenced to 15 years to life imprisonment). LaPointe contended he was similarly situated to those persons listed in the statute because of his prison term. The State objected, arguing LaPointe's crimes differed from first-degree murder and rape, and the Legislature had authority to distinguish between crimes when deciding DNA testing eligibility. The district court agreed with LaPointe and ordered testing. From that point, the litigation split into separate tracks. First, the State immediately appealed the order granting testing. But a Court of Appeals panel dismissed that effort for lack of jurisdiction. State v. LaPointe , 51 Kan. App. 2d 742, 750, 355 P.3d 694 (2015) ( LaPointe I ). Our court affirmed, holding the State's chosen procedural path was premature. State v. LaPointe , 305 Kan. 938, 947, 390 P.3d 7 (2017) ( LaPointe II ). On the second track, the testing was completed while the interlocutory appeal proceeded. The State produced two hairs. One, described as a "[h]air shaft from cap/gloves," yielded test results that were inconclusive but more likely than not excluded LaPointe as the contributor. The other, described as a "[h]air shaft from bandana," produced test results conclusively excluding LaPointe as the source. Based on those results, LaPointe asked the district court to vacate his convictions or, alternatively, grant him a new trial. The State argued the results would not have affected the jury's verdict because they merely confirmed the hairs did not belong to LaPointe, which the jury already knew. The district court agreed LaPointe was not entitled to a new trial. The court found the results were favorable but insufficient to support a reasonable probability they would result in a different trial outcome. The court reasoned the jury convicted LaPointe when it was clear no physical evidence linked him to the robbery and that most likely he did not contribute the hairs. The court noted defense counsel emphasized both these points at trial. It also concluded the DNA results would have had little to no impact on the testimony from Norton and the eyewitnesses. LaPointe appealed, and the State cross-appealed on its two statutory eligibility arguments: (1) LaPointe was not in state custody when he requested DNA testing; and (2) LaPointe's crimes were not those the Legislature specified. A Court of Appeals panel affirmed the decision denying LaPointe a new trial. It dismissed the State's cross-appeal without reaching the merits. State v. LaPointe , No. 113,580, 2016 WL 6910200, at *6 (Kan. App. 2016) (unpublished opinion) ( LaPointe III ). Citing Haddock v. State , 295 Kan. 738, Syl. ¶ 4, 286 P.3d 837 (2012) ( Haddock II ), the panel acknowledged the test results were favorable to LaPointe but concluded the district court was within its discretion to deny a new trial. 2016 WL 6910200, at *3, 5. After summarizing the witness testimony, the panel reasoned: "[A] careful review of the record reveals that LaPointe's jury heard evidence that one eyewitness identified LaPointe, Norton testified he conspired with LaPointe to commit this robbery, and the experts did not believe that it was LaPointe's hair found in the recovered clothing. In addition, no fingerprints were recovered matching LaPointe's fingerprints. In light of the fact that there was no forensic evidence connecting LaPointe to the crime during the first trial, the district court did not err in holding that the DNA test results were not of such materiality that there was a reasonable probability a jury would have reached a different outcome had it considered the test results." 2016 WL 6910200, *5. Both parties timely petitioned for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). THE FAVORABLE DNA TESTING DOES NOT WARRANT A NEW TRIAL We consider first LaPointe's argument that the district court erred in denying him a new trial when the DNA outcomes showed a hair from the perpetrator's clothing did not belong to him and that a second hair was probably not his. We hold the court did not abuse its discretion. Standard of review K.S.A. 2017 Supp. 21-2512 specifies mandatory dispositions and procedural requirements depending on how DNA testing results are characterized: (1) unfavorable, (2) favorable, and (3) inconclusive. See Haddock v. State , 282 Kan. 475, 495, 146 P.3d 187 (2006) ( Haddock I ). The analysis turns on the category. K.S.A. 2017 Supp. 21-2512(f) ; see Goldsmith v. State , 292 Kan. 398, 402, 255 P.3d 14 (2011). "To be 'favorable,' the test result need not completely exonerate the petitioner." Goldsmith , 292 Kan. at 402, 255 P.3d 14. In LaPointe's case, it is undisputed the results are favorable, so the statute provides: "(2) If the results of DNA testing conducted under this section are favorable to the petitioner and are of such materiality that a reasonable probability exists that the new evidence would result in a different outcome at a trial or sentencing, the court shall: (A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and (B) enter any order that serves the interests of justice, including, but not limited to, an order: (i) Vacating and setting aside the judgment; (ii) discharging the petitioner if the petitioner is in custody; (iii) resentencing the petitioner; or (iv) granting a new trial." K.S.A. 2017 Supp. 21-2512(f). Applying its plain language, this provision means favorable testing alone does not mean the district court must grant a defendant affirmative relief. See Haddock II , 295 Kan. at 756, 286 P.3d 837. "In almost all cases where the new DNA evidence is favorable, except in those cases where the court after hearing has entered any other order to serve the interests of justice, the hearing judge is faced with a decision of whether to grant a new trial based upon the favorable results from the new DNA testing. "The standard for whether to grant a new trial under such circumstances is similar to our standard for granting a new trial based upon newly discovered evidence, except that no time limit exists for such a motion and a defendant need not establish that the new evidence was newly discovered. In all other respects it is treated as a motion for new trial governed by the provisions of K.S.A. 22-3501 : 'The court on motion of a defendant may grant a new trial to him if required in the interest of justice.' "Just as the court 'shall enter any order that serves the interests of justice ' under the provisions of K.S.A. 2005 Supp. 21-2512, one such order 'in the interest of justice' is an order for a new trial. In order to grant such an order, the 'evidence must be of such materiality that a reasonable probability exists that it would result in a different outcome at trial. [Citation omitted.]' State v. Henry , 263 Kan. 118, 132-33, 947 P.2d 1020 (1997). We additionally note that just as an order granting a new trial under K.S.A. 22-3501(1) is subject to an abuse of discretion, the standard of appellate review of a trial court's order under K.S.A. 2005 Supp. 21-2512 is whether the trial court abused its discretion. See State v. Adams , 280 Kan. 494, 501, 124 P.3d 19 (2005)." Haddock I , 282 Kan. at 498-99, 146 P.3d 187. The district court's decision whether to grant a new trial, as long as it has an adequate basis in fact and law, will not be disturbed on appeal if a reasonable person could agree with that decision. Haddock II , 295 Kan. at 763, 286 P.3d 837 ; see also State v. Rodriguez , 302 Kan. 85, 98, 350 P.3d 1083 (2015) ("We conclude the district court did not err in essentially holding there is no reasonable probability a jury would have reached a different outcome had it considered the testing results. [Citation omitted.] So the court did not abuse its discretion in denying [the] motion for new trial ...."); State v. Brune , 307 Kan. 370, 372, 409 P.3d 862 (2018) (abuse of discretion demonstrated if decision [1] arbitrary, fanciful, or unreasonable; [2] based on an error of law; [3] based on an error of fact). With this understanding, it is necessary to dive deeper into the evidence because that was the foundation underlying the district court's denial of relief and the panel's affirmance. Additional background As mentioned, the most direct evidence came from Norton, who admitted being an accomplice and testified in exchange for immunity. He disclosed he had 14 prior convictions for crimes involving dishonesty or false statements, not including federal bank robbery and conspiracy convictions. He was in federal custody when he testified. In addition to telling the jury about the pair's robbery plans, the jury knew Norton told an FBI agent a few weeks after the robbery that LaPointe said he threw the gun used in the crime on the roof of a Fashion Bug store near the Payless store. Norton also told officers LaPointe threw the gun on a roof but did not say which one. Officers recovered the gun from the Fashion Bug roof. LaPointe's wife corroborated Norton's testimony about LaPointe losing his gun and obtaining a shotgun sometime in October 2000. But she also testified favorably for the defense, such as explaining that LaPointe's appearance when the crime occurred did not match the perpetrator's descriptions given by eyewitnesses and that she was on call at work the night of the robbery, and Norton was at her Kansas City home when she was called in about 7:30 p.m. Eyewitness testimony was also mixed. A woman in the parking lot outside the Payless told police she saw a man walking quickly and carrying a gun. She said the man was white but did not remember his height, weight, age, or clothing, except that he had a bandana or do-rag on his head and his hair pulled back. When police showed her a photo lineup that did not include LaPointe's photo, she said all were too young to be the robber. Police showed her another photo lineup nearly three months after the robbery that included LaPointe's photo based on information received from Norton. She identified LaPointe as the robber. A woman who was with her in the parking lot was confident the man they saw was not carrying a weapon, although she admitted her recollection was dull and noted she suffered a stroke weeks before the robbery that adversely affected her short-term memory. She was unable to help police do a composite drawing. During her police interview, she told officers the man she saw was 5'10?, had a skinny build, was not wearing anything on his head, was dressed in a blue flannel shirt, and held something looking like a white plastic trash bag. The store clerk, who put the money in a shopping bag for the robber, described him as a white male, about 6 feet tall, and in his mid to late twenties. She said he wore a plaid jacket with a bandana covering his face. She said he had short, blond or yellow hair that looked dyed because the roots were darker than the top. She described his hair as not very long and "probably just spikey." The clerk at first picked a person other than LaPointe from a photo lineup, which did not include LaPointe's photo, about two weeks after the robbery but at trial said she would not recognize the perpetrator if she saw him again. A Payless customer said the robber was white, young-about 26 or 27 years old-and slender, with blond hair and wearing a cap. The customer's then-11-year-old daughter described the perpetrator as white, about 6 feet tall, having short blond, spikey hair, skinny, looking tough or muscular, and not wearing a hat. This evidence was thoroughly discussed by counsel during their closings. The prosecutor noted Norton did not meet the perpetrator's physical description because he is bald and not tall enough. The prosecutor also contended the parking lot witness was the only person with any degree of accuracy who saw LaPointe. The scientific evidence was dismissed as "very inconclusive" and "a wash." The prosecutor said: "The hair appears not to be Mr. LaPointe's. But frankly, we can't tell you that he didn't wear that bandana, that he did not wear that shirt, he didn't wear that cap because of the easy transference of hair. We don't know who wore that bandana the day before. Maybe it was Loretta LaPointe's daughters, maybe it was Loretta LaPointe. We don't know where that bandana was the day before this robbery occur[red]. The scientific evidence unfortunately is a wash. "So what you have left for your consideration is the testimony of Michael Norton and [the parking lot witness], the eyewitness." The prosecutor maintained the parking lot witness' identification and the composite sketch completed with her help shortly after the crime corroborated Norton's testimony. LaPointe's counsel argued the man another witness identified in a photo lineup might have committed the crimes. Counsel called the parking lot witness' testimony into question by pointing out inconsistencies with her companion's testimony and her brief opportunity to see the robber. Defense counsel also challenged Norton's credibility. And with respect to the forensic evidence, counsel said: "I applaud [the prosecutor] for the fact that she puts on all the evidence. If she hadn't put on crime lab people I would have. And that's why the preparation of the defense case was fairly brief because she put on a great deal of the witnesses that I would have called had she not. She put on a great deal of witnesses that provided no beneficial information whatsoever to you. "We've got hairs from somebody that wore that bandana. Those hairs, I believe if I recall the testimony correctly of the examiner from Missouri, indicated that the person-it was most likely that the person that most recently wore that bandana was the one responsible for leaving those hairs on the bandana." Later he argued: "All of you are probably wondering what you were doing here listening to all of the testimony from all these specialists talking about all of what they didn't have. They had no matching prints, they did not have enough DNA, they didn't have enough hair. I don't know that it's quite a wash, as [the prosecutor] would say. "The hair guy testified with some degree of certainty it was certainly not Mr. LaPointe's hair. They see no [sic ] remote possibility it might have been but it seemed clear he did not believe it to be the case." Discussion LaPointe maintains the panel's analysis failed to assess the new evidence's impact in light of the record as a whole. In particular, he contends the panel should have considered whether the test results undermined confidence in the eyewitness identification and accomplice testimony. In his view, the panel merely conducted an inquiry of the evidence's sufficiency. And he argues the district court abused its discretion by basing its decision on an error of law-failing to "make a probabilistic determination about the likely impact of the new evidence on reasonable, properly instructed jurors." See Haddock II , 295 Kan. 738, Syl. ¶ 6, 286 P.3d 837. But the record belies this notion. The State's hair comparison expert testified LaPointe probably did not contribute the hairs and acknowledged the possibility was remote that he did contribute them. The expert also testified the fact LaPointe's hair did not match the recovered samples from clothing thought to belong to the robber did not mean LaPointe had not worn those items. And the prosecutor conceded there was no other forensic evidence connecting LaPointe to the crime, while defense counsel emphasized this as a gaping hole in the State's case. The favorable test results affirmed the hair comparison expert's opinion that the hair was probably not LaPointe's. But they do not alter the expert's further testimony that the fact the hair did not belong to LaPointe did not mean he did not wear the clothing. The possibility raised by Booth remains that LaPointe might not have deposited hair on the clothing or that the State simply did not find any hairs he did shed. "[T]he presence of a reasonable explanation mitigates the potential impact of the evidence if there were a retrial, a consideration that can be made in making a probabilistic determination about what reasonable, properly instructed jurors would do." Haddock II , 295 Kan. at 772, 286 P.3d 837. LaPointe's case is analogous to Rodriguez , in which the trial court was within its discretion to deny a new trial even though postconviction DNA testing established a third-party's DNA was on a pillowcase in a bedroom where a rape occurred. No physical evidence linked Rodriguez to the attack, and his conviction was based on the victim identifying him. The Rodriguez court pointed out the jury heard explanations about why the third-party's DNA could be in the bedroom and why the defendant's DNA might not. The jury also was "able to assess [the victim's] credibility and the evidence corroborating her testimony and to decide whether she was capable of identifying Rodriguez as her attacker." 302 Kan. at 97, 350 P.3d 1083. The court reasoned the results showing the pillowcase sample was not likely connected with the rape did not advance the defense theory that someone else committed the crime. 302 Kan. at 98, 350 P.3d 1083. In Haddock II , when the evidence left open the possibility a hair in the victim's hand belonged to the victim or a third party, postconviction testing confirming the hair was not the defendant's also raised no reasonable probability of a different outcome. This was because defense counsel noted this possibility during closing, and the district court's evidentiary ruling preventing reference to the hair being defendant's reinforced that the DNA testing at the time of trial did not decisively establish the hair was the defendant's. Haddock II , 295 Kan. at 772-73, 286 P.3d 837. Similarly, LaPointe's jury heard testimony explaining why hair not belonging to LaPointe could be on the clothing and why his DNA might not be found there. And the jury could assess witness credibility, including Norton's, who had substantial evidence damaging his trustworthiness. But key details to Norton's testimony were corroborated by the recovered gun from the Fashion Bug roof based on his tip; testimony from LaPointe's wife and LaPointe confirming details about the sawed-off shotgun and the debt-repayment arrangement; and the eyewitness identification. We hold the panel correctly concluded a reasonable person could agree with the district court's decision to deny LaPointe a new trial. THE STATE'S QUESTIONS RESERVED As mentioned, the State vigorously opposed LaPointe's efforts to have postconviction DNA testing. The State based its opposition on two expressly stated criteria in K.S.A. 2017 Supp. 21-2512 : (1) a person requesting testing must be "in state custody"; and (2) that person must have been convicted of first-degree murder or rape. The State noted LaPointe was in federal prison when he requested testing and that his convictions were not statutorily specified. When the district court rebuffed these arguments, the State immediately took its ill-fated appeal "upon a question reserved" under K.S.A. 2017 Supp. 22-3602(b)(3), which was dismissed for lack of jurisdiction because the testing order was not a final judgment. LaPointe II , 305 Kan. 938, 390 P.3d 7. But after the district court denied LaPointe relief, the State renewed its challenges to LaPointe's statutory eligibility for testing by cross-appealing and citing the question reserved statute as its jurisdictional basis. There is no dispute the district court entered a final judgment, so the State's ability to proceed with its questions reserved depends on whether they are of " 'statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.' " LaPointe II , 305 Kan. at 944, 390 P.3d 7 (quoting State v. Leonard , 248 Kan. 427, 432, 807 P.2d 81 [1991] ). We agree this qualifying criteria for answering the State's questions reserved are met. Questions reserved presuppose the case at hand has concluded but that an answer is necessary for proper disposition of future cases. State v. Puckett , 227 Kan. 911, 912, 610 P.2d 637 (1980). Our court has accepted such appeals in many circumstances. See, e.g., State v. Stallings , 284 Kan. 741, 742, 163 P.3d 1232 (2007) (whether defendant has right to allocution before the jury during the death penalty phase); State v. Murry , 271 Kan. 223, 21 P.3d 528 (2001) (whether trial court erred in suppressing blood sample evidence taken from defendant prior to arrest); State v. Cockerham , 266 Kan. 981, 984, 975 P.2d 1204 (1999) (whether granting credit for time served modifies sentence); State v. Chastain , 265 Kan. 16, 22-23, 960 P.2d 756 (1998) (whether trial court erred in refusing to admit horizontal gaze nystagmus testing evidence, and whether jury should consider victim's fault in determining if defendant is guilty of involuntary manslaughter or vehicular homicide); State v. Roderick , 259 Kan. 107, 109, 911 P.2d 159 (1996) (whether "the fact that a defendant enters guilty pleas for multiple offenses in separate cases on the same date preclude[s] the use of those convictions in determining the defendant's guidelines criminal history score for sentencing on those offenses"); City of Overland Park v. Cunningham , 253 Kan. 765, 766, 861 P.2d 1316 (1993) ("whether an objection for 'lack of foundation' is sufficient when a request for a more specific objection is made"); State v. Lash , 237 Kan. 384, 385, 699 P.2d 49 (1985) (whether the trial court erred by excluding expert opinion testimony that father sexually molested son). More recently, this court sharply divided on one question now presented on the equal protection analysis for postconviction DNA testing restrictions and the convictions statutorily eligible for its provisions, i.e., first-degree murder and rape. See Cheeks I , 298 Kan. 1, 310 P.3d 346 (4-3 majority holding statute violates equal protection as applied to individuals convicted of second-degree murder and sentenced to 15 years to life imprisonment). In Cheeks I , the majority noted the DNA testing statute's purpose is to provide "an opportunity for exoneration to innocent individuals convicted of severe crimes" and on that basis judicially expanded its scope. 298 Kan. at 6, 11, 310 P.3d 346. We hold the State's questions reserved are of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes. We proceed to addressing them. Standard of review The State's questions reserved present issues of statutory interpretation subject to de novo review. See State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). LaPointe was "in state custody" as K.S.A. 2017 Supp. 21-2512 requires . This court has addressed the "in state custody" requirement only once. In State v. Cheeks , 302 Kan. 259, 352 P.3d 551 (2015) ( Cheeks II ), the court noted the statute's plain language provides in the present tense that a person in state custody " 'may petition' " for testing. This, the court held, meant Cheeks needed only to be in state custody when filing the petition. Cheeks met this timing requirement, so the court determined it unnecessary to address whether a defendant must remain " 'in state custody' " while a court processes the request after release on parole. 302 Kan. at 260-61, 352 P.3d 551. In LaPointe's case, he was in federal prison when he filed his motion, so Cheeks II does not apply. The State argues any detainer lodged for LaPointe after his release from federal custody imposed no obligation on the federal government if the State failed to take him into custody. We reject this reasoning. The ordinary definition of "custody" refers to either physical control over the person or a legal restraint. See Black's Law Dictionary 467 (10th ed. 2014) (defining custody as "care and control of a thing or person" or detention of a person "by virtue of lawful process or authority"). In the context of K.S.A. 60-1507 relief, which permits "[a] prisoner in custody under sentence" to move the court that imposed the sentence to vacate it or set it aside, the Court of Appeals has held the existence of a Kansas detainer permitted a defendant to challenge his Kansas sentence, even though he was in a Missouri prison and had not yet begun to serve the Kansas sanction. Maggard v. State , 27 Kan. App. 2d 1060, 1063, 11 P.3d 89 (2000). And this court has held the restraints imposed by probation are sufficient to constitute custody for K.S.A. 60-1507 purposes. Miller v. State , 200 Kan. 700, 704, 438 P.2d 87 (1968) (holding conditions set out in probation order were "significant limitations upon the petitioner's liberty of action and constitute restraints upon his freedom which are not suffered by members of the public generally"). In De Paunto v. People of State of Michigan , 332 F.2d 396 (6th Cir. 1964), the court held a prisoner-who was paroled by the state on the conviction he sought to challenge in a federal habeas corpus action while confined in a federal prison-was not in state custody because the state paroled him "not into the custody of the state parole board, but into the custody of federal authorities" and so "[n]either the parole board nor any other state agency is imposing any restrictions on [him]." 332 F.2d at 397. As a result, he was not in state custody and could not pursue habeas relief against the state officials. 332 F.2d at 397. Here, the State lodged a detainer imposing a restriction on LaPointe. And unlike De Paunto , the Kansas sentence was pending when LaPointe filed his motion. We note further the State developed no factual record about its detainer, so we can only look to a detainer's general constraints. Under federal law: "The Director of the Bureau of Prisons shall order that a prisoner who has been charged in an indictment or information with, or convicted of, a State felony, be transferred to an official detention facility within such State prior to his release from a Federal prison facility if- (1) the transfer has been requested by the Governor or other executive authority of the State; (2) the State has presented to the Director a certified copy of the indictment, information, or judgment of conviction; and (3) the Director finds that the transfer would be in the public interest. "If more than one request is presented with respect to a prisoner, the Director shall determine which request should receive preference. The expenses of such transfer shall be borne by the State requesting the transfer." 18 U.S.C. § 3623 (2012). The State did not show whether it had made a formal request for transfer when LaPointe moved for testing or whether such a request was granted. And the State did not establish it was probable or even a substantial possibility that LaPointe would not be released to Kansas authorities when his federal sentence ended. But even if LaPointe were not returned by federal authorities, he would still be subject to arrest and confinement in Kansas for execution of his sentence. See K.S.A. 2017 Supp. 22-3427(a) (providing county sheriff has duty to cause person subject to sentence to be confined). "When interpreting statutes, [the court] begin[s] with ' "the fundamental rule that [courts] give effect to the legislature's intent as it is expressed in the statute. Courts must apply a statute's language when it is clear and unambiguous, rather than determining what the law should be, speculating about legislative intent, or consulting legislative history." ' State v. Williams , 298 Kan. 1075, 1079, 319 P.3d 528 (2014). [The court] derive[s] legislative intent by first applying the meaning of the statute's text to determine its effect in a specific situation. 'It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning.' Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014)." Collins , 303 Kan. at 474, 362 P.3d 1098. We hold LaPointe was in state custody within the statute's meaning because of the State's detainer and the usual procedures attendant to such detainers. The district court did not err in deciding LaPointe was in state custody. K.S.A. 2017 Supp. 21-2512 does not apply to LaPointe . When ordering LaPointe's requested DNA testing, the district court acknowledged K.S.A. 2017 Supp. 21-2512 was written to apply only to those convicted of first-degree murder or rape and that LaPointe was not convicted of those crimes. So to expand the statute's application, the court relied on Cheeks I , in which a divided court expanded postconviction DNA testing to second-degree murder to avoid perceived equal protection problems. Cheeks I , 298 Kan. at 11, 310 P.3d 346. The district court specifically held LaPointe "is similarly situated to the defendant in Cheeks [I] , and therefore there is no rational basis for denying [LaPointe's] motion for post-conviction DNA testing." The district court read Cheeks I to require focus on the punishment imposed for a crime when determining whether a person is similarly situated to another for equal protection purposes. The court then reasoned: "[LaPointe] was sentenced to a term of 245 months for the aggravated robbery and aggravated assault conviction[s]. At the time [LaPointe] was sentenced, an individual convicted of first-degree murder could be eligible for parole after serving either 15 or 20 years, depending on the date of the offense. K.S.A. 22-3717(2). In addition, at the time [LaPointe] was sentenced, a defendant convicted of a severity level 1 or level 2 rape could potentially serve less prison time than [LaPointe] for his aggravated robbery and aggravated assault convictions." We undertake de novo review of the State's question reserved on the district court's postconviction DNA testing order, presuming the statute is constitutional and resolving all doubts in favor of upholding it. The party challenging the statute bears a weighty burden. Cheeks I , 298 Kan. at 4, 310 P.3d 346. The Fourteenth Amendment to the United States Constitution provides: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." To comply, a state must treat similarly situated persons similarly. Cheeks I , 298 Kan. at 5, 310 P.3d 346. A court engages in a three-step process when reviewing an equal protection claim. First, it considers whether the legislation creates a classification resulting in different treatment of similarly situated individuals. If the statute treats " 'arguably indistinguishable' " individuals differently, the court determines next the appropriate level of scrutiny to assess the classification by examining its nature or the right at issue. 298 Kan. at 4-5, 310 P.3d 346. Then, the court applies that level of scrutiny to the statute. 298 Kan. at 5, 310 P.3d 346. In three prior postconviction DNA testing cases, this court addressed whether a person is similarly situated to one convicted of first-degree murder or rape. See, e.g., Cheeks I , 298 Kan. 1, 310 P.3d 346 ; State v. Salas , 289 Kan. 245, 210 P.3d 635 (2009) ; State v. Denney , 278 Kan. 643, 101 P.3d 1257 (2004). In Denney , the earliest case, the court held a person convicted of aggravated criminal sodomy for "penetrating his victims' anuses with his male sex organ" was "arguably indistinguishable from those people who are convicted of rape with the male sex organ." Denney , 278 Kan. at 653-54. This decision turned on an assessment that the crime's facts equated to rape, for which testing was available. 278 Kan. at 653, 101 P.3d 1257. In the next case, the Salas court used the same analytical approach to hold a defendant convicted of intentional second-degree murder was not similarly situated because first-degree murder's premeditation requirement distinguished it from second-degree murder. Salas , 289 Kan. at 250-51, 210 P.3d 635. But with Cheeks I the focus on factual elements changed. A court majority decided to base its analysis on the punishment meted out. In that case, Cheeks was convicted of malicious second-degree murder prior to the Kansas Sentencing Guidelines Act and sentenced to an indeterminate term of imprisonment of 15 years to life. Cheeks argued his maximum, pre-KSGA life sentence made him similarly situated to someone sentenced pre-KSGA to life imprisonment for first-degree murder. The majority agreed, reasoning that K.S.A. 21-2512's "purpose is to provide an opportunity for exoneration to innocent individuals convicted of severe crimes," and so "the relevant trait for [its] similarly situated analysis is the sentence imposed by the district court and not the elements of the crimes. " ( Emphasis added.) 298 Kan. at 6-7, 310 P.3d 346. In LaPointe's case, the district court relied on Cheeks I 's punishment rationale because LaPointe was sentenced to 245 months for his crimes. But this only underscores that rationale's infirmities, as noted in the Cheeks I dissents. See Cheeks I , 298 Kan. at 16-17, 310 P.3d 346 (Nuss, C.J., dissenting) (objecting to extending statute to situations in which the Legislature expressed a clear contrary intent); 298 Kan. at 19, 310 P.3d 346 (Rosen, J., dissenting) ("Although the majority appears to limit its decision to others subject to 'severe' penalties, it will require judicial contortions to exclude most, if not all, incarcerated felons from the scope of this decision."); 298 Kan. at 21, 310 P.3d 346 (Biles, J., dissenting) ("The majority's logic will soon require our district courts to reexamine a much larger range of convictions than plainly called for by the statute. And the finality of that larger group of convictions will remain an open question while the proceedings drag on from the district court to the appellate courts."). LaPointe's sentence was based on his criminal history-not just the crimes themselves. Aggravated robbery is a severity level 3 felony. K.S.A. 21-3427. Depending on criminal history, the presumptive, grid-box sentence for the offense, both now and when LaPointe committed it, could range from 55 to 247 months' imprisonment. K.S.A. 2017 Supp. 21-6804 ; K.S.A. 2000 Supp. 21-4704. Aggravated assault is a severity level 7 felony. K.S.A. 21-3410. The sentence for aggravated assault could range from presumptive probation with an underlying 11-month prison term through 34 months' imprisonment. K.S.A. 2017 Supp. 21-6804 ; K.S.A. 2000 Supp. 21-4704. LaPointe's criminal history score was an A, and he got the 245-month sentence because of consecutive sentencing. But the crimes covered by the DNA testing statute would always carry greater punishments than LaPointe's crimes-all other things being equal. Consider offenders with identical criminal history scores. The presumptive sentencing range for a severity level 3 offense never overlaps with the sentencing range for a severity level 2 or greater offense. See K.S.A. 2017 Supp. 21-6804 (e.g., sentences for offender with no record for severity level 3 offense range from 55-61 months, and for severity level 2 offense from 109-123 months; and for criminal history A, sentences for severity level 3 range from 221-247 months, and for severity level 2 from 442-493 months). In other words, LaPointe bootstraps his way into the Cheeks I rationale only because he has a more extensive criminal history based on his prior crimes. This may be a logical extension of Cheeks I , but it simply makes no sense to exclude from DNA testing persons with no criminal history who commit the same crimes, while granting testing to persons with significant criminal records. And if the answer to the person with no criminal history is simply providing postconviction DNA testing to anyone as a policy preference to protect the innocent, that reasoning moves the discussion from ensuring equal protection of the laws to raw legislating. The Cheeks I majority's analysis fails for that most basic of reasons. The test-everyone approach also would conflict with the recognition in our caselaw that the Legislature has authority to grant a limited right to access postconviction DNA testing procedures without violating equal protection principles. See Salas , 289 Kan. at 251, 210 P.3d 635 (holding individual seeking postconviction DNA testing failed to show he was similarly situated to those who have a statutory right to testing); see also Cheeks I , 298 Kan. at 18-19, 310 P.3d 346 (Rosen, J., dissenting) ("[I]t lies within the discretion of the legislature to decide how to allocate the judicial and scientific resources for postconviction relief. Keeping in mind that there is no inherent constitutional right to postconviction DNA testing, the decision of the legislature to set limits on which crimes qualify for that testing reflects a policy decision that lies outside the scope of this court's review."). We overrule Cheeks I to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom postconviction DNA testing is statutorily available. Based on this, we reject LaPointe's argument that his sentence alone renders him similarly situated to a person whom the Legislature has afforded the right, i.e., a person convicted of first-degree murder or rape. Finally, although we confine our analysis to the distinction raised by LaPointe, we note he also could not succeed in establishing he is similarly situated by arguing for an extension of Denney , which focused on the similarities of the crimes being compared, i.e., the crime of conviction and the crimes for which the Legislature granted the right to testing. Denney , 278 Kan. at 652-54, 101 P.3d 1257 ("[W]e must first examine the two crimes to determine if, under the facts of the instant case, they are 'arguably indistinguishable.' "). Using the elements approach, the Denney court, which was comparing aggravated criminal sodomy to rape, concluded the two crimes were substantially similar, explaining: "In short, rape can consist of something less than voluntary consent to penetration of the female sex organ by the male sex organ, while aggravated criminal sodomy can consist of something less than voluntary consent to penetration of another female bodily orifice by the male sex organ. Here, Denney clearly committed the latter: penetrating his victims' anuses with his male sex organ. Accordingly, we hold that Denney, convicted of aggravated criminal sodomy under such circumstances, is arguably indistinguishable from those people who are convicted of rape with the male sex organ." Denney , 278 Kan. at 653-54, 101 P.3d 1257. Applying that analysis to LaPointe, his crimes are distinguishable from first-degree murder and rape for the obvious reason they involved neither a killing nor sexual intercourse. So even applying the Denney approach, LaPointe is not similarly situated with a person convicted of first-degree murder or rape for the postconviction DNA testing statute. See Salas , 289 Kan. at 251, 210 P.3d 635 ("[W]e reject Salas' argument that premediated first-degree murder and intentional second-degree murder are substantially similar as to the necessary elements and are arguably indistinguishable on that basis."). Accordingly, LaPointe was not entitled to DNA testing under K.S.A. 2017 Supp. 21-2512(a) based on the punishment imposed for his convicted offenses, i.e., aggravated robbery and aggravated assault. We overrule Cheeks I as explained, which served as the district court's basis for its order. The judgment of the Court of Appeals affirming the district court is affirmed on the issue subject to our review. Judgment of the district court is affirmed. The State's cross-appeal is sustained in part and denied in part on the questions reserved. Beier, J., concurring in the result: I agree with the majority's treatment of the first two issues in this case. I write separately because I agree only with its result on the third issue and disagree with its rationale. On the first issue, although I might have decided the question of the relief due defendant Jack R. LaPointe as a result of the DNA tests differently, my personal druthers do not an abuse of discretion make. Our deferential standard of review begins and ends the matter. On the second issue, I believe the state detainer has the effect described by the majority. Although LaPointe's actual residence was a federal correctional facility at the time he filed his motion for DNA testing, he also qualified as "in state custody" under K.S.A. 2017 Supp. 21-2512(a). On the third issue, the majority need not overrule State v. Cheeks , 298 Kan. 1, 310 P.3d 346 (2013), as it purports to do at least in its introduction to its opinion, in order to hold that LaPointe was ineligible to file a motion for DNA testing. Under an Equal Protection Clause analysis, LaPointe was not similarly situated to defendants in the first-degree murder and rape cases for which legislators wrote the DNA testing statute, and its provisions should not be extended to him. His eligibility for a long sentence was largely attributable to his extensive criminal history, not to the severity level and long sentences assigned to his crimes in this case. Luckert and Johnson, JJ., join the foregoing concurrence.

Per Curiam: A jury convicted James Kraig Kahler of aggravated burglary and capital murder under K.S.A. 21-3439(a)(6) for fatally shooting his wife, his wife's grandmother, and his two daughters. Kahler appeals the capital murder conviction and the ensuing sentence of death; our review is automatic under K.S.A. 2016 Supp. 21-6619. Kahler raises 10 issues on appeal. Some of the raised issues present questions decided unfavorably to Kahler in prior cases, and Kahler presents no new argument or authority that would persuade us to change our holdings on those issues. Likewise, Kahler fails to convince us that his other challenges warrant a reversal of his capital murder conviction or a vacation of his death sentence. We summarize our specific holdings as follows: • The State did not commit prosecutorial error by objecting during Kahler's closing argument. • The district court judge engaged in one incident of judicial misconduct that does not require reversal. • The district court judge erred in refusing to give a requested expert witness instruction, but the error was harmless. • K.S.A. 22-3220, which adopted the mental disease or defect defense, did not unconstitutionally abrogate Kansas' former insanity defense. • Because felony murder is not a lesser included offense of capital murder, the district court judge did not err in failing to give a lesser included instruction on felony murder. • The district court judge did not prohibit defense counsel from questioning prospective jurors during voir dire about their views on the death penalty. • The cumulative effect of trial errors did not substantially prejudice Kahler so as to deny him a fair trial. • The Kansas death penalty is not a categorically disproportionate punishment for offenders who are severely mentally ill at the time they commit their crimes. • The two aggravating factors relied upon by the State to support the death penalty are not unconstitutionally vague or duplicative. • There was sufficient evidence presented by the State to establish that the killings in this case were committed in a heinous, atrocious, or cruel manner. Consequently, we affirm Kahler's capital murder conviction and his sentence of death. FACTUAL AND PROCEDURAL BACKGROUND A recitation of some family history preceding the murders is necessary to put Kahler's crimes in context. In 2008, the Kahler family-husband, Kahler; wife, Karen; teenage daughters, Emily and Lauren; and 9-year-old son, Sean-was living in Weatherford, Texas. Kahler was the director of the public utilities department, and Karen was a personal trainer. Both adults had successful careers. Acquaintances described the Kahlers as a perfect family. Kahler was extremely proud of his family; it was his top priority. That summer, Kahler took a new job as the director of water and light for the city of Columbia, Missouri. He moved to Columbia, while Karen and the children stayed in Texas, planning to follow him in the fall. Before Kahler left for Columbia, Karen told him she was interested in experimenting by engaging in a sexual relationship with a female trainer with whom she worked. Kahler assented to the sexual relationship. Kahler thought the affair would end when Karen and the children moved to Missouri; however, it did not. At a New Year's Eve party in Weatherford, Kahler was embarrassed by Karen and her lover's behavior, and the evening resulted in a shoving match between the Kahlers. The pair attempted marriage counseling, but by mid-January 2009, Karen filed for divorce. In mid-March, Karen made a battery complaint against Kahler, which resulted in an arrest warrant being served on Kahler at a city council meeting. Because Kahler held public office, his arrest was widely publicized. Shortly thereafter, Karen took the children and moved out of Kahler's residence. The disintegration of his marriage and family relationships affected Kahler's conduct, both personally and professionally. Kahler's supervisor and another colleague both noted Kahler's increasing preoccupation with his personal problems and decreasing attention to his job. By August 2009, the city had fired Kahler. Concerned about Kahler's well-being, his parents traveled to Columbia and moved Kahler back to their ranch near Meriden, Kansas. Later that year, at Thanksgiving, Sean joined Kahler at the family ranch in Meriden, while Karen and the girls went to Karen's sister's home in Derby. The family had a long-standing tradition of spending the weekend after Thanksgiving at the home of Karen's grandmother, Dorothy Wight, in Burlingame, Kansas. Arrangements had been made for Karen to pick up Sean in Topeka on Saturday, November 28, and take him to Wight's residence in Burlingame. That morning, Sean, who had been enjoying his time at the Meriden ranch, fishing and hunting with his father, called Karen to ask if he could stay at the ranch. Karen denied permission, and while Kahler was out running an errand, Kahler's mother took Sean to meet Karen in Topeka. Between 5:30 and 6 that evening, in Burlingame, a neighbor of Wight's called police about a man in a red Ford Explorer near her home whom she suspected of criminal activity. The Explorer was later determined to be Kahler's vehicle. Around 6 p.m., Sean and Karen were standing in the kitchen of Wight's home, while Emily, Lauren, and Wight were elsewhere in the house. Kahler entered Wight's house through the back door, into the kitchen, and started shooting. He shot Karen twice but did not attempt to harm Sean. After Kahler moved through the kitchen to shoot the other victims, Sean ran out the back door and to a neighbor's home where the police were called. About the same time, Wight's Life Alert system activated a call for emergency assistance and that in turn resulted in a 911 call to law enforcement. The system also created a recording of the events in the house. When officers arrived, Karen was lying on the kitchen floor, unconscious and barely breathing. Emily, who had also been shot twice, was dead on the living room floor. Wight was sitting in a chair in the living room, suffering from a single gunshot wound to the abdomen, but conscious. Lauren, who had been shot twice, was found upstairs, conscious but having trouble breathing. Kahler was no longer in the house, but both Wight and Lauren told the first responders that Kahler was the person who had shot them. Karen and Lauren died from their wounds later that evening. Wight survived a few days but ultimately succumbed to her wounds as well. Kahler managed to elude law enforcement that evening but was found walking down a country road the next morning. He surrendered without incident. The State charged Kahler with one count of capital murder, or, in the alternative, four counts of premeditated first-degree murder, as well as one count of aggravated burglary for the unauthorized entry into Wight's house. At trial, the defense did not dispute that it was Kahler who shot the victims. Rather, the defense attempted to establish that severe depression had rendered Kahler incapable of forming the intent and premeditation required to establish the crime of capital murder. The defense presented testimony from Dr. Stephen Peterson, a forensic psychiatrist, who testified that Kahler was suffering from severe major depression at the time of the crime and that "his capacity to manage his own behavior had been severely degraded so that he couldn't refrain from doing what he did." Defense counsel, however, did not specifically ask Dr. Peterson whether Kahler had the capacity to premeditate or to form the requisite intent to commit the crimes. The State countered with the expert testimony of Dr. William Logan, also a forensic psychiatrist, who opined that Kahler was capable of forming the requisite intent and premeditation. During closing arguments, defense counsel asserted that Kahler was incapable of forming the requisite premeditation or intent at the time of the killings. In return, the State argued that the defense expert had failed to specifically address that point, while the State's expert had directly stated that Kahler was capable of premeditating the murder and forming the requisite intent to kill. The jury convicted Kahler of capital murder. After hearing additional evidence in the penalty phase, the same jury recommended the death sentence. As noted, Kahler raised 10 issues on appeal, all of which are argued in the context of the capital murder conviction and the ensuing death sentence. Consequently, we will review only that conviction and sentence and will address each issue in the order presented. I. PROSECUTORIAL ERROR In his first issue, Kahler alleges that the prosecutor engaged in prosecutorial misconduct when she objected during defense counsel's closing argument. Defense counsel was discussing the recording produced during the commission of the crime by the Life Alert system. A male voice, presumably Kahler's, had been captured on the recording. Defense counsel was about to state the words spoken by that male voice, when the prosecutor interrupted, objecting that defense counsel's argument constituted improper unsworn testimony based on what defense counsel thought the voice had said. The district court sustained the objection. Standard of Review/Error Analysis At oral argument, both parties acknowledged that this court's decision in State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), although decided after the briefs in this case were filed, now controls the analysis of this issue. Sherman ended the practice followed by State v. Tosh , 278 Kan. 83, 91 P.3d 1204 (2004)overruled by Sherman , 305 Kan. 88, 378 P.3d 1060, of attempting to factor a prosecutor's ill will and gross misconduct into the prejudice step of the two step error/prejudice analysis when reviewing an allegation of prosecutorial misconduct on appeal. Sherman substituted an analysis that is focused on the defendant's due process right to receive a fair trial. Sherman continues to utilize a two-step error/prejudice framework and the first step-the error analysis-remains the same. See State v. Kleypas , 305 Kan. 224, 316, 382 P.3d 373 (2016). "Under the first step, we will continue to analyze whether the prosecutor's statements 'fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial.' " 305 Kan. at 316, 382 P.3d 373 (quoting Sherman , 305 Kan. 88, Syl. ¶ 7, 378 P.3d 1060 ). If error occurred, the State must prove 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.' " Kleypas , 305 Kan. at 316, 382 P.3d 373 (quoting Sherman , 305 Kan. 88, Syl. ¶ 8, 378 P.3d 1060 ). Analysis Kahler maintains that his right to a fair trial was violated when the prosecutor objected to defense counsel's attempt in closing argument to repeat what was said by the male voice on the Life Alert recording. The prosecutor's objection was based on the assertion that defense counsel was not allowed to state his opinion of the content of the tape and doing so amounted to improper testimony. At oral argument, Kahler argued that the objection was error because it was motivated by bad faith and attempted to liken it to a misstatement of law. In other words, Kahler attempts to move the bad faith analysis previously conducted under the prejudice step to the error step. But ill will has never been part of the error determination. And Sherman is clear that measuring prejudice by attempting to discern the prosecutor's motivation has been problematic in the past and is no longer appropriate to our analysis of prosecutorial error within a criminal appeal. Thus, the question before the court under Sherman , as it was under previous caselaw, is simply whether making an objection, even one based on an erroneous application of law, was outside the wide latitude afforded the prosecutor in making her case to the jury. We conclude that it is within the prosecutor's permissible latitude to object that the defense is about to go beyond the admitted evidence in its summation to the jury. As we discuss below, the district court's ruling on the prosecutor's objection may have been erroneous. But this fact has no bearing on the determination of whether the objection itself was prosecutorial error. II. JUDICIAL MISCONDUCT Kahler alleges that the district court judge engaged in misconduct throughout the trial, which cast his defense in a bad light, favored the State's case, and denied him his right to a fair trial. Kahler points to six specific instances to illustrate his argument. At trial, defense counsel failed to object to any of the claimed misconduct. But an appellate court will review allegations of judicial misconduct that were not preserved at trial when the defendant's right to a fair trial is implicated. State v. Kemble , 291 Kan. 109, 113, 238 P.3d 251 (2010) ; State v. Tyler , 286 Kan. 1087, 1090, 191 P.3d 306 (2008) ; State v. Brown , 280 Kan. 65, 70, 118 P.3d 1273 (2005). In addition, we are statutorily obligated to review this issue because of the death sentence imposed. K.S.A. 2016 Supp. 21-6619(b) (court shall review all asserted errors in a death sentence appeal). Standard of Review Our standard of review on claims of judicial misconduct is unlimited. We examine the particular facts and circumstances of the case to determine whether judicial conduct including comments, other than jury instructions, rise to the level of judicial misconduct. Kemble , 291 Kan. at 113, 238 P.3d 251. Analysis The Kansas Code of Judicial Conduct (KCJC) requires a judge to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 1, Rule 1.2 (2017 Kan. S. Ct. R. 431); see State v. Miller , 274 Kan. 113, 128, 49 P.3d 458 (2002) ("judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions"). An erroneous ruling by a judge, standing alone, will not establish judicial misconduct. Canon 2, Rule 2.2, Comment [3] (2017 Kan. S. Ct. R. 433) (good-faith errors of fact or law do not violate KCJC). Rather, the reviewing court will look for conduct that manifests bias, prejudice, or partiality, or otherwise significantly undermines the fairness or reliability of the proceedings. Cf. Canon 2, Rule 2.3, Comment [1] (2017 Kan. S. Ct. R. 434) ("judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute"). The complaining party has the burden to establish that judicial misconduct occurred and that the misconduct prejudiced the party's substantial rights. Kemble , 291 Kan. at 113, 238 P.3d 251. " 'If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.' " Brown , 280 Kan. at 70, 118 P.3d 1273 (quoting Miller , 274 Kan. at 118, 49 P.3d 458 ). With those ground rules to guide us, we turn to the individual instances alleged by Kahler to be judicial misconduct, followed by a consideration of their cumulative effect. A. Warning a voir dire panel against outbursts of opinion Kahler first complains of remarks the district judge made to a panel of the jury pool during voir dire. Four panels of venire members were questioned. The remarks Kahler finds objectionable were made to the third panel and were part of the district judge's preliminary remarks explaining voir dire. In addition to asking the panel members to speak clearly for the court reporter and to pay attention to all the questions asked whether directed specifically to them or not, the district judge added the following caution: "It's also important that you be careful. We want you to talk frankly, we want you to answer questions and speak from your heart, but we don't want any outbursts of opinions that might prejudice the rest of this panel so before you speak in any manner like that, think twice. And I warned you, anyway, regarding that, regarding your personal opinions." Kahler argues these remarks to the third panel dissuaded the panel members from expressing their opinions and inhibited the voir dire process. The State counters that, put in context, the district judge's remarks were nothing more than a reasonable admonition to prevent one of the potential jurors from tainting the rest of the panel and were well within the district judge's responsibility to control the courtroom. We agree with the State. A district judge is charged with preserving order in the courtroom and with the duty to see that justice is not obstructed by any person. State v. Rochelle , 297 Kan. 32, 36-37, 298 P.3d 293 (2013). The record establishes that throughout the voir dire of the first two panels, the district judge had expressed concern about questioning by the defense that might elicit panel members' views on the death penalty. We have approved of similar remarks in other cases where the district judge sought to prevent contamination of the jury pool. See, e.g., State v. Aikins , 261 Kan. 346, 365, 932 P.2d 408 (1997) (trial court warned potential jurors not to "blurt out" any information they might have about the case), disapproved on other grounds by State v. Warrior , 294 Kan. 484, 277 P.3d 1111 (2012) ; State v. Hayden , 281 Kan. 112, 130, 130 P.3d 24 (2006) (district judge cautioned jurors to tread carefully so that other potential jurors would not be prejudiced by intemperate comments and asked very specific questions so that venire members did not spontaneously volunteer unnecessary prejudicial information). We note, however, that the better practice would have included a clarification by the district judge that panel members would have an opportunity to raise any personal concerns outside the presence of the other venire members. Cf. Aikins , 261 Kan. at 365, 932 P.2d 408 (defense counsel encouraged potential jurors to approach judge individually if they had racial prejudices which they did not want to express in front of panel). But it is clear that the district judge's failure to include such a clarification to the third panel was an oversight, as his comments to the fourth panel included just such a statement. In sum, we find no misconduct in the district judge's comments to the third panel. B. Asking defense counsel to move along Kahler complains that the district judge committed misconduct when he asked defense counsel to speed up his voir dire questioning. During the defense voir dire of the third panel on the second morning of jury selection, the district judge told defense counsel, "we need to move through this a little faster if we can. I realize you have a right to all your questions but we're running behind now." Kahler argues this shows bias because the judge did not make a similar request of the State and the defense questioning had not exceeded the time afforded the prosecutor. The trial judge has broad discretion in controlling the courtroom proceedings. Rochelle , 297 Kan. at 37, 298 P.3d 293 ; Kemble , 291 Kan. at 114, 238 P.3d 251. "When it is necessary to comment on counsel's conduct, especially in the jury's presence, the trial court should do so in a dignified, restrained manner; avoid repartee; limit comments and rulings to those reasonably required for the orderly progress of the trial; and refrain from unnecessarily disparaging persons or issues." State v. Hudgins , 301 Kan. 629, 638, 346 P.3d 1062 (2015). Kahler argues that his counsel took no more time for voir dire than the prosecution had taken. For support, Kahler compares the number of transcript pages that contain voir dire questioning by the prosecutor to the number taken by defense counsel's questioning. This method of quantifying time is inherently unreliable. Cf. Hudgins , 301 Kan. at 637, 346 P.3d 1062 (trial judge requested defense counsel to "pick up the pace" after defense counsel was silent for about 3 minutes). More to the point, however, there is nothing in the district judge's comments that reflects negatively on defense counsel's conduct. The statement concerned the orderly progress of the trial, and nothing suggests that the statement was delivered in anything less than a dignified and restrained manner. The statement was a request, not an order, and clearly recognized that defense counsel was entitled to ask his questions. We once again note the better practice, which would have the district judge make such administrative requests out of the presence of the venire panel. Nonetheless, merely requesting trial counsel to move a little faster, if possible, does not amount to judicial misconduct. Cf. Hudgins , 301 Kan. at 638-39, 346 P.3d 1062 (remark, at worst, was a mild warning within the proper exercise of a district court's authority to control voir dire and avoid undue delay). C. Comments on instructing the jury following opening statements Both parties gave relatively straightforward opening statements. The prosecutor gave a brief overview of the shootings and then summarized testimony he expected to elicit from each of the State's witnesses about the crime and the crime scene. The defense focused on painting a picture of the events that led up to the crime: Kahler's professional success, the many happy years of the Kahlers' marriage and family life, the breakdown of the marriage, and Kahler's obsession with saving it. There were no objections during the State's opening; however, the State objected three times during Kahler's opening. After defense counsel had attributed statements to Karen, the prosecutor asked to approach the bench. At the bench, the prosecutor lodged an objection based on hearsay. The district judge sustained the objection and instructed Kahler's counsel to set out the expected evidence and not to testify. The objection and discussion were had out of hearing of the jury. Almost immediately after the bench conference, the prosecutor objected a second time, saying only "same objection" when counsel for Kahler again attributed statements to Karen. This time the district judge responded within hearing of the jury: "All right. [Defense counsel], we talked. Unless you intend to call witnesses to support what you're saying, they're not allowed." Later, the prosecutor requested to approach the bench again to lodge an objection to defense counsel using the word "crazy" to describe Kahler's behavior. The discussion and the judge's admonition not to use the word were outside the jury's hearing. Immediately following Kahler's opening statement, the district judge said: "All right. Ladies and gentlemen of the jury, I'm going to read an instruction to you at this time. I normally don't do this, but I am going to ask that you listen carefully. This is one of the instructions that will be given to you later but I wish to give it to you now also. That statement is: Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded." (Emphasis added.) Kahler argues the district judge's comments prior to the actual instruction showed bias-particularly the comment that the judge did not normally give the instruction but wished to do so this time. Kahler argues that it amounted to a negative comment on defense counsel's credibility. The State focuses only on the instruction and ignores the judge's comments preceding the instruction. It argues the instruction itself was a fair and accurate statement of the law. It also points to K.S.A. 2016 Supp. 22-3414(3), which provides "the judge, in the judge's discretion, after the opening statements, may instruct the jury on such matters as in the judge's opinion will assist the jury in considering the evidence as it is presented." But the State fails to acknowledge that the district judge gave the jury a set of instructions prior to opening statements, which included an instruction on considering only testimony and exhibits admitted into evidence and an instruction that it is up to the jury to determine the weight and credit to be given the testimony of each witness. Given the context of the prosecution's objections during the defense's opening statement, the judge's comment undoubtedly brought special attention to the instruction. Moreover, given the timing of the district court's comment, the jury's attention would undoubtedly have been directed to the defense's opening argument. The jury had just heard the district judge admonish defense counsel by saying, "Unless you intend to call witnesses to support what you're saying, they're not allowed." When the district judge commented immediately on the heels of the opening statements, he underscored his suspicion that the defense would not be able to introduce evidence that would allow the jury to attribute certain statements to Karen. This belief should not have been revealed to the jury. This court has previously warned district judges to "limit[ ] comments and rulings to what is reasonably required for the orderly progress of the trial, and refrain[ ] from unnecessary disparagement of persons or issues." State v. Miller , 274 Kan. 113, 128, 49 P.3d 458 (2002). Here, the comment added nothing to the orderly progress of the trial-the instruction could have been given without editorial comment or explanation. The district judge erred in making the comment. Error alone does not require reversal, however. " 'The question is whether [the defendant]'s substantial rights to a fair trial were prejudiced by the court's statements.' " State v. Cheever , 306 Kan. 760, 793-94, 402 P.3d 1126 (2017). Here, the district judge's isolated comment did not show the type of judicial bias that denies a fair trial. See Miller , 274 Kan. at 129, 49 P.3d 458 (finding district judge's numerous statements accumulated to deny a fair trial). On occasion, district judges reveal, usually unintentionally, a bias on an issue. Consequently, district judges routinely instruct the jury, as the judge did in this case, that "I have not meant to indicate any opinion as to what your verdict should be by any ruling that I have made or anything that I have said or done." See PIK Crim. 4th 50.060. Nothing suggests the judge's isolated comment here influenced the jury's consideration or misdirected the jury's focus. Indeed, the instruction given after the judge's ill-advised comment pointed the jury exactly where it needed to go: The instruction focused the jury on the evidence. That is the point of the instruction, which is often given repeatedly through a trial. Consequently, we hold the judge's comment to be harmless error under either the constitutional or nonconstitutional harmless error standard. See State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 (2011). D. Personally questioning a witness The prosecution's theory at trial was that Kahler shot the victims with a .223 caliber rifle or "long gun." Shell casings found at the scene and bullets found in a clip near where Kahler was arrested were .223 caliber. The gun used in the murders, however, was never found. During testimony, a Shawnee County deputy testified that she was asked to look for a "long gun" in Kahler's impounded vehicle as part of the investigation. She testified that she was unable to find a gun but did find an empty box for a Remington .223. She testified she left the box in the car. The district judge apparently did not think this testimony was clear, and at the end of the prosecutor's questioning, questioned the witness himself: "BY THE COURT: Q. And I will ask this just as a matter of clarification before the break; you mentioned an empty box Remington .223 caliber, is that correct, caliber? "A. It was told to me that it was a Remington .223. "Q. All right. Now when you said that, are you talking about a gun itself, or the bullet, or caliber of gun? "A. It was the box for a gun. "Q. Okay. You don't know whether it was a Remington brand gun or some other brand? "A. I was told that it was a Remington .223. "THE COURT: Counsel, you want to try to clarify that with her? "[Prosecutor]: Sure. .... "[Prosecutor]: Q. You didn't find a weapon in the vehicle, did you? "A. No. "Q. You found a box that appeared to be a gun box? "A. Yes. "Q. And it listed a caliber of the weapon at the end of it? "A. Yes. "Q. And what was the caliber of the gun? "A. It would have been .223. "Q. And REM, is that reference to the caliber or the brand of gun? "A. The brand of gun." Later testimony clarified that the box was for a long gun and the serial number of the gun that would have come in that box was registered to Kahler. Kahler maintains the district judge aided the State in proving its theory that a long gun was used in the crime and the assistance had the effect of bolstering the State's case and credibility. This court has allowed questioning of witnesses from the bench "based upon the premise that one of the functions of a trial judge is to accomplish the full development of the truth." Kemble , 291 Kan. at 114-15, 238 P.3d 251 (citing State v. Hays, 256 Kan. 48, 51, 883 P.2d 1093 [1994] ). But we have cautioned that the practice must not result in the slightest suggestion of partiality or bias. Kemble , 291 Kan. at 114-15, 238 P.3d 251. For decades, we have expressed our view that the better practice is for the district judge to discuss the matter with counsel outside the presence of the jury and ask counsel to pose the questions necessary to clarify the matter. See State v. Boyd , 222 Kan. 155, 159, 563 P.2d 446 (1977) ; see also Kemble , 291 Kan. at 115, 238 P.3d 251 ; Hays , 256 Kan. at 52, 883 P.2d 1093 ; State v. Hamilton , 240 Kan. 539, 547, 731 P.2d 863 (1987) (quoting Boyd and noting such a procedure will accomplish the full development of the truth without direct participation by the trial judge in the examination of the witness and hence any question as to the judge's bias may be avoided). Although the better practice would have been for the district judge to follow the procedure set out in Boyd , we see no misconduct here because there was no suggestion of partiality. Although Kahler contends that the judge's questioning aided and bolstered the State's case, it is just as probable that by stepping in to clarify and suggesting to the prosecutor that he follow up with additional questions, the district judge's comments reflected negatively on the State's presentation. Kahler does not argue that the questions asked were improper, and they drew no objection from defense counsel at the time. We also note that the importance to the State's case regarding the type of gun used was nearly nonexistent given Kahler's defense was not based on denying the shootings. Ultimately, the judge did not assume the role of an advocate; he merely attempted to clarify a point he apparently felt was unclear-a point that was of virtually no importance to the trial. Consequently, we find no misconduct. E. Sustaining objection to closing comments about voice on tape We rejected Kahler's argument above that the prosecutor committed prosecutorial error by objecting to defense counsel's attempt to quote the male voice on the Life Alert recording. Here we address his argument that the district judge committed misconduct by sustaining the objection. The transcript reflects the following: "[By Defense Counsel]: ... you're going to hear a male voice during this absolute chaos say ... "[Prosecutor]: Your Honor, I'm going to object. The tape's in evidence. And counsel's not allowed to testify and tell the jury what he thinks is on that tape. "[Defense Counsel]: Your Honor, I can say what I think's on that tape. They've got the tape and if it doesn't say it-counsel just said what all these witnesses said. I'm certainly allowed to say what the tape says. "THE COURT: I think it's improper. You cannot say what you think is on the tape. "[Defense Counsel]: Well, can I say what is on the tape, Your Honor? "THE COURT: They can listen for themselves. "[Defense Counsel]: All right." Kahler argues the district judge committed misconduct in two ways: first, by erroneously sustaining the objection and, second, by labeling defense counsel's conduct "improper." The State maintains that counsel for Kahler was about to misrepresent the evidence. It argues there was no testimony as to what the male voice on the tape specifically said. And noting that the voice itself is barely discernible, the State argues anything counsel would have said in regard to content would not have been based on the evidence. Accordingly, the State contends the district court was correct to sustain the objection. We disagree. The district court sustained the objection in error, if for no other reason than because it was premature. The record does not contain a proffer of the words that defense counsel thought were on the tape, so we cannot know for sure whether they comported with the admitted evidence. But we do know there was more evidence than the State acknowledges. In addition to the original recording itself, the record includes Dr. Peterson's report and the transcript contained on the enhanced CD, which indicate that the voice said, "I am going to kill her." So, if defense counsel was going to state that the male voice on the tape said "I am going to kill her," it would have been entirely proper for defense counsel to discuss that statement and any reasonable inferences to be drawn from it. See State v. Irving , 217 Kan. 735, 739-40, 538 P.2d 670 (1975) ("[a]rgument of counsel is to be confined to the questions at issue and the evidence relating thereto and such inferences, deductions and analogies as can reasonably be drawn therefrom."); cf. State v. Bollinger , 302 Kan. 309, 320-22, 352 P.3d 1003 (2015) (prosecutor's statement, during closing argument, asking jury to draw inferences from indistinct sound in background of 911 call that subjectively sounded like someone calling out, "help me," was not an impermissible comment on facts not in evidence, so as to amount to prosecutorial misconduct), cert. denied --- U.S. ----, 136 S.Ct. 858, 193 L.Ed.2d 721 (2016) ; State v. Schumacher , 298 Kan. 1059, 1070-72, 322 P.3d 1016 (2014) (prosecutor did not improperly comment on a fact not in evidence when, during closing argument in murder prosecution, he suggested that clicking sound heard when gun was cocked in courtroom was the same clicking sound heard on video just prior to defendant's shooting of victim). But an erroneous ruling by the district judge, standing alone, is not grounds for finding judicial misconduct. Canon 2, Rule 2.2, Comment [3] (2017 Kan. S. Ct. R. 433) (good-faith errors of fact or law do not violate KCJC). Something more is required. Here, Kahler argues that the words the district judge used in ruling on the objection denigrated the defense. But the words used to sustain the objection did not denigrate counsel personally. The phrase "it's improper" appears to be a reference to the form of the argument counsel was attempting to use. These are the words our opinions frequently use to characterize argument or conduct of counsel as impermissible. See, e.g., Kleypas , 305 Kan. at 316-17, 382 P.3d 373 (discussion with district court indicated prosecutor was making an effort to find the line between "proper and improper argument" on mercy); Sherman , 305 Kan. at 101, 378 P.3d 1060 (noting that this court places the burden on trial courts to set aside verdicts that are based on "improper arguments"); State v. Marshall , 294 Kan. 850, 861, 281 P.3d 1112 (2012) ("[A] prosecutor's improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel." [Emphasis added.] ); State v. Pabst , 268 Kan. 501, 506, 996 P.2d 321 (2000) ("Our rules of conduct clearly and unequivocally say that it is improper for a lawyer to comment on a witness' credibility."); Irving , 217 Kan. at 740, 538 P.2d 670 ("It is improper for counsel in his argument to the jury to comment on evidence which was excluded by the court when offered."). Granted, when we issue an opinion we are not speaking within earshot of the jury. But we believe juries can be expected to understand that objections will be made and ruled upon in terms of what is proper and what is or is not allowed without assuming nefarious purposes by counsel, at least not those beyond normal trial advocacy. We cannot fault the district judge for framing his ruling-although erroneous-in commonly used terms. Accordingly, we find no judicial misconduct. We do, however, find that the district court's sustaining of the State's objection was an unassigned trial error. See K.S.A. 2016 Supp. 21-6619(b) (in death penalty appeal, court is authorized to notice unassigned errors). Given the record and the arguments before us, we do not find this error requires reversal standing alone. F. Discouraging the jury from asking questions during deliberations For his final allegation of judicial misconduct, Kahler alleges that, before sending the jurors to deliberate at the end of the guilt phase, the district judge discouraged them from asking any questions they might have during deliberations. The particular remarks Kahler complains of concerned what the jurors should do in the event they had questions. The judge stated: "The bailiff will be outside the door here and if you have any questions you can knock on the door and communicate with her. "Now I have given you the instructions[,] that's the law of the case. Counsel has presented the evidence, the facts of the case. You should apply the law to the facts. You have everything you need to decide this case. You should review the instructions for the answers to any questions you might have. You should not have to ask any questions. However, if you have a question there is a process that we must go through and you should be aware of that process. You can't just ask the bailiff to tell me your question so that I can run back there and give you an answer. "The process that we must follow requires that any question that you might ask be in writing. And the presiding juror must prepare that question in writing, hand it to the bailiff, and I must then assemble counsel and the defendant and we must discuss the question to decide whether we are able to give you an answer and, if so, what that answer should be. My experience as a Judge has been that although sometimes we are able to give jurors answers, for the most part the answer you're going to receive to most questions will be refer to your instructions for advice. " (Emphasis added.) Kahler focuses on the italicized comments and argues they demonstrated impatience with the steps necessary to meet the due process and Eighth Amendment requirements of a capital case. He points to K.S.A. 22-3420(3) to argue the jury had a right to ask questions. At the time of trial, K.S.A. 22-3420(3) provided: "After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney." The remarks in this case were both legally and factually accurate; the jury was informed that questions could be asked; and the process that would be used to answer them was explained. The comment that the jury should not have to ask any questions, in context, appears to be a statement that the jury had the necessary information to reach a decision. The statement was an encouragement to the jurors to review the instructions before asking a question rather than a discouragement from asking any questions at all. The statement informed the jurors that most questions would likely be answered by referring the jury back to the instructions. Nothing in the comments demonstrated bias, prejudice, or partiality toward either party. We find no misconduct. G. No cumulative prejudicial effect As noted above, we have typically required the party asserting judicial misconduct to show that any misconduct found to exist actually prejudiced that party's substantial rights. Kahler urges us to apply the constitutional harmless error test set out in Ward , 292 Kan. 541, 256 P.3d 801 (constitutional error may be declared harmless where party benefiting from error proves beyond a reasonable doubt that error complained of did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict). But having found only one instance of misconduct that was not reversible standing alone, the cumulative error rule is inapplicable here. In the process of reviewing the judicial misconduct claims, we noted some instances in which the district judge could have applied a better practice to the situation at hand. Nonetheless, we discern no pattern of conduct that manifested bias, prejudice, or partiality against the defendant, and Kahler's claim of judicial misconduct fails. III. EXPERT WITNESS INSTRUCTION Prior to trial, Kahler requested that the district court give the jury an instruction on how it may consider the opinion testimony of experts. The State objected and the district court declined to give the proffered instruction because expert opinion instructions are not recommended by the criminal Pattern Instructions for Kansas (PIK). See PIK Crim. 3d 52.14 (1995 Supp.), Comment ("The Committee believes that an expert should be considered as any other witness as set forth in PIK [Crim.] 3d 52.09, Credibility of Witnesses."). Kahler claims that the district court's ruling was erroneous. Standard of Review "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 565 U.S. 1221, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012)." State v. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). Analysis The requested instruction, based on the Tenth Circuit Court of Appeals Pattern Criminal Jury Instruction 1.17, reads as follows: "During the trial you heard the testimony of ________ who expressed opinions concerning ___________. In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters. "You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial." Although the State objected to the instruction at trial, it concedes on appeal that the instruction accurately states the law. The PIK Committee, however, continues to recommend that a separate instruction on expert opinion testimony not be given. See PIK Crim. 4th 51.170 (2013 Supp.). The district judge did give the standard instruction on witness testimony, which states: "It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified." PIK Crim. 3d 52.09 (1996 Supp.). Neither party objected to this instruction. The State contends that this instruction adequately covers the substance of the requested instruction. This court has frequently emphasized the wisdom of following the PIK Committee recommendations. See State v. Cox , 297 Kan. 648, 662, 304 P.3d 327 (2013) ; State v. Dixon , 289 Kan. 46, 67, 209 P.3d 675 (2009). On the other hand, we have also said that the failure to use the exact language of a PIK instruction is not fatal. State v. Bernhardt , 304 Kan. 460, 470, 372 P.3d 1161 (2016). Moreover, a district court should not hesitate to modify or add to pattern instructions where appropriate in a particular case. 304 Kan. 460, Syl. ¶ 1, 372 P.3d 1161. In State v. Willis , 240 Kan. 580, 587, 731 P.2d 287 (1987), this court considered the giving of an expanded instruction on witness credibility. The Willis court concluded there was no clear error in the giving of the expanded instruction but noted "it would certainly have been the better practice to give an instruction along the lines of PIK Crim. 2d 52.09." 240 Kan. at 587, 731 P.2d 287. The expert witness instruction requested here, although contained in a separate instruction, was, in effect, an expanded version of the witness credibility instruction. Then, in State v. Hunt , 257 Kan. 388, 395, 894 P.2d 178 (1995), this court stated that it "has continually disapproved the giving of an expanded version of the credibility instruction," although it had also continually held that to do so was not clearly erroneous. Later, in State v. Adams , 292 Kan. 151, 159, 254 P.3d 515 (2011), the district judge provided a witness credibility instruction based on PIK Crim. 3d 52.09 that also included wording from a civil pattern jury instruction regarding expert witnesses. See PIK Civ. 4th 102.50. The added language, like the language in the federal instruction Kahler requested, instructed the jury that testimony of experts was to be considered like any other testimony and should receive the same weight and credit as the jury deemed it entitled to when viewed in connection with all the other facts and circumstances. The defendant alleged the instruction was erroneous because the district court did not follow the PIK Committee's recommendation not to give an expert witness instruction in criminal trials. The Adams court observed: "The instruction accurately stated the law as it stands in Kansas. The jury should weigh expert witness testimony in the same manner it weighs all testimony.... "In addition, Adams' jury would not reasonably have been misled by the instruction. Had the first paragraph of the hybrid stood alone, the jury still would have been instructed as to how to assess credibility of all witnesses, regardless of expertise." 292 Kan. at 166, 254 P.3d 515. But this case highlights that there is a fundamental difference between an ordinary witness' testimony as to the facts of a case and an expert's opinion testimony as to what those facts mean. Indeed, opinion evidence from experts is admissible precisely because the jurors' common knowledge and experience would not permit them to properly understand the circumstances of the case. "Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary." Sterba v. Jay , 249 Kan. 270, Syl. ¶ 6, 816 P.2d 379 (1991). Yet, the general instruction in PIK Crim. 3d 52.09 recites, in part: "You have the right to use common knowledge and experience in regard to the matter about which a witness has testified." If a witness has been permitted to give an expert opinion because the subject matter is beyond the common knowledge and experience of the jurors, how does a juror use his or her nonexistent common knowledge and experience to assess the expert's testimony? Moreover, an expert witness is permitted to share his or her opinion with the jury only after the trial judge has reached the legal conclusion that the witness is, indeed, an expert on the topic about which he or she is going to opine. The regular witness credibility instruction does not clarify for the jurors that they may reject the expert opinion even though it has been stamped with the judge's imprimatur. In short, there is nothing generic about opinion testimony from expert witnesses, and the jury's assessment of the credibility of that testimony should not be left to the insufficient direction contained in the generic PIK instruction. Consequently, the district court erred when it refused to give the defense's requested instruction on expert witness credibility because the instruction was legally appropriate and factually supported. But that does not end the discussion; the error is subject to a harmlessness analysis. In that regard, notwithstanding that the legal substance of the requested instruction was not adequately covered by the general instructions that were given, there is no reasonable possibility that the error affected the jury's guilty verdict. In other words, the error was harmless. IV. CONSTITUTIONALITY OF K.S.A. 22-3220 For his fourth issue, Kahler contests the constitutionality of K.S.A. 22-3220. The statute provides: "It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense." At trial, Kahler based his defense on mental disease or defect. He filed a motion alleging that the statute unconstitutionally deprived him of the ability to assert a defense based on insanity. The district court denied the motion, and the jury was instructed in accord with the statute. On appeal, Kahler continues to assert his constitutional challenge. Standard of Review Whether a statute is constitutional raises a question of law over which this court exercises unlimited review. State v. Reed , 306 Kan. 899, 903-04, 399 P.3d 865 (2017). Analysis Before the enactment of K.S.A. 22-3220, the M'Naghten rule was the proper test for the defense of insanity in Kansas. See State v. Lamb , 209 Kan. 453, 472, 497 P.2d 275 (1972) ; State v. Nixon , 32 Kan. 205, Syl. ¶ 1, 4 P. 159 (1884) (adopting rule). The M'Naghten rule provided that "the defendant is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act. Under the 'right and wrong' test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law." State v. Baker , 249 Kan. 431, 450, 819 P.2d 1173 (1991). But the Kansas legislature abandoned the M'Naghten rule through enactment of K.S.A. 22-3220, which became effective January 1, 1996. The statute adopted what is known as the "mens rea approach." The mens rea approach allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense. See State v. Jorrick , 269 Kan. 72, 81-83, 4 P.3d 610 (2000). Kahler argues that by doing so the statute violates the Due Process Clause because it offends a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. See Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed. 2d 281 (1977). The same arguments made by Kahler were considered and rejected by this court in State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003). The Bethel court conducted a thorough review of the pertinent decisions of the United States Supreme Court and other states that had considered the issue. Ultimately, the Bethel court concluded that " K.S.A. 22-3220 does not violate the defendant's right to due process under the United States or Kansas Constitutions." 275 Kan. at 473, 66 P.3d 840 ; see State v. Searcy , 118 Idaho 632, 798 P.2d 914 (1990) (finding mens rea approach of state statute did not violate due process); State v. Korell , 213 Mont. 316, 690 P.2d 992 (1984) (same); State v. Herrera , 895 P.2d 359 (Utah 1995) (same). Kahler relies on Finger v. State , 117 Nev. 548, 569, 27 P.3d 66 (2001), in which the Nevada Supreme Court held legal insanity is a fundamental principle of the criminal law of this country. But the Bethel court considered and rejected the reasoning of the Nevada Supreme Court in Finger , and we adhere to our Bethel decision. Although Kahler has added no new arguments to those this court considered and rejected in Bethel , he directs our attention to a written dissent from a denial of certiorari by three justices in Delling v. Idaho , 568 U.S. 1038, 133 S.Ct. 504, 184 L.Ed. 2d 480 (2012) (Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.). The dissent was critical of the mens rea approach because it allows conviction of an individual who had no capacity to know that what he or she was doing was wrong. The dissent would have granted the petition for certiorari to consider whether Idaho's modification of the insanity defense is consistent with the Fourteenth Amendment's Due Process Clause. 568 U.S. at 1041, 133 S.Ct. 504 (Breyer, J., dissenting). As part of its discussion, the dissent cited Bethel and noted that Kansas is one of only four states that have adopted the mens rea approach. While we are cognizant of the three justices' position, the Delling dissent has no effect on our Bethel decision. The parties have thoroughly set out the arguments and cases in their briefs. Nonetheless, Kahler has offered no new reason to reconsider the arguments previously and thoughtfully rejected by this court. Thus a review of those arguments or of Bethel is not warranted. V. LESSER INCLUDED OFFENSE INSTRUCTION ON FELONY MURDER Kahler did not request an instruction that would have permitted the jury to convict him of felony murder, as a lesser included offense of capital murder. He claims on appeal that it was clearly erroneous for the district court to fail to give that lesser included offense instruction on its own. Standard of Review To determine whether the district court's failure to sua sponte give an unrequested jury instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. "To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record." State v. Williams , 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). Analysis Kahler's brief was filed after this court's decision in State v. Cheever , 295 Kan. 229, 259, 284 P.3d 1007 (2012), vacated and remanded on other grounds 571 U.S. 87, 134 S.Ct. 596, 187 L.Ed. 2d 519 (2013), held that felony murder was a lesser included offense of capital murder and, consequently, that an instruction to that effect should be given in a capital case where warranted by the evidence. Although no felony murder instruction was requested or given in Kahler's case, he argued in his opening brief, pursuant to Cheever , that one was warranted and that it was clear error not to give it. By the time the State filed its responsive brief, the legislature had amended K.S.A. 2012 Supp. 21-5402, in response to Cheever , to specifically provide that felony murder was not a lesser included offense of capital murder. See L. 2013, ch. 96, § 2; K.S.A. 2016 Supp. 21-5402(d). While the State raised a number of arguments, it primarily argued that K.S.A. 2016 Supp. 21-5402(d) applied retroactively by its specific terms to overcome Kahler's argument. Anticipating Kahler's reply, the State also argued that K.S.A. 2016 Supp. 21-5402(d) was neither unconstitutional under the Ex Post Facto Clause of the United States Constitution nor precluded by due process under Beck v. Alabama , 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed. 2d 392 (1980). As anticipated, Kahler's reply brief focused on arguments against the constitutionality of K.S.A. 2016 Supp. 21-5402(d) based on Beck and the Ex Post Facto Clause. Two months after the reply brief was filed, this court considered and decided the same arguments in State v. Gleason , 299 Kan. 1127, 1160-61, 329 P.3d 1102 (2014), rev'd and remanded on other grounds sub nom. Kansas v. Carr , 577 U.S. ----, 136 S.Ct. 633, 193 L.Ed. 2d 535 (2016). Gleason concluded: " K.S.A. 2013 Supp. 21-5402(d), by its express language, applies retroactively, foreclosing Gleason's claim that the district court erred in refusing Gleason's request for a felony-murder instruction. Further, the 2013 amendments do not violate Gleason's constitutional right to due process, as interpreted in Beck, nor does retroactive application violate the prohibition against ex post facto laws." 299 Kan. at 1160-61, 329 P.3d 1102. In State v. Carr , 300 Kan. 1, Syl. ¶ 3, 331 P.3d 544 (2014), rev'd and remanded 577 U.S. ----, 136 S.Ct. 633, 193 L.Ed. 2d 535 (2016), this court held the ruling in Gleason eliminated any need to address the argument that a lesser included offense instruction for felony murder was supported by the evidence admitted at trial. And, subsequently in Cheever , 306 Kan. at 770, 402 P.3d 1126, again considering the same arguments, this court held "[t]he reasoning of the Gleason and Carr cases applies with equal force and effect to this case and requires us to conclude that Cheever was not entitled to a felony-murder lesser included offense instruction. The trial judge did not err when he did not give one." Gleason controls this case and dictates the conclusion that the district judge did not err by failing to give a felony-murder lesser included offense instruction because such an instruction was not legally appropriate. VI. LIMITATIONS ON DEFENSE VOIR DIRE Kahler alleges the district court denied him a fair trial by prohibiting his counsel from questioning prospective jurors during voir dire about their views on the death penalty. Standard of Review/Analytical Framework The purpose of voir dire is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. The nature and scope of voir dire examination is entrusted to the sound discretion of the trial court; however, appellate tribunals have the duty to make an independent evaluation of the circumstances of voir dire in determining whether the district court has taken sufficient measures to ensure the accused is tried by an impartial jury free from outside influences. State v. Reyna , 290 Kan. 666, 686, 234 P.3d 761 (2010) ; Hayden , 281 Kan. at 128-29, 130 P.3d 24 ; Aikins , 261 Kan. at 365-66, 932 P.2d 408. An adequate voir dire is essential to protect a defendant's right to an impartial jury guaranteed by the Fifth and Sixth Amendments to the United States Constitution. State v. Robinson , 303 Kan. 11, 135, 363 P.3d 875 (2015), cert. denied --- U.S. ----, 137 S.Ct. 164, 196 L.Ed.2d 138 (2016). We will find an abuse of discretion if the trial court has unconstitutionally restricted a capital defendant's questioning during voir dire. 303 Kan. at 135-36, 363 P.3d 875. Mindful that this is a capital case in which the jury has imposed the death penalty, we have carefully examined the record of the district court's conduct of voir dire. Simply put, we find no support for Kahler's argument in the record. The district judge consistently took the position that Kahler's counsel could not question prospective jurors about their views on the death penalty in the presence of other venire members. Clearly, the district judge was concerned that an individual panel member's comments could prejudice other members and wished to avoid a situation in which it might become necessary to disqualify an entire panel. But discussions between counsel and the district judge prior to commencement of trial, along with the written order covering the conduct of voir dire, made clear that counsel were entitled to question venire members individually when their in-court answers indicated a need to delve into matters outside the hearing of the rest of the panel. At oral argument, counsel for Kahler acknowledged that Kahler's trial counsel was not prevented from making an individual inquiry of each venire person's death penalty views. In fact, trial counsel never made a request to question any of the venire members individually. Consequently, while an absolute prohibition against inquiry in front of the rest of the venire panel might be an unnecessary precaution against the risk of tainting the entire panel, it was not error here. VII. CUMULATIVE ERROR DURING THE GUILT PHASE Kahler claims that his guilt phase convictions must be reversed because cumulative trial errors denied him a fair trial. Standard of Review/Analytical Framework " 'Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.' " Kleypas , 305 Kan. at 345, 382 P.3d 373. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. Dixon , 289 Kan. at 71, 209 P.3d 675. "For errors to have a cumulative effect that transcends the effect of the individual errors, there must have been more than one individual error. [Citation omitted]." State v. Cruz , 297 Kan. 1048, 1074, 307 P.3d 199 (2013). We have agreed with Kahler that the trial judge should not have told the jury, "I normally don't do this," before giving PIK Crim. 4th 50.070 after opening statements and that the trial judge erred in refusing to give the expert witness instruction requested by the defense. In the process of our review, we also noted an erroneous ruling by the district court on an objection the State lodged during defense counsel's closing argument. In short, there was more than one trial error. But the touchstone is whether the defendant received a fair trial, not whether he received a perfect trial. See Cruz , 297 Kan. at 1075, 307 P.3d 199 (defendant entitled to fair trial, not a perfect one). Moreover, we have declined to find reversible error under the cumulative error rule where " 'the evidence is overwhelming against the defendant.' " 297 Kan. at 1074, 307 P.3d 199. On the record before us, we are firmly convinced beyond a reasonable doubt that the guilty verdict would not have changed if the errors had not been committed. We also note that the errors identified during the guilt-phase proceeding are not the type that we would expect to impact the sentencing determination when the same jury decides both guilt and sentence. See Cheever , 306 Kan. at 800, 402 P.3d 1126. Accordingly, we do not revisit this error in our penalty-phase discussion. VIII. EIGHTH AMENDMENT CATEGORICAL CHALLENGE TO DEATH PENALTY The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Kahler claims that a sentence of death violates that constitutional right when it is imposed upon a severely mentally ill person. Although Kahler relies on a motion he filed in the district court as having raised this issue below, that motion did not set out a categorical proportionality argument based on mental illness. Nevertheless, this court has held that a categorical proportionality challenge under the Eighth Amendment may be raised for the first time on appeal. State v. Ruggles , 297 Kan. 675, 679, 304 P.3d 338 (2013) (analysis does not require review of district court factual findings; claim presents question of law determinative of case). Standard of Review/Types of Categorical Challenges "A categorical proportionality challenge under the Eighth Amendment implicates questions of law, and this court has unlimited review." State v. Dull , 302 Kan. 32, 40, 351 P.3d 641 (2015). "The United States Supreme Court identifies three subcategories of categorical proportionality challenges. The first considers the nature of the offense, such as a prohibition on capital punishment for nonhomicide crimes against individuals. Graham , 560 U.S. at 60-61 [130 S.Ct. 2011] (citing Enmund v. Florida , 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed. 2d 1140 [1982] ). The second considers the characteristics of the offender, such as a categorical rule prohibiting the death penalty for juveniles. Graham , 560 U.S. at 61 [130 S.Ct. 2011] (citing Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d 1 [2005] ). The third, which was first recognized in Graham , combines the two because it 'implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.' 560 U.S. at 61 [130 S.Ct. 2011]." State v. Williams , 298 Kan. 1075, 1086, 319 P.3d 528 (2014). Analysis Kahler's claim fits within the second subcategory of offender characteristics. He proposes a categorical rule prohibiting the death penalty for offenders who were severely mentally ill at the time of their crimes. In analyzing claims under this second category, the United States Supreme Court employs a two-part test: "The Court first considers 'objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue. Roper , [543 U.S.] at 563 [125 S.Ct. 1183]. Next, guided by 'the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,' Kennedy, 554 U.S. at 421 [128 S.Ct. 2641], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. Roper , [543 U.S.] at 564 [125 S.Ct. 1183]." Graham v. Florida , 560 U.S. 48, 61, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010). See Williams , 298 Kan. at 1087, 319 P.3d 528 (identifying two-factor test for analyzing categorical proportionality challenge). We recently considered and rejected a nearly identical argument in Kleypas , 305 Kan. at 328-37, 382 P.3d 373. In fact, Kahler's brief is, with the exception of those portions pertaining directly to Kahler himself, nearly word for word the same brief that was submitted on this issue in Kleypas . In Kleypas , we said that the defendant had not shown the kind of legislative consensus that the Supreme Court relies upon in the first part of its test. Then, in exercising our independent judgment under the second part of the test, we opined as follows: "As to the second-prong of the test, we explained in Williams that 'community consensus is entitled to great weight but it is not determinative.' 298 Kan. at 1087, 319 P.3d 528. And in State v. Mossman , 294 Kan. 901, 281 P.3d 153 (2012), we observed: " 'In accordance with the constitutional design, "the task of interpreting the Eighth Amendment remains [the Court's] responsibility." [Citation omitted.] The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. [Citations omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]' Mossman, 294 Kan. at 929, 281 P.3d 153 (quoting Graham, 560 U.S. at 67-68, 130 S.Ct. 2011 ). " Atkins and Roper both identify retribution and deterrence as the 'legitimate penological goals' served by the imposition of the death penalty on those who commit the worst crimes. See Roper , 543 U.S. at 571 [125 S.Ct. 1183] ; Atkins , 536 U.S. at 319 [122 S.Ct. 2242]. Both conclude that the characteristics of juveniles and the mentally retarded, respectively, make offenders in those categories less culpable than the 'average murderer.' Atkins , 536 U.S. at 319, 122 S.Ct. 2242. And being less culpable and less amenable to deterrence, the death penalty is inappropriate for their crimes. "In support of his argument, Kleypas simply states '[t]he culpability of the severely mentally ill is diminished in the same manner as juveniles and the mentally retarded.' He cites language quoted from the ABA recommendation report to illustrate that some severe disorders result in hallucinations or delusions. But the ABA report itself recognizes that diagnosis alone is not a sensible basis for the exemption and, consequently, a case-by-case determination will be required. The report recognizes that Atkins left the definition of 'mental retardation' to the states. See 536 U.S. at 317, 122 S.Ct. 2242. The report continues: " ' Atkins held the death penalty excessive for every person with mental retardation, and the Supreme Court therefore dispensed with a case-by-case assessment of responsibility. However, for the disorders covered by this ... part of the Recommendation, preclusion of a death sentence based on diagnosis alone would not be sensible, because the symptoms of these disorders are much more variable than those associated with retardation or the other disabilities covered by the Recommendation's first paragraph.' ABA Recommendation Number 122A at 671. "In contrast, in Roper , the United States Supreme Court noted that '[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.' 543 U.S. at 572-73, 125 S.Ct. 1183. And in Atkins , the Court noted that clinical definitions of mental retardation shared common features which ultimately bore on the determination of culpability. See 536 U.S. at 317-18, 122 S.Ct. 2242. "Mental illnesses present less discernable common characteristics than age or mental retardation. Caselaw relating to the implementation of Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed. 2d 335 (1986), and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed. 2d 662 (2007), illustrates the difficulty in defining a discernable standard relating to mental illness. See Panetti v. Quarterman , 2008 WL 2338498 (W.D. Tex. 2008). As the ABA standard recognizes, case-by-case evaluations would be necessary; it follows that the level of culpability will vary on a case-by-case basis. While we recognize that some mental illnesses may make a defendant less culpable and less likely to be deterred by the death penalty, often such illnesses can be treated and may not manifest in criminal behavior. "We also note the protections already in place, which protect the incompetent from trial and the 'insane' from execution. See K.S.A. 2015 Supp. 22-3302 (competency); Ford, 477 U.S. at 410, 106 S.Ct. 2595 (Eighth Amendment prohibits executing those who are 'insane' at the time the sentence is carried out). In addition, a defendant may present a defense to the crimes based on a lack of capacity. K.S.A. 2015 Supp. 21-5209. Finally, as Kleypas did here, mental illness can be asserted as a mitigator. While we recognize a distinction between disqualification and mitigation, we also recognize that presenting mental illness as a mitigator allows the jury to consider culpability. "Given these variables and considerations, in the exercise of our independent judgment, we reject a categorical prohibition based on the broad classification of mental illness, even as defined by the ABA standard, in favor of individualized assessments through the sentencing proceeding. See Graham , 560 U.S. at 58-61, 130 S.Ct. 2011. We have confidence that Kansas juries can weigh a defendant's mental state at the time of the crime as a mitigating factor for consideration in the decision of whether to return a death penalty verdict. "We conclude that Kleypas fails to make the showing necessary under either prong of the two-part categorical proportionality analysis. We, therefore, deny his Eighth Amendment categorical proportionality challenge and conclude the Eighth Amendment does not categorically prohibit the execution of offenders who are severely mentally ill at the time of their crimes." 305 Kan. at 335-37, 382 P.3d 373. We find this issue controlled by our decision in Kleypas and see no reason to revisit that holding. IX. CONSTITUTIONALITY OF THE AGGRAVATING CIRCUMSTANCES Kahler argues the two aggravating circumstances relied upon by the State to justify the death penalty failed to properly channel the jury's discretion as required by the federal and state constitutions. He argues that the "killing or creating a great risk of death to more than one person" factor is duplicative of the elements needed to prove capital murder. He argues that the "heinous, atrocious, and cruel" factor is vague and duplicative. Standard of Review The constitutionality of a statutory aggravating circumstance is a question of law subject to unlimited review. Gleason , 299 Kan. at 1186, 329 P.3d 1102 (because challenge to constitutional validity of aggravating circumstances may require statutory interpretation, review is unlimited). Analysis Kahler acknowledges in his brief that this court has decided the questions raised in this issue against him. See State v. Scott , 286 Kan. 54, 110, 183 P.3d 801 (2008) (using the same conduct as element of capital murder and as aggravating factor not unconstitutional), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016) ; State v. Kleypas , 272 Kan. 894, 1029, 40 P.3d 139 (2001) ("heinous, atrocious or cruel" aggravating circumstance, as defined and narrowed in sentencing jury instructions, narrows class of persons who are death eligible in constitutional manner), overruled on other grounds by Kansas v. Marsh , 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed. 2d 429 (2006). Kahler has raised no new arguments nor pointed to any caselaw which would provide a basis for reconsideration of those decisions, and we decline to do so. X. SUFFICIENCY OF THE EVIDENCE OF AN AGGRAVATING CIRCUMSTANCE For his final issue, Kahler argues there was insufficient evidence to support the jury's finding of the second aggravating factor argued by the State, i.e. , that the crime was committed in an especially heinous, atrocious, or cruel manner. Standard of Review The standard of review of the sufficiency of the evidence to support an aggravating circumstance was set out by this court in Kleypas , 272 Kan. at 1019, 40 P.3d 139, to-wit: "The standard of review on appeal as to the sufficiency of evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt." Analysis At the penalty hearing, the State relied in part on the evidence it had presented at the guilt phase trial. The State also put the coroner, Dr. Erik Mitchell, back on the stand to largely repeat his testimony from the guilt phase concerning the bullet wounds suffered by each of the victims. With respect to each victim, Mitchell described where each bullet entered the body, how the wound or wounds would have affected the victim's awareness and her ability to feel pain, and, ultimately, how they would have brought about her death. He testified that all of the women would have suffered the severe pain of being shot. He also concluded that all of them retained awareness long enough to know of the other shootings going on around them and to be cognizant of their own possible impending death. The jury was instructed in accord with PIK Crim. 3d 56.00-C6 (2008 Supp.), on the heinous, atrocious, or cruel aggravating circumstance: "That the defendant committed the crime of capital murder in an especially heinous, atrocious or cruel manner. As used in this instruction, the following definitions apply: • 'heinous' means extremely wicked or shockingly evil; • 'atrocious' means outrageously wicked and vile; and • 'cruel' means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others. "In order to find that the crime of capital murder is committed in an especially heinous, atrocious, or cruel manner, the jury must find that the perpetrator inflicted serious mental anguish or serious physical abuse before the victim['s] death. Mental anguish includes a victim's uncertainty as to her ultimate fate." We have often held that shooting deaths are not inherently heinous, atrocious, or cruel. We compiled a number of those cases in State v. Baker , 281 Kan. 997, 1019, 135 P.3d 1098 (2006). See, e.g., State v. Holmes , 278 Kan. 603, 608, 638-39, 102 P.3d 406 (2004) (reversing hard 40 sentence because firing a single shot through the victim's heart was not especially heinous, atrocious, or cruel); State v. Flournoy , 272 Kan. 784, 794, 36 P.3d 273 (2001) (holding that the defendant's act of shooting the victim five times within 1 minute was not especially heinous, atrocious, or cruel); State v. Cook , 259 Kan. 370, 401-03, 913 P.2d 97 (1996) (reversing hard 40 sentence because the defendant's act of shooting the victim twice was not especially heinous, atrocious, or cruel); State v. Reed , 256 Kan. 547, 562-63, 886 P.2d 854 (1994) (concluding that shooting the victim in the head was not especially heinous, atrocious, or cruel and other testimony supporting the finding amounted to conjecture and speculation). In Baker , we also reviewed a number of cases in which this court had found shooting deaths to be especially heinous, atrocious, or cruel. 281 Kan. at 1019-20, 135 P.3d 1098. See, e.g., State v. Washington , 280 Kan. 565, 571-72, 123 P.3d 1265 (2005) (shooting deaths were especially heinous, atrocious, or cruel when the victims attempted to flee after being shot and the defendants pursued the victims, continuing to shoot until the victims died); State v. Perry , 266 Kan. 224, 234, 968 P.2d 674 (1998) (defendant waved gun in front of his victims before shooting them and forced one of the victims to watch the defendant shoot her sister); State v. Brady , 261 Kan. 109, 123-24, 929 P.2d 132 (1996) (defendant forced two shooting victims to lie face down on floor with their heads close together while he paced around room for about 15 minutes holding a gun, then shot first victim in the head while second victim watched, then shot second victim in the head). We concluded in Baker that the "common thread" running between those cases in which we held a shooting death had been especially heinous, atrocious, or cruel was evidence of the infliction of mental anguish upon the victim prior to death. 281 Kan. at 1020, 135 P.3d 1098. A more recent case is factually similar to this case. In State v. Hayes , 299 Kan. 861, 327 P.3d 414 (2014), defendant Terry Ray Hayes was married to Tiffani Hayes for a little over a year. In April 2010, Tiffani moved out, and shortly afterward, Hayes filed for a divorce. He experienced depression and suicidal ideations following the breakup. There was evidence that Hayes continually contacted Tiffani electronically, at work and elsewhere, that he accused her of infidelity, and that he had told others he would kill her. On the day of the murder, Hayes lured Tiffani to his home by telling her he had some of her property that she needed to pick up. Tiffani arrived with a friend and approached Hayes who was in the driveway. The friend witnessed Hayes confront Tiffani, heard Tiffani scream, and then saw Tiffani being chased down as she tried to escape from Hayes who had a gun. Hayes shot Tiffani in the back of the head when he caught up to her. In summing up the evidence supporting the aggravator, this court said there was "evidence that Hayes had threatened Tiffani in the past, that he lured her to his residence in order to kill her, and that he killed Tiffani as she tried to run away from him." 299 Kan. at 868, 327 P.3d 414. Here, there was evidence that Kahler engaged in similar electronic stalking in which he sent emails to Karen, to Karen's lover, and to others. There was evidence Kahler was severely depressed and was obsessed with Karen's leaving. There was also evidence of a prior physical threat to Karen. Karen had previously had Kahler arrested for battering her, and she was aware of his obsessive behavior. In Hayes , the district court relied on similar evidence to establish that Tiffani had reason to fear Hayes and, as a result, suffered mental anguish at the time of her death. As in Hayes , it is reasonable to conclude that Kahler's prior behavior contributed to Karen's mental anguish when he walked into Wight's kitchen with a gun and shot her. In addition to the evidence above, there is clear evidence from the Life Alert recording that Kahler methodically went through the house shooting each of the women in turn. The coroner's testimony established that the bullet wounds to each of the victims were not immediately fatal and would have left each victim conscious long enough to suffer the physical pain of her injuries in addition to the mental anguish of her impending death. The evidence clearly established that Wight and Lauren were aware of others being shot before them and lived long enough to suffer seriously from their own wounds and to fear for their own lives. The Life Alert recording established beyond question that Lauren suffered severe mental anguish as her father went through the house shooting her family members as she lay mortally wounded fearing for her own life. Viewing this evidence in the light most favorable to the prosecution, we easily conclude that a rational factfinder could have found beyond a reasonable doubt that Kahler committed the murders in an especially heinous, atrocious, or cruel manner. We applied the same standard of review in Gleason , where we recognized our "independent duty to consider the sufficiency of the evidence to support the jury's findings on aggravating circumstances." 299 Kan. at 1189, 329 P.3d 1102 (citing K.S.A. 2013 Supp. 21-6619 [c][2], which provides this court "shall determine ... whether the evidence supports the findings that an aggravating circumstance or circumstances existed"). Kahler does not contest the jury's finding that Kahler killed or created a great risk of death to more than one person. But under our independent duty to determine "whether the evidence supports the findings that an aggravating circumstance or circumstances existed," see K.S.A. 2016 Supp. 21-6619(c)(2), we have no problem determining that the evidence was sufficient to support this aggravating circumstance. With our determination above that sufficient evidence supported the heinous, atrocious, or cruel aggravating circumstance, we now must determine whether the evidence supports the finding that "mitigating circumstances were insufficient to outweigh the aggravating circumstances." K.S.A. 2016 Supp. 21-6619(c)(2). Again, we have no difficulty in determining that the jury's weighing determination and sentencing verdict were supported by the evidence. CONCLUSION Kahler's conviction of capital murder under K.S.A. 21-3439(a)(6) and his sentence of death are affirmed. Rosen, J., not participating. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE : Senior Judge Malone was appointed to hear case No. 106,981 vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.

In a letter signed August 16, 2017, addressed to the Clerk of the Appellate Courts, respondent Daniel L. Baldwin, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas pursuant to Supreme Court Rule 217 (2017 Kan. S. Ct. R. 260). The letter was received by the office of the Disciplinary Administrator on August 16, 2017, and transmitted to the Clerk of the Appellate Courts on August 17, 2017. At the time the respondent surrendered his license, a formal hearing was pending regarding two docketed disciplinary complaints. The complaints alleged the respondent violated Kansas Rules of Professional Conduct 1.1 (competence) (2017 Kan. S. Ct. R. 287), 1.3 (diligence) (2017 Kan. S. Ct. R. 290), 1.5 (fees) (2017 Kan. S. Ct. R. 292), 1.15 (safekeeping property) (2017 Kan. S. Ct. R. 326), 1.16 (declining or terminating representation) (2017 Kan. S. Ct. R. 331), 3.2 (expediting litigation) (2017 Kan. S. Ct. R. 341), 8.1 (bar admission and disciplinary matters) (2017 Kan. S. Ct. R. 377), 8.4 (misconduct) (2017 Kan. S. Ct. R. 379), and Supreme Court Rule 207 (duties of the bar and judiciary) (2017 Kan. S. Ct. R. 246). This court, having examined the files of the office of the Disciplinary 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 L. Baldwin 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 L. Baldwin 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 (2017 Kan. S. Ct. R. 262). IT IS SO ORDERED this 17th day of August, 2017.

The opinion of the court was delivered by Rosen, J.: Vincent Jarmon appeals from his jury conviction for one count of burglary. FACTS AND PROCEDURAL BACKGROUND At the time of the events that led to the conviction, Tommy Luallen and his mother, Mathilda Luallen, owned a commercial building in Wichita. Tommy was in business with Larry Farmer. Tommy and Farmer bought storage units at auctions and resold the contents. They stored their inventory at the building in Wichita. On May 6, 2013, Tommy Luallen and Farmer went to the building and discovered a hole in the back wall of the building. They attempted to remedy the breach by placing a board in front of it and piling marble sinks, tubs, a stove, a barrel, and other items in front of the board. On the morning of May 7, 2013, Farmer went to the building and opened the front door. He heard a noise in the back and saw a light shining where he would not normally expect to see any light. He backed out of the building and quietly closed the door and then called the police. Officer Edward Johnson of the Wichita Police Department responded to report of a burglary in progress. He initially encountered Farmer, who told him someone was inside the building. Johnson and another officer entered through the front door, while a third officer went to the back of the building to seal it off. They announced their presence and made their way toward the back. There they encountered Jarmon and arrested him. Jarmon had chips on his clothing, similar in appearance to the wall insulation through which the holes in the back wall had been broken. He had a red bracelet belonging to Farmer on his left wrist. In Jarmon's pocket were found screws and washers that came from Farmer's business. Farmer inspected the back room and saw that the tubs and sinks and barrel had been moved. A second hole was found above the earlier opening and higher than the stacked up items. Bags not belonging to Farmer were found in the room; these bags were filled with Farmer's property. Open toolboxes were scattered around and many tools were missing from them. A jewelry display and other goods had been swept off shelves and were lying on the floor. A string of Hot Wheels toy cars led to the hole and out into the alley. Over 120 Hot Wheels cars were missing, as were some jewelry, tools, stereo equipment, CDs, and DVDs. Jarmon did not have permission to be in the building. ANALYSIS The State charged Jarmon with one count of felony burglary. A jury found him guilty as charged, and the court sentenced him to a standard term of 32 months of incarceration and 12 months of postrelease supervision. Jarmon took a timely appeal to the Court of Appeals, which affirmed the conviction itself but reversed on a peripheral question of the effectiveness of trial counsel, particularly with respect to a conflict of interest when arguing Jarmon's pro se motion for change of counsel. The court remanded for a renewed hearing on the motion to replace trial counsel. State v. Jarmon , No. 111,608, 2016 WL 757570 (Kan. App. 2016) (unpublished opinion). This court granted the State's petition for review with respect to the remand for a hearing on ineffective assistance of counsel and granted Jarmon's cross-petition for review with respect to the first issue he raised to the Court of Appeals-the omission of the theft instruction. The Omission of an Instruction on the Elements of Theft The jury was instructed on the elements of burglary. One of the elements was that Jarmon entered the building with the intent to commit a theft, but the instructions neglected to define theft. He asserts that the omission of a definition of theft constituted reversible error. When a jury instruction is alleged to be erroneous, "(1) [f]irst, 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." State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012). Jarmon did not object to the burglary instruction. When, as here, an instructional error is asserted for the first time on appeal, failing to give a legally and factually appropriate instruction will result in reversal only if the failure was clearly erroneous. State v. Solis , 305 Kan. 55, 65, 378 P.3d 532 (2016). "To establish a clearly erroneous instruction error, the defendant must firmly convince the court the jury would have reached a different result without the error." 305 Kan. at 65, 378 P.3d 532. This standard applies with equal force when the defendant fails to object to an instruction that omits an element of a crime. The error is harmless if the appellate court has a firm belief beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. State v. Watson , 256 Kan. 396, 404, 885 P.2d 1226 (1994). The standard of review in Kansas is consistent with the standard applied by the United States Supreme Court when reviewing the omission of an element of a crime in jury instructions. See Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed. 2d 35 (1999). In Neder , unlike here, the defendant preserved the issue by objecting to the missing element instruction. Relying on Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967), the Neder Court applied the standard test for harmlessness: "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict.' " 527 U.S. at 15, 119 S.Ct. 1827. The court noted that the standard is essentially the same as the analysis used in other cases that deal with errors infringing upon the jury's fact-finding role: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" 527 U.S. at 18, 119 S.Ct. 1827. Here, the standard is relaxed because Jarmon did not object to the instructions. As with other instructional errors reviewed for clear error, the error may be deemed harmless unless Jarmon can convince this court that the jury would have reached a different verdict if it had been informed of the elements of theft. Jury Instruction 7 read: "In Count 1, the defendant, Vincent R. Jarmon, is charged with Burglary. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: 1. That the defendant entered a building that is not a dwelling; 2. That the defendant did so without authority; 3. That the defendant did so with the intent to commit a theft therein; 4. That this act occurred on or about the 7th day of May, 2013, in Sedgwick County, Kansas." This instruction generally tracked the PIK Crim. 4th 58.120 burglary instruction but omitted the PIK language "[t]he elements of [theft] are (set forth in Instruction No. ___) (as follows: ________________________)." The instructions as given provided the jury with no definition of the crime of theft. PIK Crim. 4th 58.010, defining theft, would have added language similar to this instruction: "To establish that the defendant intended to commit a theft, each of the following claims must be proved: "Larry Farmer was the owner of the property. "The defendant exerted unauthorized control over the property. "The defendant intended to deprive Larry Farmer permanently of the use or benefit of the property. "This act occurred on or about the 7th day of May, 2013, in Sedgwick County, Kansas." See K.S.A. 2012 Supp. 21-5801 (defining theft). In a burglary prosecution, failure to provide the elements of the underlying intended crime constitutes error. See, e.g., State v. Richmond , 258 Kan. 449, 458, 904 P.2d 974 (1995) ; Watson , 256 Kan. 396, Syl. ¶ 6, 885 P.2d 1226 ; State v. Rush , 255 Kan. 672, 679, 877 P.2d 386 (1994) ; State v. Linn , 251 Kan. 797, 802, 840 P.2d 1133 (1992). Because Jarmon did not object to the instructions as given or request an instruction on the elements of theft, we apply the clearly erroneous standard set out above. Jarmon must firmly convince this court that the jury would have reached a different result if it had been instructed on the elements of theft. An examination of the record leads us to conclude that the State's evidence was overwhelming and was never directly contested. It was clear that Jarmon did not have permission to be in the building and he had exerted significant effort in creating a hole that would give him access to the storeroom. He had warehouse property in his pockets; he was wearing a bracelet found in the warehouse; a trail of warehouse property could be followed from the warehouse through the hole and out into the alley; and warehouse property had been placed in bags that had been brought into the warehouse by someone other than the owners. Property that had been present in the building shortly before Jarmon was found there was missing when the building was searched after his arrest. This was compelling and uncontested evidence that he intended to permanently deprive the owners of their property. No evidence was introduced of Jarmon's purpose or presence in the building other than the abundant circumstantial evidence of theft. Jarmon did not testify on his own behalf. On cross-examination, Johnson testified that the weather was "cool" at the time of the arrest. During closing argument, Jarmon's counsel contended that he was homeless and might have been looking for shelter and not looking to appropriate property. Counsel pointed out that Jarmon was wearing a jacket, which might be seen as evidence that Jarmon entered the building to avoid the "cool" weather. Of course, if Jarmon had not been wearing a jacket, counsel could have argued that this was evidence likewise tending to show that he might have entered the building in order to escape from the weather. Wearing a jacket was not relevant to his motivation for breaking into the warehouse, because Jarmon could have been warmly dressed, not warmly dressed, or even naked, and the same argument could have been advanced based on the fact that he was wearing (or not wearing) clothing. The relevant and substantial evidence with respect to his clothing was the presence of warehouse property in Jarmon's pockets. Even if a jury might have been persuaded that he initially entered the building for shelter from the elements, the evidence was compelling that he left the building with property not belonging to him and then returned to the building in order to obtain more of that property. Some property was missing entirely; some property was found in the alley behind the building; and some property was found on Jarmon's person. This evidence undermined any contention that he was in the building only for warmth and did not intend to permanently deprive the owners of their property. The present case contrasts with Rush , 255 Kan. 672, 877 P.2d 386, where this court reversed a burglary conviction for failure to instruct on the elements of theft. In Rush , a homeless man forced entry into a store where he was found by police. Nothing was missing from the building, and the defendant had nothing on his person except his personal belongings. The defendant stated that he intended only to sleep in the building, not to take anything. In the present case, however, no evidence was put forward that Jarmon was homeless; property was missing from the building, Jarmon had store property in his pockets and on his wrist, and he had placed store property in bags that he brought with him. The evidence of theft was much greater than in Rush. We are not firmly convinced that the jury would have reached a different verdict if the district court had given a theft instruction. A rational jury would have concluded that at least one of the reasons why Jarmon went into the building was to steal property. The instructional error was therefore harmless. The Motion to Replace Trial Counsel Prior to Sentencing Several weeks after the trial ended, Jarmon filed a pro se motion requesting a new trial based on the alleged ineffective assistance of his trial counsel. Immediately prior to sentencing, the court conducted an inquiry on the motion and heard the arguments of his trial counsel, the attorney for the State, and Jarmon himself. The court then denied the motion and heard arguments on sentencing. Jarmon argued on appeal that the district court abused its discretion when it denied his motion, and the Court of Appeals agreed. The State challenges this holding on review. Jarmon maintains that the standard of review is a mixed question of law and fact, with the ultimate conclusion subject to de novo review. The State, on the other hand, asserts that the issue is reviewed for abuse of judicial discretion. The State is correct. See State v. Pfannenstiel , 302 Kan. 747, 760-61, 357 P.3d 877 (2015) (duty to conduct inquiry on substitution of counsel can lead to three types of errors, each of which is reviewed on appeal for an abuse of discretion); State v. Richardson , 290 Kan. 176, 185, 224 P.3d 553 (2010) (discretion not abused in refusing to appoint new counsel for defendant). An abuse of discretion occurs when judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221, 132 S. Ct. 1594, 182 L.Ed.2d 205 (2012). Because Jarmon's motion for new trial was filed out of time, the Court of Appeals treated it as a motion under K.S.A. 60-1507. It remanded for a hearing, complete with new appointed counsel. In so doing, the Court of Appeals provided Jarmon with procedural rights superior to those granted many petitioners who file timely K.S.A. 60-1507 pleadings. When 60-1507 pleadings are timely filed, the petitioners are not guaranteed a hearing and are not automatically provided with court-appointed attorneys. Jarmon charged in his motion that his attorney, Latina Wharton, provided ineffective assistance and "deliberately and with intention sabotage[d] the defendant's jury trial." He set out several grounds for his allegation: Wharton was aware that he was homeless and was in the building because he was homeless; Wharton refused to object to the introduction of photographs of the building; Wharton failed to object to the publication of a photograph showing him in handcuffs; and Wharton "failed to give any opening statements to a defense" and, after being summoned to the judge's bench, she never returned to complete opening statements. He then asked the court to dismiss Wharton and grant him a new jury trial. The district court conducted an inquiry in which it gave Jarmon, Wharton, and the prosecutor ample opportunity to speak. Jarmon repeated the contentions contained in his motion. Wharton initially stated that she was "willing to work with Mr. Jarmon." She explained that she, not the State, introduced the photograph of Jarmon, which she did for the purpose of suggesting that the weather was cold and he had sought shelter in the building. The prosecution also spoke to some of Jarmon's concerns and portrayed Wharton as having performed admirably. The district court made two findings: that there was no basis for granting a new trial and that there was an insufficient basis for replacing Wharton as counsel. In particular, the court addressed Wharton's decision not to introduce direct evidence of Jarmon's homeless condition and motives for being in the building: "Now, there are certain strategies, though, if she calls you to the stand to testify oh, I was homeless, didn't have any place to stay, that's why I went in there, you're opened up to cross-examination, which probably would have been-had horrible results for you, with [the prosecutor] asking you questions about this. That would have been a total meltdown in your case. She did an excellent job of using other evidence to point out to the jury and she made the argument in closing argument, I remember thinking about that, and thinking that's a good point, and yeah, she's doing a good job there bringing that out, that you know, hey, trying to argue that you were in there for the purposes of shelter." The Court of Appeals determined that there was necessarily a conflict of interest when Wharton responded to her client's motion. Jarmon , 2016 WL 757570, at *5. The Court of Appeals initially noted, apparently agreeing with the State, that Jarmon's motion for new trial was filed out of time and was therefore jurisdictionally deficient. The court then elected to treat the motion as a collateral challenge to the conviction under K.S.A. 60-1507. 2016 WL 757570, at *5. In State v. Reed , 302 Kan. 227, 236, 352 P.3d 530 (2015), the defendant filed a motion alleging ineffective assistance of trial counsel before sentencing but three months after the guilty verdict. This court held that a district court has jurisdiction under K.S.A. 22-4506 (applying to "any person who is in custody under a sentence of imprisonment") to treat the motion as a collateral attack on the sentence. The court cited State v. Kirby , 272 Kan. 1170, 1192-93, 39 P.3d 1 (2002), which held that a posttrial but presentencing motion for new trial that alleged ineffective assistance of counsel could be treated as a postconviction motion under K.S.A. 22-4506. The Court of Appeals remanded for a hearing on Jarmon's "collateral challenge to his conviction on the basis of ineffective assistance of counsel." 2016 WL 757570, at *7. At this hearing he was to receive new appointed counsel. Because Jarmon's motion for new trial was untimely, the only mechanism for considering the motion was to treat it as a collateral attack on his conviction along the lines of Reed . But such a collateral attack does not guarantee the movant a full hearing and neutral appointed counsel. K.S.A. 60-1507(b) allows a district court to summarily dispose of a motion based on the files and records of the case and without the presence of the prisoner. K.S.A. 22-4506(b) requires appointment of counsel only when the court finds that the motion presents substantial questions of law or triable issues of fact. By granting Jarmon a full hearing with new counsel, the Court of Appeals provided him with more procedural rights than he may have received if he had filed his motion on time or had filed a true 60-1507 motion. In State v. Sharkey , 299 Kan. 87, 95, 322 P.3d 325 (2014), the court noted that an untimely motion for new trial is subject to a summary denial without appointing counsel if the judge determines that the motion, files, and records of the case conclusively show that the movant is entitled to no relief. See K.S.A. 60-1507(b). Such a disposition would have provided Jarmon less protection than he received in the present case under a challenge based on asserted conflicts of interest. Normally, a court would conduct a preliminary examination to determine whether the requested relief was a realistic possibility. He would not be automatically entitled to a hearing, much less to appear and testify at the hearing. The Court of Appeals skipped the statutory step allowing the district court to conduct a preliminary investigation of the merits of the claim. Under the Court of Appeals reasoning, Jarmon was entitled to an inquiry sufficient to develop on the record the interests of the parties because he filed his motion out of time. The Court of Appeals erroneously created a right to the appointment of new, neutral counsel. This court has held that a claim of conflict of interest between a defendant and counsel does not require "automatic substitution of counsel." Pfannenstiel , 302 Kan. at 764, 357 P.3d 877. Kansas caselaw has consistently held that a district court need not appoint new counsel until it finds, after an initial inquiry into potential conflict of interest, that a defendant has established "justifiable dissatisfaction with his or her current attorney." 302 Kan. at 765, 357 P.3d 877 ; see also State v. Brown , 300 Kan. 565, 575, 331 P.3d 797 (2014) ; State v. Wells , 297 Kan. 741, 754, 305 P.3d 568 (2013). In order to demonstrate justifiable dissatisfaction, a defendant seeking new counsel must show a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. Pfannenstiel , 302 Kan. at 759-60, 357 P.3d 877. Jarmon's motion articulated a statement of attorney dissatisfaction, which triggered the district court's duty to inquire into a potential conflict of interest. 302 Kan. at 760, 357 P.3d 877. Because Jarmon's motion was untimely, he was not entitled to assistance of conflict-free counsel to argue for a new trial. Pfannenstiel , 302 Kan. at 763, 357 P.3d 877. He was also not entitled to conflict-free counsel to argue for the existence of a conflict with his current appointed counsel. 302 Kan. at 765, 357 P.3d 877. The present case is substantially similar to the circumstances of Pfannenstiel , where the defendant filed a pro se motion for substitute counsel based on a conflict of interest and the district court questioned the defendant and his counsel at a hearing before denying the request. 302 Kan. at 755-57, 357 P.3d 877. Pfannenstiel held that, while a district court's questioning of defense counsel during its inquiry into the potential conflict does not automatically create a conflict, counsel must tread a fine line to ensure her or his statements do not create a conflict. 302 Kan. at 765-66, 357 P.3d 877. Inquiry by the district court of defense counsel is necessary, but statements by counsel that go beyond factual recitations and argue against the client's position create an actual conflict of interest. 302 Kan. at 766, 357 P.3d 877. Counsel may make statements regarding decisions of trial strategy and are "a generally appropriate area of inquiry." 302 Kan. at 767, 357 P.3d 877. Likewise, comments by counsel that the defendant may have misunderstood what counsel told him or her do not cross the line of conflict of interest, despite being adverse to defendant's statements. 302 Kan. at 767, 357 P.3d 877. Here, the statements by Jarmon's defense counsel amounted to an explanation of trial strategy; a clarification of the factual basis for some of the events at trial; and a clarification that, contrary to Jarmon's allegations, she had advanced Jarmon's theory of defense during closing arguments. Although some of these statements contradicted Jarmon's allegations, they constituted factual recitations rather than advocacy against Jarmon's motion. The record supports the district court's conclusion that there was no conflict between Jarmon and Wharton sufficient to justify either a new trial or the appointment of new counsel. Some of the allegations in Jarmon's motion are clearly false. Wharton definitely presented an opening argument that, while brief, was complete. Some of the allegations were vague and failed to point out a true inadequacy of representation. The introduction of the photograph was a deliberate and legitimate, albeit unsuccessful, trial strategy. The claim that Wharton failed to advocate based on his homelessness was not quite true and was also a matter of trial strategy, which prevented her from calling him as a witness subject to cross-examination. This was a difficult case to defend. Jarmon was caught in a warehouse, having obviously broken through a wall to obtain entry. He was caught with warehouse property in his pockets, on his wrist, in bags that he evidently brought with him, and in the act of taking property out through the hole in the wall. He was marginally articulate and had an extensive criminal history involving theft and trespass, which made it dangerous to place him on the stand. It is inappropriate to send this case back for a hearing on the motion for new trial or the motion to replace counsel. The Court of Appeals mandated appointment of new counsel for a collateral challenge that had no support in the record and files. A challenge such as the one that Jarmon raised is normally subject to summary denial without appointment of counsel. The district court would have little before it at such a hearing that it did not have at its inquiry on the conflict of interest: testimony by Jarmon, Wharton, and the prosecution, as well as its own observations about the conduct of the defense. It is extraordinarily unlikely that the court would reach a different conclusion than it did at the time of the hearing on the motion. A remand in cases such as this one would reward defendants who file untimely motions for new trial by providing them with full-fledged evidentiary hearings supported by appointed counsel. There is no support for such an outcome either in caselaw or statute. CONCLUSION We therefore reverse the Court of Appeals ruling on the motion for new trial. The conviction of burglary and the denial of the motion for new trial by the district court are affirmed.

Hill, J.: From time to time, the law changes while cases are awaiting appellate review. This is such a case. Dustin Dean Perkins appeals his conviction for driving under the influence of alcohol arising from a trial to the court on stipulated facts. The issue for us to consider is whether his breath test was constitutional and its results admissible under the search-incident-to-arrest exception to the search warrant requirement of the Fourth Amendment to the United States Constitution. Following binding United States Supreme Court precedent, we hold that the breath test was a permissible search incident to arrest and thus, its results were admissible. Additionally, we hold the results were also admissible under the good-faith exception to the exclusionary rule. Accordingly, we affirm Perkins' conviction. We begin with a brief summary of the facts that led to Perkins' conviction and follow with a review of three important appellate opinions that control our decision. We conclude with our analysis and explanation on why we affirm his conviction. A police officer witnessed a traffic infraction. Around 1:30 one morning in July 2012, an investigator from the Hays Police Department saw Perkins disobey a red traffic signal at an intersection. When the investigator stopped Perkins' car, he noticed that Perkins had bloodshot eyes and he detected a moderate odor of alcohol coming from Perkins' person. Perkins told him that he drank three beers that evening. When the investigator asked Perkins to get out of the car to perform field sobriety tests, he spotted an open, partially crushed, beer can on the floorboard between the driver's seat and door. The field tests were informative. In the investigator's view, Perkins exhibited at least four "clues of impairment" on the walk-and-turn test. Perkins could not maintain his balance during the instructional phase of the test; he stopped walking before completing the second set of nine steps; he missed making heel-to-toe contact on both sets of nine steps; and, he did not turn around properly. On the one-legged-stand test, Perkins exhibited two clues of impairment-he swayed and hopped during all three 10-second standing periods. All of these facts led the investigator to arrest Perkins for driving under the influence of alcohol. He then transported him to the law enforcement center for testing. He gave Perkins the oral and written notices required by the Kansas implied-consent law and, in due course, Perkins agreed to submit to a breath test. Perkins' breath test result indicated a breath-alcohol concentration of .158 grams of alcohol per 210 liters of breath, which is above the legal limit. The State charged him with a class A nonperson misdemeanor, driving under the influence of alcohol in violation of K.S.A. 2012 Supp. 8-1567(a)(2), or in the alternative (a)(3), and (b)(1)(B). Before trial, Perkins moved to suppress the breath test results, contending that his consent for the test was coerced and involuntary. He argued that the breath test was an unreasonable search in violation of the Fourth Amendment to the United States Constitution. The district court denied his motion to suppress and found Perkins guilty on stipulated facts. Perkins appealed to this court. While this appeal was pending, two Supreme Courts made important rulings. Under Kansas law at the time of Perkins' arrest, a driver's consent to the testing of his or her blood, breath, urine, or other bodily substances for possible alcohol content was implied by statute. According to K.S.A. 2016 Supp. 8-1001, if a person is operating or attempting to operate a vehicle in Kansas, the law deems that person has consented to alcohol testing. Consent for testing is implied from that conduct. But, along with that law, K.S.A. 2016 Supp. 8-1025 made it a crime for a person to withdraw that implied consent by refusing the test. Our Kansas Supreme Court's treatment of the second statute-making it a crime to refuse the breath test-leads directly to the issue arising in this case. We now examine two cases from the Kansas Supreme Court and one from the United States Supreme Court. While Perkins' appeal was pending, the Kansas Supreme Court struck down one of Kansas alcohol testing laws. The court held that K.S.A. 2014 Supp. 8-1025 was facially unconstitutional because by punishing an individual for withdrawing his or her consent to search, it violated the fundamental right to be free from an unreasonable search. It further held that the statute was not narrowly tailored to serve the State's interests. State v. Ryce , 303 Kan. 899, Syl. ¶¶ 9, 368 P.3d 342 (2016) ( Ryce I ), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) ( Ryce II ). The court did not stop there. On the same day in another case, the court affirmed the suppression of a defendant's breath-alcohol test result in a case factually similar to this one. The court decided that the test resulted from involuntary consent because the defendant was told before consenting to the test that she might be charged with a separate crime for refusing to submit to a breath-alcohol test. In the court's view, since the State could not have constitutionally imposed criminal penalties if the defendant refused the test, the defendant's consent to submit to the test was obtained by means of an inaccurate and, therefore, coercive advisement. In other words, consent obtained through a falsehood is coercive and is no consent at all. State v. Nece , 303 Kan. 888, 889, 897, 367 P.3d 1260 (2016) ( Nece I ), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) ( Nece II ). The Kansas Supreme Court was not the only appellate court to address this subject. Shortly after these two Kansas rulings, the United States Supreme Court went deeper into the subject. It held that courts cannot deem drivers to have validly consented to a blood-alcohol content test based on the threat that they may be charged with a criminal offense if they refused to take the test. This is consistent with the Kansas Supreme Court's rulings in Ryce I and II. Importantly, the Court went further than the Kansas court and held that warrantless breath tests are permitted as a search incident to arrest-another exception to the requirement for a search warrant. Birchfield v. North Dakota , 579 U.S. ----, 136 S.Ct. 2160, 2185-86, 195 L.Ed.2d 560 (2016). The language in Birchfield could not be clearer. Breath tests are constitutionally acceptable warrantless searches incident to arrest: "Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in Robinson and repeated in McNeely itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a particular case. "Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great." Birchfield , 136 S.Ct. at 2183-84. See Missouri v. McNeely , 569 U.S. 141, 150 n.3, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ; United States v. Robinson , 414 U.S. 218, 224, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). After the ruling in Birchfield , the Kansas Supreme Court then reheard and reaffirmed its rulings in both Ryce I and Nece I . The court did modify its Ryce I decision "to reflect the validity of conducting a breath test in a DUI case where an arrest is made under the warrant exception of a search incident to lawful arrest," but the court reaffirmed its original holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional based on its interpretation of the Kansas statute. Ryce II , 306 Kan. at 693, 698-99, 396 P.3d 711. In Nece II , the court reaffirmed that Nece's consent to the warrantless breath test was involuntary. But the court did not further consider or analyze whether the search was lawful under the search-incident-to-arrest exception to the warrant requirement. 306 Kan. at 680-81, 396 P.3d 709. In the wake of these rulings, which were made while this appeal was pending, we wanted to know what effect, if any, they had on this case. So, we ordered the parties to submit supplemental briefs addressing the rulings in Nece I and II . Do any exceptions to the warrant requirement of the Fourth Amendment apply here? Both sides responded. The State takes two positions, claiming victory if it prevails under either theory. It now argues that the results of the warrantless breath test in this case were constitutionally admissible since they were a result of a search incident to arrest. In the alternative, the exclusionary rule that excludes the admission of illegally obtained evidence should not apply here because the officer acted in good-faith reliance on the Kansas statute when advising Perkins that he might be charged with a separate crime for refusing the breath test. For his part, Perkins did not respond to the State's argument that the breath test was a lawful search incident to arrest. Instead, Perkins argues that the State cannot raise the good-faith exception for the first time on appeal and that the good-faith exception does not apply under these circumstances anyway. We review some fundamental points of law. The Fourth Amendment to the United States Constitution is the bedrock law we rely upon. It prohibits unreasonable searches. Blood and breath tests conducted by the police constitute searches. See Birchfield , 136 S.Ct. at 2173 ; Ryce II , 306 Kan. at 684, 396 P.3d 711. In addition, § 15 of the Kansas Constitution Bill of Rights provides the same protections against unreasonable searches as the United States Constitution. State v. Henning , 289 Kan. 136, 145, 209 P.3d 711 (2009). Any warrantless search is intrinsically unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). Three possible exceptions arise in this context: • probable cause plus exigent circumstances; • consent to be searched; and • a search incident to arrest. We look at the three in that order. The exigent-circumstances exception to the warrant requirement permits a warrantless search when police have insufficient time to obtain a warrant due to an emergency-in other words, exigent circumstances. For example, the exception permits police to enter private property without a warrant to provide urgent aid to those inside, or when police are in hot pursuit of a fleeing suspect, and to prevent the imminent destruction of evidence. Exigent circumstances must be considered on a case-by-case basis. The natural dissipation of alcohol from the bloodstream may present an exigency, but does not always constitute an exigency. Birchfield , 136 S.Ct. at 2173-74. The State does not argue that this exception applies and we will not consider it. We turn now to consent. Clearly, under the rulings in Birchfield and Nece I and II , the consent exception to the normally required search warrant is inapplicable here where Perkins was informed that he may be charged with a separate crime for refusing a blood- or breath-alcohol test. Under the law as set out in those three cases, we must conclude that Perkins' consent was coerced because he was told that it was a crime to refuse the test. Therefore, the State cannot rely upon Perkins' consent to the test in order to admit the test results into evidence against him. We look to the final exception-the search incident to arrest. The State did not argue in the trial court that this exception applied. Ordinarily, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). But there are several exceptions to this rule: • The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; • consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and • the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). The first exception on that list is pertinent. Since this is a question of law on stipulated facts and is finally determinative of the case, we may consider the applicability of the search-incident-to-arrest exception for the first time on appeal. See State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016). Because of this consideration, we asked the parties to submit supplemental briefs addressing whether any exceptions to the warrant requirement of the Fourth Amendment should be applied. We note that in Nece II , our Kansas Supreme Court did not address whether Nece's breath test was permissible as a search incident to arrest. This may have been because in its order granting the State's motion for rehearing of Nece I , the court limited the issues on rehearing to (1) whether the implied consent advisory accurately described possible legal consequences for breath test refusal in light of Birchfield ; and (2) whether Nece's consent to the breath test was voluntary. For whatever reason, the court did not take up the issue of applying Birchfield 's search-incident-to-arrest exception to Nece's breath test. Since the opinion is silent on the issue, Nece II does not prevent this court from considering the issue now. Basically, the search-incident-to-arrest exception permits the police to conduct a warrantless search of the arrested person and the area within the control of the one arrested. This is a categorical rule that does not depend on a case-by-case analysis of the threat to officer safety, or of evidence loss, such as from the natural dissipation of alcohol. But to determine how the exception applies in situations not envisioned when the Fourth Amendment was adopted, such as searches of cell phones found on an arrested person and blood and breath tests to measure blood-alcohol concentration, the United States Supreme Court has examined the degree to which the search intrudes upon an person's privacy and the degree to which such searching is needed for the promotion of legitimate governmental interests. See Birchfield , 136 S.Ct. at 2175-76. In Birchfield , the Court concluded that warrantless breath tests, under the Constitution, were permitted incident to arrests for drunk driving. The impact of a breath test on a person's privacy is minimal, and the governmental need to control drunk driving is great. To the contrary, because warrantless blood tests for alcohol are significantly more intrusive than breath tests, the Court concluded that they were unreasonable. 136 S.Ct. at 2184-85. Basically, warrantless breath tests are permitted in all circumstances; warrantless blood tests, however, must be analyzed on a case-by-case basis. Acknowledging this ruling, in Ryce II , the Kansas Supreme Court recognized that under Birchfield , the search-incident-to-arrest exception is "a categorical exception to the warrant requirement permitting an officer to demand a breath test from a person arrested for a DUI violation." 306 Kan. at 690-91, 396 P.3d 711. Thus, " 'a breath test, but not a blood test, may be administered as a search incident to lawful arrest for drunk driving.' " 306 Kan. at 693, 396 P.3d 711. The court recognized the "validity of conducting a breath test in a DUI case where an arrest is made under the warrant exception of a search incident to lawful arrest." 306 Kan. at 693, 396 P.3d 711. Here, Perkins was arrested for driving under the influence before the officer administered the breath test. Upon arrest, he was transported to the law enforcement center for testing. It does not matter that Perkins' consent for the breath test was coerced. For the results to be admissible, the State need only prove the applicability of one of the exceptions to the search warrant requirement. See City of Los Angeles, Calif. v. Patel , 576 U.S. ----, 135 S.Ct. 2443, 2451, 192 L.Ed.2d 435 (2015). An example of the State pursuing more than one exception to the warrant requirement while attempting to admit evidence obtained from a warrantless search is found in State v. Overman , 301 Kan. 704, 710-12, 348 P.3d 516 (2015). In Overman , the court first pointed out that the State has the burden to show that a search and seizure was lawful. 301 Kan. at 710, 348 P.3d 516. In that case, the State had argued in district court that two exceptions to the search warrant requirement applied: search incident to a lawful arrest and probable cause plus exigent circumstances. The district court had held that the evidence was admissible because it was obtained from a search incident to arrest. On appeal, due to a recent holding of the Kansas Supreme Court, the State conceded that the search incident to an arrest exception could not apply. Notwithstanding that, our Supreme Court proceeded to analyze the case under the probable cause plus exigent circumstances exception and upheld the district court's ruling admitting the evidence, saying it was correct albeit for the wrong reason. Succinctly, the court stated: "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." 301 Kan. at 712, 348 P.3d 516. That is precisely the same question we must answer here. If we apply those principles to this case, it becomes clear that this was a warrantless search and the State had the burden to show that it was lawful. It argued in the trial court that the consent exception to the search warrant requirement applied. On appeal, the law changed and the State could no longer pursue that exception but caselaw permits it to argue another exception-search incident to an arrest. Based on the holdings in Birchfield and Ryce II , the officer was permitted to conduct the breath test in this case as a lawful search incident to arrest. Thus, the results are admissible as evidence of Perkins' guilt. But our review does not end there. There is another reason why the tests results are admissible. Even if no exception to the search warrant requirement applied, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied-consent statute before the Kansas Supreme Court ruled it unconstitutional. We turn now to consider the applicability of the exclusionary rule to the facts of this case. Whether it is appropriate to suppress evidence from an unlawful search is a question of law. State v. Daniel , 291 Kan. 490, 496, 242 P.3d 1186 (2010). Because this is a pure question of law on stipulated facts and is determinative of the case, we may consider the applicability of the good-faith exception for the first time on appeal. State v. Schmidt , 53 Kan. App. 2d 225, 233, 385 P.3d 936 (2016), rev. denied 306 Kan. 1329 (2017). In Nece I , the Kansas Supreme Court stated that it did not consider the potential applicability of the good-faith exception to Nece's case because the State did not brief the issue and conceded during oral argument that it was not seeking application of the exception. 303 Kan. at 897, 367 P.3d 1260. Here, in contrast, the State contends in its supplemental brief that the good-faith exception should be applied. We will consider the question. We note that several panels of this court have already found the good-faith exception applicable under similar facts. See, e.g., Schmidt , 53 Kan. App. 2d at 235-37, 385 P.3d 936 ; State v. Kraemer , 52 Kan. App. 2d 686, 699, 371 P.3d 954 (2016), rev. denied 306 Kan. 1325 (2017); State v. McClellan , No. 115,164, 2017 WL 839720, at *11-14 (Kan. App. 2017) (unpublished opinion), petition for rev. filed March 31, 2017; State v. Steckline , No. 112,242, 2017 WL 383343, at *7-8 (Kan. App. 2017) (unpublished opinion), rev. denied 306 Kan. 1330 (2017); State v. Rincon , No. 113,741, 2016 WL 3856670, at *4-5 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1329 (2017). We find the reasoning of these cases persuasive. Under the exclusionary rule, unconstitutionally obtained evidence is excluded from the criminal trial of the victim of an illegal police search. Put plainly, the purpose of the exclusionary rule is to deter police misconduct; that is, to prevent the police from making illegal searches and seizures. But our Supreme Court has recognized a good-faith exception to the exclusionary rule when an officer acts in an objectively reasonable reliance on a statute that is later determined to be unconstitutional. See Daniel , 291 Kan. 490, Syl. ¶ 7, 242 P.3d 1186. In such cases, suppression of the seized evidence does not serve the purpose of the rule. After all, the officer was obeying the law at the time of the search. To address such questions, our gaze must shift from the officer's actions to the statute the officer was enforcing. The question becomes whether the statute, itself, can support an officer's objective reasonable reliance on it-not on the officer's subjective beliefs about the law. An officer's reliance on a statute is not objectively reasonable if: • the statutory provisions are such that a reasonable law enforcement officer should have known the statute was unconstitutional; or • in its enactment, the Legislature wholly abandoned its responsibility to pass constitutional laws. Daniel , 291 Kan. 490, Syl. ¶ 8, 242 P.3d 1186. Here, we see no reason why the officer should have known K.S.A. 2012 Supp. 8-1025 was unconstitutional or that the implied consent advisory based on that law was coercive. At the time of the arrest, the officer was required by law to advise Perkins that failure to submit to a breath test could constitute a separate crime. The investigator here followed the law. Prior to Ryce I and Nece I , our courts had upheld the validity of consent obtained after giving the implied consent advisory. See, e.g., State v. Johnson , 297 Kan. 210, 222-23, 301 P.3d 287 (2013). Our Supreme Court did not invalidate the implied consent advisory until after the officer read it to Perkins. Obviously, suppression of the breath test result would not serve the purpose of the exclusionary rule-to deter police misconduct-because we find no police misconduct here. Nor is there any indication that the Legislature wholly abandoned its duty to enact constitutional laws in passing the statutes. After all, other states had similar statutes and continued to uphold them until the Birchfield decision. See Schmidt , 53 Kan. App. 2d at 235-37, 385 P.3d 936. In summary, we hold the district court correctly denied Perkins' motion to suppress. The breath test here was constitutional as a search incident to arrest according to Birchfield . And the breath test result was admissible under the good-faith exception to the exclusionary rule. Perkins' conviction is affirmed. * * *

The decision of the court was delivered by Nuss, C.J.: Cedric Warren challenges his resentencing after the original hard 50 life sentence for his premeditated first-degree murder conviction was held unconstitutional and vacated on appeal. On remand the district court imposed a hard 25 life sentence (lifetime sentence without the possibility of parole for 25 years) for that conviction and ran it consecutive to his sentences for his two on-grid crimes. For those crimes, the court also changed his two nonvacated sentences in length and sequence. Warren asserts that our holding in State v. Guder , 293 Kan. 763, 267 P.3d 751 (2012) -together with the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. (KSGA)-bars the district court from resentencing on any nonvacated counts. The State primarily responds that Guder should be overruled. We affirm Guder . We also disagree with the State's contention that even if the nonvacated sentences must be reinstated under Guder , the vacated sentence for the premeditated first-degree murder conviction can be changed from running concurrent with the sentences to the other crimes to running consecutive to them. So we again vacate and remand for resentencing. In short, Warren's original sentences for second-degree murder and attempted first-degree murder shall be reinstated and they shall run concurrent with his new hard 25 sentence for premeditated first-degree murder. FACTS AND PROCEDURAL HISTORY For acts that occurred on February 13, 2009, Cedric Warren was convicted of: (1) premeditated first-degree murder, an off-grid felony; (2) second-degree murder, an on-grid severity level one person felony; and (3) attempted first-degree murder, another on-grid severity level one person felony. Warren's original sentences included a hard 50 life sentence for his premeditated first-degree murder conviction and 155 months for each of his other two convictions, both of which were ordered to be served concurrently with the hard 50 sentence. In State v. Soto , 299 Kan. 102, 322 P.3d 334 (2014), this court later determined that Kansas' hard 50 sentencing statute was unconstitutional pursuant to the United States Supreme Court's ruling in Alleyne v. United States , 570 U.S. 99, 111-17, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013). Alleyne held that a person's right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence for a crime must be proved to a jury beyond a reasonable doubt. Given that our hard 50 procedure allowed a judge to find the existence of one or more aggravating factors instead of requiring a jury to find those factors beyond a reasonable doubt, that procedure violated the Sixth Amendment. 299 Kan. at 124, 322 P.3d 334. This unconstitutional sentencing procedure had been used in Warren's case where-before barred by Alleyne and Soto -the sentencing judge rather than the jury made the necessary factual findings that resulted in the increased sentence. As such, his three convictions were affirmed but the hard 50 life sentence was vacated and the case was remanded for resentencing. State v. Warren , 302 Kan. 601, 624, 356 P.3d 396 (2015). On remand, the State had two options. First, it could seek reimposition of the hard 50 sentence for Warren's premeditated first-degree murder conviction. This option would require impaneling a jury and presenting it with facts to support the requested sentence. Or second, the State could seek a lesser sentence for that conviction, i.e., one which the judge could constitutionally impose without a jury. The State chose the latter path. In effect, at Warren's resentencing the district court treated the remand order as having vacated all three of Warren's sentences. It imposed a hard 25 for the premeditated first-degree murder conviction and 150 months for each of the other two convictions. It also orally ordered the entire sequence changed-"that the sentences run consecutively," not concurrent as originally imposed. See Love v. State , 280 Kan. 553, 560, 124 P.3d 32 (2005) (criminal sentence is effective when pronounced from the bench). The later journal entry memorializes that count 2 (murder in the second degree, intentional) is to run consecutive to count 1 (murder in the first degree). It further provides that count 3 (attempted murder in the first degree) is to run consecutive to counts 1 and 2. It recaps the "Total Prison Term" as "Life (hard 25) + 300 mos," i.e., consecutive sentences. This court's jurisdiction is provided by K.S.A. 22-3601(b)(3) (life sentence imposed). ANALYSIS Issue: The district court erred in resentencing Warren's two nonvacated on-grid sentences and ordering all three counts to run consecutive. Warren argues that under the KSGA the district court erred on remand in changing both the term-of-months and the concurrent/consecutive nature of his two on-grid sentences for counts 2 and 3. He argues this court has held the KSGA abrogated the common law authority of district courts to resentence all counts when only one sentence is vacated. See Guder , 293 Kan. 763, 267 P.3d 751. So he contends that the court should have only resentenced for his vacated hard 50 sentence for the premeditated first-degree murder conviction, i.e., count 1. As mentioned, the State responds this court improperly decided Guder and the common law authority of district courts on remand to resentence on all counts should have been left intact. Standard of review The interpretation of sentencing statutes is a question of law over which this court exercises unlimited review. Whether a district court has complied with the mandate of an appellate court is also a question of law. Guder , 293 Kan. 763, 267 P.3d 751. Discussion Historically, as seen in cases like State v. Woodbury , 133 Kan. 1, 298 P. 794 (1931), Kansas courts had broad common law discretion to modify sentences on remand. Sentences were regarded as a singular entity that could not be subdivided into correct and incorrect counts. So remand for resentencing on one count allowed all counts to be resentenced as the courts saw fit. But this common law principle has been nullified by subsequent statutory changes to sentencing in Kansas, specifically the KSGA as this court held in Guder . Rolland D. Guder was originally sentenced to a standard drug grid block sentence of 162 months for a drug manufacturing conviction, with several additional counts to run concurrent with this sentence. Upon appeal, Guder's drug manufacturing sentence was vacated and remanded for resentencing under the proper severity level. The new sentence for the drug manufacturing conviction was only 32 months. However, the district court also changed other sentences so that the manufacturing sentence ran consecutive to, rather than concurrent with, the others. Guder , 293 Kan. at 764, 267 P.3d 751. Because of the KSGA, this court specifically held that "a district court has no authority to modify a sentence unless plain statutory language provides such authority." Guder , 293 Kan. at 766, 267 P.3d 751. We analyzed the relevant Kansas sentencing statutes and determined that the 1992 amendments deprived the district courts of the jurisdiction to modify sentences except to correct arithmetic or clerical errors, to consider or reconsider departures from presumptive sentences, or to modify sentences by reinstating previously revoked probations. 293 Kan. at 766, 267 P.3d 751. We also determined that when the legislature enacted the KSGA, it explicitly addressed remands following reversal in K.S.A. 21-4720(b)(5). That statute states that if a conviction of the primary crime is reversed on appeal, the sentencing court is to follow all of the KSGA provisions concerning sentencing in multiple conviction cases. We further held in Guder that nothing in the statutory scheme allows resentencing on other convictions following the vacating of a sentence on appeal. We stated then, and confirm now, that we will not add words to the statute that would provide jurisdiction to resentence on other counts when only the sentence on the primary conviction is vacated. We so held because the court "ascertains the legislature's intent through the statutory language it uses, and it will not read a statute to add something not readily found in it." Guder , 293 Kan. at 766-67, 267 P.3d 751. We explicitly held in Guder that the KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences that were not vacated on appeal. Applying that holding here requires that Warren's original sentences for counts 2 and 3-each for 155 months and running concurrent to count 1-be reinstated. In the alternative to our overruling Guder , the State contends that even if the original sentences for Warren's second and third convictions must be reinstated, the new sentence for Warren's premeditated first-degree murder conviction can nevertheless be ordered to run consecutive to the original sentences. We disagree for several reasons. To begin our analysis, we acknowledge that typically a district court has the discretion on whether to originally impose concurrent or consecutive sentences in multiple conviction cases. K.S.A. 21-4720(b). This rule is necessarily subject, however, to our holding that on remand only the vacated sentence can be changed. Guder , 293 Kan. at 767, 267 P.3d 751. And to change Warren's sentence for the premeditated first-degree murder conviction from concurrent with-to consecutive to-the others would be an impermissible de facto modification of them. Simply put, when Warren was first sentenced, because each count was to run concurrent, he was effectively serving each of his three sentences. Changing the life sentence from concurrent to consecutive on remand would make all of Warren's served time count toward only the premeditated first-degree murder sentence for the first 25 years, i.e., the sentences for the other crimes would not begin until completion of his hard 25. See K.S.A. 21-4720(b)(2) ("If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence."). So the effect of this change constitutes an improper modification of the nonvacated second and third sentences. See Guder , 293 Kan. at 766-67, 267 P.3d 751. The State argued the change from concurrent to consecutive was authorized by State v. Morningstar , 299 Kan. 1236, 329 P.3d 1093 (2014) ( Morningstar II ). As explained below, however, that decision is distinguishable in at least several ways. In Morningstar , the defendant was convicted of four offenses: rape of a child under 14, aggravated battery, abuse of a child, and child endangerment. He was sentenced to an off-grid hard 25 life sentence for the rape conviction as required by Jessica's Law. Each of the other three counts were then sentenced according to the KSGA grid block with the aggravated battery sentence being designated as the base sentence for the primary crime because it was his highest severity level grid offense. See K.S.A. 21-4720(b)(2). The three terms-of-years sentences were ordered to run concurrent with each other and with the off-grid hard 25 life sentence for the rape conviction. This court vacated the off-grid rape sentence and remanded for resentencing on that conviction on the KSGA nondrug sentencing grid. State v. Morningstar , 289 Kan. 488, 495, 213 P.3d 1045 (2009) ( Morningstar I ). On remand, the court and counsel recognized that imposing a grid sentence for rape also implicated Morningstar's aggravated battery sentence because the rape conviction now replaced aggravated battery as his highest severity level grid offense. Accordingly, the court was required to apply his full criminal history to solely the rape conviction which required deleting it from the calculations for aggravated battery. This resulted in resentencing on the aggravated battery conviction, which in turn reduced that sentence from 48 to 43 months. Morningstar II , 299 Kan. 1236, 329 P.3d 1093 ; Morningstar I , 289 Kan. at 489-90, 213 P.3d 1045. In short, because of the remand on the rape sentence, the nonvacated aggravated battery sentence now needed modification to be a lawful sentence. But Warren has no Morningstar -style justification to modify his nonvacated sentences-whether in purpose or effect. Additionally, Morningstar argued the district court erred on remand in changing the original rape sentence (now 186 months) to run consecutive to the other sentences-when originally the other sentences had been ordered to run concurrent with the hard 25 rape sentence. We rejected his argument, noting that running the on-grid sentences for rape and aggravated battery consecutive was not prohibited by the statutes at issue there. Morningstar II , 299 Kan. at 1245-46, 329 P.3d 1093 ("In multiple-conviction cases, K.S.A. 21-4720 does not dictate the order in which consecutive grid sentences must be imposed or served."). By contrast, ordering Warren's off -grid sentence for premeditated first-degree murder to run "consecutive to" his on-grid sentences is inconsistent with the "service of sentence" sequence contemplated in K.S.A. 21-4720(b). As mentioned, that statute provides that in cases where consecutive sentences may be imposed by the sentencing judge "the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence." In conclusion, we must acknowledge that by legislative action, the district court's power to modify sentences on remand is now far more limited than it was before the enactment of the KSGA. Barring the need to alter a nonvacated sentence as a matter of law, the district court may only modify the vacated sentence. We remand for resentencing and order the original 155-month concurrent sentences for counts 2 and 3 to be reinstated and to run concurrent with the new hard 25 sentence for premeditated first-degree murder.

Malone, J.: K.V. (Mother) appeals the district court's decision in this paternity action granting grandparent visitation time to K.R. (Grandmother). Mother claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. Mother also claims the district court erred in not assessing attorney fees against Grandmother as required by statute. We agree with Mother that the district court violated her due process rights by ordering grandparent visitation time on a schedule different from what Mother had offered without finding that Mother's visitation plan was unreasonable. Thus, we reverse the district court's grandparent visitation order and remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND On December 2, 2009, K.V. filed a petition in district court for an order finding T.R. (Father) to be the father of M.V., born in 2009, and for orders establishing joint custody and child support for M.V. Father acknowledged paternity and the parties initially agreed to orders establishing joint custody, parenting time, and child support. But over the years, many disputes arose between Mother and Father over parenting time and child support, and the parties often were back in court to resolve their differences. On January 27, 2017, paternal Grandmother filed a motion in the paternity action requesting an order for grandparent visitation time. To support her motion, Grandmother alleged that she had established a relationship with M.V. and that it was in M.V.'s best interests to continue that relationship. Grandmother proposed that she have visitation with M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on Sunday, as well as other times. Mother filed a response to the motion and asserted that the Kansas Parentage Act does not allow for grandparent visitation in a paternity case. Mother also requested that Grandmother reimburse her for attorney fees. On March 15, 2017, the district court held a hearing on Grandmother's motion, although a transcript of the hearing is unavailable due to technical errors. According to the journal entry, the district court found that a substantial relationship existed between Grandmother and M.V. and that visitation rights would be in M.V.'s best interests. The district court also cited In re T.N.Y. , 51 Kan. App. 2d 956, 360 P.3d 433 (2015), for the proposition that grandparents may assert visitation rights in a paternity action, and not just in divorce cases. The district court granted Grandmother's request for visitation with M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on Sunday. The district court also ordered that exchanges for the visits should take place at the same location in Haven, Kansas, used by the parents for Father's parenting time. Finally, the district court denied Mother's request for reimbursement of attorney fees. On March 31, 2017, Mother filed a motion for reconsideration with the district court. Mother also filed a proposed visitation plan allowing Grandmother to have visitation with M.V. on the second Saturday of each month from noon until 5 p.m., rather than the entire weekend under the original order. Mother's proposed visitation plan also specified that Grandmother would pick up M.V. for visitation at Mother's house, rather than at the location in Haven, Kansas. The motion also requested the district court to award reasonable attorney fees to Mother under K.S.A. 2017 Supp. 23-3304. The district court held a hearing on Mother's motion for reconsideration on May 19, 2017. At the hearing, Mother acknowledged that Grandmother should have visitation with M.V. In fact, Mother personally addressed the court and stated: "I'm okay with [M.V.] seeing her grandparents. She needs to see her grandparents, all of them." But Mother requested the district court to modify the visitation schedule to exclude overnight visits. To support her request, Mother raised two primary concerns: (1) Grandmother had an unknown man living at her residence, and (2) Grandmother sometimes took M.V. to the jail to see Father who was facing child sex abuse charges, and these visits violated a court order and were against Mother's wishes. Mother asked the district court to adopt her proposed visitation plan as being reasonable. Grandmother addressed the court and explained that her ex-boyfriend had suffered a stroke and stayed with her for a while, but he was no longer living at her residence. Grandmother acknowledged that she took M.V. to see Father in jail sometimes because she thought it might relieve some of M.V.'s anxieties. Finally, Grandmother complained to the court that Mother was not allowing M.V. to talk with her on the phone. On May 19, 2017, the same day as the hearing, the district court filed a memorandum opinion and journal entry denying Mother's request to modify the visitation order. The district court reaffirmed the original grandparent visitation schedule for overnight visitation one weekend each month and also granted Grandmother an additional 15-minute phone call with M.V. each week. The district court found that the original grandparent visitation schedule was reasonable because Father was not currently able to exercise visitation with M.V. while he was incarcerated. The district court noted that Grandmother's ex-boyfriend was no longer living at her residence, but the court did not address Mother's concern about Grandmother taking M.V. to see Father in jail. The district court did not mention Mother's proposed visitation plan in making its ruling, and the court made no finding that Mother's visitation plan was unreasonable. Finally, the district court denied Mother's request for attorney fees, finding that Grandmother is not better off financially than Mother and it was Mother who had brought the case back to court for a hearing. Mother timely appealed the district court's decision. On appeal, Mother claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. She also claims the district court erred in not assessing attorney fees against Grandmother because the statute requires the court to assess such costs against the grandparent absent specific findings. We will address each claim in turn. GRANDPARENT VISITATION ORDER Mother first claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. Specifically, Mother asserts that the district court violated her due process right under the Fourteenth Amendment to the United States Constitution to raise her child as she sees fit. She asserts that the constitutional right of a parent to raise his or her child is a fundamental right to which the court must give great deference. Mother also contends there is no indication that the district court presumed she was a fit parent who was acting in her child's best interests. She asks that her case be remanded for the district court to consider her proposed visitation plan and to give special weight to her wishes. Conversely, Grandmother argues that the district court correctly found that the original visitation order was reasonable given that Father cannot exercise parenting time because of his incarceration. Grandmother also contends that there is no indication that Mother ever presented a proposed visitation plan to the court. Accordingly, Grandmother asks this court to uphold the district court's decision. Whether a right to due process has been violated is a question of law over which an appellate court exercises unlimited review. In re K.E. , 294 Kan. 17, 22, 272 P.3d 28 (2012). Generally, a constitutional issue may not be raised for the first time on appeal unless: (1) the claim asserted involves only questions of law and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right but for the wrong reason. State v. Dukes , 290 Kan. 485, 488, 231 P.3d 558 (2010). Under Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34), the appellant must invoke one of these exceptions and explain why an issue not raised in district court should be addressed on appeal. State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Mother asserted her constitutional due process claim at the hearing on May 19, 2017, but she only argued the constitutional considerations in passing. In any event, to the extent that Mother is asserting her constitutional claim for the first time on appeal, she invokes exceptions (1) and (2) in her brief. We agree with Mother that this issue involves only a question of law which is determinative of the case and consideration of the claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Thus, Mother's constitutional claim is properly before this court. The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The United States Supreme Court has stated that "perhaps the oldest of the fundamental liberty interests" is a fit parent's right to the care, custody, and control of his or her children. Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000). At common law, grandparents had no legal right to override a parent's wish to deny contact with a child. In re Hood , 252 Kan. 689, 691-94, 847 P.2d 1300 (1993) ; Elrod, Child Custody Practice & Procedure § 7:6 (2018). In the last 50 years, most states have enacted statutory visitation rights for grandparents when a court finds it is in the child's best interests. 2 Elrod, Kansas Law and Practice, Kansas Family Law § 13:10 (2017-2018 ed.). The Kansas grandparent visitation statute has been amended several times since it was first enacted in 1971. See L. 1971, ch. 149, § 1. The statute is now found at K.S.A. 2017 Supp. 23-3301, and states: "(a) In an action under article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, grandparents and stepparents may be granted visitation rights. "(b) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established. "(c) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent's spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act." K.S.A. 2017 Supp. 23-3301(a) only provides for grandparent visitation "[i]n an action under article 27 of chapter 23 of the Kansas Statutes Annotated," which includes divorce proceedings. The statute does not expressly allow a grandparent to assert visitation rights in a paternity action. But in In re T.N.Y. , this court held that limiting grandparent visitation only to divorce proceedings violates the equal protection rights of children whose parents never married. 51 Kan. App. 2d at 969-70, 360 P.3d 433. This court struck the offending language from the current grandparent visitation statute, resulting in a determination that a grandparent can assert visitation rights in a paternity action. 51 Kan. App. 2d at 969-70, 360 P.3d 433. In the appeal before us, Mother does not challenge Grandmother's statutory right to seek visitation under K.S.A. 2017 Supp. 23-3301. Under K.S.A. 2017 Supp. 23-3301(b), the district court may grant grandparent visitation rights upon "finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established." The district court must make both findings before grandparent visitation may be granted. The burden is on the grandparent to prove these elements. In re Cathey , 38 Kan. App. 2d 368, 373, 165 P.3d 310 (2007). Here, the district court expressly found that a substantial relationship existed between Grandmother and M.V. and that visitation rights would be in M.V.'s best interests. Mother does not challenge these findings on appeal. Thus, Grandmother satisfied her burden to establish visitation rights with M.V. under the Kansas statute. That said, in Troxel , the United States Supreme Court reaffirmed the fundamental right of parents to raise their children free of state interference. In doing so, the Supreme Court acknowledged that although the nationwide enactment of grandparent visitation statutes was likely caused by changing family demographics, it emphasized that parents still retained their fundamental right to make decisions regarding the care, custody, and control of their children. 530 U.S. at 64-65, 120 S.Ct. 2054. In finding Washington's grandparent visitation statute unconstitutional, the Supreme Court found that it is improper to disregard decisions made by a fit parent about visitation based solely on a determination of the child's best interests. 530 U.S. at 67, 120 S.Ct. 2054. Accordingly, the Supreme Court held that when a "fit parent's decision [regarding grandparent visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." ( Emphasis added.) 530 U.S. at 70, 120 S.Ct. 2054. The holding in Troxel has been adopted and applied in Kansas. In Kansas Dept. of SRS v. Paillet , 270 Kan. 646, 16 P.3d 962 (2001), the father died in a car accident shortly after his child was born, and the paternal grandparents petitioned for visitation. The district court granted visitation, finding that it was in the child's best interests and that a substantial relationship had been established between the child and the grandparents. 270 Kan. at 647-48, 16 P.3d 962. While the case was pending on appeal, the United States Supreme Court released its decision in Troxel, and our Supreme Court permitted the mother to raise a due process argument like the one raised in Troxel. Although our Supreme Court upheld the then-existing grandparent visitation statute on its face, noting that the statute was not nearly as broad as the statute addressed in Troxel , it found that applying the statute to the facts of the case violated the mother's due process rights. 270 Kan. at 657-60, 16 P.3d 962. More specifically, it found that "[t]he trial court made no presumption, as required by Troxel, that a fit parent will act in the best interests of his or her child." 270 Kan. at 658, 16 P.3d 962. In In re T.A. , 30 Kan. App. 2d 30, 38 P.3d 140 (2001), the mother appealed the district court's decision ordering grandparent visitation on a schedule different from the schedule the mother had offered. The district court found that the mother was a fit parent, that substantial bonding had occurred between the grandparents and the child, and that it was in the best interests of the child to continue some contact with the grandparents. 30 Kan. App. 2d at 31, 38 P.3d 140. In reversing the district court's order, this court held that the district court "should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parent's, absent a finding of unreasonableness." 30 Kan. App. 2d at 35, 38 P.3d 140. But this court also observed that "a parent's determination is not always absolute; otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse." 30 Kan. App. 2d at 34, 38 P.3d 140. Similarly, in In re Creach , 37 Kan. App. 2d 613, 621, 155 P.3d 719 (2007), the district court did not make sufficient findings for this court to determine why the parents' proposed plan was not adopted or "why the grandmother's proposed visitation plan was not revised to address the parents' concerns." 37 Kan. App. 2d at 621, 155 P.3d 719. Because it was unclear whether the district court applied the Troxel presumption, this court found it was impossible to determine whether the district court interfered with the parents' due process right to parent their children. 37 Kan. App. 2d at 621, 155 P.3d 719. As a result, this court remanded the case to the district court to make sufficient findings and "to apply the Troxel presumption that fit parents act in the best interests of their children and that their opinions on grandparent visitation should be given special weight." 37 Kan. App. 2d at 621, 155 P.3d 719. To sum up these decisions, when considering a parent's constitutional due process rights, the best interest of the child standard alone is an insufficient basis to award grandparent visitation. A court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. A court cannot reject a fit parent's visitation plan without finding it is unreasonable. But a parent's determination is not always absolute because otherwise the parent could arbitrarily deny grandparent visitation without the grandparent having any recourse. Returning to our facts, the district court found that a substantial relationship existed between Grandmother and M.V. and that grandparent visitation was in M.V.'s best interests, as required by statute. However, the record is unclear on whether the district court adhered to the Troxel presumption. The district court did not expressly find that Mother was a fit parent, but there was no evidence to suggest otherwise. Thus, the district court needed to presume that Mother was acting in M.V.'s best interests, and it needed to give special weight to her proposed visitation schedule. The court should not have rejected Mother's visitation schedule without finding that it was unreasonable. Mother filed her proposed grandparent visitation plan with the district court before the hearing on May 19, 2017, and her counsel referred to the visitation plan during his arguments to the court. Thus, the record on appeal contradicts Grandmother's assertion that Mother failed to present a proposed visitation plan to the district court. The district court did not mention Mother's proposed visitation plan in making its ruling for grandparent visitation. While the district court ruled that the original grandparent visitation schedule should stay in place because it was a reasonable arrangement, it did not explain why it thought Mother's proposed plan was unreasonable. In making its ruling, the district court did not address Mother's concern that Grandmother took M.V. to the jail in violation of a court order to see Father who was facing child sex abuse charges, although it was completely reasonable for Mother to be upset by this action. The district court needed to presume that Mother was acting in M.V.'s best interests, and it needed to give special weight to Mother's proposed visitation schedule. When the record does not reflect that the district court even considered Mother's proposed visitation plan and never found it to be unreasonable, we must reverse the district court's grandparent visitation order and remand for the district court to conduct the proper analysis under Troxel and related Kansas cases. On remand, the district court must make appropriate findings to justify its grandparent visitation order and cannot reject Mother's proposed visitation plan without finding it is unreasonable. ATTORNEY FEES Next, Mother claims the district court erred in not assessing attorney fees against Grandmother as required by statute. Mother argues that the district court should have awarded her costs and reasonable attorney fees under K.S.A. 2017 Supp. 23-3304 and that the court provided no explanation for denying them. Grandmother asserts that the district court found that justice and equity required that no fees should be assessed against her. Grandmother points out that in denying Mother's request for attorney fees, the district court found that Grandmother is not better off financially than Mother and it was Mother who had brought the case back to court for a hearing. Generally, an award of attorney fees rests within the sound discretion of the district court, and its determination will be not disturbed on appeal absent an abuse of discretion. DeGraeve v. Holm , 30 Kan. App. 2d 865, 869, 50 P.3d 509 (2002). To the extent that resolution of this issues involves statutory interpretation, we have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). K.S.A. 2017 Supp. 23-3304 provides that in an action for grandparent visitation, "[c]osts and reasonable attorney fees shall be awarded to the respondent ... unless the court determines that justice and equity otherwise require." When dealing with attorney fees in grandparent visitation cases, "[t]he legislature clearly intended that the petitioner (grandparents) pay the costs and the attorney fees unless the trial court specifically finds that justice and equity require otherwise." In re Cathey , 38 Kan. App. 2d at 377, 165 P.3d 310. Here, the district court denied Mother's request for attorney fees, finding that Grandmother is not better off financially than Mother and it was Mother who had brought the case back to court for a hearing. The district court did not expressly find that "justice and equity" required the denial of Mother's request for attorney fees, but perhaps the district court intended for its finding to satisfy the statutory language. In any event, the district court made this finding without properly analyzing Mother's constitutional rights, and the court must reevaluate the finding after it conducts the proper analysis. On remand, the district court must reconsider Mother's request for attorney fees, and the court shall grant the request unless it expressly finds that justice and equity require otherwise. Reversed and remanded with directions.

The opinion of the court was delivered by Biles, J.: Clyde Lacy Newton Jr. argues the person felony classification given to his prior California robbery conviction made his sentence in this Kansas criminal case illegal when determining his criminal history score. He urges us to follow State v. Wetrich , 307 Kan. 552, 561-62, 412 P.3d 984 (2018) (elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced). The State argues Wetrich is inapplicable, noting the Legislature amended the statute governing motions to correct an illegal sentence to provide that "a change in the law that occurs after the sentence is pronounced" does not make a sentence " 'illegal.' " K.S.A. 2018 Supp. 22-3504(3). But this appeal's resolution does not lay at the end of either of those analytical paths. Instead, we follow State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ( Murdock II ) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes). And based on that, Newton's 1977 California robbery conviction was properly classified as a person felony under our caselaw in 2008 when his sentence in the Kansas case became final. See State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003) (holding "the comparable offense" was "the closest approximation" to the out-of-state crime), overruled on other grounds by State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015). Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Newton pleaded guilty to one count of attempted rape, a severity level 3 person felony. At sentencing, the district court determined he had a criminal history score of B, in part due to a 1977 California robbery conviction, which the Kansas court classified as a person felony. The court granted Newton's motion for durational departure and sentenced him in 2008 to 168 months in prison and lifetime postrelease supervision. Newton did not appeal his sentence. In 2014, Newton filed a motion to correct an illegal sentence. He argued the district court incorrectly calculated his criminal history score by classifying some pre-1993 convictions as person felonies contrary to State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). The court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed. Before Newton filed his opening appellate brief, Keel overruled Murdock I . Adapting, he claimed his sentence was illegal for two other reasons: (1) his 1977 California robbery conviction could not be classified as a person felony without engaging in improper fact-finding in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000) ; and (2) the district court improperly imposed mandatory lifetime postrelease supervision. The panel rejected both arguments. State v. Newton , No. 116098, 2017 WL 3113025 (Kan. App. 2017) (unpublished opinion). As to Newton's criminal history score, applying Vandervort the panel held the district court properly scored his California conviction as a person felony. In doing so, it noted Kansas law classifies robbery as a person offense, but that California's robbery statute is broader than the Kansas crime because it includes threats to a person or property. Nevertheless, the panel held the crimes were similar enough in the nature and type of criminal conduct covered so the district court did not err. 2017 WL 3113025, at *2. The panel further concluded the classification did not violate Apprendi and then rejected his second issue regarding postrelease supervision. 2017 WL 3113025, at *2-3. Newton petitioned for review. While review was pending, we decided State v. Wetrich , 307 Kan. 552, 562, 412 P.3d 984 (2018), which held the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime to be comparable to an offense under the Kansas criminal code within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3). We granted review of Newton's criminal history challenge but denied review of his postrelease supervision argument. In our review order, we directed the parties to respond to the Wetrich development, which they did. Newton agrees Wetrich controls, but the State disagrees. It notes in 2017 the Legislature amended the statute authorizing corrections of illegal sentences to provide that "a change in the law that occurs after the sentence is pronounced" does not render that sentence illegal. K.S.A. 2018 Supp. 22-3504(3) ; L. 2017, ch. 62, § 9. The State characterizes Wetrich as a change in the law and maintains the 2017 amendment operates retroactively to Newton's 2014 motion to correct an illegal sentence. Newton responds Wetrich did not change the law, and even if it did, the statutory revision should not apply retroactively because that would create several constitutional issues, such as violating the Ex Post Facto Clause of the United States Constitution. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). ANALYSIS Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a prior out-of-state conviction must be classified as either a "person" or "nonperson" crime. K.S.A. 21-4711(e) provides: "Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime . Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence." (Emphasis added.) In Murdock II , the district court sentenced the defendant three times. The second was in response to our mandate after Murdock I . The district court followed that mandate, and the State did not appeal and the second sentence became final. Six months later, we decided Keel , which overruled Murdock I . A few days after that, the State moved to correct Murdock's sentence based on Keel , and the district court sentenced him for the third time. The Murdock II court reversed, repudiating the State's effort at a third sentencing. The Murdock II court held: "[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307. At the time Newton was sentenced, Kansas caselaw construed K.S.A. 21-4711(e) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." Vandervort , 276 Kan. at 179, 72 P.3d 925. "[T]he comparable offense" was "the closest approximation" to the out-of- state crime. 276 Kan. at 179, 72 P.3d 925. In Murdock II 's wake, he cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal. Affirmed. Luckert, J., not participating. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,098 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.

The opinion of the court was delivered by Rosen, J.: Thomas Jenkins appeals from his convictions for first-degree murder, two counts of aggravated burglary, theft, three counts of criminal threat, two counts of domestic battery, and criminal restraint. Finding no error on the part of the trial court, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On June 13, 2009, at approximately 6 a.m., officers responded to a call about potential burglaries of two different apartments in a complex at 1012 Johnstown in Salina, Kansas. When the officers arrived, Benjamin Friedman informed them that someone had burglarized his apartment and stolen some of his electronics. The officers inspected a second apartment, occupied by Alfred Mack and Jason Hartfield, and noticed damage to the front door. Upon entering that apartment, the officers found Mack's body lying on the floor. Mack had been killed by a gunshot wound to his chest. The State theorized that Thomas Jenkins colluded with Willie Parker, Justin Letourneau, and Travis Graham to burglarize Mack's and Friedman's apartments and that Parker shot and killed Mack as Parker and Jenkins carried out the burglary in Mack's apartment. The State charged Jenkins with first-degree murder under theories of premeditation and felony murder, solicitation to commit first-degree murder, two counts of aggravated burglary, and theft. The State also charged Jenkins with three counts of criminal threat, two counts of domestic battery, and criminal restraint based on events that took place after June 13, 2009. The facts supporting those charges are as follows: On June 12, 2009, at 10 p.m., Mack and Hartfield were both at home. At 12:30 a.m., a Pizza Hut employee delivered a food order to their apartment. The employee testified that there was nothing unusual about Mack's front door. Hartfield ate with Mack and left the apartment around 12:45 a.m. On the same evening, Friedman went to a movie with his girlfriend around 9 p.m. and then returned home to his apartment. When he arrived home, he had three house guests-Todd Gribble, Jacob Ward, and Logan Bohochik. Friedman was in bed by 12 a.m. At 2:09 a.m., officers responded to a call about a loud party at Friedman's apartment. Gribble and Ward left after the officers arrived. The officers left the apartment at 2:35 a.m. and Bohochik locked the front door and went to bed in one of the bedrooms. Gribble, Ward, and Bohochick all testified that Friedman's television, movies, and gaming equipment were in the apartment when they left or went to bed. Nathanial Johnson lived with Donyell Smith in another apartment in the same complex. Fifteen to twenty minutes after the police left Friedman's apartment, Johnson saw Jenkins outside his apartment window and went to speak with him. During the conversation, Jenkins pointed towards an open sliding door on the balcony of Friedman's apartment. Johnson told Jenkins that the people who lived there had been partying and were probably asleep. Smith testified that sometime after the police left Friedman's apartment and before she went to bed, she saw Jenkins with a black man and a white man outside the apartment she shared with Johnson. Parker is black; Letourneau and Graham are white. Shortly after 4:45 a.m. on June 13, Friedman heard a loud bang and someone rushing down some stairs. Friedman went to his living room and noticed the sliding door to the balcony was open. He also noticed his flat screen television, some DVDs, some video games, his PlayStation 3, and his car keys (to a car that did not run) were missing. Friedman later found his keys in his vehicle. After discovering his property was missing, Friedman went to the front door of Mack's apartment and noticed it looked like someone had shattered the door lock. He knocked on Mack's door, but no one answered. Friedman called 911 at 5:17 a.m. Officers arrived at Mack's apartment sometime between 5:55 and 6 a.m. Mack's door was not completely shut, there was a shoeprint on the door, and the strike plate was on the ground. The letters in the shoeprint spelled "Servus." When the officers knocked on the door, it opened, and they saw Mack's body on the floor. Upon entering, one of the officers observed a single shell casing from a .22 caliber bullet just inside the door. At trial, the State tried to establish that Jenkins had decided to break into Mack's apartment the day before Mack's death to steal money and drugs. Stanley McSwain testified that the day before Mack's death, McSwain and Charles Bates were with Jenkins. McSwain heard Bates tell Jenkins "I've got a lick for you." McSwain understood this to mean "a way to get over on somebody." Bates said that "the lick" was on Johnstown and the occupants would be out of town for a concert. McSwain understood Bates to be referring to the Johnstown apartment complex. An investigator testified that McSwain told him Bates had provided this information because Jenkins had been telling the men that he was worried about money. The investigator also testified that Bates wanted a television in return for the tip. Bates denied having this conversation or meeting with Jenkins and McSwain when he testified at trial. The State argued to the jury that Jenkins had kicked in Mack's door to facilitate the burglary. It used statements and testimony from Kendra Jenkins (Kendra), Jenkins' wife, to support this argument. At trial, the State introduced a pair of boots with a sole that spelled "Servus"-the same marking in the footprint on Mack's door. Kendra testified that Jenkins wore a pair of identical boots when he worked at Russell Stover. An investigator testified that Kendra told her Jenkins tried to burn his work boots a few days after Mack's death. The State built much of the remainder of its case on comments that Kendra made during police interviews and on the testimony of Hassan Williford, the father of Kendra's son. An investigator testified that Kendra told her that on June 13, Jenkins, Parker, and Letourneau were at her house when she arrived home sometime after 2 a.m. with her friend, Jackie Colvin. Kendra and Colvin eventually left and met up with Williford. The three of them made various stops before Kendra and Williford parted ways with Colvin and went for a drive. Sometime between 4 and 5 a.m., Kendra received a phone call. She told Williford he needed to be quiet because it was Jenkins calling. Williford testified that he could hear both sides of the conversation during this phone call because the volume was on the loudest setting. Williford heard Kendra ask the person on the phone what he was doing, and the person responded "sitting outside the place" and that "he had to get off the phone because he was-he was about to go handle what he had to handle and he'd call her back when he got done." The person called back 15 to 20 minutes later. Williford testified that Kendra asked the caller if he had done what he was going to do, and the caller said " '[y]eah, that he got some miscellaneous objects from whatever he was going to do, and for her to meet him back at the house because they had to get rid of some things.' " Williford also heard the person say that " '[s]ome things got kicked off but I took care of the situation.' " Kendra returned home from her drive with Williford sometime between 6 and 7 a.m. and saw Jenkins, Parker, and Letourneau in her living room. Kendra went to bed and, when she woke up, the men were not there. Kendra confirmed the occurrence of some of these events during her trial testimony, but could not recall them all, and remembered some of them differently. Colvin eventually confirmed that she had been with Kendra and Williford on June 13, but she first told investigators that Jenkins had been with her and Kendra from the time the women returned home from the bars until 5 or 6 a.m. One of investigators testified that Colvin told him she lied because Jenkins "needed an alibi." Colvin testified that she lied because Kendra had asked her to but also because she thought her husband would be less angry if she was out with a married couple. Kendra Yanik-Ducharme, the common-law wife of Letourneau, and Tiffany Wellman, the mother of Parker's son, also testified for the State. Yanik-Ducharme testified that Letourneau woke her in the morning of June 13 when it was still dark outside and he had television and a PlayStation 3 with him. The television remained at her house for a few days and then Parker and Letourneau took it to Wichita. At the time of Mack's death, Parker lived with Wellman. Wellman testified that when she woke up on June 13, Parker, Letourneau, and maybe Letourneau's brother, Travis Graham, were at her house. Parker and Letourneau eventually left but returned later in the day with a PlayStation and movies. On June 19, 2009, police received a new lead. On that day, an officer was dispatched to Salina Regional Health Center, where she found Letourneau unresponsive in the passenger seat of a car. Parker was standing by the car and told the officer that he had killed Letourneau. Police obtained a warrant to search the car and Parker's house. An evidence technician found a .22 Super X cartridge case in the car. When an officer searched Parker's residence, he found .22 caliber Super X shells and a PlayStation 3. The serial number on the PlayStation matched the serial number on the PlayStation removed from Friedman's apartment. At trial, a forensic scientist of the KBI lab would testify that the cartridge case at Mack's apartment and the cartridge case in the car were fired from the same gun. An investigator interviewed Jenkins on June 27, 2009. Jenkins told the investigator that he was close to Letourneau and Parker and he also knew Graham and Bates. Jenkins stated that his last job had been three weeks earlier, at Russell Stover. When questioned about his activities on June 12 and June 13, Jenkins said he had been home when Colvin and Kendra returned from the bars around 1:30 a.m. and that the three of them then left together to get Kendra's car from the bar. Jenkins told the investigator that they all returned home and then Kendra and Jackie left again. Jenkins said that Letourneau and Parker came over to his house on June 13, 2009. Jenkins also stated that he did not know Mack and did not know where Johnstown Street was. On September 14, 2009, Kendra contacted the police and told them she had recently decided to leave Jenkins and feared for the lives of herself, her son, and her parents. She described several incidents that had occurred since Mack's death. On August 12, 2009, Jenkins pulled her out of a car by her hair and demanded she contact police and tell them she had lied to them. In late August, Jenkins punched Kendra in the mouth when he discovered her journal. Jenkins called her a "snitch bitch" because of the things she had written in the journal. Sometime after June 13, but before she contacted police, Jenkins locked Kendra and her son in a closet because of "the information that she knew regarding the Al Mack homicide." Jenkins had friends come over after he locked Kendra in the closet because "she was going to turn him in for the information that she knew" and he wanted the friends "to hear what she was going to tell the police so then that way if he was arrested or whatnot somebody knew that it was her that had snitched on him." During the same period, Jenkins also threatened to kill Kendra and her son and told Kendra's son that he was going to kill his mommy. These incidents would serve as the basis for the State's charges of criminal threat, domestic battery, and criminal restraint. The State filed a complaint against Jenkins on October 12, 2009. On March 21, 2011, a jury found Jenkins guilty of first-degree murder under theories of premeditation and felony murder, of aggravated burglary of Mack's apartment, aggravated burglary of Friedman's apartment, theft of the items missing from Friedman's house, two counts of criminal threat against Kendra, one count of criminal threat against Kendra's son, two counts of domestic battery against Kendra, and one count of criminal restraint of Kendra. The district court sentenced Jenkins to life imprisonment with the possibility of parole in 20 years for the first-degree murder conviction. The district court imposed prison sentences of 136 months and 34 months for the two aggravated burglary convictions, 6 months for the theft conviction, and 6 months for each the three criminal threat convictions, all to run consecutive to the murder conviction. For the two convictions of domestic battery and one conviction of criminal restraint, the district court sentenced Jenkins to jail time for periods of 6 months, 6 months, and 12 months, to run concurrent with the other convictions. Jenkins appealed. Juror Misconduct On December 30, 2011, while the case was on appeal, the prosecutor in Jenkins' case sent a letter to Jenkins' trial counsel and Jenkins' appellate counsel informing them that, on December 20, 2011, she had received a poinsettia, some chocolates, and some cards from one of the jurors (G.M.) in Jenkins' case. The prosecutor's investigator returned the gifts and notes to G.M. along with a letter from the prosecutor explaining that she had received the gifts but could not keep them because he had been a juror in the case. On January 17, 2012, Jenkins filed a motion in this court to "suspend briefing schedule and to remand to the district court for purposes of a hearing on juror misconduct." We retained jurisdiction and granted the motion on January 30, 2012. In February 2012, G.M. left a message with the receptionist in the prosecutor's office wishing the prosecutor a Happy Valentine's day. The district court held a hearing on May 31, 2012. It heard testimony from the prosecutor; G.M.; and Michael Rogers, an investigator with the Saline County Attorney's office. The prosecutor testified about the correspondence and gifts she had received from G.M. She explained that she had no contact with G.M. during the trial and did not see him again until September 2011, when she was trying another case and saw G.M. in the hallway of the courthouse. G.M. testified that he and his wife split up in June 2011 and he saw the prosecutor in the courthouse when he was waiting for his divorce lawyer. G.M. testified that he had no feelings for the prosecutor during the trial and showed her side no favoritism. Based on this testimony, the district court found there was no evidence of juror misconduct. In February 2013, the prosecutor sent another letter to trial and appellate counsel informing them that G.M. had again sent her flowers and chocolates. On April 19, 2013, on Jenkins' motion, we again retained jurisdiction and remanded the case to the district court for another determination on whether juror misconduct had occurred. At the second hearing, the district court once more heard testimony from the prosecutor and G.M. G.M. testified that he did not begin to think about being friends with the prosecutor until after the trial was over and that feelings for the prosecutor had not influenced his verdict in the case. Defense counsel informed the court that he had an investigator contact seven other jurors about potential juror misconduct and that none of the jurors felt the integrity of the verdict had been compromised. The district court again concluded there was no evidence of juror misconduct. Retrospective Competency Hearing On September 22, 2014, while his appeal was pending, Jenkins filed a motion in this court "for an order to show cause, or, in the alternative, a remand to the district court, or in the alternative, of clarification." The motion explained that Jenkins had moved for a competency determination before his trial when a letter he wrote prompted jail officials to put him on suicide watch. Jenkins asked this court for an order to show cause why his convictions should not be vacated or, in the alternative, to remand to the district court for clarification on whether there had been an order on his competency. On October 6, 2014, we retained jurisdiction and remanded the case to the district court to resolve the competency issue. The district court apparently concluded that no competency determination had been made and held a hearing to decide whether a retrospective determination was feasible. The court heard testimony from Pam Bantam-Cooper, the psychologist who conducted a competency evaluation on Jenkins when he initially moved for the competency determination; an expert psychologist; a nurse at the jail where Jenkins was held; the judge who presided over Jenkins' trial; the prosecutor in Jenkins' case; and Jenkins' trial counsel. The court found that a retrospective competency determination was feasible and that Jenkins had been competent at the time of his trial. On appeal, Jenkins presents three issues: (1) the evidence was insufficient to support his convictions of first-degree murder, two counts of aggravated burglary, and theft; (2) the district court erred when it found no evidence of juror misconduct; and (3) the district court erred when it concluded that a retrospective competency hearing was feasible. We address each issue in turn. ANALYSIS Sufficiency of the Evidence Jenkins argues there was insufficient evidence to support his convictions of aggravated burglary, theft, and first-degree murder. When a defendant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State and uphold the conviction if we are convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh the evidence or pass on the credibility of witnesses. State v. Brown , 306 Kan. 1145, 1157, 401 P.3d 611 (2017) (quoting State v. Potts , 304 Kan. 687, Syl. ¶ 1, 374 P.3d 639 [2016] ). " '[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.' " Brown , 306 Kan. at 1157, 401 P.3d 611 (quoting State v. Rosa , 304 Kan. 429, Syl. ¶ 2, 371 P.3d 915 [2016] ). Aggravated burglary is "without authority, entering into or remaining within any ... [d]welling in which there is a human being, with intent to commit a felony, theft, or sexually motivated crime therein." K.S.A. 2017 Supp. 21-5807(b). Theft is "with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services ..., [o]btaining or exerting unauthorized control over property or services." K.S.A. 2017 Supp. 21-5801. First-degree murder, under the theories of premeditation and felony murder, is the killing of a human being committed "[i]ntentionally, and with premeditation; or ... in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2017 Supp. 21-5402(a). Aggravated burglary is an inherently dangerous felony under the statute. K.S.A. 2017 Supp. 21-5402(c)(1)(J). "A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime." K.S.A. 21-3205(1). The district court instructed the jury on each of these crimes and on the theory of aiding and abetting. The jury found Jenkins guilty of aggravated burglary for entering Mack's apartment with the intent to commit a theft therein, aggravated burglary for entering Friedman's apartment with the intent to commit a theft therein, theft of the PlayStation 3, flat screen television, movies, and DVDs from Friedman's apartment, and first-degree murder under theories of premeditation and felony murder for the death of Mack. Jenkins does not argue that the State failed to show any one element of any of these crimes; he simply makes a general assertion that the evidence was too weak to support the convictions. We disagree. At the very least, when viewed in a light most favorable to the State, there was sufficient evidence to establish that Jenkins aided or abetted Parker and Letourneau in committing the aggravated burglaries and theft, and that Parker shot and killed Mack during the commission of the aggravated burglary in Mack's apartment. Through witness testimony, the jury heard that the day before Mack died, Jenkins had been expressing worry about his financial situation and Bates told him that he could steal money and drugs from an apartment in the Johnstown complex because the occupants would be out of town. Johnson testified that he talked to Jenkins outside these apartments at approximately 2:50 a.m. and, when Jenkins commented on an open door to Friedman's apartment, Johnson told him that the people there had been partying and were probably asleep. The evidence established that the crimes occurred shortly after 4:45 a.m. The State introduced testimony that Kendra received a phone call from Jenkins between 4 and 5 a.m. to report that he was "sitting outside the place" and had to get off the phone because he was "about to go handle what he had to handle and would call her back when he got done." Williford testified that 15 to 20 minutes later, Jenkins called Kendra again and said he had done what he was going to do and "got some miscellaneous objects" and told Kendra to meet him back at the house because they "had to get rid of some things." Williford testified that Jenkins also said that "[s]ome things got kicked off" but he "took care of the situation." Various witnesses testified that Jenkins, Parker, and Letourneau were together before and after the burglaries. Yanik-Ducharme testified that Parker and Letourneau had a television and a PlayStation 3 on the morning on June 13, and Wellman later saw the PlayStation 3 and some DVDs at the residence she shared with Parker. Officers found the PlayStation 3 when they searched Parker's residence and matched it to the serial number on the PlayStation 3 missing from Friedman's apartment. Kendra told investigators that Jenkins tried to burn his work boots a few days after Mack's death. At trial, when the State introduced a pair of boots that had a sole matching the boot print on Mack's door, Kendra testified that the boots looked like Jenkins' work boots. Police also found a .22 caliber shell casing at the scene of Mack's murder and in the car where Letourneau was found after he had been shot. A forensic scientist testified that those casings were fired from the same weapon. Parker admitted to killing Letourneau, and officers found .22 caliber Super X shells in his residence. The jury also heard that Jenkins had threatened Kendra and her son on more than one occasion, allegedly because of the information that Kendra knew about the events of June 13, 2009. Based on this evidence, a reasonable jury could find that Jenkins learned information about Mack's and Friedman's apartments, colluded with Parker, Letourneau, and possibly Graham to burglarize the apartments and steal property from within, and kicked in Mack's door to facilitate the burglary of his apartment. It was also reasonable for the jury to find that Parker shot and killed Mack during that aggravated burglary. We conclude that the evidence was sufficient to find Jenkins guilty of first-degree murder of Mack, aggravated burglary of Mack's and Friedman's apartments, and theft. Juror Misconduct Next, Jenkins asserts that a juror developed romantic feelings for the prosecutor during the trial and those feelings swayed the juror's verdict, depriving Jenkins of his Sixth Amendment right to a fair trial. Jenkins argues the district court abused its discretion when it found that juror misconduct did not occur and urges this court to find that juror misconduct occurred, to conclude it deprived him of a fair trial, and to order a new trial. When considering whether a new trial is warranted based on juror misconduct, the trial court first considers whether juror misconduct created a fundamental failure in the proceeding. State v. Corey , 304 Kan. 721, 730, 374 P.3d 654 (2016). If a fundamental failure occurred, the trial court moves to the second step and considers whether the party benefitting from the failure has shown the trial can continue without an injustice, meaning the party has shown beyond a reasonable doubt that the failure did not affect the outcome of the trial. Corey , 304 Kan. at 730-31, 374 P.3d 654 (citing State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 [2011], cert. denied 565 U.S. 1221, 132 S.Ct. 1594, 182 L.Ed.2d 205 [2012] ). An appellate court reviews the trial court's decision in two parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of discretion. Corey , 304 Kan. at 730, 374 P.3d 654. The trial court abuses its discretion if its decision "(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." Ward , 292 Kan. at 550, 256 P.3d 801. As for the second question-whether any failure resulted in injustice-an appellate court does not review the district court's decision for abuse of discretion but considers the entire record and performs its own constitutional harmless error review. Corey , 304 Kan. at 731, 374 P.3d 654. The Sixth Amendment right to jury trial and the Fourteenth Amendment right to due process guarantee criminal defendants the right to a fair and impartial jury. Morgan v. Illinois , 504 U.S. 719, 727-28, 112 S.Ct. 2222, 119 L.Ed. 2d 492 (1992). Juror misconduct can impair this right and result in a fundamental failure in the trial. See Corey , 304 Kan. at 732-34, 374 P.3d 654 (concluding there was a fundamental failure in the trial when a juror considered information outside the evidence). Generally, juror misconduct describes "communications with jurors from outsiders, witnesses, bailiffs, or judges; and actions by jurors in the unauthorized viewing of premises, or reading of newspaper articles." State v. Fenton , 228 Kan. 658, 664, 620 P.2d 813 (1980). The term also applies when a juror deceives the court about his or her familiarity with other jurors, witnesses, the parties, or the facts of the case. See, e.g., State v. Jenkins , 269 Kan. 334, 338-39, 2 P.3d 769 (2000) (juror misconduct impaired right to fair trial when juror failed to reveal her son had been murdered and that the State's police witnesses helped prosecute son's murderer). Here, G.M. began sending the prosecutor letters, chocolates, and flowers approximately nine months after the jury returned a verdict. The district court twice considered whether this constituted juror misconduct and twice concluded that it did not. Jenkins argues that the district court abused its discretion both times because no reasonable person would have agreed with its decision. We are not persuaded. At the hearings, the district judge heard testimony from the prosecutor and G.M. The prosecutor testified she only knew G.M. because he served as a juror in this case. She testified G.M. made no contact with her during the trial and only started to send her letters and other items after seeing her in the hallway of the courthouse in September 2011. G.M. testified to the same. He also testified he had no feelings for the prosecutor during the trial, showed no bias in the State's favor, and relied on only the evidence to come to a verdict. We conclude that the district court did not abuse its discretion when it found that no juror misconduct had occurred. G.M. had no personal relationships with the other jurors, the attorneys, or the defendant. The testimony revealed that G.M. did not contact the prosecutor until well after the trial had ended, and that he based his verdict on the evidence. A reasonable person could agree that G.M.'s actions did not constitute misconduct. Because the district court did not abuse its discretion when it concluded that no juror misconduct occurred, there was no fundamental failure in the trial and no need to move to the second step of the analysis. Accordingly, Jenkins' challenge fails. Retrospective Competency Hearing Finally, Jenkins argues the district court erred when it found that it could retrospectively determine whether he was competent to stand trial. We review the district court's decision on the feasibility of a retrospective competency hearing for an abuse of discretion. "A judicial decision amounts to an abuse of discretion when a decision is (1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, (3) or based on an error of fact." State v. Ford , 302 Kan. 455, 473, 353 P.3d 1143 (2015). " 'The Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial.' " Ford , 302 Kan. at 461, 353 P.3d 1143 (quoting Medina v. California , 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed. 2d 353 [1992] ). To prevent prosecution of incompetent defendants, K.S.A. 22-3302 requires that the court suspend proceedings and hold a hearing on the defendant's competency "[i]f, upon the request of either party ... the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial." If the court fails to suspend the proceedings and conduct a competency hearing, a retrospective hearing may rectify the error. Ford , 302 Kan. at 471-72, 353 P.3d 1143. To determine whether it is feasible to retrospectively determine the defendant's competency at the time of the trial, the court considers the following four factors, called the McGregor factors: " '(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials. [Citation omitted.]' " Ford , 302 Kan. at 471, 353 P.3d 1143 (quoting State v. Davis , 281 Kan. 169, 181, 130 P.3d 69 [2006], overruled on other grounds by Ford , 302 Kan. 455, 353 P.3d 1143 ). If the court determines a retrospective competency determination would not be feasible, "the procedural violation compels reversal." Ford , 302 Kan. at 472, 353 P.3d 1143. The district court here concluded that factors one, two, and four weighed in favor of feasibility. It passed no judgment on factor three because the parties presented no evidence on this factor. Based on its conclusions, the court ruled that a retrospective competency hearing was feasible. We conclude that the district court acted within its discretion. Factor 1: The passage of time When a great amount of time has passed since the defendant's trial, it is less likely that a court can retrospectively determine whether the defendant was competent at the time of the trial. McGregor v. Gibson , 248 F.3d 946, 963 (10th Cir. 2001). Contemporaneous medical evidence, or the lack thereof-the focus of the second factor-can shift this factor one way or the other. Ford , 302 Kan. at 473, 353 P.3d 1143 ; State v. Murray , 302 Kan. 478, 485, 353 P.3d 1158 (2015). If this evidence is available, the passage of time is not as detrimental. Ford , 302 Kan. at 473, 353 P.3d 1143 (existence of contemporaneous competency evaluation negated effect of 17 years that passed between trial and retrospective competency determination). But in its absence, even the passage of a short amount of time can signify that a retrospective decision is not feasible. Davis , 281 Kan. at 183, 130 P.3d 69 (concluding that three years between trial and retrospective competency determination was significant when there was a complete lack of contemporaneous medical evidence); see also McGregor , 248 F.3d at 963 (11 years between trial and competency determination, coupled with lack of contemporaneous medical evidence, weighed heavily against conclusion that the retrospective determination was feasible). This factor supports the district court's determination that the retrospective competency determination was feasible. Approximately four years and seven months passed between Jenkins' motion to determine competency and the district court's competency hearing. This is less time than that which passed in McGregor and Ford . And, as in Ford , the trial court here had the advantage of contemporaneous medical evidence and testimony from people who interacted with Jenkins during and after the trial. Jenkins disagrees. He argues that this factor does not support the district court's conclusion because the length of time that passed between his trial and his competency hearing negatively affected Bantam-Cooper's memory. When testifying, Bantam-Cooper reviewed a copy of the competency evaluation form she had completed when she conducted the evaluation. Some questions were left unanswered, and, when prompted, Bantam-Cooper could not remember if they were blank because she had not asked those questions or for some other reason. Bantam-Cooper also could not remember if she had completed another competency evaluation form or just the one submitted as evidence during the hearing. We find Jenkins' argument unconvincing. The few details that Bantam-Cooper was unable to recall did not prevent her from remembering most of what she learned during her evaluation. And, even if those details hampered her testimony, the court had the advantage of Bantam-Cooper's written evaluation and testimony from the other witnesses. We agree with the district court's conclusion that this factor favors feasibility. Factor 2: Availability of contemporaneous medical evidence In Ford , the second factor weighed in favor of feasibility when there was a contemporaneous competency evaluation that noted the defendant's psychiatric history and detailed his ability to understand the proceedings and their consequences and assist in his own defense. Ford , 302 Kan. at 473, 353 P.3d 1143. In Murray , the availability of a doctor's contemporaneous competency determination swayed this factor in favor of the State, even though the written explanation was brief and the doctor did not clarify which test he used in conducting the evaluation. 302 Kan. at 485-86, 353 P.3d 1158. The defendant contended that the lack of certain details in the competency determination and the doctor's failure to identify which test he used rendered the medical evidence unhelpful. We disagreed, based on our observation that there is no statutory requirement that an expert perform any evaluation. 302 Kan. at 486, 353 P.3d 1158. Again, we conclude that this factor supports the district court's ruling. The court had a plethora of contemporaneous medical evaluation at its disposal. Bantam-Cooper, a licensed psychotherapist, performed a competency evaluation when Jenkins first requested a competency determination. At the competency hearing, the parties provided a copy of the questionnaire Bantam-Cooper used and a letter that detailed her final conclusion that Jenkins was competent to stand trial. The court also had the questionnaire Bantam-Cooper used to evaluate Jenkins' risk of suicide with Bantam-Cooper's notes about Jenkins' answers to the questions, a letter from Bantam-Cooper to the jail detailing her final conclusions about Jenkins' risk of suicide, and the letter Jenkins wrote that compelled the suicide watch. Finally, Bantam-Cooper was present to testify about her evaluations. Jenkins insists that this factor weighs against feasibility because the written questionnaire Bantam-Cooper used to conduct her competency evaluation was incomplete. While Jenkins is correct that the form is incomplete, as we noted in Murray , there was no statutory requirement that an expert perform any evaluation, let alone perform it in a certain way. The district court here had at least as much contemporaneous medical evidence before it as did the district courts in Ford and in Murray . For this reason, we conclude the second factor weighs in support of the district court's conclusion. Factor 3: Availability of defendant's statements in trial record Because the parties presented no evidence regarding this factor, we do not include it in our review. Factor 4: Availability of witnesses The final factor strongly supports the district court's ruling. Six witnesses, all of whom had interaction with Jenkins around the time of his trial, testified during the hearing: the nurse at the jail where Jenkins was held, Jenkins' trial attorney, the prosecutor, the judge who presided over Jenkins' trial, Bantam-Cooper, and an expert psychologist. The testimony of Jenkins' trial counsel was especially helpful. As we noted in Ford , " '[d]efense counsel is often in the best position to determine whether a defendant's competency is questionable.' " 302 Kan. at 474, 353 P.3d 1143 (quoting McGregor , 248 F.3d at 960 ). Jenkins argues that the witness' testimony did not assist the court in making a retrospective determination because the facts contradicted their assertions that Jenkins was competent to stand trial. Essentially, Jenkins argues that the falsehood of the witness' testimony makes a retrospective competency hearing unfeasible. We are not persuaded by Jenkins' argument. The veracity of a witness' testimony is not the proper measure for considering whether this factor weighs for feasibility. The proper measure is the availability of the testimony. Furthermore, Jenkins is making a credibility argument, and it is not our role to assess the credibility of a witness. State v. McReynolds , 288 Kan. 318, 326, 202 P.3d 658 (2009). The district court was able to hear testimony from multiple witnesses who interacted with Jenkins before, during, and after his trial. As a result, this factor weighs heavily in support of its conclusion that a retrospective determination was feasible. Based on our review of the evidence presented, the district court did not abuse its discretion when it concluded it could make a retrospective competency determination on Jenkins' competency at the time of his trial. Affirmed.

Powell, J.: Francisco Pardo brings this appeal challenging the constitutionality of K.S.A. 2014 Supp. 44-510d(b)(23) as applied to his workers compensation claim. This statute mandates that for all work-related injuries after January 1, 2015, the Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (6th ed. 2008) must be used in rating a work-related injury to determine a worker's amount of compensation. In 2013 Pardo injured his shoulder in a work-related accident. In March 2015 Pardo injured the same shoulder in another work-related accident. This second injury was unrelated to his first injury and was located in a completely different place on his rotator cuff. Both his own doctor and his employer's doctor determined that Pardo had an additional permanent partial impairment above and beyond the impairment rating he received from his 2013 rotator cuff injury. However, the Sixth Edition mandates that if an individual previously has received an impairment rating on a shoulder, then no subsequent impairment rating may be assessed on the same shoulder. This requirement forced both doctors to issue a 0% impairment rating on Pardo's new and distinct shoulder injury even though they both testified that this was a medically inaccurate and insufficient rating for Pardo's new injury. An administrative law judge (ALJ) for the Division of Workers Compensation issued a zero award for Pardo's new permanent partial impairment as required by the Sixth Edition, and the Workers Compensation Board (Board) affirmed this award. For reasons we more fully explain below, we agree with Pardo that as applied to him, mandatory use of the Sixth Edition is unconstitutional as it denies him a remedy guaranteed by the Kansas Constitution. Accordingly, we reverse the Board's denial of an award for Pardo's permanent partial impairment and remand the matter for reconsideration under the Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1995). FACTUAL AND PROCEDURAL BACKGROUND The facts in this case are not disputed. Pardo has been employed by United Parcel Service, Inc. (UPS) for 13 years and continues to work for UPS today. As a part of his job duties Pardo operates tractor-trailers, picks up and delivers loads, and works in the yard with a spotter. A spotter is a piece of equipment that remains in the yard and is used to move trailers to different locations onsite. On March 18, 2015, in the course of his job duties, Pardo was climbing onto the spotter when he slipped on oil and grease buildup. Pardo was holding onto the spotter's railing with his left arm when he fell, jerking his left arm. Pardo testified he felt a pop and pull in his left shoulder. Pardo immediately reported the incident and was sent for medical treatment. Pardo had previously injured his left shoulder in the course of his job duties in July 2013. As a result of that injury, Pardo underwent arthroscopic surgery with board certified orthopedic surgeon Dr. Mark Rasmussen on August 29, 2013. Dr. Rasmussen repaired a partial thickness rotator cuff tear and performed an extensive labrum repair. Dr. Rasmussen released Pardo to full work duty and assessed an impairment rating of 10% to Pardo's left shoulder based on the labral pathology and the partial thickness rotator cuff tear. This injury was settled for an agreed-upon 15% permanent partial impairment rating even though the UPS doctor assigned Pardo's shoulder a 10% impairment rating. Following the March 2015 accident, Pardo was referred to KU MedWest and was examined by Dr. Rasmussen on April 8, 2015. Dr. Rasmussen noted complaints of pain in the subacromial region of Pardo's shoulder and ordered an MRI. This MRI was inconclusive. Dr. Rasmussen explained an MRI is often inconclusive when a patient had prior surgery because "there can be different pathology abnormalities that are related to previous surgeries." As treatment, Dr. Rasmussen provided a steroid injection in Pardo's shoulder; however, this injection provided minimal relief. Dr. Rasmussen performed a repeat arthroscopic procedure on June 4, 2015. During this procedure, Dr. Rasmussen found labral pathology in Pardo's left shoulder and estimated over half of this pathology was related to Pardo's 2013 surgery. Dr. Rasmussen also found a new partial thickness rotator cuff tear. He testified that, within a reasonable degree of medical certainty, this tear was a new finding and related to Pardo's March 2015 accident. He explained this new tear was in a different location than the one repaired in 2013 and "was not in direct connection with the original tear." Dr. Rasmussen surgically repaired the new tear in addition to performing an acromioplasty to help resolve impingement of the rotator cuff. In addition to the rotator cuff injury, Pardo also suffered a labrum tear, which was also surgically repaired, and bicep tendinitis. Pardo continued to follow up with Dr. Rasmussen after surgery. Although Pardo continued to complain of pain and limited range of motion, Dr. Rasmussen released him to full work duty on August 26, 2015. Pardo's range of motion continued to diminish, and he returned to Dr. Rasmussen in October 2015. Dr. Rasmussen observed that Pardo's range of motion findings at this exam were inconsistent with his previous range of motion measurements and noted this discrepancy could have been because Pardo was performing relatively strenuous work duties. Pardo again returned to Dr. Rasmussen in November 2015. Pardo's range of motion was greatly improved but was not normal. Pardo complained of hand pain, some headaches, and continuing left shoulder pain, particularly with overhead activity. Dr. Rasmussen believed the cause of Pardo's continuing pain was the March 2015 work accident. Dr. Rasmussen released Pardo at maximum medical improvement (MMI) on November 23, 2015, noting that Pardo felt he was ready to be released. On December 17, 2015, at Pardo's counsel's request, Dr. P. Brent Koprivica examined Pardo. The parties stipulated to the admission of Dr. Koprivica's report and records into evidence. According to Dr. Koprivica, Pardo complained of significant ongoing symptoms with his left shoulder, including loss of strength, cramping, straining, and significant ongoing limited motion. Dr. Koprivica reviewed Pardo's medical records and history and performed a physical examination. He noted Pardo was cooperative and demonstrated appropriate pain behaviors and wrote: "There is pain and weakness in the left shoulder during the clinical examination. I would note that there is significant variation in the demonstrated motion today compared to the motion measurements documented by Dr. Rasmussen." Dr. Koprivica found Pardo's March 2015 work injury to be the prevailing factor in Pardo's new left shoulder structural injury, specifically the new partial thickness rotator cuff tear for which arthroscopy was performed. Dr. Koprivica found Pardo to be at MMI but indicated he would need future medical treatment. Dr. Koprivica wrote: "Of note, Mr. Pardo clearly has new objective structural physical impairment based on evidence at the time of surgery of new partial-thickness rotator cuff injury that has been treated. There is new impact on activities of daily living based on this, in terms of limiting his tolerance to activities requiring use of his left shoulder. "Despite this fact of clear-cut loss of ability to do activities of daily living, it is outlined on Page 23 in the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, 'Rating permanent impairment by analogy is permissible only if The Guides provide no other method for rating objectively identifiable impairment.' "In the case, the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, does specifically address Mr. Pardo's clinical situation. As Dr. Rasmussen has outlined throughout the contemporaneous records, the presentation of impairment based on the March 18, 2015, injury suggested rotator cuff etiology. At the time of surgery, a partial-thickness rotator cuff tear was identified. "As specifically noted in Table 15-5 on Page 402, in the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, regarding the shoulder regional grid for upper extremity impairments, for a rotator cuff injury, with a partial-thickness tear with history of painful injury, with residual symptoms without consistent objective findings, a zero to two (0 to 2) percent upper extremity impairment is assigned as the range of impairment. However, it is specifically noted 'This impairment can only be given once in an individual's lifetime.' In Mr. Pardo's case, he has already had a fifteen (15) percent upper extremity impairment assigned for the partial-thickness rotator cuff tear associated with his prior claim on July 11, 2013. According to the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Addition, a zero (0) percent impairment is assigned based on strict interpretation of the text. "If one looked at an assignment of impairment using the American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition, the typical impairment rating, excluding the prior fifteen (15) percent impairment, would be an additional ten (10) percent upper extremity impairment based on this injury. "Obviously, this is going to be upsetting for Mr. Pardo in light of the fact that he has suffered a significant new injury that has necessitated surgery with objective structural pathology being identified. He is continuing to be impacted based on reduced ability to perform activities of daily living, but unfortunately, the new statutes requiring the use of the American Medical Association, Guides to the Evaluation of Permanent Impairment, Sixth Edition, allow him no recovery for permanent impairment." On February 22, 2016, Dr. Rasmussen also provided an impairment rating. Using the Sixth Edition, he determined Pardo sustained a 5% impairment to the left upper extremity. Dr. Rasmussen testified the rating related to the March 2015 accident was over and beyond the 10% he assessed for the 2013 accident. Dr. Rasmussen explained the 5% assessment was based on Pardo's partial thickness rotator cuff tear requiring surgery and continuing pain. Dr. Rasmussen admitted, however, that a strict interpretation of the Sixth Edition resulted in a 0% impairment for Pardo because he had received a previous impairment rating. Even if Pardo had no previous impairment, the Sixth Edition would provide a 0% to 2% impairment for Pardo's partial thickness rotator cuff tear and resulting surgery, which Dr. Rasmussen opined was too low. Dr. Rasmussen testified he did not believe 0% to be a fair representation of Pardo's impairment. Further, he stated the Sixth Edition allows only for the most significant pathology to be rated, with a "very small amount" of modification allowed related to any secondary pathology. Dr. Rasmussen agreed the Sixth Edition, unlike the Fourth Edition, does not allow for a physician's skill, experience, expertise, training, or judgment in arriving at a rating. Pardo continues to work for UPS and continues to struggle with pain and weakness in his left arm. He cannot extend his left arm overhead and requires help from his coworkers to perform some of his job duties. On August 17, 2016, an ALJ issued an award denying compensation to Pardo: "The evidence is clear, and [uncontroverted], that [Pardo] suffered a new and distinct injury to the same member, however, to a different location of that member. Under the AMA Guides, 6th Edition, [Pardo] is prevented from receiving compensation where he has previously received compensation on that member." The ALJ also held: "The evidence presented herein, both doctors Rasmussen and Koprivica agree that under the AMA Guides, 6th Edition, [Pardo] is entitled to no permanent partial impairment based upon his occupational accident of March 18, 2015, regardless of any increase he may have suffered under the provisions of the doctor's experience, training, and certifications. Under the law set forth by the Kansas Legislature, the competent medical evidence presented herein, by both doctors Rasmussen and Koprivica, indicate that under the AMA Guides, 6th Edition, [Pardo] receives no additional impairment, since he has once previously received an impairment to the left shoulder." Pardo then sought review of this award by the Board, arguing the statute that requires the application of the Sixth Edition, as applied to him, is unconstitutional. The Board affirmed the award denying compensation, stating that it did not have jurisdiction to rule on Pardo's constitutional challenges. Board Member Thomas Arnhold joined the Board's Order and also authored a concurring order. Arnhold wrote: "In this Board Member's humble opinion, application of the AMA Guides to [Pardo's] case as directed in K.S.A. 2014 Supp. 44-510d(b)(23) denies [Pardo] due process." Arnhold went on to write that not only was the requirement of the Kansas Legislature to calculate an award of workers compensation in accordance with the Sixth Edition not reasonably necessary to promote the general welfare of the state, but also the use of the Sixth Edition made the quid pro quo inadequate. Arnhold concluded that if he "had the authority and jurisdiction to do so, he would declare the portion of K.S.A. 2014 [Supp.] 44-510d(b)(23) requiring use of the AMA Guides [Sixth Edition], as applied to [Pardo], unconstitutional." Pardo timely petitioned this court for judicial review of the Board's order affirming his award. The Kansas Supreme Court denied Pardo's motion to transfer his appeal to the Supreme Court on February 15, 2017. ANALYSIS Pardo brings before us a challenge to the constitutionality of the Kansas Workers Compensation scheme as applied to his situation. In support of his as-applied challenge, Pardo asserts five arguments on appeal: (1) Pardo's award of 0% impairment for his new and unrelated permanent partial impairment, combined with the exclusive remedy rule of the Workers Compensation scheme, denied him due process of law; (2) the mandatory use of the Sixth Edition to determine permanent partial impairment violates the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights ; (3) K.S.A. 2014 Supp. 44-510d(b)(23) is unconstitutional because the adoption of the Sixth Edition constitutes an impermissible legislative predetermination of adjudicatory scientific fact in violation of the separation of powers expressed in Article 2, § 1 and Article 3, § 1 of the Kansas Constitution ; (4) K.S.A. 2014 Supp. 44-510d(b)(23) is unconstitutional because it denies Pardo due process through the determination of ratings and compensation amounts without consideration of his specific circumstances; and (5) the mandatory use of the Sixth Edition mandated by K.S.A. 2014 Supp. 44-510d(b)(23) is unconstitutional as an unlawful delegation of the State's legislative powers to the AMA. We have combined and rearranged Pardo's arguments in our analysis as logic dictates. Because all of Pardo's arguments on appeal challenge the constitutionality of a statute-the standard of review for each issue being identical and recitation of the standard repeatedly for each issue being unnecessary-we recite the standard of review up front only once. "Determining whether a statute violates the constitution is a question of law subject to unlimited review. Under our state's separation of powers doctrine, courts presume a statute is constitutional and resolve all doubts in favor of the statute's validity. A statute must clearly violate the constitution before it may be struck down." Miller v. Johnson , 295 Kan. 636, Syl. ¶ 1, 289 P.3d 1098 (2012). We note that Pardo raised each of his arguments before the Board, but it lacks the authority to rule on the constitutionality of any statute, including K.S.A. 44-501 et seq., the Workers Compensation Act (the Act). All of Pardo's arguments on appeal stem from the Kansas Legislature's amendment of the Act. In 2013, the Legislature amended K.S.A. 44-510d(b)(23). Prior to this amendment, the statute read: "Loss of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein." After this amendment, K.S.A. 2014 Supp. 44-510d(b)(23) read: "Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, shall be determined by using the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein." Interpretation of a statute is a question of law over which we exercise unlimited review. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). Clearly, the amendment of the statute changed the AMA Guides to be used from the Fourth Edition to the Sixth Edition for injuries after January 1, 2015. Therefore, Pardo's award for his March 2015 injury was determined under the Sixth Edition which, according to both Drs. Rasmussen and Koprivica, was zero because he had received a previous award for the 2013 impairment to his left shoulder. Both doctors testified that this was not an adequate award based on Pardo's injury and that under the Fourth Edition, Pardo would receive an award for his work-related injury, although they disagreed on the precise impairment rating. DOES K.S.A. 2014 SUPP . 44-510d(b)(23) VIOLATE PARDO'S SUBSTANTIVE DUE PROCESS RIGHTS ? First, Pardo argues that, as applied to him, the Act is unconstitutional because it denies him substantive due process of law. Specifically, he argues that K.S.A. 2014 Supp. 44-510d(b)(23)'s requirement that the Sixth Edition be used to calculate his award and K.S.A. 2014 Supp. 44-501b(d)'s exclusive remedy mandate violate § 18 of the Kansas Constitution Bill of Rights and the Fourteenth Amendment to the United States Constitution. A. Quid Pro Quo: The History of the Workers Compensation Scheme in Kansas and its Constitutional Foundations. Section 18 of the Kansas Constitution Bill of Rights guarantees an individual's right to a remedy: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law." It has long been held that " '[r]emedy by due course of law,' as used in section 18 of the bill of rights, means the reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing." Hanson v. Krehbiel , 68 Kan. 670, Syl. ¶ 2, 75 P. 1041 (1904) ; see Miller , 295 Kan. at 655, 289 P.3d 1098 (quoting Hanson ); Ernest v. Faler , 237 Kan. 125, 131, 697 P.2d 870 (1985) (same). Additionally, § 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall be inviolate." Both of these rights are fundamental constitutional rights. See Ernest , 237 Kan. at 131, 697 P.2d 870 ; Bourne v. Atchison, T. & S. F. Rly. Co. , 209 Kan. 511, 515, 497 P.2d 110 (1972) ; State v. Larraco , 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004). The Fourteenth Amendment to the United States Constitution states, in pertinent part, that no State shall "deprive any person of life, liberty, or property without due process of law." " ' "Due process" emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.' " Ernest , 237 Kan. at 129, 697 P.2d 870 (quoting Ross v. Moffitt , 417 U.S. 600, 609, 94 S.Ct. 2437, 41 L.Ed. 2d 341 [1974] ). In 1911, Kansas became one of the first two states in the nation to remove an employee's common-law right to bring a civil action against his or her employer for injuries caused by an employer's negligence. "Of the compensation laws now on the statute books, those of Kansas and Washington were the first to be enacted, both being approved on March 14, 1911." Gagliardo, "The First Kansas Workmen's Compensation Law," 9 Kan. Hist. Q. 383, 384 (1940). Several other states quickly followed suit-five state acts became effective before Kansas' scheme took effect, and two others became effective on the same day. As the United States Supreme Court explained: " 'The invention of workers compensation as it has existed in this country since about 1910 involves a classic social trade-off or, to use a Latin term, a quid pro quo .... What is given to the injured employee is the right to receive certain limited benefits regardless of fault, that is, even in cases in which the employee is partially or entirely at fault, or when there is no fault on anyone's part. What is taken away is the employee's right to recover full tort damages, including damages for pain and suffering, in cases in which there is fault on the employer's part.' P. Lencsis, Workers Compensation: A Reference and Guide 9 (1998)." Howard Delivery Service, Inc. v. Zurich American Ins. Co. , 547 U.S. 651, 662-63, 126 S.Ct. 2105, 165 L.Ed. 2d 110 (2006). The Kansas Supreme Court has similarly summarized our Act: "In 1911, the legislature stripped employees of their common-law right to bring a civil action against employers for injuries caused by employers' negligence. ... The Act allowed employees to quickly receive a set but possibly smaller sum of money for injuries received at work, regardless of whether the injuries were the result of the employer's negligence." Injured Workers of Kansas v. Franklin , 262 Kan. 840, 882-83, 942 P.2d 591 (1997). "The Fourteenth Amendment to the United States Constitution and § 18 of the Bill of Rights of the Kansas Constitution do not forbid the creation of new rights, or the abolition of rights recognized by the common law." Manzanares v. Bell , 214 Kan. 589, 598, 522 P.2d 1291 (1974) ; see Munn v. Illinois , 94 U.S. 113, 134-35, 24 L.Ed. 77 (1876). "No one has a vested right in common-law rules governing negligence actions which would preclude substituting a viable statutory remedy for one available at common law. The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished." Bair v. Peck , 248 Kan. 824, Syl. ¶ 1, 811 P.2d 1176 (1991). However, there is a limit to how much the Legislature may reduce an individual's right to obtain a remedy. As warned in Bair : "We recognize that there is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished. The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy." 248 Kan. at 844, 811 P.2d 1176. See also New York Central R.R. Co. v. White , 243 U.S. 188, 205, 37 S.Ct. 247, 61 L.Ed. 667 (1917) (stating "[t]his, of course, is not to say that any scale of compensation, however insignificant on the one hand or onerous on the other, would be supportable," while upholding New York's workers compensation scheme, one of the first in the nation). The issue before us is not whether the Act impinges on Pardo's constitutional rights-there is no question that it does. Rather, the issue is whether the Legislature's 2013 amendment to the Act takes this impingement on Pardo's due process rights from the realm of a constitutionally permissible impingement to one that is an unconstitutional infringement on Pardo's due process rights. Fortunately, the Kansas Supreme Court has supplied a test to make such a determination. B. Application of the Injured Workers of Kansas Test According to our Supreme Court in Injured Workers of Kansas , when determining if a due process violation exists, the following two-step test should be utilized: " 'If a remedy protected by due process is abrogated or restricted by the legislature, "such change is constitutional if '[1] the change is reasonably necessary in the public interest to promote the general welfare of the people of the state,' ... and [2] the legislature provides an adequate substitute remedy" to replace the remedy which has been restricted.' [ Citations omitted.]" 262 Kan. at 854, 942 P.2d 591 (quoting Lemuz v. Fieser , 261 Kan. 936, 946-47, 933 P.2d 134 [1997] ). 1. Step One: Is this change in the remedy reasonably necessary in the public interest to promote the general welfare of the people of Kansas? "Under Step 1 of this due process test, the first question to ask is whether the new notice of claim statute imposed on plaintiffs injured at work, which restricts the plaintiffs' right to a workers compensation remedy, is reasonably necessary in the public interest to promote the general welfare of the people of the state. Another way to state this test is whether the legislative means selected ... has a real and substantial relation to the objective sought. [Citations omitted.]" 262 Kan. at 854, 942 P.2d 591. Therefore, we must determine if there was significant public interest to justify the amendment to K.S.A. 2014 Supp. 44-510d(b)(23) and "whether this [amendment] has a real and substantial relation to the objective sought." See Bonin v. Vannaman , 261 Kan. 199, 217, 929 P.2d 754 (1996). Pardo argues that there is no evidence that Kansas legislators ever discussed reducing certain injuries to zero recovery for permanent partial impairment in the legislative history of 2013 Senate Bill 187, which created the statutory language at issue in this case. In Injured Workers of Kansas , the Kansas Supreme Court recognized: "The goal to make the Act more medically and anatomically accurate is a legitimate state objective.... The plaintiffs contend that the statute's objective is an after-the-fact rationalization which was never espoused by the legislature as a purpose for the statute. This may be true; however, it does not matter. .... "Thus, it is irrelevant whether the legislature actually verbalized the goal of making the Act more medically sound when it passed the [amendment]." 262 Kan. at 862-63, 942 P.2d 591. In Peden v. Kansas Dept. of Revenue , 261 Kan. 239, 253-54, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997), our Supreme Court held that such an after-the-fact rationalization of the Legislature's action was permissible: " 'Under the reasonable basis test, it is unnecessary to ascertain the specific purpose the Kansas Legislature espoused, if any , in establishing the challenged [statute]....' "... [B]ecause a legislature is not required to articulate reasons for enacting a statute, 'it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged [statute] actually motivated the legislature.' [Citations omitted.]" While the Peden court was referring to the equal protection test, this rationale also applies to step one of the substantive due process test because the two tests weigh the same factors. See Injured Workers of Kansas , 262 Kan. at 862, 942 P.2d 591. Thus, the lack of legislative statement regarding the statute's change is permissible. However, the amendment must still have an objective and must have "a real and substantial relation" to this objective. See Bonin , 261 Kan. at 217, 929 P.2d 754. To supply a rationalization for this current amendment, "[a]ll the State [has] to do [is] offer ' "any state of facts [which] reasonably may be conceived to justify" ' " the amendment from the Fourth Edition to the Sixth Edition. Injured Workers of Kansas , 262 Kan. at 863, 942 P.2d 591 (quoting Peden , 261 Kan. at 252-53, 930 P.2d 1 ). In Injured Workers of Kansas , the State provided this justification by pointing to facts included in an affidavit presented to the district court that concluded the amendments to the Act were medically accurate. The Supreme Court found that this fact reasonably justified the changes and the Legislature's goal to make the Act more medically sound. 262 Kan. at 863, 942 P.2d 591. Here, UPS states in its brief that "[t]he manifest purpose for adoption of the [Sixth Edition] is to conform the Act to the most recent medical expertise as to what is medically and anatomically sound." However, it does not point to any fact or evidence in support of this assertion. Rather, it argues that the AMA stands behind the latest version of the Guides and that these Guides reflect the current state of medicine regarding recovery from a rotator cuff injury. But asking us to make this assumption without pointing to more to validate this assertion-as was done in Injured Workers of Kansas -puts us in the precarious position of trusting a national private organization-the AMA-to put the best interests of Kansans over the interests of the AMA's private members. This is an assumption we cannot make. UPS's assertion cannot carry the day; yet, the provided rationalization that the alteration of the remedy is reasonably necessary in the public interest to promote the general welfare of the people of Kansas is not the only suggested rationalization before us. In its amicus brief, the State of Kansas argues it is well established that the Kansas Legislature had a rational basis for replacing an injured worker's common-law remedies with the 1911 Workers Compensation Act. However, this argument looks too far back. The inquiry is not whether the initial alteration of the remedy had a rational basis supporting it; rather, the inquiry is whether the current alteration of the remedy has a rational basis to support it. See 262 Kan. at 856-64, 942 P.2d 591 (analyzing whether amendment of K.S.A. 44-510d(a)(13) (Furse 1993)-referred to as "shoulder statute"-was reasonably necessary in public interest to promote general welfare, not whether implementation of Workers Compensation Act was so supported). The State provides us with an additional justification for the 2013 amendment. It asserts that "[e]ven if the question were limited to whether the Legislature had a rational basis for replacing the Fourth with the Sixth Edition, the [amendment] would easily pass rational basis review given that the Sixth Edition is based on current medical knowledge." The State cites to Injured Workers of Kansas and provides a parenthetical citation that "making the Act 'more medically rational' is a legitimate state interest." But like UPS, the State does not point to facts contained in the record of this case to support this assertion in its brief. Instead, the State claims that "[t]estimony before the Legislature indicated that the Sixth Edition is based on current medical knowledge and is superior to the Fourth Edition." For support, the State attached to its brief letters from two board-certified disability evaluating physicians to the Kansas Legislature supporting the amendment at issue here and agreeing that the Sixth Edition reflected an increased understanding of the science surrounding the information in the AMA Guides. See Dr. J. Mark Melhorn letter to the Kansas Legislature, p. 1 (March 2013); Dr. Peter V. Bieri letter to the Kansas Legislature, p. 1 (March 2013). The State also attached a copy of Dr. Melhorn's February 12, 2015 testimony before the House Committee on Commerce, Labor and Economic Development, opposing 2015 Senate Bill 167-a bill that would have returned the use of the Fourth Edition to workers compensation claims. See Attachment 12, Minutes for S.B. 167, Senate Committee on Commerce, February 18, 2015. At first blush, like in Injured Workers of Kansas , this after-the-fact justification that the Sixth Edition is more medically sound likely validates the basis for the amendment to the remedy. But if we accept that the purpose of the amendment is to make the Act more medically accurate, the Sixth Edition, in Pardo's case, appears to contradict this goal. Surprisingly, the Sixth Edition recognizes that the impairment ratings are not based on objective data. The whole person impairment percentages are based on "normative judgment that are not data driven" that still "await future validation." AMA Guides Sixth Edition, pp. 6, 26. Although the language in the Sixth Edition itself seems to significantly undermine the assertion that utilizing the Sixth Edition makes the Act more medically sound, "the legislature heard all the evidence and relied on the evidence it found to be the most persuasive." Injured Workers of Kansas , 262 Kan. at 863, 942 P.2d 591. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc. , 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed. 2d 211 (1993) ; Downtown Bar and Grill v. State , 294 Kan. 188, 198, 273 P.3d 709 (2012). Again, all the State is required to do is offer " 'any state of facts [which] reasonably may be conceived to justify' " the amendment from the Fourth Edition to the Sixth Edition. (Emphasis added.) Peden , 261 Kan. at 253, 930 P.2d 1 (quoting McGowan v. Maryland , 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed. 2d 393 [1961] ). The State satisfied this low burden by showing that the amendment to the Act was justified by offering parts of the legislative history supporting that the Sixth Edition was more medically sound than the Fourth Edition. Therefore, we now move to the second part of the Injured Workers of Kansas test. 2. Step Two: Is there an adequate substitute remedy? "Even if the modification of a remedy is consistent with public policy, this does not necessarily satisfy due process concerns. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy is modified, restricted, or abolished." Injured Workers of Kansas , 262 Kan. at 864, 942 P.2d 591 (citing Lemuz , 261 Kan. at 948, 933 P.2d 134 ; Bonin , 261 Kan. at 218, 929 P.2d 754 ). If a subsequent legislative amendment to the Act reduces the remedy or makes it more difficult to obtain a remedy, a court must determine if the revised Act no longer provides an adequate substitute remedy, thereby "making the quid pro quo inadequate" and violating due process. Injured Workers of Kansas , 262 Kan. at 856, 942 P.2d 591. Quid pro quo is at the heart of the constitutionality of the Act. "The Act allowed employees to quickly receive a set but possibly smaller sum of money for injuries received at work, regardless of whether the injuries were the result of the employer's negligence." 262 Kan. at 883, 942 P.2d 591. A century ago the United States Supreme Court employed the same reasoning: "[I]t perhaps may be doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead." New York Central R.R. Co. , 243 U.S. at 201, 37 S.Ct. 247. Further, it would do "violence to the constitutional guaranty of 'due process of law' " if the Legislature set aside common-law tort liability (as it has done here) "without providing a reasonably just substitute." 243 U.S. at 201, 37 S.Ct. 247. In Injured Workers of Kansas , 262 Kan. at 884-86, 942 P.2d 591, our Supreme Court warned of the current situation; although the quote is lengthy, it is instructive: " Bair v. Peck , 248 Kan. 824, 844, 811 P.2d 1176 (1991), was the first case to express that an originally adequate quid pro quo for the abrogation of a common-law right might become so cut down and diluted that it would no longer be adequate to support the abrogation of the common-law right and would thus violate due process. In analyzing this issue, Bair identified a test to use in order to determine whether the legislature has altered the original statutory replacement to such an extent to make it unconstitutional. In Bair , this court stated: " '[W]e are directly faced with a determination of whether the comprehensive remedy of mandatory insurance and excess coverage from the [Health Care Stabilization] Fund, provided by the original [Health Care Insurance Availability] Act, is a sufficient quid pro quo for this subsequent amendment or modification of the Act. " 'We have long recognized, at least tacitly, that major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. Provisions of the original Workmen's Compensation Act adopted in 1911 and upheld as constitutional in Shade v. Cement Co. , 92 Kan. 146, 139 Pac. 1193, aff'd on rehearing 93 Kan. 257, 144 Pac. 249 (1914), have been repeatedly amended without the adoption of an additional quid pro quo each time an amendment operated to the detriment of the employee. The original quid pro quo providing recovery for injury regardless of fault or negligence has been deemed sufficient to support dozens of amendments to the original act, many of which involved the abrogation of an existing common-law right. " 'In Rajala v. Doresky , 233 Kan. 440, 661 P.2d 1251 (1983), the court, in a unanimous opinion, found that the Kansas Workmen's Compensation Act, in providing immunity to fellow employees when compensation is recoverable under the Act, did not violate Section 18. In doing so, the court expressly stated that it did not "view as significant" the fact that fellow employee immunity was not enacted until 1967. "The Workmen's Compensation Act removes certain common law remedies for injured employees but provides a statutory substitute therefor." 233 Kan. at 441 [661 P.2d 1251]. While not specifically stated, the court obviously held that the 1967 amendment, which provided fellow employee immunity, did not require a new quid pro quo because the comprehensive remedy afforded by the Workmen's Compensation Act, already in existence, was sufficient. .... " 'In considering the adequacy of the quid pro quo of comprehensive legislation, which substitutes a statutory remedy for one that formerly existed at common law, and its sufficiency to support subsequent amendments or modifications which diminish the substitute remedy originally granted, no hard and fast rule can apply to all cases. It is obvious that the needs and goals of comprehensive legislation such as the Workers Compensation Act, the Kansas Automobile Injury Reparations Act and the Health Care Provider Insurance Availability Act will change with the passage of time and the needs of a fluctuating society. It would take the wisdom of Solomon to devise comprehensive remedial legislation, such as that now before us, which would never need fine tuning, change, or modification. The Act is a piece of ongoing legislation which will, of necessity, require continuous modification to accomplish its goals. .... " 'At the time of the malpractice alleged by the plaintiff in this case, each individual health care provider who was alleged to be negligent was required to maintain $200,000 malpractice coverage and, in addition, the Fund provided $3,000,000 excess coverage for each tortfeasor. Without the Act, there would be no guarantee that a plaintiff injured because of the negligence of a health care provider could ever recover for his injuries, let alone have an assured fund available of $3,200,000. That is a sizeable quid pro quo, established by the Act, and certainly is an adequate substitute remedy for the common-law rights given up by injured malpractice victims. No argument is made that if the elimination of the employer's vicarious liability had been a part of the original Act, the quid pro quo would somehow be insufficient. We conclude that in reviewing the sufficiency of the substitute remedy as it applies to amendment or modification of comprehensive remedial legislation, each determination must be made on a case-by-case basis. Recognizing that all such legislation may need periodic modification, we think the proper test to apply is whether the substitute remedy would have been sufficient if the modification had been a part of the original Act. If so, then no new or additional quid pro quo is necessary to support the modification against a Section 18 attack. Any other holding would require that every modification of a substitute remedy provided by comprehensive legislation that originally abrogated a common-law remedy would require a new and additional substitute remedy. As already noted, it would be virtually impossible to draft such legislation in a form that would anticipate all contingencies and which would not thereafter need change and modification. " 'We recognize that there is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished. The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy. K.S.A. 1990 Supp. 40-3403(h) does not amend the Act to such a degree that the substitute remedy is no longer sufficient and we hold that the statute is not unconstitutional under Section 18 of the Kansas [Constitution] Bill of Rights.' 248 Kan. at 841-44 [811 P.2d 1176]." Thus, we must determine if the "substitute remedy would have been sufficient if the modification had been a part of the original Act" while keeping in mind that "there is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished . The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy." (Emphasis added.) Bair , 248 Kan. at 844, 811 P.2d 1176. Black's Law Dictionary defines "quid pro quo" as: "An action or thing that is exchanged for another action or thing of more or less equal value; a substitute." Black's Law Dictionary 1443 (10th ed. 2014) (also supplying the Latin definition: "something for something"). Pardo's situation cannot be held to be a satisfaction of the quid pro quo exchange-something for something-supporting the Act. Here, Pardo gets nothing in exchange for the removal of his right under § 18 to seek a common-law award from his employer, which flies directly in the face of the quid pro quo foundation that makes the Act constitutional. Looking to the point at which the Act was enacted in 1911, if it was part of the original Act that Pardo would receive nothing for his distinct and new work-related injury, then the Act would have been determined to be an insufficient substitute remedy upon its inception. See Bair , 248 Kan. at 844, 811 P.2d 1176. As it was then, it is today: Eliminating any means for Pardo to recover under the Act or at common law is a violation of his substantive due process rights. K.S.A. 2014 Supp. 44-510d(b)(23), as applied to Pardo, prohibits Pardo from recovering an award for his permanent partial disability from a new and distinct work-related injury; and there can be no adequate substitute remedy for Pardo's right to sue his employer for negligence, and potentially recover an award at common law, when there is no remedy provided to Pardo under the Act. The Florida Supreme Court addressed a similar question in Westphal v. City of St. Petersburg , 194 So.3d 311 (Fla. 2016). There, the Florida Legislature amended its workers compensation act to limit an individual's temporary total disability benefits to 104 weeks. The Florida Supreme Court held this amendment to be unconstitutional because certain workers would fall into a gap where they would receive no such benefits, explaining: "We conclude that the 104-week limitation on temporary total disability benefits, as applied to a worker like Westphal, who falls into the statutory gap at the conclusion of those benefits, does not provide a 'reasonable alternative' to tort litigation. Under the current statute, workers such as Westphal are denied their constitutional right of access to the courts." 194 So.3d at 325. As in Westphal , Pardo has no remedy because of K.S.A. 2014 Supp. 44-510d(b)(23) and no access to the courts because of K.S.A. 2014 Supp. 44-501b(d). In response to Pardo's arguments, his employer makes several arguments. First, UPS makes a two-fold argument that Pardo has already received compensation for this injury. It argues it has paid to Pardo in excess of $27,000 in temporary total disability benefits and medical compensation and that in a tort suit Pardo would not have received any such payments unless the fact-finder found Pardo's negligence less than 50% and the fact-finder determined he should receive such an award. Second, UPS argues that when it settled with Pardo on his first shoulder injury, an agreed-upon permanent partial impairment rating of 15% under the Fourth Edition was assigned to his shoulder even though UPS's doctor assigned a 10% impairment rating. UPS argues that this 15% impairment rating settlement has now fully compensated Pardo for his current shoulder injury because the additional 5% impairment rating he received in the settlement (when the assigned rating was only 10%) now covers the new and additional assigned functional impairment rating of 5%. Stated more succinctly, UPS argues that because Pardo accepted a settlement for 15% impairment for his first injury-which UPS's doctor rated at only 10% under the Fourth Edition-Pardo has already been compensated for the additional 5% impairment for his second injury. First, Pardo's collection of temporary total disability and medical expenses for his current injury is not adequate substitute compensation. The Kansas Supreme Court has repeatedly stressed that providing compensation for permanent partial impairment is an, if not the , essential purpose of the Act: "We have heretofore stated that recovery for loss of earning power is a basic purpose of the act. In accordance with this principle we conclude a workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment. Stated more distinctly, he should recover his functional disability." Anderson v. Kinsley Sand & Gravel, Inc. , 221 Kan. 191, 196, 558 P.2d 146 (1976), superseded by statute on other grounds as stated in Hughes v. Inland Container Corp. , 247 Kan. 407, 415, 799 P.2d 1011 (1990). This principle has been well established in Kansas for more than a century. Clearly, when enacting the Act, "[w]hat the legislature had in mind was compensation for loss of earning power as a workman as a result of injury." Gorrell v. Battelle , 93 Kan. 370, 375, 144 P. 244 (1914). Because compensation for permanent partial impairment is a necessary and essential component of the Act's quid pro quo, elimination of compensation for permanent partial impairment simply cannot be permissible even when the worker receives some compensation to cover his or her medical bills and temporary total disability benefits. UPS's second assertion-that Pardo already received an award for his new permanent partial impairment because of his prior settlement of his first shoulder injury-flies in the face of the Act. K.S.A. 2014 Supp. 44-501(e) states, in pertinent part: "An award of compensation for permanent partial impairment, work disability, or permanent total disability shall be reduced by the amount of functional impairment determined to be preexisting. Any such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment. "(1) Where workers compensation benefits have previously been awarded through settlement or judicial or administrative determination in Kansas, the percentage basis of the prior settlement or award shall conclusively establish the amount of functional impairment determined to be preexisting ." (Emphasis added.) Pardo's previous settlement conclusively establishes his preexisting impairment to be 15%, and a "rating conclusively established by the previous settlement must be recognized for all purposes." Willoughby v. Goodyear Tire & Rubber , No. 115898, 2017 WL 658267, at *2-3 (Kan. App. 2017) (unpublished opinion). Therefore, Pardo has not previously been compensated for his current injury because his preexisting impairment rating was statutorily set at 15%. See K.S.A. 2014 Supp. 44-501(e). Pardo's new and additional 5% impairment rating would be compensated in addition to his preexisting permanent partial impairment rating. UPS also argues that Pardo intentionally set up this constitutional challenge by choosing not to have Dr. Koprivica proffer any opinions about Pardo's neck pain and headaches and those ailments' impairment ratings. First, the parties stipulated to the admission of the medical records and Dr. Koprivica's report which included a reference to Pardo experiencing neck pain and headaches. Nowhere in the record on appeal is there any indication that UPS sought to have Pardo reassessed by its doctor, Dr. Rasmussen, or to have functional impairment ratings assigned to those alleged injuries. Second, whether or not Pardo "set up" his as-applied constitutional challenge is, frankly, irrelevant to this inquiry. Third, UPS argues that Pardo was returned to full work duty and remains employed by it, so Pardo suffered no wage loss other than during the period of time that he received temporary total disability benefits. Pardo claims that he did suffer a loss in wages of almost $20,000 while receiving temporary total disability benefits. Pardo's employer then counters that "this is not a case where an injured worker is denied compensation for economic losses such as wages, fringe benefits, or future inability to earn one's pre-accident income." However, "[p]ermanent partial disability of an injured workman based upon substantial medical testimony is compensable notwithstanding he may earn as much or more after his injury in the same or other employment." Daugherty v. National Gypsum Co. , 182 Kan. 197, 203, 318 P.2d 1012 (1957). Therefore, we reject UPS's argument. Fourth, UPS argues that Pardo's 0% compensation award under the Sixth Edition is permissible because there are three injuries under the Fourth Edition that receive 0% permanent partial impairment compensation-a pelvic fracture under specific conditions, DRE lumbosacral category 1 injuries, and DRE thoracolumbar spine impairments. We are unpersuaded by this argument for three reasons. First, the Fourth Edition was truly a guide; it gave physicians discretion in exercising their independent judgment and the impairment ratings were nonbinding. As the Fourth Edition states: "The physician's judgment and his or her experience, training, skill, and thoroughness in examining the patient and applying the findings to the Guides criteria will be factors in estimating the degree of the patient's impairment. These attributes compose part of the 'art' of medicine, which together with a foundation in science, constitute the essence of medical practice." AMA Guides, Fourth Edition, p. 13. Therefore, under the Fourth Edition, depending on the recovery of the individual, the physician could give a 0% rating or the physician could assign a different impairment rating as the physician found appropriate. There appears to be no such discretion in the Sixth Edition. Second, even if the impairment ratings were fixed and there were injuries under the Fourth Edition that always, no matter the circumstances, received a 0% impairment rating, this does not defeat Pardo's claim. The fact that no claimant has ever brought a case arguing his or her due process rights were violated by such an award under the Fourth Edition does not mean that substantive due process was not denied. Logic dictates that this argument must fail. It is akin to claiming that if a state agency violates the due process rights of many individuals without one of those individuals bringing a lawsuit, then an individual in a subsequent and similar incident cannot bring the first due process claim. Third, Pardo brings an as-applied constitutional challenge to the statute, not a facial challenge. As established above, the amendment of the Act denies Pardo an adequate substitute remedy for his particular injury. Pardo does not suffer from any of the ailments that his employer asserts would receive a 0% impairment award under the Fourth Edition. The fact that the Fourth Edition may have rendered awards that amounted to nothing is inconsequential to Pardo's situation. Finally, UPS argues that a jury deciding a personal injury action has discretion to award no or nominal damages. That is precisely the point: Here, no one had the discretion to award Pardo any benefits for his new permanent partial impairment that both doctors-his own and his employer's-recognize exists. Pardo never had a true opportunity to attempt to receive any compensation for his permanent partial impairment. The quid pro quo exchange that supports the Act's constitutionality requires that a claimant have the opportunity to recover for permanent partial impairment if the facts of the case warrant such compensation, as is the case here. See Injured Workers of Kansas , 262 Kan. at 856, 942 P.2d 591 ; Anderson , 221 Kan. at 196, 558 P.2d 146. We reject UPS's arguments. The Sixth Edition and the exclusive remedy provision of the Act remove any opportunity for Pardo to attempt to recover for his new and distinct work-related injury. This simply is not an adequate substitute remedy and is the emasculation of Pardo's remedy by amendment of which the Kansas Supreme Court warned in Bair , 248 Kan. at 844, 811 P.2d 1176. Thus, we hold that, as applied to Pardo, the use of the Sixth Edition to determine impairment ratings under K.S.A. 2014 Supp. 44-510d(b)(23) violates Pardo's substantive due process rights and is, therefore, unconstitutional. Given our unconstitutionality finding, we need not address Pardo's other constitutional arguments. WHAT IS THE APPROPRIATE REMEDY ? By finding that K.S.A. 2014 Supp. 44-510d(b)(23) is unconstitutional as applied to Pardo, we must now consider what remedy, if any, is appropriate. Unfortunately, no party suggests a clear remedy, although at oral argument Pardo's counsel argued that Pardo's tort remedies should be restored. We envision three possible remedies. First, we could strike the exclusive remedy mandate contained in K.S.A. 2014 Supp. 44-501b(d), which would allow Pardo to bring a civil action against his employer. Such a disposition, however, is the most radical option and may cause the opening of the hypothetical floodgates in workers compensation litigation and lead to confusion in lower administrative and judicial proceedings. However, Pardo would have the opportunity to recover for his injury. Second, we could simply rely on the above discussion and holdings, reverse the administrative award and order, and remand the case for proceedings consistent with this opinion. This proposed disposition of the case would allow the ALJ to apply the Fourth Edition to the calculation of Pardo's permanent partial impairment rating and issue an award in accordance with the new rating. However, this disposition does not give very clear direction and may lead to unforeseen issues in the administrative proceedings with exactly how this disposition is to be applied. This was the disposition used in Stephenson v. Sugar Creek Packing , 250 Kan. 768, 782, 830 P.2d 41 (1992), where the Kansas Supreme Court held a portion of the Act unconstitutional as applied to the worker in that case. Third, although not formally suggested by any party, the Kansas Supreme Court "has considered severing a provision from a statute if to do so would make the statute constitutional and the remaining provisions could fulfill the purpose of the statute. Each time, our Supreme Court has emphasized that the determination of whether the provision may be severed 'depends on the intent of the legislature.' " State ex rel. Morrison v. Sebelius , 285 Kan. 875, 913, 179 P.3d 366 (2008) (quoting State v. Limon , 280 Kan. 275, 302, 122 P.3d 22 [2005] ). " 'The enactment of a severability clause in a statute or series of statutes evidences the intent of the legislature that if some portion or phrase in the statute is unconstitutional, the balance shall be deemed valid.' " Limon , 280 Kan. at 302, 122 P.3d 22 (quoting State v. Next Door Cinema Corp. , 225 Kan. 112, Syl. ¶ 8, 587 P.2d 326 [1978] ). K.S.A. 44-574(b) states: "If any provision or clause of this act or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable." Clearly, the Legislature intended that if a portion of the Act were found unconstitutional, either facially or as-applied, the constitutional portions of the Act should stand. Therefore, we may sever the portions of K.S.A. 2014 Supp. 44-510d(b)(23) that are unconstitutional as applied to Pardo. For ease of reference, K.S.A. 2014 Supp. 44-510d(b)(23) reads: "Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, shall be determined by using the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein." As shown below, the lined-out portion of the statute is unconstitutional as applied to Pardo: "Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein, until January 1, 2015, but for injuries occurring on and after January 1, 2015, shall be determined by using the sixth edition of the American medical association guides to the evaluation of permanent impairment, if the impairment is contained therein. " Therefore, if we sever the unconstitutional portion, as applied to Pardo, of K.S.A. 2014 Supp. 44-510d(b)(23), a constitutional application of the statute to Pardo would read: "Loss of or loss of use of a scheduled member shall be based upon permanent impairment of function to the scheduled member as determined using the fourth edition of the American medical association guides to the evaluation of permanent impairment." We find that severing the unconstitutional portion of the statute is the most appropriate option for a remedy as it best preserves the Legislature's intent, renders the statute constitutional in part, provides the most guidance for the administrative proceedings, and supplies Pardo with an adequate remedy. We reverse the award of the Board and remand with instructions to issue an award to Pardo consistent with this severed statute. Reversed and remanded with directions.

The opinion of the court was delivered by Luckert, J.: The United States Supreme Court has determined that the Fourth Amendment to the United States Constitution allows a law enforcement officer to initiate a traffic stop only when the officer has an articulable and reasonable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime. Here, the officer stopped a vehicle simply because he assumed the driver was the registered owner, whose driver's license had been revoked. The officer had no information to support the assumption that the owner was the driver. The driver moved to suppress evidence obtained during the stop, arguing the officer did not have reasonable suspicion of illegal activity when he stopped the car. The district court agreed, finding unreasonable the officer's assumption that the car's driver was the registered owner. The State appealed that ruling, and the Court of Appeals reversed. State v. Glover , 54 Kan. App. 2d 377, 400 P.3d 182 (2017). On review of that decision, we reverse the Court of Appeals and affirm the district court. We hold the officer lacked an articulable and reasonable suspicion that the unidentified driver did not have a valid driver's license; the officer's assumption was only a hunch and was unsupported by a particularized and objective belief. FACTS AND PROCEDURAL HISTORY While on routine patrol, Douglas County Sheriff's Deputy Mark Mehrer observed a 1995 Chevrolet pickup truck and ran the truck's license plate number through the Kansas Department of Revenue's database. Deputy Mehrer learned Charles Glover, Jr., had registered the vehicle and Glover's Kansas driver's license had been revoked. Deputy Mehrer did not observe any traffic violations but initiated a traffic stop based on his assumption that Glover was driving the vehicle. He did not try to confirm the identity of the driver before initiating the traffic stop. The State charged Glover with driving as a habitual violator. He filed a motion to suppress evidence, arguing the officer lacked reasonable suspicion to initiate the traffic stop. The parties entered into the following stipulation of facts on which the district court decided the motion: "1. Deputy Mark Mehrer is a certified law enforcement officer employed by the Douglas County[,] Kansas Sheriff's Office. "2. On April 28, 2016, Deputy Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. "3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of Revenue's file service. The registration came back to a 1995 Chevrolet 1500 pickup truck. "4. Kansas Department of Revenue files indicated the truck was registered to Charles Glover Jr. The files also indicated that Mr. Glover had a revoked driver's license in the State of Kansas. "5. Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr. "6. Deputy Mehrer did not observe any traffic violations, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop. "7. The driver of the truck was identified as the defendant, Charles Glover Jr." The district court granted Glover's suppression motion, finding it was not "reasonable for an officer to infer that the registered owner of a vehicle is also the driver of the vehicle absent any information to the contrary." The district court judge relied on personal experience, stating she has "three cars registered in [her] name. [Her] husband drives one every day; [her] daughter [is] in [Washington D.C.] with one every day, and [she] drive[s] the other." The judge believed her situation was much like many other families. The State filed an interlocutory appeal. The Court of Appeals reversed, holding: "a law enforcement officer has reasonable suspicion to initiate a stop of a vehicle to investigate whether the driver has a valid driver's license if, when viewed in conjunction with all of the other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle." Glover , 54 Kan. App. 2d at 385, 400 P.3d 182. We granted Glover's petition for review. Our jurisdiction arises under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision). ANALYSIS Glover correctly notes the State bears the burden of proving the lawfulness of a warrantless seizure. See State v. Morlock , 289 Kan. 980, 985, 218 P.3d 801 (2009). And he argues the Court of Appeals' owner-is-the-driver presumption impermissibly relieves the State of its burden of proof and shifts the burden to the driver. He argues that without the presumption the State did not sustain its burden to justify the traffic stop-a warrantless seizure-because the stipulation of facts showed no attempt by the officer to identify the driver or otherwise obtain corroborating information to show he was driving. We essentially agree with Glover's arguments. To explain that conclusion, we begin with some general principles about reasonable searches and seizures. The Fourth Amendment requires law enforcement officers who seize an individual or who conduct a search to have either a warrant or a basis for relying on one of the specific and well-recognized exceptions to the warrant requirement. Riley v. California , 573 U.S. ----, ----, 134 S.Ct. 2473, 2482, 189 L.Ed. 2d 430 (2014) ; State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). One exception allows an officer to stop and briefly detain an individual without a warrant when the officer has an articulable and reasonable suspicion, based in fact, that the detained person is committing, has committed, or is about to commit a crime. Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968) ; State v. Epperson , 237 Kan. 707, 712, 703 P.2d 761 (1985). A warrantless traffic stop can fall within this exception if the officer has reasonable suspicion of a traffic violation or other criminal activity. See State v. Smith , 286 Kan. 402, 406, 184 P.3d 890 (2008). To have reasonable suspicion to detain an individual, "[a] police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry , 392 U.S. at 21, 88 S.Ct. 1868. The suspicion must have " 'a particularized and objective basis' " and be something more than "an unparticularized suspicion or hunch." State v. DeMarco , 263 Kan. 727, 735, 952 P.2d 1276 (1998) (quoting Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed. 2d 911 [1996], and citing United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed. 2d 1 [1989] ). Although the United States Supreme Court has recognized that "the concept of reasonable suspicion is somewhat abstract," it has "deliberately avoided reducing it to ' "a neat set of legal rules." ' " United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed. 2d 740 (2002). The United States Supreme Court applied these principles in the context of a case in which a law enforcement officer initiated a traffic stop to check the driver's license and registration. The officer did not know who was driving and had not observed any traffic violations before the stop. The Court held: "[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed[,] ... stopping an automobile and detaining the driver in order to check his driver's license ... [is] unreasonable under the Fourth Amendment." Delaware v. Prouse , 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979). In essence, according to the district court, that is what Deputy Mehrer did. Thus, the district court granted Glover's motion to suppress. Generally, to review such a conclusion, an appellate court would review the district court's ruling on a suppression motion to determine whether the district court's factual findings are supported by substantial competent evidence and would review the ultimate legal conclusion drawn from those factual findings de novo. State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016). But when, as here, the parties submit the case to the district court on stipulated facts, appellate courts need determine only the question of law of whether the district court should have suppressed the evidence. This presents an issue subject to unlimited review. State v. Porting , 281 Kan. 320, 324, 130 P.3d 1173 (2006). Here, the stipulated facts are somewhat distinguishable from Prouse . Deputy Mehrer knew the vehicle was properly registered in Glover's name but was also aware Glover did not possess a valid license. Deputy Mehrer did not know whether Glover was driving but "assumed the registered owner of the truck was also the driver, Charles Glover Jr." In other words, Deputy Mehrer had some suspicion of a specific crime-driving while revoked. But Deputy Mehrer, who had not observed a traffic violation, needed reasonable suspicion Glover was driving, not just some suspicion. See Prouse , 440 U.S. at 663, 99 S.Ct. 1391 ; Smith , 286 Kan. at 407, 184 P.3d 890. Deputy Mehrer did not seek to confirm the identity of the driver, and the stipulation provides no additional facts supporting an inference that Glover was driving. Under these limited facts, the district court had to determine whether spotting a vehicle owned by an unlicensed driver provides reasonable suspicion that an unlicensed motorist is driving the car. Under the totality of the circumstances, we note that a person with a revoked driver's license commits no crime by simply owning and registering a vehicle. Nor does that person commit a crime by allowing another licensed driver to use the registered vehicle. The crime occurs if an unlicensed driver operates the vehicle, making the determinative question whether the driver of the vehicle, not its owner , has a revoked license. The State asserts, and the Court of Appeals held, reasonable suspicion can arise because an officer may presume the owner is the driver absent contrary information. We find this presumption legally erroneous for two reasons. First, the owner-is-the-driver presumption implicitly requires applying and stacking unstated assumptions that are unreasonable without further factual basis. Second, the presumption rests, in part, on what the officer does not know. And in evaluating whether the State has met its burden to prove the lawfulness of a search or seizure, courts cannot "draw inferences from the lack of evidence in the record" because doing so may relieve the State of its burden and shift the burden to the defendant to establish why reasonable suspicion did not exist. Porting , 281 Kan. at 327-28, 130 P.3d 1173. To explain, we will discuss in more detail the reasons we reject the Court of Appeals holding. Applying and Stacking Assumptions Here, the parties presented narrow, stipulated facts. One of those stipulations stated: "Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr." (Emphasis added.) Notably, the stipulation did not speak of an inference. And, as our discussion will show, assumed is an accurate word for what Deputy Mehrer did here. A distinction exists between an assumption and an inference, and this distinction is especially significant in the context of determining whether an officer had reasonable suspicion. See Terry , 392 U.S. at 21, 88 S.Ct. 1868 (reasonable suspicion requires specific and articulable facts from which rational inferences can be drawn); DeMarco , 263 Kan. at 735, 952 P.2d 1276 (citing Sokolow , 490 U.S. at 7, 109 S.Ct. 1581, for the principle that an officer cannot rely on an "unparticularized suspicion or hunch"). According to a dictionary published about the time of the United States Supreme Court's decision in Terry , an assumption is "[a] statement accepted or supposed true without proof or demonstration." American Heritage Dictionary, 80 (1969). In contrast, an inference is "[s]omething inferred; a conclusion based on a premise," and to infer is "[t]o conclude from evidence; deduce" or "[t]o have as a logical consequence." American Heritage, 673. This means, by definition, a true inference fits with the Terry standard-it is a conclusion or deduction based on an evidentiary premise, i.e., specific and articulable facts. See Terry , 392 U.S. at 21, 88 S.Ct. 1868 ; American Heritage, 673. An assumption has no basis in proof or demonstration, so it is only an inarticulate hunch or an unparticularized suspicion. See American Heritage, 80. Accordingly, an assumption will not satisfy reasonable suspicion under the Terry standard. See DeMarco , 263 Kan. at 735, 952 P.2d 1276. Here, the panel overlooked the assumption and held: "[A] law enforcement officer has reasonable suspicion to initiate a stop ... if, when viewed in conjunction with all of the other information available to the officer at the time of the stop, the officer knows the registered owner of the vehicle has a suspended license and the officer is unaware of any other evidence or circumstances from which an inference could be drawn that the registered owner is not the driver of the vehicle." Glover , 54 Kan. App. 2d at 385, 400 P.3d 182. Although the panel used the phrase "when viewed in conjunction with all of the other information available to the officer at the time of the stop," Deputy Mehrer had no information beyond the fact that Glover, the registered owner, had a revoked driver's license. For example, Deputy Mehrer did not have personal knowledge of Glover or his driving habits. See Glover , 54 Kan. App. 2d at 385, 400 P.3d 182. Given the lack of other evidence, to accept the owner-is-the-driver presumption as valid, the panel necessarily had to accept two unstated assumptions. First, it had to assume the registered owner was likely the primary driver of the vehicle. As the district court stated, however, common experience in Kansas communities suggests families may have several drivers sharing vehicles legally registered in the names of only one or two of the family members. See Ornelas , 517 U.S. at 695, 116 S.Ct. 1657 ("Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with ' "the factual and practical consideration of everyday life on which reasonable and prudent men, not legal technicians, act." ' "). Unless the officer is familiar with the registered owner and his or her driving habits or has another factual foundation, the officer can only assume , not infer, the owner is the driver. And an assumption does not satisfy the Terry standard. See DeMarco , 263 Kan. at 735, 952 P.2d 1276. Even if, for the sake of argument, we accept that it is reasonable to believe the registered owner is likely the primary driver of a vehicle, we cannot accept the owner-is-the-driver presumption because it ultimately turns on the second assumption that the owner will likely disregard the suspension or revocation order and continue to drive. This assumption is flawed because it presumes a broad and general criminal inclination on the part of suspended drivers. Yet officers cannot assume criminal conduct is taking place and detain someone without "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry , 392 U.S. at 21, 88 S.Ct. 1868. The clear implication of Terry is that absent specific and articulable facts rationally suggesting criminal activity, officers and courts should presume that citizens are engaged in lawful activities and have a right to remain free from police interference. In this way, this case varies from State v. Hamic , 35 Kan. App. 2d 202, 129 P.3d 114 (2006), a case cited by the State and relied on by the panel. In Hamic , before initiating a traffic stop, the officer remembered his prior contact with the vehicle owner. He knew she had been stopped twice in the previous two months for driving while suspended-once by him and once by another officer. Thus, the facts established the unlicensed owner drove the vehicle and had repeatedly disregarded her suspension order. In other words, the officer had specific and articulable facts to infer the owner was likely driving the vehicle in violation of her suspension order. In contrast, Deputy Mehrer merely assumed Glover was driving while revoked. He did not corroborate the identity of the driver and had no knowledge of Glover having previously disregarded the revocation order. Without this information (or other facts), Deputy Mehrer should have presumed Glover was obeying the revocation order and was therefore not the driver. See Prouse , 440 U.S. at 663, 99 S.Ct. 1391 ; Terry , 392 U.S. at 21, 88 S.Ct. 1868. The fact Glover's vehicle was being driven was not readily indicative of a crime because Glover could legally allow another licensed driver to operate his vehicle. Without further factual support, it was not reasonable for Deputy Mehrer to believe Glover was disregarding the revocation order simply because his vehicle was being driven. Even if we were to accept the two assumptions as valid inferences, the State's theory requires one assumption to be stacked on another. The assumption that an unlicensed driver is likely to continue driving supports the presumption that it is the registered owner who is driving the vehicle. Kansas law does not allow this type of inference stacking. As we held in State v. Banks , 306 Kan. 854, 859, 397 P.3d 1195 (2017) : "Where the State relies on such inference stacking, i.e., where the State asks the jury to make a presumption based upon other presumptions, it has not carried its burden to present sufficient evidence." The same logic applies when an officer must state facts to support an articulable and reasonable suspicion. In summary, we explicitly reject the owner-is-the-driver presumption because it assumes the registered owner is likely disregarding his or her suspension or revocation order based on only the general fact his or her vehicle is being driven. Yet the determinative question is not the status of the registered owner's license; it is the status of the actual driver's license. Thus, we find the officer must have specific and articulable facts suggesting the owner is driving the vehicle or is otherwise likely to violate the suspension order based on other corroborating information, such as the officer's prior encounters in Hamic . See Prouse , 440 U.S. at 663, 99 S.Ct. 1391 ; Terry , 392 U.S. at 21, 88 S.Ct. 1868. Impermissible burden shifting The owner-is-the-driver presumption is also invalid because it relieves the State of its burden by eliminating the officer's need to develop specific and articulable facts to satisfy the State's burden on the determinative issue of whether the registered owner is driving the vehicle, not whether the vehicle is being driven. By creating a bright-line rule, the State no longer has to prove the officer had particular and individualized suspicion that the registered owner was driving the vehicle. Instead, in a sense, the rule motivates officers to avoid confirming the identity of the driver because learning facts that suggest the registered owner is not driving undermines reasonable suspicion. Such an application is far afield from the reasonableness requirements of Terry and its progeny. As we already discussed, the underlying assumptions are a necessary component of the presumption. But without appropriate factual foundation, they are only that-assumptions akin to unparticularized suspicions or inarticulate hunches and thus invalid for purposes of reasonable suspicion. The owner-is-the-driver presumption is a form of judicial gap-filling where courts use a lack of contrary evidence to convert an assumption to an inference. This is a result we cannot accept because an assumption is something without basis in fact or proof. A lack of proof to the contrary does not prove something that lacked proof to begin with. Simply put, absence of evidence is not evidence of absence. This court has repeatedly held the State has the burden to justify a warrantless seizure. See Morlock , 289 Kan. at 985, 218 P.3d 801. In determining whether the State has met its burden, "[i]t [is] improper [for a court] to draw inferences from the lack of evidence in the record." Porting , 281 Kan. at 328, 130 P.3d 1173. In Porting , we held an inference based on a lack of evidence improperly relieves the State of its burden of proof and shifts it to the defendant to disprove the inference. 281 Kan. at 327-28, 130 P.3d 1173. Porting dealt with a warrantless search of a home based on the third-party consent of a parolee, Eugene Hanson, who had just been released from an 18-month prison sentence. Before his imprisonment, he and his former girlfriend, Sandra Porting, resided in his mother's home. Porting continued to live with Hanson's mother while he served his prison sentence. After he was released but before going to his mother's home, Hanson asked a parole officer to sweep the house for drugs because he had heard rumors Porting was using drugs in the house. The parole officer accompanied Hanson to the home, and Hanson gave the officer permission to search. Although Hanson's mother was present, the officer did not request her additional consent. During the search, the officer found methamphetamine and drug paraphernalia in the home and in Porting's pockets. Porting moved to suppress, arguing Hanson lacked authority to consent to the search. The trial court denied her motion, finding Hanson had authority because he was a resident of the home based on his physical presence and intent to remain there permanently. On appeal, Porting argued that although Hanson was a former and prospective resident of the home, he was not a resident at the time of the search. The Court of Appeals found Hanson had authority to consent based on a lack of evidence that he had permanently surrendered control of the residence, his mother had restricted his access, or he was otherwise not welcome. See State v. Porting , 34 Kan. App. 2d 211, 214-15, 116 P.3d 728 (2005). This court reversed, holding the facts did not show Hanson had authority and the inferences drawn from a lack of evidence in the record impermissibly shifted the burden of proof to Porting. See Porting , 281 Kan. at 326-28, 130 P.3d 1173. The Court of Appeals' reasoning here is highly analogous to its reasoning in Porting . An inference is being drawn that Glover was the driver based on a lack of evidence that he was not. See Glover , 54 Kan. App. 2d at 385, 400 P.3d 182. And while Porting related to a warrantless search and this case involves a warrantless seizure, the State has the burden of proof to justify both. See Morlock , 289 Kan. at 985, 218 P.3d 801 ; Porting , 281 Kan. at 324, 130 P.3d 1173 ; DeMarco , 263 Kan. at 732, 952 P.2d 1276. In both cases, the inferences drawn based on a lack of evidence constitute improper burden shifting. See Porting , 281 Kan. at 327-28, 130 P.3d 1173. While these reasons cause us to reject the panel's position, we note that the panel supported its holding by citing several out-of-state decisions. See Glover , 54 Kan. App. 2d at 382-83, 400 P.3d 182 (citing Armfield v. State , 918 N.E.2d 316, 321-22 [Ind. 2009] ; State v. Vance , 790 N.W.2d 775, 781 [Iowa 2010] ; State v. Tozier , 905 A.2d 836, 839 [Maine 2006] ; State v. Pike , 551 N.W.2d 919, 922 [Minn. 1996] ; State v. Neil , 350 Mont. 268, 271, 207 P.3d 296 [2009] ; State v. Richter , 145 N.H. 640, 641-42, 765 A.2d 687 [2000] ;. State v. Edmonds , 192 Vt. 400, 404, 58 A.3d 961 [2012] ). In our reading of these decisions, none of them discuss the underlying assumptions that the district court needed to make here nor do they discuss the problems with inference stacking or with the lack of evidence being produced by the State. Nor do those decisions justify the reasonableness of the assumptions. Instead, many of the decisions rest on the conclusion that common sense tells us that a registered owner is the primary driver of all vehicles registered in his or her name. But as the district court indicated, common experience suggests otherwise. And, as we have discussed, even if we accept that assumption, common sense does not say that someone who cannot legally drive will continue to do so. We cannot assume someone is breaking the law. Finally, we note that some decisions rest on public policy. But we cannot set aside principles of Kansas law simply because valid policy reasons exist for a course of conduct. As a result, we find these decisions unpersuasive, at least as applied to this case. CONCLUSION We reject the Court of Appeals' bright-line, owner-is-the-driver presumption because reasonable suspicion must be based on specific and articulable facts from which rational inferences can be drawn that the detained individual is committing, has committed, or is about to commit a crime. The State has the burden to prove the officer had reasonable suspicion, and this burden cannot be shifted to the defendant. When a court draws inferences in favor of the State based on a lack of evidence in the record, it impermissibly relieves the State of its burden. To be clear, reasonable suspicion is a low burden. The State does not need overwhelming evidence to satisfy its burden, but it must affirmatively produce evidence showing the officer rationally inferred criminal activity based on specific and articulable facts. See Terry , 392 U.S. at 21, 88 S.Ct. 1868 ; Morlock , 289 Kan. at 985, 218 P.3d 801 ; Porting , 281 Kan. at 327-28, 130 P.3d 1173. Here, the problem is not that the State necessarily needs significantly more evidence; it needs some more evidence. What more is required turns on the totality of the circumstances, which courts must determine case by case. See DeMarco , 263 Kan. at 734-35, 952 P.2d 1276. In plain terms, it does not matter if the evidentiary gap is an inch or a mile; if the State has the burden to fill it, it must do so with evidence . A court cannot engage in judicial gap-filling based on a lack of evidence. See Porting , 281 Kan. at 327-28, 130 P.3d 1173. Today, we decline to delineate the type of corroborating evidence that will satisfy the State's burden. We cannot imagine all the ways the gap could be filled. But we recognize that in other cases, the State, by presenting some more evidence, may meet its burden. But the State did not present any such evidence here, so the question of what evidence is necessary is not before us. Also, we stress that the reasonable suspicion analysis is not amenable to checklists. Courts must determine the quantity and quality of the evidence supporting an officer's actions on a case-by-case basis under a totality-of-the-circumstances analysis. See DeMarco , 263 Kan. at 734-35, 952 P.2d 1276. "Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result [the United States Supreme] Court has consistently refused to sanction." Terry , 392 U.S. at 22, 88 S.Ct. 1868. The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed.

The opinion of the court was delivered by Beier, J.: This appeal examines summary judgment granted to a title company on negligence and breach of fiduciary duty claims, which arose out of the company's 2008 omission of a reserved mineral interest in a deed and its handling of a 2014 conveyance. The district court judge ruled that the claims were launched too late. A panel of our Court of Appeals reversed, and we granted the title company's petition for review. We now hold that summary judgment was granted in error, although our reasoning in support of that conclusion differs somewhat from that of the panel. We reverse the judgment in favor of the title company on the negligence and breach of fiduciary duty claims and remand the case to the district court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On its way to summary judgment in district court, third-party defendant Rice County Abstract & Title Co., Inc. (RCAT), set forth 22 paragraphs of what it asserted were uncontroverted facts. Defendants/third-party plaintiffs (the Falens), successors in interest to the Mary Louise Falen-Olsen Trust (the Trust), attempted to contest seven of the paragraphs, and the district judge assumed the Falens' versions were true for purposes of ruling on the motion. See Drouhard-Nordhus v. Rosenquist , 301 Kan. 618, 622-23, 345 P.3d 281 (2015) (district court required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of nonmoving party). The Falens also listed 56 additional paragraphs of what they asserted were uncontroverted facts. Although RCAT, in turn, attempted to challenge certain of those 56 paragraphs, we have carefully reviewed all of the parties' pyrotechnic tit for tat, and we perceive no disputes on core facts necessary to resolution of this appeal, other than as specifically noted below. The roots of this case can be traced to November 20, 2007, when the Trust entered into a contract to convey approximately 200 acres of Rice County land to Sammy Dean. The Trust had owned all of the surface rights and an undivided one-half mineral interest in the land. The contents of the listing agreement, an advertising brochure, and the eventual sale contract are consistent in reflecting the contemporaneous intention of the Trust and Dean that the Trust would sell the surface rights and retain the mineral interest. RCAT was the closing agent and the title insurer on the sale. It charged half of its fee to Dean and the other half to the Trust. It did not include any reference to the mineral reservation in the deed it prepared, although it had a copy of the sale contract. RCAT has asserted that it sent the deed to third-party plaintiffs Gregory A. Falen and Julie D. Falen, co-trustees of the Trust, for "review and signature," but Gregory and Julie have asserted that the deed was sent to them by RCAT only for signature. Neither Gregory nor Julie nor any other representative of the Trust asked RCAT about the mineral reservation before Gregory and Julie executed the deed. The deed was filed and recorded in Rice County on January 18, 2008. After the Trust's sale of the land to Dean, the Trust transferred what all concerned believed was still its mineral interest to the Trust's beneficiaries. The beneficiaries, in turn, made several additional transfers of the interest among themselves, executing and recording mineral deeds and quitclaims with the Rice County Register of Deeds. On March 6, 2008, Dean conveyed his interest in the property to SDM Properties2, LLC (SDM2), evidently an entity owned, at least in part, by Dean. From January 2008 until August 2014, the Trust and then its successors in interest continued to be paid royalties for mineral production from the land sold to Dean. The Trust and then its successors in interest also continued to pay all property taxes associated with that production. In April 2014, LCL, LLC, a company formed by Ron Laudick and Cheryl Armstrong, agreed to buy the property from SDM2. Before this conveyance was finalized, Laudick sent Dean an e-mail acknowledging "that the mineral rights do not go with the property." RCAT again acted as the closing agent and title insurer for the 2014 transaction. Again, the deed prepared to record the conveyance did not note the Trust's 2008 mineral right reservation. After the 2014 sale closed, Laudick contacted RCAT about the mineral rights on the property. He asked about the discrepancy between Dean's understanding of the ownership and RCAT's title commitment. RCAT conducted a title search and discovered that the 2008 deed had not included the reservation of the Trust's mineral interest. RCAT did not contact the Trust or its successors in interest, but it asked LCL to sign a corrected deed to remedy the omission. LCL refused. The Trust's successors in interest first learned of the brewing dispute in August 2014, when the company operating the oil and gas lease on the property contacted Gregory about LCL's claim of ownership and the right to receive royalties. Royalty payments to the Trust's successors in interest were suspended by August 21, 2014. LCL filed a petition to quiet title on the mineral interest on September 22, 2014. It named as defendants the Trust's successors in interest-Gregory; Julie; James W. Falen, in his capacity as sole trustee of the James W. Falen Living Trust U/A dated April 30, 2007; and Maryl M. Wesolowski. LCL asserted that its interest in the mineral rights was superior to the interest claimed by any defendant. On December 1, 2014, the Falens filed an answer denying LCL's ownership of the mineral interest and a counterclaim to quiet title in their favor, based in part on the assertion that LCL did not qualify as a bona fide purchaser because it had actual notice that the mineral right was not included with the land. The same day, the Falens also filed a third-party petition against RCAT, alleging RCAT had been negligent and had breached an implied contract by failing to include the mineral reservation in the deed it prepared and recorded for the 2008 sale. RCAT moved for summary judgment on the Falens' third-party claims. It argued that any injury to the Trust and the Falens occurred in January 2008 and thus the applicable two-year statute of limitations had expired. See K.S.A. 60-513(a)(4). Specifically, RCAT argued that the "the uncontroverted facts establish that the [Trust] knew or could have known of the error in the deed in January 2008" because Gregory and Julie had received the 2008 deed two days before they executed it and returned it to RCAT. In the alternative, RCAT argued that K.S.A. 58-2222 charged the Trust and its successors in interest with constructive notice of the contents of the 2008 deed as it was filed and recorded. A few days later, the Falens moved to amend their third-party petition, seeking to add allegations regarding the 2014 sale and a claim for breach of fiduciary duty by RCAT. Although this motion was never ruled upon, the district judge thereafter treated the amended petition as the controlling pleading for the Falens' third-party claims. In their response to the RCAT motion for summary judgment, the Falens argued that the "clear language of K.S.A. § 60-513(b) indicates the limitation period is triggered by both the act which causes injury and the existence of substantial injury." They also argued that " 'in a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for determination by the trier of fact.' " They asserted that a genuine issue of material fact exists in this case on when their injury from RCAT's omission of the mineral reservation in the 2008 deed became reasonably ascertainable. With respect to RCAT's argument that the Falens had constructive notice under K.S.A. 58-2222, the Falens cited Luthi v. Evans , 223 Kan. 622, 629, 576 P.2d 1064 (1978), for the proposition that the purpose of the recording statute is to " 'impart to a subsequent purchaser notice of instruments which affect the title to a specific tract of land in which the subsequent purchaser is interested at the time.' " Because they did not qualify as subsequent purchasers, the Falens argued, they were not in the class of individuals whom the Legislature intended to charge with constructive notice under K.S.A. 58-2222. The district judge bifurcated the quiet title action between LCL and the Falens from the Falens' third-party claims against RCAT. LCL and the Falens entered into a confidential settlement, and the judge dismissed the quiet title action on November 23, 2015. RCAT's reply in support of its motion for summary judgment, filed in December 2015, repeated its actual and constructive notice claims, adding that any allegation that Gregory and Julie were inexperienced with reviewing deeds was irrelevant because the standard for whether the Falens' substantial injury was "reasonably ascertainable" is objective rather than subjective. After a hearing, the district judge granted summary judgment to RCAT on all of the Falens' claims. His journal entry of judgment and memorandum opinion read in pertinent part: "The Court having reviewed the pleadings filed by the parties, and after hearing the argument of counsel, finds that Third Party Defendant Rice County Abstract & Title Company Inc. is entitled to summary judgment on the basis that the statute of limitations bars all Third Party Plaintiff James Falen et al. claims against Third Party Defendant Rice County Abstract & Title Company, Inc." "The Court wants to make clear it is not considering any of the merits of the causes of actions presented by the [Falens] in the Motion for Summary Judgment. This decision is based on the application of the appropriate statute of limitations only. ... "... The [Falens] have alleged both [contract and tort causes of action], but certainly the statute of limitations for contract would have run. The factual statements are clear [that] the event giving rise to the cause of action for contract occurred no later than the filing of the defective deed on January 18, 2008. Suit in this matter was filed (through the Third Party Petition) on December 1, 2014. This would be a period of 6 years 317 days. ... "Certainly if this matter was a contract claim, the longest of possible statute of limitations would be 5 years on a written contract, though there have been no factual allegations made by the [Falens] that there ever was a written contract between the parties. An implied contract would have a statute of limitations of 3 years. See K.S.A. 60-512 and K.S.A. 60-513.... Certainly, if the cause of action is for breach of contract that existed, the statute of limitations has run. "The [Falens] have argued they have many causes of action in tort including breach of fiduciary duty, professional negligence, etc., but none carry any longer statute of limitations. Therefore, the longest of statute of limitations available to the [Falens] is that found for [tortious] conduct set out in K.S.A. 60-513 which provides that actions for injuries to the rights of another, not arising on contract, shall be brought within 2 years, subject to the proviso that the cause of action shall not be deemed to have [accrued] until the act giving rise to the cause of substantial injury is discovered, or is reasonably ascertainable, but no more than 10 years from the initial act. The [Falens] don't argue there is any longer statute of limitations available to them, they simply argue that their injury did not become reasonably ascertainable until 2014, when they received notice of a claim to oil runs they had received before and after the deed of 2008, well within the 2 year statute of limitations. .... "At this point the Court needs to note the record and statement of uncontroverted facts provided by the [Falens] is overwhelmingly convincing that a factual issue has been accreted that they had no actual realization of the injury until this time. Without detailing each factual statement, it is clear the [Falens] have alleged they continued to receive oil runs, continued to pay taxes, and proceeded to deed the mineral interest they believe they had retained which would be consistent with their claim of the time of 'actual' discovery of the injury. The Court makes it clear the required decision that the Court believes it must make is not based on the actual discovery of the injury but on the strong case law indicating the statute of limitation begins to run when the injury 'becomes reasonably ascertainable' not the fact the [Falens] failed to do so. "The [Falens] cited in their brief Knight v. Myers 12 Kan. App. 2d 469, at 474 [748 P.2d 896] (1988) the very clear understanding of Kansas law which provides: 'An injury is reasonably ascertainable when the plaintiff knew or could reasonably have expected to know of the alleged negligence.' "[The Falens] also cite Gilger v. Lee Const., Inc., 249 Kan. 307 at p. 311 [820 P.2d 390] (1991) : 'In a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for determination by the trier of fact.' "Both of these cases are cited in Bi-State Development Co., Inc. v. Shafer, Kline & Warren, Inc., 26 Kan. App. 2d 515, 990 P.2d 159 (1999)." The district judge quoted Bi-State at length and concluded that its application of K.S.A. 58-2222 to bar a claim based on a recorded easement would drive his disposition of the negligence claim advanced by the Falens here. In Bi-State , the June 10, 1986, recording of an inconsistent easement imparted " 'notice to all persons of the contents thereof' " under the statute, and a Court of Appeals panel held that it made the plaintiff's injury "reasonably ascertainable." Although the plaintiff filed suit within two years of its discovery of the inconsistency, the claim came more than 10 years after the easement was recorded. 26 Kan. App. 2d at 519-20, 990 P.2d 159. The district judge in this case continued: "In the matter, there is no disputed fact that the act giving rise to the cause of action [occurred] no later than January 18, 2008 when the Deed in question was filed of public record. The question then becomes, under the facts as stated by the [Falens], is there a material fact in dispute that must be resolved to determine if the act giving rise to the cause of action was not reasonably ascertainable. The Court believes as a matter of law, as determined in the Bi State case above, that the injury was reasonably ascertainable based upon the undisputed facts on January 18, 2008 simply by reviewing the deed placed of public record. Again, the decision of this Court is not based upon the actual awareness of the [Falens] that the minerals had not been reserved in the deed. It is based on the fact that as a matter of law, it would have been reasonably ascertainable by anyone who cared to take a look at the recorded deed that the minerals had not been reserved. "The [Falens] argue they are not experts and should not be required to understand the deed conveyed the minerals as written. ... While they may not have personally understood ..., the Bi State case makes it clear: 'the statute charges notice to "all persons," not just experts.' It is certain from the facts viewed in the light most favorable to the [Falens] this deed was drawn appropriately to convey the minerals and is unambiguous as to that purpose, even if it shouldn't have. This deed conveyed notice to all when it was filed even if those reviewing it needed assistance from an expert to understand its meaning. If the [Falens] had asked an expert to view the records and interpret the deed for them, the expert would have told them so. It was reasonably ascertainable when it was filed that the injury occurred." The district judge also granted judgment to RCAT on the breach of fiduciary duty claim, despite the Falens' argument that it arose out of RCAT's behavior in 2014 rather than or in addition to RCAT's behavior in 2008. "The final argument made by the [Falens] is that they have a new cause of action that did not accrue until 2014, that is separate and apart from the 2008 alleged acts of negligence and therefor this new cause of action is well within the statute of limitations. Certainly if that is the case, the matter should proceed on the new cause of action only. However, if this new cause of action is nothing more than an extension or a continuing of the harm created in the original act, the statutes still commence when the harm, not the extent of it, was reasonably ascertainable. .... [T]his new cause of action is based on an alleged duty of RCAT as a fiduciary of the [Falens] to protect them and look out for their best interest far into the future, or at least up until the point that they issued a new title insurance policy on the next sale of the same real estate, all because they undertook the closing of their real estate sales contract and the drafting of the deed in 2008. Further, RCAT owed a duty to the mineral deed holders whose mineral deeds were not in the chain of title as a result of the 2008 deed. That duty also relates back to the [Falens] pursuant to the fiduciary duty that they have alleged existed[,] all as a result of the undertaking to act in a professional capacity at the time of closing and the drawing of the ill-fated deed. "This Court in this opinion is clearly not addressing whether such a cause of action can be maintained or whether such a fiduciary duty existed. For the purposes of this opinion this Court will draw the inference most favorable to the non-moving party and assume such a cause of action does exist. However, this Court must still address the application of the statute of limitations to it. It is this Court's opinion that such cause of action could arise solely out of the same act that occurred when the deed was prepared and filed in 2008. If that error did not occur, there would be no cause of action under this new theory of liability. The statute of limitations for a breach of fiduciary duty, professional or otherwise, and this new cause of action is the same[.] K.S.A. 60-513... is not based on when the injury stops nor even on the last act of negligence alleged, but when the act first causes substantial injury or it is reasonably ascertainable. The alleged facts, undisputed facts for the purposes of this decision, even when viewed in the light most favorable to the [Falens], clearly indicate the first substantial injury was the loss of their mineral interest they intended to retain. That is an essential element of this new cause of action and the new cause of action would not exist without it. As state[d] previously, as a matter of law, this act was reasonably ascertainable when the deed was recorded in 2008. .... "This Court appreciates, under the alleged facts as drawn in the light most favorable to the nonmoving party, that the [Falens] were completely unaware of this until someone contested their right to receive oil runs in 2014. The alleged facts demonstrate an egregious wrong for which recourse should be available and would be if the statute of limitations had not run." The Falens appealed only the summary judgment on their negligence and breach of fiduciary duty claims to the Court of Appeals. See LCL, LLC, v. Falen , 53 Kan. App. 2d 651, 652, 666, 390 P.3d 571 (2017). The panel reversed RCAT's summary judgment on the negligence claim because, in its view, the Falens did not sustain damages, an essential element of a negligence cause of action, until August 2014, when they stopped receiving royalties under the oil and gas lease. Although the Falens suffered a legal or "paper" injury when RCAT recorded the 2008 deed without reserving the mineral right, the Falens had no cognizable monetary damages until the royalties stopped. 53 Kan. App. 2d at 660-61, 390 P.3d 571. The panel discounted the district judge's reliance on constructive notice. Such notice was immaterial because this was a case "where a negligent act causes a substantial injury that does not actually occur until sometime later." 53 Kan. App. 2d at 663-64, 390 P.3d 571. On the Falens' claim that RCAT undertook a fiduciary duty in 2008 and breached or continued to breach it in 2014, the panel also reversed the summary judgment. Again, the panel concluded that the breach did not become actionable until the Falens stopped receiving royalty payments. 53 Kan. App. 2d at 666, 390 P.3d 571. We granted RCAT's petition for review on what it styled as two issues: (1) When did the statute of limitations begin to run on the Falens' causes of action? and (2) Did K.S.A. 58-2222 impart constructive notice to the Falens? We take the liberty of examining these two questions after combining them into the only one that matters: Did the Court of Appeals err in reversing the district judge's summary judgment in favor of RCAT on the Falens' negligence and breach of fiduciary duty claims? DISCUSSION We take up the Falens' tort claims in the order they were advanced. Negligence The standard governing summary judgment is well established: " 'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' Bank v. Parish, 298 Kan. 755, Syl. ¶ 1, 317 P.3d 750 (2014)." Drouhard-Nordhus , 301 Kan. at 622, 345 P.3d 281. Under K.S.A. 60-513(a)(4), an "action for injury to the rights of another, not arising on contract, and not herein enumerated," "shall be brought within two years." The Falens' negligence claim is governed by this two-year limitations period. See Baska v. Scherzer , 283 Kan. 750, 755, 156 P.3d 617 (2007). The Falens' negligence claim "shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party." K.S.A. 60-513(b). This court has defined "substantial injury" to mean "actionable injury." " 'The rule which has developed is: The statute of limitations starts to run in a tort action at the time a negligent act causes injury if both the act and the resulting injury are reasonably ascertainable by the injured person. In Hecht [v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971) ], neither the negligent act nor the injury were ascertainable until a later date. ... We hold the use of the term "substantial injury" in the statute does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Rather, it means the victim must have sufficient ascertainable injury to justify an action for recovery of the damages, regardless of extent. An unsubstantial injury as contrasted to a substantial injury is only a difference in degree, i.e., the amount of damages. That is not a legal distinction. Both are injuries from which the victim is entitled to recover damages if the injury is the fault of another. ... Therefore, we construe the phrase "substantial injury" in K.S.A. 60-513(b) to mean "actionable injury." ' " Moon v. City of Lawrence , 267 Kan. 720, 727-28, 982 P.2d 388 (1999) (quoting Roe v. Diefendorf , 236 Kan. 218, 221-23, 689 P.2d 855 [1984] ). In general, " 'a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. ... [A]n action accrues [when] the plaintiff could first have filed and prosecuted his action to a successful conclusion.' " Mashaney v. Board of Indigents' Defense Services , 302 Kan. 625, 631, 355 P.3d 667 (2015) (quoting Pancake House, Inc. v. Redmond , 239 Kan. 83, 87, 716 P.2d 575 [1986] ); see also Garcia v. Ball , 303 Kan. 560, 574, 363 P.3d 399 (2015) (criminal defendant's legal malpractice claim accrues when he, she exonerated, i.e., when defendant obtains postconviction relief); Brueck v. Krings , 230 Kan. 466, 470-71, 638 P.2d 904 (1982) (knowledge of fact of injury, not extent of injury triggers statute of limitations); Kitchener v. Williams , 171 Kan. 540, 236 P.2d 64 (1951) (statute of limitations ran from time of explosion of negligently installed heater, not from time of installation), superseded by statute as stated in Tomlinson v. Celotex Corp. , 244 Kan. 474, 770 P.2d 825 (1989). Based on the governing law reviewed above, there are two inquiries relevant to determining when the statute of limitations on the Falens' negligence claim began to run: (1) When did the Falens suffer an actionable injury-i.e., when were all the elements of the cause of action in place? and (2) When did the existence of that injury become reasonably ascertainable to them? The Court of Appeals' decision focused mainly on the first question, the district judge on the second. We disagree with the answers arrived at by each. On the first question, the Falens immediately suffered more than a mere paper injury on January 18, 2008, when the deed for the Trust-to-Dean sale was filed and recorded. As of this date, at a minimum, a cloud on their title to the mineral interest arose. Equitable relief may be available when real property has been included in a deed by mistake and the parties never intended that it should be conveyed. Schlatter v. Ibarra , 218 Kan. 67, Syl. ¶¶ 2-3, 542 P.2d 710 (1975). Moreover, an instrument may be reformed even though the parties did not carefully examine the document before executing it. 218 Kan. 67, Syl. ¶ 8, 542 P.2d 710. Mere negligence is not a bar to reformation when the ground for reformation is mutual mistake. 218 Kan. 67, Syl. ¶ 9, 542 P.2d 710. But the party seeking reformation of a deed must show the mistake and the prejudice that will result from failure to reform the instrument. See Unified Gov't of Wyandotte Cty./Kansas City v. Trans World Transp. Servs., L.L.C. , 43 Kan. App. 2d 487, 493, 227 P.3d 992 (2010) (When property included in deed because of mutual mistake, "the grantor is under no obligation to convey such property, and the grantee has no right to retain such property."). The Falens suffered a substantial injury on January 18, 2008, because demonstrating the existence of a mutual mistake justifying reformation of a deed is bound to be a costly process. In addition, although there is ample evidence in this case that the 2008 deed's failure to reserve the mineral right was the product of the mutual mistake of the Trust and Dean, the Falens' ability to seek reformation faced a five-year deadline. See K.S.A. 60-511(5). Thus the Falens' substantial, actionable 2008 injury was compounded on January 18, 2013, when their equitable cause of action for reformation would no doubt face a statute of limitations problem of its own, possibly one that would sap its legal potency. This brings us to the second question: When did the existence of the 2008 substantial, actionable injury become reasonably ascertainable to the Trust or the Falens? This is the question on which the district judge concentrated. As he noted, Kansas law requires that the Falens' negligence claim have been brought within two years unless the fact of injury was not reasonably ascertainable until sometime after the act causing the injury. K.S.A. 60-513(b). And, when disputed evidence exists about when an injury became reasonably ascertainable, the trier of fact makes the determination. See Gilger , 249 Kan. at 311, 820 P.2d 390. Our recent decision in Armstrong v. Bromley Quarry & Asphalt, Inc. , 305 Kan. 16, 378 P.3d 1090 (2016), is instructive on the contours of the "reasonably ascertainable" standard. In that case, we examined when the statute of limitations began to run for plaintiff Willis L. Armstrong's trespass claim based on unauthorized subsurface mining. We noted: "Because the mining occurred below ground level, [the defendant quarry company's] intrusion upon the Armstrong property and theft of the rock would not have been immediately apparent to Armstrong, without more. And under these facts, that something more must have been the house shaking that Armstrong discerned to be from blasting somewhere on the property and the suspicions of unauthorized mining based on previous business dealings with [the defendant]." 305 Kan. at 28, 378 P.3d 1090. In other words, the shaking was a trigger for further investigation. Once Armstrong felt it, we asked: "[W]hat, if anything, could Armstrong have done next to ascertain the fact of this injury?" The answer: "[I]t is undisputed Willis [Armstrong] obtained maps from the regulatory agencies, some of which Bromley Quarry had prepared. Without exception, those maps incorrectly showed there had been no mining on the Armstrong property. The [Court of Appeals] noted that after inspecting these maps, Willis did not try to get 'his own survey or inspection of his property, he never had cores drilled, and did not ask any government agency for help during the time when his suspicions arose, although he did consider it.' But what would cause a reasonably prudent landowner to take this additional action under the circumstances-after reviewing maps on file with regulatory agencies that showed no mining had occurred on his or her property? The limited record here does not explain that, and neither the panel nor the district court delved further into this to consider how that might impact the statute of limitations analysis. And the panel arrived at its conclusion [that summary judgment was proper] even though there is nothing in the record that informs whether such activities would have been possible, practical, or effective. [Citation omitted.]" 305 Kan. at 29, 378 P.3d 1090. Because of our inability as an appellate court to do fact-finding on whether further followup was necessary for "reasonable" conduct on Armstrong's part and whether any of the other avenues for investigation alleged to be available would have disclosed the quarry company's wrongful conduct, we could not "conclude as a matter of law that any mining was reasonably ascertainable." 305 Kan. at 32, 378 P.3d 1090. We therefore reversed the district court's summary judgment in favor of the quarry company based on the expiration of the statute of limitations. In this case, RCAT has argued that the Trust and the Falens knew or should have known of their substantial injury in January 2008. Its actual notice argument is based on its assertions that it sent the 2008 deed to Gregory and Julie for review and signature and that they had it in their possession for two days before executing it and returning it to RCAT for filing and recording. But Gregory and Julie say the deed was sent to them simply for their signatures as co-trustees; they were not expected to and did not review it; further, they did not understand that its technical language failed to effect the intended mineral right reservation for the Trust. If Gregory and Julie signed the deed without reviewing and understanding it, as they insist, then they did not have actual notice of its content. This genuine issue of material fact prevented summary judgment on RCAT's actual notice theory. Instead, the district judge relied on RCAT's "should have known" argument that substantial injury to the Trust and the Falens was reasonably ascertainable on January 18, 2008. RCAT persuaded the district judge that the constructive notice provision in K.S.A. 58-2222 was controlling. That statute provides: "Every ... instrument [conveying real estate] in writing, certified and recorded ... shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice." Relying in part on Black v. Black , 64 Kan. 689, 68 P. 662 (1902), and Hutto v. Knowlton , 82 Kan. 445, 108 P. 825 (1910), RCAT argues that "[t]he rule in Kansas for over 100 years has been that the constructive notice imparted by [ K.S.A. 58-2222 ] is sufficient for purposes of accrual of the statute of limitations." Although such a broad rule might be supported by reading Black alone, the later Hutto decision clarified that constructive notice is imparted only to those who have a duty to investigate, a concept eventually echoed in our Armstrong decision: "Where a public record is required by law to be kept as a source of information respecting property rights and interests, a duty rests upon anyone to whom the information is material to improve with diligence the opportunity of learning that which the record discloses. It follows that, if the opportunity be neglected, the interested person will be bound to the same extent as if he had in fact examined the record. But the rule is no broader than its basis, and if for any reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain ." (Emphasis added.) Hutto , 82 Kan. at 448-49, 108 P. 825. RCAT also relies on the Court of Appeals' more recent decision in Bi-State Development, 26 Kan. App. 2d 515, 990 P.2d 159. In that case, defendant Shafer, Kline & Warren, Inc., prepared a real estate plat for a business park of plaintiff Bi-State Development Co., Inc. The plat showed an easement, and the plat was presented to, and approved by, the city's planning commission. Another version of the easement was executed by an agent of Bi-State and recorded. The discrepancy between the two versions of the easement went undiscovered until almost 10 years later, when a portion of the real estate was sold. Relying on caselaw charging a landowner with knowledge of zoning ordinances, the Bi-State panel concluded that the recording of the easement imparted constructive notice and started the running of the limitation period. 26 Kan. App. 2d at 516-17, 519, 990 P.2d 159. The Bi-State panel did not discuss how or when Bi-State's duty to investigate the problem arose. 26 Kan. App. 2d at 515, 519, 990 P.2d 159. And unquestioning adherence to its holding would ignore the lesson from our Hutto and Armstrong decisions about the need for a trigger for further inquiry. See Hutto , 82 Kan. at 448-49, 108 P. 825 ; Armstrong , 305 Kan. at 28-29, 378 P.3d 1090. If we were to follow the Bi-State panel's lead in this case, we would equate constructive notice as a matter of law of the contents of a deed with a factual finding of reasonably ascertainable knowledge of a substantial, actionable injury from omission of a mineral interest reservation from that deed. We are unwilling to convert a question of fact into a question of law in this way. In this case, the existence of a recorded deed that does not mention the reserved mineral interest specifically is one piece of relevant evidence among all the facts and circumstances to be considered by the district court fact-finder in answering the "reasonably ascertainable" question. Testimony from RCAT and from Gregory and Julie about their duties on receipt of the deed RCAT sent to them is additional relevant evidence. Certainly, as the Court of Appeals panel recognized, evidence of the Trust's and the Falens' continuing receipt of royalties and payment of taxes also will be relevant, particularly on the issue of whether the Trust's or the Falens' duty to investigate matters further should have been triggered under Hutto and Armstrong . The significance of the transfers among the Trust's beneficiaries after the 2008 sale also must be considered. In short, the constructive notice of K.S.A. 58-2222 -which is about notice to the world, not to the parties to the real estate conveyance recorded via the instrument-tells only a part of a story still with two competitive sides. The statute is not, as a matter of law, outcome-determinative on what remains a question of fact. For these reasons, we reverse the summary judgment granted RCAT by the district judge on the Falens' negligence claim. We do so for reasons other than those relied on by the Court of Appeals panel. The filing and recording of the 2008 deed did cause the Falens substantial, actionable injury, which means the injury occurred long before the royalty checks quit arriving. But, if the substantial injury was not, as a matter of fact, reasonably ascertainable by the Trust or the Falens before December 1, 2012, the negligence claim is timely under K.S.A. 60-513(a)(4) and (b). We must remand to the district court for further proceedings. Breach of Fiduciary Duty The standard for reviewing summary judgment is the same for the Falens' fiduciary duty claim as it is for their negligence claim. The governing statute of limitations for a breach of fiduciary duty claim also is the same as that for a negligence claim. See K.S.A. 60-513(a)(4). The Trust and the Falens had two years to act on RCAT's alleged breach. It appears that the district judge's summary judgment in favor of RCAT on the Falens' breach of fiduciary duty claim was based on a fundamental misunderstanding of the breadth of the allegations underlying it. It was not, as the judge apparently believed, based only on allegations about RCAT's behavior in 2008 but also on allegations about RCAT's behavior in 2014. As recited in the Falens' amended third-party petition, RCAT, in 2014, "failed to appropriately conduct the title search with respect to the Subject Real Property, failed to appropriately indicate the condition of title or any exceptions thereto in the initial Title Insurance Commitment and Policy, failed to note the interest of the Third Party Plaintiffs in the minerals in the Subject Real Property as would have been readily available through the records located in the Rice County Courthouse, and failed to detect and disclose Third Party Defendants' many previous mistakes in the closing of the Sammy Dean Contract. .... "... The services provided by the Third Party Defendant as to the Sammy Dean Contract and the LCL/SDM Contract were incompetently performed and this constituted a breach of the Third Party Defendant's fiduciary duties to Third Party Plaintiffs." In other words, whatever breach of fiduciary duty may have begun in 2008 continued or was repeated, in the Falens' view, in 2014. Although any breach that occurred in 2014 may be successfully defensible on other grounds not argued before us today, it is simply not excusable from further litigation in this case because of the statute of limitations. The Falens moved to amend their third-party petition to add the breach of fiduciary duty claim on October 5, 2015; and the district judge treated the amended pleading as controlling. Its timing, regardless of whether the amended allegations and additional cause of action related back to the filing of the original third-party petition on December 1, 2014, mean the claim was brought well within the permitted two years following any 2014 breach. We therefore reverse the district judge's summary judgment in favor of RCAT on the Falens' breach of fiduciary duty claim. Again, we must remand this case to the district court for further proceedings. CONCLUSION We reverse the summary judgment granted in favor of RCAT in the district court and affirm the decision of the Court of Appeals. We remand this case to district court for further proceedings consistent with this opinion.

Hill, J.: This lawsuit is an example of what can happen when a municipal government changes directions. Jayhawk Racing Properties, LLC, sued the City of Topeka for breach of contract when the City failed to pay the company, as promised in their contract, almost $2.4 million for its reversionary interest in the land where Heartland Park Raceway is located. When the City refused to issue bonds to pay for the sale, Jayhawk Racing sued, and the City moved to dismiss the action. With the agreement of the parties, the district court treated the motion as one for summary judgment and granted the motion, thus dismissing Jayhawk Racing's lawsuit. We reverse the court's dismissal, finding the court, in granting summary judgment, ignored the fundamental purpose of the contract-to purchase an interest in real estate. This is a proprietary contract. Simply put, the City was buying all interests in a racetrack. Instead, the district court, in a carefully drafted opinion, improperly limited its view of the contract to a contingency promise made by the City to issue Sales Tax and Revenue (STAR) Bonds. Basically, in dismissing the case, the court ruled the City's promise to finance the purchase with this method of financing was beyond its legal authority. In the court's view, this provision is an illegal attempt by one council to bind future city councils, thus making the entire contract unenforceable. But actually, this contract was more than a promise to finance, and that promise is not the purpose of the agreement. We hold the City was not entitled to judgment as a matter of law. We remand for further proceedings. After a brief restatement of the oft-repeated rules of summary judgment, we will review the cases that deal with contracts made by local units of government and explore how the old cases hold them to be unique under our law. Some are enforceable, some are not. After that, we examine the contract here and show how the district court, by limiting its review to a contingency promise, mischaracterized this agreement. We hold this is a proprietary contract and the court erred when it ruled otherwise. The questions of good faith and fair dealing and damages remain for future proceedings in district court. We conclude by rejecting the City's alternative arguments on the Cash-Basis Law and the Budget Law. The parties agree on the facts. Heartland Park is a multi-purpose motorsports facility in Topeka. In 2006, the City issued over $10 million in Sales Tax and Revenue Bonds, known as STAR bonds, to fund improvements to Heartland Park. These STAR bonds allow cities to finance the development or redevelopment of major commercial, entertainment, and tourism districts to stimulate economic growth. When the City issued the STAR bonds, it owned Heartland Park in fee simple for a term of years, subject to Jayhawk Racing's reversionary interest. When the sales tax revenue collected within the STAR bond district was not satisfying the debt associated with Heartland Park, the City became concerned. Thus, the City planned to expand the STAR bond district and acquire Jayhawk Racing's reversionary interest in the land. A "Memorandum of Understanding" and "workout agreement" are pertinent. In June 2014, the City, Jayhawk Racing, Visit Topeka, Inc., and the Kansas Department of Commerce entered into a Memorandum of Understanding. At its beginning, the parties identified their interests and their aims: "Whereas, the parties have concluded that it is in the best interest of the City of Topeka, and the State of Kansas for the City to own both the fee simple interest in the property and the reversionary interest owned by Jayhawk; and accordingly the City desires to purchase from Jayhawk all right, title and interest of Jayhawk ... including the reversionary interest, and Jayhawk desires to sell its reversionary interest .... "Whereas, in connection with the purchase of Jayhawk's reversionary interest and cancellation of the Management Agreement, the City will commence the process of expanding the District, amend the project plan, seek approval of the Secretary of Commerce for the issuance of the additional Star Bonds and issue bonds sufficient to acquire Jayhawk's reversionary interest and pay certain security interests." We cannot ignore the purpose of this contract was the City's intent to buy the racetrack. The Memorandum of Understanding also listed details of price, method, and timing of payment and a pledge of cooperation: "3. Purchase Price. The City agrees to purchase and Jayhawk agrees to sell its reversionary interest to the City for the sum of $2,392,117.00 ('Purchase Price') to be paid on the date of closing. "4. Payment, Obligations of Parties. In connection with the above proposed transaction the City agrees to pay, as of the date of closing, the balance of the indebtedness listed in Exhibit B, including principal and interest and associated costs. ... "5. Date of Payment of Purchase Price. The City agrees to pay Jayhawk the purchase price by February 1, 2015 or within 90 days of the approval by the Topeka City Council of the Star Bond Project Plan. In the event of a protest under the provisions of K.S.A. 12-17,169, payment shall be made within 60 days of the approval of the Plan by a majority of the voters of the City of Topeka. .... "8. Agreement Contingency. The parties acknowledge that this Agreement is contingent on fulfillment of the current contract between NHRA and Jayhawk and increasing the size of the Star Bond district to include the area shown on Exhibit 'C', the approval of the Secretary of Commerce of the State of Kansas approving the redevelopment project plan for the Heartland Park of Topeka Major Motorsports complex and authorization by the City of the issuance of Star Bonds in an amount equal to the financial obligations set forth in this Agreement including all costs associated therewith. It is estimated that approximately $4.8M-$5.5M of Star Bonds will be issued to cover the acquisition and associated costs of issuance. .... "10. Parties Cooperation. The City and Jayhawk agree that they will make commercially good faith reasonable efforts to accomplish the objectives set forth in paragraph 8 of this Agreement in a cooperative manner and the City further agrees to comply with the requirement of good faith and fair dealing." The Memorandum of Understanding makes it clear that the City's obligation to acquire Jayhawk Racing's reversionary interest in Heartland Park depended on the occurrence of several events, including the approval of the STAR bond project plan by the Topeka City Council and the Kansas Secretary of Commerce, and the City's issuance of STAR bonds. Along with the Memorandum of Understanding, the City, Jayhawk Racing, CoreFirst Bank & Trust, and others entered into what they called a "workout agreement." This agreement acknowledged that Jayhawk Racing was in default on some loans it had received from CoreFirst, and it required Jayhawk Racing and the City to sign and then place in escrow deeds conveying their interests in Heartland Park to CoreFirst. In exchange, CoreFirst agreed not to collect the loans or record the deeds until February 28, 2015-the anticipated deadline for issuing the STAR bonds contemplated in the Memorandum of Understanding, although the date could be extended with CoreFirst's consent. In June 2014, the City Council approved both the Memorandum of Understanding and the workout agreement. The City Council passed Resolution No. 8637, which set a public hearing on the City's proposal to amend the Heartland Park redevelopment plan and to issue additional STAR bonds for the redevelopment of Heartland Park. The City Council adopts an ordinance approving the plan. After a public hearing, the City Council adopted Ordinance No. 19915, providing that the existing STAR bond district "shall be expanded" subject to approval of Shawnee County, and adopted and approved the STAR bond plan for the expanded redevelopment district. The ordinance authorized issuing STAR bonds in the estimated amount of $5 million. The ordinance authorized the City Manager "to apply to the Secretary for STAR bond issuance authority to issue additional STAR bonds in an amount in excess of the amount previously approved by the Secretary in relation to the Project." The ordinance included the required notice of the 60-day protest period. This ordinance has never been formally amended, repealed, rescinded, or vacated by the City. The Secretary of the Kansas Department of Commerce conditionally approves issuing STAR bonds . The Secretary of the Kansas Department of Revenue approved the City's request to expand the existing STAR bond district and conditionally approved the City's application to issue additional STAR bonds. A citizen petitions the City to repeal Ordinance No. 19915 or submit a repeal question to the voters. In October 2014, Christopher Imming filed with the City Clerk a petition signed by many residents, seeking to repeal Ordinance No. 19915 or to submit repeal to the voters at a municipal election. In response, the City filed an action in the Shawnee County District Court requesting a declaratory judgment that the Imming petition was an invalid attempt at initiative and referendum. Jayhawk Racing intervened in the litigation. The district court denied the contentions that Imming's petition was technically invalid. But the court did rule in the City's favor by finding that Ordinance No. 19915 is administrative in character and thus exempt from the initiative and referendum law in Kansas. The court also decided that because there is a method in the STAR bond statute for filing a protest petition and obtaining a referendum election on issuing STAR bonds, then Ordinance No. 19915 could not be the subject of initiative and referendum because it was subject to a different kind of election. In other words, this ordinance was one of the statutory exceptions to the initiative and referendum statute. A panel of this court affirmed the district court, holding that the law permitted a referendum election only when a protest petition was filed and Imming's petition was not a protest petition. See City of Topeka v. Imming , 51 Kan. App. 2d 247, 265, 344 P.3d 957 (2015). In April 2015, Imming filed a petition for review with the Kansas Supreme Court and Jayhawk Racing filed a cross-petition for review. The City Council passes a resolution to sell STAR bonds. Meanwhile, the City Council passed Resolution No. 8658, proclaiming its intent to sell STAR bonds at public sale: "That it is hereby determined to be necessary and it is hereby authorized, directed and ordered, that Taxable Full Faith and Credit STAR Bonds, Series 2014-A (Heartland Park), (the 'Bonds') of the City of Topeka, Kansas (the 'City') shall be sold at public sale and in the manner provided by law, on Tuesday, December 16, 2014, at 9:30 a.m. C.S.T. The Bonds shall be in the maximum principal amount of Five Million Dollars ($5,000,000) and shall be dated on or about December 30, 2014." The remaining sections of Resolution No. 8658 authorized and directed various officers and representatives of the City to take the actions necessary to issue lawfully the bonds. The City was not prohibited by the Imming petition or the later Imming litigation from proceeding with the sale of the bonds, and the City Council was made aware of this fact at its meeting on December 2, 2014. The City has sold no STAR bonds under the Memorandum of Understanding, City Ordinance No. 19915, or City Resolution No. 8658 at any time. After a municipal election, the City decides not to proceed with the STAR bond sale. Members of the Topeka City Council are elected to staggered four-year terms. At the regular local election on April 7, 2015, four new members were elected to the City Council. A new breeze was blowing in the City's Council Chambers. But while the petition and cross-petition for review in the Imming case were pending in the Supreme Court, the City Council considered a resolution that would have authorized the City to proceed with the amended Star Bond project plan, including steps toward issuing the STAR bonds. After long debate and taking public comment, the City Council voted 6-4 against the resolution. In other words, the council decided not to proceed with the project. With no new STAR bonds, there would be no funding for the purchase of the reversionary interest in Heartland Park. Eventually, CoreFirst acquired title to Heartland Park by recording the deeds placed in escrow by the City and Jayhawk Racing. On October 7, 2015, the Kansas Supreme Court denied the petition and cross-petition for review in the Imming case. Jayhawk Racing sues for breach of contract. Jayhawk Racing sued the City seeking a declaration of its rights under the Memorandum of Understanding, as well as alleging breach of contract. Later, the City moved to dismiss the first two counts of the petition. The district court treated the motion to dismiss the first two counts as one for summary judgment and granted the motion. The court held "the City's promise to issue STAR Bonds [in the Memorandum of Understanding] is ultra vires and void and cannot be enforced." The court reasoned that issuing STAR bonds was a governmental, rather than a proprietary function and the City's governing body lacked the power to bind its successors to issue STAR bonds to finance the purchase of Jayhawk Racing's reversionary interest in Heartland Park. Jayhawk Racing appeals the dismissal of its claims. In its appeal, Jayhawk Racing focuses on three areas. First, the company contends the district court erred when it ruled that Topeka could not be bound to comply with the agreement because it required a good-faith effort to issue STAR bonds to purchase an interest in real property. Second, the Memorandum of Understanding dealt with a proprietary function and not a governmental function and was, thus, enforceable. Finally, in Jayhawk Racing's view, a city can bind itself to act in the future even if that action may occur after the next municipal election. For its part, the City is happy with the court's ruling, maintaining that it correctly held that Jayhawk Racing had no valid claims for a breach of the Memorandum of Understanding since the contract depended expressly on the approval and issuance of STAR bonds-an event that did not happen. The City contends that Jayhawk Racing's claim that the City breached its covenant of good faith and fair dealing cannot prevail when its enforcement would oblige the City to take governmental action. The City has also tacked on two additional claims not made to the district court. In its view, if the Memorandum of Understanding requires the City to issue STAR bonds, it violates the Kansas Cash-Basis Law and the Kansas Budget Law. We pause here to reflect on the rules of summary judgment. Both parties agree that the district court properly treated the City's motion as one for summary judgment. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue about any material fact and show that the moving party is entitled to judgment as a matter of law. The trial court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Armstrong v. Bromley Quarry & Asphalt, Inc. , 305 Kan. 16, 24, 378 P.3d 1090 (2016). When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute about a material fact. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ about the conclusions drawn from the evidence, summary judgment must be denied. Armstrong , 305 Kan. at 24, 378 P.3d 1090. With no factual dispute, as it is here, appellate review of an order on summary judgment is de novo. Martin v. Naik , 297 Kan. 241, 246, 300 P.3d 625 (2013). Units of government must honor their proprietary contracts. In democracies, changes in public policy are a fact of life. The law places on local governments, such as the City Council of Topeka, the burden to decide what is good for all in the city. But life and governments are seldom static. What was once thought prudent and profitable can, with experience, or as a result of an election, be considered unworthy-even detrimental. Issues once held to be important, even vital, can fade with the replacement of those who make these decisions. Such changes in the goals of government often come after the elections of those responsible for making these decisions. Thus, an issue seen as vital to one council can become insignificant to the council that follows. Such a change in direction is what happened here. This constant flux means those who deal with such units of government must be aware of the possibility of dramatic changes in the course taken by city councils and other units of government. Many of the old cases on these issues warn those who do business with local units of government of the very real potential for change. These cases warn that some contracts will be enforced, some will not. "All parties dealing with a sovereign power ... in the exercise of governmental power ... do so knowing it cannot contract away the power conferred for self-protection or self-preservation. "The rule, therefore, that the legislature can pass no law impairing the obligation of contracts does not apply to parties dealing with a department of government concerning the future exercise of powers conferred for public purposes by legislative acts, where the subject-matter of the contract is one which affects the safety and welfare of the public." Board of Education v. Phillips , 67 Kan. 549, 552, 73 P. 97, 98 (1903). Topeka is a municipal corporation. Municipal corporations are creations of law and can exercise powers conferred only by law. Yoder v. City of Hutchinson , 171 Kan. 1, 8, 228 P.2d 918 (1951). K.S.A. 12-101 expressly states that cities have the power to "[p]urchase ... and hold, real and personal property," and "[m]ake all contracts and do all other acts in relation to the property and concerns of the city." The powers of the city are exercised by the governing body of the city-here, it is the mayor and city council. K.S.A. 12-103 ; K.S.A. 12-104. In particular, cities are expressly given the power "to acquire certain property and to issue sales tax and revenue (STAR) bonds for the financing of STAR bond projects." K.S.A. 2017 Supp. 12-17,160. Uniquely, municipal corporations have dual capacities-governmental and proprietary. "In one capacity they serve as an arm of the state and partake of sovereignty. In the second capacity they exercise powers as an individual corporation." Krantz v. City of Hutchinson, et al. , 165 Kan. 449, Syl. ¶¶ 1-2, 196 P.2d 227 (1948). By understanding their dual capacities, we can see that these contract cases seem to fall into two categories. The first category focuses on property, the second set looks at policy. The cases distinguish between things and exercise of governmental power. The cases refer to this distinction as proprietary versus governmental contracts. We agree with the district court's observation that these are old cases and the statements within them are sometimes not so clear, but they do point us in the right direction. We look first at proprietary contracts. In some ways, local governments are like any other consumer. Cities buy materials, tools, equipment, and labor like anyone else. Public improvements are not built from air. To procure what is needed, the local units of government contract with those people and companies that sell what is needed to do the job. Three cases show proprietary actions. In Newman Mem. Hospital v. Walton Constr. Co. , 37 Kan. App. 2d 46, 64, 149 P.3d 525 (2007), a county hospital brought breach of contract and breach of implied warranty claims against architects who designed a medical building. The architects raised a statute of limitations defense. The county argued the construction of the medical building was a governmental function and thus the statute of limitations did not apply. This court found that the construction and lease of a medical building was a proprietary function. Significantly, the Newman court recognized several factors that Kansas courts have used to distinguish a city's activities: "Factors which have been utilized by Kansas courts in determining whether a governmental entity is carrying on a proprietary or governmental function include (1) whether the activity is for the state as a whole or special local benefit (in our case, the economic benefit of the medical office building flows to Newman and Lyon County); (2) whether the activity arises out of a statutory duty or a privilege granted (in our case, it was a permitted and not a mandated duty); (3) whether the activity is normally done by private entities (in our case, Newman charges market rates and normally makes a gross profit-indicia of a proprietary business); and (4) whether the entity's actions were commercial in nature (in our case, the leasing of a building is a commercial act). These factors all point to requiring a holding that the actions of Newman in this case were proprietary in nature." 37 Kan. App. 2d at 64, 149 P.3d 525. This view was based largely on Krantz , cited previously. In Krantz , to determine whether the city was immune from suit, the court held that the city's construction of a dike outside the city to divert flood waters from their natural course to prevent flood damage to property within the city was a proprietary function. 165 Kan. at 457, 196 P.2d 227. This view is carried forward to International Ass'n of Firefighters v. City of Lawrence , 14 Kan. App. 2d 788, 795-96, 798 P.2d 960 (1990). There the court held that negotiating an employment agreement was an exercise of proprietary or administrative power, rather than governmental or legislative power. The agreement did not concern the general public welfare, but the relationship between the municipality as an employer and its employees. The agreement was binding on the city. We move now to governmental contracts. Several cases show governmental actions. In Phillips , the court determined that the maintenance of public schools is a governmental function. 67 Kan. at 551, 73 P. at 98. Along a similar line, in Whitlow v. Board of Education , 108 Kan. 604, 609-10, 196 P. 772 (1921), where the board of education made a contract to sell a tract of school ground, but later changed its mind and rescinded the contract, the Supreme Court affirmed the district court's refusal to compel specific performance of the contract. That case relied on an earlier case, Construction Co. v. Sedgwick County , 100 Kan. 394, 396, 164 P. 281 (1917), when the court found: "It does not follow that where the controlling body of a public corporation, in the exercise of its judgment as to governmental policy, sees fit to refuse to proceed with a contract to which it has committed itself, preferring to answer in damages for any resulting loss to the contractor rather than to carry out a course which it has determined not to be for the best interests of the community, it can be compelled to perform specifically its engagements by a writ of mandamus." In other words, it is up to the board of education to determine what is necessary for the education of the children, not the courts. In more recent times, in In re Tax Protests of Midland Industries, Inc ., 237 Kan. 867, Syl. ¶ 3, 703 P.2d 840 (1985), the court held that the collection of taxes was a governmental function. In State ex rel. Stovall v. Meneley , 271 Kan. 355, 384, 22 P.3d 124 (2001), to determine whether a suit was barred by the statute of limitations, the court held that a quo warranto proceeding seeking ouster of a public official was a governmental function. In KPERS v. Reimer & Koger Assocs., Inc. , 262 Kan. 635, Syl. ¶ 9, 648, 941 P.2d 1321 (1997), to determine whether a suit was barred by the statute of limitations, the court held that the investment of KPERS funds was a governmental function because it was necessary to promote the public welfare generally. The increase in funds from KPERS's investments reduces the taxes required to fund KPERS's liability to its beneficiaries. Importantly, the details of financing public projects may, at times, be proprietary and not governmental. For example, issuing bonds is not necessarily a governmental function. In Brown-Crummer Investment Co. v. Arkansas City , 125 Kan. 768, Syl. ¶ 1, 266 P. 60 (1928), the court held valid a contract by the city to deliver bonds to pay for the construction of a sewer. The court wrote: "It must be granted that the construction of a sewer being a provision to conserve the public health is a governmental or public function rather than a private or proprietary one. ... [But] it does not necessarily follow that the contract for the sale of the bonds to plaintiff is subject to rescission or repudiation by the city. The contract for the delivery of bonds was something apart from the contract to build the sewer." 125 Kan. at 772-73, 266 P. at 62. The city entered into a contract with a contractor to build a sewer. The city later contracted with the plaintiff, who had agreed to finance the contractor, to deliver the bonds to plaintiff for payment of the sewer. The court found that the contract made with the plaintiff for delivery of the bonds was a different transaction and that delivery of the bonds was not a governmental function, but a private or administrative one. 125 Kan. at 773-74, 266 P. at 63. Along the same line of reasoning the court in Woods v. Homes & Structures of Pittsburg, Kansas , 489 F. Supp. 1270, 1300 (D. Kan. 1980), held that whether the city's acts were governmental or proprietary was ultimately to be made at trial, but that issuing industrial revenue bonds under the permissive authority given to the city by statute to finance the acquisition of real estate, construction of a facility, and leasing of the facility to a private for-profit business constituted proprietary conduct. In order to illustrate the contrast, we point out that in Cromeans v. Morgan Keegan & Co., Inc. , 1 F.Supp.3d 994, 999-1001 (W.D. Mo. 2014), the Missouri court held that a municipality's issuance of bonds for a project was a governmental function when the legislature expressly stated that the bonds were to serve "an essential public and governmental purpose," the benefit was not limited to the city's residents, and the city obtained no profit or benefit from the construction of the facility, except for job creation and other general economic stimulation. Economic stimulation is "an essential public and governmental purpose." 1 F.Supp.3d at 999-1000. The court distinguished Woods because it involved the application of Kansas law. 1 F.Supp.3d at 1001. Then, moving on to secondary sources of the law, McQuillin's Law of Municipal Corporations states that the "right to issue bonds ... has been characterized as neither a political nor governmental power, but a private corporate power conferred for local purposes." 15 McQuillin Mun. Corp. § 43:20 (3d ed. 2016). A panel of this court has previously in Imming considered whether Ordinance No. 19915 was an "administrative" or a "legislative" matter to determine whether the ordinance was subject to the initiative and referendum petition process under K.S.A. 12-3013(e)(1). The Imming court found: "[W]e cannot see this as a subject of statewide concern as contemplated by the McAlister test . The acquisition of a racetrack by the City is clearly a local concern. "We agree with the district court that the centerpiece of Ordinance No. 19915 is the acquisition of the Heartland Park Raceway. This overriding purpose of the ordinance simply outweighs the procedural details that are necessary to obtain STAR bonds. It does not appear that Ordinance No. 19915's administrative characteristics outweigh the general purpose of the ordinance, which is the purchase of a race track. "We reject the City's (joined by Jayhawk Racing) assertion that simply because this project is to be financed by STAR bonds, then this is automatically an administrative ordinance beyond the reach of initiative and referendum." 51 Kan. App. 2d at 258-59, 344 P.3d 957. That analysis is not flawed and reinforces our view that this is a proprietary contract to buy the racetrack mentioned in the Ordinance listed above. We examine the district court's holding. The district court focused on the City's promise to issue STAR bonds, stating that "Plaintiffs paint with too broad a brush" when discussing the City's promise to purchase the racetrack. The court then reasoned that issuing STAR bonds was a governmental function because of the express language in K.S.A. 2016 Supp. 12-17,160 et seq., stating that the purpose of the STAR Bonds Financing Act was to benefit the general and economic welfare of the state as a whole, and issuing STAR bonds is something only a government can do. But the transaction described in the Memorandum of Understanding contains both governmental and proprietary elements, thus we take a broad view of this action at issue. See Reimer & Koger , 262 Kan. at 666-67, 941 P.2d 1321. The Memorandum of Understanding was a purchase agreement. The City agreed to purchase Jayhawk Racing's reversionary interest in the racetrack and pay off its debts. The purchase was part of a plan that included increasing the size of the existing "STAR bond district" to divert state and local sales tax revenues from the businesses in the expanded district to pay off the original and new STAR bond debt, and to save Heartland Park from foreclosure. While it is true that the parties recognized that their agreement was contingent on the City getting necessary approval to expand the STAR bond district and issuing STAR bonds to pay for the acquisition, we see no real distinction between these facts from those in Brown-Crummer Investment Co. We now look at Jayhawk Racing's second issue. Jayhawk Racing contends that its agreement with the City is enforceable even though it bound the City to future good-faith efforts because it did not deprive the City of its ability to exercise any of its core governmental functions either now or in the future. The City contends that the City Council could not bind a later City Council to issue STAR bonds and purchase Jayhawk Racing's reversionary interest because each City Council must have absolute discretion. The City contends that "the ability of the City's taxpayers to elect new council members that might approve a course of action different from that contemplated in the [agreement] is the cornerstone of the democratic process." We are not so convinced. That argument seems to lead us to a conclusion that no contract with a city could ever be enforced if a new council wanted to repudiate it. The cases do not seem to adopt such a view. We note some fundamental principles at this point. "Where general power is given to an administrative board to manage and control property it has the power to make a contract concerning such property extending beyond the term of the members thereof, if such contract is reasonable and not contrary to public policy." Fisk v. Board of Managers , 134 Kan. 394, Syl. ¶ 1, 5 P.2d 799 (1931) (upholding contract where Board leased farm to plaintiff for five-year term to supply milk to a state soldiers' home). The term would exceed the term of those on the city council. Kansas courts have often upheld contracts that extend beyond the term of the governing body's members when the contract was in the interest of the public health and welfare, and the courts have held such contracts invalid only when the contract interfered with the governing body's ability to protect the public health, safety, and welfare. The cases below are in chronological order. We review the cases that have examined the enforceability of municipal contracts. We begin with Phillips , where the owner of bonds issued by the school board sought an injunction restraining the school board from issuing additional bonds to purchase a site to build a school as authorized by a current act of the Legislature. The owner argued the school board was contractually obligated not to issue bonds until the outstanding bonds were paid in full. The court found that the "maintenance of public schools is an exercise of governmental power in the interest of public morals and the general welfare of the people." 67 Kan. at 551, 73 P. at 98. The court found that "the plaintiff in purchasing the bonds did so knowing that the board could not contract away its power to exercise in the future the authority conferred upon it by the state for the administration of its public affairs." 67 Kan. at 553, 73 P. at 98. Supervision of the public health and public morals by the government is continuing in nature and " 'are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them.' " 67 Kan. at 553, 73 P. at 98. Next, we consider State ex rel. v. Linn County , 113 Kan. 203, 213 P. 1062 (1923). In December 1922, the board of county commissioners entered into contracts for the construction of three bridges. In January 1923, there was a change in board membership and the new board declared that the contracts were not binding. The bridges were to be situated on a highway, part of a federal-aid road improvement project. Without much analysis, the court held that there were situations and types of contracts that would not be binding on the new board, but it was "quite obvious" that a contract of this character was binding on the county and the board of county commissioners "as a continuing body representing the county, notwithstanding any changes in its membership." 113 Kan. at 211, 213 P. at 1066. Obviously, in that case one board bound following boards by signing an enforceable contract. Again dealing with roads, the court in Verdigris River Drainage Dist. v. State Highway Comm. , 155 Kan. 323, 125 P.2d 387 (1942), held that the board of county commissioners had authority to bind the county beyond the term of office of the board members to a contract to maintain a floodgate draining a county road. "Were it not so no comprehensive program of road building could ever be carried out." 155 Kan. at 331, 125 P.2d 387. The court said: " '[I]f a board of county commissioner[s] has express power to make a particular contract at any time during its term of office, a contract made by such board, in accordance with the law, a short time before the expiration of its term of office is not contrary to public policy, and, in the absence of fraud, is valid and binding upon an incoming board of commissioners, although it extends far into their term of office. The ground upon which this rule is based is that a board of county commissioners is a continuously existing corporation, and, consequently, while the personnel of its membership changes, the corporation continues unchanged. Its contracts being the contracts of the board and not of its members, it follows that those contracts extending beyond the term of service of its then members are not invalid for that reason. It has been said that to hold contracts invalid because part or all of a board cease to exercise public functions would be to put these corporations at an enormous disadvantage in making the contracts which are essential to the safe, prudent, and economical management of the affairs of a county. The members of a board of county commissioners cannot, however, contract in reference to matters which are personal to their successors.' " 155 Kan. at 330, 125 P.2d 387. Similarly, in Edwards County Comm'rs v. Simmons , 159 Kan. 41, Syl. ¶ 6, 151 P.2d 960 (1944), the court looked at whether the contract commitment was reasonably necessary for the protection of public property: "In determining the question of validity of a contract made by a board or other governmental agency extending beyond the official term of the contracting board or officials, one test generally applied is whether the contract is an attempt to bind successors in matters incident to such successors' administration and responsibilities, or whether it is a commitment of a sort reasonably necessary for protection of the public property, interests or affairs being administered. In the former case the contract is generally held to be invalid and in the latter case valid." We note here that the protection of Heartland Park was an express interest of the Topeka City Council when it signed the Memorandum of Understanding. Then, the Simmons court held that a contract between the county board of commissioners and an attorney to represent the county in litigation that would span the terms of several boards was binding on later boards of commissioners. 159 Kan. at 54-55, 151 P.2d at 968-69. The district court relied upon State ex rel. Hawks v. City of Topeka , 176 Kan. 240, 270 P.2d 270 (1954). In Hawks, Topeka, by ordinance, authorized issuing revenue bonds to pay for the acquisition, improvement, and other costs of two parking sites. The city contracted with Park and Shop, Inc. to lease certain parking facilities to be later acquired by the city for the operation, management, and control of the city-owned parking lots. The lease was to run for 30 years and gave Park and Shop the first right and option to re-lease the parking facilities under the same terms after the lease's expiration. The contract also provided that if any of the parking facilities were destroyed or damaged beyond use, the city would rebuild or restore the premises. The Hawks court held that a city could not bind its successors to lease to Park and Shop all future acquired parking facilities . 176 Kan. at 252, 270 P.2d 270. Additionally, the court ruled that the present governing body could not bind future bodies to rebuild and repair the facilities in that way. The future governing body may decide that the facilities no longer serve a public use and it would not help to repair. Ultimately, the court held that the contract was invalid. 176 Kan. at 252-53, 270 P.2d 270. Again, dealing with streets, the court in State ex rel. Cole v. City of Garnett , 180 Kan. 405, 408-09, 304 P.2d 555 (1956), held valid the board of county commissioners' grant of an easement to the city to widen the street around the courthouse. It rejected any objection that the easement tied the hands of future boards of commissioners. The court in Landau v. City of Leawood , 214 Kan. 104, Syl. ¶ 5, 108, 519 P.2d 676 (1974), held that a covenant by a private sewer company limiting the amount that could be charged to users of the sewer system was unenforceable. It could not be enforced against the city that later acquired the sewer system because enforcement would render it impossible for the city to operate the system that was essential to the health, safety, and welfare of the community. A contract that extended beyond the term of the county commissioners concerning the disposal of solid waste was held to be valid by the court in Zerr v. Tilton , 224 Kan. 394, 400, 581 P.2d 364 (1978). The court held that a contract between the county and a private individual for the collection of solid waste was valid because solid waste disposal was an ongoing problem that vitally concerned the public health and welfare. Police powers cannot be contracted away by a local government. In Red Dog Saloon v. Board of Sedgwick County Comm'rs , 29 Kan. App. 2d 928, 930-31, 33 P.3d 869 (2001), the Sedgwick County Board of Commissioners entered into a contract with Red Dog Saloon, agreeing that it would repeal a resolution that prohibited nudity in establishments which served alcohol, and the contract would bind its successors accordingly. The court held that the Board lacked authority to enter into a contract that effectively contracted away exercise of its police powers or bind its successors accordingly. For a quick review, we note that the Phillips case supports the City's position. The government must supervise the public interest " 'as the special exigencies of the moment may require.' " 67 Kan. at 553, 73 P. at 98. That case recognizes that a government entity may need to change course if the public interest so requires. But Verdigris River Drainage Dist. supports Jayhawk Racing's and Heartland Park's position. If the City Council members could not bind future members to act in good faith to obtain approval to purchase property and issue STAR bonds, then no comprehensive STAR bond project could ever be carried out. See Verdigris River Drainage Dist. , 155 Kan. at 330, 125 P.2d 387. As stated above, the test found in Simmons is still usable. A contract that "is an attempt to bind successors in matters incident to such successors' administration and responsibilities" is invalid, but a contract that "is a commitment of a sort reasonably necessary for protection of the public property, interests or affairs being administered" is valid. 159 Kan. 41, Syl. ¶ 6, 151 P.2d 960. Here, the contract's purpose was to prevent foreclosure of Heartland Park and to provide economic benefit for the City. Under the Simmons test, the Memorandum of Understanding is a valid contract. If we look at secondary authority, the test found in McQuillin guides us to look at the subject matter of the contract: "If the term of the contract in question extends beyond the term of the governing members of the municipality entering into the contract, the validity of the contract is dependent on the subject matter of the contract. The general rule is that, if the contract involves the exercise of the municipal corporation's business or proprietary powers, the contract may extend beyond the term of the contracting body and is binding on successor bodies if, at the time the contract was entered into, it was fair and reasonable and necessary or advantageous to the municipality. However, if the contract involves the legislative functions or governmental powers of the municipal corporation, the contract is not binding on successor boards or councils." 10A McQuillin Mun. Corp. § 29:103 (3d ed. 2018) Under this test, if the City was acting in its proprietary capacity, the contract is valid. We distinguish the cases relied upon by the district court. The district court found that Red Dog , Landau , and Hawks dictated its result. All three cases are distinguishable. First, Red Dog is distinguishable because in that contract the city tried to limit the exercise of its police power-a core governmental function. Here, the agreement involved no police powers. Next, Landau is distinguishable because there it was shown that enforcing the contract would render it impossible for the city to operate its sewer system. Again, this centers on the city's need to provide for the public welfare-another governmental function. Here, the City has not shown how enforcing its agreement with Jayhawk Racing would harm the public welfare. We find Hawks to be distinguishable from this case and certainly not controlling. First, Hawks deals with the operation and repair of public parking facilities-city assets. The contract here is for the purchase of the complete title and interest in a racetrack. Put simply, the first contract deals with the management of a public asset, the second deals with the acquisition of a public asset. Second, the parking garage contract is an ongoing enterprise while the acquisition of Heartland Park is a single event. The party, Park and Shop, may prove to be deficient in the future in making repairs to the city's asset, its parking garage. Addressing such an issue would be up to the future city council in that event. Therefore, it makes good sense that the contract which tied the hands of future councils for 30 years would be ruled invalid. The district court also cited two out-of-state cases. In Marco Dev. Corp. v. City of Cedar Falls , 473 N.W.2d 41, 42-43 (Iowa 1991), the Iowa Supreme Court found that a city could not contractually obligate itself to widen a street because the proposed street widening was a governmental function. In Pippenger v. City of Mishawaka , 119 Ind. App. 397, 88 N.E.2d 168 (1949), the city contracted with a railroad company to vacate and close 10 public streets that crossed the railroad's path without cost to the railroad and the city agreed not to assess the railroad's property for any of the benefits derived from the closing of the streets. The Indiana appellate court held that the contract was void. The city could not contract away its statutory duty to assess the benefits to the railroad's land or surrender its discretion in the performance of a public duty. The city must "retain its freedom of judgment up to the very moment it was required to act so that its decision when finally made would be influenced only by a regard for public welfare." 119 Ind. App. at 403, 88 N.E.2d 168. We do not find those cases helpful. Both Marco and Pippenger contrast with the Linn County , Verdigris River Drainage Dist. , and City of Garnett cases where Kansas courts upheld contracts for road improvements. "Were it not so no comprehensive program of road building could ever be carried out." Verdigris River Drainage Dist. , 155 Kan. at 331, 125 P.2d 387. Pippenger is also distinguishable because there, the city agreed not to assess the railroad's property in violation of a statutory duty. Here, the City did not contract away a statutory duty. The City contends that the agreement with Jayhawk Racing contracts away the City's "discretion to manage its financial affairs and control its budget by demanding more favorable interest rates, repayment terms, or other provisions before STAR Bonds with the City's full faith and credit backing would be issued and approved" thus contracting away the City's " 'power conferred for self-protection and self-preservation.' " We do not read that language into the contract as the City does. We remain unpersuaded. We see no language in the contract that limits the City's right to demand more favorable interest rates, repayment terms, or other terms on the STAR bond issuance. The City has only agreed to refrain from acting unreasonably or in bad faith. The City agreed to "make commercially good faith reasonable efforts" to obtain the approvals to expand the STAR bond district and issue the bonds, and agreed to abide by a duty of "good faith and fair dealing." The City also contends that it could not contract to "make commercially good faith reasonable efforts" to take governmental action or impose on itself a duty of "good faith and fair dealing" because these concepts are for private contracts. But if the City was acting in its proprietary capacity, rather than its governmental capacity, then the City is held to the same standard as a private corporation. And McQuillin's Law of Municipal Corporations states that a covenant of good faith and fair dealing is implied in municipal contracts. 10A McQuillin Mun. Corp. § 29:124. Here, the City cannot escape the fact that it was buying a racetrack. In our view, buying a racetrack is proprietary, not governmental. We have taken a broader view of this contract than the district court. Following the guidance of the cases, we look at the subject matter of this contract and not just how the contract might be financed. The City wanted to buy all remaining interests in Heartland Park and contracted with Jayhawk Racing to do so. Therefore, we conclude this contract deals with property, not policy. The district court erred when it confined its view of this agreement to a contingent promise of possibly selling STAR bonds to finance this purchase. That portion of the agreement did not transform this contract into policy or a governmental function such as the exercise of policy powers. A city may decide to embrace a public project or abandon it. When it changes direction, however, that does not mean all contracts previously made concerning that project are rescinded. This agreement fits an exception to both the Cash-Basis and Budget Laws. The City, in the alternative, contends that the Memorandum of Understanding violates the Kansas Cash-Basis Law, K.S.A. 10-1101 et seq. The Kansas Cash-Basis Law makes it unlawful "for the governing body of any municipality to create any indebtedness in excess of the amount of funds actually on hand in the treasury of such municipality at the time for such purpose." K.S.A. 10-1112. Any contract that violates the Cash-Basis Law is void. K.S.A. 10-1119. The City also contends that the agreement violates the Kansas Budget Law, K.S.A. 79-2925 et seq. The Kansas budget law provides that creation of indebtedness more than the budget is unlawful. Any such indebtedness is void. K.S.A. 79-2935. But there are exceptions to both laws. One exception is that payments made with the proceeds of bonds do not violate either law. K.S.A. 2017 Supp. 10-1116(a) provides: "The limits of indebtedness prescribed [under this act] may be exceeded when: ... (2) provision has been made for payment by the issuance of bonds." K.S.A. 79-2935 provides: "indebtedness may be created in excess of the total amount of the adopted budget of expenditures for the current budget year only when ... provision has been made for payment by the issuance of bonds." According to the Memorandum of Understanding, the City's financial obligations in the agreement depended on issuing STAR bonds. Thus the agreement does not violate either of the laws, and neither of these claims support the grant of summary judgment to the City. Reversed and remanded for further proceedings.

In a letter signed by the respondent on December 25, 2018, addressed to the Clerk of the Appellate Courts, respondent Thomas J. Robinson, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2019 Kan. S. Ct. R. 267). On September 18, 2018, the respondent was temporarily suspended in Kansas in accordance with Supreme Court Rule 203(c) (2019 Kan. S. Ct. R. 240), as a result of respondent's convictions of aggravated assault in Maricopa County, Arizona, in violation of A.R.S. §§ 13-1204 and 13-3601, a class 3 felony and a domestic violence offense. In a disciplinary proceeding, a criminal conviction is conclusive evidence of the commission of that crime. Supreme Court Rule 202 (2019 Kan. S. Ct. R. 239). A disciplinary complaint was pending at the time respondent surrendered his license, alleging that respondent violated Kansas Rule of Professional Conduct 8.4 (2019 Kan. S. Ct. R. 387) (professional misconduct). This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. IT IS THEREFORE ORDERED that Thomas J. Robinson 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 Thomas J. Robinson 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 (2019 Kan. S. Ct. R. 268).

Per Curiam: A jury convicted Curtis A. Smith of aggravated kidnapping, rape, aggravated battery, three counts of criminal threat, criminal damage to property, and violation of a protection order. The district court sentenced Smith to a total of 911 months of incarceration and ordered each sentence to run consecutively. Smith appeals. We affirm. Smith met D.S. on the dating website Plenty of Fish in the spring of 2015. For their first date, D.S. picked Smith up at his grandmother's house. He took a large bag with him. They went to her apartment to hang out with her adult son and some friends. After the rest of the company had left, Smith asked to shower there. Smith spent that night at D.S.'s apartment and when she asked him to leave, he asked to stay a couple days because he had just returned to Wichita and was trying to figure out living arrangements. At first, they were good friends, but eventually they became involved in a romantic relationship. As time went on, D.S. asked Smith a few times about his living arrangements and he always replied that he was working on it. Things began going downhill the longer Smith stayed. He took control of her car, money, and phone. He also became verbally abusive, calling her names and threatening to burn her alive and pimp her out on Back Page. D.S. testified, "Oh, everything was Back Page, everything was burn me alive, everything was I'm gonna check your temperature when you get home," which meant he was going to beat her. Smith was "always drunk" and grabbed D.S. several times. One time, she refused to go to the liquor store for him and he grabbed her and flung her on the bed. He told her, "You're lucky I'm not gonna go full fledge." It was easier for D.S. to surrender and do as he asked than to continue the fight. D.S. also reported incidents of nonconsensual sex, times in which Smith proceeded to have intercourse with her without her consent. This included one time when she verbalized she did not want to have sex and "he just went ahead and did it." In reference to the escalation of behaviors, D.S. testified, "I guess I let it happen, I got scared. I lived in fear, every day. I was sick to come home, I didn't want to come home from work, you know." She continued asking Smith to leave, but he refused. When her son, T.G., was about to be discharged from the military, she asked him to return to Wichita to help her. T.G. moved in on October 2, 2015. Initially, Smith treated D.S. well, but as time went on, T.G. saw more of his bad behaviors surface. He testified: "Her mobile devices were all basically on lock, she wasn't allowed to leave the house really as much, always questioning when she did anything, where she was going, what she was doing, the time, just every little thing was monitored, micromanaged." Smith threatened to burn T.G. and D.S. with gasoline while they were sleeping. T.G. did not intervene when Smith was verbally abusive out of fear that the conflict would become physical. D.S.'s employer participated in domestic violence awareness in the month of October. While D.S. was in a training class at work, Smith sent her threatening texts that she shared with her class. A supervisor later pulled her out of class to talk about getting help. D.S. hesitated because she did not want the situation to get worse. Shortly thereafter, Smith and D.S. were arguing about her not going to buy him more alcohol. Smith punched D.S. then pinned her against the wall by her throat. T.G. ran in and told Smith "if he ever touched my mother again, I'll kill you." Two days later, the human resources director from D.S.'s job took her to the district court to obtain a protection from abuse (PFA) order. She testified that she did not include everything that had happened in her application for the PFA order, because, "at the time I was scatter-brained, I was just in a rush and I put the basic in there to be able to get this approved, as I was on work time and ... I needed the money so I had to hurry up and get right back to work." D.S. stated she did not want any issues; she just wanted him to take his things and leave. After work, T.G. took D.S. to the Wichita Police Department. She gave the officers her house key and the paperwork to serve Smith. Officer Katherine Goebel went with another officer to D.S.'s apartment at approximately 8 p.m. on October 21, 2015. Smith was under the influence of alcohol and argumentative when she served him. He took about 15 to 20 minutes to gather his things. He called S.R. to pick him up. S.R., had known Smith since she was 14. She took Smith to her house so he could make some calls. Smith acted like he did not know why D.S. had obtained a PFA and he denied all her allegations. He messaged some people on Facebook and when he had not been able to get a hold of anybody, he asked to stay the night. S.R. agreed to let him stay that night only. The next day, she took him to a few places to help him find a place to stay, but she realized he was just trying to buy marijuana. After they returned to S.R.'s house, Smith became upset and blamed S.R. for ruining his life. She offered to talk to D.S. and see if they could work things out. Smith grabbed her by the back of her neck and shoved her, telling her, "you ain't makin' nothin' better, in fact, you're gonna put your shoes on, you're gonna go beat her ass. I can at least get some enjoyment out of all of this." When she refused, he choked her, pinning her against her dresser for 5 or 6 seconds. As he held her by the throat, he told S.R. that he was not going anywhere now that he finally had her. S.R. stated she did not call police because she knew it would only get worse if she did. Plus, Smith had taken her phone and would not give it back. Every day, S.R. drove Smith to D.S.'s apartment complex. He claimed he needed to get money from somebody who owed him. On October 27, 2015, as she drove through the lot, Smith, who had a glass full of liquor, "flipped out", and spilled the alcohol on the floorboard and on himself. She tried handing him something to wipe off with, but he had gotten out of the car and was cussing at her. He broke the rain guard off her passenger window and threw it straight through the car, grazing S.R.'s eye. He walked around to the driver's side, reached through the open window, and slammed S.R.'s head against the side of the vehicle. Smith said something like "you need to park your little ass over there or leave" and so she left. As she drove off, her vision started getting "fuzzy" so she pulled into a parking lot to check her eye and find her phone. When she looked up, Smith was walking toward the vehicle and he looked angry. He grabbed her head again and slammed it against the side of the vehicle. He told her she needed to start listening and know her role. Smith got back into the passenger seat and told her to go home. S.R. told Smith he had to leave. He agreed to get his things and find somewhere else to stay. On the way home, she pulled in behind a police car and tried to stay close. She told Smith that it might have been best to call police and have an officer present at the house to make sure everything went smoothly. Smith did not want police involved and she knew something bad was going to happen. S.R. then drove into the Wendy's parking lot and tried to go inside. He grabbed her by the arm and forced her back into the car. He told her to calm down and just go home. He assured her there would be no problems. When they arrived at S.R.'s home, she asked him to stay in the car. As she unlocked the door, Smith flung the door open, shoved her into the house, took her keys, and slammed the door behind them. S.R. threatened to call 911, but Smith would not allow it. He smacked the phone out of her hand and every time she tried to leave, he grabbed her by the hair to keep her in the house. Then Smith began beating her. He knocked her to the floor and punched her repeatedly on the side of her head. S.R. testified: "He's standing over me, just whaling on me. My face was like the main part, my head and my face and my throat were the main parts that he was going after, it was just blow after blow after blow to my head, my face, punching me over and over again, choking me until that went on for I couldn't tell you how long. I begged for him to stop and - he wasn't having it. And I was like, something is seriously wrong, please stop, like, I need medical attention now, like something is really, really wrong. And he was like - just wouldn't stop, he just kept just blow after blow ...". At one point, Smith grabbed S.R. by the throat with one hand as he punched her with the other. He choked her to the point she could not breathe and she lost consciousness. When she woke up, she was on the floor and confused. Her head was throbbing, her eyes were swelling, and her nose hurt. When she went to the bathroom to see the damage, Smith followed behind her. She asked him why he was doing that to her and he told her "you just don't know when to stop, you need to shut your fuckin' mouth ... you'll learn your role." She sat on the couch and asked him for medical treatment. He told her that neither of them were leaving. S.R. asked Smith to take her to her mother's house. He grabbed her from behind, threw her on the couch, and began beating her again. He choked her again to the point she lost consciousness. When she awoke, Smith continued beating her until she lost consciousness again. S.R. stated that although the violence lasted only minutes, it felt like hours. When Smith stopped, S.R. begged him for hours to let her get medical treatment or at least go to her mother's house. Smith refused because he knew the police would get involved. At one point, he professed his love for her, admitting that he had been in love with her for years. He told her, "now that he had [S.R.], he wasn't letting [her] go." Smith wanted her to go to her bedroom, but she was afraid of what might happen if she did. She finally went, hoping that Smith would fall asleep and she could escape. She put her body pillow between them and turned her back to him. As she laid on the bed, she cried, thinking she was dying. He continued telling her how much he loved her and said, "oh, my God, I wanna make love to you so bad right now." While he removed her clothing, she cried and repeatedly begged him, "don't do this." He shushed her and told her it would be okay and that he loved her. She never consented to having sex with Smith. After all that had occurred that evening, she did not have the strength to fight him off. Smith penetrated her vagina with his penis. After he ejaculated, he got up and got a washcloth to clean her up. The next morning, Smith still refused to allow her to seek medical treatment, repeating that neither of them were going anywhere. He insisted that he loved her and he would never let her go. He was going to nurse her back to health so he could feel better about what he had done. Smith told S.R. that he was going to kill D.S. and he needed a small blunt object. S.R. was finally able to run out of the house. She ran to the next block, but her eyes were so swollen she could not see. Smith drove up in her car and agreed to take her to her mother's house. He dropped her off and told her she better be ready in 45 minutes. Her mother called the police and took her to the hospital. After Smith dropped off S.R., he sideswiped Pheasant Weber's vehicle as she was waiting to turn, damaging her back bumper and wheel. Repairs cost $3,500. Smith continued driving after he struck Weber's vehicle and she followed while she called 911. Smith got out of S.R.'s vehicle and attempted to open Weber's driver's side door and when he could not, he hit her window and windshield. By the time police arrived, Smith was gone. That evening, T.G. was home with D.S. and a friend. He heard loud music coming from a vehicle in front of the apartment. T.G. saw Smith in the car. Smith pointed his fingers like a gun toward T.G. and the apartment. T.G. yelled to D.S. to call 911 because he perceived the gun-like gesture as a threat. Smith drove away but returned and drove into the parking lot-getting closer to the apartment and looking up at their balcony. Three police vehicles entered the lot. Smith drove around the parking lot and crashed S.R.'s vehicle before running on foot. Police tased Smith and arrested him. On November 2, 2015, the State charged Smith with aggravated kidnapping, rape, two counts of aggravated battery, violation of a protective order, two counts of criminal threat, and criminal damage to property in case number 15CR3128 for the incidents that occurred after Smith was removed from D.S.'s house on October 21, 2015. Police did not learn of Smith's criminal behaviors toward D.S. until she spoke with a detective at the preliminary hearing. Because the information became available at the preliminary hearing, rather than amending the charges, the State filed a second case against Smith for the incidents that occurred while he was living with D.S. On December 28, 2015, the State filed case number 15CR3717, alleging Smith committed aggravated battery, two counts of criminal threat, and cruelty to animals. On October 14, 2016, the State moved to consolidate the two cases or, in the alternative, to admit evidence of prior crimes or bad acts under K.S.A. 2017 Supp. 60-455. The State contended that all of the offenses were of the same general character as Smith "controlled [his victims], beat them, choked them, forcefully had sex with them, threatened to kill them, refused to let them leave their homes, and when they asked him to leave he became violent with them." The State also asserted that the crimes were based on two or more transactions constituting parts of a common scheme or plan, as permitted for joinder under K.S.A. 22-3202(1). Smith argued against consolidation because the acts were separate acts with different victims at separate times. He contended the State was attempting to use the behaviors in one case as evidence of Smith's propensity to commit the offenses in the other case. The district court granted the State's motion for consolidation, finding that the offenses were very similar in nature. The court noted that under K.S.A. 2017 Supp. 60-455(c) and (d), the Kansas Legislature opened the door to evidence of prior sex offenses when a defendant is charged with a sex offense. Such evidence can be considered for its bearing on any other matter to which it is relevant or probative. The court noted that with domestic violence and rape allegations, the evidence deals with the relationship as well. Not only can the victims testify to prior occurrences to show the relationship of the parties, but anyone else can testify to acts perpetrated against them under K.S.A. 2017 Supp. 60-455(d). The court reasoned that if the permissible 60-455 evidence were presented in one case, and evidence of the other case was presented to the jurors, who then used that information in deciding the verdict, the State might be presented with a double jeopardy issue. The district court conducted a five-day jury trial with the above facts. After the lunch break on the second day of trial, Juror 12 reported she had been in the elevator with some of the State's witnesses. Juror 12 said she heard somebody say, "shh, shh, shh, don't say anything, be quiet." She reported the incident because it made her a little nervous and she wanted to make sure she had not done anything wrong. Neither the State nor Smith expressed any concern for Juror 12 remaining on the jury. In the morning on the third day of trial, the district court called Juror 12 in because after jurors had been released the previous day, she told the court's aide that she had some anxiety or fear that the victims or the victims' families were going to follow her home or there would be some problems. The State requested removal based on that statement alone. Juror 12 stated: "Well, we all park in the same parking garage, I guess I was just feeling uncomfortable yesterday with that so. I'm okay now .... It's nothing ... there was nothing said ... I guess it was just as I get older things bother me more, that didn't bother me before. So I'm okay." The district court expressed an overriding concern that, as a deciding juror, Juror 12 might not decide only on the evidence, uninfluenced by any personal experiences, biases, personal views or any other factor. The State questioned Juror 12: "[State]: Do you still feel that if I prove this case beyond a reasonable doubt, not what your verdict would be or where you're leaning, that you could enter an appropriate verdict of guilt if the case is proven to you beyond a reasonable doubt? "[Juror 12]: If all the evidence and everything from everything, could I make an accurate decision, is that what you're - "[State]: If it's proven. "[Juror 12]: Is that what the question is? "[State]: The question, just like we asked before, before in jury selection, if you are convinced beyond a reasonable doubt of the defendant's guilt can you follow the law and vote guilty? "[Juror 12]: Yes, I can do what I need to do with everything presented, I can do what I need to do once everything is laid on the table and all of us discussing the decision, yes." Smith asked if the victims took any actions, made any looks or did anything that made Juror 12 concerned. She stated the victim looked straight at her when the victim took the stand but testified that none of these things would affect her ability to be fair to the State and Smith. Before taking the issue under advisement, the district court noted that even though Juror 12 ultimately answered the questions correctly, it remained concerned that she hesitated before answering whether she could enter a guilty verdict if the State proved Smith's guilt beyond a reasonable doubt. The court further expressed concern that her answer was indirect and her concerns were irrational. The following morning, the State proffered the information provided by the victim witness coordinator who was escorting the witnesses in the elevator when Juror 12 rode in the elevator with them. The coordinator stated that before entering the elevator, she told the witnesses to be quiet but nobody said, "oh, shit, oh, shit, oh, shit" as reported by Juror 12. The coordinator contended that nobody spoke a word in the elevator. The district court expressed significant concerns about Juror 12's ability to be a fair judge in the case. It noted her perception of what happened in the elevator did not match that of the coordinator. The court found it concerning that she was susceptible to misperceiving things as threatening or intimidating when that was not the reality. The court expressed further concern that Juror 12 had no basis for her fear of the victim, as she never indicated she felt like the victims were following her around or that they made comments to her. The court pointed out that witnesses are supposed to look at the jurors and tell them their story. The court noted that when the State specifically asked about Juror 12's ability to render a guilty verdict, she hesitated both times "for an extended period of time and some awkward silence. And then her response was evasive, something to the effect that she'll look at the evidence and you know, based on that render a verdict." As a result, the court removed Juror 12 and sat an alternate juror. The jury found Smith guilty of criminal threat to D.S. and T.G., criminal threat to D.S., aggravated kidnapping, rape, aggravated battery against S.R., violation of a protection order, criminal threat to T.G., and criminal damage to property. The district court sentenced Smith to the high box number for each crime of conviction, with each sentence to run consecutively. Smith's total sentence for both cases was 899 months in the custody of the Kansas Department of Corrections and 12 months in county jail with lifetime postrelease supervision. Smith appeals. Jury Nullification Smith contends the district court undermined the jury's inherent right of jury nullification by instructing the jurors to consider lesser included offenses sequentially rather than simultaneously with the greater offenses and by instructing the jurors that they "must" follow the law and that it was their "duty" to do so. During the jury instruction conference, Smith stated that the instructions were the result of consultation and informal meetings between counsel and the district court. The instructions complied with requests he made and he had no objection to the jury instructions as prepared. When analyzing jury instruction issues, an appellate court follows a three-step process. First, we must determine whether we 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. State v. McLinn , 307 Kan. 307, 318, 409 P.3d 1 (2018). If a party fails to object to an instruction, we evaluate whether the instruction was a clear error. State v. Betancourt , 299 Kan. 131, 135, 322 P.3d 353 (2014). Because Smith failed to preserve the issue, the court can review the issue, but the analysis of the next two steps is altered to reflect the failure to preserve. Second, we consider whether the instructions were legally and factually appropriate, using an unlimited review of the entire record. McLinn , 307 Kan. at 318. If the instructions were legally and factually appropriate, no error exists. Finally, we must assess whether the error requires reversal. 307 Kan. at 318. Smith's failure to preserve the jury instruction issue affects our reversibility inquiry in the third step. K.S.A. 2017 Supp. 22-3414(3). We apply a clear error standard and will only reverse the district court if an error occurred and we are firmly convinced that the jury would have reached a different verdict if the instruction error had not occurred. The party claiming error has the burden to demonstrate the necessary prejudice. 307 Kan. at 318. Smith argues the district court impermissibly prohibited the jury from exercising jury nullification, essentially challenging the legal appropriateness of the instructions. Jury nullification occurs when the jury deliberately rejects the evidence or refuses to apply the law to either send a message about a social issue or because the legal results are contrary to the jurors' sense of justice, morality, or fairness. Silvers v. State , 38 Kan. App. 2d 886, 888, 173 P.3d 1167 (2008). "[C]riminal defendants are not entitled to have the jury instructed on jury nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of law and the evidence in order to acquit a defendant. [Citation omitted]." 38 Kan. App. 2d at 890. First, Smith challenges the sequential consideration of the lesser included offenses, contending that the offenses should be considered simultaneously. The district court prefaced each lesser included offense instruction with "If you do not agree that the defendant is guilty of [the greater offense] you should then consider the lesser included offense of [lesser offense]." Then, he challenges the instructions as containing mandatory language, disallowing the jurors to disregard the rules of law and exercise the right of nullification. The district court instructed the jury: "[I]t is your duty to consider and follow all of the instructions" and "[y]our verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." Sequential consideration of lesser included offenses is legally appropriate. Under K.S.A. 2017 Supp. 22-3414(3), in cases in which some evidence would reasonably justify a conviction of a lesser included crime, the district court shall instruct the jury as to the crime charged and any lesser included crimes. The Kansas Supreme Court has held sequential consideration of lesser included offenses in descending order of severity promotes an orderly method for consideration. State v. Parker , 301 Kan. 556, 561, 344 P.3d 363 (2015) (citing State v. Trujillo , 225 Kan. 320, 324, 590 P.2d 1027 [1979] ). In Trujillo , the Supreme Court wrote, "As a matter of practice a trial court should instruct on lesser included offenses in the order of severity beginning with the offense with the most severe penalty." 225 Kan. at 324. In Parker , the Supreme Court rejected the assertion that "if you cannot agree that the defendant is guilty" coerced the jury into returning a guilty verdict for the more severe charge. 301 Kan. at 562 (citing State v. Korbel , 231 Kan. 657, 661, 647 P.2d 1301 [1982] ). "The words, 'if you cannot agree' when used to preface an instruction on a lesser charge are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words 'if you cannot agree' presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser." 231 Kan. at 661. Therefore, instructing the jurors to consider the lesser included offenses sequentially in descending order of severity is legally appropriate. The district court did not prevent the jury from exercising its right of jury nullification. Smith next contends the district court erred and prohibited the jurors from exercising jury nullification by instructing them that it was their "duty to consider and follow all of the instructions" and their "verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." He argues that by telling the jurors they must base their determination on evidence and law provided, the court basically told them they cannot use their sympathies and notions of right and wrong, as required for jury nullification. The instructions given in this case mirrored the Pattern Instructions for Kansas. PIK Crim. 4th 51.010 (2017 Supp.) and PIK Crim. 4th 68.010 (2012 Supp.) Using the PIK instructions is not mandatory, but is strongly recommended because they have been developed by a knowledgeable committee to bring about accuracy, clarity, and uniformity in jury instructions. State v. Allen , 52 Kan. App. 2d 729, 733-34, 372 P.3d 432 (2016)rev. denied 306 Kan. 1320 (2017). In State v. McClanahan , 212 Kan. 208, 216, 510 P.2d 153 (1973), the court wrote, "The jury must be directed to apply the rules of law to the evidence even though it must do so in the face of public outcry and indignation." In State v. Naputi , 293 Kan. 55, 66-67, 260 P.3d 86 (2011), the court wrote, "It is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be." Directing jurors to base their verdict on admitted evidence and the law as instructed coincides with the jurors' oath. K.S.A. 2017 Supp. 60-247. Smith also asserts that in State v. Smith-Parker , 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485 (2014), the court found that a jury instruction telling the jury it "must" or "will" enter a verdict is too close to directing a verdict for the State. The statement, when removed from its context, appears to be a broad rule covering all jury instructions. But the issue in Smith-Parker was not a matter of using "must" or "will" anywhere in the jury instructions, it was with regard to the burden of proof instruction where use of such language prevented the jury from making any other determination. The jury instruction in question read, "If you do not have a reasonable doubt from all the evidence that the State has proven [charged offense or lesser included offenses], then you will enter a verdict of guilty." 301 Kan. at 163. The court held that instructing jurors to enter a guilty verdict was akin to directing a verdict for the State. However, PIK Crim. 4th 51.010 (2017 Supp.), which the district court here read to the jurors, reads, "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." Kansas courts have consistently found the use of "should" " 'does not upset the balance between encouraging jury nullification and forbidding it .... [U]nlike the words must, shall, and will, the word should does not express a mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of action and encourages following the advised path.' [Citation omitted.]" Allen , 52 Kan. App. 2d at 735. Here, the instructions the district court provided to the jury were legally appropriate. The court did not prevent the jurors from exercising their right of jury nullification. Because the jury instructions were legally and factually appropriate, no error exists. We need not analyze reversibility. Dismissal of Juror 12 Smith further contends the district court erred in dismissing Juror 12 because the court lacked reasonable cause and she testified that she could be fair and impartial. Smith acknowledges that if we determine the district court abused its discretion, he has the burden of showing that his substantial rights were prejudiced. However, Smith asserts that because he claims a statutory error, the State, as the party benefitting from the error, should persuade the court that there was no reasonable probability that the error affected the trial's outcome in light of the entire record. We review a district court's decision to discharge a juror and substitute an alternate juror under an abuse of discretion standard. State v. Hilt , 307 Kan. 112, 121, 406 P.3d 905 (2017). The defendant bears the burden of showing an abuse of discretion. 307 Kan. at 121. A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Davisson , 303 Kan. 1062, 1065, 370 P.3d 423 (2016). K.S.A. 2017 Supp. 22-3412(c), in part, reads: "A trial judge may empanel one or more alternate or additional jurors whenever, in the judge's discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties." It is not an abuse of discretion to replace a dismissed juror with an alternate where reasonable cause exists. Hilt , 307 Kan. at 121-22. The defendant carries the burden of establishing substantial prejudice before an appellate court will find that the district court abused its discretion. State v. Martinez , 288 Kan. 443, 446, 204 P.3d 601 (2009). Smith does not specify whether he was challenging the district court's discretion as arbitrary, fanciful, or unreasonable; based on error of fact; or based on error of law. He recites the facts of the case and concludes that because Juror 12 testified that she could remain fair and impartial and the interaction in the elevator would not influence her deliberations, the court had no basis for her removal. Because Smith argues that the court's findings were contrary to Juror 12's testimony, he seems to be challenging the district court's determination as arbitrary, fanciful, or unreasonable. A district court acts arbitrarily, fancifully, or unreasonably when it adopts a view that no reasonable person would adopt. Davisson , 303 Kan. at 1065. Smith argues the district court lacked reasonable cause to dismiss Juror 12 because she testified that the elevator encounter would not have affected her ability to fulfill her duties as a juror. But, despite what she said, the court had "significant concerns" about Juror 12's ability to be a fair judge in the case. The court was concerned about her perception of what happened in the elevator. She told the court's aide that somebody in the elevator said, "oh, shit, oh, shit, oh, shit." However, the victim advocate recounted that before she and the witnesses entered the elevator, she told the witnesses to be quiet and nobody spoke a word in the elevator. The court noted that this "raises concerns about [Juror 12's] perception or just that she appears to be very susceptible to misperceiving things as intimidating or threatening or uncomfortable, when that's not the reality." The district court further addressed its concern that Juror 12 might tend to develop unreasonable fears. Specifically, she was afraid that the victims or their families would follow her home. The court noted that there was no basis for this fear, considering the victims had never followed her around or made comments to her. Her only reason had been that everybody parked in the same parking garage and she lived in the same part of Sedgwick County as the victims. Additionally, Juror 12 feared one of the victims because she had looked at Juror 12 when the victim took the stand. The court noted that the victim did exactly what she was supposed to because witnesses testify to the jurors. The court was concerned that Juror 12 was susceptible to fears that are not associated with facts and are not reasonable. Though the fears were specific to the victim, the court stated, "this raises a whole bunch of concerns, one, is she gonna start thinking this about the defendant. Well, he looked at me or I'm afraid he's gonna follow me ... I'm gonna find him guilty ... because I'm fearful of him." The court noted that even if she remained fearful of only the victim, her fear could influence her to render a guilty finding, contrary to evidence, to prevent the victims from going after her. The district court noted that both times she was specifically asked whether she could render a guilty verdict if the State met its burden of proof, the juror hesitated "for an extended period of time and some awkward silence." And when she answered, her response was evasive. The court cited United States v. Blitch , 622 F.3d 658, 667 (7th Cir. 2010) (citing Skilling v. United States , 561 U.S. 358, 386, 130 S. Ct. 2896, 177 L.Ed.2d 619 [2010] ), stating, the district court appraises the "juror's inflection, sincerity, demeanor, candor, body language and apprehension of duty." With that, the district court stated, "In looking at her behavior, her demeanor, her facial expressions, her tone, the way she responded, all of that, are things I take into consideration, as well. ... And I'm going to dismiss [Juror 12]." In Skilling , the United States Supreme Court explained: "Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record - among them, the prospective juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty. In contrast to the cold transcript received by the appellate court, the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member's fitness for jury service." 561 U.S. at 386-87. In Skilling , the Court reviews the measures the district court took to ensure against prejudice in the jury and notes several times that the district court did not just take potential jurors' at their word, but explored the issues further. 561 U.S. at 394-95. The Court emphasized the importance of the district court's face-to-face questioning, which provided the opportunity to gauge the demeanor and credibility of the jurors. 561 U.S. at 395. Here, while several of the district court's concerns are apparent from the transcripts, the court also described some of the factors it considered that we cannot glean from the record. The district court's observations along with testimony presented supports its conclusion that despite Juror 12's claim of impartiality, concerns of her ability to fulfill her duties as a juror remained. The district court did not err in dismissing Juror 12. Even if we determined the removal of Juror 12 was in error, before we will find the district court abused its discretion, Smith must establish substantial prejudice. However, he asserts he should not have to prove substantial prejudice, instead, we should apply the harmless error standard. In which case, the State, as the party benefitting from the district court's determination, would have to prove the error did not affect the outcome of the trial. His argument fails because it is well established that the defendant bears the burden of demonstrating substantial prejudice. Martinez , 288 Kan. at 446. We are duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Smith provided no indication the Supreme Court is departing from this standard. Therefore, he has failed to establish his burden that the dismissal of Juror 12 prejudiced him. The district court did not err. Consolidation of Cases 15CR3128 and 15CR2717 Next, Smith contends the consolidation of the two cases against him was highly prejudicial and permitted the State to paint Smith as a repeat offender although the cases involved separate acts, separate victims, and occurred at different times. The appellate court reviews potential joinder errors using a three-step analysis, applying a different standard of review at each step. First, the court determines whether K.S.A. 22-3202 permits joinder. Under that statute, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of multiple crimes in a single complaint: (1) the charges must be of the "same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Whether one of these conditions is satisfied is a fact-specific inquiry, and the appellate court will review the district court's factual findings for substantial competent evidence and the legal conclusions de novo. State v. Ritz , 305 Kan. 956, 961, 389 P.3d 969 (2017). Second, because K.S.A. 22-3202(1) provides that "charges 'may' be joined, a district court retains discretion to deny a joinder request even if a statutory condition is met. We review this decision for an abuse of discretion." State v. Hurd , 298 Kan. 555, 561, 316 P.3d 696 (2013). Finally, if an error occurred in the preceding steps, we determine whether the error resulted in prejudice, i.e., whether the error affected a party's substantial rights. K.S.A. 2017 Supp. 60-261. State v. Hurd , 298 Kan. at 561. Smith contends that although the crimes were similar in that they could both fall under the general domestic violence category, the underlying facts were markedly different. He noted that in Smith-Parker , the Supreme Court held that crimes are not automatically of the same or similar character simply because they are similar to each other. 301 Kan. at 157-58. Smith argues that the high level of violence involved in the crimes against S.R. prevent consolidation for the charges in the two cases. In his brief, Smith does not appear to challenge the district court's factual findings, but challenges only the court's legal conclusion. The Kansas Supreme Court has previously found joinder appropriate when the offenses in separate complaints are " 'of the same general character, require the same mode of trial and the same kind of evidence, and occur in the same jurisdiction.' " State v. Ritz , 305 Kan. at 962 (quoting State v. Crawford , 255 Kan. 47, 53, 872 P.2d 293 [1994] ). The Supreme Court warned against relying solely on generalities when considering joinder as joinder would not be appropriate when " 'there would inevitably be some jumbling of the two cases at the trial, which would tend to prevent that concentrated consideration of each case which is indispensable in matters of such gravity.' " 305 Kan. at 963 (quoting State v. Barksdale , 266 Kan. 498, 508, 973 P.2d 165 [1999] ). The Kansas Supreme Court specifically analyzed the " 'same or similar character' " condition of joinder, noting that earlier Kansas cases required multiple commonalities, not merely similar classification of charges. 305 Kan. at 963 (quoting Smith-Parker , 301 Kan. at 157.) Here, the two cases both involve criminal threat and aggravated battery. Smith contends the two separate situations are analogous to those in Smith-Parker , in which the district court erred in consolidating Smith-Parker's two murder charges. In one homicide, Smith-Parker targeted the victim in a burglary to steal drugs and the other homicide was the result of an argument between two good friends. Smith argues that like the offense in Smith-Parker , his offenses were only relatable in that they fell into the category of domestic violence. He asserts the level of violence involved in the two cases disallow consolidation. The State alleged that he violently beat and choked S.R. to the point she lost consciousness, raped her, and she sustained injuries to her neck, chin, and eyes; whereas, the State only alleged he slapped D.S. The crimes against S.R. included aggravated kidnapping, a level 1 person felony; rape, a level 1 person felony; and aggravated battery, a level 4 person felony. However, the crimes against D.S. included aggravated battery, a level 7 person felony and two counts of criminal threat, level 9 person felonies. He claims the district court failed to look at the facts of each situation and so erred in consolidating the cases. However, Smith's case appears to be more analogous to the offenses in Ritz , in which the State charged Ritz with multiple offenses stemming from two incidents that both included fleeing or attempting to elude an officer, theft, and driving while a habitual violator. In Ritz , the district court found that in both situations, Ritz fled because he panicked when police approached him and his flight took place in residential neighborhoods. Both incidents resulted with Ritz crashing. The district court additionally found the cases required the same mode of trial and would result in the same punishment. The significant difference between the two separate incidents was that in the second, Ritz collided with another vehicle, killing the driver. The State charged Ritz with first-degree felony murder. Despite the disparity between the severity of charges, the court recognized the similarity of facts leading up to the murder that were sufficiently similar to warrant consolidation. Here, Smith operated similarly in both situations. He asked to stay with the victims while he figured out his living arrangements, controlled their access to their cell phones quickly, and controlled their use of their cars. In both situations, his victims asked him repeatedly to leave but he refused and threatened them with violence if they called the police. In both situations, Smith began by grabbing and shoving the victims, grabbing them around the throat without squeezing, while pinning them and leaving them unable to move. Smith became verbally abusive very quickly, calling the women names and threatening them with further violence if they did not comply. With both victims, he insisted that because he had them he would not let them go. Smith operated the same in taking control over the women's lives and forcing them to comply out of fear. Also, D.S. obtained the PFA and had Smith removed from her residence two days after he punched her. He went straight to S.R.'s residence and became violent toward her the following day. The incidents of violence were mere days apart. Although there was a significant difference in the level of violence, there was a significant factor that may have played a role-support from others. Even with T.G.'s presence, Smith continued his abusive behaviors. But when he punched D.S., T.G. ran to her rescue and they developed a plan to get Smith out of their lives. D.S. obtained the PFA because her coworkers expressed concern and assisted her in getting to the courthouse to file the application. Even though she did not have access to her phone or car, she had access to others who helped her. However, S.R. did not have anybody in her home to help her. She did not have access to her phone and could not reach out to anybody without Smith monitoring. The difference in the level of violence is not sufficient to disallow consolidation. If anything, it shows a continuation of behaviors in an environment he could control even more. The district court did not err in consolidating the cases as they were of the same or similar character. A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015). The burden of demonstrating error is on the party alleging the abuse. State v. Burnett , 300 Kan. 419, 449, 329 P.3d 1169 (2014). As the district court noted, had D.S. informed the police of Smith's offenses against her prior to the preliminary hearing for 15CR3128, the State would have charged all offenses in a single complaint. The only reason the State charged the acts separately was because the parties were prepared and witnesses were present to move forward with the preliminary hearing for the offenses charged in 15CR3128. Additionally, as the district court pointed out, because one of the criminal threat charges in 15CR3128 and the violation of the PFA both stem from the offenses charged in 15CR3717, if the court had not consolidated the cases, the State likely would have presented evidence in either trial that would have presented a double jeopardy issue in the second trial. Under K.S.A. 2017 Supp. 21-5110(b)(1) [formerly K.S.A. 21-3108(2)(a) ], subsequent prosecution of an uncharged crime is barred if " '(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.' [Citations omitted.]" State v. Jordan , 303 Kan. 1017, 1020, 370 P.3d 417 (2016). Smith contends the prejudicial impact of the domestic violence against D.S. could only be used to show that Smith was a serial abuser, leading the jury to convict him on one because of the evidence of both. Kansas courts have rejected arguments that jurors use evidence of one to prove the other when jurors have been instructed to consider each charge separately on the evidence and law applicable to it. State v. Cruz , 297 Kan. 1048, 1058, 307 P.3d 199 (2013). The district court here provided the jurors with such an instruction. "Appellate courts have ascribed to the hypothetical presumption that such an instruction negates the inherently prejudicial effect of trying a person on multiple counts." Cruz , 297 Kan. at 1058 (citing State v. Race , 293 Kan. 69, 77, 259 P.3d 707 [2011] ; State v. Gaither , 283 Kan. 671, 687, 156 P.3d 602 [2007] ). The jury found Smith guilty of eight offenses and not guilty of four offenses. Logically, if the jury improperly used the evidence of one offense as evidence of the other, the jury would have convicted Smith of the aggravated battery against D.S. and both counts of aggravated battery against S.R. However, the jury only found Smith guilty of the more severe aggravated battery against S.R. The jury found him not guilty of aggravated battery by strangulation against S.R. and the charged aggravated battery against D.S. Smith has failed to meet his burden of establishing that the district court abused its discretion in consolidating the two cases for trial. Cumulative Error The test here is whether the totality of the circumstances establishes that the cumulative errors substantially prejudiced the defendant and denied him a fair trial. In assessing the cumulative effect of errors during the trial, the appellate court examines the errors in the context of the entire record, considering how the trial judge dealt with the errors as they arose; the nature and number of errors and their interrelationship, if any; and the overall strength of the evidence. State v. Holt , 300 Kan. 985, 1007, 336 P.3d 312 (2014). See State v. Walker , 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). We will find no cumulative error when the record fails to support the errors defendant raises on appeal. Marshall , 303 Kan. at 451. Smith contends that the errors raised on appeal in this case built on each other to prejudice him and deny him a fair trial. However, the district court did not err in any of the issues raised. Therefore, Smith has failed to show that he is entitled to relief. Affirmed.

Per Curiam: Jacob L. Cox appeals from a jury verdict finding him guilty of two counts of theft, two counts of fleeing and eluding, and one count of interference with law enforcement. Cox appeals, raising claims of insufficient evidence and instructional error. We agree that insufficient evidence shows that Cox knowingly possessed property stolen by another as required for his conviction of one count of theft. We thus reverse that conviction but we affirm all others. Factual and procedural background Security footage from Wheatland Elementary School in Sedgwick County shows a white car pull into the school's parking lot on September 7, 2016. It shows the driver getting out of his car, entering two parked cars, then returning to his car and driving away. It does not, however, permit a clear identification of the car or the driver. Angela John's car was broken into and various items were taken from her glove box. Ashley Ducommun's truck was also broken into-a bag and various other items were taken. On September 15, 2016, Detective Chad Graham of the Sedgwick County Sheriff's Office drove to Cox's home to execute a felony warrant for Cox. Deputy Scott Louthan parked nearby as backup. Graham saw Cox get in a white car and drive away. Graham radioed for Louthan to stop the car. Louthan turned on his emergency lights and sirens in his marked patrol car and attempted a traffic stop of Cox's car but when Cox refused to pull over a high speed pursuit ensued. Cox committed multiple traffic violations as Louthan and other officers tried to pull him over. Cox drove around 84 mph in a 55 mph zone, ran a stop sign, and narrowly missed hitting another car. Cox continued to ignore stop signs and other traffic rules as he reached speeds of over 108 mph. At one point, Cox entered a residential area and slowed to 70 mph, albeit in a 30 mph zone. Finally, Louthan decided to end the pursuit due to safety reasons-it was 3:45pm and he knew children would be leaving school. After the pursuit ended, the police went to Cox's parents' home. Because they noticed fresh tire marks on the ground they believed Cox was in the home or the barn. Cox's father consented to let police search his home for Cox and the police eventually found Cox hiding in the basement. The State charged Cox in two separate cases with two counts of burglary, four counts of theft, two counts of fleeing and eluding, and one count of felony interference with law enforcement. The two cases were consolidated for trial and the State dismissed one of the theft counts. Ultimately, the jury found Cox guilty of two counts of theft, two counts of fleeing and eluding, and one count of interference with law enforcement. It acquitted Cox of the burglary charges and one count of theft. The district court later dismissed one of Cox's fleeing and eluding charges and sentenced Cox to a controlling sentence of 30 months in prison. Cox timely appeals. Does sufficient evidence show Cox knowingly possessed property stolen by another? We first address Cox's argument that insufficient evidence shows that he knowingly possessed property stolen by another as required under K.S.A. 2016 Supp. 21-5801(a)(4), as charged in Count 5. This conviction relates to the theft of property belonging to Darrel Venning including seven $50 savings bonds recovered from Cox's possession. Our standard of review for this issue is whether, " 'after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.' [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). The State argues that circumstantial evidence supports this conviction, correctly noting that a conviction of even the gravest offense can be based entirely on circumstantial evidence and inferences reasonably deducible from that evidence. As long as the inference is a reasonable one, the jury has the right to make the inference. State v. Logsdon , 304 Kan. 3, 25, 371 P.3d 836 (2016). Still, the circumstances used to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson , 289 Kan. 118, 127, 209 P.3d 696 (2009). In other words, "[p]resumption and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference." State v. Doyle , 201 Kan. 469, 488, 441 P.2d 846 (1968). The State charged Cox with theft of Venning's property under K.S.A. 2016 Supp. 21-5801(a)(4) : "(a) Theft is any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services: .... (4) obtaining control over stolen property or services knowing the property or services to have been stolen by another." Thus to prove theft as charged, the State had to show, among other elements, that Cox knew the savings bonds in his possession had been stolen by someone other than himself. We agree that circumstantial evidence, such as Cox's flight from the officers, his hiding in the basement, and the sheer number of backpacks found in his car, supports a reasonable inference that Cox knew Venning's property had been stolen. But no facts tend to show that another person had stolen Venning's property and that Cox knew that. See State v. Vorrice , No. 107,468, 2013 WL 2395860, at *5 (Kan. App. 2013) (unpublished opinion) (finding the State failed to present evidence that someone other than the defendant stole the property at issue). The more likely inference from the facts is that Cox had stolen the savings bonds himself. See State v. Bell , 109 Kan. 767, 769-71, 201 P. 1110 (1921) (possession of recently stolen property tends to show the possessor stole the property). The State fails to show evidence that another person participated in the theft and Cox's guilty knowledge of that fact. Because the State failed to present evidence from which the jury could reasonably have found that Cox knew the savings bonds had been stolen by another, we must reverse Cox's conviction of felony theft in Count 5. Did the trial court err in failing to include an instruction for the lesser included offense of misdemeanor fleeing and eluding? We next address Cox's argument that the trial court erred by failing to instruct the jury on misdemeanor fleeing and eluding as a lesser included offense of felony fleeing and eluding. Cox concedes that he failed to object or request a lesser included instruction. As a result, we apply a clearly erroneous standard of review. See K.S.A. 2017 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict ... unless the instruction or the failure to give an instruction is clearly erroneous."); State v. Pfannestiel , 302 Kan. 747, 752, 357 P.3d 877 (2015). Thus we will reverse the district court only if an instruction error occurred and we are firmly convinced that the jury would have reached a different verdict if the error had not occurred. Cox, as the party claiming clear error, has the burden to demonstrate the necessary prejudice. See State v. McLinn , 307 Kan. 307, 318, 409 P.3d 1 (2018). In reviewing for clear error, we first decide whether the instruction was legally and factually appropriate based on a review of the entire record. See State v. Charles , 304 Kan. 158, 165, 372 P.3d 1109 (2016). "[A]n instruction must always fairly and accurately state the applicable law." State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 (2012). The first requirement is easily met here, as an instruction regarding a lesser included offense is legally appropriate when the lesser crime is an included offense of the charged crime. Plummer , 295 Kan. at 161. Because all of the elements of misdemeanor fleeing and eluding are included within felony fleeing and eluding and because it is a lesser degree of the same crime, misdemeanor fleeing and eluding is a lesser included offense of felony fleeing and eluding. See K.S.A. 2017 Supp. 8-1568(a) - (b) ; K.S.A. 2017 Supp. 21-5109(b). An instruction regarding misdemeanor fleeing and eluding would thus have been legally appropriate. We next determine whether the instruction would have been factually appropriate under K.S.A. 2017 Supp. 22-3414(3). See State v. Molina , 299 Kan. 651, 661, 325 P.3d 1142 (2014). When evaluating whether a lesser included instruction is factually appropriate, we ask "[i]f, after a review of all the evidence viewed in the light most favorable to the [requesting party], we are convinced that a rational factfinder could have found the defendant guilty of the lesser crime." State v. Fisher , 304 Kan. 242, 258, 373 P.3d 781 (2016). Cox argues that a fact-finder could have found him guilty of misdemeanor fleeing and eluding because officers testified that Cox failed to stop in response to visual and audible signals to pull over. See K.S.A. 2016 Supp. 8-1568(a) (stating a driver is guilty of misdemeanor fleeing and eluding if the driver is given a visual or audible signal to stop but the driver "willfully fails or refuses to ... stop for a pursuing police car ... or otherwise flees or attempts to elude a pursuing police car"). But we must review all the evidence, not just this isolated bit of it. Cox was charged with and found guilty of felony fleeing and eluding under K.S.A. 2016 Supp. 8-1568(b)(1)(C), (c)(2). Under this statute, a person is guilty of felony fleeing and eluding if in addition to the above-listed misdemeanor elements, he also commits any of the following during a police pursuit: "[1](A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages in reckless driving as defined by K.S.A. 8-1566, and amendments thereto; (D) is involved in any motor car accident or intentionally causes damage to property; or (E) commits five or more moving violations; or "(2) is attempting to elude capture for the commission of any felony." K.S.A. 2016 Supp. 8-1568(b). The evidence, viewed in the light most favorable to Cox, shows he committed five or more moving violations and was attempting to elude capture for the commission of a felony. Cox drove recklessly and committed 18 moving violations. Cox sped while in a 20 mph zone. He reached 84 mph in a 55 mph zone, 102 mph in a 45 mph zone, 70 mph in a 30 mph zone, and more than 108 mph as Louthan attempted to gain on him. Cox ran a stop light and several stop signs, sped into oncoming traffic, and narrowly missed colliding with another car. Louthan ended the chase for the express purpose of mitigating the risk of harm to the public, as Cox was speeding in town around the time school children were being released for the day, stating: "[T]he risk to the community would have been a lot more serious if, God forbid, someone, some kid got run over or someone got plowed into. So ... I decided to end the pursuit." This evidence seems to show Cox engaged in reckless driving. Cox contends that he did not drive recklessly because his acts were not willful or wanton, as the statute requires. See K.S.A. 2016 Supp. 8-1566 (stating a person drives recklessly when driving a car "in willful or wanton disregard for the safety of persons or property"). Similarly, Cox contends that he did not "consciously disregard a substantial and unjustifiable risk that circumstances exist or that a result will follow [which] constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2016 Supp. 21-5202(j) (defining when a person acts recklessly). But as factual support for his argument, Cox merely contends generally that traffic violations such as speeding, failing to come to a complete stop, or to signal turns do not "inevitably" meet the definition of reckless driving. The facts detailed above, however, of the manner in which Cox drove are more than sufficient to warrant a finding of reckless driving under the relevant statutes. After reviewing all the evidence in the light most favorable to Cox, we are not convinced that a rational fact-finder could have found the defendant guilty of misdemeanor fleeing and eluding. Accordingly, an instruction for misdemeanor fleeing and eluding was not factually appropriate. But even had the instruction been both legally and factually appropriate, the district court's failure to give it was not clearly erroneous. The burden is on the defendant to show that " 'the failure was clearly erroneous, i.e. , the defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in the verdict.' [Citation omitted.]" State v. Cooper , 303 Kan. 764, 770, 366 P.3d 232 (2016). Cox argues that a "real possibility" existed in which "a juror could have formed a reasonable doubt that Mr. Cox engaged in reckless driving" because "the officers did not testify with specificity to the willful or wanton disregard for the safety of persons or property." That argument fails to meet Cox' burden, detailed above. Considering the evidence presented at trial, we do not believe that giving the instruction would have made a difference in the verdict so we find no clear error. Did the trial court err in failing to include an instruction for the lesser included offense of misdemeanor theft? Next, Cox argues that the trial court committed reversible error by failing to include an instruction for misdemeanor theft as a lesser included offense of felony theft. Cox concedes that he failed to object or request a lesser included instruction. We thus review this issue for clear error. Under K.S.A. 2017 Supp. 22-3414(3), a district court must instruct the jury on a lesser included offense where some evidence would reasonably justify a conviction of the lesser offense. Misdemeanor theft under K.S.A. 2016 Supp. 21-5801 consists of the same elements as felony theft, differing primarily as to the value of the property stolen. Thus, misdemeanor theft is a legally appropriate lesser included offense of felony theft. See State v. Reid , 286 Kan. 494, 522-23, 186 P.3d 713 (2008) ; State v. Simmons , 282 Kan. 728, 742-43, 148 P.3d 525 (2006). Theft of Ducommun's property Cox contends a misdemeanor theft instruction would have been factually appropriate as to Count 2, theft of Ducommun's property, because the State proved only the misdemeanor amount of property stolen. Count 2 charged Cox with felony theft under K.S.A. 2016 Supp. 21-5801(a)(1), (b)(6). Under the statute, a person is guilty of felony theft if the offender has been convicted of two or more convictions of felony theft within five years immediately before the commission of the new felony theft and the stolen property has a value of at least $50 but less than $1,500. Cox concedes that he had two or more felony theft convictions in that time period. Thus, to prove felony theft, the State had to show that the value of the stolen property was at least $50. Cox contends the State failed to do this so his conviction, if any, should have been for misdemeanor theft. See K.S.A. 2016 Supp. 21-5801(a)(1), (b)(4). Ducommun testified that her checkbook, debit card, sunglasses, and children's social security and health insurance cards were stolen from her truck and were worth between $200-300. Although none of Ducommun's items but her debit card was recovered from Cox's possession, circumstantial evidence sufficiently shows that Cox had stolen all the items Ducommun said were taken from her truck. And Ducommun's testimony as to the value of all the items taken from her truck is sufficient. See State v. Owens , 248 Kan. 273, 284-85, 807 P.2d 101 (1991) (finding an owner is qualified to express an opinion as to the value of the items taken). In contrast, no evidence would support a finding that the items stolen from Ducommun's truck were worth less than $50. Cox did not challenge Ducommun's testimony regarding the value of the items during the trial, nor did he present independent evidence about their value. Simply put, the misdemeanor theft instruction was not factually appropriate. It is not necessary to give the lesser included instruction where the value of the stolen goods is established to be over the felony limit and where there is no evidence of a value of less than the felony limit. See State v. Robinson , 4 Kan. App. 2d 428, 429, 608 P.2d 1014 (1980) ; State v. Williams , No. 114,245, 2017 WL 542876, at *5 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1331 (2017). That is the case here. As a result, an instruction for misdemeanor was not factually appropriate. The district court did not err in failing to give this unrequested instruction. Did the trial court err in failing to instruct the jury on how a stipulation regarding prior offenses should work? Cox next argues that the trial court erred in giving the following jury instruction: "The parties have stipulated and agreed that on or about September 15, 2016, there was a felony warrant for the defendant in effect and outstanding. You should consider that fact as [it] relates to this claimed offense as proved beyond a reasonable doubt." Cox asserts that the instruction was legally inappropriate because it failed to tell the jury how to apply the stipulation to the elements of the claimed offense-interference with law enforcement by obstructing legal process. Cox failed to raise this objection at trial so we review this claim for clear error. See McLinn , 307 Kan. at 318. Cox was charged with interference with law enforcement by obstructing legal process. Before trial, the parties stipulated that law enforcement attempted to serve a valid felony arrest warrant. At trial the district court instructed the jury as follows: "In Count 9, the defendant is charged with interference with law enforcement by obstructing legal process. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved: "1. Deputy Henry Cocking was authorized by law to execute an arrest warrant for the defendant. "2. The defendant knowingly opposed Deputy Cocking in the execution of that arrest warrant. "3. At the time the defendant knew or should have known that Deputy Cocking was authorized by law to execute the arrest warrant. "4. This act occurred on or about the 15th day of September, 2016, in Sedgwick County, Kansas. "The parties have stipulated and agreed that on or about September 15, 2016, there was a felony arrest warrant for the defendant in effect and outstanding. You should consider that fact as relates to this claimed offense as proven beyond a reasonable doubt." Cox argues that this instruction was legally inappropriate, as little evidence was presented to support a specific finding that he knew about an arrest warrant. Yet Cox agreed that officers "were trying to serve a felony warrant." His flight from the officers evidences his knowledge of that fact. See State v. Phillips , 295 Kan. 929, 947-48, 287 P.3d 245 (2012) (finding evidence of a defendant's flight is relevant to show both the commission of the acts charged and the intent and purpose for which those acts were committed). Cox also suggests that the instruction misled the jurors because the instruction failed to explain exactly what elements the parties had stipulated to, which he contends was necessary so jurors could determine the applicability of that stipulation. But Cox does not specify how the jurors could have been misled, does not offer an alternative instruction that would have remedied the alleged problem, and does not show how giving a more specific instruction would have made a difference in the verdict, as is required to show clear error. See Cooper , 303 Kan. at 771. We consider " 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' [Citation omitted.]" State v. Butler , 307 Kan. 831, 843, 416 P.3d 116 (2018). The district court has no duty to instruct the jury on widely used words: " 'While the district court has a duty to instruct the jury on the law that applies in a particular case, a district court does not have to provide the jury a definition for widely used words or those readily comprehensible by individuals of common intelligence.' Bolze-Sann , 302 Kan. at 210. Jurors are 'expected to decipher many difficult phrases without receiving specific definitions,' State v. Robinson , 261 Kan. 865, 877, 934 P.2d 38 (1997), and '[a] district court should only define additional terms if the instructions as a whole would otherwise mislead the jury or cause it to speculate,' Bolze-Sann , 302 Kan. at 210." McLinn , 307 Kan. at 341. Nothing in the record suggests that this instruction misled the jury or required further explanation. We find no error in giving this instruction. Did cumulative error deprive Cox a fair trial? Lastly, Cox contends that cumulative error deprived him of a fair trial. We have found but one error, but it is remedied by reversing that conviction. A single error cannot support reversal of the case under the cumulative error doctrine. State v. Gonzalez , 307 Kan. 575, 598, 412 P.3d 968 (2018) ; see Butler , 307 Kan. at 868. Such is the case here. We find no deprivation of a fair trial. Affirmed in part and reversed in part.

Malone, J.: The State appeals the district court's decision granting Aaron Matthew Lees' motion to suppress. The district court found that a Kansas highway patrol trooper had no legal grounds to stop Lees' vehicle for a brake light violation because the vehicle's brake lights complied with Kansas law. The State claims the trooper's mistake of law about the brake light violation, if he made one, was objectively reasonable, so the mistake did not invalidate the traffic stop. The State also claims the traffic stop was lawful under the trooper's inspection power as authorized in K.S.A. 8-1759a. For the reasons stated below, we reject the State's claims and affirm the district court's judgment. FACTUAL AND PROCEDURAL BACKGROUND On July 10, 2017, around 11:13 p.m., Lees was leaving the Kansas Star Casino in Sumner County. Lees was driving and he had a female passenger. Just as Lees was leaving the casino and about to enter the Kansas turnpike, Kansas Highway Patrol Trooper Reed Sperry pulled him over because his "left-side brake light [was] out." Before informing Lees of the reason for the stop, Sperry instructed him to test his brake and blinker lights to see if they were working. The tests confirmed Sperry's belief that the left brake light was not functioning properly. Lees' vehicle had three separate brake lights, including the standard left and right brake lights, in addition to a top-middle brake light. The right and top-middle brake lights were both functional. According to Sperry's arrest report, after he explained the reason for the stop to Lees, he noticed an odor of alcohol coming from the vehicle. Upon inquiry, Lees denied consuming any alcohol, but his passenger admitted to having a couple drinks. Sperry then asked for Lees' driver's license and proof of insurance. He provided an identification card. Sperry ran Lees' information and discovered that he was restricted to operating vehicles equipped with ignition interlock devices. There was no interlock device in Lees' vehicle. Because it was illegal for Lees to operate his vehicle without an interlock device, Sperry asked the passenger to submit to a preliminary breath test (PBT) to determine if she could legally drive them home. The passenger failed the test. Sperry then questioned the passenger about whether Lees had really been drinking. The passenger said that Lees had, in fact, been drinking. When confronted with this new information, Lees admitted to consuming two beers at the casino and two beers earlier in the day. While speaking to Lees, Sperry noticed he had bloodshot, watery eyes. Based on what had happened during the stop, Sperry asked Lees to submit to three standard field sobriety tests. According to the arrest report, Lees failed the tests. Sperry read Lees the PBT advisory, after which Lees took and failed the PBT. Sperry then arrested Lees for driving under the influence (DUI) and for driving without the ignition interlock device. Sperry did not issue a citation or warning for the defective brake light. Later, Lees blew a .085 on the Intoxilyzer 9000, putting him over the legal limit. On July 19, 2017, the State charged Lees with DUI and operating a vehicle not equipped with an ignition interlock device. Lees filed a motion to suppress the evidence on January 2, 2018. In the motion, Lees argued that Sperry made a mistake of law, which, under Martin v. Kansas Dept. of Revenue , 285 Kan. 625, 639, 176 P.3d 938 (2008), rendered the stop in violation of the Fourth Amendment. Lees argued that the law required two working brake lights, and without counting the broken left brake light, Lees' vehicle still had two operational brake lights, the right and top-middle brake lights. The State filed a written response to the motion and argued that based on appellate decisions filed after Martin , a law enforcement officer's traffic stop is not invalidated if it is based on an objectively reasonable mistake of the law and that Sperry committed a reasonable mistake of law on Lees' brake light violation. The State also argued that the good-faith exception to the exclusionary rule applied and that Lees voluntarily provided the evidence to be used against him. The State's written response did not argue that the traffic stop in question was authorized under K.S.A. 8-1759a. On January 26, 2018, the district court held a hearing on the motion to suppress. Sperry was the only witness and he testified consistent with the above facts. Sperry admitted that he misunderstood the law about brake lights. He testified that he mistakenly believed that Lees' brake lights needed to be as widely spaced laterally as practicable and mounted at the same height. In other words, he thought that both the left and right brake lights had to be working and that the middle brake light did not count. Sperry testified that he stopped Lees for a brake light violation, and he said nothing about any intent to perform an inspection under K.S.A. 8-1759a. During oral arguments, the State asserted that Sperry's mistake of law about the brake light violation was objectively reasonable, so the mistake did not invalidate the stop. The State also argued for the first time that K.S.A. 8-1759a grants uniformed highway patrol troopers the authority to stop vehicles for defective equipment and that Lees' defective left brake light provided grounds for a legal stop under that statute. The district court filed a memorandum decision on February 9, 2018. The district court found that Sperry made a mistake of law on the brake light violation because the applicable statutes require only two working brake lights and Lees' vehicle satisfied this requirement. The district court also found that Sperry's mistake of law in this instance was not objectively reasonable. As for the State's argument under K.S.A. 8-1759a, the district court found as a matter of law "that the authority granted by this statute does not extend to equipment that is outside what is already required by statute." Because Lees' brake lights complied with state law and posed no safety hazard, the district court found that K.S.A. 8-1759a did not authorize the stop. Finally, the district court found that the good-faith exception did not apply and that Lees did not voluntarily submit to providing any evidence. Thus, the district court granted Lees' motion to suppress the evidence. The State timely filed an interlocutory appeal. On appeal, the State contends that the district court erred in granting the motion to suppress. The State first argues that the traffic stop was legal under Sperry's inspection power as authorized in K.S.A. 8-1759a. Second, the State argues that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. We will address these arguments in reverse order. Lees contends that the district court did not err in granting his motion to suppress the evidence. The standard of review for a district court's decision on a motion to suppress has two components. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The district court's ultimate legal conclusion, however, is reviewed using a de novo standard. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). When the material facts supporting the district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which an appellate court has unlimited review. 307 Kan. at 827, 415 P.3d 966. WAS SPERRY'S MISTAKE OF LAW OBJECTIVELY REASONABLE? The State claims the traffic stop was lawful under Sperry's inspection power as authorized in K.S.A. 8-1759a. But as to the Kansas statutes governing brake lights, the State does not dispute that Sperry made a mistake of law about whether Lees committed a traffic infraction for a brake light violation. Still, the State argues that Sperry's mistake of law about the brake light violation was objectively reasonable, so the mistake did not invalidate the traffic stop. Lees argues that the district court correctly found that Sperry's mistake of law in this instance was not objectively reasonable. The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. State v. Sharp , 305 Kan. 1076, 1081, 390 P.3d 542 (2017). A traffic stop is considered a seizure of the driver of the vehicle. City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). To legally perform a traffic stop, a law enforcement officer must have a reasonable suspicion, requiring specific and articulable facts, that the driver committed or is about to commit a crime or traffic infraction. See K.S.A. 22-2402(1). A traffic infraction is an objectively valid reason to effectuate a traffic stop. State v. Jones , 300 Kan. 630, 637, 333 P.3d 886 (2014). In Kansas, the requirements for stop lamps are set forth in K.S.A. 8-1708(a) which states that "[e]very motor vehicle ... shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721." K.S.A. 8-1721(a) states: "Any vehicle may be equipped and when required under this act shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred (300) feet to the rear in normal sunlight, and which shall be actuated upon application of the service or foot brake, and which may, but need not, be incorporated with one (1) or more other rear lamps." There are no other requirements in Kansas for brake lights. The State does not claim that Sperry correctly employed K.S.A. 8-1708(a) and K.S.A. 8-1721(a) to pull over Lees. The undisputed evidence shows that Lees' vehicle had two functional brake lights. Lees' right and top-middle brake lights both worked, but Sperry thought that Lees needed operational left and right brake lights to comply with the law. Sperry made a mistake of law on whether Lees committed a traffic infraction for the brake light violation. But in Heien v. North Carolina , 574 U.S. ----, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014), the United States Supreme Court held that reasonable suspicion, as required for a traffic stop or an investigatory detention, can rest on a reasonable mistake of law. In that case, an officer stopped a vehicle for a broken brake light, believing the law required two working brake lights even though the applicable brake light statute required "a stop lamp on the rear of the vehicle." 135 S.Ct. at 535. But the same provision also stated that the "stop lamp may be incorporated into a unit with one or more other rear lamps." 135 S.Ct. at 535. Finding that the brake light statute was ambiguous and had never been interpreted by an appellate court, the Heien Court held that the officer's mistake of law was reasonable and did not invalidate the traffic stop. 135 S.Ct. at 540. Still, the Heien Court cautioned that "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." 135 S.Ct. at 539-40. The Kansas Supreme Court has adopted Heien 's holding. See Pianalto , 301 Kan. at 1013, 350 P.3d 1048. In that case, the court ultimately found that an officer had committed a mistake of fact on whether a speed limit sign had been knocked down. 301 Kan. at 1015, 350 P.3d 1048. But whether the case involves an officer's mistake of fact or law, it is the court's duty to determine whether the mistake was objectively reasonable under the totality of the circumstances in assessing reasonable suspicion for a traffic stop. 301 Kan. at 1015-16, 350 P.3d 1048. Applying Heien and Pianalto , the State asserts that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. But as Lees points out in his brief, the statutes at issue in Heien differ from the statutes at issue here. In Heien , it was ambiguous how many functioning brake lights the statute required; but the Kansas statutes are clear that only two functioning brake lights are required. Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce. See Heien , 135 S.Ct. at 539-40. In addition to the fact that the applicable Kansas statutes are unambiguous, the Kansas Supreme Court has previously interpreted them as well, over 10 years ago. In Martin , a driver's license suspension case, a law enforcement officer stopped a driver for having a malfunctioning brake light, although two other brake lights were working. The city ordinances that prompted the stop were identical to K.S.A. 8-1708 and K.S.A. 8-1721. The Martin court found that two operational brake lights were sufficient under Kansas law. 285 Kan. at 637, 176 P.3d 938. The court determined that an officer's mistake of law may invalidate a traffic stop under the Fourth Amendment. 285 Kan. at 639, 176 P.3d 938. But the court went on to conclude that the exclusionary rule did not apply to a driver's license suspension proceeding under the circumstances of the case. 285 Kan. at 639-46, 176 P.3d 938. Even so, the State contends that several Kansas traffic statutes involving the location of a vehicle's lights creates ambiguity, transforming Sperry's mistake into an objectively reasonable one. The State points out that K.S.A. 8-1721(b) calls for a vehicle's blinker lights to be of even height and as widely separated laterally as practicable. The State argues that it is easy to confuse subsection (b) on blinker lights with subsection (a) of the same statute on brake lights. The State also directs our attention to other statutes that require vehicle lights to be of essentially equal height. See, e.g., K.S.A. 8-1705 (headlights); K.S.A. 8-1706 (taillights); K.S.A. 8-1722 (hazard lights). Finally, the State highlights the fact that to understand the brake light laws in Kansas, two statutes, K.S.A. 8-1708(a) and K.S.A. 8-1721(a), must be read together. We are not persuaded by the State's arguments. As already stated, the applicable Kansas statutes on stop lamps unambiguously require only two functioning brake lights. Simply because there are other statutes requiring headlights and taillights to be of equal height should not confuse a law enforcement officer of the basic requirement that a vehicle in Kansas must have only two functioning brake lights. Sperry made the same mistake of law that the officer made over 10 years ago in Martin . Sperry is a law enforcement officer, not an average citizen, and he is expected to understand the laws that he is duty bound to enforce. See Heien , 135 S.Ct. at 539-40. For these reasons, we agree with the district court's conclusion that Sperry's mistake of law in this instance was not objectively reasonable. Thus, the traffic stop in question was an unreasonable seizure in violation of Lees' Fourth Amendment rights. Unlike the Martin driver's license suspension case, the exclusionary rule applies herein to require suppression of the evidence resulting from the illegal stop. See Wong Sun v. United States , 371 U.S. 471, 491-92, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In district court, the State argued that the good-faith exception to the exclusionary rule applied and that Lees voluntarily provided the evidence to be used against him, but the State has abandoned these arguments on appeal. See State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not briefed are deemed waived or abandoned). WAS THE TRAFFIC STOP AUTHORIZED UNDER K.S.A. 8-1759a ? The State also claims the traffic stop was lawful under Sperry's inspection power as authorized in K.S.A. 8-1759a. The State raised this argument in district court in its closing argument at the hearing on Lees' motion to suppress. Lees responds that K.S.A. 8-1759a does not authorize a trooper to perform an inspection of non-functioning equipment that is beyond that required by law and does not otherwise render the vehicle unsafe. Lees also argues that K.S.A. 8-1759a does not apply because it was not Sperry's primary purpose for the traffic stop. Resolution of the State's claim on appeal requires statutory interpretation. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). 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. 303 Kan. at 813, 368 P.3d 331. 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. 303 Kan. at 813, 368 P.3d 331. K.S.A. 8-1759a states: "(a) Uniformed members of the highway patrol, at any time upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, may require the driver of such vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate. "(b) In the event a vehicle is found to be in unsafe condition or any required part or equipment is not present or in proper repair and adjustment, the member of the highway patrol shall give a written notice of such defect to the driver. "(c) In the event any such vehicle is, in the reasonable judgment of the member of the highway patrol, in such condition that further operation would be hazardous, such member of the highway patrol may require, in addition, that the vehicle not be operated under its own power or that it be driven to the nearest garage or other place of safety. "(d) Violation of this section is a class A misdemeanor." K.S.A. 8-1759a is the companion statute to K.S.A. 8-1759 which authorizes spot inspections by the Kansas highway patrol requiring drivers to stop and submit to vehicle inspections at any location where signs are displayed giving notice of such inspections. Notably, K.S.A. 8-1759a only applies to "[u]niformed members of the highway patrol." K.S.A. 8-1759a(a). The statute does not authorize any other law enforcement officer such as a sheriff's deputy to conduct a traffic stop to inspect a vehicle's equipment. K.S.A. 8-1759a(a) allows a trooper to stop a vehicle upon reasonable cause to believe (1) the vehicle is unsafe; (2) the vehicle is not equipped as required by law; or (3) the vehicle's equipment is not in proper adjustment or repair. K.S.A. 8-1759a(b) goes on to state that a trooper shall give a written notice to the driver if (1) the vehicle is found to be in unsafe condition; or (2) any required part or equipment is not present or in proper repair and adjustment. Under K.S.A. 8-1759a(c), a trooper may direct a vehicle to be towed or driven to the nearest garage in the event that the defect is hazardous. Finally, K.S.A. 8-1759a(d) makes a violation of the statute a class A misdemeanor. K.S.A. 8-1759a was enacted in 1976 and only two cases have ever cited or discussed the statute. In Davis v. Kansas Dept. of Revenue , 252 Kan. 224, 230, 843 P.2d 260 (1992), our Supreme Court cited the statute for the limited purpose of noting that no specific statutory authority is required to stop a vehicle at a sobriety checkpoint. In Fillmore v. Eichkorn , 891 F.Supp. 1482 (D. Kan. 1995), the plaintiff, who was arrested and detained for more than 48 hours based initially on a broken taillight violation, sued Kansas highway patrol troopers and other correctional officers for civil rights violations. On a motion for summary judgment, the troopers argued that the initial stop was authorized under K.S.A. 8-1759a. The plaintiff argued that the troopers lacked reasonable suspicion for the stop because his broken taillight still complied with the Kansas statutory requirements for taillights. The district court noted that there were no Kansas cases directly on point to resolve the issue. 891 F.Supp. at 1488. But rather than attempting to decide this unsettled point of Kansas law, the court granted summary judgment to the troopers based on qualified immunity. 891 F.Supp. at 1489-90. Returning to our case, Sperry testified that he stopped Lees because his "left-side brake light [was] out." Sperry never testified that he intended to perform an inspection of Lees' vehicle under K.S.A. 8-1759a, and he never issued a citation or warning for the defective brake light. In rejecting the State's argument that the traffic stop was authorized under K.S.A. 8-1759a, the district court found as a matter of law "that the authority granted by this statute does not extend to equipment that is outside what is already required by statute." Because Lees' brake lights complied with state law and posed no safety hazard, the district court found that K.S.A. 8-1759a did not authorize the stop. Putting aside the fact that Sperry had no subjective intent to stop Lees' vehicle for an inspection under K.S.A. 8-1759a, we will analyze the statutory language to determine if it provides any basis to authorize the stop in question. K.S.A. 8-1759a(a) authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the "vehicle is unsafe." But Sperry never testified that Lees' brake light defect posed a safety hazard. And the district court found that the "brake light malfunction posed little, if any, hazard to traffic." The State does not challenge this finding on appeal. K.S.A. 8-1759a(a) also authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the vehicle is "not equipped as required by law." But for reasons we have already explained, Lees' brake lights complied with Kansas law, and Sperry's belief to the contrary was not objectively reasonable. K.S.A. 8-1759a(a) also authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the vehicle's "equipment is not in proper adjustment or repair." The State's primary argument is that this provision authorized Sperry to stop Lees' vehicle for inspection even though the vehicle's brake lights complied with Kansas law. The district court rejected this argument, as a matter of statutory construction, finding that the authority for a trooper to stop a vehicle under K.S.A. 8-1759a(a)"does not extend to equipment that is outside what is already required by statute." Stated differently, the district court construed the statute to mean that a trooper can stop a vehicle for inspection upon reasonable cause to believe that any equipment required by law is not in proper adjustment or repair. The district court's interpretation of K.S.A. 8-1759a makes sense when the statute is construed as a whole. We note that the language of subsection (a) of the statute is broader than the language of subsection (b). K.S.A. 8-1759a(b) authorizes a trooper to issue a written notice of defect to the driver only if the vehicle is found to be "in unsafe condition" or if "any required part or equipment is not present or in proper repair and adjustment." (Emphasis added.) When construing statutes to determine legislative intent, appellate courts must consider various provisions of the act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. State v. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015). A trooper should not be permitted to stop a vehicle for inspection under K.S.A. 8-1759a for any equipment that is not in proper adjustment or repair unless the trooper is also allowed to issue a written notice of such defect to the driver. Reading K.S.A. 8-1759a(a) together with K.S.A. 8-1759a(b), it is reasonable to interpret the statute as authorizing a trooper to stop a vehicle for inspection and to issue a written notice of defect to the driver only if the vehicle is in unsafe condition or if any required equipment is missing or is not in proper repair or adjustment. For example, a trooper may observe a vehicle with an open fuel hatch which is not in proper adjustment or repair. But an open fuel hatch presents no traffic infraction, nor does it impose a public safety hazard. See State v. Gonzales , 36 Kan. App. 2d 446, 453, 141 P.3d 501 (2006). Likewise, a trooper may observe a vehicle with a missing or loose hubcab which is not in proper adjustment or repair. But a missing or loose hubcab presents no traffic infraction, nor does it impose a public safety hazard. See State v. Marx , 289 Kan. 657, 663, 215 P.3d 601 (2009). It would be unreasonable to construe K.S.A. 8-1759a to authorize a trooper to stop a vehicle for inspection for having an open fuel hatch or for having a missing or loose hubcab when these defects do not cause the vehicle to be unsafe and do not involve equipment that is required by law. Moreover, courts must interpret a statute in a way that makes it constitutional if any reasonable construction would maintain the Legislature's apparent intent. State v. Petersen-Beard , 304 Kan. 192, 194, 377 P.3d 1127, cert. denied --- U.S. ----, 137 S.Ct. 226, 196 L.Ed.2d 175 (2016). As previously stated, the Fourth Amendment protects citizens from unreasonable searches and seizures. A traffic stop is considered a seizure of the driver of the vehicle. Pianalto , 301 Kan. at 1011, 350 P.3d 1048. Thus, any statute that authorizes a law enforcement officer to stop a vehicle must be consistent with the Fourth Amendment. To the extent that K.S.A. 8-1759a(a) authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the "vehicle is unsafe," the statute is consistent with the Fourth Amendment because a valid public safety stop does not violate the Constitution. See State v. Cleverly , 305 Kan. 598, 605, 385 P.3d 512 (2016). And to the extent that K.S.A. 8-1759a(a) authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the vehicle is "not equipped as required by law," the statute is consistent with the Fourth Amendment because an investigatory detention based on a traffic infraction is a valid reason for a stop. See Jones , 300 Kan. at 637, 333 P.3d 886. But to the extent that K.S.A. 8-1759a(a) authorizes a trooper to stop a vehicle for inspection upon reasonable cause to believe that the vehicle's "equipment is not in proper adjustment or repair," the statute falls outside a permissible stop under the Fourth Amendment-unless the vehicle is unsafe or not equipped as required by law. To keep K.S.A. 8-1759a(a) constitutional, the statute's third reason for a stop-"equipment is not in proper adjustment or repair"-must incorporate the safety and illegality requirements. Otherwise, to allow a trooper to stop and seize a driver to inspect the driver's vehicle solely because its "equipment is not in proper adjustment or repair" would constitute an unreasonable seizure beyond what is permitted by the Fourth Amendment. In sum, because Sperry's mistaken belief that K.S.A. 8-1708(a) and K.S.A. 8-1721(a) required functional left and right brake lights was objectively unreasonable, the stop of Lees' vehicle was invalid from the start. And we find that K.S.A. 8-1759a cannot be employed as an after-the-fact justification for the stop in this instance because the statute authorizes a trooper to stop a vehicle for inspection and to issue a written notice of defect to the driver only if the vehicle is in unsafe condition or if any required equipment is missing or is not in proper adjustment or repair. Under the circumstances here, the district court did not err in rejecting K.S.A. 8-1759a as a lawful basis for the stop, and we conclude the district court did not err in granting Lees' motion to suppress the evidence. Affirmed.

The opinion of the court was delivered by Rosen, J.: Ivan Alvarez petitions for review of the Court of Appeals decision affirming the district court's order taxing him for certain expenses as "court costs." We affirm the portion of the decision holding that the district court did not err in imposing these expenses as court costs, but we reverse the portion holding that the relevant statutes required that the district court impose these costs. FACTUAL AND PROCEDURAL BACKGROUND The State charged Alvarez with first-degree murder under K.S.A. 2016 Supp. 21-5402(a)(1). On January 22, 2016, three days before his trial was scheduled to begin, Alvarez pleaded no contest to one count of second-degree murder. Alvarez stated at the plea hearing that he had read the charge against him, which provided that the possible sentence ranged from 147 to 653 months' imprisonment. In March 2016, the State requested the district court order Alvarez to reimburse the State for expenses related to witnesses and the development of photographs that it had intended to use as trial exhibits. Itemized receipts showed $451.19 in witness expenses and $421.88 for trial exhibits. The district court held a sentencing hearing on April 8, 2016. The presentence investigation report determined that Alvarez' criminal history score was D. Alvarez did not object to this score. Both parties requested the standard-range sentence of 253 months' imprisonment, and the district court followed that recommendation. The district court then ordered Alvarez to pay all of the fees and expenses requested by the State. Alvarez did not object to paying the witness fees. But, with respect to the trial exhibit expenses, defense counsel stated the following: "I would just ask the Court to consider whether or not the Court should be imposing basically office supply expenses for the State such as photo finishing. I understand witness mileage and witness expenses and we would not object to those as being obviously incurred, but we would ask the court to-just to seriously consider whether or not to consider basically office supplies such as photo finishing in this matter. That seems like that's just a cost of doing business just like I don't charge for copies or notebooks or pens that I may use in trial." The district court replied "[t]he Court finds that the statute provides that reimbursement for trial preparation fees such as those provided are appropriate and would find all those reasonable and properly documented and the $873.07 is allowed." Alvarez appealed. He argued that the district court had no authority to tax him for the trial exhibit expenses. He also argued that the use of his criminal history score to enhance his sentence violated the Sixth and Fourteenth Amendments to the United States Constitution. The Court of Appeals held that the court had authority to tax Alvarez for the trial exhibit expenses under K.S.A. 22-3801 and K.S.A. 2017 Supp. 28-172a. With regard to his constitutional argument, the panel concluded that Alvarez had not preserved the issue in the district court, had failed to explain why the Court of Appeals should consider it for the first time on appeal, and had waived the argument by improperly briefing it. The panel also noted that this court has already decided the issue adversely to Alvarez. State v. Alvarez , No. 115993, 2017 WL 1367057 (2017) (unpublished opinion). Alvarez petitioned for this court's review. He argued that the Court of Appeals erred when it concluded that the district court had the authority to tax him for trial preparation expenses and when it declined to consider his constitutional claim. We granted review of both issues. ANALYSIS Court Costs Alvarez argues that the district court lacked any authority to tax him for expenses related to the prosecution's production of trial exhibits. This issue requires the interpretation of statutes. We review issues of statutory interpretation de novo. State v. Brosseit , 308 Kan. 743, 748, 423 P.3d 1036 (2018). Under K.S.A. 22-3801(a), "[i]f the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for payment of money in civil cases." K.S.A. 2017 Supp. 28-172a provides that "(a) ... whenever the ... defendant is adjudged to pay the costs in a criminal proceeding in any county, a docket fee shall be taxed .... "(d) ... All other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Additional fees shall include, but are not limited to, fees for Kansas bureau of investigation forensic or laboratory analyses, fees for detention facility processing pursuant to K.S.A. 12-16,119, and amendments thereto, fees for the sexual assault evidence collection kit, fees for conducting an examination of a sexual assault victim, fees for service of process outside the state, witness fees, fees for transcripts and depositions, costs from other courts, doctors' fees and examination and evaluation fees." K.S.A. 2017 Supp. 28-172a(d). The Court of Appeals panel concluded that "[t]he expenses for photographic trial exhibits reasonably fit within the '[a]ll other ... expenses ... shall be approved' parameters of K.S.A. 2016 Supp. 28-172a(d) and can be classified as court costs for the purpose of 'taxing' them to a convicted defendant." 2017 WL 1367057, at *2. Furthermore, the panel held, "[u]nder these statutes, not only did the district court have the authority to assess the photographs as court costs to be reimbursed to the prosecution, it was mandated that it do so." 2017 WL 1367057, at *3. Accordingly, the panel affirmed the district court's decision taxing Alvarez for the exhibit expenses. 2017 WL 1367057, at *3. We agree that the district court did not err when it found that the expenses the State incurred in preparing these exhibits were properly taxable as court costs under K.S.A. 22-3801. The State asserts that "court costs" include any expenses related to the prosecution of the defendant. The State's position is in line with Kansas caselaw dating back to 1868. In Co. Com'rs v. Whiting , 4 Kan. 273, 275 (1868), this court considered sections 311 and 318 of the code of criminal procedure. Those provisions provided that " '[t]he costs shall be paid by the county in which the offense is committed, [in cases] in which the defendant shall be convicted, and shall be unable to pay them' " and that "[w]henever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the territory or county." 4 Kan. at 274. This court interpreted those provisions to mean that " 'when any person has been convicted of a crime against the laws, such person is liable for all the costs which are properly chargeable under the law; that is to say, he is liable for all costs made by the prosecution, and for all costs made in his own behalf.' " 4 Kan. at 280. In 1965, this court affirmed the language in Whiting , holding that "[i]t is well settled in this state that upon conviction in a criminal action the defendant is liable for the costs made in both the prosecution and defense of the case." State v. Shannon , 194 Kan. 258, 263, 398 P.2d 344, cert. denied 382 U.S. 881, 86 S.Ct. 172, 15 L.Ed.2d 122 (1965). Kansas district courts and the Court of Appeals regularly rely on this well-settled understanding of the law. See, e.g., State v. Lopez , 36 Kan. App. 2d 723, 728, 143 P.3d 695 (2006) (holding it was "beyond the district court's discretion to award costs and expenses that were unrelated to prosecuting the crimes of conviction"); State v. Rother , 23 Kan. App. 2d 443, 443, 931 P.2d 1268, rev. denied 261 Kan. 1088 (1997) (affirming district court's imposition of expert witness fees as court costs). We do not depart from this caselaw today. We do, however, note that the expenses must bear a reasonable relation to the prosecution to be taxable as court costs. The State conceded this point at oral argument, and we agree, as have other courts that have addressed this issue. See People v. Wallace , 245 Mich. 310, 314, 222 N.W. 698 (1929) (costs imposed must bear some reasonable relation to the expenses actually incurred in the prosecution); see also Leyritz v. State , 93 So.3d 1156, 1157 (Fla. Dist. Ct. App. 2012) (a "trial court must determine that the costs sought by the state were reasonably and necessarily related to the prosecution of the crime for which appellant was convicted"); People v. Davis , 247 Mich. 672, 673, 226 N.W. 671 (1929) (citing Wallace , 245 Mich. 310, 222 N.W. 698, for the notion that "costs imposed in a criminal case must bear a true relation to the expense of the prosecution"); State v. Moon , 124 Wash. App. 190, 195, 100 P.3d 357 (2004) (reversing the imposition of costs for a DNA lab fee when the defendant was acquitted of a rape charge but convicted of burglary because there was no "substantive connection" between the fee and the conviction). Here, the State incurred expenses in generating photographs it would use at trial. At oral argument, the State indicated that it used these photographs at Alvarez' preliminary hearing. Because of that, these expenses were reasonably related to the prosecution of Alvarez and are therefore an appropriate tax against him under K.S.A. 22-3801. Although we agree with the Court of Appeals panel's conclusion that these expenses were properly taxable as court costs, we make one clarification to its expression of the law. The panel concluded that the district court was mandated to assess these expenses against the defendant. Alvarez , 2017 WL 1367057, at *3. We disagree. The panel presumably based its conclusion on the use of the word "shall" in K.S.A. 22-3801(a). This statute and K.S.A. 2017 Supp. 28-172a use the word "shall" a number of times: "If the defendant in a criminal case is convicted, the court costs shall be taxed against the defendant and shall be a judgment against the defendant which may be enforced as judgments for payment of money in civil cases." (Emphasis added.) K.S.A. 22-3801(a). And, "a docket fee shall be taxed" and "[a]ll other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute." (Emphasis added.) K.S.A. 2017 Supp. 28-172a(a), (d). We have explained that "shall" is mandatory in some contexts and directory in others. "Its meaning is not plain, and construction is required." State v. Raschke , 289 Kan. 911, 915, 219 P.3d 481 (2009). The language in K.S.A. 2017 Supp. 28-172a indicates that docket fees and other costs that are specifically fixed by statute must be taxed against the defendant, but that other fees to be assessed as court costs need to be approved by the district court before they are taxed. This does not mean that the district court must tax a defendant for trial preparation expenses, as the Court of Appeals concluded, but that those expenses must first bear a reasonable relation to the prosecution and then be approved by the district court before they are taxed as court costs. K.S.A. 22-3801 does state that "court costs shall be taxed against the defendant," which suggests that perhaps the taxing of court costs is mandatory. However, since K.S.A. 2017 Supp. 28-172a indicates that this is not the case, it becomes apparent that the "shall" in K.S.A. 22-3801 is directory. See Raschke , 289 Kan. at 915-16, 219 P.3d 481 (noting that "shall" in one statute was treated as directory "because of the discretionary effect of other provisions"). Accordingly, we conclude that the statutes here authorized the district court to tax the defendant for the disputed expenses but did not mandate the imposition of the expenses. Preservation and Abandonment of Constitutional Claim Alvarez argued in the Court of Appeals that the district court violated his Sixth and Fourteenth Amendment rights by using his criminal history to increase his presumptive prison sentence. He conceded that this court has routinely decided this case against him, beginning with State v. Ivory , 273 Kan. 44, 45-48, 41 P.3d 781 (2002), and offered the argument only to preserve it for federal review. The panel concluded that Alvarez' claim was unpreserved and abandoned. It also reached the merits of the issue, holding that "[t]he use of criminal history to calculate the presumptive KSGA sentence does not violate due process." 2017 WL 1367057, at *4 (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000] ; State v. Fisher , 304 Kan. 242, 264, 373 P.3d 781 [2016] ; Ivory , 273 Kan. at 47-48, 41 P.3d 781 ). Alvarez does not disagree with the panel's decision on the merits of his claim-he agrees that this court has decided this issue against him. He challenges the panel's decision that the issue was unpreserved and abandoned. This issue involves questions of preservation and abandonment, which are subject to unlimited review. See State v. Swint , 302 Kan. 326, 335-36, 346-47, 352 P.3d 1014 (2015) (performing unlimited review of Court of Appeals' conclusions regarding preservation and abandonment). Generally, parties may not raise constitutional issues for the first time on appeal unless they successfully argue that one of three recognized exceptions applies: the claim involves only a question of law arising on proved or admitted facts and is determinative of the case; consideration of the claim is necessary to serve the ends of justice or prevent the denial of fundamental rights; or the district court is right for the wrong reason. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). "To preserve an issue for appellate review ... it must be accompanied by argument and supported by pertinent authority or an explanation why the argument is sound despite the lack of authority or existence of contrary authority." Swint , 302 Kan. at 346, 352 P.3d 1014. Alvarez recognizes that he did not raise this issue in the district court. In his appellate brief, he argued that the Court of Appeals could consider the issue for the first time on review because a court may correct an illegal sentence at any time. Because Alvarez conceded that this issue has been decided adversely to his position and he was not presenting any argument that this court had not yet considered, he provided minimal briefing. We conclude that in this case, where the presentation of a settled issue was necessary for preserving federal review of that issue, Alvarez' preservation statement and briefing were sufficient to preserve the issue for review. We reverse the panel's conclusion that the issue was unpreserved and abandoned and affirm the panel's decision on the merits. The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed.

The opinion of the court was delivered by Johnson, J.: A law enforcement officer stopped the vehicle Robert Doelz was driving to investigate whether it had any connection to a recent bank robbery. After seizing a digital scale from the backseat, the officer searched the vehicle, uncovering a large amount of methamphetamine in the vehicle's gas cap area. The district court denied a motion to suppress the fruits of the vehicle search, and an initial jury trial ended with a hung jury. The retrial jury convicted Doelz of possession of methamphetamine with intent to distribute; the district court denied Doelz' motion for a new trial based on newly discovered evidence; and the Court of Appeals affirmed the district court's denial of the suppression motion, the district court's denial of the new trial motion, and the jury's conviction. We granted Doelz' petition for review which claims inter alia that the Court of Appeals erred in affirming the district court's denial of the motion to suppress because the officer's general search of Doelz' vehicle was an unconstitutional warrantless search. We agree, reversing and remanding to the district court. FACTUAL AND PROCEDURAL SUMMARY On May 31, 2013, a credit union in Leavenworth, Kansas, was robbed. According to eyewitnesses, two black males committed the robbery, and they fled in a dark green Chevrolet Blazer driven by a white male. The witnesses said the getaway vehicle had standard Missouri license plates with the final three characters being "GAY." But standard Missouri license plates use both letters and numbers. The next morning, Leavenworth Police Officer Brandon Mance saw a dark green Chevrolet Blazer with standard Missouri license plates ending in "G4Y." The vehicle was parked at a residence Mance knew to be "involved with drug activity." As he drove past the parked Blazer, Mance noted that there were three white males inside the vehicle and a black male leaning against the outside of the Blazer, talking to the backseat passenger. Mance waited until the vehicle left the residence, followed it, and subsequently initiated a traffic stop. Doelz was driving; Floyd Eaton was the front-seat passenger; and David Schmidt was seated in the backseat. None of the occupants was black. Mance asked if they had any knowledge about the robbery that occurred the night before, and they responded that they had read about it in the newspaper. Doelz told Mance that the Blazer belonged to his girlfriend's aunt. Mance recognized Eaton and Schmidt from prior encounters; Mance associated Eaton with a residence "notorious for the use of narcotics, primarily methamphetamines," and Eaton had previously admitted to using methamphetamine. Mance ran all three occupants' names through dispatch and discovered that Schmidt had two outstanding arrest warrants with the City of Leavenworth. In the process of arresting Schmidt, Mance saw an object on the Blazer's backseat, 4 by 4 inches, black plastic, with a lid and a clasp, that he believed contained a digital scale. Without obtaining permission to enter the vehicle or to remove the object, Mance grabbed it, opened it, and confirmed that it was a digital scale. Mance confronted Doelz with the scale, and Doelz denied that it belonged to him. Mance then requested permission to search the vehicle, but Doelz initially resisted the request. Mance told Doelz that, based on the evidence he had already found, the officer was legally authorized to search the vehicle even without permission. At that point, Doelz responded, "If you have to, go ahead." The ensuing thorough search of the vehicle uncovered drugs, drug paraphernalia, and cash, including 28.52 grams of methamphetamine wedged in the vehicle's gas cap area. The State charged Doelz with possession of methamphetamine with intent to distribute and, after a preliminary hearing and arraignment, the matter was set for a jury trial. The Friday before trial, Doelz filed a motion to suppress all of the evidence recovered in the vehicle. He first argued that the investigative detention should have terminated when Mance confirmed that the vehicle occupants were white, given that the credit union robbers were described as two black males. In addition, he asserted that Mance had unlawfully seized the digital scale without a warrant, and the ensuing vehicle search-based upon the scale and without a knowing consent-was an unlawful warrantless search. At trial the next Monday, Doelz' counsel objected to officer Mance's testimony regarding the seized evidence and, in a sidebar, stated he wished to preserve his motion to suppress for appeal. The judge overruled the objection. The district court then took up the motion to suppress at the end of the day, following voir dire, opening statements, and the State's case-in-chief. Because the district court did not hold an evidentiary hearing, it is unclear whether the judge relied exclusively on testimony at the preliminary hearing, as Doelz had suggested, or whether the judge considered the additional testimony that had just been presented at trial. Nevertheless, the court ruled that Mance had reasonable suspicion to make the traffic stop based on the description of the vehicle, and it was reasonable to extend the stop to obtain the identities of the vehicle occupants to investigate how this vehicle was involved with the robbery. Further, the court held that, when Mance saw the digital scale, his experience and training permitted him to opine that it was for an illegal use, thus providing probable cause to seize the digital scale. The court found that Mance was authorized to search the entire vehicle on two bases: Doelz' consent and the state's theory that Mance had probable cause to believe the vehicle contained illegal contraband. The trial resulted in a hung jury after one of the jurors refused to participate in deliberations. At the retrial, after empaneling the jury, the judge explained the restrictions placed on the jurors and gave the following instruction: "Any juror who violates these restrictions I've explained to you jeopardizes the fairness of these proceedings, and a mistrial could result, which would require the entire trial process to start over. As you can imagine, a mistrial is an expense and inconvenience to the parties, the Court, and the taxpayers." During voir dire, the State informed the jury this was Doelz' second trial, stating: "You're going to hear that there was actually testimony from a previous trial in this case. And the reason for that ... is because there was actually an issue with one of the jurors in that case. We had actually got to the very end of this case, and then one of the jurors decided she did not want to participate." During trial, Doelz' counsel continually objected to the admission of the evidence of contraband recovered from Doelz' vehicle. The jury returned a verdict finding Doelz guilty of one count of possession of methamphetamine with intent to distribute. After the jury returned a guilty verdict, Doelz filed a motion for a new trial based on newly discovered evidence. Following a hearing, the district court denied Doelz' motion for a new trial. The Court of Appeals affirmed Doelz' conviction. As part of its opinion, the panel held that the totality of circumstances supported the officer's belief that the Blazer contained contraband. One of the circumstances specifically noted was "the presence of the closed digital scale recognized by the officer as drug paraphernalia used in drug sales." State v. Doelz , No. 113,165, 2016 WL 3570515, at *6 (Kan. App. 2016) (unpublished opinion). This court granted review of the Court of Appeals' decision. LAWFULNESS OF VEHICLE SEARCH Doelz argues Mance conducted an unconstitutional search of his vehicle in violation of the Fourth Amendment to the United States Constitution. He asserts Fourth Amendment violations occurred at multiple points during the investigation. First, Doelz concedes that the officer had reasonable suspicion to initially stop the vehicle based on the robbery eyewitnesses' description of the getaway vehicle, but he contends that the reasonable suspicion of bank robbery dissipated the moment the officer saw that all the vehicle occupants were white. At that point, Doelz argues, the detention could not be lawfully extended without reasonable suspicion of another crime, and Doelz should have been free to leave. Next, Doelz argues the officer unlawfully seized the digital scale without a warrant and without a valid exception to the warrant requirement. Third, Doelz argues that Mance did not have probable cause, based on the totality of the circumstances, to search the entire vehicle. Finally, Doelz argued to the Court of Appeals that he did not freely and voluntarily consent to the search. We address each claim in turn. Standard of Review Reviewing a district court's decision on a motion to suppress requires the application of a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence, and then the ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Garcia , 297 Kan. 182, 186-87, 301 P.3d 658 (2013). "Substantial competent evidence is 'such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.' " Smith v. Kansas Dept. of Revenue , 291 Kan. 510, 514, 242 P.3d 1179 (2010) (quoting Drach v. Bruce , 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 [2006] ). Analysis Extending the Detention Doelz contends that the lawful purpose of the initial vehicle stop was to determine whether the bank robbers were in the vehicle. Then, he reasons, because Mance knew the bank robbers were black, the lawful purpose of the stop was completed upon the officer's discovery that all of the vehicle occupants were white. The State counters that the eyewitnesses described the getaway driver as white, so the officer was justified in continuing to investigate whether Doelz, Eaton, or Schmidt was the accomplice driver. "Investigatory detentions are generally permitted under the Fourth Amendment to the United States Constitution and K.S.A. 22-2402 if 'an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.' " State v. Thomas , 291 Kan. 676, 687, 246 P.3d 678 (2011). What is reasonable is based on the "totality of the circumstances." 291 Kan. at 687, 246 P.3d 678. Reasonable suspicion, while more than a hunch, represents a " 'minimum level of objective justification' which is 'considerably less than proof of wrongdoing by a preponderance of the evidence.' " 291 Kan. at 687-88, 246 P.3d 678. But investigatory detentions " 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " State v. Smith , 286 Kan. 402, 410, 184 P.3d 890 (2008) (quoting Florida v. Royer , 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 [1983] ). Yet, when reasonable suspicion exists, taking a suspect's identification and using it to run a computer records check generally does not exceed the permissible boundaries of an investigatory detention. State v. Walker , 292 Kan. 1, 15-16, 251 P.3d 618 (2011) (case involving stop of pedestrian); see United States v. Villagrana-Flores , 467 F.3d 1269, 1275 (10th Cir. 2006) (summarizing U.S. Supreme Court cases holding that if an officer possesses reasonable suspicion to stop a vehicle, " 'it is well established that [the] officer may ask a suspect to identify himself in the course of a Terry stop' "). Doelz' argument falters when it states the lawful purpose of the initial stop too narrowly. The officer had reasonable suspicion that the stopped vehicle had been involved in a bank robbery and that a white person had driven the car during the crime. Under the totality of circumstances, the lawful purpose of the stop was to ascertain whether the vehicle was, indeed, an instrumentality of the bank robbery crime and whether any of the occupants were an accomplice to the crime. Given that the purpose of the stop went beyond just looking for the two "inside" robbers, the discovery that the occupants were not the same race as the "inside" robbers did not complete the investigation that had justified the initial detention. In short, taking the occupants' identification and running a records check on them did not unlawfully extend the Terry stop. Seizing and searching the digital scale Doelz argues, alternatively, that even if the records check was not an unlawful extension of the investigatory detention, the officer did not have authority to enter the vehicle without a warrant and seize the object from the backseat. Then, having seized the object, the officer did not have the authority to conduct a warrantless search of the object to reveal the digital scale contained within. We agree. "We pause to quickly review certain fundamental constitutional principles. 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.' [Citation omitted.]" State v. Sanchez-Loredo , 294 Kan. 50, 55, 272 P.3d 34 (2012). The State does not assert that it had a warrant. "[T]he 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." State v. Overman , 301 Kan. 704, 712, 348 P.3d 516 (2015). At the district court, the State relied on the "plain view" exception to the warrant requirement to justify both the officer's entry into the vehicle to seize the digital scale container and the officer's subsequent search of that container. The State's argument was that Mance saw the digital scale on the backseat as he was arresting Schmidt and knew that this type of scale is commonly used in the distribution of illegal drugs. That argument is flawed, both factually and legally. Mance's ability to plainly see a box on the seat next to Schmidt as he exited the vehicle was insufficient, standing alone, to authorize the officer to enter the vehicle, seize the box, and search it under the recognized plain-view exception to the warrant requirement. Much more is constitutionally required, to-wit: " 'Under [the plain-view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. [Citations omitted.] If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object-i.e., if "its incriminating character [is not] 'immediately apparent,' " [citation omitted]-the plain-view doctrine cannot justify its seizure. [Citation omitted.]' [Minnesota v. Dickerson ,] 508 U.S. [366] at 375 [113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ]." State v. Wonders , 263 Kan. 582, 590, 952 P.2d 1351 (1998). Doelz does not contend, and the record would not support a contention, that Mance was in an unlawful position when he viewed the scale box. We have affirmed the lawfulness of the records check of the vehicle occupants that led to the discovery of Schmidt's outstanding warrants. Consequently, it was legally appropriate for Mance to be at the door of the vehicle to effect Schmidt's arrest and to view the box on the backseat from that vantage point. An officer's plainly viewing an item from a lawful observation position does not, however, grant the officer unfettered authority to retrieve the item. The officer must also " 'have a lawful right of access to the object.' " 263 Kan. at 590, 952 P.2d 1351. Once Mance removed Schmidt from the car, the officer had no more official business inside the Blazer. The officer admitted that his seizure of the box from the backseat was a nonconsensual search of the vehicle: "[Counsel:] Okay. And [the scale] was inside the vehicle? "[Mance:] That would be correct. "[Counsel:] So you had to search the vehicle in order to obtain the scale; is that correct? "[Mance:] I removed the scale from the vehicle. Yes, sir. "[Counsel:] And that would be considered a search, would it not? "[Mance:] I agree. "[Counsel:] Did anyone give you permission to do that? "[Mance:] Prior to removing the scale, no, sir." Most importantly, the State did not establish that the incriminating character of the plainly viewed object on the backseat was immediately apparent to the officer. The State argued, and the district court accepted, that the incriminating character of the box on the backseat was immediately apparent to Mance because his training and experience informed him that digital scales are often used in the distribution of illegal drugs. But, a declaration that the officer knew that digital scales can, in some instances, meet the legal definition of illegal drug paraphernalia begs the question of whether Mance knew the box contained a digital scale immediately upon viewing the object, " 'without conducting some further search of the object.' " 263 Kan. at 590, 952 P.2d 1351. Although there was a reference at the mistrial to the box having a clear plastic lid, Mance's testimony at the preliminary hearing, under oath, unequivocally refuted that the object was immediately recognized as contraband: "[Mance:] In the rear seat of the vehicle, I observed a black plastic case approximately 4 inch by 4 inch dimension, maybe an inch thick (indicating), sitting on the passenger seat. It had a clasp that allowed the lid to open. "[State:] And were you able to tell what that was? "[Mance:] Not immediately , but I had suspected it to be a digital scale." (Emphasis added.) Then, on cross-examination, Mance confirmed that he did not know that the box on the backseat contained "[a] scale used to measure narcotics" until he opened the box. In other words, Mance had to search the object that he had seized before he learned that the plainly viewed object contained a digital scale which could be used for, inter alia , illegal purposes. It was the search, then, that provided the probable cause that the plainly viewed object was contraband, negating the bona fides of the plain-view seizure. See 263 Kan. at 590, 952 P.2d 1351 (" 'If ... the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object ... the plain-view doctrine cannot justify its seizure.' "). But even if the officer's suspicions about the box on the backseat were to be viewed as sufficient to establish the right to seize the object, the plain-view exception, by its definition, did not permit the further search of the box without a warrant or another established exception. Recently, in the context of the search of a purse and billfold retrieved from an automobile, we instructed: "Where a container is involved, complying with the warrant requirement or one of its well-delineated exceptions is required because the Fourth Amendment provides protection to the owner of every container if the container conceals its contents from plain view." State v. Evans , 308 Kan. 1422, Syl. ¶ 4, 430 P.3d 1 (2018). Consequently, the search of the box retrieved from the vehicle's backseat was unlawful and the district court erred in refusing to suppress the evidence of the digital scale. Searching the entire vehicle The district court held that the thorough search of the entire vehicle was lawful based on (1) the probable-cause-plus-exigent-circumstances exception to the warrant requirement, and (2) Doelz' consent. Doelz appealed both of these points. But in its brief to the Court of Appeals, the State did not provide any legal argument supporting application of the consent exception, simply stating: "Whether or not this Court finds defendant gave consent to search, the warrantless search was valid based on the automobile exception." The panel, then, did not address whether Doelz provided a valid consent to the search. Moreover, the State did not cross-petition on the panel's failure to address the issue of consent and it did not file a supplemental brief to this court. Cf. State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015) (issue not briefed deemed waived and abandoned); State v. Llamas , 298 Kan. 246, 264, 311 P.3d 399 (2013) (point raised incidentally in a brief but not argued therein deemed abandoned). Nevertheless, it is dubious whether the response, "If you have to, go ahead," constitutes a freely given, knowing, and voluntary consent to search after the officer declares that he has the legal authority to search without the driver's consent. We move on to consider the alternative basis. A vehicle's mobility is considered an exigent circumstance. Consequently, a subclass of the probable-cause-plus-exigent-circumstances exception is called the automobile exception. The automobile exception provides that a warrant is not required to search a vehicle as long as "probable cause exists to believe the vehicle contains contraband or evidence of a crime" and the vehicle is "readily mobile." Sanchez-Loredo , 294 Kan. 50, Syl. ¶ 4, 272 P.3d 34. The probable cause analysis reviews the totality of the circumstances to determine the probability that the vehicle contains contraband or evidence. 294 Kan. at 55, 272 P.3d 34. Here, the panel found the totality of the circumstances supporting Mance's belief that the Blazer contained contraband included: "the presence of the closed digital scale recognized by the officer as drug paraphernalia used in drug sales; the officer's observation of the Blazer and its passenger speaking with a man at a known drug-complaint residence immediately before the stop; Doelz' statement that he had stayed at the house of a known drug dealer the night before the stop; and the officer's knowledge of a passenger's admitted use of methamphetamine." Doelz , 2016 WL 3570515, at *6. We have determined above that evidence of the presence of the digital scale should have been suppressed. Without erroneously considering the alleged drug paraphernalia seized from the vehicle at the time of the stop, the other circumstances were insufficient to establish a fair probability that the vehicle contained contraband at the time it was searched. The observed conversation between the vehicle occupants and a man at a "known drug-complaint residence" is nebulous. Were the drug complaints about that residence that people used drugs there or were they that people sold drugs there? If the former, it is not a fair probability that the drugs consumed at the house would be found in the vehicle when the users leave the residence. Moreover, a man conversing with one of the vehicle occupants means nothing without some information about the man and his connection to drug sales. Pointedly, the officer did not relate observing the normal indicia of a drug transaction, e.g., exchanging something through the car window during a short visit. Further, the prior confessions of past methamphetamine use by one of the passengers might further the officer's hunch that the passenger keeps the drug with him at all times, but it does not further the notion that the drug is probably contained within this car at this time. In short, the district court erred in finding the automobile exception to the warrant requirement applied in this case. The Court of Appeals' decision to affirm the district court's denial of the motion to suppress the fruits of the unlawful searches is reversed. The matter is reversed for a new trial. Given this disposition, we need not consider whether the trial court's preliminary instruction was clearly erroneous or whether the district court erred in denying Doelz' motion for new trial. Reversed and remanded.

The opinion of the court was delivered by Biles, J.: Roughly 19 years after his second-degree murder conviction, Roy Eugene Samuel filed a motion to correct an illegal sentence. He claims his sentence of life imprisonment with a mandatory 10-year term violates the Eighth Amendment to the United States Constitution because he was only 16 years old when he committed the crime. The district court summarily denied the motion. Samuel directly appeals to this court. We affirm because the motion is not the appropriate procedural vehicle to raise his claim. See State v. Amos , 307 Kan. 147, 148, 406 P.3d 917 (2017) ("This court has repeatedly held a defendant cannot raise constitutional challenges to a sentence via a motion to correct illegal sentence under K.S.A. 22-3504 [1]."). FACTUAL AND PROCEDURAL BACKGROUND In 1996, Samuel, then 16 years old, killed Patrick Brunner. The State charged him with second-degree murder under K.S.A. 1996 Supp. 21-3402(a), which was an off-grid person felony. After he pled guilty as charged in 1997, the district court sentenced him to life imprisonment with a mandatory 10-year term before being eligible for parole. In 2016, Samuel moved under K.S.A. 22-3504(1) to correct an illegal sentence based on the United States Supreme Court decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller should apply retroactively for purposes of state collateral review of sentence). His motion acknowledged Miller was applicable only to "those juvenile offenders who were sentenced to life without the possibility of parole" but asked the district court to extend Miller to his case, "serving life with the possibility of parole." (Emphases added.) Samuel alternatively argued his sentence is substantively unconstitutional because he will be subject to lifetime supervision when he is paroled, seeking to extend State v. Dull , 302 Kan. 32, 351 P.3d 641 (2015) (mandatory lifetime postrelease supervision categorically unconstitutional when imposed on a juvenile convicted of aggravated indecent liberties with a child). The district court summarily denied the motion. See Makthepharak v. State , 298 Kan. 573, 576, 314 P.3d 876 (2013) (when presented with a motion to correct illegal sentence, a district court should conduct an initial examination of the motion to determine if it raises substantial issues of law or fact). The court held the motion to correct an illegal sentence was not a proper vehicle to challenge a sentence as unconstitutional. It alternatively held his sentence was constitutional. In that respect, the court relied on State v. Warrior , 303 Kan. 1008, 368 P.3d 1111 (2016) (holding K.S.A. 22-3504"does not cover a claim that a sentence violates a constitutional provision"), and State v. Brown , 300 Kan. 542, Syl. ¶ 8, 331 P.3d 781 (2014) (mandatory hard 20 life sentence imposed on juvenile defendant convicted of felony murder did not violate the Eighth Amendment). Samuel directly appealed to this court. Jurisdiction is proper. K.S.A. 2017 Supp. 22-3601(b)(3) (direct appeal when "a maximum sentence of life imprisonment has been imposed"); K.S.A. 2017 Supp. 22-3601(b)(4) (direct appeal when "the defendant has been convicted of an off-grid crime"); Kirtdoll v. State , 306 Kan. 335, 337, 393 P.3d 1053 (2017) ("A ruling on a motion to correct an illegal sentence, where the sentence imposed for a homicide is imprisonment for life, is directly appealable to this court."). ANALYSIS This court must determine whether Samuel's constitutional claim fits within the definition of "illegal sentence." An illegal sentence under K.S.A. 22-3504 may be corrected at any time, but the circumstances under which a sentence is deemed illegal for K.S.A. 22-3504 purposes are "narrowly and specifically defined." State v. Swafford , 306 Kan. 537, 540-41, 394 P.3d 1188 (2017). Whether a sentence is illegal within the statutory meaning is a question of law over which appellate courts have unlimited review. State v. Alford , 308 Kan. 1336, Syl. ¶ 2, 429 P.3d 197 (2018) ; State v. Mitchell , 284 Kan. 374, 376, 162 P.3d 18 (2007). Samuel claims the district court was without jurisdiction to impose a sentence that violates the Eighth Amendment. In 2016, when Samuel filed this motion, our caselaw defined "illegal sentence" as follows: " ' "(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served." State v. Trotter , 296 Kan. 898, 902, 295 P.3d 1039 (2013).' State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 (2015)." Warrior , 303 Kan. at 1009-10, 368 P.3d 1111. This judicial definition was added to the current version of K.S.A. 2017 Supp. 22-3504(3). See L. 2017, ch. 62, § 9. Samuel's Eighth Amendment claims do not implicate the sentencing court's jurisdiction. "[J]urisdiction is acquired in a criminal case upon the filing or amendment of a complaint, indictment, or information ...." Trotter v. State , 288 Kan. 112, 126, 200 P.3d 1236 (2009). And this court has repeatedly held a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision. Amos , 307 Kan. at 149, 406 P.3d 917. Samuel asks us to overrule our long-established caselaw that the Legislature codified verbatim into the statute. We decline to do so. Affirmed.

The opinion of the court was delivered by Biles, J.: Whenever federal funding is not involved, and real property is acquired by a condemning authority through negotiation in advance of a condemnation action or through a condemnation action, the authority must pay relocation benefits to any person who moves from the property as a direct result of the acquisition. K.S.A. 2017 Supp. 26-518(a) (condemning authority's duties to displaced person in acquiring real property); 42 U.S.C. § 4601(6)(A)(i)(I) (2012) (definition of displaced person). This appeal seeks to define what the statutory phrase "negotiation in advance of a condemnation action" means. The dispute arises from a claim by former tenants for relocation benefits after the City of Topeka negotiated and acquired property where the tenants operated their businesses. We hold the statute is both temporal and contextual, so it is a question of fact whether a negotiation was in advance of a condemnation action. We reject the tenants' contention that displaced persons are owed relocation benefits anytime a condemning authority acquires real property for a public project. The statute is not that generous. We affirm the Court of Appeals' judgment although we see the potential evidence that might prove such a claim more expansively than the panel did. See Nauheim v. City of Topeka , 52 Kan. App. 2d 969, Syl. ¶ 5, 381 P.3d 508 (2016) ("[A] displaced person must prove that the condemning authority either threatened or took affirmative action towards condemnation prior to the acquisition."). The case is remanded for the district court to determine whether condemnation would have followed had the City's negotiation with the property owner failed. FACTUAL AND PROCEDURAL BACKGROUND In 2011, the City authorized by ordinance a public works project to replace a structurally deficient drainage system on a tributary to Butcher Creek to alleviate potential flooding within the city limits. The authorizing language did not mention condemnation. After exchanging terms with the owner during 2013, the City bought real property where commercial tenants operated their businesses. During the negotiation, the City made clear it wanted the property vacant before obtaining title. The owner complied, and the transaction concluded without the City exercising its eminent domain power. Charles Nauheim and Hal G. Richardson, the former tenants, relocated their respective businesses to other property. They sued the City for relocation costs under K.S.A. 2017 Supp. 26-518, which states: "Whenever federal funding is not involved, and real property is acquired by any condemning authority through negotiation in advance of a condemnation action or through a condemnation action, and which acquisition will result in the displacement of any person, the condemning authority shall: "(a) Provide the displaced person , as defined in the federal uniform relocation assistance and real property acquisition policies act of 1970, fair and reasonable relocation payments and assistance to or for displaced persons." (Emphases added.) The City argued the statute did not apply because it never intended to condemn the property had the negotiation failed. It also contended neither tenant was a "displaced person" as statutorily defined. The City claimed the tenants relocated because of agreements with the property owner-also their landlord. All parties moved for summary judgment. The district court granted the City's motion. It held the tenants were not displaced persons as defined by law. It also found the uncontroverted facts proved the property acquisition was not made "in advance of a condemnation action," but occurred instead by the City exercising its corporate power. The tenants appealed. A Court of Appeals panel considered three issues: (1) Whether the tenants were displaced persons as defined by K.S.A. 2017 Supp. 26-518(a) and 42 U.S.C. 4601(6)(A)(i)(I) ; (2) whether the phrase "negotiation in advance of a condemnation action" in K.S.A. 2017 Supp. 26-518 required a displaced person to prove a condemning authority's intent to condemn; and (3) whether the summary judgment record supported the City's claim it never intended to condemn the property. The panel affirmed in part, reversed in part, and remanded for the district court to resolve disputed material facts. Nauheim , 52 Kan. App. 2d at 970, 381 P.3d 508. As to the first question, the panel reversed the district court and held the tenants qualified as displaced persons because "the City's acquisition of the subject property was contingent upon the property being vacant at the time of closing." 52 Kan. App. 2d at 973, 381 P.3d 508. In its view, no other motive existed "for the landlord to force the tenants to relocate from the property other than the fact that it was a necessary prerequisite for the sale of the property to the City." 52 Kan. App. 2d at 974, 381 P.3d 508. Therefore, the panel continued, the tenants' relocation "was an event that was inseparably linked to the sale." 52 Kan. App. 2d at 975, 381 P.3d 508. As for the meaning of the statutory phrase "negotiation in advance of a condemnation action," the panel agreed with the district court that it required a displaced person to show a condemning authority intended to condemn the subject property by proving it "either threatened or took affirmative action towards condemnation prior to the acquisition." 52 Kan. App. 2d 969, Syl. ¶ 5, 381 P.3d 508. The panel reasoned: "Not every acquisition made by a condemning authority is covered by the statute, only those acquisitions that are done 'through negotiation in advance of a condemnation action or through a condemnation action.' To interpret K.S.A. 2015 Supp. 26-518 in the fashion urged by the tenants, the phrase 'in advance of a condemnation action' would be rendered mere surplusage. We presume that the legislature does not intend to enact useless legislation, and we are obligated to interpret a statute so that part of it does not become surplusage." 52 Kan. App. 2d at 977, 381 P.3d 508. The panel also determined a genuine issue of material fact remained about whether the City negotiated with the landlord in advance of a condemnation action. 52 Kan. App. 2d at 979-80, 381 P.3d 508. The panel noted the record included emails from City staff and the landlord's affidavit supporting an argument that the City intended to condemn the property if negotiation failed. These disputed facts made summary judgment improper, the panel held. 52 Kan. App. 2d at 979, 381 P.3d 508. It reversed and remanded the case to the district court for further proceedings. The tenants petitioned this court to review the statutory interpretation question, especially the panel's decision that a displaced person must prove a condemning authority threatened condemnation or took affirmative action to condemn the property before acquisition. We granted review. Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). The City does not cross-petition on the issues the panel decided adversely to its argument, i.e., whether the tenants were displaced persons and whether disputed material facts prevented summary judgment. That much is settled on review in the tenants' favor. See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53) (as amended July 1, 2018); In re Adoption of C.L. , 308 Kan. 1268, 1277, 427 P.3d 951 (2018) ; Ullery v. Othick , 304 Kan. 405, 415, 372 P.3d 1135 (2016). ANALYSIS The tenants argue they should not have to prove the City had an intent to condemn to receive statutory relocation assistance. We disagree. But we hold the evidence that might prove whether an acquisition occurred through "negotiation in advance of a condemnation action" is broader than the panel's perspective. Standard of review Statutory interpretation presents a question of law subject to de novo review. Central Kansas Medical Center v. Hatesohl , 308 Kan. 992, 1002, 425 P.3d 1253 (2018). When interpreting a statute, a court first attempts to discern legislative intent through the statutory language, giving common words their ordinary meanings. Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014). When the language is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should be. The court will not speculate about legislative intent and will not read the statute to add something not readily found in it. Graham v. Dokter Trucking Group , 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695 (2007). It is only when the statute's language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain its meaning. Whaley , 301 Kan. at 196, 343 P.3d 63. Discussion Municipalities can acquire or receive property for municipal purposes without resorting to condemnation. See K.S.A. 12-101, Second (authority to purchase or receive real property for city use); K.S.A. 12-101, Fourth (authority to make contracts relating to property). They can also acquire property for municipal purposes through condemnation under the Kansas Eminent Domain Procedure Act, K.S.A. 2017 Supp. 26-501 et seq. The tenants, of course, argue they should not need to file a lawsuit and prove the City's intention to condemn had the negotiation failed. They contend that since their property was acquired by a condemning authority through negotiations, this necessarily means the authority acquired it "in advance of" condemnation. They claim this is the statute's plain meaning. They also assert the statute is "designed to provide relocation assistance in order to avoid putting the burden and expense of a public benefit on individuals." They further argue, "[T]he taxes of the public should pay for the damages incurred as a result of the public project." Forcing displaced persons to sue and prove facts about a condemning authority's intentions, they claim, is contrary to legislative intent. Also predictably, the City argues the statute does not apply. It claims the lower courts' approach "is a reasonable, practical standard fulfilling both the intent of the legislature and the plain language of the statute." The City characterizes as unreasonable any rule that a condemning authority pay relocation costs "each and every time it acquired property ...." Finally, the City contends the evidentiary record shows it "was not poised to condemn this property and could have completed the project without acquiring the property." The panel held that if the statute did not require a displaced person to prove a condemning authority's intent to condemn when the acquisition was done through negotiation, the authority would always have to provide relocation benefits when it acquired real property. 52 Kan. App. 2d at 977, 381 P.3d 508. The district court had the same view and explained, "According to [the tenants'] suggested reading of K.S.A. 26-518, every negotiation conducted by a condemning authority-regardless of how the acquisition is being made-would be 'in advance of a condemnation action' simply because the condemning authority holds that option to condemn. Put another way, under this reading, there would never be a negotiation not in advance of a condemnation action, and the condemning authority would have to pay relocation benefits for every acquisition. Such an interpretation is clearly against the legislative intent behind K.S.A. 26-518, because the legislature added the qualifier 'through negotiation in advance of a condemnation action or through a condemnation action.' " As we see it, K.S.A. 2017 Supp. 26-518 identifies two distinct situations in which a condemning authority must provide relocation benefits to a displaced person: (1) when the acquisition occurs through negotiation before a condemnation action, or (2) when the acquisition occurs through a condemnation action. As to the first circumstance, and as readily seen, the statute does not provide that anytime a condemning authority acquires property it must pay relocation benefits. Instead, those benefits are available when property is acquired "in advance of a condemnation action." It plainly does not state relocation benefits are paid as part of any public project. And all agree the latter circumstance, i.e., acquisition through a condemnation action, is not involved here. K.S.A. 2017 Supp. 26-501 through 26-518 and K.S.A. 2017 Supp. 26-501a and 26-501b set out the procedure for exercising eminent domain power. K.S.A. 2017 Supp. 26-501(a) ; see also Creegan v. State , 305 Kan. 1156, 1160, 391 P.3d 36 (2017). And before starting a condemnation action, a city must adopt and publish a resolution authorizing eminent domain proceedings. K.S.A. 2017 Supp. 26-201 ; see also General Building Contr., L.L.C. v. Board of Shawnee County Comm'rs , 275 Kan. 525, 536-38, 66 P.3d 873 (2003). None of that happened here. Returning to the statutory phrase "negotiation in advance of a condemnation action," the language is both temporal and contextual. To be entitled to relocation benefits, a displaced person must show: (1) a negotiation resulted in the property's acquisition before any eminent domain proceedings commenced; and (2) a condemnation would have followed had that negotiation failed. A plain reading of the statute demonstrates this. The first element is temporal as seen by the phrase "in advance of." In ordinary usage, "in advance" is defined as "before ... an anticipated event." Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/advance; see also Webster's New World College Dictionary 20 (5th ed. 2016) ("in advance" is defined as "in front," "before due," and "ahead of time"). And the word "anticipate" is generally understood to mean "to look forward to; expect." Webster's New World College Dictionary 61 (5th ed. 2016). This timing element is not in dispute in this case, and it is difficult to imagine when it would be. The second element is where our present controversy lies. It provides that the negotiation occur in a context in which eminent domain would have followed had negotiations failed to secure the property for the condemning authority. But does this mean, as the district court held, that "negotiation in advance of a condemnation action" occurs "only once a municipality has threatened condemnation or has taken some affirmative step towards instituting a condemnation action, and when the municipality has entered negotiations for purposes of efficiency and fairness as to the condemnation action"? (Emphases added.) The panel thought so, but we conclude this too narrowly construes what evidence might show entitlement to benefits. Whether a negotiation is in advance of a condemnation action is a question of fact a claimant needs to prove by a preponderance of the evidence. "We have defined preponderance of the evidence as ' "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it." Black's Law Dictionary 1182 (6th ed. 1990). In other words, a "preponderance of the evidence" means that evidence which shows a fact is more probably true than not true.' [Citations omitted.] Because this standard 'results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless "particularly important individual interests or rights are at stake." ' [Citations omitted.]" In re B.D.-Y. , 286 Kan. 686, 691, 187 P.3d 594 (2008). When determining whether a plaintiff meets that burden, the finder of fact should consider any relevant evidence that might reasonably bear on this disputed question. Evidence is relevant if it tends to establish a material fact at issue. K.S.A. 60-401(b). "All relevant evidence is admissible unless it is prohibited by statute, constitutional provision, or court decision." Kansas City Power & Light Co. v. Strong , 302 Kan. 712, 729, 356 P.3d 1064 (2015). The lower courts erred by requiring a specific evidentiary showing that the condemning authority either threatened or took affirmative action towards a condemnation action. And while that evidence would be relevant, it is surely not the only evidence that could cause a fact-finder to conclude a condemning authority would have resorted to eminent domain after unsuccessful negotiation. The record in this case highlights our point-without so narrowly requiring a specific threat, affirmative action, or even proof of actual intent. It includes: (1) the City's Ordinance No. 19553, which authorized the project but never mentioned condemnation; (2) an engineering study providing two options to address the Butcher Creek drainage issues, one of which did not require the property acquisition; (3) City staff emails; and (4) City officials' statements, reflected in an affidavit supplied by the landlord. For example, three emails written during negotiations reflect: (1) In July 2013, the City's real estate officer told the landlord: "The Deputy City Attorney is concerned that the lease will allow the tenant to stay beyond the 60-90 days and force the City to condemn their lease interest and force us to pay relocation expenses, etc. I know you are working on some kind of arrangement with them, so you may already have a resolution. But we will not be able to move forward until that lease interest is resolved." (2) In August, the City's deputy attorney told the landlord: "I don't want the City to have to exercise its eminent domain power to purchase the leasehold interest of [a tenant's business] should [that tenant] refuse to move to its new location." (3) In October, the real estate officer again told the landlord: "I suppose, if we do not close this transaction, that the City will then have to condemn to get these properties. That is not a sure thing, as City management has been very reluctant to use condemnation [and] the City Council is not happy to see that going on. "I guess we will wait until we get closer to closing to see where we stand." And the landlord's affidavit plainly states, "Through conversations with at least two representatives, the City of Topeka indicated to Affiant that if negotiations failed, the City would then have to condemn the properties ." (Emphasis added.) To be sure, the City has arguments demonstrating its counterpoint, which is why the panel correctly remanded for the district court to resolve disputed facts, despite incorrectly imposing a higher evidentiary burden than the tenants would need to prevail. Summary judgment is appropriate only when the material facts are uncontroverted. K.S.A. 2017 Supp. 60-256(c)(2) ; see also Shamberg, Johnson & Bergman, Chtd. v. Oliver , 289 Kan. 891, 900, 220 P.3d 333 (2009). Further proceedings are necessary to explore whether the City's negotiations were in advance of a condemnation action under K.S.A. 2017 Supp. 26-518. Judgment of the Court of Appeals reversing the district court is affirmed on the issue subject to review. Judgment of the district court is reversed, and the case is remanded.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Matthew Edgar Hult, of Olathe, an attorney admitted to the practice of law in Kansas in 2012. On March 14, 2017, 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 failed to file an answer. On May 15, respondent emailed a document titled Motion to Continue the hearing date. The hearing panel filed an order on May 17, denying respondent's motion. On May 19, respondent filed a proposed probation plan. On May 23, respondent filed a document entitled "pleading" in which he admitted that he violated KRPC 1.1, 1.3, 1.5, 1.16, 3.2, 3.4(c), 8.3, and 8.4(d), and Kansas Supreme Court Rules 207 and 211. Respondent also stipulated that he violated KRPC 8.1(b) ; however, the disciplinary administrator did not charge respondent with violation of that rule. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 23, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5 (2018 Kan. S. Ct. R. 294) (fees); 1.15(a) (2018 Kan. S. Ct. R. 328) (safekeeping property); 1.16(d) (2018 Kan. S. Ct. R. 333) (termination of representation); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 3.4(c) (2018 Kan. S. Ct. R. 347) (fairness to opposing party and counsel); 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); 8.3(a) (2018 Kan. S. Ct. R. 380) (reporting professional misconduct); Kansas Supreme Court Rule 207(c) (2018 Kan. S. Ct. R. 246) (failure to report action); and Kansas Supreme Court Rule 211(b) (2018 Kan. S. Ct. R. 251) (failure to file answer in disciplinary proceeding). 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 .... "DA12242 "12. After being admitted to practice law in Kansas, the respondent established an immigration practice. In addition to his Kansas office, the respondent opened an office in Sioux City, Iowa. While the respondent was not licensed to practice law in the state courts of Iowa, his license to practice law in Kansas authorized him to practice immigration law in Iowa under Iowa Rule 32:5.5, which provides as follows: '(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: .... (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.' "13. In Iowa, when an attorney establishes a practice under Iowa Rule 32:5.5(d)(2), the attorney must comply with Iowa Rule 39.16: 'An attorney who establishes an office or other systematic and continuous presence in Iowa for the practice of law under the provisions of rule of professional conduct 32:5.5(d)(2) shall file the annual statement required by rule 39.8(1) and annual questionnaire required by rule 39.11, pay the annual fee and assessment due under rules 39.5 and 39.6, comply with all provisions of chapter 45, cooperate with investigations and audits under rule 39.10, and be subject to the provisions of rule 39.12.' The respondent failed to file the annual statement required by Iowa Rule 39.8(1), failed to file the annual questionnaire required by Iowa Rule 39.11, failed to pay the annual fee and assessment due under Iowa Rules 39.5 and 39.6, and failed to maintain a trust account as required by Iowa rule 45.1 ('funds a lawyer receives from clients or third persons for matters arising out of the practice of law in Iowa shall be deposited into one or more identifiable interest-bearing trust accounts located in Iowa'). "14. In April 2013, the respondent was notified of his obligations under the Iowa rules by the Office of Professional Regulation of the Iowa Supreme Court. The correspondence directed the respondent to comply with the provisions of the rules within 30 days. The respondent failed to comply with the directives contained in the correspondence. "15. On December 9, 2013, the respondent completed the statement and questionnaire. In the questionnaire, the respondent disclosed that he did not keep all funds of clients for matters involving the practice of law in Iowa in separate interest-bearing trust accounts located in Iowa. The respondent also stated that all retainers, regardless of size, are not deposited in his trust account. For further explanation, the respondent stated that he does not keep client funds, that he worked only on immigration cases, that all fees are earned on a flat fee basis, and that the flat fees are deposited into his business account. Along with the statement and questionnaire, the respondent forwarded the fee in the amount of $225.00 to the Iowa registration authority "16. In January 2014, the respondent notified the registration authority in Iowa that he was closing his Sioux City office. Because his December 2013, statement and questionnaire had not been processed yet, the registration authority in Iowa withdrew the respondent's statement and questionnaire and returned the fee paid. "17. On February 28, 2014, the respondent vacated his office space in Sioux City, Iowa. However, the respondent continued to maintain a website advertising his immigration law practice in Iowa. "18. Sometime in 2014, a complaint was filed against the respondent with the Iowa attorney disciplinary board for his failure to comply with the trust account rules and the multijurisdictional practice registration rules. "19. On October 27, 2014, Charles Harrington, the Administrator for the attorney disciplinary board, wrote to the respondent. The letter provided: 'The above complaint filed against you came on for reconsideration by the Board at its recent hearing meeting. 'The Board found that at all times relevant to the complaint you maintained an office in Sioux City for the practice of federal immigration law. You were admitted to the practice of law in Kansas but not in Iowa except as permitted by Iowa R. Prof'l Conduct 32:5.5(d)(2). The Board has jurisdiction as to your professional conduct in Iowa pursuant to Iowa R. Prof'l Conduct 32:8.5(a) (lawyer not admitted in Iowa is subject to disciplinary authority of Iowa if lawyer provides or offers to provide any legal services in this state). 'In April 2013, you received correspondence from the Office of Professional Regulation of the Supreme Court of Iowa (OPR) that you were required to comply with Iowa Ct. R. 39.16 (attorneys practicing in Iowa under multijurisdictional practice rule) and other rules regulating multijurisdictional practice in the state. This included detailed information about relevant provisions of the Iowa Rules of Court, including chapter 32 (Rules of Professional Conduct), chapter 39 (Client Security Commission), and chapter 45 (Client Trust Account Rules). OPR's letter emphasized in bold font, "The [Client Security Commission Combined Statement and Questionnaire] report form due in 2013 is enclosed. You must prepare and file this form with our office within 30 days after the date of this memorandum, with the fees shown on the form and described below. " 'You continued to practice immigration law in Iowa for another eight months without filing the required report and paying the fees. Finally, in December 2013 you belatedly filed the report and paid the fees. (In early 2014 you closed your office in Sioux City and the Board has received no information indicating you continued to practice in Iowa.) 'The Board concluded that your practice in Iowa for many months without timely compliance with rule 39.16 was contrary to Iowa R. Prof'l Conduct 32:5.5(a) (lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction). 'The Board's investigation disclosed another serious concern regarding your former practice in the state. In the statement you filed with the Client Security Commission in December 2013, you acknowledged you did not keep all funds of clients for matters involving the practice of law in Iowa in a client trust account and that you did not even have an Iowa trust account. You explained you charged only flat fees, not "retainers." The Board found that you considered these flat fees to be earned upon receipt and prior to completion of the clients' cases. 'Although you sought to distinguish a flat fee from a retainer, Iowa case law holds that a flat fee is a "special retainer" and must be deposited into a client trust account, to be withdrawn only as earned. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Denton , 814 N.W.2d 548, 551 (Iowa 2012) (reprimanding Colorado lawyer for failing to deposit a flat fee paid by Iowa client in federal immigration matter into a client trust account). Iowa R. Prof'l Conduct 32:1.15(a) requires a lawyer to hold a client's funds separate from the lawyer's own funds. 32:1.15(c) provides that "[a] lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred." ' Iowa Ct. R. 45.10 specifically addresses the handling of flat fees. "(1) Definition . A flat fee is one that embraces all services that a lawyer is to perform, whether the work be relatively simple or complex. "(2) When deposit required. If the client makes an advance payment of a flat fee prior to performance of the services, the lawyer must deposit the fee into the trust account. "(3) Withdrawal of flat fee. A lawyer and client may agree as to when, how, and in what proportion the lawyer may withdraw funds from an advance fee payment of a flat fee. The agreement, however, must reasonably protect the client's right to a refund of unearned fees if the lawyer fails to complete the services or the client discharges the lawyer. In no event may the lawyer withdraw unearned fees." See Iowa R. Prof'l conduct 32:1.15(f) (requiring compliance with chapter 45 rules). 'The Board concluded you violated rules 32:1.15(a), 32:1.15(c), and 32:1.15(f) by failing to maintain a client trust account in Iowa and by failing to deposit advance flat fee payments into such an account. 'It was the determination of the Board that you be and hereby are publicly reprimanded for violating Iowa's client trust account and multijurisdictional practice rules.' "20. Also on October 27, 2014, the Clerk of the Grievance Commission of the Supreme Court of Iowa wrote to the respondent, enclosing a copy of the Iowa attorney disciplinary board's letter and notifying respondent that he had 30 days to file exceptions to the Board's letter. The respondent failed to file exceptions to the board's letter. "21. On January 15, 2015, the Iowa Supreme Court publicly reprimanded the respondent. "22. The Iowa disciplinary authority forwarded the materials to the Kansas disciplinary administrator. The Kansas disciplinary administrator docketed the materials as a complaint against the respondent. On January 28, 2015, the disciplinary administrator sent a letter to the respondent directing the respondent to file a response to the complaint within 20 days. "23. On February 13, 2015, the respondent filed a response to the complaint, stating in relevant part: 'Firstly, I would like to explain the situation that took place in Iowa. I had a small office there to handle only Federal Immigration cases, which I can practice in all fifty states of the U.S.A. The Iowa Bar contacted me and wanted me to pay a fee for being a lawyer practicing in the state, but not licensed in Iowa. So I paid the fee. Then I decided to close the office in Iowa. That is when I was contacted by the office, and was told that they would refund the fee to me, because I was not going to be practicing in Iowa. They then refunded the fee, and I made arrangements with the office rental company to close and move out of the office, which I did. No deadlines were ever issued to me on when I had to leave the State. 'Subsequently, after closing the office they filed a complaint against me for not closing the office and for not paying the fee. I submitted to them a written letter from the property company that I had indeed closed the office. The part where I faltered was that I did not shut down the office website immediately, and to the disciplinary agency in Iowa that was evidence that I was still practicing there. So I then submitted documents that showed I did indeed shut down the website, and had vacated the office, and the State of Iowa. 'The above actions did not satisfy them. They did not set any deadline for me to close the business, and I did pay the fee, but they returned it to me. I provided evidence that I had closed the office and left the State. I feel like they are treating me unfairly since I am not a licensed attorney in the State of Iowa, but there was no reasoning with them, even after I submitted the necessary evidence. They decided to railroad me because they knew I would have no ability to defend myself. I object to their decision to file a complaint against me.' In his response, the respondent did not address his failure to establish and maintain a trust account in Iowa. Additionally, respondent did not acknowledge his failure to comply with the Iowa multijurisdictional practice registration rules. "DA12318 "24. In 2014, J.W. retained the respondent to obtain citizenship for his two step-children who were residing in Kenya. According to the fee agreement, J.W. retained the respondent on May 29, 2014. According to J.W., he retained the respondent on September 1[6], 201[4]. "25. In the fee agreement, J.W. agreed to pay the respondent $1,160 for attorney fees and $840 for filing fees. J.W. paid the fees over time. By January 26, 2015, J.W. had paid the respondent in full. "26. The respondent did not deposit the $840.00 paid for filing fees into an attorney trust account. The respondent did not have a trust account. "27. On September 26, 2014, J.W. and his wife, T.W., wrote to the respondent seeking an update regarding the status of the representation. On September 29, 2014, the respondent responded to J.W., stating, 'Everything is moving ahead, we should be getting receipts for their cases from the government in a couple of weeks.' "28. J.W. and T.W. called the respondent by telephone multiple times. The respondent failed to return J.W. and T.W.'s telephone calls. "29. On November 24, 2014, J.W. and T.W. wrote to the respondent, again seeking a status update. Although the record does not contain the respondent's response, he clearly responded to J.W. and T.W.'s inquiry. Later, on November 24, 2014, J.W. and T.W. thanked the respondent for the response and requested the United States Custom and Immigration Services ('USCIS') receipt numbers. At that time, they reminded the respondent that J.W.'s mother also wished to sponsor the children. The respondent did not provide J.W. and T.W. with the USCIS receipt numbers. "30. On January 6, 2015, J.W. wrote to the respondent: 'I am writing to ask please, please [sic ] respond to my text and phone calls, You are our hope!!!!!! I've [sic ] called and text [sic ] without any returns, or guidance please let me know of any progress if any. Are you waiting for full payment to help us??? Please if so let us know immediately as I will send it now. Also please send receipts for payment sent. I don't [sic ] see why you don't [sic ] send updates periodically, you [sic ] do carry our our [sic ] hope in your hands. Please understand our concerns and send updates immediately.' "31. On January 7, 2015, the respondent responded to J.W. and T.W.'s inquiries: 'My assistant says you have been trying to reach. [sic ] I apologize for not responding, but I am away on vacation since Christmas. This is our slowest time of year so, it is only time I can get away. 'Please email me any questions. 'Also, I need this Joint sponsor form filled out by [J.W.]'s mother. Please print it off and have her do her best, I can fill in most of it. Most importantly have her sign it, and send it to [sic ] Leawood office, along with 2013 tax returns and W-2s. 'Sorry for the delay, but everything is moving along at government speeds.' Despite the November 24, 2015, communication that J.W.'s mother wished to also sponsor the children, it appears that the respondent did not provide J.W. and T.W. with the appropriate forms until January 7, 2015. "32. On March 3, 2015, T.W. wrote to the respondent: 'Hope this email finds you well. My husband and i [sic ] called USCIS about the progress of our children's visa process but sadly they have no such records meaning their cases have not been filled. [sic ] 'As a mother I am very! very! depressed about this issue and i would appreciate if you would let me know when you will be able to begin the process. if you are not in position to file for our children as soon as i thought you should have done already then please sir avail the documents to us so that we can start the process as soon as we can. 'Thanking you in advance for your co-operation [sic ] on this matter.' "33. That same day, the respondent responded to T.W.'s email message and stated, 'I will address your concerns as soon as I can figure out the reason for the delay.' The respondent's response indicates that he must look into what was causing the delay. The respondent knew that he had not filed the cases. J.W. and T.W. did not hear from the respondent again. "34. On May 11, 2015, J.W. filed a complaint against the respondent. "35. On June 4, 2015, the respondent provided a written response to J.W.'s complaint. The respondent's written response is inconsistent with his email messages to J.W. and T.W.: 'Thank you for the chance to allow me to respond to the allegations and complaint filed by [J.W.] against me. 'My office will be refunding the application fees to [J.W.] in the amount of $840.00. I have included exhibit 1 which is the copy of the check with the above amount. '[J.W.] fired my office after we had taken substantial steps in preparing his case. When I took the case I explained the fee agreement to him that we would continue to work on the case and represent him, while he made payments to complete the fee agreement attorney fees. He included the checks that he had mailed to us in furtherance of this agreement. 'Unfortunately, we are usually hesitant to file applications until we are paid in full for our services, due to client's not paying for our services once we have filed for the services the client has obtained. That is why it is necessary in our fee agreements that we make it known that we will submit the documents once all payments are received. 'We also did not receive all documentation from the above complainant. It was necessary for them to get joint sponsors due to their income not meeting the necessary poverty level to support an immigrant. So I met with them in March, 2015 to help complete the forms and to make an action plan to obtain the necessary joint sponsors. [J.W.] said he was going to get his mother and brother to be joint sponsors and he would get their signatures and tax information to me. They never did. 'In Conclusion, [sic ] I spent many hours preparing the applications for [J.W.], and spent hours traveling to see him in Joplin, MO and counseling him on his case to better prepare his applications. I am disappointed he did not want to see the case through, since I had previously assisted him in bringing his wife to the U.S.A. There must have been a miscommunication along the way. It was his privilege to fire me under the fee agreement, and therefore I am refunding the amount of for [sic ] the application fees of $840.00.' "DA12439 "36. E.V., an Australian citizen, worked for Parnell Corporate Services US, Inc. as the Director of Human Resources. E.V. travels between Australia and the United States frequently. As a result, she is required to have an E-2 Visa. "37. E.V.'s Visa was scheduled to expire on April 18, 2014. On March 25, 2014, E.V. contacted the respondent to renew her Visa. They met on March 28, 2014. The respondent assured E.V. that he had experience assisting clients in obtaining this specific Visa. E.V. provided a copy of the materials used to obtain her original Visa. She explained to the respondent that she was scheduled to travel to Australia in July 2014, and asked whether the process would be complete by then. The respondent assured her that there was plenty of time to submit the application. E.V. asked the respondent if she needed to leave the country before her current Visa expired. The respondent advised her she did not need to leave the United States. "38. On April 16, 2014, the respondent submitted her application. "39. On June 16, 2014, E.V. told the respondent that she would be leaving for Australia in a month. She wanted to know if the application would be approved by her departure date. "40. A week before E.V. was scheduled to travel to Australia, she contacted the respondent to check on the status of the application. E.V. asked if she could come back into the country if the application had not been approved. The respondent advised her she could return and suggested that she apply for a Visa waiver. "41. While E.V. was on board the plane on her way to Australia, she received an e-mail message from the respondent that her Visa had been approved. She expressed her concern that the respondent could not physically get the Visa to her because she was only going to be in Australia a short time. The respondent advised E.V. to enter the United States on the Visa waiver. "42. A week later, E.V. asked the respondent for her new Visa. The respondent advised her that she should enter [the] United States on the waiver. "43. After she returned to the United States on a Visa waiver, E.V. again asked the respondent for her new Visa. The respondent advised E.V. that he had been out of town but he would send it to her shortly. "44. Later that week, E.V. received an envelope in the mail with an I-94 extension, not the new E-2 Visa she believed she had applied for. Since her original Visa had expired and she had left the country, the I-94 extension was essentially useless, and did not permit her to work in the United States or to freely enter and leave the United States as an E-2 Visa would; and if she did enter, she could not work and would have to leave after a maximum of three months. "45. Eventually the respondent directed E.V. to a website that provided guidance to persons wishing to obtain a new Visa who are located outside the United States. The information was not applicable, because E.V. had entered the country on the waiver and was inside the United States. "46. The respondent avoided future attempts by E.V. to contact him. The respondent sent E.V. a letter terminating the representation and suggesting that she contact new counsel. E.V. did hire new counsel, but she was required to travel back to Australia to obtain an E-2 Visa from the embassy and could not work in the United States (or get paid) for close to three months until the E-2 Visa was obtained. "47. On November 10, 2014, E.V. and her employer sued the respondent for malpractice. The case was filed in the Johnson County District Court. After proper service, the respondent failed to file an answer to the petition. As a result, E.V. and her employer filed a motion for default judgment. The respondent failed to file a response to the motion for default judgment. "48. On April 23, 2015, the court entered default judgment against the respondent. The respondent was ordered to pay $22,906.26 in total damages. The respondent failed to pay the judgment. "49. In August, 2015, E.V. and her employer filed a garnishment action. E.V. and her employer obtained proper service on the respondent on August 12, 2015. Additionally, E.V. and her employer served the respondent with a subpoena seeking financial information. The respondent did not respond to the garnishment action nor did he provide the documents as required by the subpoena. "50. On October 2, 2015, E.V. and her employer filed a motion for an order to show cause. The court scheduled a hearing on the motion for November 2, 2015. The respondent failed to appear at the hearing. During the hearing, the court found the respondent in contempt and scheduled a sanctions hearing for December 2, 2015. "51. On December 2, 2015, respondent appeared at the sanctions hearing. The court directed the respondent to provide the financial information within 30 days. According to the respondent, he provided the financial information as ordered. "DA12515 "52. In 1960, C.W. was born in the United Kingdom. In 1977, she became a naturalized United States citizen. In 1988, she married a United States citizen. "53. At the time C.W. became a naturalized United States citizen, she was required to renounce her British citizenship. With a recent change in the law, she decided to re-establish her British citizenship and to obtain a British passport. On September 17, 2013, C.W. retained the respondent to assist her with these two matters. C.W. hired the respondent because he was an immigration attorney located near where she lives. C.W. paid the respondent $1,000 for the representation. "54. C.W. explained to the respondent that she wanted to make sure she would not face any issues if she became a dual citizen, e.g. , taxes, international travel, etc. "55. Even after she retained the respondent, C.W. continued to conduct research on dual citizenship. Through her research, she learned that she was still considered a British citizen and all she needed to do was fill out a British passport application. She asked the respondent to confirm the information she discovered. The respondent confirmed that she remained a British citizen and all she needed to do was complete a British passport application. (At the time C.W. retained the respondent, the respondent did not indicate to her that she remained a British citizen and only needed to file an application for a British passport.) "56. On June 19, 2014, C.W. delivered the completed passport application, fee, and all the documentation to the respondent. C.W. asked the respondent to send in the application and handle the processing. C.W. asked the respondent to oversee the passport application process so that it would be handled in an expedient and careful manner. C.W. asked the respondent to have someone in England, through his legal contacts as an immigration attorney, walk the materials to the passport office and pay personal attention to her application. She was concerned about shipping original documents. "57. On November 14, 2014, the respondent informed C.W. that the United Kingdom required a color copy of her United States passport. On November 17, 2014, C.W. delivered the color copy of her United States passport to the respondent. "58. Over the course of the next 12 months, C.W. repeatedly asked the respondent for updates regarding her passport application. The respondent generally responded to C.W.'s email messages. However, in each of the messages, the respondent repeatedly told C.W. to give it more time. "59. On December 27, 2015, C.W. received a letter from the British Passport Office indicating that the office had not received a reply to their November 26, 2015, email message requesting specific documentation. C.W. had not received an email message dated November 26, 2015, from either the British Passport Office or forwarded from the respondent. "60. C.W.'s passport application was not complete. The British Passport Office provided C.W. until '07012016' to make her application complete. The respondent believed that 07012016 meant July 1, 2016. However, in the United Kingdom, 07012016 means January 7, 2016. "61. On January 28, 2016, C.W. received a letter from the British Passport Office. The British Passport Office canceled her application and returned her documents. "62. On February 1, 2016, the respondent informed C.W. that she needed to fill out a new application. "63. On February 10, 2016, C.W. completed an online British passport application. C.W. had to pay $149.32 for the application fee and $55.40 to have the passport delivered to her. Nine days later, with no assistance from the respondent, C.W. received her British passport. "64. C.W. requested a refund of the unearned fees, the application fee, and the shipping fee. The respondent agreed to refund $250.00. However, C.W. did not accept the $250.00, as she did not believe that it was a sufficient refund. "KANSAS SUPREME COURT HEARING & TEMPORARY SUSPENSION "65. Following the disciplinary hearing in this matter, the hearing panel recommended that the Kansas Supreme Court consider whether the respondent should be temporarily suspended from the practice of law during the pendency of these disciplinary proceedings under Kan. Sup. Ct. R. 203(b). "66. In particular, the hearing panel indicated that the recommendation for a temporary suspension was motivated by the following factors: '• The respondent testified that he did not know what an attorney trust account was and has never had an attorney trust account, though he accepts fee deposits from clients for work not yet completed and expenses yet to be incurred. '• The respondent indicated through his testimony that he did not have a reliable method of tracking timekeeping, issuing engagement letters, or communicating with his clients regarding his hourly rate, his method of billing, or case status. '• The respondent testified that he did not have an attorney mentor or anyone to assist him in matters of office management, practice, or substantive legal guidance. '• The respondent's testimony demonstrated that he lacks a basic understanding of many foundational principles, from the need to file an answer or respond to court orders and subpoenas to the difference between American and European date formats (month-day-year versus day-month-year). '• The respondent testified that he currently has 30 immigration clients.' "67. On June 15, 2017, the Kansas Supreme Court held a hearing to determine whether the respondent should be temporarily suspended from the practice of law during the duration of these disciplinary proceedings. Kimberly Knoll, deputy disciplinary administrator, appeared on behalf of the Office of the Disciplinary Administrator. The respondent appeared in person and without counsel. The video recording of the hearing has been archived and is available for the public on the Court's website. "68. During the course of the hearing, the respondent indicated to the Court that the account number that he had provided to the Johnson County district court for the garnishment in the malpractice case in DA12439 was his office account, where he had deposited all of the client funds that should have been placed in a trust account. "69. The respondent also indicated that after he provided the office account number in the garnishment in response to the district court's contempt citation, he opened a new office account and transferred all of the monies from his previous office account to the new account to avoid the garnishment. "70. As of the date of the hearing before the Kansas Supreme Court on June 15, 2017 (which was more than three weeks after the respondent's disciplinary hearing), the respondent indicated that he did not have a trust account and continued to maintain client funds in his office account. "71. On June 16, 2017, the Kansas Supreme Court temporarily suspended the respondent's law license during the pendency of these disciplinary proceedings. "Conclusions of Law "72. Based upon the respondent's stipulations and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 3.4(c), KRPC 8.3, KRPC 8.4(d), Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below. " KRPC 1.1 "73. 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.' The respondent was not competent to assist J.W., T.W., and E.V., in their immigration matters. The respondent failed to file necessary paperwork in the immigration cases to achieve the clients' goals. In E.V.'s case, the respondent failed to comprehend the difference between an E-2 Visa, which was necessary for E.V. to work in the United States, and an I-94, which is essentially an extension of the E-2 Visa that expires when a person leaves the country, or a Visa waiver, which does not permit a person to work and only allows a person to be in the United States for up to three months. Further, the respondent was not competent to determine what assistance C.W. needed to accomplish her goals or to understand basic differences in date formatting between the United States and United Kingdom. The hearing panel concludes that the respondent lacked the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation of J.W., T.W., E.V., and C.W., in violation of KRPC 1.1. " KRPC 1.3 "74. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent stipulated that he violated KRPC 1.3. The respondent failed to diligently and promptly represent J.W. and T.W. by timely preparing and filing documents. Additionally, the respondent failed to timely request additional documentation from J.W. and T.W. to include additional family members as sponsors. The respondent failed to diligently and promptly represent E.V. by filing for and obtaining an E-2 Visa. Finally, the respondent failed to diligently and promptly represent C.W. by timely requesting additional documents from C.W. to provide the British Passport Office. The respondent's lack of diligence caused his clients injury in each case. 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 "75. 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.' The respondent stipulated that he violated KRPC 1.4. In this case, the respondent repeatedly violated KRPC 1.4(a) when he failed to timely return telephone calls and provide J.W. and T.W. with accurate updates regarding the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a). " KRPC 1.5 "76. KRPC 1.5 provides that '[a] lawyer's fee shall be reasonable.' The respondent stipulated that he violated KRPC 1.5. The respondent agreed that the fee he charged C.W. was unreasonable. Based upon the respondent's stipulation, the hearing panel concludes that the respondent violated KRPC 1.5 by charging C.W. an unreasonable fee. " KRPC 1.15 "77. Lawyers must properly safeguard the property of their clients. See KRPC 1.15. The respondent stipulated that he failed to properly safeguard his clients' property in violation of KRPC 1.15. Properly safeguarding the property of others necessarily requires lawyers to deposit unearned fees into an attorney trust account. The respondent failed to establish a trust account for his clients located in Kansas. Additionally, the respondent likewise failed to establish a trust account for his clients located in Iowa. In fact, during the hearing in this matter, the respondent indicated that he did not understand what a trust account was and asked one of the panel members to explain it to him. Further, by placing the client funds in his operating account and then reporting that account number in the malpractice garnishment action, the respondent placed his clients' funds in jeopardy of being used to pay the civil judgment against him. By failing to have trust accounts and by failing to deposit unearned fees as well as funds held on behalf of clients into a proper trust account, the hearing panel concludes that the respondent violated KRPC 1.15(a). " KRPC 1.16 "78. KRPC 1.16(d) requires lawyers to take certain steps to protect clients after the representation has been terminated. The respondent stipulated that he violated KRPC 1.16(d). KRPC 1.16(d) provides: 'Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.' The respondent violated KRPC 1.16(d) when he abruptly terminated his representation of E.V. without providing proper notice or allowing time for E.V. to locate other counsel. The hearing panel concludes that the respondent violated KRPC 1.16(d). " KRPC 3.2 "79. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The respondent stipulated that he violated KRPC 3.2. In the malpractice case brought against the respondent, the respondent failed to file an answer, he failed to respond to the motion for default judgment, he failed to appear at a scheduled hearing, and he failed to provide financial information in response to a subpoena. As a result, the hearing panel concludes that the respondent caused unnecessary delay in violation of KRPC 3.2. " KRPC 3.4 "80. 'A lawyer shall not ... knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.' KRPC 3.4(c). The respondent stipulated that he violated KRPC 3.4(c). The respondent knowingly disobeyed an obligation when he failed to comply with the Iowa court rules applicable to attorneys practicing under Iowa Court Rule 32:5.5(d)(2). The respondent also knowingly disobeyed rules of a tribunal in the malpractice case. The respondent knowingly disobeyed an order by the court to appear on the order to show cause. Finally, the respondent knowingly disobeyed an order by the court when he failed to timely provide the information required by the subpoena. As such, the hearing panel concludes that the respondent violated KRPC 3.4(c). " KRPC 8.4(d) "81. '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 stipulated that he violated KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to file an answer, failed to respond to the motion for default judgment, when he failed to appear in court, and when he failed to provide the information required by the subpoena in the malpractice case. Further, the respondent indicated in the hearing on the temporary suspension before the Kansas Supreme Court that after eventually providing the district court with [his] operating account number in the garnishment, he opened a new account and transferred all money to that new account in an effort to avoid paying the judgment. The hearing panel concludes that the respondent violated KRPC 8.4(d). " KRPC 8.3 and Kan. Sup. Ct. R. 207(c) "82. The rules that regulate the legal profession require lawyers to report misconduct. Specifically, KRPC 8.3(a) and Kan. Sup. Ct. R. 207(c) provide the requirements in this regard. KRPC 8.3(a) provides that '[a] lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.' Kan. Sup. Ct. R. 207(c) provides: 'It shall be the duty of each judge of this state to report to the Disciplinary Administrator any act or omission on the part of an attorney appearing before the court, which, in the opinion of the judge, may constitute misconduct under these rules.' The respondent stipulated that he violated KRPC 8.3(a) and Kan. Sup. Ct. R. 207(c). After the Iowa Supreme Court reprimanded the respondent, the respondent was obligated to report the Iowa disciplinary case to the Kansas disciplinary administrator. The respondent, however, failed to report the Iowa misconduct to the Kansas disciplinary administrator. Because the respondent failed to report the misconduct as required, the hearing panel concludes that the respondent violated KRPC 8.3(a) and Kan. Sup. Ct. R. 207(c). " Kan. Sup. Ct. R. 211(b) "83. The Kansas Supreme Court Rules require attorneys to file answers to formal complaints. Kan. Sup. Ct. R. 211(b) provides the requirement: 'The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.' Kan. Sup. Ct. R. 211(b). The respondent did not file an answer to the formal complaint. If the respondent intended for the document entitled, 'pleading' to serve as an answer, it was untimely. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 211(b). "American Bar Association Standards for Imposing Lawyer Sanctions "84. 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. "85. Duty Violated . The respondent violated his duty to his clients to provide competent and diligent representation. The respondent violated his duty to his clients to provide adequate communication. The respondent also violated his duty to his clients to properly safeguard their property. The respondent violated his duty to the legal system to comply with court orders. Finally, the respondent violated his duty to the legal profession to cooperate with the disciplinary proceeding by failing to report the Iowa disciplinary case and by failing to file an answer in this case. "86. Mental State . The respondent knowingly violated his duties. "87. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to his clients and to the administration of justice. The respondent injured J.W. and T.W. by significantly delaying the immigration of their children from Kenya. The delay caused by the respondent deprived J.W. and T.W. [of] spending time with their children. The respondent injured E.V. E.V. had to leave the country and hire new counsel to assist her in obtaining an E-2 Visa. E.V. was unable to perform her job duties for her employer as a result of the respondent's misconduct and lost roughly three months of pay because of his error. C.W. was also injured by the respondent. Because of the respondent's misconduct, C.W. was delayed in obtaining her British passport. Eventually, C.W. received her passport nine days after making an application on her own. All three of the respondent's clients in these cases also suffered financial injuries. The respondent also injured the administration of justice, particularly with regard to the malpractice suit brought by E.V. The injury caused by the respondent to his clients and to the administration of justice is significant. "88. 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. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct. The respondent failed to secure trust accounts in Iowa and Kansas. The respondent has never properly safeguarded client funds. The respondent failed to competently or diligently represent J.W., T.W., E.V., and C.W. The hearing panel concludes that the respondent engaged in a pattern of misconduct. b. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 8.3, KRPC 8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. Accordingly, the hearing panel concludes that the respondent committed multiple offenses. c. Vulnerability of Victim. J.W., T.W., E.V., and C.W. were not versed in immigration law. As a result, they were vulnerable to the respondent's misconduct. d. Indifference to Making Restitution. The respondent's three clients were injured financially by the respondent's misconduct. While the respondent refunded the filing fees paid by J.W. and T.W., the respondent did not refund the attorney fees. J.W. and T.W. received no benefit from the fees paid to the respondent. The respondent failed to pay the judgment entered against him in the malpractice case brought by E.V. and her employer. C.W. was dissatisfied with the respondent's offer to refund $250.00. Thus, the respondent was indifferent to making restitution. "89. 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. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined. While the respondent was reprimanded by the Iowa Supreme Court, the underlying misconduct is being considered in this case. Thus, the discipline imposed in Iowa does not constitute a prior disciplinary offense. b. Absence of a Dishonest or Selfish Motive. The respondent's misconduct does not appear to have been motivated by dishonesty or selfishness. c. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from anxiety and depression. It is clear that the respondent's anxiety and depression contributed to his misconduct. d. The Present and Past Attitude of the Attorney as Shown by His Cooperation During the Hearing and His Full and Free Acknowledgment of the Transgressions. While the respondent did not file an answer to the formal complaint, he did provide a response to the initial complaints filed by J.W., E.V., and C.W. Additionally, the day before the hearing, the respondent stipulated that he violated many disciplinary rules. During the hearing, the respondent agreed to refund the filing fees and $750.00 of the $1,000.00 attorney fees paid to C.W., though the panel is not aware of whether such action has been taken to date. e. Inexperience in the Practice of Law. The Kansas Supreme Court admitted the respondent to the practice of law in 2012. The respondent is inexperienced in the practice of law and his inexperience is a compelling mitigation consideration in this case. f. Imposition of Other Penalties or Sanctions. E.V. and her employer obtained a judgment against the respondent in excess of $22,000. While the respondent has not paid the judgment, E.V. and her employer continued to attempt to collect the judgment. g. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct. "90. 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. '4.42 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. '4.53 Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client. '6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury 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 injury or potential injury to a client, the public, or the legal system.' "Recommendation of the Parties "91. The deputy disciplinary administrator recommended that the respondent's license be suspended for an indefinite period of time. The respondent recommended that his plan of probation be adopted and that he be allowed to continue practicing law. "92. The respondent's request for probation was made untimely. Accordingly, under Kan. Sup. Ct. R. 211(g)(3), the hearing panel is prohibited from recommending that the respondent be placed on probation. "Recommendation of the Hearing Panel "93. During the disciplinary hearing held on May 23, 2017, the hearing panel became concerned about the respondent's competence to practice law and the risk the respondent presented to current and future clients. The same causes for concern exist now that existed when the hearing panel recommended that the Kansas Supreme Court temporarily suspend the respondent during the course of these disciplinary proceedings (see paragraph 66 above). "94. The hearing panel does not believe the respondent's misconduct is of a willful nature, but based on all the evidence presented at the hearing, the hearing panel concludes that the respondent is not competent to continue in the practice of law at this time. Accordingly, based upon the respondent's stipulations, the findings of fact, the conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be indefinitely suspended. "95. 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) (2018 Kan. S. Ct. R. 251). 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 failed to file an answer, and adequate notice of the hearings before the panel and this court for which he appeared. The respondent did not file exceptions to the panel's final hearing report; however, respondent filed a document entitled "pleading" in which he admitted that he violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.5 (2018 Kan. S. Ct. R. 294) (fees); 1.16 (2018 Kan. S. Ct. R. 333) (termination of representation); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 3.4(c) (2018 Kan. S. Ct. R. 347) (fairness to opposing party and counsel); 8.3 (2018 Kan. S. Ct. R. 380) (reporting professional misconduct); 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rules 207 (2018 Kan. S. Ct. R. 246) (failure to report action); and 211 (2018 Kan. S. Ct. R. 251) (failure to file answer in disciplinary proceeding). As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2018 Kan. S. Ct. R. 255). He also admitted, but was not charged with, violating KRPC 8.1(b) (2018 Kan. S. Ct. R. 379) (failure to disclose a fact necessary to correct a misapprehension known by respondent). Furthermore, the evidence before the panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.1, 1.3, 1.4(a), 1.5, 1.15(a), 1.16(d), 3.2, 3.4(c), 8.4(d), 8.3(a), Kansas Supreme Court Rule 207(c), and Kansas Supreme Court Rule 211(b), and it supports the panel's conclusions of law. We adopt the panel's conclusions. The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the Deputy Disciplinary Administrator recommended indefinite suspension from the practice of law. The respondent recommended probation according to his probation plan. The panel did not recommend probation because respondent failed to timely file his probation plan. The panel agreed with the Deputy Disciplinary Administrator and recommended indefinite suspension. At the hearing before this court, the Deputy Disciplinary Administrator again recommended indefinite suspension. Respondent agreed with that recommendation. This court agrees with the recommendation of the Deputy Disciplinary Administrator and holds that respondent's license to practice law in the state of Kansas be indefinitely suspended and that he undergo a reinstatement hearing pursuant to Rule 219(d) (2018 Kan. S. Ct. R. 264). CONCLUSION AND DISCIPLINE IT IS THEREFORE ORDERED that Matthew Edgar Hult be and he is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2018 Kan. S. Ct. R. 234), effective on the filing of this decision. 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.

HILL, J.: This is an appeal by an injured worker from the task loss reduction imposed on his workers compensation award by the Workers Compensation Board. While he was working as a middle school janitor for U.S.D. No. 259, Loren E. Jones hurt his cervical spine and upper back while lifting and carrying boxes of copy paper in 2011 and then hurt his lower back while shoveling snow at the school in 2014. He claimed workers compensation benefits for both injuries. The self-insured District contested both of Jones' claims. Since the parties agreed to seek separate awards for both injuries, the Workers Compensation Division docketed the claims separately but then adjudged them in a common proceeding. The administrative law judge granted Jones his benefits, and the District appealed to the Workers Compensation Board. The Board, again in a combined proceeding, affirmed the ALJ's award for Jones' 2011 upper back injury after finding that his cervical spine injury arose from a workplace accident. The Board, however, reversed part of the award for his 2014 injury after finding that the ALJ's task loss determination failed to account for any task loss attributable to the 2011 injury. In separate cases, both parties appeal to this court. In this case, Jones, as the appellant, argues that the Board erred in its task loss analysis for the 2014 injury. In the other case-No. 117,970-the District is the appellant and argues that the Board erred in deciding the cause of Jones' 2011 cervical spine injury. In this opinion, we will focus mainly on the task loss issue raised by Jones concerning the Board's holding on his 2014 injury. We will, however, refer to some of the circumstances of the 2011 injury and its treatment as it relates to the 2014 injury and the computation of task losses. In turn, we will discuss in greater detail the facts of the 2011 injury in our opinion in Case No. 117,970. Jones is hurt and seeks medical treatment. Jones' first accident occurred on February 14, 2011. On that date, Jones' tasks included moving boxes of copy paper to locations throughout the school, setting up bleachers in the auditorium, and lifting a metal meal cart that had fallen over. The school is a two-story building that does not have an elevator, so Jones was required to carry the copy paper up a flight of stairs. After performing this work, he began to feel pain in his shoulders, arms, hands, and wrists. Jones also claimed to have had numbness and tingling at this time. Jones reported his injury to the District, and the District referred him to Dr. John Babb. Jones went to see Dr. Babb about ten days later. Jones provided his medical history and described the symptoms he was experiencing. On a pain diagram chart, Jones stated that he was experiencing symptoms in both shoulders, both arms, and his right hand. At this time, Jones was most concerned with his shoulder pain, but stated that his arms, hands, and also wrists had been bothering him. Dr. Babb treated Jones conservatively. He administered a corticosteroid injection into Jones' shoulders and ordered physical therapy. On June 11, 2011, Dr. Babb released Jones to return to work without restrictions . Throughout the treatment, Jones denied feeling numbness or tingling in his arms. Although he was released to return to work, Jones was still experiencing some pain in his shoulders and down both arms. Jones also claimed to have been experiencing pain in his neck and shoulders, which extended down both arms into his hands. For over a year, after he was released to go back to work, Jones returned to his job as a custodian and performed all of the tasks required of him, even though he was experiencing some pain, tingling, and numbness in his hands, arms, and neck. He worked until August 27, 2012, when he went to his primary care physician, Dr. Steven Penner. To Dr. Penner, Jones complained of pain in his neck and problems with his shoulders, arms, and fingers. Jones also complained of having a tingling feeling when he was examined by Dr. Penner. Dr. Penner ordered an MRI exam, which showed spinal canal stenosis and a herniated disc in Jones' cervical spine. Dr. Penner referred Jones to Dr. Raymond Grundmeyer. Jones told Dr. Grundmeyer that he was experiencing symptoms in his hands, shoulders, back, and neck. Based upon his physical examination and the MRI, Dr. Grundmeyer recommended immediate surgery on Jones' cervical spine. Dr. Grundmeyer performed the surgery on September 12, 2012. Jones had postoperative visits with Dr. Grundmeyer. After Jones had shown sufficient improvement, Dr. Grundmeyer determined it was medically appropriate to allow Jones to return to work without any permanent restrictions . Jones returned to work at the school making the same wage he was making before his 2011 injury. Jones continued to work in the same manner as he had prior to this injury. Then, in May 2013, the District had Jones visit with Dr. Chris Fevurly. Dr. Fevurly did not believe that Jones' neck pain was caused by his 2011 injury. In contrast, Dr. Fevurly believed the cervical spine involvement began sometime after the 2011 injury. However, regardless of the causation of Jones' symptoms, Dr. Fevurly opined that Jones should have had permanent work restrictions due to his shoulder injuries. Dr. Fevurly stated that Jones should avoid repetitive or prolonged forceful overhead work. After that, while shoveling snow on the sidewalks outside of the school in February 2014, Jones was injured at work a second time. He felt pain in his back and legs. He finished shoveling the snow and left for the day. When Jones woke up the following day, he was in severe pain. He informed the District that he was going to a doctor. He went to Dr. Penner, and eventually the District referred Jones to Dr. Larry Wilkinson. Dr. Wilkinson performed a lumbar MRI and referred Jones to Dr. Matthew Henry, a neurosurgeon, for treatment. To Dr. Henry, Jones complained of pain throughout his back which radiated down his left leg. Dr. Henry diagnosed Jones with lumbar radiculopathy, lower back pain, a herniated lumbar disc at L3-4, bulging discs at L4-5 and L5-S1 causing severe neural foraminal narrowing, and lumbar disc degeneration. Initially, Dr. Henry removed Jones from work and prescribed pain medication and physical therapy. When this treatment did not produce the desired results, Jones underwent lower-back surgery. Following the surgery, Jones was given some work restrictions that were gradually eliminated-ultimately resulting in his release to work without any restrictions. But, because Jones had been out of work for more than 180 days, the position that he had at the school was no longer available to him. Jones was invited to apply for any open positions. Jones applied for some positions, but he was not hired. Jones did not seek other employment due to his injuries. Jones claims workers compensation benefits. When Jones filed workers compensation claims for both of his injuries, the parties stipulated to the facts regarding Jones' employment. Further, they stipulated that both of the accidents occurred in the course of Jones' employment. Several doctors provided expert testimony to the ALJ. We offer a brief summary. Dr. Fevurly was the District's expert. Dr. Fevurly did not believe that Jones had cervical spine involvement when he was being treated by Dr. Babb. Regarding the lower back injury, Dr. Fevurly diagnosed Jones with lumbar degenerative disc disease, with eventual development of bilateral lumbar radiculopathy. In Dr. Fevurly's opinion, the work accident was the prevailing factor in the development of the radiculopathy but not the disc disease. Dr. Fevurly determined Jones had a 10 percent whole body functional impairment. Further, Dr. Fevurly noted that Jones did not have work restrictions following his lower back surgery, and he thought that Jones would be able to accomplish all of his work tasks. But with the limitations due to his shoulder injury, Jones should be limited to medium work. For his part, Jones presented testimony from Dr. Pedro Murati. Dr. Murati examined Jones' lower back in December 2014. Dr. Murati determined that Jones' symptoms and physical evaluation were consistent with lumbar radiculopathy and Jones' work activities were the prevailing factor in causing the injury. Dr. Murati believed Jones had a 15 percent whole body functional impairment. Dr. Murati set various restrictions upon Jones' activity due to his back injury. According to Dr. Murati, Jones was realistically unemployable due to his lower back injury. Four months later, Dr. Murati reevaluated Jones. This examination concerned Jones' shoulder and neck pain. Dr. Murati thought that Jones had bilateral carpal tunnel syndrome due to double crush syndrome and either rotator cuff tears or shoulder sprains. He also noted the extent of Jones' neck surgery. Dr. Murati believed that at the very least, Jones' neck and shoulder injuries were an aggravation, acceleration, or intensification of a preexisting condition that was caused by Jones' work activities. Due to this, Dr. Murati determined Jones had a 45 percent whole body functional impairment. With all of this in mind, Dr. Murati would have assigned various permanent restrictions following the 2011 injury. In Dr. Murati's opinion, Jones' suggested work restrictions, a result of his 2011 injury, would have still been applicable at the time Jones was examined for the lower-back injury. In response to this medical evidence, the ALJ ordered Jones to have an independent medical evaluation performed by Dr. Terrence Pratt. This evaluation involved reviewing medical records in addition to interviewing and physically examining Jones. Dr. Pratt determined Jones had a 25 percent whole body functional impairment due to his neck injury. Dr. Pratt also assigned a six percent functional impairment to each of Jones' shoulders due to his 2011 injury. Thus, Dr. Pratt ultimately assigned a 31 percent whole body permanent partial impairment, which in his opinion was caused by the 2011 injury. Dr. Pratt believed it was inappropriate for the doctors to have released Jones without permanent restrictions for this injury. Pratt would have, after that 2011 injury, limited Jones by prohibiting him from lifting more than 30 pounds, pushing or pulling more than 40 pounds, and doing overhead activities. For the 2014 injury, Jones had suffered a 15 percent whole body permanent partial functional impairment that was caused by his work activities. Dr. Pratt stated that Jones should have had some permanent work restrictions due to his injuries. According to Dr. Pratt, following the 2014 injury, Jones should avoid lifting more than 20 pounds and pushing or pulling more than 40 pounds. Based upon task lists produced by two vocational rehabilitation specialists, the doctors also gave task loss opinions. The task loss testimony focused on Jones' 2014 injury. Paul Hardin provided a task list at Jones' request. Steve Benjamin provided a task list at the District's request. Dr. Murati testified that Jones had lost the ability to perform 83 percent of work tasks that had been identified by Hardin. Dr. Murati did not account for any tasks that Jones would not have been able to complete due to the 2011 injury. Based upon Hardin's task list, Dr. Pratt determined Jones had lost the ability to perform 69 percent of the tasks because of the 2014 injury. This opinion did not include tasks which would have been lost due to the 2011 injury. Offering a different opinion, when reviewing Benjamin's task list, Dr. Pratt decided that Jones had a 53 percent task loss due to the 2014 injury. However, 15 of the tasks that Jones would not be able to perform could be attributed to the restrictions Dr. Pratt would have placed on Jones for the 2011 injury. Two more tasks may have been prohibited under the restrictions from the 2011 injury, but the wording of the tasks was not clear. Finally, Dr. Fevurly, using Benjamin's task list, thought that Jones had not lost the ability to perform any of the tasks. The ALJ decided the matter, and the Board reviewed the decision. For the 2014 injury, the ALJ found the work accident was the cause of Jones' injury. The ALJ was obviously more persuaded by the results of the independent medical exam findings of Dr. Pratt than by the other doctors' evidence. The ALJ adopted Dr. Pratt's determination that the injury resulted in a 15 percent permanent partial impairment of the whole body. The ALJ relied on Dr. Pratt's testimony regarding task loss as it related to Hardin's and Benjamin's task lists to reach a total of 61 percent task loss. The ALJ did not consider any preexisting task loss due to the 2011 injury when making this determination. The District appealed to the Board. Relevant to this appeal, the District argued the ALJ erred in calculating the task loss for Jones' 2014 injury because it did not include his preexisting permanent restrictions from the 2011 injury. The Board found that the ALJ did not err in her findings on the causation of the 2011 injury. Without offering further explanation, the Board stated it "agrees with the judge's detailed analysis on these issues." We will delve into this subject in more detail in the companion case. Despite affirming the ALJ on causation and the extent of Jones' injuries, the Board did find the ALJ's task loss calculation was erroneous. Relying on Dr. Pratt's opinions from Benjamin's task list, the Board found that Jones only lost the ability to perform 11.1 percent of the tasks identified due to the 2014 injury when considering the task loss that occurred due to the 2011 injury. Because of this reduction in task loss, the Board reduced the award that Jones had received. That brings us to Jones' appeal, where he attacks the Board's order in two ways. First, he claims by operation of either the doctrine of collateral or judicial estoppel the District should be barred from raising the task loss claim to the Board. In his view, the Board erred when it permitted the District to take inconsistent positions where it, in the first claim, stipulated that Jones had no task loss after the 2011 injury and then in the second claim argued that Jones' task loss for the 2014 injury must be reduced by the task loss that should have been imposed for the 2011 injury. For his second argument, Jones maintains that the Board misinterpreted K.S.A. 2013 Supp. 44-510e(a)(2)(D) to say that retroactive work restrictions from a prior injury can be used to reduce the task loss from a second injury. In other words, where there is medical evidence, as there was here, that indicates there should have been work restrictions imposed on a worker from a prior injury, those restrictions will legally reduce the task loss arising from a later injury. We will address the issues in that order. We will not consider Jones' estoppel arguments. Jones raises his arguments concerning collateral and judicial estoppel for the first time in his brief. Not only were these arguments not raised before the Board, they were not raised in Jones' petition for judicial review. Generally, an issue that is not raised before a lower court cannot be raised for the first time on appeal. State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Exceptions to the general rule can be invoked to allow this court to determine issues for the first time on appeal. State v. Beltz , 305 Kan. 773, 776, 388 P.3d 93 (2017). Under Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34), the appellant must present arguments to the court why it should accept one of the exceptions. See State v. Daniel , 307 Kan. 428, 430, 303 P.3d 1278 (2018). Our Supreme Court has warned litigants that they should disregard the rules about raising an issue for the first time on appeal at their own peril. Godfrey , 301 Kan. at 1043, 350 P.3d 1068. Consequently, we will not consider these arguments. We move now to the second issue. Here, we find error. The Board ignored a condition precedent in the law. Basically, Jones argues the ALJ erred by finding that his task loss for the 2014 injury should have been reduced due to preexisting restrictions from his 2011 injury. Jones takes the position that he did not have any preexisting restrictions that resulted in task loss, because following his treatment for the 2011 injury, he was released to work without restrictions and worked for over a year without limitation. The procedural history of this case dictates our standard of review. Because Jones is appealing a decision of the Workers Compensation Board, our review is under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. Jones is arguing that the Board erroneously applied K.S.A. 2013 Supp. 44-510e(a)(2)(D) when it reduced his award for his 2014 injury for task loss that was attributable to the 2011 injury. Under the KJRA, we may reverse the Board's determination if we find that the Board erroneously interpreted or applied the law. See K.S.A. 2017 Supp. 77-621(c)(4). This question requires us to interpret and apply the law defining task loss. The interpretation of a statute is a question of law that this court reviews de novo. Fernandez v. McDonald's , 296 Kan. 472, 475, 292 P.3d 311 (2013). We give no deference to the Board's interpretation of the statutory language. Kansas Dept. of Revenue v. Powell , 290 Kan. 564, 567, 232 P.3d 856 (2010). As it has been said many times, the primary purpose of statutory interpretation is to give effect to the intent of the Legislature. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). The first step of statutory interpretation is to attempt to determine the legislative intent by looking to the words of the statute, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). Our Supreme Court has instructed: "When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it." Bergstrom v. Spears Manufacturing Co. , 289 Kan. 605, 607-08, 214 P.3d 676 (2009). Turning to the language of the statute at issue, K.S.A. 2013 Supp. 44-510e(a)(2)(D) defines task loss as "the percentage to which the employee, in the opinion of a licensed physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the five-year period preceding the injury. The permanent restrictions imposed by a licensed physician as a result of the work injury shall be used to determine those work tasks which the employee has lost the ability to perform. If the employee has preexisting permanent restrictions, any work tasks which the employee would have been deemed to have lost the ability to perform, had a task loss analysis been completed prior to the injury at issue, shall be excluded for the purposes of calculating the task loss which is directly attributable to the current injury. " (Emphasis added.) The italicized language is especially pertinent here. The first clause of that last sentence clearly creates a condition precedent. "If the employee has preexisting permanent restrictions ..." then certain results follow. This is a classic "If ... then" sentence construction. In the event of certain conditions, then certain legal results follow. But Jones did not have any preexisting permanent restrictions. The evidence clearly reveals that after the 2011 injury he was released to work by the doctors and he worked without any restrictions for over a year. This statute does not apply to Jones' case. The Board, relying on Dr. Pratt's testimony that there should have been permanent restrictions after the 2011 injury, essentially rewrote the statute. In the Board's revision, "if the employee has or should have had preexisting permanent restrictions, any work tasks which the employee would have been deemed to have lost the ability to perform, ... shall be excluded for the purposes of calculating the task loss which is directly attributable to the current injury." This revision would permit task loss reductions for phantom work restrictions that are retroactively created by medical testimony. Obviously, if the Legislature wanted to write the statute in that fashion it could have done so. We must deal with what the text says. We see the evidence in the record that the Board relies upon. Dr. Pratt gave an opinion concerning task loss for Jones' 2014 injury that included an opinion about task loss due to restrictions for the 2011 injury. Based on Benjamin's task list, Dr. Pratt opined that Jones had lost the ability to perform 19 of 36 tasks following his 2014 injury. However, of those tasks which Jones had lost the ability to perform, Jones had already lost the ability to perform at least 15 of them due to the restrictions Dr. Pratt would have imposed for the 2011 injury. Under this erroneous view of K.S.A. 2013 Supp. 44-510e(a)(2)(D), the task loss attributable to the 2011 injury must be excluded when calculating the task loss for the 2014 injury. Thus, the Board incorrectly concluded that Jones had an effective task loss of 11.1 percent when considering only the task loss attributable to the 2014 injury. Because of this misinterpretation we must reverse and remand for a new computation of Jones' task loss. In struggling with this issue, the Board relied upon a 2016 opinion from this court, Eder v. Hendrick Toyota , No. 114,824, 2016 WL 7324454 (Kan. App. 2016) (unpublished opinion). Eder is both factually and legally distinguishable from this case. In a case where the question was primarily whether the Board's finding was supported by substantial evidence, the Eder panel considered the testimony of one doctor who stated that a car mechanic had a 56 percent task loss due to two separate injuries, but the task loss was not attributable solely to the second injury, which was the injury being litigated. According to the Eder panel, the Board erroneously granted the mechanic a 56 percent task loss, because when it "adjusted" the medical testimony, it ignored the doctor's determination that no task loss was attributable to the second injury. 2016 WL 7324454, at *12. In other words, Eder suffered a task loss from his first injury, not his second. This meant that the Board, when it adjusted the medical testimony, did so without the support of substantial testimony. 2016 WL 7324454, at *12-13. We disagree with any implication in Eder that permanent restrictions can be retroactively applied. Basically then, Eder teaches us that the focus of K.S.A. 2013 Supp. 44-510e(a)(2)(D) is to have the task loss determination for only the injury that is currently being litigated. In contrast, Jones injured his cervical spine in 2011 and received no permanent restrictions. Thus, the statute, applicable in Eder , was inapplicable here. More recently, in Gilkey v. Frederick , 55 Kan. App. 2d 487, 492-96, 419 P.3d 49 (No. 117,259, filed April 20, 2018), another panel of this court examined the same statute- K.S.A. 2017 Supp. 44-510e(a)(2)(D) -and rejected the Board's task loss reduction where an injured worker worked without restrictions for 12 years before his new injury. In the Gilkey panel's opinion, theoretical work restrictions could not be considered to be preexisting permanent restrictions as required by the statute. 55 Kan. App. 2d at 495, 419 P.3d 49. Gilkey is obviously factually different than this case. Although a physician assigned work restrictions because of Gilkey's first work accident, in the following years, Gilkey never worked under any of those restrictions. In contrast to Gilkey, no physician ever assigned Jones any work restrictions based on his 2011 work injury. Because the Board misinterpreted the statute, we must reverse and remand for further proceedings. We direct the Board to reconsider Jones' award without consideration of any preexisting work restrictions attributed to Jones' 2011 work injury.

The opinion of the court was delivered by Biles, J.: Donald Gilkes challenges his obligation to register as an offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., following his jury conviction for aggravated assault. The issues are whether the district court made a finding on the record that Gilkes used a deadly weapon in the commission of the offense; and, if the court did make that finding, whether it abused its discretion because it incorrectly believed it was required to do so. See K.S.A. 2017 Supp. 22-4902(e)(2). We hold that the record reflects the district court did not make the required deadly weapon finding. The court's order for Gilkes to register as a violent offender is vacated. See State v. Thomas , 307 Kan. ----, 327 P.3d 1052, 2014 WL 3020029 (No. 109951, this day decided). FACTUAL AND PROCEDURAL BACKGROUND The State charged Gilkes with two counts of aggravated assault, alleging he knowingly placed two individuals "in reasonable apprehension of immediate bodily harm, committed with a deadly weapon, to wit: a Lock-Blade Knife." A jury convicted him of one count and acquitted him of the other. Consistent with the charging document, the instructions required the jury to find Gilkes used a deadly weapon to convict him of either count. At the sentencing hearing, the court noted the jury found Gilkes guilty of one aggravated assault charge. It heard arguments on a motion for new trial, in which Gilkes argued the evidence did not support the verdict because he was voluntarily intoxicated, preventing him from forming the requisite intent. The court denied the motion, noting it did not "find anything about that jury conclusion so out of line with the evidence that their conclusion should be set aside." The State asked the court to impose the aggravated grid-box sentence because there were two victims and Gilkes "took no responsibility for this crime ... and the use of a deadly weapon." Gilkes requested the middle grid-box sentence. His counsel added, "The fact that there was a weapon used is included in the fact that it was aggravated assault instead of misdemeanor assault." Before pronouncing sentence, the court told Gilkes, "And also this offense, once you get up to the Secretary of Corrections, does require what's called registration." The court then sentenced Gilkes to the middle grid-block sentence of 29 months' imprisonment. It noted, "The jury determined that there were not two victims in this case.... And I'm going to go along with what the jury determined in this matter." Notably, the record reflects a 2011 Kansas Sentencing Guidelines Journal Entry of Judgment. In its "Current Conviction Information" section, the court marked "no" next to the item reading: "Did offender, as determined by the court, commit the current crime with a deadly weapon?" And in the "Miscellaneous Provisions" subsection of the "Recap of Sentence" section, the court did not indicate it had "informed [defendant] of duty to register as an offender pursuant to [KORA], 2011 H Sub for SB 37." It also did not attach a completed "Offender Registration Supplement" to the journal entry. That document typically identifies the reason for which registration is required and the duration of that obligation. See 2017 Kansas Sentencing Guidelines Desk Reference Manual, App. B, p. 15, Journal Entry of Judgment Instructions and Forms. Gilkes timely appealed "all and any adverse decisions by the Court made during the proceedings conducted in the above captioned matter." His brief asserted trial errors arising from the jury instructions and two challenges to his offender registration requirement. As to registration, Gilkes first argued the requirement was an illegal sentence because the "district court did not comply with K.S.A. 22-4902" by "making a factual finding on the record that [he] used a deadly weapon in the commission of a person felony." Second, he argued the court "erred by ordering KORA registration with the misunderstanding that it was compelled to do so." Gilkes raised both KORA challenges for the first time on appeal. A Court of Appeals panel affirmed his conviction and sentence. But it remanded the case with directions to correct the journal entry to reflect the missing registration requirement. State v. Gilkes , No, 109,259, 2014 WL 642091, at *5 (Kan. App. 2014) ; see also K.S.A. 2017 Supp. 22-3504(2) ("Clerical mistakes in judgments, orders or other parts of the record ... may be corrected by the court at any time."). Gilkes petitioned for review. We granted review only for the KORA claims. Jurisdiction is proper. See K.S.A. 20-3018(b) (petition for review of Court of Appeals decision); see also State v. Marinelli , 307 Kan. ----, 347 P.3d 239 (No. 111227, this day decided), slip op. at 25-26, 2015 WL 1882134. GILKES IS NOT A "VIOLENT OFFENDER" UNDER KORA A preliminary matter concerns discussion by the parties and panel about whether the registration requirement is an "illegal sentence." In Marinelli , we held KORA is not part of a defendant's criminal sentence. 307 Kan. at ----, slip op. at 24. Therefore, the question is not whether the district court imposed an illegal sentence, but whether Gilkes is a "violent offender" who must register under KORA. See K.S.A. 2017 Supp. 22-4902(e)(2). Standard of Review Whether Gilkes is an "offender" within the meaning of KORA turns on the interpretation of K.S.A. 2017 Supp. 22-4902(e)(2), which is a question of law subject to de novo review. Marinelli , 307 Kan. at ----, slip op. at 26. Discussion Individuals defined by KORA as "violent offender[s]" must register as provided in the Act. See K.S.A. 2017 Supp. 22-4902(a) (defining "offender" to include "violent offender"); K.S.A. 2017 Supp. 22-4906 (setting duration of registration requirement for "offender[s]"). " 'Violent offender' includes any person who ... on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony ." (Emphasis added.) K.S.A. 2017 Supp. 22-4902(e)(2). By KORA's plain language, Gilkes must meet the definition to be subject to KORA's registration requirements as a violent offender. See K.S.A. 2017 Supp. 22-4902(a)(2) ("As used in [KORA] ... '[o]ffender' means ... a violent offender."); K.S.A. 2017 Supp. 22-4906(a)(1)(N). In Gilkes' case, the record reflects the jury made the deadly weapon finding. And even though use of a deadly weapon was an element of the offense for the crime of conviction, the district court did not make the finding on the record that Gilkes used a deadly weapon to commit the offense, as KORA plainly specifies. K.S.A. 2017 Supp. 22-4902(e)(2). In Marinelli , we held the district court made the requisite finding to support its registration order when it was reflected in the Journal Entry of Judgment. Marinelli , 307 Kan. at ----, slip op. at 27. Gilkes' case is different because the journal entry is silent about this and the court made no other explicit finding anywhere else in the record at any other time. In other words, there is no record the court made a finding that Gilkes used a deadly weapon in committing his crime of conviction. We hold Gilkes is not an "offender" as defined by K.S.A. 2017 Supp. 22-4902(e)(2). See Thomas , 307 Kan. at ----, slip op. at 20 ("[W]hen the classification of a defendant as an 'offender' requires district court fact finding ..., that fact-finding is itself one of the statutorily defined conditions precedent. Without such a fact-finding, the defendant cannot be an offender under KORA, and the obligation to register never springs into existence."). We further hold the Court of Appeals panel was without authority to remand the case to the district court to make the required on-the-record finding. See Thomas , 307 Kan. at ----, slip op. at 21 ("[T]he absence of a court-made finding on the record that Thomas used a deadly weapon cannot be a sentencing error amenable to the remedy of a remand. Such an absence is not error at all...."). This disposition renders Gilkes' additional KORA-related issue moot. Stegall, J., not participating. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 109,259 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.

The opinion of the court was delivered by Biles, J.: Alfred Rocheleau pleaded guilty to aggravated indecent solicitation of a child. The district court sentenced him to 32 months' imprisonment and ordered lifetime registration under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Rocheleau appealed, arguing lifetime registration violated the Ex Post Facto Clause of the United States Constitution because it exceeded the registration period applicable at the time of his crime. A Court of Appeals panel dismissed the appeal because the notice of appeal mentioned only sentencing. The panel held this notice limited its jurisdiction because KORA registration was not a part of a criminal sentence. State v. Rocheleau , No. 110243, 2014 WL 5347173, at *1 (Kan. App. 2014) (unpublished opinion). We hold the panel erred. There is appellate jurisdiction because Rocheleau's notice of appeal should be read broadly enough to encompass his KORA challenge under the conflicting caselaw existing when he appealed. See State v. Marinelli , 307 Kan. ----, 347 P.3d 239 (No. 111227, this day decided), slip op. at 25-26, 2015 WL 1882134 (KORA appeals properly within K.S.A. 2017 Supp. 22-3602 [a]'s purview). But after Marinelli , a criminal defendant pursuing KORA challenges is advised not to recite in the notice of appeal that the defendant is appealing only sentencing issues. On the merits, we affirm the district court. FACTUAL AND PROCEDURAL BACKGROUND On March 29, 2013, Rocheleau pleaded guilty to one count of aggravated indecent solicitation for a crime occurring between December 2010 and September 2011. The ex post facto issue arises because the 2011 Legislature amended KORA to increase the registration term for Rocheleau's crime from a 10-year period to lifetime. See L. 2011, ch. 95, § 6. Rocheleau argues his registration should be governed by the law at the time of his crime. Rocheleau filed a timely notice of appeal. It states, "Notice is hereby given by the Defendant, Alfred Rocheleau, by and through [counsel], his attorney, of his intention to appeal his sentence ... to the Court of Appeals of the State of Kansas." (Emphasis added.) The State seized on this specificity, asserting offender registration is merely an incident to sentencing-not part of sentencing. The panel agreed and dismissed the appeal. Rocheleau , 2014 WL 5347173, at *3 ("Because offender registration was not part of Rocheleau's sentence, his notice of appeal vested us with appellate jurisdiction over only his sentence. Consequently, this court lacks jurisdiction to address Rocheleau's offender registration argument."). Even so, and without explanation as to why it would proceed on the merits in a case it had just held there was no appellate jurisdiction, the panel determined Rocheleau's arguments would fail on their merits. 2014 WL 5347173, at *3-5. Rocheleau filed a petition for review, which we granted as to the KORA-related issues, specifically: jurisdiction and the ex post facto challenge. JURISDICTION In Marinelli , this court held KORA challenges may be appealed as a matter of right under K.S.A. 2017 Supp. 22-3602(a). 307 Kan. at ----, slip op. at 25-26. But that does not resolve the notice of appeal problem arising from Rocheleau's description that he was appealing "his sentence." Marinelli further held KORA registration is not part of a criminal sentence. 307 Kan. at ----, slip op. at 24. We must consider whether Rocheleau's notice of appeal was fatally flawed. Standard of Review Appellate courts exercise unlimited review over jurisdictional issues. Kaelter v. Sokol , 301 Kan. 247, 247, 340 P.3d 1210 (2015). Questions involving statutory interpretation are questions of law also subject to unlimited review. In re N.A.C. , 299 Kan. 1100, 1106-07, 329 P.3d 458 (2014). Discussion The right to appeal is purely statutory and not a right contained in the United States or Kansas Constitutions. State v. Ehrlich , 286 Kan. 923, Syl. ¶ 2, 189 P.3d 491 (2008). See generally K.S.A. 2017 Supp. 22-3601 (appellate jurisdiction in criminal cases); K.S.A. 22-3606 (procedure on appeal in criminal cases); K.S.A. 2017 Supp. 60-2103 (procedure on appeal in civil cases); K.S.A. 2017 Supp. 22-3608(c) (time for appeal from district court's judgment in criminal cases). K.S.A. 2017 Supp. 60-2103(b) states, "The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from , and shall name the appellate court to which the appeal is taken." (Emphasis added.) Kansas appellate courts have power to entertain an appeal only if it is brought within the time limitations and manner prescribed by the applicable statute. If the record reveals jurisdiction does not exist, the appeal must be dismissed. Ehrlich , 286 Kan. at 925, 189 P.3d 491. " '[J]urisdiction in any action on appeal is dependent upon strict compliance with the statutes.' " State v. Boyd , 268 Kan. 600, 607, 999 P.2d 265 (2000). But, " 'when there is a valid controversy whether the statutory requirements have been complied with, [courts] are required to construe those statutes liberally to assure justice in every proceeding.' " 268 Kan. at 607, 999 P.2d 265. Courts also look to whether there is a " 'showing that the notice of appeal misled the State or that anyone was surprised or prejudiced by the issues on appeal.' " 268 Kan. at 607, 999 P.2d 265. Our question is whether there is a valid dispute about Rocheleau's compliance with K.S.A. 2017 Supp. 60-2103(b) based on his specificity about sentencing in the notice of appeal. If so, this court should construe the applicable statute liberally. See K.S.A. 22-2103 (requiring Kansas courts to construe the code of criminal procedure "to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay"); K.S.A. 2017 Supp. 60-102 ("The provisions of this act shall be liberally construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding."). The State makes no claim it was misled, surprised, or prejudiced by Rocheleau's notice of appeal. Until Marinelli resolved the disagreement, the Court of Appeals was split on whether KORA registration was part of a criminal sentence. Marinelli , 307 Kan. at ----, slip op. at 15. Compare State v. Simmons, 50 Kan.App. 2d 448, 457, 329 P.3d 523 (2014) (KORA not a part of sentencing because it arises automatically as an operation of law), with State v. Dandridge, No. 109066, 2014 WL 702408, at *3 (Kan. App. 2014) (unpublished opinion) (KORA a legal consequence of the crime so part of sentencing). Our decision in Marinelli found fault with the rationales employed in both panels' decisions. Marinelli , 307 Kan. at ----, slip op. at 23-24. Ultimately, while we concluded a KORA challenge is not an appeal from the judgment of conviction, we also concluded KORA was not a part of a criminal sentence. 307 Kan. at ----, slip op. at 24. We noted less-than-precise guidance given by our own decisions. 307 Kan. at ----, slip op. at 20. Marinelli simply held KORA registration challenges could properly be raised in direct appeals from criminal prosecutions under K.S.A. 2017 Supp. 22-3602(a). 307 Kan. at ----, slip op. at 25-26. It did not address the contents of Marinelli's notice of appeal other than to note he challenged "all adverse rulings of the court...." 307 Kan. at ----, slip op. at 7. In Rocheleau's case, the panel relied on Simmons . Rocheleau , 2014 WL 5347173, at *3. The State relies on State v. Jackson , 291 Kan. 34, 36-37, 238 P.3d 246 (2010), in which we held KORA obligations are "an incident of sentencing." The panel did not mention Dandridge , which contradicted Simmons -and which cited Jackson for support. See Dandridge , 2014 WL 702408, at *3 (holding "Kansas appellate courts have referred to offender registration as part of sentencing," citing Jackson , 291 Kan. at 37, 238 P.3d 246 ). Given that neither panel decision had been overturned at the time Rocheleau filed his notice of appeal, a legitimate controversy existed. We therefore construe K.S.A. 2017 Supp. 60-2103(b) broadly in determining Rocheleau's notice of appeal met the statute's requirements. See Boyd , 268 Kan. at 607, 999 P.2d 265 ("[N]otice of appeal requirement should be read broadly."). We hold Rocheleau's notice of appeal was sufficient to trigger appellate jurisdiction given the contrary caselaw. Marinelli now resolves that controversy, so from this date forward warning is afforded to future litigants that KORA appeals should not be shown as only a sentencing challenge. EX POST FACTO CHALLENGE Moving to the merits, Rocheleau concedes his KORA claim was raised for the first time on appeal. It involves a legal question-whether the changes to offender registration requirements implemented after Rocheleau had committed his crime are a punishment, rendering their retroactive application the Ex Post Facto Clause's violation. Rocheleau is a sex offender, and his issue is controlled by State v. Petersen-Beard , 304 Kan. 192, 208-09, 377 P.3d 1127, cert. denied --- U.S. ----, 137 S.Ct. 226, 196 L.Ed.2d 175 (2016), in which this court held lifetime sex offender registration under KORA, as amended by the 2011 Legislature, was not "punishment," and so was not "cruel and unusual punishment" proscribed by the Eighth Amendment to the United States Constitution. See Petersen-Beard , 304 Kan. at 196, 377 P.3d 1127 ("[I]f KORA's lifetime sex offender registration requirement is punishment for either ex post facto or double jeopardy purposes, it must necessarily also be punishment for Eighth Amendment purposes. The reverse would likewise be true."). Accordingly, we affirm the lifetime registration requirements. Stegall, J., not participating. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 110,243 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.

The opinion of the court was delivered by Stegall, J.: Marcus G. Butler directly appeals his convictions-first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery. He alleges multiple reversible errors, but after a thorough review, we affirm Butler's convictions. Butler also argues-and the State concedes-the district court erred by sentencing him to lifetime postrelease supervision instead of lifetime parole for his first-degree felony-murder conviction. We agree this was error. We vacate this portion of Butler's sentence and remand the case to the district court so the court may impose lifetime parole. FACTUAL AND PROCEDURAL BACKGROUND Shortly after 7 p.m. on January 9, 2013, Kevin Smith returned home from work to the apartment he shared with his fiancée, Demetria Hunter, in Wyandotte County. When Smith arrived, he discovered a vehicle parked in his spot. Hunter and Smith's neighbors had a history of parking in their stalls and making loud noises. Smith saw a white male-later identified as Clint Schierbaum-exiting the neighboring apartment. Smith questioned him about the vehicle, but Schierbaum told him he did not know who owned the vehicle and left. About 15 minutes later, Hunter and Smith heard a series of loud popping or banging noises coming from the neighboring apartment. Smith later testified he heard two sets of pops about seven to ten minutes apart. Hunter, on the other hand, stated when she heard some banging noises, she "beat on the wall ... and all of a sudden I just kept hearing bang, bang, bang on the wall." Hunter called the police to register a noise complaint. She and Smith stepped out of their front door to investigate. Three white men emerged from the neighboring apartment. When Hunter tried to confront them about the noise, the group hurried past them, climbed into a vehicle, and left. Hunter thought one of the men appeared afraid. Law enforcement officers arrived shortly thereafter. After they spoke with Smith and Hunter, Nick Rhodes-a resident of the neighboring apartment-arrived on the scene. Rhodes told the officers his roommates had informed him a shooting had occurred in the apartment. Rhodes gave the officers permission to search the apartment. The officers discovered two men in an upstairs bedroom, both of whom had been shot. Matthew Gibson-who was lying on the floor-was dead. A forensic pathologist later testified Gibson died from multiple gunshot wounds, including one to the head and two to his abdomen. Officers recovered a .357 caliber revolver resting on the floor next to Gibson, which was later identified as his revolver. The revolver had one empty cartridge casing in it, while the remaining cartridges were loaded. Leland Pruneda was lying on the bed. Pruneda had been shot in the back of the head but was still alive and conscious. Officers located a .40 caliber semiautomatic handgun resting on the bed next to Pruneda. The gun's magazine contained loaded rounds, but the chamber was empty. Officers later recovered several .32 caliber shell casings from the bedroom. After calling for medical personnel, an officer tried to question Pruneda, but he was too disoriented to give an account of what happened. Pruneda was transported to the hospital for treatment. According to Schierbaum, he arrived at the apartment earlier that day around 7 p.m. to buy a gram of marijuana from Nick Yanos. Schierbaum entered the apartment through the unlocked front door and went upstairs to Yanos' bedroom, where Yanos typically sold marijuana. Schierbaum testified Yanos usually left the front door unlocked. A couple minutes after he arrived, two other individuals-Bryce Meyn and Brandon Eberth-arrived to buy marijuana from Yanos. All four men smoked some marijuana together. Pruneda and Gibson then arrived together, and all six of them congregated in Yanos' bedroom. The six men knew each other from high school and were cordial with each other. A few minutes later, Schierbaum left with his marijuana through the front door where he was confronted by Smith about the vehicle parked in Smith's spot. At this point, five people were in the bedroom-Pruneda, Gibson, Eberth, Meyn, and Yanos. Not long after Schierbaum left, Eberth heard the footsteps of somebody walking up the apartment stairs. Eberth and Meyn testified a black male wearing a ski mask and brandishing a pistol ascended the stairs. He pointed the pistol at the group and told them to get on the ground. Eberth-assuming they were being robbed-went to the ground, pulled out his wallet, and held it out for the man. Meyn also went to ground. Several shots were fired, and the assailant fled the apartment. Pruneda remembered hearing someone tell them to "get the fuck down," and he looked right before being shot in the back of his head. While at the hospital the following day, Pruneda told an officer a single black male wearing a ski mask entered the apartment and shot him during the course of a robbery. After the assailant fled, Gibson was hunched over by a dresser groaning and bleeding. Pruneda was also injured and bleeding, though he was talking. Afraid, Meyn, Eberth, and Yanos left the apartment in a hurry. Yanos took his marijuana with him. As the three men exited the apartment, they passed Smith and Hunter, who were yelling that they had called the police. The three men loaded into Eberth's vehicle and left. Yanos threw his marijuana out of the car, and they eventually returned to the apartment and spoke with the police officers who were present when they arrived. At this point in time, law enforcement did not have a lead on the shooter's identity. But on January 14, 2013, officers received a phone call from Beau Barger who claimed he had information related to the shooting. Barger implicated his coworkers, Marcus Butler and Tyler Jewell. Kyle Cole, another coworker, later provided law enforcement with corroborating information. The State charged Butler with one count each of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The district court held a three-day jury trial. The State called 16 witnesses to testify, including Schierbaum, Meyn, Eberth, Pruneda, Cole, Barger, Smith, and Hunter. Jewell, who claimed to have been Butler's accomplice, also testified for the State. Barger told the jury he, Butler, Jewell, and Cole worked in the automotive detail department at Zeck Ford-a car dealership in Leavenworth, Kansas. Barger knew Yanos and those present in the apartment on January 9, 2013, from high school. He also knew Butler purchased marijuana from Yanos. About one month before the shooting, Butler told Barger he was upset with a purchase from Yanos and he wanted to rob Yanos. Barger advised against doing so, believing it would be pointless. About one week before the shooting, Butler again approached Barger and said he wanted to rob Yanos. On the night of the shooting, Barger claimed he had learned about the events through Cole. The next morning at work, Butler pulled Barger into a room and told him he had shot "him." By this time, Barger knew Gibson was dead. Butler told Barger that after he entered the house, he found four or five people in a room, told everyone to get down, and when he heard shots and saw flashes, Butler began shooting until he "[e]mptied the clip." Butler allegedly warned Barger to not tell anyone else about the shooting. Because he was afraid of what Butler might do to him, Barger waited a few days before calling the police. Cole told the jury that about one month before the shooting, Butler approached him looking for someone who sold marijuana. Cole purchased marijuana from Yanos, so he referred Butler to Yanos. Like Barger, Cole knew Yanos and those present in the apartment from high school. Cole knew Butler had purchased marijuana from Yanos "a couple times." Later, Butler approached Cole four or five times and asked Cole to help him rob Yanos. Butler wanted to know how much money Yanos kept on him and whether he had any guns. According to Cole, he refused to help Butler and told Butler not to rob his friends. On the day of the shooting, Jewell warned Cole not to go to Yanos' house that evening because Butler was "gonna run up in there." Cole claimed he thought Jewell was joking. Later that night, Cole received a frantic phone call from Jewell's phone. Jewell told Cole: "[W]e were not there tonight ... you don't know anything. If you say anything, we will find you." Butler then came on the line and told Cole: "We were not there tonight, you don't know anything. There was no evidence tracing back to him." Cole claimed Butler threatened to find him and "beat [his] ass" if he told anybody it was them. Butler also asked Cole to tell him where he and Barger were, presumably because they were the only ones who knew about Butler's plan to rob Yanos. Two days later, Cole returned to work where Butler pulled him aside to a break room to have a private conversation. Butler told Cole "he ran up in there and they pulled a gun out so he just started shooting." Butler allegedly told Cole there was no evidence linking him to the crime, only he and Barger could implicate him, and Butler wanted to "make sure [they] would keep [their] mouths shut." Cole believed Butler was trying to intimidate him. The conversation concluded when their boss entered the room. Days later, Cole received a phone call while at work from a number he did not recognize. Cole claimed he answered the call over the speakerphone while Jewell was working next to him. It was a police detective who asked him to come to the police department for questioning. After Cole hung up, he claimed Jewell "started freakin' out" and told Cole that he could not go to the police department. Jewell later denied ever overhearing a phone call. Cole claimed Jewell then left work to pick up Butler and bring him back to work. When Cole left work, he discovered Butler and Jewell waiting by his vehicle in Jewell's pickup truck. They instructed Cole to get into the truck, and once he was inside, they told him, "[Y]ou can't go in there, you can't say shit, you don't know anything. Where's [Barger]? Call [Barger], I need to know where [Barger] is." Cole told them he would remain silent, but after he exited the truck, Cole went to the police station and gave a statement. Jewell was the State's final witness. He testified pursuant to a plea agreement. The State originally charged Jewell with the same counts as Butler-first-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. In exchange for his testimony, the State amended the charges to one count of second-degree murder, to which Jewell pled guilty. Jewell bought marijuana from Yanos and knew Butler purchased marijuana from Yanos on a weekly basis. Jewell would occasionally accompany Butler to Yanos' apartment so they could both buy marijuana. Jewell and Butler were friendly with each other and would hang out outside of work. Shortly before the shooting, Jewell heard Butler talking to Cole and Barger about how Yanos was "short[ing]" him on marijuana. Butler thought Yanos was selling him "shake weed" instead of "solid nuggets." The afternoon of the shooting, Jewell and Butler spoke on the phone about going to Yanos' apartment and robbing him of his marijuana and money. Butler did not own a vehicle at the time, so he asked Jewell to drive him to Yanos' apartment. Around 4 or 5 p.m. that day, Jewell spoke with Butler to let him know that he would help with the robbery. Jewell testified he agreed to help Butler because he wanted to scare Yanos. To him, Yanos "was a punk kid selling weed," and he wanted to "bring him down a notch." After Butler finished work around 6:45 or 7 p.m., Jewell picked him up from the dealership. From there, Jewell drove them to Yanos' apartment. On the way there, they stopped at a gas station, and Butler paid for Jewell's gas in exchange for driving him to the apartment. Butler was wearing black jeans, a black hoodie, black and white shoes, and he had a ski mask rolled up on the top of his head. On the drive to the apartment, Butler and Jewell discussed their plan. They decided to both enter the apartment; Butler was supposed to go upstairs and rob Yanos while Jewell remained downstairs to keep a lookout. Jewell noticed on the ride to the apartment Butler had a silver and black handgun in his lap. When they arrived, Jewell parked down the street, so Yanos could not see his truck. According to Jewell, they waited in the truck until they received a text message from Cole letting them know Yanos was home. While it was dark, Butler and Jewell exited the truck and walked to Yanos' apartment. Butler entered the front door-which was unlocked-and Jewell followed behind him. As they entered the front door, Butler pulled the ski mask down to cover his face. Some of Butler's skin was visible through the mouth and eye holes of the mask. Both Meyn and Eberth told the jury they could see the color of the shooter's skin from around the openings in the ski mask. Jewell, who was unarmed, checked the downstairs living room to make sure nobody was present and then remained by the front door. Butler walked up the stairs with the gun in his hand, which Jewell saw Butler carrying when they entered the building. As he ascended the stairs, Jewell heard Butler cock the weapon and yell for everyone to get on the ground. He then heard feet stomping followed by at least 10 gunshots, at which point Jewell fled for the truck. Jewell heard Butler running behind him, and when they reached the truck, Jewell drove them to an apartment in Kansas City, Missouri, near the Sprint Center. While Jewell was driving, Butler told him what had happened: "[W]hen he went up the stairs, the dude stood up and walked towards him and he pushed him and he grabbed some dude and put him up against the wall. Out of the corner of his eye he saw a dude stand up with his gun to shoot at him and he said he missed, that's when he grabbed him and started shooting him." Butler also told Jewell when he fired his gun, he "didn't miss." While on their way to the apartment, Jewell called Cole from his cell phone. Butler also spoke with Cole, but Jewell could not recall the details of what was said. On cross-examination, Jewell denied ever threatening Cole or Barger. Once at the apartment, they disposed of their belongings. Jewell saw Butler place the gun into a bag. They remained at the apartment for about half an hour and then returned to Leavenworth. Jewell dropped Butler off at his apartment and went home. Jewell went to work the next day, where he spoke with both Cole and Barger. Jewell claimed he simply apologized to them. After Cole received a call from the police, Jewell recalled speaking with Cole and Butler in his vehicle outside of work. Not long after, Jewell received a phone call from the police, asking him to come to the station for questioning. He then had his girlfriend drive him to the police station where he waived his Miranda rights and confessed. Following Jewell's testimony, the State rested. Butler moved for a directed verdict, which the court denied. Butler rested without presenting any evidence. The jury ultimately found Butler guilty as charged. The court did not poll the individual jurors, but asked the jury, "[S]o say you all?" The jury responded, "Yes." The day after Butler was convicted, his trial counsel filed a motion for new trial and memorandum in support, alleging several trial errors. Over two weeks later, Butler submitted a motion for ineffective assistance of counsel, asserting several deficiencies in his trial counsel's performance. Nearly one month later, Butler filed a pro se motion asking for a new trial, in which he primarily argued his trial counsel was ineffective for not calling an alibi witness. On November 24, 2014, the district court held a preliminary hearing on the motions. The court stated it had received "a lot of correspondence" from Butler claiming he was unhappy with his trial counsel. Butler told the court he had communication issues with counsel throughout trial and claimed his girlfriend, Erin Davis, was "constantly trying to get in contact with him" and would have provided him with an alibi. Thereafter, the court allowed trial counsel to withdraw and appointed new counsel. Nearly eight months later, Butler's new counsel filed an "amended/supplemented motion for new trial." The motion incorporated the arguments raised by Butler's trial counsel and further argued trial counsel was ineffective (1) by failing to investigate the presence or absence of DNA and other forensic evidence at the crime scene; (2) by neglecting to subpoena phone records and time cards from the dealership; (3) by failing to investigate a gun once located in a Leavenworth pawn shop that Butler believed may have belonged to the actual shooter; (4) by not calling his girlfriend as an alibi witness; and (5) by failing to generally investigate Butler's case. The district court conducted an evidentiary hearing, during which Butler's trial counsel testified. Following the testimony, Butler's new counsel also advised the court Butler believed his "uncharged bad acts" of the unsuccessful solicitations of and threats toward Barger and Cole "should not have been brought up." The court ultimately denied Butler's motion for new trial. It first outlined the evidence presented at trial and determined there was sufficient evidence to support each of Butler's three convictions. Next, the court found Butler did not provide his trial counsel with an alibi witness and trial counsel had numerous contacts and visits with Butler. The court dismissed Butler's concerns over potential DNA evidence because his position at trial was that the State could not provide any DNA or other physical evidence tying him to the shooting. It further reasoned because there was testimony Butler had previously been in the apartment to purchase marijuana, trial counsel understandably would not want to search for and possibly unearth Butler's DNA in the apartment. The court found the remaining information requested by Butler irrelevant. Lastly, the court held a limiting instruction regarding Butler's other bad acts was not warranted because his unsuccessful solicitation of and threats to Cole and Barger were "part and parcel" of the events that occurred that day. Immediately thereafter, the district court sentenced Butler to life in prison without the possibility of parole for 20 years for the first-degree felony murder and imposed consecutive 32-month sentences for the attempted aggravated robbery and conspiracy to commit aggravated robbery. The court also imposed lifetime postrelease supervision. Butler timely appealed his convictions and sentence to this court. See K.S.A. 2012 Supp. 22-3601(b)(3) (providing for direct appeal to the Supreme Court from a district court's final judgment when a maximum sentence of life imprisonment has been imposed). ANALYSIS K.S.A. 2012 Supp. 21-5302 does not set forth alternative means for committing an overt act in furtherance of a conspiracy. Butler first argues his conviction for conspiracy to commit aggravated robbery must be reversed because there was insufficient evidence to support a finding of guilt on each of the various alternative means for committing the overt act in furtherance of the conspiracy. "Alternative means issues arise when the statute and any instructions that incorporate it list distinct alternatives for a material element of the crime." State v. Sasser , 305 Kan. 1231, 1239, 391 P.3d 698 (2017) ; State v. Brown , 295 Kan. 181, 184, 284 P.3d 977 (2012) ("We hold that a statute-and any instruction that incorporates it-must list distinct alternatives for a material element of the crime, not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement."). "Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of the factual circumstances that would prove the crime." State v. Foster , 298 Kan. 348, Syl. ¶ 4, 352, 312 P.3d 364 (2013). If this is an alternative means case, we must conduct what we have termed a "super-sufficiency" analysis. That is, sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt. Brown , 295 Kan. at 188, 284 P.3d 977 ; see State v. Bolze-Sann , 302 Kan. 198, 208, 352 P.3d 511 (2015) (" ' " '[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.' " ' "). But if the case does not involve alternative means, the question of jury unanimity is not implicated. See State v. Swint , 302 Kan. 326, 336, 352 P.3d 1014 (2015). Therefore we must initially consider whether the jury was ever presented with an alternative means case. The determination of whether a case involves alternative means is usually a question of statutory interpretation subject to unlimited review. See State v. Williams , 303 Kan. 750, 757, 368 P.3d 1065 (2016). The rules of statutory interpretation and construction are well known: "The touchstone of statutory construction is legislative intent, and to divine this intent we first examine a statute's plain language to determine whether it describes alternative means by listing 'alternative distinct, material elements.' The legislature typically signals its intent to create an alternative means by 'separating alternatives into distinct subsections of the same statute.' [ Citations omitted.]" 303 Kan. at 757, 368 P.3d 1065. Kansas law defines conspiracy as "an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator." K.S.A. 2012 Supp. 21-5302(a). Conspiracy is comprised of two elements: " '(1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.' " State v. Hill , 252 Kan. 637, 641, 847 P.2d 1267 (1993). Notably, the statute does not list alternative ways a fact-finder could conclude the defendant committed an overt act in furtherance of the conspiracy; it simply states a conviction cannot occur unless an overt act is alleged and proved. Indeed, the language upon which Butler bases his alternative means claim does not appear in K.S.A. 2012 Supp. 21-5302. "That alone indicates the legislature never intended for cases like [defendant's] to be alternative means cases." Williams , 303 Kan. at 758, 368 P.3d 1065. Instead, the Legislature has seen fit to leave the question of what constitutes an overt act to the judicial process. See, e.g., State v. Mays , 277 Kan. 359, 385, 85 P.3d 1208 (2004) (holding there was sufficient evidence to find the defendant committed overt acts in furtherance of a conspiracy to commit first-degree murder by obtaining a weapon and driving around looking for victims). Thus looking solely to the plain language of K.S.A. 2012 Supp. 21-5302, we conclude the statute does not set forth alternative means for committing an overt act. See State v. Cottrell , 53 Kan. App. 2d 425, 433, 390 P.3d 44 ("A plain reading of the language in the conspiracy statute reflects that the legislature did not intend to create more than one distinct way in which a defendant can commit an overt act."), rev. granted 306 Kan. 1322 (2017). Butler also directs our attention to Instruction 19, which read: "The defendant is charged in Count III with Conspiracy to Commit Aggravated Robbery. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: "1. The defendant agreed with another person to commit or assist in the commission of aggravated robbery. "2. The defendant did so agree with the intent that aggravated robbery be committed. "3. The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan. "4. This act occurred on or about the 9th day of January, 2013, in Wyandotte County, Kansas." (Emphasis added.) The complaint alleged the same series of overt acts. Butler isolates the particular phrase, "discussing and planning the aggravated robbery," arguing this alone could never-as a matter of law-constitute an overt act in furtherance of a conspiracy. See State v. Crockett , 26 Kan. App. 2d 202, Syl. ¶ 6, 205, 987 P.2d 1101 (1999) (reversing a defendant's conviction for conspiracy to commit first-degree murder where the complaint only listed "planning on the time, location and manner of killing" as the overt act in furtherance of the conspiracy). Butler begins his argument by claiming the "district court instructed the jury that to be guilty, Mr. Butler, or any other party to the agreement, committed any of the following overt acts: by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan." (Emphasis added.) Butler wrongly characterizes the court's instructions. The court told the jury it must find "each of" the elements must be proved, which included: "The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived[sic ] at the location, and carried[sic ] out the plan." Appellate courts consider " 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' " State v. Hilt , 299 Kan. 176, 184-85, 322 P.3d 367 (2014). When looking at the third element in its entirety, Butler fails to recognize "discussing and planning" is only one part of the entire series of acts alleged by the State, which is connected by the coordinating conjunction, "and." Therefore in order to find Butler guilty of conspiracy to commit aggravated robbery, the jury had to find he or Jewell discussed and planned the aggravated robbery, and arrived at the location, and carried out the plan. These are not alternative means but simply a sequence of events which collectively make up the alleged overt act. Butler relies on State v. Enriquez , 46 Kan. App. 2d 765, 266 P.3d 579 (2011), in which a jury found a defendant guilty of conspiracy to commit first-degree murder. The district court in that case instructed the jury it could find Enriquez or any party to the agreement acted in furtherance of the agreement by: "a. Purchasing tools at two locations in Dodge City, Kansas; or "b. Requesting additional members to be part of the plan; or "c. That the defendant, Noel Trejo-Medrano, and Joel Mendoza-Soto traveled from Nebraska to Dodge City, Kansas, to put the plan into place[.]" 46 Kan. App. 2d at 772-73, 266 P.3d 579. No unanimity instruction was given. After noting that no other Kansas appellate court had addressed this issue, the Court of Appeals held that the jury was presented with three alternative means by which Enriquez or another party could have committed an overt act. Enriquez , 46 Kan. App. 2d at 775-76, 266 P.3d 579. Nonetheless, the panel affirmed Enriquez' conviction because it found beyond a reasonable doubt a rational juror could find each overt act occurred. 46 Kan. App. 2d at 776-77, 266 P.3d 579. In State v. Smith , 268 Kan. 222, 230, 993 P.2d 1213 (1999), we expressed concern when a jury is given a list of possible overt acts-any of which may satisfy the overt act requirement-"a danger could exist that the jury was not unanimous as to the act or acts it relied upon for the conviction." In Smith , however, we found no error where the jurors were individually polled, and the jury affirmed it was unanimous as to the particular overt act. 268 Kan. at 230, 993 P.2d 1213. But resolving Butler's claim does not necessitate an analysis of whether Enriquez and Smith remain valid after our decision in Brown , 295 Kan. 181, 284 P.3d 977, in which we established a statutory test for determining if alternative means existed. Butler's case presents a distinguishable set of facts. As previously discussed, the State alleged a string of connected events to satisfy the overt-act element. Accordingly, we hold this is not an alternative means case and the super-sufficiency standard does not apply. Butler nonetheless argues there was insufficient evidence to support the overt act (comprised of a sequence of events) alleged by the State. When the defendant challenges the sufficiency of the evidence supporting a conviction, the standard of review is whether, after reviewing all the evidence in a light most favorable to the State, the appellate court is convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. In making such a determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Brown , 305 Kan. 674, 689, 387 P.3d 835 (2017). At trial, Jewell testified he and Butler spoke on the phone in the afternoon of January 9, 2013, about robbing Yanos of his marijuana and money. Shortly thereafter, they spoke again on the phone, and Jewell told Butler he would assist in the robbery. And while they were travelling to Yanos' apartment, Butler and Jewell hatched their plan-Butler would go upstairs and rob Yanos while Jewell remained downstairs as the lookout. Jewell then provided the jury with detailed testimony of the botched robbery and the events after they fled the apartment. Barger and Cole testified Butler confessed to them about the events of the failed robbery. Viewing the evidence in a light most favorable to the State, there is sufficient evidence to support the series of overt acts alleged. The district court correctly instructed the jury that it had to find Butler committed conspiracy to commit aggravated robbery knowingly rather than intentionally. Butler next challenges the jury instructions for conspiracy to commit aggravated robbery. When a jury instruction is alleged to be erroneous, "(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." State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012). Because Butler is asserting an instruction error for the first time on appeal, the failure to give a legally and factually appropriate instruction is reversible only if the failure was clearly erroneous. See K.S.A. 2012 Supp. 22-3414(3) ; State v. Solis , 305 Kan. 55, 65, 378 P.3d 532 (2016). The district court instructed the jury regarding conspiracy to commit aggravated robbery as follows: "INSTRUCTION NO. 19 "The defendant is charged in Count III with Conspiracy to Commit Aggravated Robbery. The defendant pleads not guilty. "To establish this charge, each of the following claims must be proved: "1. The defendant agreed with another person to commit or assist in the commission of aggravated robbery. "2. The defendant did so agree with the intent that aggravated robbery be committed. "3. The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan. "4. This act occurred on or about the 9th day of January, 2013, in Wyandotte County, Kansas. "The definition of Aggravated Robbery, the crime charged to be the subject of the conspiracy, is set forth in Instruction No. 18." (Emphasis added.) "INSTRUCTION NO. 20 "The State must prove that the defendant committed the crime of Conspiracy to Commit Aggravated Robbery, knowingly . "A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about." (Emphasis added.) "INSTRUCTION NO. 21 "A person may be convicted of a conspiracy only if some act in furtherance of the agreement is proved to have been committed. An act in furtherance of the agreement is any act knowingly committed by a member of the conspiracy in an effort to effect or accomplish an object or purpose of the conspiracy. The act itself need not be criminal in nature. It must, however, be an act which follows and tends towards the accomplishment of the object of the conspiracy. The act may be committed by a conspirator alone and it is not necessary that the other conspirator be present at the time the act is committed. Proof of only one act is sufficient." (Emphasis added.) "INSTRUCTION NO. 25 "AS USED IN THESE INSTRUCTIONS, THE FOLLOWING WORDS AND PHRASES ARE DEFINED AS INDICATED: "An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act. "A conspiracy is an agreement with another or other persons to commit a crime or to assist in committing a crime, followed by an act in furtherance of the agreement. "The agreement may be established in any manner sufficient to show understanding. It may be oral or written, or inferred from all of the facts and circumstances." Believing the jury should have been instructed that it had to find he committed the conspiracy to commit aggravated robbery "intentionally" rather than "knowingly," Butler contends the instruction was not legally appropriate because it impermissibly lowered the State's burden of proof. We exercise plenary review over such claims. See Plummer , 295 Kan. at 163, 283 P.3d 202. A trial court has the duty to "define the offense charged in the jury instructions, either in the language of the statute or in appropriate and accurate language of the court" and "inform the jury of every essential element of the crime that is charged." State v. Richardson , 290 Kan. 176, 181, 224 P.3d 553 (2010). This duty arises from the right to public trial guaranteed by the state and federal constitutions. See United States v. Gaudin , 515 U.S. 506, 509-10, 115 S.Ct. 2310, 132 L.Ed. 2d 444 (1995) (stating that the Fifth and Sixth Amendments "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"); Kan. Const. Bill of Rights, §§ 5, 10 ("The right of trial by jury shall be inviolate.") ("In all prosecutions, the accused shall be allowed ... to have ... a speedy public trial by an impartial jury."). We examine jury instructions as a whole to determine whether they fairly state the applicable law or reasonably misled the jury. Hilt , 299 Kan. at 184-85, 322 P.3d 367. At the outset, we note that Instruction No. 19 comports with PIK Crim. 4th 53.030 (2014 Supp.) and Instruction No. 25 matches PIK Crim. 4th 53.060 (2012 Supp.). Instruction No. 21 matches PIK Crim. 4th 53.040 (2012 Supp.)-which ascribes a knowing mental state to the commission of an act in furtherance of the conspiracy. "We strongly recommend the use of PIK instructions, which knowledgeable committees develop to bring accuracy, clarity, and uniformity to instructions." State v. Barber , 302 Kan. 367, 377-78, 353 P.3d 1108 (2015). Aggravated robbery is defined as "knowingly taking property from the person or presence of another by force or by threat of bodily harm to any person" who "(1) [i]s armed with a dangerous weapon; or (2) inflicts bodily harm upon any person in the course of such robbery." K.S.A. 2012 Supp. 21-5420(a) - (b). Conspiracy is defined in relevant part as: "(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator. "(b) It is immaterial to the criminal liability of a person charged with conspiracy that any other person with whom the defendant conspired lacked the actual intent to commit the underlying crime provided that the defendant believed the other person did have the actual intent to commit the underlying crime." K.S.A. 2012 Supp. 21-5302. The text of the conspiracy statute does not specify a mental state. What is more, mental states necessary to engage in a conspiracy are notoriously difficult to classify: "Although the crime of conspiracy is 'predominantly mental in composition,' there has nonetheless always existed considerable confusion and uncertainty about precisely what mental state is required for this crime. ... [T]his is undoubtedly attributable to two factors: (1) it is conceptually difficult to separate the mental state requirement from the agreement which constitutes the act; and (2) as with all inchoate crimes, it is necessary to take into account the elements of the crime which is the objective." 2 LaFave, Substantive Criminal Law, Acts and Mental State § 12.2(c) (3d ed. 2018). LaFave divides the first element of conspiracy-an agreement between two or more persons to commit or assist in committing a crime-into (1) the intent to agree and (2) the intent to achieve a certain objective, which are often blurred together. LaFave, § 12.2(c)(1)-(2); see 15A C.J.S., Conspiracy § 122 ("There are two aspects of knowledge involved in a conspiracy: knowing participation or membership in the scheme charged and some knowledge of the unlawful aims and objectives of the scheme."). Confusion may arise when "the objective of the conspiracy, if achieved, is itself a crime, for under such circumstances the mental state for that crime must also be taken into account" because "a 'conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.' " LaFave, § 12.2(c)(2). Butler argues that "intentionally" is the proper culpable state for conspiracy. To support his claim, he points us to a body of caselaw indicating conspiracy is a specific intent crime. This holding arose from our decision in State v. Campbell , 217 Kan. 756, 770, 539 P.2d 329 (1975). In that case, this court considered whether the conspiracy statute was unconstitutionally vague for failing to require an intent to commit the offense. 217 Kan. at 769, 539 P.2d 329. The conspiracy statute at issue in Campbell is substantively the same as the current one. Compare K.S.A. 21-3302 (Weeks) with K.S.A. 2012 Supp. 21-5302(a). In Campbell , we stated: "As a general rule a specific intent is essential to the crime of conspiracy ( 16 Am. Jur. 2d, Conspiracy, § 9 ). The specific intent required divides into two elements: (a) The intent to agree, or conspire, and (b) the intent to commit the offense (Harno, 'Intent in Criminal Conspiracy' [1941], 89 U. Pa. L. Rev. 624, 631). Defendants concede that the act of conspiring being volitional includes within itself the intent to agree ('Developments in the Law-Criminal Conspiracy,' 72 Harv. L. Rev. 920, 935). They urge that the second intent necessary is not provided for in the present statute. In 1, Anderson, Wharton's Criminal Law and Procedure, § 85, it is stated: 'Analytically a dual mental state is present in the case of conspiracy. There is both (1) the intent or agreement of the parties to act together, and (2) the intent to commit an unlawful act or to commit a lawful act by unlawful means, or to do an act jointly which the law makes illegal when done by two or more persons. ... Because of the obvious practical difficulty of proving the existence of the two distinct intents, the courts generally do not make any distinction between them. Because the intent to conspire is also a criminal act, there is also little distinction made between intent and act, except as reference is made to an overt act in addition to the formation of the conspiracy agreement.' (p. 183.) "Defendants' basic proposition is that the conspiracy statute does not require an intent and one may unintentionally violate the statute's proscription and be found guilty. " K.S.A. 21-3302 provides that a conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. The essence is the agreement to commit a crime, not simply to commit a particular act, as to drive an automobile at a certain time and place. Clearly a mental state is contemplated. An individual might agree to perform a certain act but it is difficult to conceive how one could unintentionally agree to commit a crime. K.S.A. 21-3201 provides that criminal intent is an essential element of every crime and may be established by proof that the conduct of the accused was willful. Willful conduct is defined as knowing and intentional and not accidental . Therefore, an individual could not be found to have unintentionally violated the statute. Full protection against this occurrence will be afforded at trial by instructions to the jury on the factual issue of intent. K.S.A. 21-3302 is not unconstitutionally vague and indefinite." ( Emphasis added.) 217 Kan. at 770-71, 539 P.2d 329. The Campbell court held conspiracy required intent but defined such intent in terms of K.S.A. 21-3302 (Weeks) -conduct that is willful, knowing, or intentional and not accidental. Prior to July 1, 2011, our criminal code equated "knowing" with "intentional." K.S.A. 21-3201. The culpability statute that Campbell relied upon provided: "(1) Except as provided by sections 21-3202, 21-3204, and 21-3405, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner. "(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms 'knowing ,' 'intentional ,' 'purposeful,' and 'on purpose' are included within the term 'willful.' " (Emphasis added.) K.S.A. 21-3201 (Weeks). As part of the larger recodification of our criminal code in 2011, the Kansas Legislature largely adopted the Model Penal Code's definitions for culpable mental states. See State v. Thach , 305 Kan. 72, 83, 378 P.3d 522 (2016) ; American Law Institute, Model Penal Code § 2.02(2) (1985); Kansas Criminal Code Recodification Commission, 2010 Final Report to the Kansas Legislature, Vol. 1, pp. 21-23 (December 16, 2009). Unlike before, our criminal code now distinguishes between knowing and intentional conduct: "(h) A person acts 'intentionally,' or 'with intent,' with respect to the nature of such person's conduct or to a result of such person's conduct when it is such person's conscious objective or desire to engage in the conduct or cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as 'intentionally' or 'with intent' are specific intent crimes. A crime may provide that any other culpability requirement is a specific intent. "(i) A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent crimes." K.S.A. 2012 Supp. 21-5202. As can be seen by the evolution of our mens rea statutes, the phrases "general intent" and "specific intent" as used in K.S.A. 2012 Supp. 21-5202 do not mean what they once did in Campbell and in other cases where those terms were used with their common law definitions. See State v. Hobbs , 301 Kan. 203, 211, 340 P.3d 1179 (2015) ("[T]he legislature does not intend for 'general intent' to necessarily mean what it once did and that 'knowingly,' as used in [the aggravated battery statute] means that the accused acted when he or she was aware that his or her conduct was reasonably certain to cause the result."). Hence the caselaw description of conspiracy as a specific intent crime has little relevance to the mental state legally required as an element of the crime. Given this, we turn instead to the most determinative factor for consideration-the language of the statute. According to K.S.A. 2012 Supp. 21-5202(a), "Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code." When the statute is silent as to the mens rea required but does not plainly dispense with a mental element, a culpable mental state is still necessary. K.S.A. 2012 Supp. 21-5202(d). Subsection (e) provides in such situations, either "intent," "knowledge," or "recklessness" suffices to satisfy the culpable mental state. And while the conspiracy statute is silent on the applicable mens rea, the robbery statute provides that a defendant must "knowingly" take property from another. K.S.A. 2012 Supp. 21-5420(a) ; see State v. Wilkins , 267 Kan. 355, 364-65, 985 P.2d 690 (1999) (holding that "the overt act alleged for the crime of the conspiracy to commit murder was the murder itself, and the overt act alleged for the commission of aggravated robbery was the aggravated robbery itself"); 15A C.J.S. Conspiracy, § 126 ("The criminal intent necessary to establish conspiracy liability must be the same degree of criminal intent as is necessary for proof of the underlying substantive offense."). Reading these statutes in pari materia , we conclude it was legally appropriate for the court to instruct the jury that it had to find Butler committed the conspiracy to commit aggravated robbery "knowingly." See State v. Nguyen , 304 Kan. 420, 425, 372 P.3d 1142 (2016) ; see also State v. Heironimus , 51 Kan. App. 2d 841, 850, 356 P.3d 427 (2015) (using K.S.A. 2011 Supp. 21-5202 [e] to define the necessary culpable mental state for leaving the scene of an accident); City of Hutchinson v. Bolinger , No. 111689, 2015 WL 3632324, at *3-4 (Kan. App. 2015) (unpublished opinion) (using K.S.A. 2014 Supp. 21-5202 [e] to define the necessary culpable mental state for furnishing alcohol to a minor). The district court did not abuse its discretion by denying Butler's motion for new trial based on ineffective assistance of trial counsel. Butler next claims the district court erred when it denied his motion for new trial based on ineffective assistance of trial counsel. A district court may grant a new trial to a defendant "if required in the interest of justice." K.S.A. 2012 Supp. 22-3501(1). An appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion. State v. Williams , 303 Kan. 585, 595, 363 P.3d 1101 (2016). " 'A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.' " State v. Mattox , 305 Kan. 1015, 1029-30, 390 P.3d 514 (2017). The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The right to counsel applies to state proceedings via the Fourteenth Amendment to the United States Constitution. Miller v. State , 298 Kan. 921, 929, 318 P.3d 155 (2014). The Sixth Amendment guarantees more than the mere presence of counsel; it mandates "reasonably effective assistance" of counsel. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984) ; see also Chamberlain v. State , 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland ). " 'The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation omitted.] " '[Under the second prong of the test for ineffective assistance of counsel], the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. [Citations omitted.]' " State v. Schaefer , 305 Kan. 581, 596-97, 385 P.3d 918 (2016). In Butler's case, the district court conducted an evidentiary hearing on the motion for new trial. Under these circumstances, we review the district court's underlying factual findings using a substantial competent evidence standard and review the legal conclusions based on those facts de novo. State v. Johnson , 304 Kan. 924, 950, 376 P.3d 70 (2016). " 'Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion.' " State v. Talkington , 301 Kan. 453, 461, 345 P.3d 258 (2015). Before considering the merits of Butler's claim, we note the district court had jurisdiction-so we have jurisdiction-to consider Butler's claim that trial counsel provided ineffective assistance of counsel even though he filed his pro se motion for new trial beyond the 14-day limit in K.S.A. 2012 Supp. 22-3501(1). See State v. Reed , 302 Kan. 227, 236, 352 P.3d 530 (2015) ("[U]ntimeliness of a motion for new trial is a procedural flaw that may affect the defendant's right to counsel; but it does not deprive the district court or a later appellate court of jurisdiction."); see also State v. Moody , 272 Kan. 1199, 1202, 38 P.3d 659 (2002) (stating that if a district court lacked jurisdiction to enter an order, an appellate court cannot acquire jurisdiction over the subject matter on appeal). Butler claims his trial attorney's performance was so deficient that he was denied a fair trial. "It is within the province of a lawyer to decide what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions." Thompson v. State , 293 Kan. 704, 716, 270 P.3d 1089 (2011). " '[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' " State v. Coones , 301 Kan. 64, 74-75, 339 P.3d 375 (2014) (quoting Strickland , 466 U.S. at 690-91, 104 S.Ct. 2052 ). Yet, it is inappropriate to argue that counsel's alleged strategic decisions are insulated from review when counsel lacks the information necessary to make an informed decision due to an insufficient investigation. Wilkins v. State , 286 Kan. 971, 982, 190 P.3d 957 (2008). Butler bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy. See Sola-Morales v. State , 300 Kan. 875, 888, 335 P.3d 1162 (2014). Butler claims his trial counsel failed to: (1) arrange for his girlfriend to provide an alibi defense at trial; (2) contact the pawn shop in Leavenworth to investigate a gun that may have been involved in the shooting; (3) subpoena Butler's phone records; and (4) pursue forensic evidence at the crime scene. We consider each claim in turn. First, Butler claims his trial counsel failed to contact his girlfriend, Erin Davis, who would have provided him with an alibi defense at trial. On September 3, 2015-the day of the evidentiary hearing on the motion for new trial-Butler filed with the court a notarized statement from Davis claiming Butler was with her on the night of the shooting. The document was notarized on August 13, 2015-nearly 10 months after Butler's trial. The statement did not indicate whether Davis had provided this information to Butler's trial counsel prior to trial. When Butler's new attorney confronted trial counsel during the evidentiary hearing with the affidavit, the following interaction took place: "Q.... And if she's giving a statement at this point of where he was during the time-"A. Um-hum "Q. -would it have been a good idea to talk to her? "A. She never mentioned this. This was filed in September? "Q. This statement, no, no. This was just filed today. "A. It was filed today? "Q. Um-hum. "A. Yeah. I mean ... the answer to your question is she never brought this up. She never once contacted me saying that this is all wrong. He was with me at the time of the homicides, nothing like that. And there's nothing in the discovery to suggest that. This is news to me." At other times during the hearing, trial counsel unequivocally stated Butler never provided him with an alibi prior to trial. The district court made a factual finding that Butler's girlfriend did not allege an alibi defense until after Butler was convicted. This fact differentiates Butler's case from the two cases on which he relies- State v. James , 31 Kan. App. 2d 548, 67 P.3d 857 (2003), and State v. Sanford , 24 Kan. App. 2d 518, 948 P.2d 1135 (1997). In both James and Sanford , trial counsel was made aware of potential alibi evidence prior to trial, but neither attorney could properly explain after the fact why each did not pursue the alibi evidence. Butler simply asks us to reweigh his trial counsel's credibility against Davis' and find Davis to be more believable. Appellate courts do not do such things. See State v. Davis , 306 Kan. 400, 408-09, 394 P.3d 817 (2017) (" 'Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.' "). There is substantial evidence to uphold the court's decision. Butler also contends his trial counsel neglected to investigate a gun that was at one time located in a Leavenworth pawn shop. Butler evidently believes this gun was used by the true shooter. This topic was also discussed during the evidentiary hearing: "Q. There was also a ... question about a gun and a pawn shop, do you recall that? "A. Yes. "Q. Okay. And you were provided with all the discovery in this case, is that correct? "A. Yes, sir. "Q. And one of those was a statement by a man named Kris Dean, is that right? "A. Yes, sir. "Q. Kris Dean was never called as a witness either from the State or from you? "A. No. "Q. Okay. Why did you not look into that or do you recall anything about that? "A. Well, it was irrelevant again. If I recall, Kris Dean said that he had a firearm, that it was pawned by his fiancee and that they then got it out of pawn and that he kept it in his car. So I didn't see any relevance that a gun being at a pawn shop has anything to do with anything, but that he kept it in his car and that somebody must have taken it out of his car. "Q. And, at some point in time, that got stolen? "A. That's my understanding. That's what ... he said he did report that ... theft. "Q. Was there ever any indication throughout the evidence or your review of that evidence to show that gun or Mr. Dean was involved in the homicide? "A. No, not at all. "Q. Now, did Mr. Butler ever tell you anything about Mr. Dean being the one who performed the homicide? "A. No. Marcus said he had no-he claimed he had no idea who did the homicide." Butler's brief cursorily argues that trial counsel's decision to not investigate was unreasonable under the circumstances. But the extent of his argument is trial counsel acted unreasonably simply because he was aware of this gun. Otherwise, he fails to support his claim. See State v. Bowen , 299 Kan. 339, Syl. ¶ 10, 323 P.3d 853 (2014) ("When a litigant fails to adequately brief an issue it is deemed abandoned."). Nonetheless, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Coones , 301 Kan. at 74, 339 P.3d 375. There is substantial evidence to support the district court's finding that this line of investigation was irrelevant to Butler's defense. Lastly, Butler argues his trial counsel acted unreasonably by not subpoenaing his phone records and not pursuing forensic evidence at Yanos' apartment. Regarding the phone records, trial counsel stated: "A.... I will admit that we talked about the phone records, absolutely. What exactly their usefulness would be, I'm not sure. I don't know if Marcus believed that they would show that-I'm not sure what he-I guess he can testify to that. But it wasn't something that was going to greatly influence the case one way or another or really influence the case at all at least from what he was telling me. "Q. And what kind of phone records was he looking for? Phone calls, text messages, those sort of things? "A. I don't recall. Probably both, but I don't recall specifically what he was looking for. "Q. But at no point in time did he ever tell you what those phone records would show or how it would help his case? "A. He never said anything like get the phone records and you will see that I was not present during the time of the homicide or something like that. He never said anything like that." Trial counsel provided similar reasoning for not pursuing DNA evidence: "Q. One of the other issues that came up was the DNA and the forensic evidence that Mr. Butler was asking you to research? "A. Um-hum. "Q. I believe you said that for your recollection, the only DNA taken from the scene was from the vehicles of the victims, is that correct? "A. That's my recollection. "Q. In fact, there was no DNA taken from the scene? "A. Not that I recall. "Q. There was never any indication through the evidence that the person who committed these crimes, the defendant, was harmed or left any DNA? "A. That was my understanding. "Q. No blood, no injuries, anything of that nature? "A. No. And ... quite frankly, that was our defense. I know during the entire trial, we were harping on that that Marcus wasn't there and you couldn't prove it, that there was no forensic evidence whatsoever. And so not only did ... I believe that the DNA that was taken had nothing to do with Marcus, meaning there was no evidence whatsoever whoever perpetrated these crimes touched those cars, but, number two, I'm not really sure we would want DNA tested anyway because, at best, it's gonna show that Marcus's DNA's not on there. But, again, there's no allegation that whoever did the shooting touched those cars. At worst, it would come back with his DNA on it. So we weren't gonna do your job for you. "Q. And, in fact, that was ... [a] big part of your closing argument was that there was no forensic evidence available that tied the defendant to this crime, is that correct? "A. Yes, sir." The district court ultimately believed Butler's phone records were irrelevant. It also thought it was reasonable for his attorney not to pursue forensic evidence for fear that the defense might unwittingly place Butler at Yanos' apartment. Indeed, there was ample evidence at trial Butler had previously purchased marijuana from Yanos. Jewell testified he and Butler would occasionally go together to Yanos' apartment to purchase marijuana. Thus the district court's reasoning is sound. In a similar fashion, it would make sense for trial counsel to not subpoena Butler's phone records when there was no indication it would support Butler's defense. There was evidence presented at trial that Butler spoke with Jewell over the phone multiple times about robbing Yanos on the day of the robbery. Uncovering evidence corroborating the State's theory certainly would not have been in Butler's best interests. On appeal, Butler neglects to explain how this type of evidence would have advanced his defense. We conclude there was substantial evidence to support the district court's findings. As such, the district court did not abuse its discretion in denying Butler's motion for new trial based on ineffective assistance of counsel. The district court erred by not giving a limiting instruction regarding certain K.S.A. 60-455 evidence, but the error does not constitute clear error. Butler next contends the district court erred by failing to give a limiting instruction regarding three categories of evidence: (1) Butler's prior purchases of marijuana from Yanos; (2) Butler's threats toward Cole and Barger; and (3) Butler's alleged requests of Cole and Barger to help him rob Yanos. Butler concedes, however, he did not request a limiting instruction at trial, nor did he object to the testimony he now claims prejudiced the jury against him. We recently explained the process of review by an appellate court in such situations: "[R]eview of this issue is controlled by K.S.A. 22-3414(3) and the stair-step analytical process set out in State v. Herbel , 296 Kan. 1101, Syl. ¶¶ 7, 8, 299 P.3d 292 (2013), and State v. Williams , 295 Kan. 506, 511, 286 P.3d 195 (2012) ; see also State v. Breeden , 297 Kan. 567, 582, 304 P.3d 660 (2013) (failure to object to the admission of K.S.A. 60-455 [b] evidence does not waive the right to raise on appeal the issue of whether the failure to give a limiting instruction was clearly erroneous). "As Williams articulated, K.S.A. 22-3414(3) creates a procedural hurdle when a party does not object to the failure to give an instruction because the statute establishes a preservation rule for instruction claims on appeal. It provides, in part, that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in the district court. 295 Kan. at 512-13 [286 P.3d 195]. "To establish that the giving or failure to give an instruction was clearly erroneous, the reviewing court must determine whether there was any error at all. This requires demonstrating that giving the proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. Williams , 295 Kan. at 515-16 [286 P.3d 195]. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal. 295 Kan. at 516 [286 P.3d 195]." State v. Burnett , 300 Kan. 419, 445, 329 P.3d 1169 (2014). Prior to trial, Butler filed a motion in limine, seeking to exclude, inter alia , "[a]ny prior or uncharged bad acts unrelated to the crime." During the hearing on the motion, Butler's counsel argued this same evidence was more prejudicial than probative. The State believed this evidence should be admitted because it proved Butler's intent while committing the crimes. The court agreed the evidence went to Butler's intent, determined the evidence was more probative than prejudicial, and found no constitutional violations. But the court neglected to give a limiting instruction at trial. K.S.A. 2012 Supp. 60-455 provides in relevant part: "(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." We have previously explained the analytical steps court are to take when admitting K.S.A. 60-455 evidence: "[T]he court must determine that the evidence is relevant to prove a material fact, e.g. , motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in." State v. Reid , 286 Kan. 494, 503, 186 P.3d 713 (2008). On appeal, Butler does not challenge the admissibility of this evidence. Rather, he argues because the district court did not provide the jury with a limiting instruction explaining the specific purpose for which the evidence was admitted, the jury could have used the evidence to conclude he had the propensity to commit the alleged crimes or crime in general. The purpose of a limiting instruction is to " 'eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime.' " Reid , 286 Kan. at 503, 186 P.3d 713 (quoting State v. Gunby , 282 Kan. 39, 48, 144 P.3d 647 [2006] ); see State v. Davis , 213 Kan. 54, 58, 515 P.2d 802 (1973) (listing three types of prejudice that might result from the use of other crimes evidence). The initial step of our analysis, however, is whether there was any error at all. See Burnett , 300 Kan. at 445, 329 P.3d 1169. To do this, we must question whether this evidence qualifies as K.S.A. 60-455 evidence, which would trigger the need for a limiting instruction. If so, we conduct a clear error analysis to determine whether reversal is necessary. Gunby , 282 Kan. at 58, 144 P.3d 647 ("[A] trial judge should give such a K.S.A. 60-455 limiting instruction, but the failure to do so, though error, will no longer demand automatic reversal. Where the complaining party neither requested the instruction nor objected to its omission, the failure to give the instruction will be reversible only if clearly erroneous."). "This requires us to make a de novo determination of whether we are firmly convinced the jury would have reached a different verdict had a limiting instruction been given." State v. Breeden , 297 Kan. 567, 584, 304 P.3d 660 (2013). Butler takes issue with evidence of his alleged attempts to recruit Barger and Cole. During direct examination, the State asked Cole: "[P]rior to the date of January 9th, had [Butler] asked you a couple times about helping him?" Cole responded: "Yeah, and I just told him no, you're not gonna do that, those are my friends." He later stated during cross-examination that Butler asked him to help rob Yanos four or five times prior to January 9, 2013. Barger testified Butler told him he was upset with a purchase and Butler was either going to get his money back or do something about it. Barger confirmed that Butler "approached [him] about Nick Yanos." Cole also stated Butler threatened him on two occasions: (1) as Butler and Jewell were fleeing from the apartment and (2) again two days later while Cole was at work. Barger testified Butler threatened him the day after the shooting while at work. " K.S.A. 60-455 does not apply if the evidence relates to crimes or civil wrongs committed as a part of the events surrounding the crimes for which [the defendant] was on trial-that is, the res gestae of the crime." State v. King , 297 Kan. 955, 964, 305 P.3d 641 (2013) ; see State v. Peppers , 294 Kan. 377, 389, 276 P.3d 148 (2012) ("Our decision in Gunby eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence."). " 'Res gestae refers to acts that occurred " 'before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.' " ' " State v. McDaniel , 306 Kan. 595, 616, 395 P.3d 429 (2017). Butler alleges that these events-which amount to preparations immediately prior to the crime itself and efforts immediately after the crime to avoid detection-fell within the ambit of K.S.A. 2012 Supp. 60-455. We disagree. Rather, they were clearly part of the res gestae, so intertwined with the botched robbery that they are part of the robbery itself. See State v. Charles , 304 Kan. 158, 175-76, 372 P.3d 1109 (2016) (defendant's comments toward a store employee before he made a criminal threat toward another store employee was not evidence that occurred on another occasion), abrogated on other grounds by State v. Huey , 306 Kan. 1005, 1006, 399 P.3d 211 (2017), petition for cert. filed December 29, 2017; King , 297 Kan. at 963-64, 305 P.3d 641 (holding defendant's threat toward a witness before setting victim's house on fire was not K.S.A. 60-455 evidence); see also Pennsylvania v. Carroll , No. 1930 EDA 2016, 2017 WL 5451753, at *5 (Pa. Super. 2017) (unpublished opinion) ("[T]he threat of retribution would be a part of the history of the case which completes the story and forms part of the natural development of the facts, from robbery to police report, to threat of retribution, to retribution, under the res gestae exception."). Thus we hold that K.S.A. 2012 Supp. 60-455 was not implicated by this evidence. Lastly, Butler argues reversal is warranted because the court did not give a limiting instruction regarding his prior marijuana purchases from Yanos. At trial, Cole testified he had referred Butler to Yanos. Barger told the jury he knew Butler purchased marijuana from Yanos. Jewell testified Yanos was Butler's drug dealer, Butler bought marijuana from Yanos on a weekly basis, and Butler wanted to rob Yanos because Yanos had previously sold him "shake weed" instead of "solid nuggets." Admitting evidence of Butler's drug purchases without an instruction to the jury that it could only consider this as evidence of Butler's motive to rob Yanos was error. See State v. Magallanez , 290 Kan. 906, 919, 235 P.3d 460 (2010) (finding error where the district court gave a "shotgun" limiting instruction for evidence of defendant's prior marijuana sales along with other K.S.A. 60-455 evidence). Yet, the court's failure was not clear error. Butler's use of marijuana was apparent throughout the trial. Jewell testified Butler approached him and asked if he would help him rob Yanos of "his weed and his money." Cole told the jury Butler wanted to know how much marijuana Yanos kept on him at a time. Nearly every witness who interacted with Yanos did so because Yanos sold them marijuana. In sum, we are not firmly convinced the jury would have reached a different result had a limiting instruction been given. See State v. Carapezza , 286 Kan. 992, 1001, 191 P.3d 256 (2008) (concluding the court's failure to give a limiting instruction regarding defendant's prior drug use was not clear error where defendant's drug use was "obvious and referenced throughout the trial"). The prosecutor did not commit error during closing arguments. Butler next contends the prosecutor committed reversible error by referring to his theory of the case as "ridiculous" in the rebuttal portion of closing arguments. After this appeal was docketed but before the briefs were filed, we articulated a new standard for prosecutorial error claims in State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016). Both Butler and the State briefed the issue using only the Sherman rubric. Generally, an opinion changing the law acts prospectively, applying " 'to all cases, state or federal, pending on direct review or not yet final.' " State v. Mitchell , 297 Kan. 118, 124-25, 298 P.3d 349 (2013) (quoting State v. Berry , 292 Kan. 493, 514, 254 P.3d 1276 [2011] ). Thus we apply only the Sherman framework. Sherman directs appellate courts to use a two-step process to evaluate claims of prosecutorial error-simply described as error and prejudice. To determine if the prosecutor erred, "the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial." Sherman , 305 Kan. at 109, 378 P.3d 1060. If the court finds error, the burden falls on the State to demonstrate "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict." Sherman , 305 Kan. 88, Syl. ¶ 8, 378 P.3d 1060. Butler's theory of the case, which he advanced during closing arguments, was that Meyn, Eberth, Schierbaum, Barger, Cole, and Pruneda-as they knew each other from high school-gave false testimony to protect each other. Aside from pointing to inconsistencies in the witnesses' testimony, Butler's trial counsel attacked the State's theory of the case: "Second point, ladies and gentlemen, is that the fact that this story that's being offered to you is simply ridiculous. Why would Marcus approach the friends of Nick Yanos to rob Nick Yanos? That would be like me recruiting Mr. Richman [a prosecutor] to rob Mr. Boyd [the other prosecutor]. It makes no sense. If you believe Marcus Butler did do this, why would he then go give a full confession to friends of Nick Yanos, to friends of Matt Gibson, to friends of Leland Pruneda to the acts in full detail? It makes no sense. It makes no sense because it didn't happen." The State responded to this argument in rebuttal: "Ladies and gentlemen, you just heard a lot from the defense attorney. I think one of his key words there was ridiculous. Why would Marcus Butler go and ask people that knew people that he was going to rob? Well, it worked for him, didn't it? Worked for him when he asked Tyler Jewell. So Tyler Jewell knew Nick Yanos, he told you he didn't like him, he had an attitude and kind of seemed like a punk dealing drugs. He agreed. "Kyle Cole didn't agree with him, told him no, don't do that. Beau Barger also, neither of them took him serious. So why would he ask? Is that ridiculous? He was looking for somebody to go help him rob. He was angry about the person shorting him from drugs, he was complaining about that to the people who set him up with that person to buy drugs. .... "Now, when you also look through that, look through their testimony, look through everybody's testimony, and when you do that, the defense's argument is basically this was a conspiracy by people who had known each other for a long time to set up one person: Ridiculous. The defense used the word 'ridiculous'. Is that ridiculous? What in any way, shape or form do you have that 7 to 10 people decided to set up this one person? Nobody testified they had a problem with him. Tyler said they were friends, Beau and Kyle both said they never had problems with him prior to any of this happening. Half the other people in the apartment didn't even know who he was. Where is this 7 to 10 person conspiracy to point out one man, a man that some don't know, a man the rest don't have a problem with? Ladies and gentlemen, ridiculous." Although Butler's counsel did not object to the comments, "we will review a prosecutor's comments made during voir dire, opening statement, or closing argument on the basis of prosecutorial error even without a timely objection, 'although the presence or absence of an objection may figure into our analysis of the alleged misconduct.' " State v. Sean , 306 Kan. 963, 974, 399 P.3d 168 (2017) (quoting State v. King , 288 Kan. 333, 349, 204 P.3d 585 [2009] ). Butler only takes issue with the prosecutor's use of the word "ridiculous" to characterize his theory of the case. "The first step in this review-whether the actions of the prosecutor were outside the wide latitude afforded prosecutors-is sound and is left undisturbed by our decision today." Sherman , 305 Kan. at 104, 378 P.3d 1060 ; see State v. Banks , 306 Kan. 854, 862, 397 P.3d 1195 (2017) ("The determination of the first prong ... is left unchanged by Sherman [.]"); State v. Kleypas , 305 Kan. 224, 314, 382 P.3d 373 (2016), cert. denied --- U.S. ----, 137 S.Ct. 1381, 197 L.Ed.2d 560 (2017). " Sherman has drawn a distinction between prosecutorial conduct that is merely negligent or careless and prosecutorial conduct that is intentional or in some way malicious." State v. Carter , 305 Kan. 139, 148, 380 P.3d 189 (2016) ; see Sherman , 305 Kan. at 93, 378 P.3d 1060 (explaining that the new approach would benefit every concerned party, including the "State's fine and ethical prosecutorial corps who need no longer fear that their every mistake will be tinged with the hint of unethical behavior"). Butler believes the prosecutor's comments improperly disparaged his theory of the case as well as imparted the prosecutor's personal opinion to the jury. He also believes that such a comment constitutes an "end-run to bolstering the credibility of the witness testimony which supported the prosecution[.]" "In general, a prosecutor may not offer a jury the prosecutor's personal opinion as to the credibility of a witness because such a comment is unsworn, unchecked testimony, not commentary on the evidence of the case. The determination of the truthfulness of a witness is for the jury." State v. Akins , 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014). "[F]air comment on trial tactics and the interpretation of evidence is allowed, so long as care is taken not to 'inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses.' " State v. Crum , 286 Kan. 145, 150, 184 P.3d 222 (2008) (quoting State v. Mosley , 25 Kan. App. 2d 519, 525, 965 P.2d 848 [1998] ). Prosecutors have some latitude to use colorful language when arguing the State's case. State v. Maestas , 298 Kan. 765, 777, 316 P.3d 724 (2014). Butler claims "[i]t has long been a rule of law that referring to the defendant's story as ridiculous, absurd, or ludicrous is improper and outside the wide latitude allowed the prosecution during closing argument. See State v. Douglas , 274 Kan. 96, 108, 49 P.3d 446 (2002)." We disagree that Douglas established a "rule of law" that a prosecutor's use of any of these words automatically constitutes error. Courts do not isolate the challenged comments; they consider them in the context they were made. Davis , 306 Kan. at 413, 394 P.3d 817. In Douglas , the prosecutor made several objectionable remarks during closing arguments: " '[I]f you believe every word that came out of Mr. Douglas' mouth, then you're pretty naive, because what he said doesn't make any sense. ... " '... So, without me spending any more time on his story, which is quite frankly unbelievable .... It's the State's position that you should not believe anything he says.' .... " 'Defendant's story is unbelievable. It is absolutely, totally and completely unbelievable. ...' .... " '[I]t is up to you to decide the weight and credit to give any particular witness or any piece of testimony, so you can judge what Mr. Douglas has decided to tell you and judge it for what it is worth. And I will call it what it is. It's unbelievable. It is unbelievable. ...' .... " '... I submit to you that you shouldn't believe a word out of his mouth.' " 274 Kan. at 106-07, 49 P.3d 446. Applying our old framework for analyzing prosecutorial misconduct claims, the court concluded the prosecutor's remarks did not rise to the level of the conduct warranting reversal. Douglas , 274 Kan. at 107-08, 49 P.3d 446. The prosecutor in Douglas also referred to the defendant's version of the events as "ridiculous and absurd and ludicrous," and the district court instructed the jury to disregard the statement. 274 Kan. at 108, 49 P.3d 446. This court succinctly concluded: "While such a comment appears improper, it did not deprive Douglas of a fair trial." (Emphasis added.) 274 Kan. at 108, 49 P.3d 446. In Douglas ' wake, the Court of Appeals has struggled with similar statements. See State v. Gleason , No. 111,311, 2015 WL 7434220, at *5-6 (Kan. App. 2015) (unpublished opinion) (holding that prosecutor's statement that defendant's theory of the case was "ludicrous and simply not supported by any of the evidence or testimony" was nonprejudicial error), rev. denied 305 Kan. 1254 (2016); State v. Norwood , No. 109,419, 2014 WL 6909514, at *11-12 (Kan. App. 2014) (unpublished opinion) ("[t]he phrase '[i]t's ridiculous' is an impermissible personal opinion from the prosecutor on the credibility of this testimony."), rev. denied 302 Kan. 1018 (2015); but see State v. Jefferson , No. 97,991, 2008 WL 2051743, at *2 (Kan. App. 2008) (unpublished opinion) (concluding that prosecutor's statement that the defendant's explanation for his confession was ridiculous was a fair characterization of the evidence). Recently, our Court of Appeals questioned the breadth of Douglas ' holding in State v. White , 53 Kan. App. 2d 44, 384 P.3d 13 (2016), rev. denied 306 Kan. 1331 (2017). In White , the prosecutor twice referred to defendant's theory of defense as "ridiculous," and White relied on Douglas to argue the statements were outside the wide latitude allowed to prosecutors. The panel stated, "Given the Douglas court went directly to the issue of prejudicial conduct, without deciding the issue, we will assume for the purposes of this opinion the use of the word ridiculous is outside the wide latitude allowed prosecutors during closing argument." 53 Kan. App. 2d at 50, 384 P.3d 13. Nonetheless, the court was troubled by our lack of discussion in Douglas , wondering whether "the prosecutor's remarks, standing alone, would have been reversible error had the jury not been instructed to disregard it" and what effect the additional words "absurd and ludicrous" had on the ultimate outcome. 53 Kan. App. 2d at 50, 384 P.3d 13. The court nonetheless held there was no reasonable possibility the error contributed to the verdict. 53 Kan. App. 2d at 52, 384 P.3d 13. This brings us to the ultimate question of whether the prosecutor's use of ridiculous in this case was a fair comment. Webster's Third New International Dictionary (unabridged) 1953 (1971) defines "ridiculous" as: "1: fit or likely to excite ridicule; unworthy of serious consideration ... 2: violating decency or moral sense." It strikes us as reasonable to assume the prosecutor was not implying Butler's theory of the case violated decency or moral sense nor was the prosecutor inviting the jury to ridicule Butler. The most reasonable assumption is the prosecutor was simply arguing Butler's version of the events was unworthy of serious consideration, i.e., it was not believable. The manner in which Butler's trial counsel used the same word in closing arguments bolsters our interpretation. Defense counsel posited the State's theory of the case was "simply ridiculous" because "[i]t makes no sense. It makes no sense because it didn't happen." In other words, defense counsel was imploring the jury to consider the testimony given at trial and find it not believable. Likewise, we conclude the prosecutor was trying to make the same fair comment on the evidence. See State v. Matuszak , 263 Mich. App. 42, 55-56, 687 N.W.2d 342 (2004) ("While the prosecution's assertion that the defense argument was ridiculous may have been characterized differently, a prosecutor need not state arguments in the blandest possible terms."); State v. Mohamed , No. A12-0069, 2012 WL 6734447, at *4 (Minn. Ct. App. 2012) (unpublished opinion) ("[The prosecutor] implied only that Mohamed's defense was ridiculous, even laughable, based on the facts. Her comments were blunt, but not misconduct."); see also State v. Kelly , 106 Conn. App. 414, 431 n.11, 942 A.2d 440 (2008) (stating that the prosecution's claim during closing arguments that the defendant's theory of events was "preposterous" was a permissible appeal to the jury's common sense in evaluating the weaknesses in defendant's case). We recently stated it was error for a prosecutor to characterize the defendant's theory of the events as "preposterous." State v. Sprague , 303 Kan. 418, 427, 362 P.3d 828 (2015). Nonetheless, Sprague provides no guidance here because the State conceded error in that case. See 303 Kan. at 428, 362 P.3d 828 ; but see State v. Fisher , 304 Kan. 242, 265, 373 P.3d 781 (2016) (Rosen, J., concurring) (contending that a prosecutor's use of the expression "bull" in the context of the case was synonymous with using "ridiculous," which was within the wide latitude allowed to a prosecutor when discussing the evidence). We also note that using the word "ridiculous" in this context does not rise to the level of claiming Butler was a liar. See State v. Elnicki , 279 Kan. 47, 62, 105 P.3d 1222 (2005) (the prosecutors use of terms such as "yarn," "fairy tale," "fabrication," "tall tale," and "spin" were thinly veiled ways of calling the defendant a liar). In sum, we hold the use of ridiculous in this context is a fair comment on the believability of Butler's theory of defense. As such, we do not reach the question of prejudice. Cumulative error did not deprive Butler of a fair trial. The final trial issue for us to consider is whether cumulative error deprived Butler of a fair trial. The only trial error we discern is the district court's failure to give a limiting instruction for the K.S.A. 60-455 evidence admitted at trial. "[I]f there is no error or only a single error, cumulative error does not supply a basis for reversal." State v. Love , 305 Kan. 716, 737, 387 P.3d 820 (2017). Butler is not entitled to reversal based on cumulative error. The sentencing court erred when it imposed lifetime postrelease supervision rather than lifetime parole. Lastly, the parties agree that the court erred by sentencing Butler to lifetime postrelease supervision as opposed to lifetime parole. To answer this question, we must interpret various sentencing statutes, which is a question of law subject to unlimited review. State v. Louis , 305 Kan. 453, 466, 384 P.3d 1 (2016). After sentencing Butler to life imprisonment, the court imposed lifetime "postrelease supervision." The journal entry of judgment reflects the same. An individual convicted of felony murder is subject to a mandatory sentence of life imprisonment. K.S.A. 2012 Supp. 21-6806(c). Another statute provides that "an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999, shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits." (Emphasis added.) K.S.A. 2012 Supp. 22-3717(b)(2) ; see State v. Ballard , 289 Kan. 1000, 1014, 218 P.3d 432 (2009) (explaining the general differences between parole and postrelease supervision). Thus the district court should have imposed lifetime parole. The appropriate remedy is for us to vacate this portion of Butler's sentence and remand to the district court to impose lifetime parole. See State v. Potts , 304 Kan. 687, 709, 374 P.3d 639 (2016) (vacating defendant's sentence where the district court erroneously noted in the journal entry that defendant was subject to lifetime postrelease supervision rather than lifetime parole for a felony-murder conviction). We therefore vacate this portion of Butler's sentence and remand to the district court for resentencing. In conclusion, we affirm Butler's convictions but vacate the lifetime postrelease portion of his sentence and remand to the district court so it may sentence Butler to lifetime parole.

The opinion of the court was delivered by Beier, J.: This case involves Board of Indigents' Defense Services (BIDS) fees imposed on defendant Curtis R. Ayers and his sentences for capital murder and other felonies. The district court judge assessed BIDS fees against Ayers after his conviction, but the district court did not follow proper procedure in assessing the fees. Ayers now challenges this procedural defect and further asserts that it was unreasonable for the district judge to order most of his sentences to be served consecutively. As detailed below, the district judge erred by failing to explicitly consider Ayers' financial resources when he assessed the BIDS fee. See State v. Robinson , 281 Kan. 538, 132 P.3d 934 (2006). But the district judge did not abuse his discretion by ordering consecutive sentences. We affirm Ayers' sentences, vacate the BIDS fee assessed, and remand this case for reconsideration of that fee. FACTUAL AND PROCEDURAL BACKGROUND The State charged Ayers with multiple felonies directly related to an incident in which he killed Detective Brad Lancaster. Because Ayers was indigent, he was appointed a public defender. Ayers pleaded guilty to all counts. At sentencing, the district court judge sentenced Ayers to life without the possibility for parole for the capital murder conviction and various on-grid sentences for his other crimes. Ayers received 247 months for a first count of aggravated robbery; 61 months for a second count of aggravated robbery; 61 months for each of two counts of kidnapping; 34 months for each of two counts of aggravated burglary; 34 months for aggravated battery; 19 months for aggravated assault of a law enforcement officer; and 9 months for criminal possession of a firearm. All of Ayers' sentences were ordered to run consecutive to each other except for the aggravated burglary sentences, which the district judge ordered to run concurrent. Ayers' public defender argued that the district court should not require Ayers to reimburse BIDS. The district judge then asked defense counsel, "Where are we on attorney's fees?" Defense counsel responded that "the work done on this case was limited" and Ayers pleaded guilty quickly so that the public defender was seeking only "100 or 200 dollars" in reimbursement, "a nominal amount." The district judge then said, "I take it that the attorney's fees incurred are substantially more than that," which defense counsel admitted was true. There was no other discussion of BIDS fees until the end of sentencing, when the district judge assessed $1,000. DISCUSSION BIDS Fees Assessment Ayers asserts that the district judge did not follow the proper procedure in assessing the BIDS fees against him because he failed to consider-on the record-Ayers' ability to pay those fees. This challenge raises a question of law subject to unlimited review. Robinson , 281 Kan. at 539, 132 P.3d 934. "To the extent we are called upon to interpret the statute, we first attempt to give effect to the intent of the legislature as expressed through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to express language, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. Stated yet another way, a clear and unambiguous statute must be given effect as written. If a statute is clear and unambiguous, then there is no need to resort to statutory construction or employ any of the canons that support such construction. .... "The language of K.S.A. 2005 Supp. 22-4513(b) clearly requires a sentencing judge, 'in determining the amount and method of payment' of BIDS reimbursement, i.e., at the time the reimbursement is ordered, to 'take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.' The language is mandatory; the legislature stated unequivocally that this 'shall' occur, in the same way that it stated unequivocally that the BIDS fees 'shall' be taxed against the defendant. The language is in no way conditional. There is no indication that the defendant must first request that the sentencing court consider his or her financial circumstances or that the defendant must first object to the proposed BIDS fees to draw the sentencing court's attention to those circumstances. .... "[T]he sentencing court, at the time of initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly , stating on the record how those factors have been weighed in the court's decision. Without an adequate record on these points, meaningful appellate review of whether the court abused its discretion in setting the amount and method of payment of the fees would be impossible. [Citations omitted.]" 281 Kan. at 539-40, 543-44, 546-47, 132 P.3d 934. Robinson controls the outcome of this issue and requires a decision in Ayers' favor. The district judge simply assessed attorney fees against Ayers without explicitly saying on the record how this financial burden would affect Ayers. This fact is apparent on the record before us and is admitted by the State in its brief. We expressly reject the State's argument that "there is no additional fact-finding any court must do in order to resolve the issue of BIDS fees." A district court fact-finding regarding Ayers' financial resources still is required for "meaningful appellate review" to occur. 281 Kan. at 546, 132 P.3d 934. We also expressly reject the State's argument that the BIDS fee assessed does not qualify as "unworkable." Its comparison of BIDS fees to restitution awards misses the point: Ayers is contesting the procedure by which the BIDS fee was imposed, not the fee's workability, and restitution awards are the subject of a wholly distinct statute. See K.S.A. 2017 Supp. 21-6604(b)(1) (courts required to order defendants to pay restitution unless "unworkable"); K.S.A. 22-4513 (no mention of "workability"); State v. King , 288 Kan. 333, 356-58, 204 P.3d 585 (2009) (comparing BIDS statute and prior version of restitution statute). "The [BIDS fee statute's] language is in no way conditional," and our caselaw is unequivocal. Robinson , 281 Kan. at 543, 132 P.3d 934. The BIDS fee assessment must be vacated and this case remanded for its reconsideration. Consecutive Sentences Ayers also asserts that the district judge abused his discretion by ordering most of his on-grid sentences to run consecutive. He argues that his life sentence without the possibility of parole for capital murder means there is no possibility he will ever serve the on-grid sentences. According to Ayers, this was unreasonable and thus an abuse of discretion. See State v. Brune , 307 Kan. 370, 371-73, 409 P.3d 862 (2018) (abuse of discretion demonstrated if decision [1] arbitrary, fanciful, or unreasonable; [2] based on an error of law; [3] based on an error of fact). Ayers' argument presumes that the sole purpose or goal of sentencing is incapacitation of the offender. We-along with the United States Supreme Court-have recognized that the purposes of sentencing go beyond pure incapacitation. See Graham v. Florida , 560 U.S. 48, 71, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (retribution, deterrence, incapacitation, rehabilitation legitimate goals of sentencing); State v. Gomez , 290 Kan. 858, Syl. ¶ 7, 235 P.3d 1203 (2010) (same). While Ayers' capital murder sentence fulfills the purpose of incapacitation and, one hopes, deterrence, it does not advance the goal of retribution for his other crimes. Retribution is the oldest justification for sentencing and an important aspect-it is "a merited response to the actor's deed ... expressing moral reprobation of the actor for the wrong." 1 LaFave, Substantive Criminal Law § 1.5(a)(6) (3d ed. 2018). Moreover, sentencing of defendants to terms of imprisonment they are unlikely to serve is common. See, e.g., State v. Kleypas , 305 Kan. 224, 240, 382 P.3d 373 (2016) (defendant sentenced to death, 69 months for attempted rape, 34 months for aggravated burglary; rape, burglary sentences consecutive to death sentence); State v. Mayberry , 248 Kan. 369, 387-88, 807 P.2d 86 (1991) (defendant given two life sentences, 40-year sentence; all consecutive), disapproved of on other grounds by State v. Gunby , 282 Kan. 39, 144 P.3d 647 (2006) ; United States v. Sarras , 575 F.3d 1191, 1220-21 (11th Cir. 2009) (defendant sentenced to 1,200 months; detailing several cases in which defendants received sentences no person could be expected to serve); United States v. Betcher , 534 F.3d 820, 823, 826-28 (8th Cir. 2008) (defendant given consecutive prison sentences totaling 750 years); United States v. Metzger , 411 Fed. Appx. 1, 3-5 (7th Cir. 2010) (unpublished opinion) (defendant given consecutive prison sentences totaling 235 years); People v. Chacon , 37 Cal. App. 4th 52, 67, 43 Cal.Rptr.2d 434 (1995) (defendant's determinate sentences ordered to run consecutive with sentence of life without possibility of parole); Lewis v. State , 279 Ga. 464, 465, 614 S.E.2d 779 (2005) (same); Clippinger v. State , 54 N.E.3d 986, 987-91 (Ind. 2016) (defendant given two consecutive sentences of life without parole). Under these authorities, we cannot say the district court's imposition of on-grid sentences consecutive to Ayers' sentence of life imprisonment without the possibility of parole was an abuse of discretion. CONCLUSION We affirm Ayers' consecutive sentences. We vacate the district court's assessment of the $1,000 BIDS fee and remand this case for reconsideration of that fee.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, John M. Knox, of Lenexa, an attorney admitted to the practice of law in Kansas in 1994. On October 4, 2017, 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 failed to file an answer. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 22, 2018, at which the respondent did not appear. The hearing panel determined that respondent violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5(d) (2018 Kan. S. Ct. R. 294) (fees); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 4.1(a) (2018 Kan. S. Ct. R. 355) (truthfulness in statements to others); 8.4(c) (2018 Kan. S. Ct. R. 381) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2018 Kan. S. Ct. R. 381) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); and Kansas Supreme Court Rule 207(b) (2018 Kan. S. Ct. R. 246) (failure to cooperate in disciplinary action). 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 .... "9. On June 19, 2013, W.D. was involved in a two-car automobile accident in Baldwin City, Kansas. The driver of the other car failed to stop at a stop sign and collided with W.D.'s car. Both drivers were insured. W.D. suffered injuries to his hip, back, and shoulder. In the fall of 2013, W.D. underwent laminectomy surgery (a surgical operation to remove the back of vertebrae to relieve pressure on nerves). An MRI had shown that five of W.D.'s vertebrae were pinching against his spinal cord. "10. W.D. was advised by his insurance company to seek legal counsel. W.D. and his wife, K.D., met with and hired the respondent in June or July of 2013, shortly after the accident. "11. The respondent proposed a contingent fee arrangement in which the respondent would receive 30% of any recovery. W.D. and K.D. agreed to the fee proposed by the respondent. The respondent failed to reduce the agreement to writing. "12. W.D. and K.D. again met with respondent at the respondent's office in Lawrence. At that time, W.D. provided the respondent with his medical records. The respondent advised W.D. and K.D. that he was submitting information to an insurance company. "13. Throughout the representation, W.D. and K.D. had a difficult time communicating with respondent. "14. In the spring of 2014, W.D. spoke with the respondent by telephone. The respondent explained that he had not maintained communication because the respondent's wife had been ill. The respondent, however, assured W.D. that everything was fine with the case. "15. Thereafter, W.D. and K.D. were unable to reach the respondent. They were aware that a deadline existed in the case and they increased their attempts to contact the respondent. W.D. and K.D. believed that the respondent had filed a civil case on behalf of W.D. by this time. "16. The respondent failed to inform W.D. that he moved his office to another location. On his own, W.D. learned that the respondent had moved his office to 810 Pennsylvania, Lawrence. "W.D. or K.D. called the respondent weekly, but were not able to make contact with him. At some point, the respondent's voicemail box was full. "During the fall of 2015, they left notes on the door of the respondent's office because when they would attempt to locate him in his office, he was never present. They contacted the manager of the building where the respondent's office was located, but they were not able to obtain information on how to get in touch with the respondent. "17. In February 2016, W.D. and K.D. sent a letter to the respondent via certified mail, return receipt requested. The letter eventually came back as unclaimed because it was not picked up by the respondent. "18. On March 11, 2016, W.D. filed a complaint with the disciplinary administrator's office. Leslie Miller of the Douglas County Ethics and Grievance Committee was assigned to investigate the complaint. "19. On March 14, 2016, the disciplinary administrator notified the respondent by letter that W.D.'s complaint had been docketed for investigation. The disciplinary administrator directed the respondent to provide a written response to the complaint within 20 days. The respondent did not provide a written response to the complaint. "20. Ms. Miller sent letters to the respondent on March 21, 2016, May 11, 2016, and June 6, 2016, directing the respondent to provide a written response to W.D.'s complaint. The respondent did not provide a written response to the complaint filed by W.D. "21. In June 2016, Special Investigator William Delaney contacted the respondent at his home. The respondent claimed that he had not received the complaint, but that he would respond. While the respondent provided Mr. Delaney with W.D.'s client file, respondent never provided a response to the complaint. "22. During the investigation, Ms. Miller checked the Douglas County court records and determined that two civil cases had been filed by the respondent on behalf of W.D., cases numbered 2015-V-000457 and 2015-V-000458. Both cases were filed on December 21, 2015. The petitions in the two cases were identical and filing fees had been paid by the respondent in both cases. Both cases were filed outside of the two-year statute of limitations. "23. In 2015-V-000457, after counsel for the defendant filed a motion to dismiss the case based on the statute of limitations, on May 11, 2016, the court dismissed the case with prejudice. In 2015-V-000458, the court dismissed the case for lack of prosecution on December 22, 2016. "24. Robert Luder represented the defendant in the personal injury cases. Mr. Luder advised Ms. Miller that the respondent told him that he had filed the case within the statute of limitations but that there was a glitch in the clerk's office with respect to the filing. "25. On May 24, 2016, Ms. Miller met with W.D. and K.D. During that meeting, W.D. and K.D. asked Ms. Miller about the status of the case. Ms. Miller told W.D. and K.D. that the case had been filed approximately six months too late and that it had been dismissed on May 11, 2016. According to Ms. Miller, W.D. and K.D. were shocked and upset that the case had been dismissed. "26. During the time that the respondent represented W.D., the respondent did not have malpractice insurance. "On December 23, 2016, the Supreme Court issued an opinion suspending the respondent's license to practice law for a period of one year. In re Knox , 305 Kan. 628, 385 P.3d 500 (2016). The respondent's license remains suspended. "27. On October 4, 2017, Mr. Hazlett filed the formal complaint in this case. That same day, the formal complaint and the notice of hearing were sent to the respondent at his last registration address by certified mail. Additionally, a copy of the formal complaint and notice of hearing were sent to the respondent at his last registration address and his home address by regular mail. The respondent failed to file an answer to the formal complaint. Later, on November 30, 2017, William C. Delaney, Special Investigator with the disciplinary administrator's office served a copy of the formal complaint and notice of hearing on the respondent's wife at the respondent's home address, notifying the respondent that a hearing on the formal complaint was scheduled for January 11, 2018. "28. Because of inclement weather, Chief Justice Nuss closed the judicial branch on January 11, 2018, and the hearing on the formal complaint was continued. "29. After the case was rescheduled, the disciplinary administrator's office sent a copy of the new notice of hearing, via certified mail to the respondent at his last registration address, notifying him that the case had been continued to March 22, 2018. Mr. Hazlett also sent a copy of the notice of hearing to the respondent at his home address. The respondent did not appear at the hearing on the formal complaint. "Conclusions of Law "30. It is appropriate to consider violations not specifically included in the formal complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen , 235 Kan. 451, 681 P.2d 639 (1984), as follows: ' Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct. 'The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo , 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense. 'Decisions subsequent to Ruffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. ... Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. ... However, if specific rules are pled, the state is thereafter limited to such specific offenses. ... 'Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner , 217 Kan. 574, 538 P.2d 966, 87 A.L.R.3d 337[(1975)], the court summarized prior Kansas and federal precedent on the question, including Ruffalo , and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated ..., nor is it required to plead specific allegations of misconduct. ... What is required was simply stated therein: We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. ... .... It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.' [ Citations omitted.] 235 Kan. at 458-59 [681 P.2d 639]. Thus, only when the formal complaint alleges facts that would support findings of violations of additional rules, will considering additional violations be allowed. In this case, the disciplinary administrator requested that the hearing panel conclude that the respondent violated Rules 207 (cooperation) and 211(b) (failure to file an answer to the formal complaint). The hearing panel concludes that the disciplinary administrator included sufficient facts in the formal complaint to warrant consideration of a violation of Rule 207 (cooperation). Further, the respondent was not put on notice that the hearing panel would be considering a violation of Rule 211(b) (failure to file an answer to the formal complaint). Thus, the hearing panel concludes that it is proper to consider a violation of Rule 207 but not proper to consider a violation of Rule 211(b). "31. The respondent failed to appear at the hearing on the formal complaint. It is appropriate to proceed to hearing when a respondent fails to appear only if proper service was obtained. Rule 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows: '(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney's most recent registration, or at his or her last known office address. .... '(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.' In this case, the disciplinary administrator complied with Rule 215(a) by sending a copy of the formal complaint and the notice of hearing that the hearing on the formal complaint would be held January 11, 2018, via certified United States mail, postage prepaid, to the address shown on the respondent's most recent registration. Additionally, Mr. Delaney served a copy of the formal complaint and notice of hearing on the respondent's wife at the respondent's residential address. The respondent was served with a copy of the notice of hearing that the hearing on the formal complaint would be held on March 22, 2018, via certified United States mail, postage prepaid, to the address shown on the respondent's most recent registration. Finally, the respondent was served with a copy of the notice of hearing that the hearing on the formal complaint would be held March 22, 2018, by regular mail sent to him at his home address. The hearing panel concludes that the respondent was afforded the notice that the Kansas Supreme Court Rules require and more. "32. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 3.2 (failure to expedite litigation), 4.1 (false statements), 8.4 (misconduct), and 207 (cooperation) as detailed below. " Rule 1.1 "33. Lawyers must provide competent representation to their clients. Rule 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent failed to utilize the requisite legal knowledge, skill, thoroughness, and preparation in his representation of W.D. Despite being retained in 2013, shortly after the automobile accident, the respondent failed to timely file suit on behalf of W.D. Based on the respondent's lack of competent representation, W.D.'s suit was dismissed because it was filed outside the statute of limitations. The hearing panel concludes that the respondent violated Rule 1.1. "Rule 1.3 "34. Attorneys must act with reasonable diligence and promptness in representing their clients. See Rule 1.3. The respondent failed to diligently and promptly represent W.D. by failing to timely file suit on behalf of W.D. The respondent filed suit on behalf of W.D. two and one-half years after he was retained. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated Rule 1.3. "Rule 1.4 "35. Rule 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.' W.D. and K.D. attempted to contact the respondent on numerous occasions in an attempt to get an update on the status of the case. The respondent failed to return W.D. and K.D.'s telephone messages. The respondent failed to inform W.D. that he moved offices. The respondent failed to pick up certified mail sent by his client which made it impossible to properly communicate with his client. Finally, the respondent failed to notify his client when he filed suit, when a hearing was scheduled, and when the case was dismissed. In this case, the respondent violated Rule 1.4(a) when he failed to keep W.D. and K.D. reasonably informed about the status of the case and when he failed to promptly comply with reasonable requests for information, in violation of Rule 1.4(a). "Rule 1.5 "36. Contingent fee agreements must be in writing. Rule 1.5(d) provides the requirement in this regard: 'A fee may be contingent on the outcome of the matter for which the service is rendered .... A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. ...' The respondent agreed to represent W.D. on a contingent basis. However, the respondent failed to reduce the agreement to writing. Thus, the hearing panel concludes that the respondent violated Rule 1.5(d). "Rule 3.2 "37. An attorney violates Rule 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. After the respondent filed suit on behalf of W.D., the respondent took no additional action. Additionally, the respondent failed to respond to the defendant's motion to dismiss and failed to appear in court for a scheduled hearing. Accordingly, the hearing panel concludes that the respondent failed to make reasonable efforts to expedite litigation consistent with W.D.'s interest, in violation of Rule 3.2. "Rule 4.1 "38. Attorneys are required to be honest in dealings with third persons: '[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.' Rule 4.1(a). The respondent made a false statement of material fact when he told opposing counsel that he timely filed suit on behalf of W.D. and that there was a 'glitch' in the clerk's office. The hearing panel concludes that the respondent violated Rule 4.1(a) in two respects. "Rule 8.4(c) "39. 'It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' Rule 8.4(c). The respondent engaged in conduct that involved dishonesty when he failed to disclose to W.D. that he had not timely filed suit on his behalf. The respondent engaged in conduct that involved dishonesty when he assured W.D. that the case was progressing. Finally, the respondent engaged in conduct that involved dishonesty when he falsely told opposing counsel that he timely filed suit on behalf of W.D. but that there was a 'glitch' in the clerk's office. As such, the hearing panel concludes that the respondent violated Rule 8.4(c). "Rule 8.4(d) "40. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' Rule 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to timely file suit on behalf of W.D., when he failed to prosecute the case he filed on behalf of W.D., and when he failed to respond to opposing counsel's motion to dismiss. As such, the hearing panel concludes that the respondent violated Rule 8.4(d). "Rule 8.4(g) "41. 'It is professional misconduct for a lawyer to ... engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' Rule 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he failed to take simple steps to accomplish the goals of the representation of W.D. The hearing panel concludes that the respondent violated Rule 8.4(g). " Rule 207(b) "42. Lawyers must cooperate in disciplinary investigations. Rule 207(b) provides the requirement in this regard. 'It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.' Rule 207(b). The respondent knew that he was required to forward a written response to the initial complaints-he had been repeatedly instructed to do so in writing by the disciplinary administrator, Ms. Miller, and Mr. Delaney. Because the respondent knowingly failed to provide a written response to the initial complaint filed by W.D., the hearing panel concludes that the respondent violated Rule 207(b). "American Bar Association Standards for Imposing Lawyer Sanctions "43. 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. "44. Duty Violated . The respondent violated his duty to his client to provide competent and diligent representation and reasonable communication. The respondent violated his duty to the public to maintain his personal integrity. Additionally, the respondent violated his duty to the legal system to refrain from causing prejudice to the administration of justice. Finally, the respondent violated his duty to the legal profession to cooperate in disciplinary proceedings. "45. Mental State . The respondent knowingly and intentionally violated his duties. "46. Injury . As a result of the respondent's misconduct, the respondent caused actual serious injury to his client, to the legal system, and the legal profession. While the total injury to his client is unclear, it is clear that W.D. is responsible for $2,000 of medical bills which should have been paid through the lawsuit. Because W.D. is an older gentleman on a fixed income, he has been paying toward the outstanding bills at a rate of $20 per month. W.D. will continue to pay $20 per month until the financial obligations have been satisfied. "47. 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 four occasions. 1) On November 29, 2001, the respondent entered into the attorney diversion program for an advertising rule violation. 2) On July 18, 2006, the disciplinary administrator informally admonished the respondent for having violated Rule 1.3 (diligence), Rule 1.4 (communication), and Rule 3.2 (expediting litigation). 3) On December 19, 2008, the disciplinary administrator informally admonished the respondent for having violated Rule 1.4 (communication). 4) On December 23, 2016, the Supreme Court suspended the respondent's license to practice law for a period of one year for violating Rules 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safeguarding property), 1.16 (termination of representation), 8.1 (cooperation), 8.4 (professional misconduct), 207 (cooperation), and 211 (failure to file an answer to the formal complaint). b. Dishonest or Selfish Motive. The respondent's misconduct was motivated by dishonesty. The respondent failed to inform W.D. that he had not filed the case timely. The respondent falsely told W.D. and K.D. that the case was progressing. The respondent falsely told opposing counsel that the suit had been timely filed and that there was a 'glitch' in the clerk's office. Accordingly, the hearing panel concludes that the respondent's misconduct was motivated by dishonesty. c. A Pattern of Misconduct. Over an extended period of time, the respondent failed to properly communicate with W.D. and K.D. Additionally, much of the misconduct in this case is similar to the misconduct in the three of the four previous disciplinary cases. Thus, the hearing panel concludes that the respondent has engaged in a pattern of misconduct. d. Multiple Offenses. The respondent violated Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 3.2 (expediting litigation), 4.1 (truthfulness in statements to others), 8.4 (professional misconduct), and 207 (cooperation). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. e. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent failed to provide a written response to the complaint in this case despite the repeated directions to do so. Additionally, the respondent failed to file an answer and failed to appear at the hearing on this matter. The respondent's failure to cooperate in this disciplinary proceeding is further aggravated by the respondent's familiarity with the disciplinary process. In the 2016 attorney disciplinary case, the respondent appeared at the hearing and appeared before the Kansas Supreme Court. In that case, the respondent failed to file an answer and was found in violation of Rule 211(b). Moreover, in that case, the Kansas Supreme Court ordered the respondent to reimburse the Client Protection Fund $3,000. To date, the respondent has not done so. The respondent's failure to participate, cooperate, appear, and comply with court orders and rules amounts to bad faith obstruction of the disciplinary proceeding. f. Vulnerability of Victim. When W.D., an older gentleman on a fixed income, testified before the hearing panel, his trusting nature was clear. As a result of the underlying accident, W.D. was seriously injured. W.D. trusted the respondent to take appropriate action to ensure that his medical bills were covered by the other driver who was clearly at fault. The respondent violated that trust by failing to take action on behalf of W.D. Accordingly, the hearing panel concludes that because W.D. wholly relied on the respondent to take appropriate action on his behalf, W.D. was vulnerable to the respondent's misconduct. g. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1994. At the time of the misconduct, the respondent had been practicing law for more than 20 years. h. Indifference to Making Restitution. The respondent did not have malpractice insurance at the time of his misconduct. Further, the respondent took no steps to right the wrongs he committed against W.D. "48. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. Because the respondent chose to not cooperate in the disciplinary investigation and chose to not appear at the hearing on the formal complaint and present evidence on his own behalf, the hearing panel has no evidence to consider in mitigation of the misconduct. Accordingly, the hearing panel, in this case, finds no mitigating circumstances present. "49. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered Standard 4.41(b) which provides that '[d]isbarment is generally appropriate when ... a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client.' "Recommendation "50. Based on the significant injury to W.D. and the respondent's previous history of attorney misconduct, the disciplinary administrator recommended that the respondent be disbarred. "51. The respondent engaged in serious misconduct. Additionally, the significant evidence in aggravation, including the evidence that the respondent failed to cooperate in the disciplinary investigation and participate in the disciplinary hearing, compounds the respondent['s] serious misconduct. It is clear that the respondent should no longer have a license to practice law. Accordingly, based upon the findings of fact, conclusions of law, and the Standard listed above, the hearing panel unanimously recommends that the respondent be disbarred. "52. 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) (2018 Kan. S. Ct. R. 251). 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 failed to file an answer, and adequate notice of the hearings before the panel and this court for which he did not appear. Service on respondent was achieved through certified mail to respondent's last address on file with the Clerk of the Appellate Courts, through regular mail to respondent's home address, and through personal service by Special Investigator William C. Delaney who served a copy of the formal complaint and notice of hearing on respondent's wife at the respondent's home address on November 30, 2017. Because of inclement weather, offices in the Judicial Branch were closed on the original date of the hearing, January 11, 2018. The hearing was rescheduled for March 22, 2018, and notice was sent to respondent both by certified mail to his last address on file with the Clerk of the Appellate Courts and by regular mail to his home address. Respondent also failed to appear before the Supreme Court on October 24, 2018, after being given proper notice. The respondent did not file exceptions to the panel's final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2018 Kan. S. Ct. R. 255). Furthermore, the evidence before the panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5(d) (2018 Kan. S. Ct. R. 294) (fees); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 4.1(a) (2018 Kan. S. Ct. R. 355) (truthfulness in statements to others); 8.4(c) (2018 Kan. S. Ct. R. 381) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2018 Kan. S. Ct. R. 381) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); and Kansas Supreme Court Rule 207(b) (2018 Kan. S. Ct. R. 246) (failure to cooperate in disciplinary action), and it supports the panel's conclusions of law. We adopt the panel's conclusions. The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the Disciplinary Administrator recommended disbarment. In its final hearing report, the panel agreed with the Disciplinary Administrator and recommended disbarment. At the hearing before this court, the Disciplinary Administrator continues to recommend disbarment. Respondent did not appear. We have previously held: "Certainly, the lack of an appearance at a hearing before this court qualifies as an additional aggravator." In re Barker , 302 Kan. 156, 163, 351 P.3d 1256 (2015) ; see Kansas Supreme Court Rule 212(d) (respondent shall appear in person in disciplinary proceedings before the Supreme Court). Upon considering all of these factors, we agree with the recommendation of the hearing panel and of the Disciplinary Administrator. CONCLUSION AND DISCIPLINE IT IS THEREFORE ORDERED that John M. Knox be and he is hereby disciplined by disbarment in accordance with Supreme Court Rule 203(a)(1) (2018 Kan. S. Ct. R. 234), effective on the filing of this decision. 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.

Leben, J.: Rita Young and Gary Fechner both claimed an interest in an estate as relatives of a man who died with no will and no living parents, siblings, or children. But Rita suggested Gary wasn't biologically related to the man and asked for DNA testing. The district court denied that request, concluding that it lacked authority to order such tests. After making that decision, the court heard evidence and sustained Gary's claim to a part of the estate. But we agree with Rita that the district court had the discretionary authority to order DNA testing. And a court abuses its discretion when it fails to exercise that discretion based on a misunderstanding of the law. See Green v. Unified Gov't of Wyandotte Co./KCK , 54 Kan. App. 2d 118, 121, 397 P.3d 1211 (2017). So we will vacate the district court's judgment and send the case back for further consideration. FACTUAL AND PROCEDURAL BACKGROUND When Chad Fechner died in 2014, his maternal aunt, Rita Young, thought she was his only living relative, so she opened a probate estate. But Gary Fechner filed a claim in the estate alleging that he was Chad's half uncle, a claim supported by the birth certificates of Chad's father and Gary-both had the same father, making them half brothers. If true, Gary would share in Chad's estate with Rita. Rita questioned whether those birth certificates and other records were accurate. The documents showed that Chad's father (and Gary's half brother) was Delwyne Fechner. Delwyne had died in 2002, but Rita had a letter a woman named Betty Lou had sent to Delwyne in 1999 saying that some "gossip going through Mrs. Hicklin[']s Beauty Shoppe here in Oakley" in the 1940s had been that Delwyne's real father was Earl Goble, not Willis Fechner. If so, Rita argued, Gary wasn't actually related to Delwyne or to Chad. Rita asked that the court order Gary to submit to DNA testing to prove his biological relation to Chad. Some of Chad's DNA was available because the coroner had conducted an autopsy. Gary objected. Gary argued that there was no authority to order DNA testing in a probate case. Rita argued that DNA testing would be the only way to tell whether Gary really was related to Chad. The court held that "[u]nder the circumstances of this case there is no authority for the Court to order the requested genetic testing." The court then held an evidentiary hearing to determine whether Gary was one of Chad's heirs and eligible to receive some of the proceeds of Chad's estate. Gary presented his own birth certificate, which showed he was born October 27, 1946, to Dorothy Vera Fechner and Willis Wilbur Fechner. He also presented Delwyne's birth certificate, which showed he was born August 13, 1940, to Anna Laura Akers (we're told she went by Laura) and Willis Wilbur Bechner. The certificate showed that Laura and Willis were married at the time, and a 1940 Census document also showed them living together in Oxford, Kansas. Rita presented the letter from Betty Lou. Rita noted that Delwyne's middle name, Earl, was the first name of Earl Goble, the man named in Betty Lou's letter. Rita pointed out that Delwyne was born in McPherson, Kansas, and that the birth certificate said that his mother had lived in McPherson for 15 months-while there was no evidence showing Willis had lived in McPherson. And she presented evidence that Gary didn't attend Delwyne's funeral in 2002. Based on the evidence presented, the court held that Gary, like Chad's father, was Willis' son and that both Rita and Gary were Chad's heirs. Rita appealed to our court. ANALYSIS The main question in this appeal is whether the district court was mistaken when it concluded it had no authority to order DNA testing in a probate case. That presents a legal question we review independently, with no required deference to the district court. See Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). The answer to this question will take us into three sets of Kansas statutes: (1) the Probate Code, which tells us who shares in a person's estate when that person dies; (2) the Kansas Code of Civil Procedure, which provides general procedures for resolving most legal disputes; and (3) the Kansas Parentage Act, which has default rules for figuring out whether a parent-child relationship exists-something that's not always decided by biology. Our starting point is the Probate Code since it most directly applies when a person dies and leaves property behind. I. The Standards of the Kansas Parentage Act Apply When Determining Who Is an Heir Under the Probate Code When a Person Dies Without a Will. The Probate Code determines who gets the property when a person dies without a will. When a person with no will dies with a spouse and no children, for example, the entire estate goes to the spouse. K.S.A. 59-504. In Chad's case, with no spouse, child, or living parent, the property goes to "the heirs of [Chad's] parents." K.S.A. 59-508. Everyone agrees that a brother or sister of Chad's parents would be an heir, and there's no doubt that Rita was the sister of Chad's mother. If Gary is the brother of Chad's father, then he too is an heir and entitled to share in Chad's estate. Gary is the brother of Chad's father if the two men had at least one parent in common. (That makes them half brothers, sufficient for inheritance purposes.) But Rita contests that connection, arguing that biological paternity trumps what was on the birth certificates. That's the real question lurking behind all others: does biology trump established presumptions of paternity in a probate case? The contested factual question is whether Delwyne was Willis Fechner's child. If so, Delwyne was Gary's half brother and the uncle of Delwyne's son, Chad. So what does the Probate Code tell us about this key question? It tells us who is legally the child of another person: " 'Children' means biological children, including a posthumous child; children adopted as provided by law; and children whose parentage is or has been determined under the Kansas parentage act or prior law." K.S.A. 59-501(a). That definition applies when determining who takes property when a person dies without a will, K.S.A. 59-501(a), so it applies to our case. From the definition, we know that a biological child would qualify. But there are three ways to qualify as a child: (1) biology, (2) adoption, and (3) having parentage determined under the Kansas Parentage Act (or prior law). K.S.A. 59-501(a) connects those three by "and," showing that all three ways qualify under the Probate Code. So biological children count. And adopted children. And children whose parentage is or has been determined under the Kansas Parentage Act. So biology doesn't trump other considerations. Adopted children needn't be biologically related to the adopting parent. And there are several paternity presumptions under the Kansas Parentage Act-like having been born during a marriage-that make a person a presumptive father even if biology might say something different. Those children inherit too. At the heart of our case is whether there's any conflict between the first of the three ways to qualify under the Probate Code ("biological children") and the third ("children whose parentage is or has been determined under the Kansas parentage act"). Within that third option, there are two situations we need to consider. In some cases, parentage has already been determined under the Parentage Act. That's contemplated in K.S.A. 59-501(a) by its "is or has been determined under the Kansas parentage act" language. In a case in which parentage already has been determined under the Parentage Act, that determination is controlling in a later probate proceeding under our Supreme Court's ruling in Reese v. Muret , 283 Kan. 1, Syl. ¶ 2, 150 P.3d 309 (2007). That leaves one other option from the Probate Code provision-a child "whose parentage is ... determined under the Kansas parentage act." (Emphasis added.) K.S.A. 59-501(a). And once again, two possibilities emerge. In some cases, it will be possible to bring a Kansas Parentage Act proceeding (essentially a separate lawsuit) while the probate proceeding is pending. That's actually what happened in Reese ; the Parentage Act claim and probate proceeding started at the same time. Parentage was sorted out in the Parentage Act case, and those findings were then controlling in the probate case. 283 Kan. at 5, 150 P.3d 309 ("The probate code treats a determination of parentage pursuant to the Kansas Parentage Act as conclusive."). But what if there's no way to bring a Parentage Act case? That's the situation we're in here since the person whose parentage is in question, Delwyne, died many years ago. Only a child or a person acting "on behalf of" the child may bring a parentage action. K.S.A. 2017 Supp. 23-2209(a). By "child," we simply mean the person whose parentage is at issue, so a parentage action may be brought on behalf of an adult child. See Reese , 283 Kan. at 3, 9-12, 150 P.3d 309. But for an adult child who died in 2002, apparently with no outstanding issues about who his heirs were, there's simply no reason for anyone to bring an action "on behalf of" Delwyne to figure out who his father was. So no one today has standing to bring a Parentage Act claim about Delwyne's paternity. That leaves us with potentially different outcomes depending on whether someone has standing to bring a Parentage Act claim. With no Parentage Act proceeding, Rita argues that we decide whether someone is an heir strictly by biology. Another possibility would be to decide the case under the same standards we'd use if someone had standing to bring the Parentage Act claim. To settle which approach to take, we've considered the language in the Probate Code-a child "whose parentage is ... determined under the Kansas parentage act." There are at least two ways that phrase might be understood. First, it might mean a child whose parentage is determined under the standards of the Kansas Parentage Act. In that case, the standards would be the same whether or not someone had standing to bring a Parentage Act claim. Second, it might mean a child whose parentage is determined in an action under the Kansas Parentage Act. In that case, we'd perhaps have different standards depending on whether someone had standing to bring a Parentage Act claim. We can't imagine why the standards should differ. There is, of course, no problem regarding standing in the probate proceeding; both Rita and Gary have standing to present their respective claims to Chad's estate. And the Probate Code itself references the determination of paternity issues under the Parentage Act. The first two options under the Parentage Act-biology and adoption-make it clear that biology isn't the only consideration. In addition, Kansas Supreme Court caselaw strongly supports fully considering the presumptions of paternity that are part of the Kansas Parentage Act. There are two key cases: In re Marriage of Ross , 245 Kan. 591, 783 P.2d 331 (1989), and Reese . In Ross , the court considered whether to order genetic testing to determine which of two men was the child's father. One of the men had been married to the mother when the child was born, had acknowledged that he was the father, had been listed on the birth certificate as the father, had been given visitation rights when he and the mother divorced, and had been ordered to pay child support. Even so, the mother filed a paternity action three years after the divorce, claiming that another man was the biological father. The trial court ordered genetic testing, which established that the other man was, indeed, the biological father. But our Supreme Court said that it had been wrong to order genetic testing before first considering the best interests of the child. The court did this even though the statutory language about testing said that the court "shall order" testing when paternity is disputed. See K.S.A. 38-1118 (Ensley 1986). That "shall order" language remains in statutes today, K.S.A. 2017 Supp. 23-2212(a), while the rule of Ross continues to require that we do not literally follow it. Instead, for important policy reasons, judges must consider the best interests of the child before ordering paternity tests. Ross involved a minor child, so the interest in promoting family stability for that child was especially strong. In Reese , the court considered whether to extend the Ross rule to questions about the paternity of an adult involved in a dispute about whether she was an heir to a probate estate. The woman whose status came into dispute, Heather, had been born to Sam and Deloris Waldschmidt shortly after they married; Sam was listed on the birth certificate. Sam and Deloris got divorced, and Sam remarried before he died. After his death, his widow challenged Heather's right to inherit and sought DNA tests to determine whether Heather was Sam's biological daughter. Both a probate case and a Parentage Act case proceeded simultaneously, and the district court determined-under the Parentage Act and applying the Ross presumption-that genetic testing was not in Heather's best interests. Once again, though, the relevant statute provided that the court "shall order" genetic testing if paternity is disputed. See K.S.A. 2017 Supp. 23-2212(a). But the Kansas Supreme Court affirmed the district court decision and held that the Ross rule applied even when the "child" whose parentage was in dispute was an adult: "We cannot subvert the presumption of paternity in favor of biology without requiring a court to consider whether it is in the child's best interests regardless of the child's age. Interpretation of the relevant statutes, controlling precedent, and public policy support the district court's decision to hold a Ross hearing in Heather's [Parentage Act] action." 283 Kan. at 12, 150 P.3d 309. From Reese , we know what standards come into play when the child whose parentage is at issue is still alive and brings a Parentage Act claim to settle the paternity question. The Ross rule-considering the child's best interests (even if that child is an adult)-applies. And the determination in the Parentage Act case, under which Ross is applied, is binding in the probate proceedings. 283 Kan. at 5, 150 P.3d 309. Our case differs because no one had the ability to bring a Parentage Act claim, but we conclude that the same standards apply under K.S.A. 59-501(a). From that conclusion, we can say that if DNA testing is authorized for our case, the district court would still have to consider the presumptions of paternity under the Parentage Act and consider whether the testing was in the best interests of the child (here, Delwyne). We turn next to consider whether DNA testing is authorized in probate proceedings at all. II. Genetic Testing Can Be Ordered by the District Court in a Probate Case. The district court in our case held that it had "no authority ... to order the requested genetic testing." Rita argues that the court was wrong on this legal point. Rita says that the general discovery provisions in the Kansas Code of Civil Procedure provide the authority. A provision of the Probate Code, K.S.A. 59-2212, provides that the Kansas Rules of Evidence apply in determining contested probate matters. But no provision in the Kansas Probate Code specifically incorporates the Kansas Rules of Civil Procedure. See In re Estate of Wolf , 32 Kan. App. 2d 1247, Syl. ¶ 4, 96 P.3d 1110 (2004), aff'd 279 Kan. 718, 112 P.3d 94 (2005). Even so, the Kansas Supreme Court has provided in Supreme Court Rule 144 that when a factual issue is contested in a probate case, "the discovery procedures" under the Kansas Code of Civil Procedure apply. 2018 Kan. S. Ct. R. 212. Since the Probate Code doesn't have its own provisions for discovery, there's no conflict between this Supreme Court rule and any statutory provision. See In re Estate of Wolf , 279 Kan. 718, 724, 112 P.3d 94 (2005) (holding that civil-procedure pleading rules didn't apply in probate proceeding because the Probate Code had its own pleading rules). We therefore apply the discovery rules of the Kansas Rules of Civil Procedure here. To compare Gary's and Chad's DNA as Rita requested, Gary would have had to provide a DNA sample. That could be obtained with a cheek swab, but even this simple process is a physical intrusion to Gary. That makes it a form of physical examination, something provided for in the civil discovery rules. K.S.A. 2017 Supp. 60-235(a)(1) lets the court order "a party whose ... physical condition, including blood group, is in controversy to submit to a physical ... examination by a suitably licensed or certified examiner." The order may be made if a party shows "good cause" to do so. K.S.A. 2017 Supp. 60-235(a)(2). While this statutory provision, first adopted in 1963, mentions testing for a person's "blood group," it never mentions DNA testing. And we have no Kansas caselaw about whether DNA testing may be ordered under this provision. But our civil-procedure rules are based on the parallel Federal Rules of Civil Procedure, so caselaw from federal courts is especially persuasive when interpreting our rules. See Douglas Landscape & Design v. Miles , 51 Kan. App. 2d 779, 783, 355 P.3d 700 (2015). There is federal caselaw that supports Rita's position. The relevant part of Rule 35 of the Federal Rules of Civil Procedure is the same as our Kansas rule; it lets the court "order a party whose ... physical condition-including blood group-is in controversy to submit to a physical ... examination by a suitably licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). Like the Kansas rule, the federal rule requires that the requesting party show "good cause" for the order. Fed. R. Civ. P. 35(a)(2). Federal courts have used the authority of Rule 35 to order DNA testing in sexual-harassment lawsuits, e.g., D'Angelo v. Potter , 224 F.R.D. 300, 302, 304 (D. Mass. 2004) ; McGrath v. Nassau Health Care Corp. , 209 F.R.D. 55, 60, 65 (E.D.N.Y. 2002) ; Strong v. Wisc. , No. 07-C-086-C, 2007 WL 5445863, at *1 (W.D. Wis. 2007) (unpublished opinion); to establish standing to bring a wrongful-death claim, Turk v. Mangum , 268 F.Supp.3d 928, 939 (S.D. Tex. 2017) ; and to help determine whether the beneficiary of a murdered victim's insurance proceeds may have been involved in the murder, Kiniun v. Minnesota Life Insurance Company , No. 3:10CV399/MCR/CJK, 2012 WL 12899102, at *2-3 (N.D. Fla. 2012) (unpublished opinion). The discovery provision found in our statute and Federal Rule 35 explicitly allows for blood tests, one method by which DNA samples could be obtained and a more intrusive method than the cheek swabs often used now. At least two other states have interpreted similar civil-discovery provisions to allow DNA testing. E.g., Kaull v. Kaull , 389 Ill.Dec. 271, 26 N.E.3d 361, 367 (App. 2014) ; In re Estate of Gaynor , 13 Misc. 3d 331, 333, 818 N.Y.S.2d 747 (2006). We see no reason to interpret our state's similar provision differently. Having established that testing may be ordered, when should a court find "good cause" to do so? Federal courts generally require a showing that (1) the DNA evidence is relevant; (2) providing a sample will not unduly infringe on privacy rights; and (3) there is a reasonable possibility of a match or non-match, depending on the party seeking the test. Kiniun , 2012 WL 12899102, at *2 (citing cases); Hudson v. Dr. Michael J. O'Connell's Pain Care Center, Inc. , No. 11-CV-278-JD, 2012 WL 405483, at *1 (D.N.H. 2012) (unpublished opinion) (considering whether [1] DNA test relevant; [2] the extent of the intrusion into privacy; and [3] the protections to guard the information to avoid privacy concerns); see also Hawkins-Robertson v. Hessler , 945 So.2d 139, 143 (La. App. 2006) (adopting similar factors). The considerations used by these courts seem appropriate. They recognize the significant privacy concerns raised by DNA testing-particularly when used to establish family heritage. In addition, in a case challenging a presumption of paternity, the court must consider the basis for any applicable presumptions and, under Ross , the child's best interests. We recognize, of course, that the Ross best-interests test may not have any significant weight here. Delwyne died in 2002, so there may be no "best interests" reason to avoid testing-though we don't know whether reconsidering his lineage would have any potential effect on people who may still be alive. We leave those considerations in the first instance to the district court. III. The District Court Abused Its Discretion in This Case Because It Did Not Realize It Had the Discretion to Order Genetic Testing and Thus Didn't Consider the Discretionary Judgment Call It Needed to Make. Because the Ross test and Parentage Act presumptions apply, whether to order DNA testing-even if legally authorized-is a discretionary decision the trial court must make after considering the presumptions and the child's best interests. We review discretionary decisions only for abuse of discretion. That discretion is abused when the court bases its decision on an error of fact or law or when its decision is highly unreasonable. State v. Miles , 300 Kan. 1065, 1066, 337 P.3d 1291 (2014). A court abuses its discretion by failing to exercise that discretion based on a misunderstanding of the law. See Green , 54 Kan. App. 2d at 121, 397 P.3d 1211. In our case, the district court thought it had no authority to order DNA testing, so it made its decision based on an error of law: The district court never considered the factors we've identified here in deciding whether to order the testing. That's an abuse of discretion. We express no opinion about whether DNA testing should be ordered. The district court may still conclude-after considering the factors we've noted in our opinion-that testing should not take place. That decision would be supported by several paternity presumptions under the Kansas Parentage Act and would avoid raising questions about Delwyne's family heritage after his death. But that is a discretionary judgment call for the trial court to make, not us. We vacate the judgment of the district court and send the case back to that court for further proceedings.

Schroeder, J.: As part of his 1995 property settlement agreement approved by the district court, Eric G. Strom agreed to pay his former wife, Christina A. Strom, a portion of his military retirement pay until one of them dies. For reasons not reflected in the record, no payments have been made to Christina for over 22 years. The district court determined the agreement to pay part of Eric's military retirement pay each month created a monthly judgment as each month passed. In doing so, it found the judgments for the last five years enforceable and for years six and seven revived. Eric appeals. We agree with the district court on this point and affirm. FACTS Eric and Christina Strom married in 1986 and divorced in 1995. At the time of the divorce, Eric had retired from the military and was receiving military retirement benefits. In the Separation and Property Settlement Agreement (Agreement), Eric agreed to give Christina a portion of his military retirement benefits: "2.10 Military Retirement Pay. The HUSBAND agrees that during this marriage the WIFE has earned an independent property right to a portion of his military retirement. The HUSBAND agrees that the WIFE should be entitled to receive as her share fifty percent (50%) or Seven Hundred Forty-Three and No/100 Dollars ($743.00) of his military retirement pay, which he is presently receiving, commencing on the first day of the month following the finalization of this divorce for a period of ten (10) years. After July 1, 2005, the WIFE shall be entitled to receive twenty percent (20%) of HUSBAND's military retirement pay. "The WIFE shall receive by direct payment from the military finance center the amount set forth above less Federal and State Income tax withholding deductions. The HUSBAND agrees to provide any information or documentation the WIFE may need to complete her request for direct payment of disposable military retirement pay from the Military Finance Center. "Payments to the WIFE shall terminate upon the death of the WIFE or HUSBAND, whichever occurs first. "Each party shall be responsible for their own taxes due to their income from the military retirement." The district court approved the Agreement and incorporated it as part of the divorce decree. Eric never made any payments under the Agreement. Almost 22 years later, in 2017, Eric moved to declare the division of his military retirement account to be void and an unenforceable judgment. He asserted the judgment was dormant because Christina failed to file a renewal affidavit within five years of the divorce and did not revive the judgment within seven years of the divorce. Eric also asserted the judgment should be barred by laches because Christina waited more than 21 years to attempt to enforce the judgment. Christina then moved to enforce the judgment and to revive the judgment. The district court initially denied Christina's motion to enforce the judgment finding the division of retirement benefits was a dormant judgment because Christina had the ability to enforce her judgment by filing a qualified domestic relations order (QDRO). The order did not address Eric's laches argument. Christina moved for reconsideration, pointing out she was not eligible to receive direct payment of Eric's military retirement under federal statute because they were not married for 10 years. She argued the judgment required installment payments and, as a result, each payment expired seven years after it became due instead of the entire judgment expiring in 2002. The district court agreed with Christina's argument and held all payments after September 1, 2010, were revived and enforceable. The district court did not address whether laches applied. The judgment is subject to reviver. Eric argues the district court erred when it granted Christina's motion to enforce the judgment because the judgment was dormant. Since K.S.A. 2017 Supp. 60-2403 governs dormancy of judgments, this court has unlimited review. See Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015) (holding interpretation of a statute is a question of law over which appellate courts have unlimited review). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 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. 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. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). K.S.A. 2017 Supp. 60-2403 states: "(a)(1) Except as provided in subsection (b), if a renewal affidavit is not filed or if execution, including any garnishment proceeding, support enforcement proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, including judgments in favor of the state or any municipality in the state, or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. When a judgment becomes and remains dormant for a period of two years, it shall be the duty of the judge to release the judgment of record when requested to do so. (2) A 'renewal affidavit' is a statement under oath, signed by the judgment creditor or the judgment creditor's attorney, filed in the proceedings in which the judgment was entered and stating the remaining balance due and unpaid on the judgment. .... "(c) The time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited." K.S.A. 2017 Supp. 60-2403(a) applies to judgments in divorce actions. See Bank IV Wichita v. Plein , 250 Kan. 701, Syl. ¶ 3, 830 P.2d 29 (1992) ; see also In re Marriage of Larimore , 52 Kan. App. 2d 31, 42, 362 P.3d 843 (2015) (holding division of a party's retirement account in a divorce decree is a judgment subject to K.S.A. 2014 Supp. 60-2403 when the division is a final determination of the parties' interests in the marital estate). In Larimore , the panel held K.S.A. 2014 Supp. 60-2403(c) does not toll the running of the dormancy period for a divorce decree judgment dividing retirement plans governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 (2012) et seq. The panel concluded the judgment was not stayed because the legal process for enforcing the judgment-filing a QDRO-was not stayed or prohibited before the benefits become payable. Since the legal process for enforcing the judgment was available to the wife, and she failed to file a QDRO or renewal affidavit within seven years of the divorce decree, the panel held the judgment was "absolutely extinguished and unenforceable." 52 Kan. App. 2d at 44, 362 P.3d 843. Eric argues Larimore should control. He contends Christina cannot rely on K.S.A. 2017 Supp. 60-2403(c) because "no court order, statutory tolling period or other legal impairment" prevented her from collecting her share of his retirement account starting in 1995. He asserts the fact that some payments were not yet due did not prevent her from executing in other ways or filing a renewal affidavit. Christina contends receiving direct payment from the military finance center was impossible because the parties had not been married for at least 10 years. She contends Larimore and its line of cases are distinguishable because the Department of Defense will not pay her directly and the only way for her to receive her share of the military retirement is for Eric to pay her. Thus, she asserts, the divorce decree set out monthly installment payments payable over an indefinite number of months and years. Christina argues the divorce decree did not determine the specific amount Eric was to pay her and, since the payments terminated upon the death of either party, there was no way to establish the total amount of the payments. She contends the district court "obviously retained jurisdiction to ... enforce the parties' agreement to calculate amount paid and owed, to determine what amount constituted 20% in accordance with the Agreement, and to order termination of the payments upon death of either party." As a result, Christina asks this court to apply the holding of Wichita Fed. Sav. & Loan Ass'n v. North Rock Rd. Ltd. Partnership , 13 Kan. App. 2d 678, 684, 779 P.2d 442 (1989) : "[T]he same rules that apply to alimony or child support installments also apply to a judgment for a division of property which is payable in installments commencing in the future and payable over a term of years. .... "... As to the judgment payable in installments, the dormancy period commenced as to each installment when it became due and was collectable by execution or other legal process." Eric argues Wichita Federal should not be expanded to apply to division of retirement assets. We find Christina's argument more persuasive. This case is distinguishable from Larimore . In Larimore , had the wife filed a QDRO, she would have begun receiving under the retirement plan when it began to pay out. In contrast, even if Christina had filed a QDRO, it would have been futile. Under 10 U.S.C. § 1408(d)(2) (2012), to receive a portion of a spouse's military retirement pay directly, the parties must have been married for a period of at least 10 years during which one of the parties was in the military. Christina and Eric were only married for nine years. As a result, even if Christina had filed a QDRO, the Department of Defense would not have honored her QDRO. The only way for Christina to receive the military retirement pay awarded her in the Agreement was for Eric to pay it directly, something he failed to do. The military retirement pay Eric agreed to pay Christina was a percentage of his monthly payment from the Department of Defense and thus a monthly installment payment Eric should pay each and every month as it becomes due. The Agreement states Christina was entitled to her portion "commencing on the first day of the month following the finalization of this divorce." The Agreement does not specify a total amount Eric must pay Christina; it does not establish a lump sum distribution at some point in the future and talks about the percentage owed on the first of each month. The Agreement acknowledges the monthly military retirement payments terminate only upon the death of either party. Because each payment was not due until the first of the month-and only if both parties were still living-Christina could not act to enforce the judgment before the first of each month as it became due. We find the monthly military retirement payments should be treated like installment payments and, under Wichita Federal , the dormancy period for each individual payment started when it became due and collectable on the first of each month until the death of either party. The district court did not err when it found the divorce decree "provided for monthly payments, which became monthly judgments," now subject to execution upon for the last five years and revived for years six and seven. Affirmed.

Powell, J.: Aaron Nash appeals the district court's grant of summary judgment in favor of Patrick T. Blatchford, M.D., for Nash's failure to file a notice of claim under K.S.A. 2017 Supp. 12-105b(d). Nash argues the district court erred because (1) he was not required to file a notice of claim since Blatchford is an independent contractor of a municipal hospital and K.S.A. 2017 Supp. 40-3403(h) abrogated a hospital's vicarious liability in malpractice claims; (2) if Blatchford is an employee of a municipal hospital, the district court erred in retroactively applying the 2015 amendments to K.S.A. 12-105b(d) to bar his claim; and (3) the K.S.A. 2017 Supp. 12-105b(d) notice of claim requirement denies equal protection under the laws to medical malpractice victims of physicians employed at municipal hospitals. For the reasons more fully explained below, we disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND On January 5, 2017, Nash filed a medical malpractice suit against Blatchford, asserting damages from an alleged negligently performed surgery in January 2015. After filing his answer, Blatchford moved for summary judgment, arguing the district court lacked jurisdiction over Nash's claim because Blatchford is an employee at a municipal hospital and Nash was required and failed to file a written notice of claim under K.S.A. 12-105b(d) before suing him in the district court. Blatchford attached an affidavit (not included in the record on appeal), attesting to his employment status at South Central Kansas Regional Medical Center (South Central). Blatchford also argued that because of Nash's failure to comply with the notice requirement and the expiration of the two-year statute of limitations on his claim, any later attempt by Nash to refile the claim after filing a notice of claim was time-barred according to Gessner v. Phillips County Comm'rs , 270 Kan. 78, 11 P.3d 1131 (2000). Nash asserted several arguments in response, including-assuming Blatchford is an employee of South Central-that the 2015 amendments to K.S.A. 12-105b(d) should not apply retroactively to bar his claim and he need not file a notice of a claim under K.S.A. 12-105b(d) because K.S.A. 40-3403(h) abrogated a hospital's vicarious liability for a doctor's negligence whether the doctor was an employee or an independent contractor. Finally, Nash argued that because the parties had not conducted discovery, summary judgment was premature on whether Blatchford was an employee or an independent contractor of South Central. After hearing additional argument, the district court ordered the parties to conduct discovery and to submit supplemental briefing on Blatchford's employment status. These facts remained uncontroverted. Blatchford is licensed to practice medicine as a physician in Kansas. South Central is a municipally owned hospital subject to K.S.A. 75-6101 et seq., the Kansas Tort Claims Act (KTCA). Blatchford entered into a written contract with South Central in 2006 during his residency program and then entered into a new written contract in 2008 (with a 2010 addendum), which is still in effect. Nash asserted no claims against South Central. Between December 2014 and January 7, 2015, Nash received medical care and treatment from Blatchford. After discovery, the district court granted summary judgment for Blatchford, holding it lacked jurisdiction to consider Nash's claim because Blatchford was an employee of South Central and Nash had failed to file a notice of claim as required under K.S.A. 2017 Supp. 12-105b(d). Nash timely appeals. I. WAS NASH REQUIRED TO FILE A NOTICE OF CLAIM ? Our standard of review of a district court's grant of summary judgment is well established: " 'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' An appellate court reviewing a district court's ruling on a motion for summary judgment applies the same legal standard and, because the motion is considered on uncontroverted facts and under the same standard as the district court, reviews the matter de novo as a question of law, granting no deference to the district court's judgment. [Citations omitted.]" Cady v. Schroll , 298 Kan. 731, 734, 317 P.3d 90 (2014). To the extent our review requires interpretation of K.S.A. 2017 Supp. 12-105b, or any other relevant statute, this too "is a question of law subject to de novo review. When interpreting a statute, the court first attempts to discern the legislature's intent through the language enacted, giving common words their ordinary meanings. When statutory language is plain and unambiguous, the court does not speculate as to legislative intent, and does not read into the statute words not readily found there. It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning. [Citations omitted.]" Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014). "[E]ven when various statutory provisions are unambiguous, we may still construe them in pari materia with a view of reconciling and bringing the provisions into workable harmony." Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 919, 349 P.3d 469 (2015) (citing Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 571 U.S. 826, 134 S.Ct. 162, 187 L.Ed.2d 40 [2013] ). K.S.A. 2017 Supp. 12-105b(d) states: "(d) Any person having a claim against a municipality or against an employee of a municipality which could give rise to an action brought under the [KTCA] shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: ... Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality or against an employee of a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the [KTCA] shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action." (Emphasis added.) The notice of claim requirement under K.S.A. 2017 Supp. 12-105b(d) is a jurisdictional prerequisite to suing a municipality under the KTCA. Sleeth v. Sedan City Hospital , 298 Kan. 853, Syl. ¶ 1, 317 P.3d 782 (2014). Given that it is undisputed that Nash failed to give proper notice under K.S.A. 2017 Supp. 12-105b, we must determine the existence of two conditions precedent to the notice requirement: First, whether Nash's claims fall under the KTCA; and second, whether Blatchford is an employee of South Central. If both are answered in the affirmative, then Nash was required to give notice under K.S.A. 2017 Supp. 12-105b, and his failure to do so bars his claims. We will address each in order. A. Did Nash's claims fall under the KTCA? At common law, the longstanding rule was that the State, as the sovereign, was immune from suit unless it consented. The Legislature provided that consent when it enacted the KTCA; now, subject to certain exceptions, liability is the rule and immunity the exception. Fettke v. City of Wichita , 264 Kan. 629, 633, 957 P.2d 409 (1998) ; see also K.S.A. 2017 Supp. 75-6103(a) (each governmental entity liable for damages caused by negligent acts of its employees acting within scope of employment). One exception is that claims based upon the rendering of professional services by a health care provider, such as the practice of medicine, are excluded from coverage under the KTCA. K.S.A. 2017 Supp. 75-6115(a). K.S.A. 2017 Supp. 75-6115(c)(3) utilizes the health care provider definition from K.S.A. 40-3401(f) : "a person licensed to practice any branch of the healing arts by the state board of healing arts" and "a medical care facility licensed by the state of Kansas." K.S.A. 2017 Supp. 75-6115(c)(4) includes a hospital within the definition of a medical care facility contained in K.S.A. 65-425. It is uncontroverted that South Central is a municipal hospital and that Blatchford is a physician licensed to practice by the Board of Healing Arts; both are health care providers, suggesting, at first blush, that they fall under the exclusion to coverage under the KTCA. But the same statute that excludes the rendering of professional services by a health care provider from the KTCA also lists six exceptions from this exclusion, one being any claim made against "a hospital owned by a municipality and the employees thereof." K.S.A. 2017 Supp. 75-6115(a)(2). Here, it is also undisputed that South Central is owned by a municipality; therefore, it would appear that any malpractice claim against South Central or its employees must fall under the KTCA. However, Nash argues that Blatchford, as a health care provider, cannot be an employee as defined by the KTCA because health care provider is not included within the definition of employee contained in K.S.A. 2017 Supp. 75-6102(d)(1), meaning that the exclusion from the KTCA should apply to Blatchford because he is a health care provider rendering professional services. Nash is correct that K.S.A. 2017 Supp. 75-6102(d)(1) broadly lists a number of persons to be considered employees under the KTCA and does not include health care providers. But we disagree with Nash that the Legislature intended to exclude as employees all persons not specifically included in the statute. First, K.S.A. 2017 Supp. 75-6102(d)(2)(B) specifically excludes independent contractors as employees, suggesting that the list of employees contained in K.S.A. 2017 Supp. 75-6102(d)(1) is not exclusive. Second, K.S.A. 2017 Supp. 75-6102(d)(1)(A) specifically includes "employee" in its definition of employee, meaning the Legislature intended to provide a broad definition of the term. Thus, we reject Nash's contention that a health care provider such as Blatchford must be excluded from the definition of employee under the KTCA. Accordingly, Nash's claims against Blatchford fall within the KTCA if Blatchford is an employee of South Central. Therefore, we must determine whether the district court properly found Blatchford to be an employee based on his contract with South Central. B. Is Blatchford an employee or an independent contractor of South Central? As a preliminary matter, we note the parties dispute how we should review the district court's ruling that Blatchford was an employee of South Central. Nash argues that whether a person is an employee or an independent contractor is always a question of fact. Blatchford argues that if a written contract controls, then we are to exercise unlimited review over the district court's ruling whether the person is an employee or an independent contractor as a matter of law. "The criteria for determining whether an employment relationship or, in the alternative, an independent contractor relationship exists vary under different contexts. ... [T]here is no absolute rule for determining whether an individual is an independent contractor or an employee." Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources , 272 Kan. 265, 270, 32 P.3d 1146 (2001). " 'Where the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor. However, generally speaking, the question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts.' " McCubbin v. Walker , 256 Kan. 276, 281, 886 P.2d 790 (1994) (quoting Falls v. Scott , 249 Kan. 54, 64, 815 P.2d 1104 [1991] ). Our Supreme Court recently directed: " 'The interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review, including whether a written instrument is ambiguous.' [An appellate court's] review is 'unaffected by the lower courts' interpretations or rulings.' " ' "The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction." If, on the other hand, the court determines that a written contract's language is ambiguous, extrinsic or parol evidence may be considered to construe it. In addition, " ' "[a]n interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners. The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. ... " '... But, if the language of a contract is ambiguous and the intent of the parties cannot be ascertained from undisputed extrinsic or parol evidence, summary declaratory judgment is inappropriate.' Waste Connections of Kansas, Inc. v. Ritchie Corp. , 296 Kan. 943, 963-64, 298 P.3d 250 (2013)." Trear v. Chamberlain , 308 Kan. 932, 936-37, 425 P.3d 297 (2018). Nash does not argue the written contracts between Blatchford and South Central are ambiguous. Instead, he argues that if we review the contractual language and the parties' intent under the 2008 contract and 2010 addendum, we would find that Blatchford is an independent contractor. We agree with another panel of our court which dealt with the same issue and determined that its standard of review was unlimited because determination of whether the plaintiff was an employee or independent contractor could be determined by examining the relevant written agreement. "The specific issue argued by Knorp is that the trial court erred in determining that Albert's written contract with the hospital made him an employee rather than an independent contractor. In this context, an appellate court may independently construe a written agreement to determine its legal significance. There are at least two Kansas Supreme Court cases holding that the question of whether one is an employee or independent contractor is generally a question of fact. However, in this case, an unambiguous written contract controls the employment relationship, and we conclude the interpretation of that agreement is properly a matter of law subject to unlimited review. [Citations omitted.]" Knorp v. Albert , 29 Kan. App. 2d 509, 512, 28 P.3d 1024, rev. denied 272 Kan. 1418, --- P.3d ---- (2001). Accordingly, we apply an unlimited standard of review to determine whether the district court correctly found, as a matter of law, that Blatchford was an employee under the contract. Although our review focuses on the parties' contractual relationship, as discussed generally above, two statutes also provide a definition of employee that may impact our review. Because we first attempt "to discern the legislature's intent through the language enacted," our review starts there. Whaley , 301 Kan. at 196, 343 P.3d 63. The KTCA, specifically, K.S.A. 2017 Supp. 75-6102(d)(1)(A), broadly defines an employee as: "[a]ny officer, employee, servant or member of a board, commission, committee, division, department, branch or council of a governmental entity, including elected or appointed officials and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation and a charitable healthcare provider[.]" K.S.A. 2017 Supp. 75-6102(d)(2)(B) largely excludes independent contractors as employees. K.S.A. 2017 Supp. 12-105a(h), which deals with claims against municipalities, defines employee similarly to the KTCA as "any officer, employee, servant or member of a board, commission, committee, division, department, branch or council of a governmental entity, including elected or appointed officials and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation." The statute also excludes independent contractors from its definition of employees: " 'Employee' does not include an independent contractor working for a municipality under contract." But neither statute defines an independent contractor. Compare K.S.A. 2017 Supp. 75-6102(d) with K.S.A. 2017 Supp. 12-105a. Kansas courts, however, have consistently defined an independent contractor as "one who, in exercising an independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of his or her work. The primary test used by the courts ... is whether the employer has the right of control and supervision over the work of the alleged employee and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. An independent contractor is one who, in the exercise of an independent employment, contracts to do a piece of work according to his own methods and who is subject to his employer's control only as to the end product or final result of his work. [Citation omitted.]" Hartford , 272 Kan. at 270-71, 32 P.3d 1146. But Kansas courts do not rely exclusively on the right to control test and apply other multifactor tests to make the determination of whether a person is an employee or an independent contractor. See, e.g., Olds-Carter v. Lakeshore Farms, Inc. , 45 Kan. App. 2d 390, 401-03, 250 P.3d 825 (2011) (explaining multifactor tests). Nash argues that Blatchford is an independent contractor because he is the named insured on the malpractice insurance and because South Central has no control over how and when Blatchford operates on patients. Nash relies on one contractual provision to support his argument. That contractual provision states: "6. PROFESSIONAL RESPONSIBILITY. In the areas of diagnosis and treatment of patients, Doctor's professional responsibility shall be complete and Employer shall not, through its Board of Trustees or any of its officers or employees, direct, supervise or control Doctor in Doctor's professional care of any individual patient; provided, however, Employer shall not be prevented from establishing general rules governing the rendering of medical care to patients or relieving Doctor of the care of an individual patient." Another panel of this court addressed a similar situation in Knorp . There, Knorp filed a lawsuit to recover damages against Albert for misdiagnosing her. The trial court granted Albert summary judgment because Knorp failed to provide the proper notice pursuant to K.S.A. 2000 Supp. 12-105b(d). Knorp appealed. The Knorp panel then reviewed the factors outlined in the Restatement (Second) of Agency § 220(2) (1958) used to determine if a person is an employee or an independent contractor: " '(a) the extent of control which, by the agreement, the master may exercise over the details of the work; " '(b) whether or not the one employed is engaged in a distinct occupation or business; " '(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; " '(d) the skill required in the particular occupation; " '(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; " '(f) the length of time for which the person is employed; " '(g) the method of payment, whether by the time or by the job; " '(h) whether or not the work is a part of the regular business of the employer; " '(i) whether or not the parties believe they are creating the relation of master and servant; and " '(j) whether the principal is or is not in business.' " 29 Kan. App. 2d at 514, 28 P.3d 1024. Nash argues that we should find Blatchford is an independent contractor and points to Brillhart v. Scheier , 243 Kan. 591, 758 P.2d 219 (1988), for support. There, a pastor-Scheier-was involved in an automobile accident with the plaintiffs, who sued both Scheier and, under a theory of respondeat superior, the Catholic Diocese of Wichita. The district court granted summary judgment for the diocese and held that Scheier was an independent contractor. On appeal, the plaintiffs argued the district court erred in granting summary judgment because a question of material fact existed for the jury to decide: Whether an employer-employee relationship existed between Scheier and the diocese. A majority of our Supreme Court held that the district court correctly found Scheier was an independent contractor and the diocese was entitled to judgment as a matter of law. 243 Kan. at 597, 758 P.2d 219. Under the " 'right to control test,' " the following facts supported that Scheier was an independent contractor: The diocese had no control over his day-to-day activities; while the diocese set his salary and could remove Scheier, Scheier had significant control over these areas; Scheier had control over the running of his parish; he performed duties as he saw fit; and the diocese required him to make only annual status and planning reports. While the majority also noted that some of the Restatement factors supported the Brillharts' position-specifically Scheier's long-term employment-the court also held that several other factors supported the diocese's position that the district court did not err in granting summary judgment: The diocese had no control or supervision over the details or completion of Scheier's work, which required a high level of skill and experience; Scheier had control over his workplace, provided his own supplies, and his salary came from parish proceeds. As applied to the circumstances of the case, Scheier drove his own car, paid for his car insurance, and was visiting a friend without the diocese's permission or request. Blatchford argues we should compare his case to Knorp and find the district court did not err in finding that he is an employee of South Central. On appeal, Knorp argued Albert was an independent contractor, mainly relying on a single clause in Albert's contract prohibiting the hospital from directing, supervising, or controlling his professional care of patients. The panel rejected her argument and found, in part, that the provision might be required in every physician contract to address medical ethics concerns based on two federal court cases: Quilico v. Kaplan , 749 F.2d 480, 483-84 (7th Cir. 1984), and Lurch v. United States , 719 F.2d 333, 337 (10th Cir. 1983). 29 Kan. App. 2d at 514-15, 28 P.3d 1024. The panel concluded that "rather than relying on certain isolated provisions in the agreement, the status of a physician should be determined by careful attention to the entirety of the contractual agreement and to the intent of the parties." 29 Kan. App. 2d at 515, 28 P.3d 1024. The Knorp panel explained that a doctor who purchases malpractice insurance and pays his or her professional dues or fees is an independent contractor. When applying Albert's contract provisions to the Restatement factors, the panel found the fact that the hospital purchased Albert's malpractice insurance and gave him an allowance to pay for professional meetings and dues indicative that Albert was an employee. The panel held that the intent of the parties-based on the contractual language-showed Albert was an employee, in part, because the words "independent contractor" were not used in Albert's employment agreement. 29 Kan. App. 2d at 516-17, 28 P.3d 1024. Like the panel in Knorp , when applying the Restatement factors to Blatchford's 2008 contract and 2010 addendum, we find that Blatchford is an employee of South Central. (1) Length of contract and method of payment The parties entered a long-term contractual relationship. Under the 2008 contract, South Central and Blatchford entered into an initial two-year term that would continue in one-year terms. The 2010 addendum became effective on July 1, 2010, and continues the agreement until June 30, 2019, subject to reviews for compensation and other benefits. South Central pays Blatchford an annual salary with bonuses and requires him to work full time, or 40 hours per week, 52 weeks of the year subject to vacation time. The 2010 addendum also requires Blatchford to assume off-call and on-call duties at South Central. Blatchford receives benefits as a physician employee, has paid time off, and South Central must schedule his vacation or approved absences in a reasonable manner. (2) The instrumentalities, tools, and place of work Under the contract, South Central provides Blatchford with facilities, equipment, supplies, and support staff-including receptionists and nurses. South Central reimburses Blatchford for some expenses, such as licensing fees, privileging fees, attendance at professional meetings, subscriptions to professional literature, and any reasonable and necessary professional expenses with advanced approval. South Central pays Blatchford's medical malpractice insurance at least up to the minimum amount required under Kansas law. (3) Intent of the parties and whether the one employed is involved in a distinct occupation or business The 2008 contract supports the proposition that the parties intended to establish an employer-employee relationship. The contract expressly defines South Central as "Employer" and Blatchford as "Doctor." Moreover, the contract states that "rather than commencing the private practice of medicine in Arkansas City, Kansas, as contemplated in the [2006 contract], Doctor now wishes to practice medicine as an employee of Employer." Under the contract, Blatchford also agreed to accept employment-subject to his being licensed in Kansas-"as a physician to carry out professional duties of the practice of medicine. In addition, Blatchford's professional services are not distinct from South Central. South Central permits Blatchford to seek help from any other professional employee to diagnose and treat his patients, and Blatchford agrees to assist other employees. Blatchford must comply with South Central's rules and regulations and carry out and perform any of South Central's orders, directions, and policies which may be required from time to time. South Central provides Blatchford the facilities, equipment, supplies, and support staff. South Central has final authority over accepting patients and sets the fee amounts charged for professional services. While Blatchford must maintain patient medical records, all records remain South Central's property. All fees Blatchford receives are South Central's property, including fees received for work at other hospitals, "moonlighting," teaching, speaking engagements, consultations, etc. Finally, Blatchford cannot engage in any other gainful employment without South Central's prior consent, and he is subject to a noncompete clause if the relationship is terminated. (4) Control over details Blatchford acknowledges that South Central provides him with independence on how and when he operates on patients but argues we should not find this fact dispositive for determining whether he is an independent contractor or an employee under the contract. We agree. As the Knorp panel held: "[S]tanding alone, the mere fact that the hospital had no right to control or supervise [the physician] in his 'professional care of any individual patient' was not sufficient to create an independent contractor relationship." 29 Kan. App. 2d at 515, 28 P.3d 1024. Blatchford's argument mirrors the well-established principle that " 'interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners.' " Trear , 308 Kan. at 936, 425 P.3d 297. Even when considering the specific provision alone, South Central maintains some control over Blatchford's treatment and care of his patients because South Central may create rules governing his work generally and may relieve Blatchford of his care of a patient. Other contractual provisions show South Central maintains some control over Blatchford's work. South Central has final authority over the amount of fees charged for his professional services and whether to accept a new patient, and the fees collected for Blatchford's services and the records created remain South Central's property. South Central also requires Blatchford to comply with its rules and regulations and to carry out any orders, directions, and policies. Finally, under his contract, Blatchford must engage in the practice of medicine to the best of his ability and within the community standards of his profession and he must work full time for the hospital. Based on a review of the contract as a whole, South Central does have some control over Blatchford's work. While the parties in Brillhart did not review a written contract to determine if Scheier was an employee or an independent contractor, the Restatement requires no contractual or business relationship to make such determination. See Restatement (Second) Agency § 220, comment (1)b. Even without that distinction, Brillhart is distinguishable. Here, South Central has more control over Blatchford's work under the contract than the diocese had over Scheier's work. Specifically, though South Central does not exercise control over the details of Blatchford's highly skilled work, South Central has some control over his work generally. South Central has final authority over Blatchford's acceptance of a new patient and may remove a patient from his care; and South Central requires Blatchford to comply with the rules and regulations, work full time, obtain and maintain his privileges, and perform his work up to community professional standards and to the best of his ability. In addition, South Central has a long-term contractual relationship with Blatchford; pays Blatchford an annual salary with bonuses; pays for his medical malpractice insurance; reimburses some of Blatchford's professional expenses and licensing dues; provides facilities, equipment, supplies, and support staff; and requires that all fees Blatchford receives and patient records he creates remain South Central's property. When viewing all of the contractual provisions, we find that Blatchford is an employee of South Central. Because Blatchford is an employee of South Central, Nash's claims against him fall under the KTCA and Nash was required by K.S.A. 2017 Supp. 12-105b to file a written notice of claim before suing. Nash did not do so; therefore, his claims are barred. C. Does K.S.A. 2017 Supp. 40-3403(h) abrogate all hospitals' vicarious liability for medical malpractice? Nash also argues that because K.S.A. 2017 Supp. 40-3403(h) abrogated all hospitals' vicarious liability for doctors in the medical malpractice context, the notice requirement in K.S.A. 2017 Supp. 12-105b(d) is meaningless and K.S.A. 2017 Supp. 40-3403(h) compels a finding that Blatchford is an independent contractor as a matter of law. K.S.A. 2017 Supp. 40-3403(h) states: "A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after July 1, 1986." Interpreting K.S.A. 40-3403(h), our Supreme Court has held that if two health care providers are qualified for coverage under the Health Care Stabilization Fund (Fund) created by the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., then " K.S.A. 40-3403(h) absolves a health care provider not just from vicarious liability but from any responsibility, including independent liability, if the injured party's damages are derivative of and dependent upon the rendering of or the failure to render professional services by another health care provider." Cady , 298 Kan. 731, Syl. ¶¶ 1, 317 P.3d 90, 2. " 'Vicarious liability' is a term generally applied to legal liability which arises solely because of a relationship and not because of any act of negligence by the person held vicariously liable for the act of another." Bates v. Dodge City Healthcare Group , 296 Kan. 271, Syl. ¶ 6, 291 P.3d 1042 (2013). But Nash asserts no claims against South Central. As a result, this case does not involve another health care provider's potential vicarious liability for Blatchford's alleged negligence. Nash has sued Blatchford for his acts or omissions while performing surgery or when providing Nash's care and treatment. Assuming Blatchford qualifies as a health care provider under the Fund, K.S.A. 2017 Supp. 40-3403(h) does not prohibit a claim against one health care provider for his or her negligent acts. In addition, K.S.A. 2017 Supp. 40-3403(h) contains no notice provision to conflict with K.S.A. 2017 Supp. 12-105b(d) but eliminates some forms of relief only when two health care providers both have coverage under the Fund. Thus, K.S.A. 2017 Supp. 40-3403(h) does not apply here and does not conflict with K.S.A. 2017 Supp. 12-105b(d). Nash also argues that the abrogation of vicarious liability under K.S.A. 2017 Supp. 40-3403(h) makes all physicians independent contractors by law. The argument strikes us as one in which the tail is wagging the dog. Nash's argument appears to rest on the underlying policy of vicarious liability which is also called imputed negligence and respondeat superior. See Bair v. Peck , 248 Kan. 824, Syl. ¶ 2, 811 P.2d 1176 (1991) ("The liability of a principal for the tortious acts of his agents and the liability of a master for the tortious acts of his servant are both grounded upon the doctrine of respondeat superior and are commonly referred to as vicarious liability."). As our Supreme Court has explained: "The phrase 'imputed negligence' refers to the doctrine which places upon one individual responsibility for the negligence of another. The doctrine of imputed negligence, or respondeat superior, has its origin in public policy. It is elemental that every person conduct his business so as not to cause injury to others, and if he conducts business through others, he is bound to manage them so third persons are not injured by the others while they are doing the principal's business within the scope of their authority. The doctrine is a 'fiction of the law,' not favored in this state, which is limited to master/servant (employer/employee) and joint enterprise relationships. These are relationships in which the potential respondents have sufficient control and responsibility for the actions of others to justify holding them liable for their actions. [Citations omitted.]" Brillhart , 243 Kan. at 593, 758 P.2d 219. Essentially, Nash argues that because a second health care provider cannot be vicariously liable under K.S.A. 2017 Supp. 40-3403(h) for negligence by a physician who is also covered under the Fund-whether the physician is an employee or independent contractor-then physicians are always independent contractors by law. We disagree because one does not flow from the other. Just because the Legislature abrogates the liability of the principal for the acts of its agent in a particular context does not mean that the agent cannot be an employee of the principal. As we have explained, the contract between Blatchford and South Central here supports the single conclusion that Blatchford is an employee, and the Legislature's decision to eliminate South Central's vicarious liability for any harm that may have resulted from Blatchford's rendering of professional services to Nash is immaterial to that analysis. The district court did not err in concluding that Blatchford was an employee under the contract as a matter of law. II. DID THE DISTRICT COURT ERR IN APPLYING THE 2015 AMENDMENTS TO K.S.A.12-105b(d) TO NASH'S CLAIM ? Effective July 1, 2015, the Kansas Legislature amended the notice of claim statute, K.S.A. 12-105b(d). L. 2015, ch. 28, § 2. Of particular importance to us, the prior version of K.S.A. 12-105b did not specifically apply to employees of municipalities. See K.S.A. 12-105b(d). Nash argues the district court erred in retroactively applying the 2015 amendments to K.S.A. 12-105b because his claims accrued before the effective date of those amendments. "In general, 'a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.' But a 'statutory change [that] does not prejudicially affect the substantive rights of the parties and is merely procedural' in nature may apply retroactively. 'Procedural laws relate to the " 'machinery for carrying on the suit, including pleading, process, evidence, and practice' and 'the mode or proceedings by which a legal right is enforced, that which regulates the formal steps in an action.' " ' In contrast, '[s]ubstantive laws give or define the right, give the right or denounce the wrong, or create liability against a defendant for a tort committed.' [Citations omitted.]" Norris v. Kansas Employment Security Bd. of Review , 303 Kan. 834, 841-42, 367 P.3d 1252 (2016). Nash relies on a federal district court case- Richard v. City of Wichita , No. 15-1279-EFM-KGG, 2016 WL 5341756, at *13 (D. Kan. 2016) (unpublished opinion)-to argue he has a vested right in his claim filed within the two-year statute of limitations and that the district court cannot retroactively apply the 2015 amendments to K.S.A. 12-105b(d) to destroy his claim. Unfortunately, Nash failed to attach a copy of Richard , an unpublished federal decision, to his brief as required under Kansas Supreme Court Rule 7.04(g)(2)(C) (2018 Kan. S. Ct. R. 45), so we could decline to consider his argument. See In re M.G. , No. 108,637, 2013 WL 2992927, at *6 (Kan. App. 2013) (unpublished opinion). This failure notwithstanding, Nash's reliance on Richard is misplaced. For background, several Wichita police officers shot Richard's husband on February 25, 2014, striking his body 16 times. Though he survived the shooting, he later committed suicide. Richard filed a notice of claim with the City under K.S.A. 12-105b(d) on February 19, 2015. The City denied her claim, and it was undisputed that Richard did not give notice to the individual officers. On September 16, 2015, Richard sued the officers, in part, and asserted battery claims. The officers argued the district court should dismiss the battery claims as time-barred based on the expiration of the one-year statute of limitations, but Richard argued the district court should retroactively apply K.S.A. 12-105b(d) as amended in 2015 to toll the one-year statute of limitations against the officers. The district court refused to apply the 2015 amendments retroactively and held: " '[O]nce a plaintiff's claim is barred by the statute of limitations, it cannot be revived' by the retroactive application of a statute. Therefore, if the claims against the individual officers were time-barred before § 12-105b(d) was amended, then the Court cannot apply the amendment retroactively. On December 24, 2014, Whaley held that § 12-105b(d) did not apply to individual municipal employees. The current version of the statute, that includes municipal employees, did not go into effect until July 1, 2015. So from December 24, 2014, until July 1, 2015, a claimant's notice to a municipality under § 12-105b(d) did not toll the statute of limitations with regards to individual municipal employees. Therefore, Plaintiff's notice to the City on February 19, 2015, did not toll the statute of limitations with regards to the officers. And so on February 25, 2015, the statute of limitations for a battery action against the individual officers had expired: the officers had a vested right in the statute of limitations defense. The Court will not retroactively apply a statute that would modify 'a vested right of defense that existed prior to the effective date of the procedural statute extending the statute of limitations.' " 2016 WL 5341756, at *13. Nash's vested right claim differs from the officers' claim in Richard . Nash has no vested right in a statute of limitations defense. Instead, Nash is seeking to pursue his claim filed within the statute of limitations and avoid a dismissal from his failure to comply with the notice of claim statute that was amended after his claim accrued. Thus, Richard does not support Nash's argument. Our Supreme Court reviewed whether to apply an amendment to the K.S.A. 12-105b(d) notice requirements under similar circumstances to our case in Stevenson v. Topeka City Council , 245 Kan. 425, 781 P.2d 689 (1989). In Stevenson , the amended statute "became effective on July 1, 1987-prior to the time Stevenson filed her petition on July 21, 1987, but subsequent to July 23, 1985, the date her tort claim accrued." 245 Kan. at 427, 781 P.2d 689. Our Supreme Court denied a similar vested right defense argument as misplaced but reasoned that there was merit in the claim that retrospective operation of the statute would modify Stevenson's vested right. The Stevenson court found that 23 days was not a reasonable time for Stevenson to comply with the notice requirements and refused to apply the 1987 amendments retroactively. 245 Kan. at 429-30, 781 P.2d 689. Our Supreme Court held that "[a] procedural statute will not be given retrospective application where a party does not have a reasonable time after the enactment of the statute to comply with notice requirements before the suit is barred." 245 Kan. 425, Syl. ¶ 4, 781 P.2d 689. Applying Stevenson , we reject Nash's argument because he had a reasonable amount of time after the enactment of the 2015 amendments to comply with the notice requirements. Nash filed his petition on January 5, 2017; his claim accrued on January 9, 2015. The 2015 amendments became effective July 1, 2015, after Nash's claim accrued but before he filed his petition. See L. 2015, ch. 28, § 2. Nash had about one and a half years after the enactment of the 2015 amendments to comply with the notice requirements before his suit was barred. Thus, because Nash had a reasonable time to comply with the notice of claim requirement, the district court did not err in applying the 2015 amendments to Nash's claim. III. DO THE 2015 AMENDMENTS TO K.S.A.12-105b(d) DENY MEDICAL MALPRACTICE VICTIMS OF DOCTORS EMPLOYED AT MUNICIPAL HOSPITALS EQUAL PROTECTION UNDER THE LAW ? In his final claim, Nash argues that the 2015 amendments to K.S.A. 12-105b(d) deny medical malpractice victims of municipally employed physicians equal protection under the law. "The Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Constitution Bill of Rights § 1 provides virtually the same protection. When the constitutionality of a statute is challenged on the basis of an equal protection violation, courts must construe the statute as constitutional if there is any reasonable way to do so. Consequently, in reviewing a statute we presume that it is constitutional and resolve all doubts in favor of its validity. An appellate court conducts unlimited review of this question because it presents a question of law. "The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. Only if there is differing treatment of similarly situated individuals are the federal and Kansas Equal Protection Clauses implicated. ... "After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied. Federal and Kansas courts have long delineated three levels of scrutiny in equal protection cases: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. ... "The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. [Citations omitted.]" Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc. , 292 Kan. 285, 315-16, 255 P.3d 1186 (2011). Nash makes a three-pronged argument: (1) K.S.A. 2017 Supp. 12-105b(d) treats medical malpractice victims of municipally employed physicians different than victims of nonmunicipally employed physicians; (2) the rational basis standard applies to his equal protection challenge; and (3) K.S.A. 2017 Supp. 12-105b(d) lacks any rational basis in law because requiring notice of a claim to a municipal hospital in which it cannot be held vicariously liable furthers no legitimate governmental interest. Blatchford does not contest Nash's first two arguments, so we examine Nash's equal protection challenge under the rational basis standard. See 292 Kan. at 316, 255 P.3d 1186. But Blatchford argues that the K.S.A. 2017 Supp. 12-105b(d) notice of claim requirement serves a legitimate purpose, based on reasoning in King v. Pimentel , 20 Kan. App. 2d 579, 590, 890 P.2d 1217 (1995), because K.S.A. 2017 Supp. 12-105b affords a municipality 120 days to investigate a claim, obtain legal advice and conduct discovery, and approve or deny a claim before a suit is filed. Under a rational basis review, "[w]ith regard to the evidence, '[a] State ... has no obligation to produce evidence to sustain the rationality of a statutory classification.' ' "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." [Citations omitted.]' Therefore, a rational basis will be found for a classification 'if any state of facts reasonably may be conceived to justify it.' [Citations omitted.]" Christopher v. State , 36 Kan. App. 2d 697, 709, 143 P.3d 685 (2006). Even if Nash's claim meets the first two steps, whether a municipal hospital can be vicariously liable for a municipally employed physician's malpractice does not negate the legitimate government interest in giving a municipal hospital notice of a claim against one of its employees. Notice statutes do not deny equal protection because " 'the requirement that claimants give notice of their claim is a reasonable restriction that applies equally to all persons wishing to sue the government.' " Phillips v. Humble , 587 F.3d 1267, 1273-74 (10th Cir. 2009). In U.S.D. No. 457 v. Phifer , 729 F.Supp. 1298, 1306 (D. Kan. 1990), the federal district court held that K.S.A. 12-105b did not offend the plaintiff's due process and equal protection rights: "The purpose of this provision is obviously to afford the public entity the opportunity to investigate the claim, to assess its liability, to attain settlement, and to avoid costly litigation. Therefore, the legislative classification of claims against public entities for special notice requirements serves a rational purpose." While South Central's concern about costly litigation is greatly mitigated by the fact that it cannot be held liable for Blatchford's actions, it does have legitimate competency and patient care interests which justify notice. See K.S.A. 2017 Supp. 65-4915 (peer review process). Nash's equal protection claim lacks merit. In conclusion, the unambiguous language of K.S.A. 2017 Supp. 12-105b(d) requires a person to comply with the notice of claim requirement when bringing any suit under the KTCA against a municipality, a municipal employee, or both. Although Nash's malpractice claim involved the rendering of professional services by a health care provider, Nash's suit was not excluded as a claim under the KTCA because Nash sued an employee of a hospital owned by a municipality. Accordingly, the district court only had jurisdiction to hear Nash's malpractice claims against Blatchford if proper notice had been given. As it is undisputed that Nash never filed a notice of claim under K.S.A. 2017 Supp. 12-105b, Nash's claims are barred. The district court did not err in granting summary judgment in favor of Blatchford. Affirmed.

Schroeder, J.: This contentious divorce action returns to our court following our remand in In re Marriage of Gerleman , No. 114855, 2017 WL 66339 (Kan. App. 2017) (unpublished opinion) ( Gerleman II ). In Gerleman II , we found Robert and Jeannette Gerleman's property settlement agreement incorporated into the divorce decree was ambiguous on the division of Robert's military retirement pay. We remanded for the district court to determine how it understood the parties agreed to divide his military retirement pay. Now, Robert argues the district court erred when it found the parties intended to divide the marital portion of Robert's military retirement pay equally. Robert on remand for the first time also argued the decree was void. Finally, Robert argues the district court erred when it determined the amount of maintenance he had to pay was not modifiable. We find the law of the case doctrine precludes Robert's arguments regarding whether the decree is void and find substantial competent evidence supports the district court's finding the parties intended to divide Robert's military retirement pay equally. However, we find the amount of maintenance Robert owed to Jeannette was not a matter settled by an agreement incorporated in the divorce decree and, as a result, maintenance was modifiable. Thus, we affirm in part, reverse in part, and remand. Gerleman II sets forth in detail the tortuous history of this case. Because we find the law of the case doctrine precludes Robert's voidness argument, we will only briefly summarize the facts leading to our opinion in Gerleman II . In 2012, after 20 years of marriage, Robert petitioned for divorce from Jeannette. In July 2013, the district court entered a divorce decree with an attached summary of division of property, which divided the parties' marital property in table format. In relevant part, it states: Item Husband Wife US Military Pension Divided at husband's retirement Divided at husband's retirement 5/9/13 (handwritten) based on military formula = # based on military formula = # years of marital service/total years of marital service/total months of military service months of military service TBD TBD Jeannette appealed the divorce decree and Robert cross-appealed. In re Marriage of Gerleman , No. 110461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion) ( Gerleman I ). The parties settled the issues, however, and jointly dismissed their appeals. Later, Jeannette filed a proposed qualified domestic relations order (QDRO) dividing Robert's military retirement pay. A different district court judge than the one who presided over the divorce heard arguments about what language to use in the QDRO. Based on the summary of division of property, the district court filed a QDRO dividing military retirement pay stating: "Amount of Payments to Former Spouse. The Former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 226 months of marriage during the Service Member's creditable service, divided by the Service Member's total months of creditable service." Robert appealed the QDRO. This court found the summary of division of property was ambiguous and remanded to the district court to determine how the summary of division of property assigned the pension between Robert and Jeannette upon Robert's retirement. While the case was pending before this court, Robert moved for relief under K.S.A. 2017 Supp. 60-260(b)(4), arguing the decree was void because there was no valid agreement between the parties, the court acted inconsistently with due process, and the alleged agreement was reached through mediation but was not reduced to writing or signed by the parties. Robert also asked the district court to find maintenance was modifiable or terminable because the decree did not incorporate an agreement on maintenance. In March 2017, the district court heard argument on whether the decree was void and whether a maintenance agreement was incorporated in the decree. A month later, the district court heard argument on how the district court had intended to divide the retirement pay. At that hearing, Jeannette testified she agreed to the "standard military formula" for the division of his military pay. She understood this to be the number of years they were married while he was active military divided by the number of years he was in the military, multiplied by 50 percent. Jeannette recalled no discussion of her portion of Robert's military retirement pay being something other than 50 percent, and she would not have agreed to it if it had been suggested. Jeannette testified she believed her portion of Robert's monthly military retirement pay was roughly $1,800 per month. Jeannette also explained that she believed she and Robert had agreed on all the items-including military retirement pay-necessary to complete the property settlement agreement. Robert testified he did not agree to the formula presented to the court and emphasized he objected several times. Without identifying any, Robert suggested they had discussed other multipliers during negotiations. After argument, the district court took the matter under advisement. The district court filed a memorandum decision May 12, 2017. It found the law of the case barred Robert's voidness argument because he should have incorporated it in his original appeal of the decree. The district court found the issue was settled when Robert dismissed his cross-appeal. It found the division of Robert's military retirement "was intended to be, and was ordered to be, equal" and determined Robert owed $61,123.25 in unpaid military retirement pay. The district court denied his motion for relief or to terminate maintenance because the decree "adopted what it found to be the agreement of the parties on the issue of maintenance." As a result, the district court found Robert in contempt for failing to pay maintenance because he had stopped paying maintenance in July 2016. Robert appealed. The property settlement and maintenance provisions are not void. Robert argues the divorce decree's provisions related to the property settlement and maintenance are void. " 'A judgment is void if the court that rendered it lacked jurisdiction of the parties, or if its actions resulted in a denial of due process.' " Sramek v. Sramek , 17 Kan. App. 2d 573, 576, 840 P.2d 553 (1992). As a result, a void judgment may be vacated at any time. In re Marriage of Hampshire , 261 Kan. 854, 862, 934 P.2d 58 (1997). Because a judgment is either valid or void as a matter of law, appellate courts have unlimited review. In re Adoption of A.A.T. , 287 Kan. 590, 598, 196 P.3d 1180 (2008). Robert contends the district court erred when it concluded the law of the case precluded a finding that the decree was void. Whether the law of the case doctrine applies is a question of law, and this court has unlimited review. State v. Parry , 305 Kan. 1189, 1194, 390 P.3d 879 (2017). The law of the case doctrine exists " ' "to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts." ' " 305 Kan. at 1194, 390 P.3d 879. When a subsequent appeal is brought in the same case, the issues are generally not reconsidered because the prior decision is the law of the case on all questions involved in the first appeal. 305 Kan. at 1195, 390 P.3d 879. Similarly, the law of the case doctrine requires a trial court, acting on remand from an appellate court, proceed in accordance with the mandate and law of the case as established on appeal. 305 Kan. at 1195, 390 P.3d 879. Robert contends the district court erred in finding the law of the case precluded a finding the decree was void because there is no appellate case finding the decree is not void. That said, this argument ignores one aspect of the law of the case doctrine: it also applies to issues a party did not raise, but could have raised, in a prior proceeding. Parry , 305 Kan. at 1195, 390 P.3d 879. Robert contends the division of property and maintenance orders are void because the district court: failed to find the division of property was valid, just, and equitable; violated K.S.A. 2017 Supp. 23-2902 ; erroneously bound the parties to an unsigned mediated agreement; and lacked the jurisdiction to bind the parties to a mediated agreement before it was reduced to writing and signed by the parties. He could have raised all of these arguments in Gerleman I or Gerleman II. The law of the case doctrine would normally apply to Robert's arguments. That said, a void judgment may be set aside at any time. Sramek , 17 Kan. App. 2d at 576, 840 P.2d 553 ; Barkley v. Toland , 7 Kan. App. 2d 625, 630, 646 P.2d 1124 (1982). Similarly, a party cannot acquiesce in a void judgment. Sramek , 17 Kan. App. 2d at 577, 840 P.2d 553. The question then is whether the law of the case doctrine precludes an argument that the judgment is void. Robert contends it does not. He asserts a motion to set aside a void judgment "may be made after prior appeals or after the time for appeal has run." Robert cites two cases to support his argument: Sramek and In re Marriage of Sumpter , No. 96256, 2007 WL 656424, at *4 (Kan. App. 2007) (unpublished opinion). Neither of these cases, however, found a judgment void following a prior appeal. In Sramek , the father was ordered to pay child support. In 1984, the district court found service had been obtained on the father by certified mail and the father was in contempt of court for failing to pay child support. In 1990, the mother moved for revivor of the child support order, and in 1991 the district court revived the dormant judgment. SRS moved to determine postjudgment interest, and the father moved to alter or amend the judgment. The district court ruled the father's motion to alter or amend was filed out of time and dismissed the motion. The father appealed. Although this court found an eight-year-old judgment void, it did so on its first appeal. Similarly, although Sumpter took nearly four years to resolve, there was only one appeal. There, the district court signed the divorce decree without reviewing any financial information and ordered the father to pay child support. A little over four years later, he moved to set aside the divorce decree as void. A different district court judge found there was no evidence for finding the decree fair, just, and equitable and set aside the decree as void. The mother's attempted appeal was dismissed as interlocutory. A year later, a third district court judge found the district court lacked jurisdiction over the motion to set aside the decree because it was untimely and vacated the order finding the decree void. The father moved to set aside the third judge's order. The fourth judge reinstated the second judge's order, finding the decree was void, and the mother appealed. Although this process took nearly four years, there was only one appeal. Neither Sramek nor Sumpter -nor any other Kansas case we have found-suggest a motion to vacate a void judgment may be filed after a prior appeal. But we have also been unable to find any Kansas caselaw suggesting the law of the case doctrine precludes a motion to vacate a void judgment after an appeal. This issue appears to be an issue of first impression in Kansas. The Georgia Court of Appeals, however, addressed this issue in Kent v. White , 266 Ga. App. 822, 598 S.E.2d 113 (2004), and held the defendant was precluded from arguing the judgment was void because he had not raised the issue in a prior appeal. Like Kansas, Georgia law allows a void judgment to be attacked at any time. See Ga. Code Ann. § 9-11-60(a) ("A judgment void on its face may be attacked in any court by any person."). In Kent , a jury awarded damages against the defendant for breach of contract, fraud, punitive damages, and attorney fees. On appeal, the Georgia Court of Appeals reversed the damages for fraud, punitive damages, and attorney fees and remanded for a new trial. The jury again awarded those damages. Kent appealed again but did not argue the judgment in the second trial was void. The Court of Appeals affirmed. Afterward, White sought discovery, and when Kent withheld compelled discovery information about his finances, the district court found him in contempt. Kent appealed, arguing the second judgment was void. The Georgia Court of Appeals held Kent's failure to raise a void judgment in his prior appeal precluded its review. 266 Ga. App. at 824, 598 S.E.2d 113. The Court of Appeals reiterated: "All issues which were or could have been raised in a prior appeal will not be considered in a subsequent appeal in the same case." 266 Ga. App. at 824, 598 S.E.2d 113.The Georgia Court of Appeals noted the Georgia Supreme Court has held: " '[N]o party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of a case and not certain of its limbs only, that the final judgment takes hold upon.... He must discharge all his weapons, and not reserve a part of them for use in a future encounter. He must realize that one defeat will not only terminate the campaign, but end the war.' " 266 Ga. App. at 824, 598 S.E.2d 113 (quoting R.O.A. Motors v. Taylor , 220 GA. 122, 127, 137 S.E.2d 459 [1964] ). We find Kent persuasive because it is consistent with Kansas law of the case caselaw; it merely applies it to void judgments. "A party may not settle the law of his case by piecemeal before this court, any more than he may settle the facts in that way before the district court. When the case is tried, he must be prepared to present his entire claim, or his entire defense." Headley v. Challiss , 15 Kan. 602, 607 (1875). Thus, we hold all issues-including voidness-that could have been raised in a prior appeal will not be considered in a later appeal. Robert has tried to resolve this case by piecemeal, testing one theory of relief after another. Unlike in Sramek and Sumpter , Robert had two prior appeals. He dismissed his original appeal of the divorce decree. And, like the defendant in Kent , he did not argue the property settlement agreement and maintenance order were void in Gerleman II . Now, in his third appeal, Robert suggests the decree is void for the first time. The law of the case doctrine precludes us from considering Robert's argument that the decree is void. As a result, we find it unnecessary to address the merits of his argument. The district court did not err when it found Robert in contempt. On appeal, Robert argued the finding of contempt should be set aside because the property settlement and maintenance provisions of the decree are void. He does not assert the finding of contempt should be set aside if the property settlement and maintenance provisions are valid. Issues not briefed are deemed waived and abandoned. In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018). Thus, since we have found the property settlement and maintenance provisions are valid, the finding of contempt is likewise valid. The district court did not improperly interpret or modify the decree. Robert argues the district court erred when it ignored evidence of the parties' intent when the agreement was made while interpreting the decree. As a result, he contends the district court improperly modified the decree. Unhelpfully, Jeannette's brief does not really argue this issue. Instead, it merely recites the district court's various findings of fact and conclusions of law with no analysis whatsoever. The interpretation and legal effect of a journal entry, like the interpretation of other written instruments, is a matter of law subject to unlimited review. In re Estate of Einsel , 304 Kan. 567, 579, 374 P.3d 612 (2016) (interpreting journal entry in earlier divorce proceeding). Thus, to the extent this court must interpret the decree, its review is unlimited. A court's factual findings, however, are generally reviewed under the substantial competent evidence standard. See Gannon v. State , 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014). "Substantial competent evidence is ' " 'evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.' " ' " Wiles v. American Family Life Assur. Co. of Columbus , 302 Kan. 66, 73, 350 P.3d 1071 (2015). This court's review of the district court's factual findings is limited to determining whether substantial competent evidence supports those findings. Robert contends the parties "never fully agreed on the terms of the division of the military retirement." He argues the district court erred on remand because it relied on Jeannette's testimony on her understanding of the agreement rather than reviewing the transcripts of two hearings which, he contends, shows there was no agreement between the parties. Robert asserts "inasmuch as the Decree purports to enforce an agreement, the record is replete with disagreement over this term." However, the law of the case doctrine precludes these arguments. In Gerleman II , the panel explicitly found the law of the case doctrine applied to any argument that there was no agreement: "The record does reflect the district court approved the summary of division of property as its order distributing the assets of this marriage. The decree of divorce was appealed by both parties, the issues involving the property division as contained in the divorce decree were settled pending the appeal, and that portion of the appeal was dismissed by our court pursuant to an order dated February 21, 2014. Thus, we are left with a final divorce decree that must be interpreted and applied for the benefit of both parties as the law of the case. " (Emphasis added.) 2017 WL 66339, at *4. Later, the panel again stated, "When neither party appealed the February 21, 2014, order from this court dismissing 'all issues related to the divorce and subsequent property settlement matters,' the divorce decree became the law of the case, and, as a result, both parties are prevented from relitigating issues related to the divorce and property settlement matters. " (Emphasis added.) 2017 WL 66339, at *5. Robert did not petition for review of this court's dismissal of Gerleman I or its opinion in Gerleman II. Thus, the law of the case doctrine precludes his arguments that there was no agreement on the division of military retirement pay. On remand, the district court found "divided" meant "divided equally" based on the formula. Substantial competent evidence supports that finding. First, as the district court noted, Robert and Jeannette were married for 20 years and nothing in the record suggested a reason for dividing the marital estate "in something other than a 50/50 fashion." In addition, the summary of division of property contains an equalization payment and the final balances for Robert and Jeannette are separated by a single penny. At the April 25, 2017 hearing, Jeannette testified she believed the division would have been 50 percent. She also testified she remembered no discussion of the division of military retirement pay being any number other than 50 percent. Robert also argues the district court's order dividing military retired pay impermissibly changed the decree by computing the pay based on 50 percent times a fraction. He contends the district court exceeded its jurisdiction because the QDRO "impermissibly added to and amended the language contained in the decree." He asserts there is no mention of retirement being divided equally or the parties agreeing to a multiplier of 50 percent. Robert's argument is unpersuasive. The district court found "divided" in the summary of division of property meant divided equally. Since substantial competent evidence supports the district court's finding, the language of the QDRO does not impermissibly add to or amend the language of the decree. Instead, it merely clarifies an otherwise ambiguous term. The district court did not improperly interpret an ambiguous decree and did not modify the decree. Maintenance is modifiable. Robert argues the district court erred when it determined maintenance was not modifiable because the decree incorporated an agreement on maintenance. This court's review is unlimited for two reasons. First, the interpretation and legal effect of a journal entry, like the interpretation of other written instruments, is a matter of law subject to unlimited review. In re Estate of Einsel , 304 Kan. at 579, 374 P.3d 612 (interpreting journal entry in earlier divorce proceeding). Second, resolution of this issue requires statutory interpretation, which is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). Robert does not argue there was no agreement on maintenance. Although he does not acknowledge the existence of an agreement on maintenance in his brief, at the May 9, 2013 hearing, Robert testified he agreed to $1,950 in monthly maintenance for 62 months. Robert simply argues the agreement on maintenance was not incorporated into the divorce decree and, as a result, K.S.A. 2017 Supp. 23-2712(b) does not apply. In contrast, Jeannette only argues there was an agreement for maintenance; she ignores whether K.S.A. 2017 Supp. 23-2712 applies. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 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. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). While appellate courts may correct clerical errors in a statute, " '[a]ppellate courts cannot delete vital provisions or add vital omissions to a statute if the legislature failed to enact the change as intended under any reasonable interpretation of the language used, regardless of the legislature's intention. Only the legislature may remedy these types of error.' " Eastman v. Coffeyville Resources Refining & Marketing , 295 Kan. 470, 476, 284 P.3d 1049 (2012). In a divorce, K.S.A. 2017 Supp. 23-2712(b) limits the district court's ability to modify most matters settled by agreement. It states: "Matters settled by an agreement incorporated in the decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: (1) As prescribed by the agreement; or (2) as subsequently consented to by the parties." The statute's language is plain and unambiguous. A district court cannot modify a matter if the matter was settled by an agreement incorporated in the decree of divorce unless the agreement allows modification or the parties consent to modification. The exceptions-involving issues related to minor children-do not apply here. K.S.A. 2017 Supp. 23-2712 only applies to "[m]atters settled by an agreement incorporated in the decree." Black's Law Dictionary 883 (10th ed. 2014) defines incorporate as, in relevant part, "[t]o combine with something else" or "[t]o make the terms of another (esp. earlier) document part of a document by specific reference." Thus, in order for K.S.A. 2017 Supp. 23-2712(b) to apply, the decree must specifically reference the agreement. The primary rule in interpreting a court order is to ascertain the intent of the court. In re Estate of Einsel , 304 Kan. at 581, 374 P.3d 612. " 'As a general rule, if the language of a written instrument is clear and can be carried out as written,' the intent of the maker is made clear and 'there is no room for rules of construction.' " 304 Kan. at 581, 374 P.3d 612. If, however, the order is ambiguous, this court applies the same rules of construction as for any other written instrument. 304 Kan. at 581, 374 P.3d 612. Where ambiguity or uncertainty is involved in a written instrument, the parties' intentions are ascertained by considering the language used, the circumstances existing when the instrument was made, the objective of the written instrument, and other circumstances tending to clarify the real intention of the party or parties. Byers v. Snyder , 44 Kan. App. 2d 380, 386, 237 P.3d 1258 (2010). The divorce decree makes three references to maintenance. First, it notes the parties "entered into a written Summary of Division of Property and Permanent Parenting Plan" which provides for, among other things, maintenance, and incorporates the summary of division of property into the decree. Later, the decree incorporates the "Marital Property Settlement Agreement executed by and between the parties" and awards maintenance "as set forth in the Agreement." Finally, the decree states: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Petitioner shall pay maintenance to the Respondent. The amount of maintenance per month is $1,950.00 per month for sixty-two (62) months, due on or before the 1st day of each month beginning on June 1, 2013. The Petitioner's maintenance obligation is subject to the conditions set forth in the parties' Marital Separation and Property Settlement Agreement filed herein." K.S.A. 2017 Supp. 23-2712(b) does not prohibit modification of Robert's maintenance. The district court did not file a marital property settlement agreement with the divorce decree; it only filed a parenting plan, child support worksheet, and the summary of division of property dated May 9, 2013. Neither the summary of division of property nor the parenting plan discuss maintenance. While Kansas law allows for oral separation agreements-see In re Estate of McLeish , 49 Kan. App. 2d 246, 253, 307 P.3d 221 (2013) -the divorce decree makes no reference to the May 9, 2013 hearing in which Robert acknowledged the existence of an agreement on maintenance. None of the documents incorporated in the decree provide for maintenance. Maintenance is not a matter settled by an agreement incorporated in the decree, and K.S.A. 2017 Supp. 23-2712(b) does not apply. The district court erred when it denied Robert's motion for modification of maintenance based on K.S.A. 2017 Supp. 23-2712(b). Conclusion The law of the case doctrine precludes Robert's arguments that the decree is void because he did not raise the arguments in his prior appeals. As a result, the district court did not err when it found Robert in contempt for failing to pay maintenance. Similarly, substantial competent evidence supports the district court's finding the parties intended to divide Robert's military pay equally according to the formula. However, because the agreement on maintenance was not incorporated into the decree, the district court erred when it found maintenance was not modifiable. Thus, we remand for the district court to consider the merits of Robert's motion to modify maintenance. Affirmed in part, reversed in part, and remanded with directions.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Linda S. Dickens, of Overland Park, an attorney admitted to the practice of law in Kansas in 2011. On February 13, 2017, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). After two orders by the hearing panel granted her extensions to file an answer, the respondent timely filed an answer to the complaint on April 10, 2017, and an amended answer to the complaint on August 7, 2017. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 19-20, 2018, where the respondent was personally present and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5(d) (2018 Kan. S. Ct. R. 294) (fees); 1.8(e) (2018 Kan. S. Ct. R. 309) (providing financial assistance to client); 1.16 (2018 Kan. S. Ct. R. 333) (termination of representation); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 5.1 (2018 Kan. S. Ct. R. 358) (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (2018 Kan. S. Ct. R. 380) (reporting professional misconduct); 8.4(a) (2018 Kan. S. Ct. R. 381) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 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 .... "DA12309 "14. On October 14, 2015, the respondent entered into the Kansas attorney diversion program. In the diversion agreement, the respondent stipulated to the following: '8. The Disciplinary Administrator and the Respondent stipulate to the following facts: a. Respondent represented [G.C.] in an employment case. b. During the case, [G.C.] was offered a settlement of approximately $40,000.00. c. [G.C.] rejected the offer. d. Later, [G.C.] advised Respondent that he was running short of money because of medical and other expenses. e. Respondent reviewed the Kansas Rules of Professional Conduct and decided that giving [G.C.] a loan would not violate the KRPC if the loan was an "arm's length" transaction. She did not read the Comments to KRPC 1.8. f. Respondent loaned [G.C.] $20,000.00 at 8.99% interest with payments of $900.00 due each month with the balance payable upon the settlement of the employment litigation or and [sic ] of his pending worker's compensation claims. g. Shortly after she provided the loan, Respondent was approached by a bank owner who indicated that the bank would like to support the litigation. h. Respondent advised that [G.C.] could use a loan that he could use to pay off the loan she made to him, plus provide him other needed funds. i. [G.C.] was given a loan. The loan principal was paid off, however there was interest that was owing and still accruing. j. Prior to the interview with Respondent, the Attorney Investigator suggested Respondent review both the Missouri and Kansas Rules of Professional Conduct. k. After reviewing both, Respondent acknowledged her conduct violated the Rules in both states. l. Respondent contended that the KRPC was not implicated because her actions were under her Missouri license. m. Respondent acknowledges that KRPC 8.5 provides: "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in the practice of law elsewhere." n. Respondent reported the misconduct to the Missouri Office of Chief Disciplinary Counsel. '9. The Disciplinary Administrator and the Respondent agree that the Respondent violated KRPC 1.8(e) [.]' "15. As part of the diversion agreement, the respondent agreed to complete a total of sixteen hours of continuing legal education, including a total of six hours of ethics. The respondent agreed to complete the hours within one year. The respondent failed to complete the required continuing legal education hours. "16. The diversion agreement also contained the following provision: 'The Respondent shall not violate the terms of the diversion agreement or the provisions of the Kansas Rules of Professional Conduct or Kansas Supreme Court Rules. If a new complaint is received during the diversionary period, or if within 90 days after the expiration of the agreement a new complaint is received alleging violations of the KRPC during the diversionary period, these acts shall constitute grounds for a request to the Review Committee that the diversion be revoked. The Review Committee has the authority to order revocation of the diversion and order the matter be set for a public hearing, without any other proceedings. In the event that the Respondent violates any of the terms of diversion or any of the provisions of the Kansas Rules of Professional Conduct or Kansas Supreme Court Rules, including registration requirements, at any time during the diversionary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Respondent shall cooperate with the Disciplinary Administrator in providing information regarding any investigations relating to her conduct, as required by Kansas Supreme Court Rule 207. Failure to do so, may constitute a violation of KRPC 8.4.' "17. While the respondent remained on diversion, two new complaints were docketed for investigation against the respondent, see DA12475 and DA12526 below. The Review Committee of the Kansas Board for Discipline of Attorneys found probable cause to believe that the respondent violated the Kansas Rules of Professional Conduct in DA12475 and DA12526. "18. The respondent was given an opportunity to present information to the Review Committee as to whether the diversion agreement in DA12309 should be revoked. The respondent declined to comment or otherwise provide information to the Review Committee. Thereafter, on January 6, 2017, the Review Committee revoked the respondent's diversion in DA12309. "19. According to Rule 203(d)(vii): 'Failure to Complete the Attorney Diversion Program. If the Respondent fails to complete the agreed tasks in a timely manner at any point in the diversion process, he or she may be terminated from the program. If such a termination occurs, traditional formal disciplinary procedures will resume. When the complaint is returned to the formal disciplinary process, the Respondent's termination from the Attorney Diversion Program may be cited as an additional aggravating factor in recommending discipline and as a violation of Supreme Court Rule 207 and KRPC 8.1.' "DA12475 "20. In 2012, the respondent began representing G.N. and D.N. In order to understand the facts involved in the present disciplinary case, it is necessary to include extensive background facts. "21. During 1992 and 1993, G.N. and D.N. engaged Ken Liebelt, a licensed independent life insurance agent and licensed securities broker, as their investment adviser. Liebelt was trained to determine the client's insurance objectives, research the client's existing products, run an analysis of the proposed products, and compare the benefits of the existing products to any new products proposed. "22. At the time, G.N. and D.N. each had a term life insurance policy, however the policies had outlived their purpose of insuring against the untimely death of D.N., the primary breadwinner of the household. G.N. told Liebelt that she wanted to reduce the amount of tax that she and D.N. paid on investments, if possible, through changes in their financial portfolio. Accordingly, Liebelt's goal in 1993 was to see what tax-advantaged products were available in the marketplace to assist G.N. and D.N. in accomplishing this goal. "23. That same year, Dave Knudson, Liebelt's supervising general manager, called Liebelt and told him of a tax advantaged product that he might want to hear about for his clients. In March, 1993, both Liebelt and Knudson attended a conference for the purpose of learning about 'universal life insurance.' During this conference, they both learned the generalities of a strategy for borrowing out the cash values in a universal life policy, all for retirement portfolio enhancement. Although Liebelt did not learn the specifics of how to operate the borrowing strategy (balanced funding option), Liebelt believed Knudson was very knowledgeable about the strategy. "24. Liebelt and Knudson each believed that the life insurance policies would lower G.N. and D.N.'s taxes. As such, they agreed to work together to sell the life insurance policies to G.N. and D.N. Liebelt and Knudson were not partners and there was no written contract between them, rather, it was understood that they would each make a commission if the policies were sold. "25. G.N. and D.N. relied on the collective advice from Liebelt and Knudson by terminating their existing life insurance policies and applying for universal life insurance policies with Bankers United Life Assurance Company (hereinafter 'Bankers'). Knudson was the managing agent on the policy and Liebelt was the writing agent. Although an insurance professional should assess whether the administrative expenses of a proposed policy are excessively high, Liebelt did not attempt to assess G.N. and D.N.'s existing investments, made no comparison of whether the proposed policies had advantages over their existing policies, and did not research any other life insurance or investment products; he merely ascertained whether they had cash flow to pay the high life insurance premiums necessary for the Bankers' policies. "26. After determining how much G.N. and D.N. could pay in premiums, Liebelt told Knudson that they 'needed to run the proposal on Knudson's computer software program.' Liebelt did not have the software knowledge to run any proposals. He went to Knudson's downtown office for this purpose. The new policies were based on the maximum amount of premiums G.N. and D.N. could afford to pay. This raised D.N.'s coverage from $150,000 to $442,626 and G.N.'s coverage from $25,000 to $271,000. At the time G.N. and D.N. completed the insurance policy application, they were advised to seek the counsel of a tax professional regarding the potential tax issues of the policy. Later, in 1993, when the policies were issued, G.N. and D.N. were advised of the maximum interest that would be charged on any loans taken from the cash value in the policies. "27. From 1993 to 2000, G.N. and D.N. built the cash value in the life insurance policies by paying a total of $225,000 in premiums on the two policies. In August, 2000, G.N. and D.N. received notice from Bankers that their insurance policies were the subject of a class action lawsuit involving allegations against the company regarding how the policies were sold and how they performed. Both G.N. and D.N. signed documents agreeing to a settlement with the company regarding those issues. "28. In 2001, Knudson called Liebelt and advised him that G.N. and D.N. could start using the balanced funding option. Liebelt agreed that G.N. and D.N. should move forward with this option. Prior to making arrangements for G.N. and D.N. to start borrowing against the policies, Liebelt failed to run any underlying calculations or make any analysis of whether the interest rate charged on the loans against the policies of 13.9% was reasonable under the market conditions existing at that time. Liebelt also failed to run any data to determine whether G.N. and D.N. were breaking even on the life insurance policy. Finally, Liebelt failed to check to see whether there had been any changes in tax laws that might have rendered the balanced funding option no longer appropriate or advantageous. "29. Knudson and Liebelt met with G.N. and D.N. to explain the details of the balanced funding option. Later, G.N. called Liebelt and advised him that they wanted to go forward with the balanced funding option. "30. Knudson and Liebelt met with G.N. and D.N. a second time. During this meeting, they instructed G.N. on the documentation she would need for tax purposes with the balanced funding option. Liebelt told G.N. that the balanced funding option would work for her if she followed the specific instructions of Knudson. "31. After the second meeting, Liebelt advised G.N. that he would open a tax-efficient fund in order to maximize G.N. and D.N.'s tax benefits from the balanced funding option. He opened a separate investment account that would be used strictly to house the interest and deposits for the balanced funding option. Liebelt instructed G.N. to refrain from using the account for any other purpose. "32. In 2001 and 2002, G.N. took out loans from the cash value in their Bankers' policies, as directed by Knudson. G.N. gave half the loan proceeds to Liebelt to invest in the account he opened for use in conjunction with the balanced funding option. Liebelt invested in mutual funds. G.N. gave Knudson and the other half of the loan proceeds, $73,500, to invest. Knudson put them into LLCs which he had formed. Knudson did not tell G.N. that the LLCs were companies he owned nor did he tell her that the LLCs were illegal, unregistered companies. He simply told G.N. that her money was going into offshore currency exchanges, the silver market, and real estate investments in Las Vegas. "33. As part of the balanced funding option in the life insurance policy which was designed for tax advantages, G.N. and D.N. were to make annual interest payments on the policy loans which could, in turn, offset capital gains tax according to the balanced funding option plan. G.N. and D.N. had been advised when the loans were taken of the details of operating the balanced funding option, their responsibilities under the plan, and the importance of making the annual loan interest payments, including the maximum interest that would accumulate on the borrowed principal under each policy. G.N. and D.N. paid the interest payments due annually on the loans in 2000 and 2001. "34. In 2003, G.N. contacted Knudson and suggested she did not have enough capital gains to offset and thus had no reason to pay the interest due on the policy loans. Knudson agreed she could postpone the interest payment at that time. Liebelt provided no advice or information on this issue. G.N. and D.N. never again paid the annual interest charges on the policy loans. "35. By the end of October, 2003, G.N. knew that the money invested with Knudson was completely lost. "36. In 2005, Liebelt called G.N. to find out why they were not paying the interest due on the loans. When G.N. responded that they were following the advice of Knudson, Liebelt did not instruct her to start paying interest due and did not run any calculations. Relying on Knudson, Liebelt never learned what G.N. and D.N. were required to do to utilize the benefits of the fixed rate loan policy provision. "37. Knudson was forced out of the securities business in the mid-2000's. "38. G.N. met with a new investment adviser, David Cox, with the intention of moving their investments from Liebelt. G.N. informed Cox that she held a Bankers' policy and was satisfied with it. She also advised Cox she was uncomfortable with the level of risk and dissatisfied with the performance of funds placed for investment with Liebelt. On June 10, 2010, G.N. hired Cox to manage their investments. Liebelt remained as G.N. and D.N.'s insurance agent. "39. In 2012, G.N. and D.N. received notices from Transamerica, the successor in interest to Bankers, advising them that they needed to terminate their policies because the compounding interest and escalating loan balances consumed the cash values of both policies. G.N. and D.N. had been informed of the compounding interest and escalating loan balances on an annual basis from 2003 to 2012 by virtue of the annual statements. G.N. and D.N. ultimately surrendered the policies in 2012. "40. After G.N. and D.N. surrendered the policies, Transamerica conveyed approximately $29,000 as the cash surrender value for G.N. and D.N.'s insurance policies. Transamerica informed them that it would report to the IRS that the policy surrenders had generated $551,000 of taxable income for G.N. and D.N. According to the respondent, G.N. and D.N.'s tax liability would have been $198,000 on the $551,000 of taxable income declared by Transamerica. "41. Each year beginning in 1993, Liebelt had received a copy of the annual statement of values on G.N. and D.N.'s policies. Liebelt did not look at the statements closely. Had he done so, he would have seen that the policies would eventually have a negative value. "42. Cox referred G.N. and D.N. to the respondent for assistance with the tax issues. At the time G.N. and D.N. retained the respondent, they were approximately 77 and 80 years old, respectively. "43. G.N. and D.N. met with the respondent, provided her with documentation, and discussed the details of the life insurance policies. The respondent met with G.N. on many occasions. During those meetings, G.N. told the respondent that she learned that the investments they made with Knudson were a total loss between 2006 and 2009. "44. The respondent researched the tax issue for G.N. and D.N. In August, 2012, the respondent was able to resolve the tax issue by contact with the IRS criminal division. The respondent also told G.N. and D.N. that she believed they had a viable cause of action against Knudson and Liebelt. D.N. asked respondent what he owed her for the assistance with the tax issue. The respondent told G.N. and D.N. that rather than pay her hourly for her work, she would agree to be compensated through a contingent fee lawsuit against Knudson and Liebelt. "45. On approximately August 8, 2012, G.N. and D.N. entered into a contingent fee agreement with the respondent. While the respondent contends that the contingent fee agreement was reduced to writing and that she and G.N. signed it, she was unable to produce a copy of the agreement. D.N. testified that he did not sign a written contingency fee agreement, the terms of the fee agreement were discussed by the respondent and D.N. many times during the representation, and D.N. asked the respondent for a fee agreement on a number of occasions. The respondent never provided D.N. with a written fee agreement. "46. On February 11, 2013, the respondent filed suit against Liebelt and Knudson on behalf of G.N. and D.N. The respondent aggressively pursued G.N. and D.N.'s case. According to the respondent, she spent hundreds of hours working on the case and incurred over $19,000 in expenses on the case. The respondent learned that Knudson was judgment-proof. "47. During discovery, G.N.'s deposition was taken. During her deposition, conducted on January 20, 2014, G.N. testified that she learned from Knudson that he lost all of the funds he invested on behalf of G.N. and D.N. in 2003. This was different than what she told the respondent in preparation for filing the case. Following G.N.'s deposition, the respondent did not ask G.N. about the discrepancy between what G.N. told her in their meetings and what G.N. testified to in her deposition. Additionally, the respondent did not explain to G.N. and D.N. that G.N.'s deposition testimony was problematic. "48. On July 1, 2014, Liebelt filed a motion for summary judgment. In his motion, Liebelt argued that the allegations of negligence were time barred because the time for those claims began running a variety of years for different claims, from 1993 through 2010. Liebelt argued that he could not be held liable for the loss of the $73,500 provided to Knudson because G.N. was aware of the loss by 2003. Finally, Liebelt argued that he and Knudson did not enter a joint venture so Liebelt could not be held liable for Knudson's wrongdoing. "49. Regarding the claims of negligence, the respondent argued in her response that G.N. and D.N. did not know they had suffered material losses from the loans until 2012 when the policies were forfeited, the cash values were lost, and the tax liability of $551,000 was declared by Transamerica. The respondent argued that G.N. and D.N. did not know they had been defrauded of the $73,500 until the respondent discovered the fraud in 2012. "50. On October 1, 2014, in a one-page journal entry of judgment, the court granted the motion for summary judgment based on the statute of limitations: 'Defendant Kenneth Liebelt's Motion for Summary Judgment came on for hearing on October 1, 2014. Based on the briefs submitted and oral arguments of counsel, the Court GRANTED Defendant Liebelt's Motion for Summary Judgment. 'Thus, Defendant Liebelt's Motion for Summary Judgment is granted as to Counts I, II, and V, as Plaintiff's action is untimely based on the statute of limitations. The Court further finds that Plaintiff cannot establish a joint venture as a matter of law, and grants summary judgment in favor of Defendant Liebelt based on Plaintiffs' joint venture claim. 'Further, the Court finds that in this case involving multiple defendants, there is no just reason for delay in entering this Summary Judgment on behalf of Defendant Kenneth Liebelt only, in accordance with K.S.A. 60-254(b). 'WHEREFORE, the Court finds that Summary Judgment is GRANTED in favor of Defendant Kenneth Liebelt on all causes of action against him by Plaintiff herein.' "51. After the court entered summary judgment on behalf of Liebelt, on October 17, 2014, the respondent sent G.N. an email message. In that message, the respondent informed G.N. for the first time that G.N. created a statute of limitations problem by her deposition testimony. G.N. responded: 'This is the first time you have mentioned that there was a problem with my deposition so I am surprised to hear it now. I did the best I could to be honest and accurate. Memory constraints and a multitude of facts to recall have perhaps created these problems.' "52. On October 29, 2014, the respondent filed a motion for reconsideration. In her motion, the respondent argued that the negligence and fraud claims against Liebelt should be reinstated because 'there is a question of fact as to whether Liebelt breached duties to [G.N. and D.N.] by failing to warn them of impending disaster while he remained the Agent on their policies after February 11, 2011.' The parties argued the motion on December 12, 2014. The court took the matter under advisement. "53. On December 29, 2014, the respondent met with G.N. and D.N. Initially, the respondent was cordial. The respondent explained to G.N. and D.N. how she had lost a great deal of money representing them in their suit against Liebelt and Knudson. The respondent asked G.N. and D.N. if they could think of a way to make it right. When G.N. and D.N. did not volunteer to pay the respondent money, her approach changed. The respondent became aggressive and clearly stated that she would not suffer this financial loss. The respondent indicated that she would be seeking to recover fees from them because G.N. misrepresented a key fact. "54. On December 30, 2014, the respondent followed up their meeting with an email message. In the message, the respondent argued that she could sue G.N. and D.N. for negligent misrepresentation of a material fact, unjust enrichment, and fraudulent misrepresentation. In addition to threatening to sue G.N. and D.N., the respondent threatened to contact their accountant (who works for a financial firm owned by the respondent and the respondent's husband) and the IRS and retract the statements that the $551,000 reported by Transamerica should be considered phantom income. 'I want you also to be aware of two more significant things: First, if you get audited, you will need me and my files to prove to the IRS that the income Transamerica declared to you was phantom, and caused by a Ponzi scheme. If I have to sue you, I won't be available for that effort until and unless I get paid for my work. And, because you haven't paid me, you don't own my files-I do. 'Second, given that [G.N.] misrepresented this material fact to me, it makes me nervous that perhaps I have rendered legal opinions on the Ponzi scheme based on other misrepresented facts by [G.N.]. I am concerned I may need to reexamine the opinions I furnished to your accountant regarding what I thought was a Ponzi scheme, and on which the accountant relied in completing the tax return that saved you from $198,000 in taxes. I will have to withdraw all opinions that I no longer find substantiated, which will force the accountant to notify the IRS that the facts on which she relied in drafting your return no longer exists. I suspect this would trigger an audit. 'If you demonstrate that you are acting in good faith rather than squeezing enormous benefit out of me for nothing, I will feel that [G.N.] was acting in good faith when she told me her story, and I won't believe it necessary to reexamine my opinions. 'I conferred substantial efforts and benefit on you, relying on [G.N.]'s representation to me that she discovered the losses in 2006 to 2009. That she actually discovered them in 2003 gutted the lawsuit through which I was to be compensated for my work on your behalf. I will file suit against you both next week unless I am paid by Friday. 'I strongly recommend you write your check and deliver it tomorrow so you are in the best position to deduct the legal fees as expenses off of this year's income. I am not a tax attorney, but this will likely allow you to deduct the legal fees as "expenses to preserve in investment." If I am paid, I will do all in my power to assist you in getting that deduction.' "55. On December 31, 2014, D.N. responded to the respondent's email message from the day before. In the email message, D.N. stated that he believed the respondent was acting unethically by threatening to file a lawsuit and 'precipitating tax woes.' It is clear that following the December 29, 2014, meeting, the attorney-client relationship had been significantly damaged. "56. On January 2, 2015, because G.N. and D.N. were losing sleep over this matter, D.N. offered the respondent $40,000 to settle the dispute. The respondent had previously agreed to settle the dispute for $80,000. "57. On January 3, 2015, respondent sent G.N. and D.N. an email message and detailed her next steps if they were unable to settle the dispute. She indicated that she would: 'Inform Mary Shuman in writing that I am no longer confident in the facts which I gave her in writing to form the basis of the "Ponzi scheme" alternate income calculations under the IRS regulations that resulted in relief for you from the declared $550,000 in income[.] 'Inform Mary Shuman that unless she has independent knowledge of those facts, she needs to determine whether she must withdraw her signature as the tax preparer of your 2012 Tax Return. 'Inform my contact at the IRS that I am withdrawing all of the statements I made to the IRS criminal division, as I am no longer confident about the facts of which I informed them, due to my discovery that one significant fact upon which I relied was misrepresented to me by the taxpayer, and that there may be more; thus, I must withdraw my statements. 'I must take these steps to protect myself, my license, and my name unless we reach a reasonable settlement. I have been damaged in excess of $150,000, as a result of [G.N.]'s misrepresentation of a material fact to me. If you demonstrate that you are responsible and will take responsibility for her failure to tell the truth and the damages it caused, I will reconsider whether I feel comfortable leaving my professional name and license attached to statements of facts I made on your behalf. 'If you are unwilling to take responsibility, then I can only conclude that your regard for credibility and honesty is less than what I am willing to risk further by leaving my name and license attached to statement [sic ] of fact I made on your behalf.' Whether D.N. and G.N. were willing to pay the respondent money to help offset her losses had nothing to do with the reliability of the statements the respondent made to the accountant and to the IRS. "58. The respondent attached a draft petition to the January 3, 2015, email message. In the draft petition, the respondent sought damages and punitive damages and alleged negligent misrepresentation, fraudulent misrepresentation, breach of contract and the covenant of good faith and fair dealing, and rescission of the contract in equity. "59. D.N. responded to the respondent's message and petition. The tone of D.N.'s email message, again, makes it clear that the attorney-client relationship was significantly injured. D.N. continued to offer $40,000 to settle the dispute. "60. On January 7, 2015, the respondent sent G.N. and D.N. an email message and included a draft message she threatened to send to Mary Shuman the following day, which provided: 'In completing the tax return for [G.N. and D.N.], I supplied facts, numbers and dates supporting the conclusion that [G.N. and D.N.] had been defrauded by a Ponzi scheme in 2001-2002, and that the taxable income declared to them by Transamerica in 2012, totaling $551,000 and relating to the forfeiture of the two life insurance policies, was phantom income caused by the Ponzi scheme itself, and that the Ponzi scheme had caused them other losses as well. 'I have now learned that at least one of the facts given [sic ] me by the clients was not true . I am gravely concerned, then, that other facts given by the clients, and on which I relied, are also false. As a result, I have the professional responsibility to withdraw the evidence and information I supplied to you, and on which I believe you relied in your work for them. 'Unless you personally independently verified the facts I supplied you and on which you relied in getting the declared income exempt, and in taking other related losses as deductions on [G.N. and D.N.'s] 2012 return, you need to inform the IRS that facts were not as they seemed, and you must withdraw that 2012 tax return, or at least your signature upon it. 'I would not take this step lightly; there has been a serious change by the clients in the story given, and I have a duty as an officer of the court to withdraw professional opinions I gave. As an enrolled IRS agent, I'm sure you had the same obligation.' D.N. responded to the respondent's email messages, indicating that if she filed suit he would file counterclaims. D.N.'s messages continue to exemplify the deterioration in the attorney-client relationship. Despite the animosity between the respondent and her clients, D.N. continued to offer to settle the matter for $40,000. And also despite the animosity between the respondent and her clients, G.N. and D.N. did not terminate the respondent's representation because they did not want to open themselves up to a lawsuit by the respondent for fees. "61. On January 10, 2015, the respondent reiterated her willingness to settle the matter for $80,000. The respondent stated '[t]his offer expires Tuesday at 10 am, and at 10:01 on Tuesday I will click "send" on the Joco Courts website and efile the lawsuit I sent you last week.' On Monday, January 12, 2015, respondent repeated her threat to file suit against D.N. and G.N. "62. On January 13, 2015, the respondent accepted D.N.'s offer of $40,000. Thereafter, the parties attempted to enter into a settlement agreement. The parties were unable to come to terms on the language to include in the agreement. "63. Evidence of the difficult relationship between the respondent and G.N. and D.N. continued. D.N. stated, '[i]f you are getting the idea that I seek to very soon have nothing more to do with you, that idea would be precisely right.' "64. Despite the respondent's repeated threats to file suit against G.N. and D.N., the respondent testified at the hearing on the formal complaint that she never intended to file suit against them. Additionally, despite the respondent's repeated threats made to G.N. and D.N. to notify the IRS that she was withdrawing her statements to them, the respondent never intended to follow through on that threat. Finally, despite the respondent's repeated threats made to G.N. and D.N. to contact Mary Shuman and suggest that she should review G.N. and D.N.'s tax returns, she never intended to do that. "65. On February 3, 2015, the court issued a memorandum decision granting reconsideration in part and granting summary judgment in part. In reconsidering its earlier decision, the court addressed each of the causes of action individually. The court considered G.N.'s deposition testimony that she knew the money she invested with Knudson was lost in 2003 when it ruled on only one claim-G.N. and D.N.'s claim against Liebelt for the $73,500 loss. The court accepted Liebelt's argument that the statute of limitations began in 2003, when G.N. knew that the money was lost. The court rejected the respondent's argument that the statute of limitations did not begin to run until the respondent discovered the fraud in 2012. Because the Court rejected the respondent's argument, it would not have made any difference whether G.N. discovered the losses in 2003, or somewhere between 2006 and 2009; the statute of limitations would have run regardless. "66. The respondent failed to advise G.N. and D.N. that the court granted the motion for reconsideration in part. "67. On March 10, 2015, the court scheduled a pretrial conference for April 30, 2015. The respondent failed to advise G.N. and D.N. of the scheduled pretrial conference. "68. Finally, on April 28, 2015, the respondent sent an email message to G.N. and D.N. In the message, the respondent told G.N. and D.N. that the court reinstated the case on limited grounds. Rather than inform G.N. and D.N. of the scheduled pretrial conference, the respondent stated 'I will be meeting with the Judge and opposing counsel tomorrow or Thursday to assess where we go from here. A trial date will be scheduled, then we move forward. I will give you an update.' That same day, D.N. responded. In D.N.'s response, he stated: 'If, after I read the alleged order issued by the Judge, and thereafter possibly speak with you, I find sufficient basis to authorize you to take further action on the past suit bearing [G.N.]'s and my name, I may notify you that you may pursue the motion for reconsideration. But you may not take any action based on our past tax returns.' "69. Following the pretrial conference, the respondent did not provide G.N. and D.N. with an update. "70. Because the respondent did not timely notify G.N. and D.N. of the court's action, on April 30, 2015, D.N. wrote to the judge's administrative assistant asking to be provided a copy of all orders or notices issued in the Liebelt litigation. "71. On May 9, 2015, despite D.N.'s directive, the respondent included consideration of G.N. and D.N.'s past taxes in a settlement demand. "72. The next day, D.N., again, made it clear that he was not agreeable 'to any theory predicated' on their potential tax liability. "73. On June 29, 2015, the respondent submitted a proposed pretrial order to the court. The proposed pretrial order filed by the respondent included a theory predicated on G.N. and D.N.'s potential tax liability. "74. On July 20, 2015, D.N. wrote to the respondent complaining of her failure to keep him advised of developments in the Liebelt litigation. On his own, D.N. learned that the case been scheduled for trial on October 19, 2015, and a fallback date of January 25, 2016, was also scheduled. In that message, D.N. repeated his directive to the respondent to refrain from making allegations of damages relating to their income taxes. "75. On October 5, 2015, the respondent filed a motion to continue the trial scheduled for October 19, 2015, due to health problems the respondent was experiencing. On October 7, 2015, the court granted the respondent's motion to continue. "76. On January 8, 2016, Liebelt filed a motion to continue the January trial setting. The court scheduled a hearing on Liebelt's motion to continue for January 22, 2016. "77. On January 15, 2016, the respondent forwarded material to G.N. and D.N. In the material, the respondent included information that she continued to seek damages regarding G.N. and D.N.'s potential tax exposure. "78. On Saturday, January 16, 2016, D.N. sent the respondent an email message. D.N. stated: 'What you must do now is to expressly in writing in a document that you must file with the Court and concurrently serve upon defense counsel AND upon ME, disavow and withdraw any claim for damages sought by plaintiffs herein predicated in any part on plaintiffs' tax liability, actual or potential. In the event that you defy this directive to you, I will duly apprise the Court and defense counsel of plaintiffs' actual position on damages. I also will at that time apprise the Court that, as an attorney myself, I am cognizant that my acting pro se herein is unusual, but it is imperative that I do so because my attorney has defied my directives to her-and that such unethical misconduct is one of her many acts of unethical misconduct herein, including extortion. 'If I have not duly received a copy of the above described motion filed by you with the Court with concurrent service upon me and defense counsel Austenfeld by no later than January 21, 2016, I will file my above-described notice with the Court and upon defense counsel.' According to the respondent, she did not receive the email message sent on January 16, 2016, from D.N. On January 21, 2016, D.N. sent another email message asking why she had not responded to his January 16, 2016 email message. After the respondent indicated she had not received that message, D.N. forwarded it to her at least twice. The respondent clearly had D.N.'s January 16, 2016, email message prior to the hearing held on January 22, 2016. "79. The respondent did not file a document with the court clearly disavowing any claim for damages sought by plaintiffs predicated on plaintiffs' tax liability, as directed by D.N. "80. On January 21, 2016, the respondent forwarded an outline of evidence she planned to present at trial on January 25, 2016. Contrary to D.N.'s express direction, the respondent included evidence about G.N. and D.N.'s potential tax exposure. The respondent did, however, include a paragraph that G.N. and D.N. would not be seeking damages regarding the tax exposure. D.N.'s express directions were to 'NOT in any way predicate plaintiffs' damages herein, in whole or in part, on plaintiffs' tax liability, actual or potential.' "81. On January 22, 2016, the court took up Liebelt's request for a continuance. During that hearing, D.N. entered his appearance on his own behalf. D.N. requested that the case be dismissed with prejudice because the respondent had acted unethically. "82. The respondent was surprised that D.N. appeared and was taken aback by his statements. The respondent stated, '[t]his is the first I was aware that the clients were unhappy with my services. I was not informed that they were unhappy or didn't want me to represent them until I just heard him speak.' The respondent's statements that she was unaware that D.N. was unhappy with the respondent's representation is disingenuous at best and, at worst, a deliberate falsehood. The respondent was the recipient of at least 20 email messages where D.N. made it clear that he was unhappy with the respondent and believed she was unethical. Most recently, the respondent had received D.N.'s January 16, 2016, email message at least twice on January 21, 2016. "83. On this subject, at the hearing on the formal complaint, the respondent testified as follows: 'Q. [By. Ms. Knoll] Okay. Let's talk about that. You actually received the content of that e-mail three times on January 21st? 'A. Sure. 'Q. And you had read it before you showed up in front of Judge Vano? 'A. Well, yes. And, so, I wasn't saying that I didn't get that information, what I was-the client-[D.N.] was telling the judge, judge, she disregarded my instructions to her on January 16th. And I sent her this e-mail and she never replied to it. I think it was fair for me to say, whoa, whoa, I didn't get that email on January 16th.' "84. Additionally, the respondent asserted that she had concerns that D.N.'s judgment may be impaired by a health reason. The respondent alleged that D.N. exerted undue influence or control over G.N. and that G.N. may suffer from the battered wife syndrome. When questioned by the court for the source of her concerns, the respondent stated that she based her concerns on observations made during meetings with G.N. and D.N. when D.N. told G.N. that she could not talk. The respondent stated that D.N. made many irrational statements and had exhibited a pattern of less than full comprehension of the lawsuit. Finally, the respondent asserted that D.N. may be in need of a guardian ad litem. "85. At the conclusion of the hearing, the court granted Liebelt's motion to continue and scheduled the case for a status conference on February 29, 2016, at 1:30 p.m. "86. On February 17, 2016, counsel for Liebelt filed a complaint with the disciplinary administrator's office. Counsel for Liebelt included the materials she received in court on January 22, 2016, from D.N. "87. On February 25, 2016, counsel for Liebelt sent the respondent a letter, via facsimile. In the body of the letter, counsel for Liebelt stated: 'This morning you advised me, in effect, that Mr. Goodman "might be" recanting a portion of the supplemental opinion served on September 11, 2015. Specifically, you stated that Mr. Goodman would recant the entire first paragraph of the opinion, attached. When I tried to clarify, you stated that you might "just leave it as is." 'Without waiving our right to object whether any supplementation of Mr. Goodman's opinion is proper, we request any supplemental opinions to which Mr. Goodman will be testifying be provided to the undersigned in accordance with the requirements of K.S.A. 60-226. Also, please provide the written response prior to our February 29th status conference, so that we can report our positions to Judge Vano at that time.' "88. On February 29, 2016, the court took up the case. At that time, no one appeared on behalf of G.N. and D.N. Because no one appeared on behalf of the plaintiffs, the court dismissed the case, without prejudice. Even though the respondent was present in the courtroom when the court scheduled the status conference and even though counsel for Liebelt referred to the date of the status conference in her February 25, 2016, letter, the respondent inadvertently recorded the status conference for March 7, 2016. After learning that the case had been dismissed, the respondent did not provide that information to G.N. and D.N. "89. On March 7, 2016, the respondent provided a written response to the disciplinary complaint. In her response, the respondent asserted that she committed no ethical violations. The respondent also stated: '... Unfortunately, the client misrepresented a material fact. The client does not deny that. The misrepresentation caused me damages. I am entitled to seek those damages from the client. For a time period I was advocating my rights against the client. When the Court reinstated part of the case, I determined it was best to ameliorate my damages by moving forward with the case, and the client has clearly agreed with that strategy. 'Prior to Jan. 22, I was unaware that the clients had formed the conclusion that I was disobeying instructions and directly seeking damages for potential tax liability. Perhaps the clients misunderstood that I was only preserving the option of adding those damages later in the event the clients were audited and assessed liability prior to trial. I believe it was my duty to keep this option open. In any event, our final pretrial order, our last settlement demand, and our trial exhibit list all demonstrate that I have not asked for potential tax liability damages. 'I have followed the client's [sic ] instructions throughout the case and there is no evidence of ethical breaches on my part. ...' At the time the respondent made this statement, she knew that the court rejected her argument that, regarding one claim (see ¶ 65), the statute of limitations did not begin to run until the respondent informed G.N. and D.N. that they had been defrauded in 2012. Regarding that claim, the respondent knew that the court found the statute ran when G.N. discovered that the money invested with Knudson was lost. The respondent also knew that the court dismissed other allegations in the petition based on other time frames. The respondent's argument that G.N. misrepresented a material fact and that misrepresentation caused her damages is disingenuous. The respondent knew that regardless of G.N.'s deposition testimony the claims were barred by the statute of limitations. "90. On March 14, 2016, without consulting G.N. and D.N., the respondent filed a motion to set aside the journal entry of dismissal. The respondent also filed a notice of hearing, scheduling the motion to set aside the journal entry for April 4, 2016. The respondent did not inform G.N. and D.N. that she filed the motion to set aside the journal entry and that the motion was scheduled for hearing on April 4, 2016. "91. On March 15, 2016, D.N. sent an email to the respondent asking about two emails he received from the court: one notifying him that something had been dismissed and another notifying him that a notice of hearing had been filed. "92. On March 16, 2016, D.N. obtained a copy of the notice of hearing from the court's administrative assistant. "93. On March 17, 2016, D.N. again asked the respondent to update him on the status of the litigation. That same day, the respondent sent D.N. a note promising to reply later that day or the following day. The respondent did not reply later that day or the following day. "94. On March 21, 2016, the respondent sent D.N. an email message, explaining that she recorded the date of the status conference incorrectly, that the case had been dismissed, and that she 'followed procedure in requesting the case be reinstated pursuant to Kansas law.' The respondent also informed D.N. that a hearing was scheduled for April 4, 2016. "95. On March 22, 2016, D.N. sent the respondent an email message indicating that at the April 4, 2016, hearing, he would appear and oppose the motion to reinstate the case. "96. On April 4, 2016, the court took up the respondent's motion to reinstate the case. The respondent, counsel for Liebelt, G.N., and D.N. appeared. At the hearing, the respondent stated, again, that she was surprised that G.N. and D.N. appeared at that hearing because they did not tell her they were going to appear. The respondent again asserted that D.N. may be in need of a guardian ad litem . D.N. addressed the court and read his March 22, 2016, email into the record. The respondent asserted that she did not receive D.N.'s March 22, 2016, email message. The court denied the respondent's motion to reinstate the case. "97. Later that day, the respondent wrote to G.N. and D.N. seeking permission to refile the case. Two days later, on April 6, 2016, G.N. and D.N. sent an email message to the respondent informing her that they would not consent to refiling the case. "DA12526 "98. In 2014, the respondent filed suit on behalf of G.C. against his former employer and associated entities. (G.C. in this case is the same G.C. in DA12309, above.) The respondent alleged that G.C.'s employers discriminated against him, defamed him, and caused him to be assaulted and battered. "99. The defendants aggressively defended the cases. The defendants had greater resources to spend on the defense than the respondent did to prosecute the case. The respondent and her associate attorney had a difficult time keeping up with the motions filed by the defense. The respondent attempted to hire an additional associate or associate with another firm to help with the litigation. Unfortunately, the respondent was not successful in getting help with this litigation. In addition to the respondent's limited resources, the respondent also struggled to keep up with filing deadlines because of her physical health. "100. The respondent's inability to manage this litigation was compounded by other events, also. First, while the litigation was pending, the defendants filed suit against the respondent and her associate alleging RICO violations as well as defamation. The respondent obtained a dismissal of that case a few months later. Second, during the litigation, the life of a key witness was threatened. "101. The respondent delegated the responsibility of responding to pending motions in the litigation to her associate. The associate miscalculated a filing deadline in September, 2014, by one day. The respondent was able to preserve the claim by filing a claim as a separate case. The two cases were consolidated. "102. The respondent, through her associate, filed repeated motions to enlarge the time, motions for extension of time, and motions to file out of time throughout the litigation. The respondent failed to respond to interrogatories and requests for production of documents. The respondent did not timely respond to the motions to dismiss and strike. "103. On January 27, 2015, in denying a motion filed by the respondent, the court noted that the respondent had missed several deadlines and also stated: 'Giving Plaintiff every benefit and the opportunity to substantively respond to the pending motions, the Court in its November 25, 2014 Order denied the Defendants' Motions without prejudice and allowed Plaintiff to file a Second Amended Petition. At that time, the Court ordered "Plaintiff to abide by all further deadlines and to substantively respond to all future pending motions." The Court warned, "[f]ailure to do so, may result in sanctions." Finally, the Court ordered it would reconsider all motions to dismiss and strike that were filed and that "Plaintiff shall address the merits of any such motions in a timely fashion." ' "104. Even after the court's January 27, 2015, admonition, the respondent continued to miss deadlines. For example, the respondent failed to file an answer or otherwise respond to the defendants' counterclaims. "105. On April 13, 2015, the court entered default judgment as to certain counts pled by the respondent and commented on the respondent's failure to meet deadlines and to address the merits of pending motions. The court stated: 'Counsel's failure to properly budget her time is not an "unavoidable hindrance." While an "IT glitch" could qualify as an "unexpected hindrance," in this instance, counsel's carelessness and continued disregard of the Court's process creates the "panicked situations" counsel continuously finds herself in.' "106. On May 8, 2015, the respondent filed a motion to set aside default judgment. The respondent attributed her failure to timely respond to administrative errors and medical problems. The court denied the respondent's motion because she failed to establish good cause. The court pointed out that the respondent inconsistently described her limitations based upon her medical problems. Finally, the court concluded that her actions were reckless. "107. In November, 2015, and December, 2015, the defendants filed motions for summary judgment on the merits of the actions. "108. After the defendants filed motions for summary judgment, the respondent continued to miss deadlines, to file motions to enlarge time, and to file motions for leave to file out of time. In explanation, the respondent continued to cite to administrative problems and medical issues. Ultimately, the respondent filed no counter affidavit or proof to contradict the facts as alleged in the Defendants' motions for summary judgment. "109. On March 31, 2015, the respondent stated to the court that a defendant 'slipped in' the counterclaims. The respondent later acknowledged that she failed to thoroughly read all pleadings filed by the defendants, that her statement that a defendant 'slipped in' the counterclaims was incorrect, and that the counterclaims were properly raised. "110. In April, 2016, the court granted the motions for summary judgment and dismissed the case with prejudice. In doing so, the court acknowledged that it was not proper to grant summary judgment simply because a responsive pleading was not filed. The court made its determination on the merits of the case. For example, the court concluded that the respondent indisputably sought to recover damages for injuries G.C. suffered during the workplace accident which was the subject of his worker's compensation settlement. The court also concluded that the plaintiff failed to show the service letter to any potential employers and he was not refused employment based on the service letter. Regarding the defamation claim, the court further found that the respondent failed to identify a defamatory statement that was published and damaged G.C.'s reputation. Rather, the evidence established that G.C. was fired for assaulting a patron, so the statements made to the media were true and not actionable. "111. After the conclusion of the cases, counsel for the defendants filed a disciplinary complaint against the respondent. On June 9, 2016, the respondent filed a written response to the complaint. In addition, an attorney disciplinary complaint was filed against the respondent in Missouri for her actions in representing G.C. As a result of that case, the respondent was informally admonished for violating the Missouri equivalents to Rule 1.1 and Rule 1.3. The respondent failed to report the Missouri disciplinary action to the disciplinary administrator's office. "112. Finally, the respondent offered to make settlement payments to G.C. The respondent and G.C. reached an agreement to settle G.C.'s potential malpractice action against respondent. The respondent paid G.C. what they agreed on. "113. G.C. stated, in an affidavit, that he had no complaints regarding the respondent and that he believed she took responsibility for her mistakes by paying him. "Conclusions of Law "114. The deputy disciplinary administrator alleged that the respondent violated Rules 1.1, 1.3, 1.4, 1.5, 1.8(e), 1.8(h), 1.16, 3.1, 3.2, 3.3, 3.4, 4.1, 5.1, 8.3, 8.4, and 207. During the hearing on the formal complaint, the deputy disciplinary administrator withdrew the allegation that the respondent violated Rule 4.1. "115. Of the alleged rule violations, the respondent stipulated that she violated Rules 1.3. 1.4, 1.5, 1.8(e), 1.16, 5.1, 8.3, and 8.4(g). "116. The hearing panel does not find clear and convincing evidence to support a conclusion that the respondent violated Rules 1.8(h), 3.1, 3.3, 3.4, and 207. "117. Based upon the respondent's stipulations and the above findings of fact, the hearing panel concludes as a matter of law that clear and convincing evidence has been presented to establish that the respondent violated Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.8(e) (conflict of interest), 1.16 (termination of representation), 3.2 (expediting litigation), 5.1 (responsibilities of supervisory lawyers), 8.3 (reporting professional misconduct), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (conduct that is prejudicial to the administration of justice), and 8.4(g) (conduct that adversely reflects on fitness to practice), as detailed below. " Rule 1.1 "118. Lawyers must provide competent representation to their clients. Rule 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' In DA12309, the respondent was not competent to represent G.C. She did not have the requisite legal knowledge, skill, thoroughness, and preparation to handle the complex litigation she filed on behalf of G.C. The respondent's lack of competence became clear when she was unable to timely respond to discovery, motions, and claims filed by the defendants. Further, the respondent was found in violation of Rule 1.1 in the Missouri disciplinary action. 'A final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.' Rule 202. Accordingly, the hearing panel concludes that the respondent violated Rule 1.1. " Rule 1.3 "119. Attorneys must act with reasonable diligence and promptness in representing their clients. See Rule 1.3. The respondent failed to diligently and promptly represent G.C. in DA12309. The respondent repeatedly requested additional time to respond to discovery requests, motions, and claims. Additionally, the respondent failed to timely file discovery requests, motions, and answers. The respondent was found in violation of Rule 1.3 in Missouri and, in this case, the respondent stipulated that she violated Rule 1.3. Again, '[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.' Rule 202. Because the respondent did not exercise reasonable diligence in representing G.C., because she was found in violation of Rule 1.3 in Missouri, and because she stipulated that she violated Rule 1.3, the hearing panel concludes that the respondent violated Rule 1.3. "Rule 1.4 "120. Rule 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 DA12475, the respondent violated Rule 1.4(a) when she failed to keep G.N. and D.N. updated regarding the pending litigation. Further, the respondent stipulated that she violated Rule 1.4. As such, the hearing panel concludes that the respondent violated Rule 1.4(a). "Rule 1.5 "121. Contingent fee agreements must be in writing. Rule 1.5(d) provides the requirement in this regard: 'A fee may be contingent on the outcome of the matter for which the service is rendered ... A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. ...' While the respondent indicated that she entered into a written contingent fee agreement in DA12475, she was unable to produce one. D.N. testified that he never signed a fee agreement, that they discussed the fee agreement on many occasions, and that he repeatedly requested that the respondent provide him with a written fee agreement. The respondent told D.N. that they would discuss the fee when the case was over. During the hearing on this matter, the respondent admitted that she violated Rule 1.5(d). Accordingly, the hearing panel concludes that by either failing to enter into a written fee agreement or by failing to provide D.N. with a copy of the fee agreement when he requested it, the respondent violated Rule 1.5(d). " Rule 1.8 "122. Lawyers are not permitted to make loans to clients: '(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.' As stipulated in the diversion agreement, in DA12309, the respondent loaned G.C. $20,000, in violation of Rule 1.8(e). Accordingly, the hearing panel concludes that the respondent violated Rule 1.8(e). "Rule 1.16 "123. In certain circumstances, attorneys must withdraw from representing a client. Rule 1.16 provides: '(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client[.]' In DA12475, once the respondent threatened to sue G.N. and D.N. over the fee, the respondent was required to withdraw from the representation because of the conflict of interest which developed between the respondent and G.N. and D.N. See Rule 1.16(a)(1). The respondent was also required to withdraw from the representation of G.C. when her physical health impaired her ability to adequately represent G.C. See Rule 1.16(a)(2). The respondent acknowledged that she should have withdrawn from her representation of G.N. and D.N. Because the respondent was required to withdraw from the representation of G.N., D.N., and G.C., the hearing panel finds that the respondent violated Rule 1.16. "Rule 3.2 "124. An attorney violates Rule 3.2 if she fails to make reasonable efforts to expedite litigation consistent with the interests of her client. Id . The respondent caused unnecessary delay in G.C.'s case by repeatedly requesting additional time to respond to discovery, motions, and claims, in DA12309. Accordingly, the hearing panel concludes that the respondent failed to expedite litigation in violation of Rule 3.2. "Rule 5.1 "125. When an attorney hires an associate, the attorney may be responsible for the associate's misconduct. '(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct. '(c) A lawyer shall be responsible for another lawyer's violation of the rules of professional conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.' In DA12309, the respondent failed to take reasonable efforts to ensure that her associate was timely filing pleadings in the litigation involving G.C. Additionally, the respondent knew that her associate was not timely filing pleadings and she failed to take reasonable remedial action. During the hearing on the formal complaint, the respondent admitted that she violated Rule 5.1. As such, the hearing panel concludes that the respondent violated Rule 5.1. "Rule 8.3(a) "126. Attorneys are required to report misconduct. 'A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.' Rule 8.3(a). In DA12309, the respondent failed to report that a complaint had been filed against her in Missouri. Additionally, the respondent failed to report that the Missouri disciplinary authorities informally admonished her for the Rule 1.1 and Rule 1.3 violations in representing G.C. The respondent stipulated to this violation. Because the respondent failed to report her misconduct, the hearing panel concludes that the respondent violated Rule 8.3(a). " Rule 8.4(a) "127. 'It is professional misconduct for a lawyer to ... (a) [v]iolate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.' Rule 8.4(a). The respondent, in this case, violated KRPC 8.4(a) by violating the competence and diligence rules in Missouri. Additionally, the respondent violated KRPC 8.4(a) by violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.8 (conflicts of interest), 1.16 (termination of representation), 3.2 (expediting litigation), 5.1 (duties of a supervisory attorney), 8.3 (reporting misconduct), 8.4(c) (dishonest conduct), and 8.4(d) (conduct that is prejudicial to the administration of justice). As such, the hearing panel concludes that the respondent violated Rule 8.4(a). " Rule 8.4(c) "128. 'It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' Rule 8.4(c). In DA12475, the respondent engaged in conduct that involved a misrepresentation when she stated, '[t]his is the first I was aware that the clients were unhappy with my services. I was not informed that they were unhappy or didn't want me to represent them until I just heard him speak.' The respondent knew for more than a year that D.N. was unhappy with her conduct. The hearing panel concludes that the respondent violated Rule 8.4(c). " Rule 8.4(d) "129. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' Rule 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice in both DA12309 and DA12475. In representing G.N. and D.N., the respondent's conduct prejudiced the administration of justice when she did not appear at the February 29, 2016, hearing and when she did not properly remove references to G.N. and D.N.'s potential tax liability in settlement offers and pleadings filed with the court. The respondent prejudiced the administration of justice in G.C.'s case when she failed to file responses to discovery, motions, and claims, and particularly when she failed to file responses to the motions for summary judgment, resulting in the dismissal of G.C.'s causes of action. Thus, the hearing panel concludes that the respondent violated Rule 8.4(d). " Rule 8.4(g) "130. 'It is professional misconduct for a lawyer to ... engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' Rule 8.4(g). In DA12475, the respondent engaged in conduct that adversely reflects on her fitness to practice law when she accused G.N. of fraudulently misrepresenting the year that G.N. discovered that the money entrusted to Knudson was all lost. The respondent engaged in conduct that adversely reflects on her fitness to practice law when she threatened to sue G.N. and D.N. and take other adverse action if they did not pay her $80,000 in attorney fees despite her agreement to accept the representation on a contingency fee basis. Finally, the respondent engaged in conduct that adversely reflects on her fitness to practice law when she made unsubstantiated adverse claims regarding D.N. in open court on January 22, 2016, and April 4, 2016. The respondent admitted that her threats to sue G.N. and D.N. and take other adverse action adversely reflect on her fitness to practice law, in violation of Rule 8.4(g). The hearing panel concludes that the respondent violated Rule 8.4(g). "American Bar Association Standards for Imposing Lawyer Sanctions "131. 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. "132. Duty Violated . The respondent violated her duty to her clients to provide competent and diligent representation. The respondent violated her duty to her clients to provide reasonable communication. The respondent violated her duty to her clients to refrain from conflicts of interest. The respondent violated her duty to the public to maintain her personal integrity. Finally, the respondent violated her duty to the legal system to expedite litigation and refrain from prejudicing the administration of justice. "133. Mental State . The respondent negligently violated some of her duties and knowingly violated other duties. "134. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to her clients. D.N. testified about the distress G.N. and D.N. experienced as a result of the respondent's misconduct. G.C.'s cause of action was dismissed because the respondent failed to file responses to the motions for summary judgment. Moreover, the respondent's misconduct also caused actual injury to the administration of justice. Cases were delayed and unnecessary hearings were held because of the respondent's misconduct. "135. 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. Dishonest or Selfish Motive. The respondent threatened to sue her clients, the respondent threatened to withdraw statements the respondent made to the IRS, and the respondent threatened to suggest to G.N. and D.N.'s accountant that she withdraw her signatures on their tax returns. The respondent testified at the hearing on the formal complaint that she never intended to follow through with those threats. Thus, the repeated threats made by the respondent establish a dishonest motive. Further, the respondent's misconduct in making the threats was to entice G.N. and D.N. to pay her attorney fees which, under the fee agreement, she was not entitled to receive. As such, the hearing panel concludes that the respondent's misconduct in this regard was motivated by selfishness. b. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct. The respondent repeatedly made threats to take action against her clients. Additionally, the respondent repeatedly failed to respond to inquiries by D.N. regarding the status of the case. Finally, the respondent repeatedly failed to comply with deadlines set by the court in representing G.C. c. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.8(e) (conflict of interest), 1.16 (termination of representation), 3.2 (expediting litigation), 5.1 (responsibilities of supervisory lawyers), 8.3 (reporting professional misconduct), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (conduct that is prejudicial to the administration of justice), and 8.4(g) (conduct that adversely reflects on fitness to practice). Accordingly, the hearing panel concludes that the respondent committed multiple offenses. d. Vulnerability of Victim. G.N. and D.N. are elderly individuals. Even though D.N. practiced law in Illinois for 40 years, G.N. and D.N. were vulnerable to the respondent's misconduct as they had no experience with this type of matter. e. Substantial Experience in the Practice of Law. The respondent has been practicing law since 1983. At the time of the misconduct, the respondent had been practicing law for more than 30 years. "136. 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. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined. b. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffered from anxiety and panic attacks. It is clear that the respondent's anxiety and panic attacks contributed to her misconduct. c. Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. Twice after G.C.'s claims were dismissed by the court, the respondent paid G.C. for her neglect which led to the dismissals. G.C. was satisfied with the respondent's compensation. d. 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 cooperated with the disciplinary process. While the respondent admitted some of the facts that gave rise to the violations and agreed that she violated some of the rules alleged in the formal complaint, the respondent did not establish a 'full and free acknowledgment of the transgressions.' Nonetheless, the hearing panel finds the respondent's cooperation to be a mitigating factor. e. 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 Johnson County bar. The respondent also enjoys the respect of her peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. f. Physical Disability. During a period of time during the representations of G.N., D.N., and G.C., the respondent suffered a number of medical problems. Clearly, the timing of the medical issues played a part in the respondent's misconduct. "137. In this case, many of the ABA Standards warrant review. Thus, in addition to the above-cited factors, the 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 injury 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 injury to a client. '4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. '4.53 Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client. '5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law. '6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. '6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. '6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. '6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.' "Recommendation "138. The deputy disciplinary administrator recommended a range of discipline, depending on which rules the hearing panel concludes that the respondent violated. At a minimum, the deputy disciplinary administrator recommended that the respondent's license be suspended for one year and that the respondent be required to undergo a reinstatement hearing under Rule 219. Alternatively, the deputy disciplinary administrator recommended that the respondent be disbarred. "139. Counsel for the respondent recommended that the respondent be allowed to continue to practice law, subject to the proposed plan of probation. "140. When a respondent makes a request to be placed on probation, the hearing panel is obligated to consider Rule 211(g) to determine whether consideration of probation is appropriate. '(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 the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint; (ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; (iii) the misconduct can be corrected by probation; and (iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.' "141. The hearing panel concludes that the respondent developed a workable, substantial, and detailed plan of probation. The respondent provided a copy of the proposed plan of probation to the deputy disciplinary administrator and each member of the hearing panel months before the hearing on the formal complaint. It is clear that the respondent put the proposed plan of probation into effect prior to the hearing by complying with each of the terms and conditions of the probation plan. With the exception of the dishonest conduct, the misconduct can be corrected by probation. See In re Stockwell , 296 Kan. 860, 868, 295 P.3d 572 (2013) ('Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.'). Finally, placing the respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. "142. The hearing panel concludes that the requirements of Rule 211(g) do not prohibit the hearing panel from considering probation in this case. The hearing panel has carefully considered whether the respondent should be placed on probation, despite the dishonest conduct. Just as the Supreme Court is generally reluctant to grant probation where the misconduct involves dishonest conduct, the hearing panel is likewise reluctant. However, in this case, the hearing panel concludes that the significant mitigating factors (particularly the absence of a prior disciplinary record) are compelling and the hearing panel recommends that the respondent be suspended for a period of two years and that the suspension be suspended, to allow the respondent to be put on probation. The hearing panel recommends that the probation be for a period of two years, subject to the following terms and conditions: 1. Practice Supervision . Michael S. Martin will serve as the respondent's practice supervisor. The respondent will meet with the practice supervisor on a monthly basis. The respondent will allow the practice supervisor access to her client files, calendar, and trust account records. The respondent will comply with any requests made by the practice supervisor. The practice supervisor will 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 will be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities. 2. Practice Limitation . During the period of probation, the respondent will limit her practice to estate planning, noncontested probate cases, and business law. The respondent will not accept any new contested litigation matters without prior approval of the supervising attorney. 3. Office Procedures . The practice supervisor shall require the respondent to develop written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which she has undertaken representation. The respondent shall provide a copy of the written office procedures to the disciplinary administrator. 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. 4. 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, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending. 5. Audits . Within thirty (30) days of the date of the Court's opinion, the practice supervisor shall conduct an initial audit of the respondent's files. Thereafter, the practice supervisor shall conduct additional audits quarterly. 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. 6. Professional Liability Insurance . The respondent shall continue to maintain professional liability insurance. 7. Medical Treatment . The respondent will continue her medical treatment throughout the period of supervised probation, unless the physician determines that continued treatment is no longer necessary. The physician will notify the practice supervisor and the disciplinary administrator in the event that the respondent discontinues treatment against the recommendation of the physician during the probationary period. The respondent will provide the physician with an appropriate release of information to allow the physician to provide such information to the practice supervisor and the disciplinary administrator. 8. Continued Cooperation . The respondent will continue to cooperate with the disciplinary administrator. If the disciplinary administrator requests any additional information, the respondent will timely provide such information. 9. Additional Violations . The respondent will not violate the terms of her 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 will immediately report such violation to the practice supervisor and the disciplinary administrator. The disciplinary administrator will file a motion to revoke probation with the Supreme Court and the chair of the Kansas Board for Discipline of Attorneys. See Rule 211(g)(9)-(12). "143. 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) (2018 Kan. S. Ct. R. 251). 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] ). The respondent was given adequate notice of the formal complaint to which she filed an answer and an amended answer. The respondent was also given adequate notice of the hearing before the panel and the hearing before this court. She filed exceptions to the hearing panel's final hearing report. At oral argument, the respondent clarified that she is not contesting the allegations against her and she agrees that the facts she contests in her brief to this court are not material to the disposition of this case. The respondent does not take exceptions to the panel's conclusions that she violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); KRPC 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4 (2018 Kan. S. Ct. R. 293) (communication); 1.5 (2018 Kan. S. Ct. R. 294) (fees); 1.8(e) (2018 Kan. S. Ct. R. 309) (providing financial assistance to client); 1.16 (2018 Kan. S. Ct. R. 333) (termination of representation); 3.2 (2018 Kan. S. Ct. R. 343) (expediting litigation); 5.1 (2018 Kan. S. Ct. R. 358) (responsibilities of supervisory lawyers); 8.3 (2018 Kan. S. Ct. R. 380) (reporting professional misconduct); 8.4(a) (2018 Kan. S. Ct. R. 381) (misconduct); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (conduct that is prejudicial to the administration of justice); and 8.4(g) (conduct that adversely reflects on fitness to practice). The evidence also 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 the respondent's violations. At the hearing before this court, the office of the Disciplinary Administrator recommended the respondent be suspended indefinitely or, in the alternative, that a reinstatement hearing pursuant to Supreme Court Rule 219 (2018 Kan. S. Ct. R. 264) be held before the respondent could return to the practice of law. The hearing panel recommended that the respondent be suspended from the practice of law for a period of two years, that the suspension be suspended, and that the respondent be put on probation subject to the terms and conditions listed in the final hearing report. The respondent and her designated practice supervisor filed affidavits asserting the respondent is in compliance with the probation plan approved by the panel. The panel acknowledged that probation is generally not appropriate in cases involving dishonest conduct, but it was persuaded by the mitigating circumstances here. This court is unconvinced that the mitigating circumstances render the respondent's egregious conduct toward her elderly clients amenable to probation. The respondent attempts to explain her threatening conduct toward them as an attorney-to-attorney negotiation because of D.N.'s status as an attorney. But her conduct in threatening to withdraw her statement to the IRS and to file a petition against her clients was simply wrong for several reasons. First, the respondent had special influence over her clients' taxes because she was also co-owner of the financial firm that had prepared their tax returns. She exerted this influence in her December 30, 2014 email, stating, "First, if you get audited, you will need me and my files to prove to the IRS that the income Transamerica declared to you was phantom, and caused by a Ponzi scheme." The email also referenced legal opinions "on which the accountant relied in completing the tax return that saved you from $198,000 in taxes," with both the respondent and the clients aware that the accountant was the respondent's employee, a fact which amplified the threat. Even if her characterization of "attorney-to-attorney" negotiation was reasonable, her dual role as financial advisor and attorney gave her unfair leverage. Second, her characterization of "attorney-to-attorney" negotiation was unreasonable in light of her recommendation for a guardian ad litem for D.N. at the January 22, 2016 hearing before the district court. The record is not clear on whether the respondent was sincere when she told the district court D.N. might need a guardian ad litem. But it is an aggravating factor either way. If the recommendation for a guardian ad litem was insincere, then the respondent's attempt to discredit her client before the court was unethical. If the recommendation was sincere, then the respondent was unethical for engaging in hardball negotiations with a retired attorney whose capacity she knew to be diminished. Moreover, the respondent had an opportunity to show she could satisfactorily perform on diversion but failed. While she was on diversion for loaning $20,000 to her client in violation of Rule 1.8(e), two new complaints were filed. And she did not contest the Disciplinary Administrator's later request to revoke her diversion which was granted in January 2017. This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f) (2018 Kan. S. Ct. R. 255). But this court agrees with the recommendation of the Deputy Disciplinary Administrator and holds indefinite suspension is the appropriate discipline. The respondent's license to practice law in the state of Kansas shall be indefinitely suspended; she will not be eligible for reinstatement for a minimum of three years from the date this opinion is filed; upon petitioning for reinstatement, she must establish the conditions set forth in Supreme Court Rule 219(d). CONCLUSION AND DISCIPLINE IT IS THEREFORE ORDERED that Linda S. Dickens be and she is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2018 Kan. S. Ct. R. 234), effective on the date of the filing of this opinion. IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 218 (2018 Kan. S. Ct. R. 262) (notice to clients, opposing counsel, and courts of record following suspension). IT IS FURTHER ORDERED that in the event the respondent seeks reinstatement, she shall be subject to a reinstatement hearing under Supreme Court Rule 219 (reinstatement). 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.

The opinion of the court was delivered by Stegall, J.: While suffering from a psychotic episode, Lindsey Nicole Blansett stabbed her 10-year-old son, Caleb Blansett, to death. A jury convicted Blansett of first-degree premeditated murder and aggravated assault. On appeal, Blansett challenges the jury instructions concerning her mental disease or defect defense. She also alleges several instances of prosecutorial error and claims cumulative error merits reversal. At first, Blansett argued that premeditation is a culpable mental state that can be negated by the mental disease or defect defense. But while her case was pending, we decided State v. McLinn , 307 Kan. 307, 323, 409 P.3d 1 (2018), and rejected the same argument, holding that premeditation is not a "culpable mental state" under K.S.A. 2013 Supp. 21-5209. We later granted Blansett's request for supplemental briefing to discuss McLinn 's impact and raise additional arguments. Now, Blansett argues the jury instructions prevented the jury from considering how the evidence of her mental disease or defect affected her ability to premeditate. We hold Blansett has failed to establish instructional error because we disagree with her characterization of the jury instructions. Also, we find one instance of prosecutorial error but hold it was harmless. As a result, there are not multiple errors to accumulate and cumulative error does not apply. For these reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Just before midnight on December 14, 2014, the Sumner County 911 dispatcher received a call from Blansett. The first thing Blansett said was, "Hi, this is Nicole Blansett, I just stabbed my son.... I thought somebody was coming in to get us." The dispatcher asked Blansett where she had stabbed her son, and Blansett replied, "In the chest.... I thought somebody was coming in." After the dispatcher told her to hold on the line, Blansett exclaimed, "God, what did I fucking do? ... I'm never gonna get out of jail ... never. Oh God, you're gonna have to live with dad. Oh, God, why? Why?" and then began crying. When the dispatcher returned to the line, he asked Blansett if her son was breathing. Blansett said she could feel his heartbeat but just "barely." Officer Sara Owens was the first to arrive at Blansett's house in Wellington. Officer Owens would later testify: "When I walked into the house, I noticed that the house was completely dark, and I saw a white female that I identified as Nicole Blansett, and a young child, who ended up being Cadence Blansett. Nicole was kind of in a daze and Cadence was crying." Officer Owens "found Caleb laying on his back on the bed with blood covering his chest." Caleb had no pulse. Blansett told Officer Owens that "she had been frightened"; "she thought that something was going to happen"; "she felt like she heard something by the window"; and "her son's toy gun had fallen for no reason." Blansett talked "about having peoples' arms ... chopped off, people being cut up, Caleb living like a dog, being in pain, and she didn't want her [ ] son to live like that." Blansett "thought she was saving him from all the years of pain. She didn't specify what kind of pain. Just somebody coming and getting him. Somebody hurting him." When the EMTs arrived, they found Caleb lying motionless in bed with multiple stab wounds to his left pectoral area. They pronounced Caleb dead at the scene. In the same room, investigators found a knife on the dresser and an 11-pound rock lying next to the bed. Detective Bobby Wilson interviewed Blansett at the scene of the crime. Blansett told Detective Wilson that she was having financial issues and was depressed. She explained that she had been trying to reconcile with her ex-husband Clint, and he wanted her "to go to mental health" on the following Monday. Blansett had agreed to do so in hopes of reconciling with Clint. Blansett told Detective Wilson that earlier in the evening she was tending to two puppies she had gotten the children as an early Christmas present. At some point, she took their large adult dog outside. When she came back inside, she took three knives out of a kitchen drawer and laid them on the counter. According to Blansett, she heard a noise and walked through house carrying one of the knives. Turns out, the noise was caused by a toy gun falling off the wall in Caleb's room. Blansett recalled that she returned to the kitchen, set the knife down, and went back to the dogs. But shortly after, she decided "that Caleb just needed to go to heaven, and he needed to go to heaven that night. She was going to ease his pain. And that's when she made a decision to end his life." Then Blansett went to Caleb's room and stabbed him while he was asleep. As Detective Wilson summarized, Blansett stabbed Caleb once, realized what she had started, and then decided to stab him a couple more times. Detective Wilson probed why Blansett killed her son. She commented that Caleb was "meek, a weak child." Blansett was hard to follow and "[n]ever gave an exact reason why." But she insisted that "[s]he needed to stop his pain. She needed to save him. And he needed to go to heaven." After the on-site interview, Detective Wilson took Blansett to the Sumner County jail. Later that morning, Blansett asked to speak with Detective Wilson again, and over the course of three more interviews she discussed the killing and her mental process in more depth. At the outset, Blansett told Detective Wilson that she had hit Caleb with a rock before stabbing him. She first thought the rock would kill Caleb, and when it did not, she stabbed him. Detective Wilson asked if, after hitting Caleb with the rock, Blansett had to leave the room to get the knife. Blansett said "no." She also told Detective Wilson that Caleb woke up after she hit him with the rock. As Blansett stabbed Caleb, he yelled, " 'Mommy, stop. Mommy, stop.' " Cadence also yelled at Blansett to stop. But Blansett kept stabbing and told Caleb that this was the only way he could get to heaven. When Detective Wilson asked Blansett why she killed Caleb, Blansett said, "I just lost my mind." In the days leading up to the crime, she had not been eating or sleeping well and her mind was racing "nonstop." That day, Blansett believed people were coming to hurt them. She explained, "I thought something bad was gonna happen to them, I thought something bad was gonna happen to me, and I thought that that was the only way that I could save them," and, "I felt like I was being closed in on." Blansett expressed that Caleb would struggle in life and she was doing the best thing for him. But Blansett also admitted that, as soon as she stabbed Caleb, she "knew it was wrong." Detective Wilson suggested that Blansett premeditated the killing when she retrieved the rock and the knife. Blansett denied this repeatedly and insisted that she did not plan the killing. The State charged Blansett with first-degree premeditated murder and aggravated assault. At trial, the State's case-in-chief consisted mainly of the testimony of investigators and forensic scientists. Detective Wilson testified for the State and detailed each of the interviews that he conducted with Blansett. Although each of the interviews had been recorded in some manner, only a recording of the third interview was introduced into evidence and played for the jury. The State also called Blansett's friend Ivan Scott to testify. He explained that the night before Caleb's death, Blansett and her kids stayed overnight at his house. He recalled that Blansett "was acting paranoid" that night and worried that someone was in the house. After the State rested its case, the defense called Dr. Jarrod Steffan, a psychologist, to testify. Dr. Steffan had interviewed and evaluated Blansett. He testified that about a month before Caleb's death, Blansett became "paranoid and suspicious, particularly of her mother and her stepfather." During that time, Blansett claimed she heard her son talking in his sleep like he was having a nightmare, saying "[s]omething to the effect of, 'Stop, Papa, stop.' " Blansett soon "formed the opinion" that her ex-husband was sexually abusing Caleb. Around that time, Blansett also came to believe that she had been sexually abused as a child, though it was unclear to Dr. Steffan whether this had occurred. According to Dr. Steffan, about a week before Caleb's death, Blansett had attended a church service "about God's wrath and salvation." At this service, the verse Genesis 9:11 stood out to Blansett. She became obsessed with those numbers, thinking about all the times they had come up in her life. She also read chapter 9, verse 11 from other books of the Bible. She then became "very paranoid about what was going on and wasn't sure whether the verses about the references to 911 were coming from God or from the devil. She had an overwhelming sense of fear of terror." She believed that events like September 11, 2001, were "God's way of, what she said, taking out people before really bad things happened. It was a way that God saves people. Brings them into heaven before they-they suffer a calamity essentially." As Dr. Steffan testified, "[Blansett] became in the clinical sense what-what a psychologist and psychiatrist would say as-as being very preoccupied and perseverating on that. And those beliefs then morphed into what we call a delusional belief system wherein she was believing that the end times were coming, and she had the sense that-she had this pervasive fearfulness in her life, and she began to believe that Clint, his friends, or other people were going to come into her home, take her two kids, and kill her. And for different reasons she believed that her son wouldn't be able to withstand living with Clint; that Clint would be abusive toward him-toward Caleb; would eventually torture Caleb.... And so in her mind she believed that the right thing to do would be to do what God had done through other very bad events, like 9-11, that is, God-God used 9-11 to rescue some people or bring them into heaven so that they would not experience worse types ... of events. The end times. And so she thought that she had to kill her son in order to prevent him from being taken, and tortured, and ultimately killed ... by the son's father. But that belief didn't happen until moments before she killed her son. Up until that Sunday night, she had these different thoughts about religion, and the end times, and ... she said that she was having visions of Caleb being tortured, beaten. I wasn't able to get the sense from her whether they were what we would call visual hallucinations where she was actually seeing things that no one could possibly see. That it was some severe disruption in her mind. Or if it was something that was like a vivid image that was going along with her different thoughts about what was happening. But she reported she was seeing those different things of her son being tortured." Dr. Steffan concluded that Blansett experienced a change in her mental function about one month before she killed her son, which worsened the week beforehand. He believed that Blansett's mood and sleep changes were consistent with someone who has bipolar disorder and is having a manic episode. As Dr. Steffan explained, during a manic episode a person exhibits a change in risk aversion and has an impaired ability to control impulses. As for Blansett's ability to form intent, Dr. Steffan testified: "Well, on the one hand, it's clear in my opinion that she intended to bring about the death of her son, and she did so. Her decision and thought processes and actions in bringing about that death though were based on her mental state, her symptoms of mania, and psychosis. That directly resulted in her killing her son. She had a delusional belief system.... She had this delusional belief ... that other people were coming to get her, and would torture and torment her son, and that she needed to ensure that her son go to heaven and not be subjected to that torture. And the only way to do that was for her to kill her son. And she had other indications of-of the mania and the psychoses at the time. Keep in mind, she hadn't slept. Her thoughts were racing, were very disruptive. She had trouble thinking clearly. She had trouble controlling her impulses. She was overwhelmed with a sense ... of terror, of fear, of paranoia. And she had what's called persecutory ideation or thought of people coming to get her." During cross-examination, Dr. Steffan agreed that Blansett had the "goal" of killing her son. The State called its own expert, Dr. Roy Daum, a psychologist at Larned State Hospital, to testify in rebuttal. Dr. Daum had also interviewed and evaluated Blansett. He testified that Blansett "had a brief psychotic burst or a brief psychotic episode," which he defined as "irratic [sic ] behaviors over a period from one day up to 30 days but no longer." Dr. Daum acknowledged that some people who suffer from mental illness "cannot distinguish reality" or "form intent." When the State asked Dr. Daum how he evaluates whether a person with mental illness can form intent, Dr. Daum replied, "By definition for me an intent is-implies goal directed behavior. When I form intent, I have a goal I want to reach. If my actions go toward that goal and I reach that goal, then I have formed intent." According to Dr. Daum, Blansett demonstrated an ability to formulate goals and intent. He explained that "[t]he goal orientation happens in saving. It's not in killing. But it's in saving. I want to save my son from the future of what's coming. And if he goes to heaven, he'll be saved, so he won't experience the kind ... of abuse that she had experienced." The jury found Blansett guilty of first-degree murder and aggravated assault. The district court imposed a hard 25 life sentence for the first-degree murder conviction and an 11-month concurrent sentence for the aggravated assault conviction. Blansett appealed directly to this court. See K.S.A. 2018 Supp. 22-3601(b)(3) (permitting appeal from a district court's final judgment directly to the Supreme Court in "any [criminal] case in which a maximum sentence of life imprisonment has been imposed"). ANALYSIS The facts of this case are horrific and tragic beyond all words. The specter of mental disease and the havoc it can and does wreak in people's lives continues to haunt the criminal law. In cases like this, it remains one of the most difficult and stubborn challenges facing policymakers, legislators, judges, prosecutors, defense attorneys and their clients, law enforcement officers, juries, and society itself. And the criminal law is a blunt instrument of last resort-as this case amply illustrates. The flawed jury instructions do not amount to reversible error. Blansett challenges jury instruction No. 6, which explained the mental disease or defect defense, and the district court's response to a mid-deliberation jury question about that instruction. The standard of review for jury instructions is well-known: " '(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 [ 565 U.S. 1221], 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).' " State v. Williams , 303 Kan. 585, 598-99, 363 P.3d 1101 (2016). Additionally, this court reviews a district court's response to a mid-deliberation jury question for abuse of discretion. " '[T]o the extent that it is necessary to determine whether the district court's response was a correct statement of the law, we are presented with a legal question, subject to unlimited review. But when looking at which legally appropriate response the court should have made, we accord the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.' " State v. Lewis , 299 Kan. 828, 856, 326 P.3d 387 (2014) (quoting State v. Wade , 295 Kan. 916, 921, 287 P.3d 237 [ (2012) ] ). The parties agree that Blansett did not object to either the instruction or the district court's response to the mid-deliberation question. Consequently, the clearly erroneous standard of reversibility applies: if error is found, we must be "firmly 'convinced that the jury would have reached a different verdict had the instruction error not occurred.' " State v. McClelland , 301 Kan. 815, 828, 347 P.3d 211 (2015) (quoting State v. Cruz , 297 Kan. 1048, 1066-67, 307 P.3d 199 [ (2013) ] ); see Lewis , 299 Kan. at 855, 326 P.3d 387 (applying clear error standard to "nonevidentiary, mid-deliberation jury questions"). Blansett has the burden to prove clear error. McClelland , 301 Kan. at 828, 347 P.3d 211. The jury instructions about the mental disease or defect defense read: "INSTRUCTION NUMBER 6 "Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime. This evidence is to be considered only in determining whether the defendant had the culpable mental state required to commit the crime. The defendant is not criminally responsible for her acts if because of mental disease or defect the defendant lacked the premeditation and the intention to kill Caleb Blansett, or the awareness to knowingly place Caleb Blansett in reasonable apprehension of immediate bodily harm." "INSTRUCTION NUMBER 7 "If you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required culpable mental state, then the defendant is committed to the State Security Hospital for safekeeping and treatment until discharged according to law." For the murder charge, the verdict form gave the jury the option of finding Blansett guilty of first-degree premeditated murder, guilty of intentional second-degree murder, or not guilty. If the jurors found Blansett not guilty, they were asked to answer the following special question: "Do you find the defendant was not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required culpable mental state?" During deliberations, the jury inquired about the meaning of "culpable." Specifically, the jurors asked, "Definition of culpable? Refer to instruction #6." The discussion between the parties and the judge about how to answer the question is not part of the record. But ultimately the parties agreed upon a response, and the judge read it to the jury in open court: " 'Ladies and gentlemen of the jury: " 'The culpable mental state for the crimes referenced in Instructions Numbered 2 [first-degree murder] and 3 [lesser included offense of second-degree murder] is intentionally. " 'The culpable mental state for the crime referenced in Instruction No. 5 [aggravated assault] is knowingly.' " On appeal, Blansett initially argued the district court erred when it instructed the jury that she was not criminally responsible for her acts if, because of mental disease or defect, she "lacked the premeditation and the intention to kill Caleb Blansett." (Emphasis added.) In her view, this instruction foreclosed the possibility that her mental disease or defect defense could negate premeditation independent of the jury's finding on intent, which could reduce the crime from first-degree premeditated murder to second-degree intentional murder. Blansett also claimed the court's response to the jury question misstated the law because it did not list premeditation as a culpable mental state. Thus, the crux of both arguments was the premise that premeditation is a "culpable mental state" that can be negated by the mental disease or defect defense. K.S.A. 2014 Supp. 21-5202(a) ("Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed 'intentionally,' 'knowingly' or 'recklessly.' "). As K.S.A. 2014 Supp. 21-5209 states: "It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense." (Emphasis added.) While Blansett's case was pending, we decided State v. McLinn , 307 Kan. 307, 409 P.3d 1 (2018), which held: "Under K.S.A. 2013 Supp. 21-5209, a criminal defendant may present a mental disease or defect defense to establish he or she lacked the culpable mental state required as an element of the charged crime. In turn, K.S.A. 2013 Supp. 21-5202(a) defines the phrase 'culpable mental state' as including conduct performed 'intentionally,' 'knowingly,' or 'recklessly.' It does not list premeditation as a culpable mental state. Consequently, a district court does not err by omitting any reference to premeditation in a jury instruction regarding the defense of mental disease or defect." 307 Kan. 307, Syl. ¶ 1, 409 P.3d 1. Thus, McLinn clarified that premeditation is not a "culpable mental state" that can be negated by the mental disease or defect defense under K.S.A. 2014 Supp. 21-5209. Blansett later moved to file a supplemental brief to address McLinn 's impact and raise additional arguments. We granted the motion and scheduled supplemental briefing. In the second round of briefing, Blansett does not contest that McLinn applies prospectively or ask us to overturn it. See State v. Mitchell , 297 Kan. 118, 124-25, 298 P.3d 349 (2013) ("The general rule ... is that a change in the law acts prospectively, applying only 'to all cases, state or federal, pending on direct review or not yet final.' "). Indeed, McLinn resolves Blansett's first set of arguments-instruction No. 6 was not legally required to mention premeditation at all , and the district court was correct to omit premeditation as a culpable mental state in its response to the jury question. In fact, the inclusion of premeditation in instruction No. 6 was technically a misstatement of the law as set forth in McLinn . Blansett, however, does not complain about this "error" on appeal. Given this, Blansett now tries to sidestep McLinn . She claims instruction No. 6's statement that evidence of mental disease or defect "is to be considered only in determining whether the defendant had the culpable mental state required to commit the crime," when combined with the district court's response to the jury question, effectively told the jury not to consider evidence of mental disease or defect with respect to the element of premeditation. (Emphasis added.) Based on this characterization of the instructions, she argues: (1) that evidence of mental disease or defect is relevant independent of K.S.A. 2011 Supp. 21-5209 to negate the element of premeditation, and (2) that preventing the jury from considering this relevant evidence is unconstitutional because it deprives her of the right to present a defense and the right to a fair trial. But we need not reach the merits of Blansett's new arguments because we disagree with her characterization of the instructions. Contrary to her claim, the jury instructions as a whole did not prevent the jury from considering how Blansett's mental disease or defect affected her ability to premeditate. In fact, they suggested the very opposite. As instruction No. 6 stated: "The defendant is not criminally responsible for her acts if because of mental disease or defect the defendant lacked the premeditation and the intention to kill Caleb Blansett." (Emphasis added.) This instruction conveyed that Blansett's mental disease or defect could impact her ability to premeditate and thus remove her criminal responsibility. The district court's response to the jury question was potentially confusing. But in context, it did not directly contradict instruction No. 6 or prevent the jury from following the command contained in instruction No. 6 that the jury consider the evidence of mental disease or defect as that evidence related to the State's burden to prove premeditation. In sum, Blansett has failed to establish error because, based on McLinn , premeditation is not a culpable mental state that can be negated by the mental disease or defect defense, and, based on the facts here, the instructions did not prevent the jury from considering how Blansett's mental disease or defect otherwise affected her ability to premeditate. The single instance of prosecutorial error was harmless. Blansett also argues the State committed reversible prosecutorial error during closing arguments when it engaged in improper burden-shifting, misstated the evidence about her intent, erroneously equated the formation of intent with premeditation, and misstated that Blansett had testified. We hold the State committed one instance of prosecutorial error when the prosecutor mistakenly said that Blansett had testified, but this error was harmless. This court "employ[s] a two-step process to evaluate claims of prosecutorial error," which "should be simply described as error and prejudice." State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). First, "the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109, 378 P.3d 1060. Second, "[i]f error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial." 305 Kan. at 109, 378 P.3d 1060. The constitutional harmlessness test from Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), applies. Sherman , 305 Kan. at 109, 378 P.3d 1060. That means prosecutorial error is harmless "if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' " 305 Kan. at 109, 378 P.3d 1060 (quoting State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [ (2011) ] ). Blansett argues the State engaged in improper burden shifting when it commented that defense counsel could have admitted the videotapes of Blansett's interviews into evidence. But, as we have often said, context matters. See State v. Thomas , 307 Kan. 733, 744, 415 P.3d 430 (2018) ("Appellate courts consider the prosecutor's comments in the context in which they were made rather than in isolation."). And to put this remark in context, we must begin with defense counsel's closing argument. In closing argument, defense counsel focused on the "unanswered questions" of the case, including certain recordings that were not played for the jury. During its case-in-chief, the State had played a recording of one of Blansett's interviews with police. But otherwise, the State had entered her interview statements into evidence through the testimony of law enforcement. Defense counsel seized upon this tactical decision to argue the State was hiding "helpful" evidence. For example, defense counsel questioned why the State would not play Blansett's first interview for the jury, stating: "Now, that interview was recorded. I think we talked about she had [a microphone] on her lapel or what have you. You didn't get to listen to that interview, did you? They didn't play it for you. That could have been helpful. Again, to hear what was said. The voice inflection. The tone of the voice. The loudness of the voice. Perhaps the trembling of the voice, but you didn't get to hear that, folks." In the same vein, defense counsel also commented about another interview, "[T]hat interview was recorded. Audio and video. Didn't get to see it, did we?" Finally, in his closing remarks, defense counsel emphasized that "there's some unanswered questions that need to be addressed by the government" and asked, "How come they wouldn't show you the other interviews or have you listen to them? How come we're just picking one to show you?" Thus, defense counsel weaved the "unanswered questions" thread-which suggested the State was hiding evidence that might help Blansett-throughout closing argument. The State began its rebuttal argument by addressing the recordings that were not played for the jury. The prosecutor said, "All right. Let's deal first with what was introduced and what wasn't introduced. [Defense counsel] is obviously very competent counsel. If there was something in one of those other potential videotapes that he wanted you to see, he could['ve] introduced that into evidence, and you could['ve] seen it as a result of his introduction of evidence." At that point, defense counsel objected. The district court sustained the objection and told the jury: "Disregard those comments. The defendant has no burden to present evidence in this case. [The prosecutor] misspoke." The prosecutor then reframed his argument and told the jury, "You can't speculate on what other things there are that's out there. You have to base your decision solely upon the evidence that you heard here in the courtroom.... You shouldn't conclude one way or the other about other things being helpful or not helpful to anybody. You need to base your decision solely upon what it is that you heard, and what it is that you saw." Kansas caselaw provides that it is " ' "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." ' " State v. Williams , 299 Kan. 911, 939, 329 P.3d 400 (2014) (quoting State v. Peppers , 294 Kan. 377, 397, 276 P.3d 148 [ (2012) ] ). But even so, " ' "considerable latitude [is] granted to prosecutors to comment on the weakness" ' of the defense." Williams , 299 Kan. at 939, 329 P.3d 400 (quoting State v. Stone , 291 Kan. 13, 18, 237 P.3d 1229 [ (2010) ] ). In Williams , defense counsel rhetorically asked during closing argument why the State did not present more witnesses to corroborate the victim's account, though the evidence suggested corroborating witnesses existed. In rebuttal, the State commented that " '[t ]he defense has subpoena power identical to the State .' " 299 Kan. at 937, 329 P.3d 400. On appeal, Williams argued the State's response constituted improper burden shifting. We disagreed based on a line of cases involving comments about a party's subpoena power that "dr[ew] a line indicating a prosecutor cannot suggest a defendant must disprove the State's case." 299 Kan. at 939, 329 P.3d 400. But otherwise, "if a defendant asks the jury to draw an inference that the State's 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." 299 Kan. at 939, 329 P.3d 400. Applying these principles, we held the prosecutor's statements fell within the wide latitude of fair argument because they "did not call upon the defense to disprove the occurrence of the crime." Williams , 299 Kan. at 941, 329 P.3d 400. See, e.g., State v. Naputi , 293 Kan. 55, 64, 260 P.3d 86 (2011) (holding that it was not improper for the State to respond to defense counsel's "purported inference" that the State refused to call a witness beneficial to the defense "by pointing out that if the [witness] would have been helpful to the defense, the defense could have subpoenaed him"). So too here. Defense counsel's closing argument asked the jury to infer that the State was hiding evidence "helpful" to the defense. In response, the State informed the jury that the defense could have introduced those recordings into evidence. This response falls easily in step with our caselaw involving the State's comments about the defense's subpoena power, and the line we draw is the same. When the defense creates an inference that the State's evidence is not credible because the State failed to admit a certain piece of evidence, the State may rebut the inference by informing the jury that the defense has the power to introduce evidence. But in so doing, a prosecutor cannot suggest that a defendant must disprove the State's case. Here, the prosecutor's comments fell within the wide latitude to refute the inference that it was hiding evidence from the jury, and it did not suggest the defense bore the burden to disprove the crimes charged. Blansett's remaining challenges arise from one segment of the State's rebuttal argument, when the prosecutor argued Blansett formed the premeditation and intent to kill her son: "I think that Miss Blansett knew what she was doing when she picked out a knife and carried it around.... I submit it's reasonable for you to conclude that ... the plan was that she was going to kill her son in order to ... save him from a worse life in the future.... [S]he took actions that were very, very consistent with that intent. She took a knife into the bedroom.... So she formulated a plan. She went and got a rock. The rock just doesn't happen to be there in the bedroom. She went into the bathroom and got the rock and brought it back to the bedroom. I submit she had to have two trips. She had to have at least two trips. One to bring the knife in there and the other one to bring the rock in there. And there wasn't any other reason ever given for why she was carrying this rock around except to do injury to her son. Except to kill her son. "Now there is- "THE COURT: There was evidence of another intention. You're misstating the evidence. "[The State]: Well, I apologize, Your Honor. I certainly did not do that intentionally. I knew that there was evidence of other intent with the knife, and I was getting ready to cover the other intent with the knife. "Let me summarize. You are the ultimate decider of what the evidence was. And certainly if I have-I have not intentionally misstated something, but you ultimately will decide that. But let me go to what I know there was evidence about reference to the knife. I know that there was evidence about the knife that she was going on patrol and was carrying the knife around as potential protection. And I recall that in her testimony." At that point, defense counsel objected, noting Blansett had not testified. The prosecutor immediately rephrased: "In the testimony from other people repeating what the defendant said." The judge then thanked the prosecutor for making the correction. Based on this exchange, Blansett argues the prosecutor misstated the evidence about her intent with the knife and erroneously equated the formation of intent with premeditation. Neither argument is persuasive. First, Blansett claims the State's closing argument ignored her statements that she brought the knife into the bedroom for protection. Initially, the prosecutor argued the only reason Blansett carried the weapons into the bedroom was to kill her son. But moments later, after the court interrupted stating there was other evidence of intent, the prosecutor continued: "I was getting ready to cover the other intent with the knife.... I know that there was evidence about the knife that she was going on patrol and was carrying the knife around as potential protection." Viewing the State's argument as a whole, the prosecutor did not misstate the evidence of Blansett's intent with the knife and thus did not commit error. Second, Blansett argues the State equated the formation of intent with premeditation, making the two elements indistinguishable. She claims these elements became blurred when the prosecutor argued that multiple stab wounds were evidence of premeditation. She cites State v. Marks , 297 Kan. 131, 137, 298 P.3d 1102 (2013), in support, which held it was erroneous for a prosecutor to state that the intent to kill was formed " 'during the act [of stabbing] itself.' " Based on the unique facts of that case, we concluded that this comment "confused the formation of premeditation from what was instructed." 297 Kan. at 139, 298 P.3d 1102. But the State's comments here bear no resemblance to those at issue in Marks -the prosecutor did not argue that premeditation was formed while Blansett stabbed Caleb. Instead, the State argued Blansett formed the premeditation while she retrieved the rock and the knife. Evidence of several stab wounds can be a factor supporting a finding of premeditation. When this court reviews a challenge to the sufficiency of the evidence of premeditation, it considers, among other things, circumstantial evidence of " 'the nature of the weapon used' " and " 'the dealing of lethal blows after the deceased was felled and rendered helpless.' " State v. Smith-Parker , 301 Kan. 132, 153, 340 P.3d 485 (2014) (quoting State v. Hollister , 300 Kan. 458, 470, 329 P.3d 1220 [ (2014) ] ). Consequently, it was well within the prosecutor's wide latitude to argue the nature of the weapons used and the multiple stab wounds were circumstantial evidence of premeditation. Finally, we hold the prosecutor misstated the evidence by commenting in passing that Blansett had testified when she had not done so. See State v. Sturgis , 307 Kan. 565, 570, 412 P.3d 997 (2018) ("Under our current analysis, a prosecutor commits error by misstating the evidence, even when the misstatement is accidental or inadvertent."). But this error was harmless when viewed in context-defense counsel immediately objected, the district court sustained the objection, and the prosecutor promptly clarified that Blansett had not testified. Put simply, the misstatement was repaired quickly, and in light of the trial as a whole, it was not a "game-changer." 307 Kan. at 570, 412 P.3d 997. And this single error " 'is insufficient to support reversal under the cumulative effect rule.' " State v. Novotny , 297 Kan. 1174, 1191, 307 P.3d 1278 (2013). Affirmed. Johnson, J., concurs in the result.

The opinion of the court was delivered by Beier, J.: Defendant Brian A. Murrin challenges a Court of Appeals panel's conclusion that a Clay County district court judge did not err by failing to instruct on voluntary intoxication in determining his guilt on charges of criminal trespass and interference with law enforcement. We agree with Murrin that the facts of this case made the voluntary intoxication instruction appropriate, but Murrin cannot establish that the failure to give the instruction was clearly erroneous and thus reversible. For the reasons outlined below, we affirm the Court of Appeals decision affirming Murrin's convictions. FACTUAL AND PROCEDURAL BACKGROUND On the evening of August 18, 2014, Murrin and his wife, Alea, got into an argument. Murrin was drunk and "hollering things." At some point, Alea told Murrin that she had had "enough." Alea would testify at trial that Murrin left and came back "really drunk." Again, Murrin was "hollering things," which scared the couple's children. Alea believed that her daughter might have called the police to the apartment. Officer Scott Galindo of the Clay Center Police Department responded to a 911 hang up at the Murrin's apartment complex. Galindo spoke with Alea and agreed to take her and the children to Grace True's house. True was Alea's mother-in-law. Galindo and another officer transported the family to True's. As Galindo was leaving, True told him that her son would come looking for Alea. Later in the evening, Galindo was called to True's house for an "unwanted subject." Galindo arrived to find Murrin in the front yard, yelling at his wife and mother, trying to persuade Alea to come home. Galindo would testify at trial that Murrin appeared to have been drinking. True told Galindo that she did not want Murrin on the property that night. Galindo relayed the request to Murrin and told Murrin that he would have to go home. Galindo warned Murrin that if he came back to True's house he would be arrested for criminal trespass. Murrin eventually walked away from True's house and toward his apartment complex. After Murrin left, Galindo parked his car down the street from True's house and waited to see if Murrin would return. After 10 or 15 minutes, Murrin did. He went to True's front porch and began knocking on the door. Galindo approached the porch and announced " 'police, stop,' " at which point Murrin ran to the end of the porch, jumped over the railing, landed on his feet, and ran away. Galindo returned to his patrol car and called dispatch before he began looking for Murrin. He eventually found him walking down another street. Galindo again announced, "police, stop," and this time Murrin stopped. Murrin told Galindo that he was not doing anything wrong. Galindo told Murrin that he had personally seen him on True's property and that he was under arrest for criminal trespass. When Galindo took physical control of Murrin, Murrin tried to break free, but Galindo was able to "keep him under control." As part of a search of Murrin's person incident to his arrest, Galindo found marijuana and drug paraphernalia. The State charged Murrin with felony possession of marijuana, misdemeanor possession of drug paraphernalia, criminal trespass, and interference with law enforcement. At trial, True testified that on the night of Murrin's arrest, she could smell alcohol on his breath and that he was "acting like he was heavily intoxicated." True saw Murrin stumble a couple of times, but he did not fall. She also testified that her son had a history of alcohol problems and would often black out and not remember anything that had happened while he was drinking. Galindo testified that when he initially responded to True's home, Murrin was in the front yard, yelling at Alea and True. He described Murrin as angry and belligerent and said he appeared to have been drinking. According to Galindo, after he told Murrin to leave, Murrin was able to "walk backwards" before walking away; he "wasn't staggering or tripping or stumbling." Galindo also testified about Murrin's efforts to break free from him. Galindo testified, "First, I got the handcuffs on. As soon as I put the handcuffs on behind his back, he started leaning forward and tried pulling away from me and swinging his arms back and forth." Clay County Sheriff's Deputy Ken Hughes also was present for the arrest and gave his account of it at trial. According to Hughes, Galindo held Murrin against the rear quarter panel of the patrol car. "Murrin tried to turn to face Officer Galindo and Officer Galindo put his hip [into him] and pushed him up against the car." Galindo then moved Murrin around to the trunk of the car. During cross-examination, Hughes attempted to clarify: "I wouldn't necessarily say it was [a] fight, but Officer Galindo had him against the car, like I said, and he was-his belt buckle would have been against the car, so his back is to Officer Galindo, and Officer Galindo had one arm holding him and the other arm was patting down, I do believe it was his right leg, because Galindo's back was to me, and I saw Murrin try to spin and Galindo had to put his hip into him to push him back up against the car." After the State concluded its case-in-chief, Murrin called Alea as a witness. Alea recalled Murrin "was really inebriated, he was really drunk, he was hollering things. It scared my children." When Murrin would get that drunk, she said, "it's just best for me and the children not to be around it." Alea also claimed that the marijuana and drug paraphernalia were hers. She did not know why Murrin would have picked the items up and taken them from their apartment. Murrin also testified in his own defense. Alea had told him that "she's done," when she first left. Murrin explained that the "bottle" is his typical recourse if Alea does something like that. Murrin went to a friend's house. While there, he and his friend smoked marijuana, and Murrin "ended up taking more pain killers than [he] should have, mixing it with alcohol." Murrin believed that he and his friend had "consumed over a 30 pack [of beer] and half a gallon of whiskey." Murrin's recollection of the rest of the night's events was hazy and incomplete. He recalled being at his mother's house and hearing someone yell, " 'hey.' " Murrin ran, believing it was someone looking to fight him. The only other thing Murrin remembered from his encounter with Galindo was being put in the police car and asking why he was being arrested. At the conclusion of evidence, the district judge and counsel discussed the jury instructions. Murrin requested a voluntary intoxication instruction for the two drug-related charges. The State opposed the instruction, arguing that it was not factually appropriate. According to the State, because Murrin could remember some things, he was not intoxicated enough at the time of the crimes to warrant giving the jury the voluntary intoxication instruction. Viewing the evidence in the light most favorable to Murrin, the district judge concluded the instruction was factually appropriate on the two drug-related charges and gave the instruction. Murrin did not seek to extend the coverage of the voluntary intoxication instruction to the criminal trespass and interference with law enforcement charges. The voluntary intoxication instruction ultimately read: "The defendant raises voluntary intoxication as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant. .... "Voluntary intoxication may be a defense to the charge of possession of marijuana when such intoxication impaired the defendant's mental faculties to the extent that he was incapable of forming the necessary intent to exercise control over the substance, with knowledge of the nature of the substance. "Voluntary intoxication may be a defense to the charge of possession of drug paraphernalia when such intoxication impaired the defendant's mental faculties to the extent that he was incapable of forming the necessary intent to use the drug paraphernalia." The order of the instructions gave the jury the elements necessary to find Murrin guilty of the drug-related crimes first, followed by the voluntary intoxication instruction, and which was followed in turn by the elements instructions for criminal trespass and interference with law enforcement. These instructions read: "Instruction No. 11 "The defendant is charged with criminal trespass. He pleads not guilty. "To establish this charge, each of the following claims must be proved: "1. The defendant entered 1203 6th Street, Clay Center, Kansas. "2. The defendant knew he was not authorized or privileged to do so. "3. The defendant was told not to enter the property by the owner or other authorized person. "4. The act occurred on or about the 18th day of August, 2014, in Clay County, Kansas. "Instruction No. 12 "The defendant is charged with interference with law enforcement by obstructing official duty. He pleads not guilty. "To establish this charge, each of the following claims must be proved: "1. Officer Scott Galindo was discharging an official duty, namely making an arrest. "2. The defendant knowingly obstructed Officer Galindo in discharging his official duty. "3. The act of the defendant substantially hindered or increased the burden of the officer in performance of the officer's official duty. "4. At the time the defendant knew or should have known that Officer Galindo was a law enforcement officer. "5. This act occurred on or about the 18th day of August, 2014, in Clay County, Kansas." In addition, Murrin's jury was told that a verdict of guilt would require the State to prove that "the defendant committed the crimes intentionally. A defendant acts intentionally when it is the defendant's desire or conscious objective to cause the result complained about by the State." The jury found Murrin guilty on all four charges. Murrin appealed three issues to the Court of Appeals: (1) whether the district judge should have instructed the jury on voluntary intoxication as a defense to both criminal trespass and interference with law enforcement; (2) whether a unanimity instruction was required for the interference with law enforcement charge; and (3) whether there was sufficient evidence to support the convictions for interference with law enforcement, possession of marijuana, and possession of drug paraphernalia. See State v. Murrin , No. 115,110, 2016 WL 7032086, at *1 (Kan. App. 2016) (unpublished opinion). To determine whether the voluntary intoxication instruction should have been extended to the non-drug-related charges, the panel concluded that the "legally appropriate inquiry will turn on whether the crimes of criminal trespass and interference with law enforcement are general or specific intent offenses" because "[v]oluntary intoxication is only a defense to specific intent crime." 2016 WL 7032086, at *3 (citing State v. Schreiner , 46 Kan. App. 2d 778, 792, 264 P.3d 1033 [ (2011) ] ). With that as its analytical framework, the panel turned to the statutory definitions of each crime and noted that both demanded a culpable mental state of "knows" or "knowingly." See K.S.A. 2018 Supp. 21-5808(a)(1)(A) (criminal trespass requires person "knows such person is not authorized" to enter property); K.S.A. 2018 Supp. 21-5904(a)(3) (interference with law enforcement requires "knowingly obstructing, resisting or opposing" any person authorized by law to serve process in discharge of official duty). Under the culpable mental state statute, any crime requiring a "knowing" mental state qualifies as a general intent crime. See K.S.A. 2018 Supp. 21-5202(i). Thus, in the panel's view, both criminal trespass and interference with law enforcement were general intent crimes, and a voluntary intoxication instruction was not legally appropriate. Murrin , 2016 WL 7032086, at *3. Murrin petitioned for review on all of the issues presented before the panel. This court granted review only on the issue of whether a voluntary intoxication instruction should have been given for the criminal trespass and interference with law enforcement charges. DISCUSSION This court follows a four-step progression when reviewing challenges to jury instructions: " ' "(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 [565 U.S. 1221] 132 S.Ct. 1594 [182 L.Ed.2d 205] (2012)." [Citation omitted.] " ' "Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. [Citation omitted.] And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. [Citations omitted.]" " 'We examine "jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury." [Citation omitted.]' [State v.] Hilt , 299 Kan. [176] 184-85, 322 P.3d 367 [ (2014) ]." State v. Mattox , 305 Kan. 1015, 1020, 390 P.3d 514 (2017). The parties agree, and the record reflects, that Murrin did not request a voluntary intoxication instruction for either the criminal trespass charge or the interference with law enforcement charge. Thus the clearly erroneous standard of K.S.A. 2018 Supp. 22-3414(3) governs whether any error found is reversible. When the clearly erroneous standard applies, a reviewing court first determines whether there was any error at all by employing an unlimited review of the entire record. If the missing instruction was legally and factually appropriate, the failure to give it was error, and the court goes on to assess 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 the degree of prejudice necessary for reversal." ' " State v. McClelland , 301 Kan. 815, 828, 347 P.3d 211 (2015) (quoting State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 [ (2013) ] ). The crux of the issue before us is whether a voluntary intoxication instruction would have been legally appropriate for the criminal trespass and interference with law enforcement charges. "To be legally appropriate, 'an instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.' " State v. McDaniel , 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 [ (2012) ] ). The extent to which voluntary intoxication is a defense in Kansas is governed by K.S.A. 2018 Supp. 21-5205(b), previously codified at K.S.A. 21-3208(2). "An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind." In his brief, Murrin argues that both criminal trespass and interference with law enforcement require a "particular state of mind," making a voluntary intoxication instruction legally appropriate for each. The version of the criminal trespass statute under which Murrin was charged provides, in relevant part. "Criminal trespass is entering or remaining upon ... any ... [l]and ... by a person who knows such person is not authorized or privileged to do so, and ... [s]uch person enters or remains therein in defiance of an order not to enter or to leave ... personally communicated to such person by the owner thereof or other authorized person." (Emphasis added.) K.S.A. 2018 Supp. 21-5808(a)(1)(A). And the applicable version of the statute defining the crime of interference with law enforcement states: "Interference with law enforcement is ... knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty." (Emphasis added.) K.S.A. 2018 Supp. 21-5904(a)(3). The other statute Murrin relies upon to urge us to reach a conclusion favorable to him is the culpable mental state statute. That statute, which was adopted during a 2011 criminal code recodification, establishes a general rule that "a culpable mental state is an essential element of every crime" and may be established by proof that the accused's conduct was committed " 'intentionally,' 'knowingly' or 'recklessly.' " K.S.A. 2018 Supp. 21-5202(a). Murrin looks to the "knows" and "knowingly" language in the criminal trespass and interference with law enforcement statutes and characterizes it as creating a requirement for a "particular state of mind" that can be negated by voluntary intoxication under K.S.A. 2018 Supp. 21-5202(b). Murrin acknowledges that his interpretation departs from earlier cases interpreting the language now in K.S.A. 2018 Supp. 21-5205(b). This court has long read that language to allow a voluntary intoxication defense to specific intent crimes while prohibiting it for general intent crimes. See State v. Kershaw , 302 Kan. 772, 777-78, 359 P.3d 52 (2015) ("although 'voluntary intoxication is not a defense to general intent crimes, such a defense may be used to negate the intent element of a specific intent crime' "); see also State v. Sterling , 235 Kan. 526, 528-29, 680 P.2d 301 (1984) (history of rule, discussing State v. Wells , 54 Kan. 161, 37 P. 1005 [ (1894) ] ; State v. Rumble , 81 Kan. 16, 105 P. 1 [ (1909) ] ). In his petition for review, Murrin argues that our caselaw has ignored the plain "other state of mind" language in the voluntary intoxication statute. That state of mind is distinct from "particular intent," which he equates with the concept of "specific intent" focused on by earlier cases. The State counters with a slippery slope argument: if Murrin's interpretation is adopted, "then the voluntary intoxication instruction would be available for any crime except for strict liability offenses" because K.S.A. 2018 Supp. 21-5202 states "that a culpable mental state is an essential element in every crime." (Emphasis added.) At least a part of the current confusion over the intersection of these statutes and the availability of a voluntary intoxication defense can be traced to evolution in the meaning of "intent" within criminal law. "Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts." 1 LaFave, Substantive Criminal Law § 5.2 (3d ed. 2018). But under a more contemporary view, "intent"-or as it is sometimes termed, "purpose"-and "knowledge" are treated separately. "[A]s to the results of one's conduct, the [Model Penal] Code provides that one acts 'purposely' when 'it is his conscious object ... to cause such a result,' while one acts 'knowingly' if 'he is aware that it is practically certain that his conduct will cause such a result.' ... One is said to act 'purposely' as to the nature of his conduct if 'it is his conscious object to engage in conduct of that nature,' and to act 'knowingly' as to the nature of his conduct if 'he is aware that his conduct is of that nature.' As to the attendant circumstances, one acts 'purposely' when 'he is aware of the existence of such circumstances or he believes or hopes that they exist,' while one acts 'knowingly' when 'he is aware ... that such circumstances exist.' " LaFave, § 5.2(b). The modern distinction between intent and knowledge is embodied in the culpable mental states statute's definitions of "intentionally" and "knowingly" and mirrors the language of the Model Penal Code discussed above. See K.S.A. 2018 Supp. 21-5202(h) (person acts "intentionally," "with intent" with respect to nature of conduct or to result of conduct when it is "person's conscious objective or desire to engage in the conduct or cause the result"); K.S.A. 2018 Supp. 21-5202(i) (person acts "knowingly," "with knowledge" with respect to nature of conduct or circumstances surrounding conduct when "person is aware of the nature of such person's conduct or that the circumstances exist," with respect to result of conduct when person aware that "person's conduct is reasonably certain to cause the result"). In contrast, the historical development of voluntary intoxication as a defense in Kansas has embodied traditional notions and uses of intent that included "knowledge" within that term. See, e.g., State v. Mountjoy , 257 Kan. 163, 170, 891 P.2d 376 (1995) ("As used in the [pre-recodification] criminal code, the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose' are included within the term 'intentional.' "). Traditionally, "[t]he distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime charged identifies or requires a further particular intent which must accompany the prohibited acts." State v. Mitchell , 262 Kan. 434, 442, 939 P.2d 879 (1997) (quoting State v. Sterling, 235 Kan. 526, Syl. ¶ 1, 680 P.2d 301 [ (1984) ] ); see also K.S.A. 21-3201(a) (criminal intent essential element of every crime, may be established by proof accused's conduct intentional, reckless). If a crime did not require a specific intent, the crime required "only that the underlying act be intentional rather than accidental." Gross v. State , 24 Kan. App. 2d 806, 953 P.2d 689 (1998). "Simply stated, criminal intent is the intent to do what the law prohibits. If proof of criminal intent is required, it is not necessary for the State to prove that the accused intended the precise harm or the result that occurred." Mountjoy , 257 Kan. at 170, 891 P.2d 376. The 2011 recodification did more than modify the meaning of "intent" in Kansas criminal law. Its addition of the culpable mental states statute provided guidance for classifying crimes as general or specific intent crimes. See K.S.A. 2018 Supp. 21-5202(h) ("All crimes defined in this code in which the mental culpability requirement is expressed as 'intentionally' or 'with intent' are specific intent crimes."); K.S.A. 2018 Supp. 21-5202(i) ("All crimes defined in this code in which the mental culpability requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent crimes."). In addition to crimes with an "intentional" culpable mental state, a statute may "provide that any other culpability requirement is a specific intent." K.S.A. 2018 Supp. 21-5202(h). The crime of aggravated battery illustrates both the shift in the meaning of "intentionally" and the change in what it means to be a general intent crime. See State v. Hobbs , 301 Kan. 203, 340 P.3d 1179 (2015). The predecessor to today's aggravated battery statute was adopted in 1969 and defined the crime as " 'the unlawful touching or application of force to the person of another with intent to injure that person or another and which ... [i]nflicts great bodily harm.' " (Emphasis added.) 301 Kan. at 207, 340 P.3d 1179 (quoting K.S.A. 21-3414 [Weeks] ). Under that version of the statute, this court treated aggravated battery as a specific intent crime. See 301 Kan. at 207, 340 P.3d 1179. In 1993, the statute was amended to define aggravated battery as " '[i]ntentionally causing great bodily harm to another person.' " 301 Kan. at 208, 340 P.3d 1179 (quoting K.S.A. 1993 Supp. 21-3414). After the amendment, the Court of Appeals consistently treated aggravated battery as a general intent crime that " 'simply requires proof that the defendant intentionally caused physical contact with another person.' " 301 Kan. at 208-09, 340 P.3d 1179. It was enough if the intentional conduct-that is, the actus reus-incidentally caused the required great bodily harm. In Hobbs we addressed whether the 2011 recodification changed whether proof that a defendant intentionally caused contact with another person could supply a sufficient basis for aggravated battery. During the recodification process, the Legislature amended the aggravated battery statute to define the crime as " 'knowingly [rather than intentionally] causing great bodily harm to another person.' " 301 Kan. at 209, 340 P.3d 1179 (quoting K.S.A. 2011 Supp. 21-5413[b] ). After reviewing the history of the aggravated battery definition in conjunction with the newly enacted culpable mental states statute, we concluded that the Legislature did "not intend for 'general intent' to necessarily mean what it once did." 301 Kan. at 211, 340 P.3d 1179. Although aggravated battery still could qualify as a general intent crime, it no longer would be sufficient for the State to prove merely that the accused intentionally caused contact with another. Following the dictates of K.S.A. 2018 Supp. 21-5202(i) for determining when a person acts "knowingly" with respect to his or her conduct, the person must have been "aware that his or her conduct was reasonably certain to cause the result." 301 Kan. at 211, 340 P.3d 1179. We cautioned, however, that this "does not mean that the accused must have foreseen the specific harm that resulted." 301 Kan. at 211, 340 P.3d 1179. It would be sufficient if "he or she acted while knowing that any great bodily harm or disfigurement of the victim was reasonably certain to result from the action." 301 Kan. at 211, 340 P.3d 1179. With all of the foregoing in mind, we are able to read the culpable mental states statute in conjunction with the voluntary intoxication statute and effect the purposes of both. The voluntary intoxication defense continues to apply "when a particular intent or other state of mind is a necessary element to constitute a particular crime." K.S.A. 2018 Supp. 21-5205(b). We do not read the isolated phrase "particular intent" to be equivalent to "specific intent," as Murrin suggests. Rather, the entire clause as a whole communicates the traditional proposition that a "specific intent" is a stand-alone mental requirement separate from the actus reus of the crime. See LaFave § 5.2 (e) ("most common usage of 'specific intent' is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime"). The key language in the statute is not "particular intent or other state of mind"; rather, it is the language that makes it a "necessary element to constitute a particular crime." This language establishes that voluntary intoxication is an available defense when a defining mental state is a stand-alone element separate and distinct from the actus reus of the crime. Compare K.S.A. 2018 Supp. 21-5807(a)(1) (burglary is entering or remaining within a dwelling "with intent to commit a felony") with K.S.A. 2018 Supp. 21-5812(1) (arson is "[k]nowingly" "damaging any building or property" "by means of fire or explosive"). This is the flip side of the distinction that the Court of Appeals made after the aggravated battery statute was amended in 1993 so that it no longer required an "intent to injure" and only required that the accused " '[i]ntentionally caus[e] great bodily harm to another person.' " 301 Kan. at 208, 340 P.3d 1179. Although the amended statute continued to use intent-based language, the Legislature had eliminated the stand-alone mental requirement of an "intent to injure." This changed the crime from a specific intent crime to a general intent crime. We do not see our interpretation as at odds with the Legislature's declaration in K.S.A. 2018 Supp. 21-5202(a) that "a culpable mental state is an essential element of every crime." The fact that a "culpable mental state" is an "essential element" of "every" crime does not foreclose the possibility that some crimes also require a "particular intent or other state of mind [as] a necessary element." Turning to the crimes at issue in this case, criminal trespass requires "entering or remaining upon ... any ... [l]and ... by a person who knows such person is not authorized or privileged to do so ...." K.S.A. 2018 Supp. 21-5808(a)(1)(A). The actus reus of the crime is "entering or remaining." The statute does not explicitly prescribe a mental state necessary to that actus reus. But it does prescribe a stand-alone particular intent or other state of mind as a necessary element: The accused must know he or she "is not authorized or privileged to" enter or remain. This is a classic specific intent crime because it requires a mental state separate and apart from whatever mental state is required for the actus reus. The Legislature's use of "knows" differs from its use of "knowingly" as a marker of a general intent. Cf. K.S.A. 2018 Supp. 21-5812 (arson, "[k]nowingly, by means of fire or explosive damaging any building or property"); K.S.A. 2018 Supp. 21-5414(a)(2) ("Domestic battery is ... knowingly causing physical contact with a person ...."). A voluntary intoxication instruction would have been legally appropriate for Murrin's criminal trespass charge. In contrast, the "knowingly" requirement in the statute defining interference with law enforcement simply modifies the actus reus. The statute prescribes no stand-alone "particular intent or other state of mind" as a "necessary element." See K.S.A. 2018 Supp. 21-5904(a)(3) ("[i]nterference with law enforcement is ... knowingly obstructing, resisting or opposing any person authorized by law ..."). Based on the statute alone, a voluntary intoxication instruction would not have been legally appropriate. There is, however, a further complication. In this case, the instruction the district judge used for this charge was consistent with earlier caselaw in that it also required the jury to find that Murrin "knew or should have known that Officer Galindo was a law enforcement officer." The portion of the instruction given in this case that corresponded to this judicial enhancement of the statutory elements of interference with law enforcement arguably set up an additional stand-alone mental state as a necessary element to convict Murrin. And, under the rule outlined above with respect to criminal trespass, this means interference with law enforcement would qualify as a specific intent crime for which voluntary intoxication would be available as a defense. This knowledge requirement appears to have been grafted on to the statutory crime by our court prior to the recodification of the criminal code and has continued to be articulated as a part of the recodified crime despite the absence of statutory language to support it. See State v. Brown , 305 Kan. 674, 689-92, 387 P.3d 835 (2017) (discussing what constitutes obstruction of official duty, stating offense's elements include "[3] 'defendant knew or should have known the person he opposed was a law enforcement officer' "); see also State v. Gasser , 223 Kan. 24, 574 P.2d 146 (1977) (stating interference with law enforcement requires "defendant have reasonable knowledge that the person he opposes is a law enforcement official"; "word 'knowingly' in the statute requires this proof"; relying on State v. Bradley , 215 Kan. 642, Syl. ¶¶ 1, 527 P.2d 988 [ (1974) ], involving aggravated assault of "uniformed or properly identified law enforcement officer[s]"). Even if we would question the propriety of the judicial enhancement today, as this case was instructed on the interference charge, it was error for the judge not to instruct on voluntary intoxication as a potential defense. Having established error with respect to both crimes, we now turn to reversibility. As noted above, because Murrin did not preserve this issue below, he must establish clear error. To do so, he must convince us that " 'the jury would have reached a different verdict had the instruction error not occurred.' " McClelland , 301 Kan. at 828, 347 P.3d 211. On the record before us, he cannot clear that high bar. The jury was instructed on voluntary intoxication on the drug charges and did not accept the theory in that context. There was no evidence that Murrin's level of intoxication was any greater at the time the marijuana and paraphernalia were possessed than at the time he stood on the porch of his mother's home or at the time he attempted to break away from the arresting officer. Although Murrin was clearly intoxicated, there is no indication that the jury would have believed that he was so intoxicated that he did not know that he was not supposed to be on the property or that Galindo was a law enforcement officer, if, indeed, proof of the latter should even be required. His attempt to flee indicated otherwise, as did his physical agility in that flight. The error by the district judge in failing to give a voluntary intoxication instruction does not rise to clear error, and thus Murrin's convictions must stand. CONCLUSION We affirm the Court of Appeals decision affirming the judgment of the district court.

Leben, J.: Topeka police officers arrested Linda Ritchey for an outstanding warrant while she was sitting in the front passenger seat of a parked van. After Ritchey was arrested, a police officer searched Ritchey's purse, which Ritchey had left in the van, and found a baggie with methamphetamine residue. Ritchey moved to suppress the evidence from her purse, arguing that it had been found during an illegal search. The district court granted the motion. The State appeals, arguing that the district court shouldn't have suppressed the evidence because: (1) officers legally searched Ritchey's purse during a valid search incident to arrest, one of the recognized exceptions to the requirement that officers have a search warrant; and (2) even if the search were illegal, officers would have found the evidence when they processed Ritchey's purse at the police station to hold it in safekeeping for her. But the officers' search of Ritchey's purse wasn't a valid search incident to arrest because the purse wasn't on her person, there was no threat that Ritchey could use any weapons in her purse against the officers, and there was no possibility that her purse contained evidence of her crime of arrest-having an outstanding warrant. Likewise, there was no evidence that the police had a policy to take items like her purse into possession for safekeeping and no evidence that this purse was sent along with her to the jail, so the State failed to show that items within the closed purse would have inevitably been discovered. Because the officer searched Ritchey's purse without a warrant and the search didn't meet any of the exceptions for a warrantless search, the district court properly suppressed the evidence from the purse. We therefore affirm the district court's order granting the motion to suppress evidence. FACTUAL AND PROCEDURAL BACKGROUND In July 2017, Topeka police officers responded to a report that a group of women, including defendant Linda Ritchey, might be burglarizing a van in the Academy Sports parking lot. When officers arrived and found the van, they approached Ritchey, who was sitting in the front passenger seat of the van smoking a cigarette. Officer Jake Cobler asked Ritchey if the van belonged to her. Ritchey said that it belonged to her friends, who were inside the store. Ritchey gave Cobler her identification, which was in the purse Ritchey was holding while sitting in the van. About six minutes later, a female officer, Officer Ramirez (whose first name is not in our record), asked Ritchey to step out of the van. When Ritchey stepped out, Ramirez put Ritchey in handcuffs, explaining that there was a warrant out for her arrest. Once Ritchey was under arrest, Ramirez led Ritchey to the back of the van. Soon after, but while she was still standing at the back of the van, Cobler began searching through Ritchey's purse, which was still where she had left it on the front passenger seat. The baggie was in a pocket inside Ritchey's closed, fold-over wallet, which itself was inside the purse. After Ritchey's arrest, the owner of the van showed up and officers determined there had been no burglary. The State charged Ritchey with one count of possession of methamphetamine and one count of unlawful use of drug paraphernalia (the baggie). Ritchey pleaded not guilty to each count. Ritchey moved to suppress the evidence taken from her purse, claiming the State obtained its evidence through an illegal search because the officer's "search of [her] purse ... d[id] not meet any of the exceptions to the search warrant requirement." At an evidentiary hearing held to resolve Ritchey's motion, Cobler testified that he searched Ritchey's purse because he assumed officers would transport the purse to jail along with Ritchey. The State argued that Cobler legally searched Ritchey's purse as a search incident to a lawful arrest, a recognized exception to the search-warrant requirement. The State also argued that even if the search of Ritchey's purse were illegal, the baggie in it "would have been inevitably found" when officers searched Ritchey's purse at the jail. Ritchey's attorney argued that the search of Ritchey's purse was illegal because "that purse was not within Ms. Ritchey's immediate control at the time of her arrest ...." Ritchey's attorney also argued that a "search incident to arrest is conducted for the purpose of protecting officers and safeguarding any evidence of the offense of arrest. And I don't think that the State has put forth any evidence to the Court that ... would justify the search incident to arrest either." The district court held that the search of Ritchey's purse was neither a search incident to arrest nor an inventory search: "In this particular case, there is no discussion whatsoever by the officers among themselves ... or with Ms. Ritchey about seeking permission to search the purse. ... And the officer said he didn't talk with anybody, it was just his assumption that the purse would go with her because he believed it was her property. That may have been a valid assumption. ... "... [T]here was discussion about search incident to arrest, which I do not think applies in this particular situation. Clearly, the purse was on the seat. The defendant was arrested. There is no testimony that the purse itself was seized. There is some discussion that it theoretically would have or should have gone with her because it was her property .... But there was no testimony that the officers did seize the purse and that it did go or should have gone to the jail, although there was some discussion as to what they usually do. "... I'm not sure that the inventory search fits in this particular case other than whether it would have been an inevitable discovery issue that once she got to the jail and may have had her purse with her, that the jail would have searched her purse and theoretically eventually found methamphetamine. "... It might have been Ms. Ritchey's decision to leave the purse on the car as she was arrested. Certainly as she walked away, she did not ask for her purse, did not request that her purse stay with her. The officers may have made the assumption but she was certainly not near her purse and she had already been arrested when Ms. Ritchey was escorted away. Again, there is no evidence that the purse was actually seized in this case. ... "So ... I'm going to suppress the evidence. I believe the search of the purse was an illegal search in this particular case." The State then appealed to our court. ANALYSIS The State challenges the district court's order granting Ritchey's motion to suppress any evidence taken from her purse. Even though that order is not a final judgment concluding the criminal case against Ritchey, the State is allowed to file an interlocutory appeal when the district court grants a defense motion to suppress evidence that's significant to the State's case. See K.S.A. 2017 Supp. 22-3603 ; State v. Mburu , 51 Kan. App. 2d 266, 270, 346 P.3d 1086 (2015). We use a two-part standard when reviewing a district court's ruling on a motion to suppress evidence. First, we ask whether the district court's factual findings are supported by substantial evidence-that is, evidence that a reasonable person would find adequate to support a conclusion. Second, we review the district court's ultimate legal conclusions independently, without owing any required deference to the district court. State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016). There really aren't any factual disputes that have been set out in the parties' appellate briefs, so we can skip over the first part of that test. To the extent that any factual questions aren't fully answered by the district court's stated factual findings, we presume that the district court found all the facts required to support its ruling because the State (which lost in the district court) did not ask the district court to make additional findings. See State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 (2015). The State first argues that the district court erred in granting Ritchey's motion to suppress because the officer's search of Ritchey's purse was reasonable as a search incident to arrest. The Fourth Amendment to the United States Constitution "protects everyone's right to be secure in his or her person and not subject to unreasonable searches by the government." State v. James , 301 Kan. 898, 908, 349 P.3d 457 (2015). Any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search-warrant requirement. State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). Those exceptions include consent, search incident to lawful arrest, stop and frisk, probable cause to search accompanied by exigent circumstances, emergency aid, inventory searches, plain view, and administrative searches of closely regulated businesses. 299 Kan. at 239, 328 P.3d 1081. The State carries the burden of proving one of the exceptions applies. State v. Overman , 301 Kan. 704, 710, 348 P.3d 516 (2015). If no exception applies, a judicially created remedy called the exclusionary rule usually prevents the State from using evidence obtained in an illegal search against the victim of the search. State v. Pettay , 299 Kan. 763, 768-69, 326 P.3d 1039 (2014) (citing Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 [1987] ). The State first suggests that, because Ritchey's purse was in her immediate possession at the time of her arrest, officers could search Ritchey's purse as a search incident to arrest. Under that exception, when an officer makes a lawful arrest, the officer can search the person arrested and the area within that person's immediate control without a warrant. Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ; State v. Torres , 53 Kan. App. 2d 258, 263, 386 P.3d 532 (2016). This warrant exception exists for two reasons: it protects officer safety by allowing police to search the area within the immediate control of the person arrested for weapons that the person could reasonably access and it prevents the person from destroying or concealing evidence within his or her reach. Chimel , 395 U.S. at 763, 89 S.Ct. 2034. Neither of those reasons was served here. At the preliminary hearing, Cobler said that he didn't search Ritchey's purse for his protection or to preserve evidence, but because he "just assumed that it was going with her" to jail. The officer's body-camera video shows that Ritchey placed her purse on the passenger seat of the van before she stepped out of the van and was arrested. Before officers searched Ritchey's purse, Ramirez had arrested Ritchey, had placed her in handcuffs, and had led her from the front passenger side of the van toward the back of the van. By the time Cobler searched Ritchey's purse, there was no possibility that Ritchey could have accessed the purse or anything in it in an effort either to destroy evidence or resist the officers. The purse had three compartments, and Cobler began going through them as soon as Ritchey was taken away. No compartment was zippered shut, but the officer had to open the enclosure to each compartment to look into it. Cobler had no inventory form and made no notes while he searched. Instead, he went through each compartment, apparently looking for contraband. In the first compartment, he found a closed zippered black case attached to a keyring. He unzipped it but found nothing, zipped it up, and put it back. In the second compartment, he found her billfold (or pocketbook), which wasn't latched but was folded over so that it was closed. Cobler opened it and then went through each section of it, including a pocket that contained several items, including some cards, some paper, and the plastic baggie he took. Cobler spent about four minutes carefully going through the purse. After he had gone through the entire purse, he put it back on the seat and gave the plastic baggie to another officer. As we've already noted, there couldn't have been a need to go through the bag for officer safety-Ritchey had already been handcuffed and led away. And since Ritchey was arrested for an outstanding warrant, not for committing a new crime, there was no reasonable possibility that Ritchey's purse contained evidence of the crime for which she was arrested that officers needed to preserve. See Arizona v. Gant , 556 U.S. 332, 343, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ("[I]n many cases, such as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence."); State v. Reed , No. 113576, 2015 WL 9287062, at *3 (Kan. App. 2015) (unpublished opinion) (finding that other than the arrestee's driver's license, the arrestee's wallet didn't contain evidence of the crime of arrest of driving with a suspended license). Indeed, the State has made no suggestion in the district court or here that the purse might have contained evidence related to the crime of arrest. Even so, without addressing the purpose of Cobler's search of Ritchey's purse, the State still argues that officers were entitled to search Ritchey's purse because a purse is merely an extension of a person and officers may perform a full search of a person under arrest. See United States v. Robinson , 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (holding that "in the case of a lawful custodial arrest a full search of the person is ... a 'reasonable' search under [the Fourth] Amendment"). In support, the State generally cites some out-of-state cases that have allowed the search of purses, handbags, or briefcases when a defendant had the item at or about the time of arrest. See United States v. Johnson , 846 F.2d 279, 282-84 (5th Cir. 1988) (holding that officers could search a briefcase within the defendant's reach when he was arrested); United States v. Graham , 638 F.2d 1111, 1113-14 (7th Cir. 1981) (holding that officers could search a shoulder bag defendant was wearing when arrested); People v. Flores , 100 Cal. App. 3d 221, 230, 160 Cal.Rptr. 839 (1979) (holding that officers could search a shoulder bag at defendant's feet when arrested); People v. Cregan , 2014 IL 113, 600, 381 Ill.Dec. 593, 10 N.E.3d 1196, 1202-03 (2014) (holding that officers could search a wheeled suitcase and laundry bag in possession of train passenger when he departed the train and was arrested); State v. Wynne , 552 N.W.2d 218, 222-23 (Minn. 1996) (holding that officers could not search the purse of a woman who arrived home while officers were executing a search warrant for the premises; the purse was considered part of that woman's person and she wasn't named in the search warrant). But none of those cases are factually similar to ours, in which the defendant had left her purse behind and been taken away from the vicinity of the purse before an officer took possession of it. The State also cites two Kansas cases, but again, neither has facts much like ours. The first one is State v. Sabater , 3 Kan. App. 2d 692, 694, 601 P.2d 11 (1979), in which this court upheld the search of an arrestee's pocketbook, finding that the "pocketbook was immediately associated with the person of defendant ...." But the facts in Sabater are limited, and there's no indication in the opinion about where the pocketbook was actually located in relation to Sabater's person when she was arrested. Without that information, there's no way to analogize that search to the search of Ritchey's purse. The State also cites State v. Dickerson , No. 92957, 2005 WL 3289390, at *4 (Kan. App. 2005) (unpublished opinion), which upheld the search of a purse incident to arrest. But there are two main differences between the facts in Dickerson and those here. First, Dickerson was arrested for possession of drugs, so the officer who searched her purse "could have been looking for illicit drugs and drug-related items ...." 2005 WL 3289390, at *4. Ritchey, on the other hand, was arrested for an outstanding warrant-a past crime for which officers couldn't reasonably expect to find evidence in her purse. Second, the officer in Dickerson searched the purse after "he saw the clear plastic bag of marijuana in the opened purse," thus invoking the plain-view exception to the warrant requirement. (Emphasis added.) 2005 WL 3289390, at *4 (citing State v. Galloway , 232 Kan. 87, 89, 652 P.2d 673 [1982] ). But here, Ritchey's purse was closed when Cobler began to search it, so the plain-view exception would not apply. In our case, the key point is that neither of the justifications for the search-incident-to-arrest exception to the warrant requirement was served when Cobler searched Ritchey's purse. Nor was the purse still on her person when she was arrested: Officer Ramirez asked her to step out of the van and then arrested Ritchey, who had left her purse behind. We conclude that the search-incident-to-arrest exception didn't apply here. See Gant , 556 U.S. at 339, 129 S.Ct. 1710 ("If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply."). Alternatively, the State argues the evidence from Ritchey's purse is admissible under the inevitable-discovery doctrine. The inevitable-discovery exception allows the admission of otherwise unconstitutionally obtained evidence if police eventually would have found that evidence by lawful means. State v. Carr , 54 Kan. App. 2d 780, 793, 406 P.3d 403 (2017) (citing Utah v. Strieff , 579 U.S. ----, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 [2016] ); see State v. Baker , 306 Kan. 585, 590-91, 395 P.3d 422 (2017). For the exception to apply, the State must prove that, more likely than not, the evidence would have inevitably been discovered later by lawful means. Baker , 306 Kan. at 591, 395 P.3d 422 ; see State v. Lloyd , 52 Kan. App. 2d 780, Syl. ¶ 2, 375 P.3d 1013 (2016). The State says that officers would have found the evidence as part of an inventory search when they searched Ritchey's purse at the jail. That assumes, of course, that there was some sort of policy under which arresting officers took possession of the personal effects of a person who was arrested so that they could be returned to that person when he or she was later released. Ritchey counters that the inevitable-discovery doctrine doesn't apply because the State failed to produce any evidence that a valid inventory search took place. We agree with Ritchey. In support of her argument, Ritchey cites our Supreme Court's decision in Baker , 306 Kan. 585, 395 P.3d 422. In it, the court held that the inevitable-discovery doctrine didn't apply when officers "testified that a small bag or backpack would have been 'searched' or 'inventoried' at the arresting agency or jail[, but] fail[ed] to present any evidence of standardized criteria or an established routine governing the opening of closed containers during inventory searches ...." 306 Kan. at 592-93, 395 P.3d 422. So in Baker , even though officers testified that they regularly took personal items like purses or small bags into their possession when arresting someone with such an item, the State had not established any standardized criteria for opening closed containers within the items. Thus, items that had been found by looking inside an Nintendo game case and a cell-phone carrier weren't properly subject to the inventory search. The problem found in Baker is present in our case too. Even if we were to conclude that the State had presented evidence of a general policy of taking personal items like purses into law-enforcement possession for safekeeping when arresting the purse's owner, the State presented no evidence whatsoever of a Topeka Police Department policy about opening the purse or any containers found within the purse. And here, the contraband was found only after opening a closed purse, opening a closed billfold, and looking into a pocket within the billfold. Baker applies: "[P]roducing no evidence of a policy with respect to the opening of containers-as occurred here-does not pass constitutional muster." 306 Kan. at 594, 395 P.3d 422. Additionally, there's no evidence here that the Topeka Police Department even had a general policy of taking things like purses into possession when arresting someone or of doing an inventory of items taken. When asked if it was "a policy of the Topeka Police Department that if someone is arrested out of a vehicle, that their purse ... is going to go with them[,]" Cobler simply said, "It was sitting in her lap. It was her purse. I don't remember even asking anybody. I just assumed that it was going with her." At no point during the hearing did the State present any evidence that it was the Topeka Police Department's standard operating procedure to search all of an arrestee's personal belongings before transporting the arrestee to jail. Nor did the State present evidence that the purse was taken with Ritchey to the jail or that, if taken there, a policy was in place to search it there. Officer Cobler's search certainly was not an inventory search; the video shows no attempt by Cobler to take an inventory of the purse's contents. Rather, he simply seems to be rummaging around looking for possible contraband. That's exactly what the Fourth Amendment prevents: " 'Our view that standardized criteria ... or established routine ... must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of a crime." ' " Baker , 306 Kan. at 593, 395 P.3d 422 (quoting Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 [1990] ). The State still suggests that Baker doesn't control here because that case addressed a search of a closed container; the State argues that Ritchey's purse should be treated as an extension of Ritchey's person, not as a closed container. This argument isn't persuasive for the reasons we've already discussed-Ritchey wasn't in immediate control of her purse when Officer Ramirez arrested Ritchey or when Officer Cobler searched the purse. At least on the facts found here, we cannot treat the purse as if it were simply part of her person when Ritchey was arrested. Our Supreme Court's rationale in Baker applies. The State failed to present evidence proving that Cobler's search of Ritchey's purse was standard protocol, that Cobler ever did an inventory of the purse's contents, or that the purse was taken into police possession to be returned to Ritchey when she was released from jail. On these facts, the inevitable-discovery exception does not apply. Last, the State argues that the district court improperly suppressed the evidence in Ritchey's purse because suppressing the evidence didn't serve the purpose of the exclusionary rule. Our Supreme Court has explained that the purpose of the exclusionary rule "is to deter law enforcement and other government officials and agents from unreasonable intrusions upon the lives and property of citizens." State v. Smith , 243 Kan. 715, 724, 763 P.2d 632 (1988) (citing Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ); see State v. Brittingham , 296 Kan. 597, 605, 294 P.3d 263 (2013) (citing Smith ). Ritchey doesn't address this argument on appeal, but we still do not find the State's argument persuasive. The State claims "the rationale behind the exclusionary rule was not met [because Cobler] testified as to why he was allowed under [the Topeka Police Department's] policy to search [Ritchey's] purse [and] his actions were not illegal police conduct." The State provides no caselaw to support its position that a police officer's subjective belief about the legality of his or her actions is a deciding factor about whether the actions were, in fact, legal. See State v. Murray , 302 Kan. 478, 486, 353 P.3d 1158 (2015) ("The failure to support a point with authority amounts to an abandonment of the issue."). More importantly, Baker shows that the exclusionary rule has a real purpose here: having clear inventory-search policies in place prevents police from merely rummaging through personal possessions in search of evidence of other crimes. The exclusionary rule's application in cases like this encourages police departments to do so. The district court correctly decided that Officer Cobler's search of Ritchey's purse was an illegal search under the Fourth Amendment. We therefore affirm the district court's grant of the defendant's motion to suppress evidence.

Per Curiam: T.P. appeals the termination of her parental rights over B.W., L.W., and A.P., arguing that the trial court erred because insufficient evidence supported its findings in support of termination. T.P.'s argument, however, fails for two reasons. First, she has abandoned her argument by not providing any analysis in support of it. Second, even if she had not abandoned her argument, the record establishes that clear and convincing evidence supported the termination of her parental rights over B.W., L.W. and A.P. Accordingly, we affirm the termination of her parental rights. On January 9, 2012, the State petitioned the court to find B.W.-a seven-year-old girl, L.W.-a five-year-old boy, and A.P.-a two-year-old boy-children in need of care (CINC), awarding their temporary custody to the State. The State alleged that the children were "without adequate parental care, control, or subsistence," were "without the care or control necessary for [their] physical, mental or emotional health," and had "been physically, mentally or emotionally abused." The State based its allegations, in part, upon the fact that B.W., L.W., and A.P.'s mother, T.P., had left their five-month-old brother, M.S., unattended on her boyfriend's couch while she and her boyfriend slept upstairs on January 2, 2012. M.S. died "most likely from suffocation" while lying on the couch. B.W., L.W., and A.P. were all in the boyfriend's house when M.S. died. The State further noted that the Kansas Department of Social and Rehabilitation Services (SRS), which was reorganized into the Kansas Department for Children and Families (DCF) in July 2012, had previously "confirmed medical neglect of another child." On January 10, 2012, the trial court concluded that B.W., L.W., and A.P. were CINC based upon the parental neglect evidence surrounding M.S.'s death and the prior confirmed medical neglect. Accordingly, the trial court ordered that the children be placed in the temporary custody of the State. TFI Family Services, a contractor working for SRS, initially provided case management services for T.P. and the children. TFI created a case management plan with the goal of reintegrating B.W., L.W., and A.P. with T.P. Under this plan, T.P. had the following case plan tasks: (1) she would maintain employment; (2) she would maintain appropriate housing; (3) she would complete and follow all "psychological/parenting" recommendations; (4) she would maintain weekly contact with TFI to confirm visits; (5) she would sign all necessary releases; (6) she would submit to random urinalysis testing; and (7) she would complete and follow all therapy recommendations, which included that she attend individual therapy. Shortly after creating the case management plan, TFI reported that all three children had behavioral issues. Traci Miner-Contreras, the original caseworker assigned to the children's cases, reported that B.W. had "issues of being bossy and defiant in the classroom." Miner-Contreras reported that L.W. and A.P. had behavioral issues requiring medication. Miner-Contreras also reported that A.P. "acted out sexually toward both [L.W.] and [B.W.]" T.P.'s ability to appropriately respond to L.W.'s and A.P.'s behavioral issues was a common area of concern in TFI's case reports. In a February 2013 case report, Miner-Contreras explained that TFI granted T.P. an extended home visit with the children over Christmas 2012. When L.W. and A.P. returned to their foster home, they told their foster parents that T.P. and her boyfriend had put them "'in the basement with the rats' because they would not behave." According to Miner-Contreras, when confronted with L.W. and A.P.'s statement, T.P. and her boyfriend denied putting L.W. and A.P. in the basement with the rats but admitted that they had threatened L.W. and A.P. that they would put them in the basement with the rats if they did not behave. They explained threatening L.W. and A.P. with the rats "was the only way they could get the boys to listen." Following this incident, TFI required that T.P. complete parenting classes as part of her reintegration case plan tasks. In August 2013, KVC Behavioral Healthcare began providing case management services for T.P. and the children. T.P.'s case plan tasks for reintegration remained the same as when TFI provided case management services. Moreover, Miner-Contreras continued to work on the case in a supervisory role. In a progress report compiled for the trial court on February 3, 2014, KVC reported that T.P. had complied with her case plan tasks except for her task of participating in individual therapy. KVC also reported that despite completing the case plan tasks, "there [were] still concerns for the wellbeing [of] the children" as well as how T.P. would transport the children to school. For this reason, KVC recommended that the children "remain in DCF custody with out of home placement." At the February 11, 2014 review hearing, the trial court adopted KVC's recommendation, finding that although reintegration was still the goal, the children should remain in DCF custody with out-of-home placement. The trial court also provided KVC with the discretion where to place the children. Despite making this finding, for reasons not fully clear in the record, KVC allowed L.W. to go home with T.P. that very day. Moreover, all of the children returned to T.P.'s home before KVC compiled its next progress report for the trial court. In May 2014, KVC reported that the children were "adjusting well to the return to their mother's home" and T.P. was demonstrating appropriate parenting skills. On June 18, 2014, however, DCF removed both L.W. and A.P. from T.P.'s home. KVC reported that L.W. and A.P. had to be hospitalized because they were "making comments about wanting to die and go to heaven to be with their baby brother." In addition to those reported comments, KVC reported that L.W. and A.P. had tied a belt around their necks, resulting in visible markings. KVC reported that based upon the preceding incident, "there were concerns with [T.P.'s] ability to meet the boys['] mental health needs." B.W. remained at home after L.W.'s and A.P.'s removal. In December 2014, a KVC caseworker reported that T.P.'s visits and contact with KVC had become inconsistent. This caseworker also expressed concerned because B.W. had told her that she and her mother were living at the house of her mother's new boyfriend, Chris Eppens. B.W. explained that they were living at Eppens' house "because they [had] more things at his house, like food." On June 13, 2015, police responded to a domestic dispute at Eppens' house. When police arrived, T.P. told police that Eppens had chased her around the house before pushing her down onto a bed and hitting her in the head multiple times. Police reported that T.P. had swelling around her left eye and ear. In a written report that T.P. gave to the police, she stated that B.W. was home when Eppens hit her. On August 24, 2015, T.P. attended a meeting at the KVC office where KVC requested that she sign a safety plan which required her to promise not to let any of her children come into contact with Eppens based upon his arrest for domestic battery. The safety plan also prohibited T.P. from leaving any of her children alone with her sister, who had been convicted of possessing methamphetamine. T.P. refused to sign the plan, and the next day DCF removed B.W. from T.P.'s home based upon T.P.'s refusal to sign the safety plan. A couple of weeks later T.P. agreed to sign the safety plan and reported to KVC that she and Eppens were no longer in a relationship. KVC workers questioned T.P.'s statements about not being in a relationship with Eppens, noting that "social media sites show[ed] different[ly]." Once all the children were in out-of-home placement, although T.P. continued to struggle to attend individual therapy, she consistently attended family therapy. The family therapy was a case plan task that KVC had added in June 2015. For family therapy, T.P. had specifically requested that KVC allow her to attend family therapy with Kaitlyn Meade. KVC's January 2016 progress report described the family therapy sessions as chaotic. In the report, KVC explained that Meade had requested that a KVC employee attend all family therapy sessions because she needed a KVC employee to address L.W.'s and A.P.'s behavioral problems should one become "dysregulated" so the others could continue with the therapy session. KVC employees who attended or helped transport the children to the sessions witnessed L.W. and A.P. become aggressive both verbally and physically, as well as engage in acts of self-harm. In its April 2016 progress report, KVC recommended that the court find that reintegration with T.P. was no longer a viable goal for B.W., L.W., or A.P. KVC reported that T.P. was not complying with certain case plans. KVC noted that the previous month, staff overheard T.P. "using profanity at the children" while "telling them that the agency [was] lying," that the agency was "trying to split them up," and that their "foster parents [would] never love them." KVC further reported that L.W.'s and A.P.'s behavioral issues had increased when they saw their mother, when they were being transported to see their mother, or when they were being transported from seeing their mother. In a recent visit between T.P. and the children, A.P. began yelling and crying "for two periods of 15-20 minutes each," and L.W. ran out of the KVC office. T.P. was unable to calm A.P. down, and KVC had to call police to find L.W. Attached to KVC's April 2016 progress report was a letter from Meade. In this letter, Meade stated that T.P. had "tried to parent the children effectively in therapy, but ha[d] a difficult time with the behaviors, and being able to pay attention to all the children." Meade concluded: "There is no doubt [T.P.] loves her children, and they [love] her, but the instability of the children's mental health, the instability of [T.P.'s] mental health, and her ability to parent such challenging behaviors is concerning." Given KVC's recommendation in its April 2016 progress report, the trial court set the cases for a permanency hearing. The trial court further ordered that T.P. have no contact with the children unless she attended individual therapy. This meant that family therapy stopped. KVC reported that after family therapy stopped, B.W.'s L.W.'s, and A.P.'s behavior had improved, seemingly because T.P. began attending individual therapy. KVC resumed family therapy in August 2016 and Samantha Underwood acted as the family therapist. At that time, KVC also reported that the children's behavioral issues also resumed. On November 8, 2016, the trial court held the permanency hearing. The trial court found that although reasonable efforts had been made to assist T.P. with reintegration, T.P. was "not adequately addressing [the] mental health needs of [the] children [and] not following through with [the] parental needs of [the] children." It therefore found that reintegration was no longer a viable goal and adoption or permanent custodianship would be in the best interests of the children. Given this finding, T.P. was no longer allowed to have contact with the children. On January 24, 2017, the State moved to terminate T.P.'s parental rights. The State asserted that T.P.'s failure to comply with the case plan tasks established that she was "unfit by reason of conduct or condition that [was] unlikely to change in the foreseeable future." The State particularly emphasized that T.P. had failed to adjust her conduct to address B.W.'s, L.W.'s, and A.P.'s behavioral issues and mental health needs. T.P.'s attorney did not file a response to the State's motion. On April 10, 2017, the trial court held a hearing on the State's motion to terminate T.P.'s parental rights. At the hearing, Miner-Contreras was the primary witness for the State. Jessica Hammersmith, the most recent KVC caseworker assigned to the cases, and Michele Petrie, a DCF social worker, also testified on behalf of the State. T.P. was the only person who testified on her behalf. Miner-Contreras first testified that after DCF initially took B.W., L.W., and A.P. into custody, T.P. complied with the case plan reintegration goals that TFI, and then KVC, created for her. She testified that this is why the children were eventually placed back in the home with T.P. in 2014. She then testified that L.W. and A.P. were able to remain at home with T.P. for only a few months before they attempted "to strangle themselves and die so they could go to heaven and see their baby brother." Miner-Contreras expressed concern over T.P.'s reaction to L.W.'s and A.P.'s apparent suicide attempt. She explained that during L.W.'s and A.P.'s hospitalization, KVC and DCF had to have several meetings about T.P.'s "lack of participation in [L.W.'s and A.P.'s] mental health services while they were in the acute hospital." She explained that T.P. believed that "this was [L.W. and A.P.'s] problem and they needed to deal with it," which resulted in her not participating in conference calls or meetings about the children's mental health. Next, Miner-Contreras testified about the day she and others at the KVC office attempted to get T.P. to sign the safety plan. Miner-Contreras testified that T.P. had brought B.W. with her to the KVC office that day. She stated that once T.P. became upset, "she attempted to leave the KVC office[,] stating that we could just keep [B.W.]." She explained that T.P. was "literally at the front door" when staff conveyed to her that they would not be keeping B.W. According to Miner-Contreras, it was at this point T.P. told B.W., "Okay [B.W.,] they're not going to take you, go ahead and come with me." Concerning case plan tasks, Miner-Contreras testified that although T.P. had been diagnosed with a narcissistic personality, T.P. inconsistently attended individual therapy until the court ordered that T.P. attend it after it found that reintegration with the children was no longer a viable goal. She testified that T.P. frequently stated that she did not need individual therapy, and T.P. later stated that she only attended individual therapy to comply with the court order. Miner-Contreras asserted that from what she could tell, T.P. did not believe she needed individual therapy. For the case plan task of applying skills learned in parenting classes, Miner-Contreras testified that T.P.'s compliance with the task was inconsistent. Miner-Contreras recognized that T.P.'s children's behavioral issues could be "pretty significant." Even so, she explained that T.P.'s responses to their behavior were inappropriate. She testified that when one of the children would have a behavioral outburst, T.P. would often ignore that child. She testified that on the other hand, if T.P. attempted to discipline the child having the behavioral outburst, T.P. spent the entire time attempting to discipline the child without success. Miner-Contreras asserted she believed that T.P. had contributed to the children's behavior issues and "anxiety" by telling the children that KVC was trying to separate the family and did not "care for them." She also provided the example of T.P. and her boyfriend threatening L.W. and A.P. that they would put them in the basement with the rats as inappropriate parenting skills. Miner-Contreras also testified about how B.W., L.W., and A.P. had made significant improvements since visits with their mother had stopped. She explained that when the children were having consistent contact with their mother, they were having frequent behavioral issues and outbursts. She testified that L.W. and A.P. were having "tantrums almost daily" but have only had about three in the last month. She testified that now the children's therapists recommend that they see them "on an as needed basis" as opposed to a weekly basis. She testified L.W.'s doctors were able to lower the dosages of his medications. Moreover, she explained that all three children were doing well in school with their grades improving. Miner-Contreras further testified that the change in the children since their contact with their mother had stopped was "night and day." Based upon this change and her belief that T.P.'s parenting skills were inadequate, Miner-Contreras testified that T.P.'s parental rights over the children should be terminated. Although Hammersmith was a State's witness, most of her testimony occurred during cross-examination. During cross-examination, Hammersmith admitted that T.P. was currently in compliance with her case plan tasks. T.P.'s attorney also questioned Hammersmith about whether she agreed with KVC's recommendation to terminate T.P.'s parental rights given Underwood's September 28, 2016 family therapy report, which stated: "[T]he family demonstrates a strong bond with one another. Mother shows appropriate affection and reinforces positive behaviors during the sessions. She responds to behavioral issues by reminding the children of limits and potential consequences as set in the beginning of therapy. Mother engages well with children, and they interact in family cohesion activities. All children express [a] strong desire to be with mother." Hammersmith responded that she believed termination was the correct recommendation based upon "the behaviors of the children before and after therapy" and "[k]owing the life of the case." Hammersmith also emphasized that Underwood had been T.P. and the children's family therapist for less than two months, and Meade, who had been their family therapist for much longer, recommended terminating T.P.'s parental rights. T.P.'s testimony emphasized that she was currently in compliance with all of her case plan tasks. During her testimony, T.P. also stated that her children had mental health issues that need to be addressed. On cross-examination, the State asked T.P. whether she knew that M.S.'s father had been convicted of committing a sex crime against a child during her year-long relationship with him. T.P. denied knowing that M.S.'s father was a sex offender during the relationship, but she admitted that she knew that fact now. T.P., who had been on probation for a forgery conviction when she was dating M.S.'s father, further testified she could not recall being told by her probation officer that she should stay away from M.S.'s father because he was a sex offender. T.P. testified that she was currently aware that B.W., L.W., and A.P.'s father was a convicted sex offender. When questioned by the State about her own mental health history, T.P. admitted that her mother had committed her to a mental health hospital following a failed suicide attempt when she was a teenager. T.P. also admitted that in addition to B.W., L.W., and A.P., she had two other children whom are currently living with their respective fathers by "mutual agreement." She testified that although she did not consistently see either child, she provided support for both. When asked about Miner-Contreras' testimony about her children's behavioral issues during visitations, like running away, T.P. testified that Miner-Contreras was lying, even though she "ha[d] no idea" why she was lying. Last, T.P. testified that she could not recall a September 2010 SRS investigation where she was cited for lack of supervision. She then testified that SRS had never asked her whether her brother was capable of caring for her children and never denied to DCF that her brother was incapable of caring for her children. After T.P.'s testimony, the State called Petrie to testify as a rebuttal witness. Petrie testified about the contact that SRS had with T.P. in September 2010. Petrie testified that SRS cited T.P. for lack of supervision over B.W., L.W., and A.P. after T.P. placed the children in the care of her brother for a weekend; SRS confirmed that her brother left the children alone for at least 10 minutes. Petrie testified that SRS interviewed T.P. about her decision to leave the children with her brother given that he had mental health issues and had also lost custody of his own children. According to Petrie, T.P. denied that her brother was incapable of caring for her children but acknowledged that her brother's children were in foster care. Petrie further explained that in January 2011, SRS investigated T.P. again because a rat infestation in her house resulted in one of the children being bitten by a rat. At the conclusion of the hearing, the State and T.P.'s attorney made arguments. T.P. argued that she had adjusted her circumstances and conduct as evidenced by the undisputed fact that she was currently in compliance with her case plan tasks. The trial court took the parties' arguments under advisement. In the end, however, the trial court decided to terminate T.P.'s parental rights. In support of its findings, the trial court took specific note of the following facts: (1) T.P.'s pre-2012 encounters with SRS; (2) T.P.'s other children not being in her custody; and (3) T.P.'s apathetic response to B.W.'s, L.W.'s, and A.P.'s behavioral issues and mental health needs. The trial court found that T.P. had "given lip service to [the children's] mental health needs, but her actions [were] not truly supportive." It found that T.P. had actually "undermined the mental health process of the children." The court also explicitly made an adverse credibility determination against T.P. based on inconsistency in the evidence, for example, T.P.'s denial that the children had behavioral issues during her visitations with them despite contradictory evidence showing that such behavioral issues existed. The trial court concluded: "The mother at the present time [is] in compliance with the case plan, but that does not override the years when she wasn't in compliance, when she didn't do this. The Court has grave concerns and finds in this particular case that because of those concerns she is not going to be able, and was not able to control the children's behavior. They were unruly, defiant, undisciplined, difficult to control, and then we look at what's happened since they were not in her control. Since in foster care in separate homes for most of the time until recently, their grades improved, less bad disruptive behavior, less medication. They've finally been returned to one particular foster home where they all live together. "Based upon all of those facts by clear and convincing evidence the Court finds that [T.P.] is unfit by reason of conduct. She had five years to correct it and didn't. That renders her unable to care properly for these three children, and this conduct is unlikely to change in the foreseeable future. "The Court notes that she is in compliance with the plan, but that compliance has nothing to do with those three children being in her home. The Court finds that she's failed to make reasonable efforts by SRS, DCF, KVC to rehabilitate the family. The children have been in extended out of home placement as a result of her actions or inactions, and failure to carry out these reasonable plans. "Based upon all of that the Court finds it's in the best interest of the children to terminate the parental rights to ... [B.W., L.W., and A.P.]." T.P. timely appealed the termination of her parental rights. Did the Trial Court Correctly Terminate T.P.'s Parental Rights? Appellate courts review the trial court's termination of parental rights to determine whether "after review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable, i.e. , by clear and convincing evidence, that the parent's rights should be terminated." In re K.W. , 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). K.S.A. 2016 Supp. 38-2269(a) states that a parent's rights should be terminated only "when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future." "The foreseeable future is examined from the perspective of a child because children and adults have different perceptions of time and children have a right to permanency within a time frame reasonable to them." In re M.H. , 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014). Unfitness, on the other hand, is determined by looking at a nonexhaustive list of factors. In relevant part, K.S.A. 2016 Supp. 38-2269(b) provides: "In making a determination of unfitness the court shall consider, but is not limited to, the following, if applicable: .... "(6) unexplained injury or death of another child or stepchild of the parent or any child in the care of the parent at the time of injury or death; "(7) failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family; "(8) lack of effort on the part of the parent to adjust the parent's circumstances, conduct or conditions to meet the needs of the child; and "(9) whether the child has been in extended out of home placement as a result of actions or inactions attributable to the parent and one or more of the factors listed in subsection (c) apply." Subsection (c) lists four factors, including that the court shall consider a parent's "failure to carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home." K.S.A. 2016 Supp. 38-2269(c)(3). Following a determination that a parent is unfit, "the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child." K.S.A. 2016 Supp. 38-2269(g)(1). In making the best interests of the child determination, "the court shall give primary consideration to the physical, mental and emotional health of the child. If the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order." K.S.A. 2016 Supp. 38-2269(g)(1). T.P.'s sole argument on appeal is that "when viewed in the light most favorable to the State, [the evidence] fails to support the findings of the Court." In the facts section of her brief, T.P. points out that when the termination hearing occurred, she was in compliance with all of her case plan tasks. She also points out that in Underwood's September 28, 2016 family therapy report, Underwood stated that she interacted appropriately with her children. In the analysis section of her brief, however, T.P. has merely asserted that termination was not supported by the evidence without providing any additional argument or analysis. It is a rule of this court that a point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts , 296 Kan. 636, 645, 294 P.3d 287 (2013). Thus, it is readily apparent that T.P. has abandoned her argument. Regardless, given that the result of this proceeding is the termination of T.P.'s right to be a parent to B.W., L.W., and A.P., it is important to emphasize that even if T.P. had not abandoned her argument, her argument would still fail because the trial court's decision to terminate her parental rights over B.W., L.W., and A.P. was supported by clear and convincing evidence when viewed in the light most favorable to the State. To summarize, the trial court terminated T.P.'s parental rights because it concluded that clear and convincing evidence existed that T.P. was unfit by conduct that was unlikely to change in the foreseeable future given the following: (1) because KVC's and DCF's reasonable efforts to reintegrate her with the children had failed as stated under K.S.A. 2016 Supp. 38-2269(b)(7) ; (2) because T.P.'s actions showed a lack of effort to adjust her conduct to the children's needs as stated under K.S.A. 2016 Supp. 38-2269(b)(8) ; and (3) because T.P.'s actions and inactions regarding her case plan tasks led to the children being in out-of-home placement for an extended period of time as stated under K.S.A. 2016 Supp. 38-2269(b)(9) and (c)(3). The court found that the children's best interests were served by termination as stated under K.S.A. 2016 Supp. 38-2269(g)(1) based upon the evidence of the children's improved behavior, mental health, and grades after they no longer had visitations and family therapy with their mother. The court also noted T.P.'s prior run-ins with SRS. Regarding evidence that could support the court's termination of T.P.'s parental rights, there has never been any dispute that TFI and then KVC implemented a case plan with tasks imposed so T.P. could be reintegrated with B.W., L.W., and A.P. It is also an undisputed fact that during the vast majority of the case, T.P. failed to comply with certain case plan tasks. Particularly, T.P. failed to comply with the tasks to attend individual therapy and apply skills she learned in parenting classes. At the termination hearing, Miner-Contreras testified to this fact while also providing examples of poor parenting skills demonstrated by T.P. These examples included the following: that T.P. had threatened to put L.W. and A.P. in the basement with the rats as punishment, that T.P. refused to participate in L.W.'s and A.P.'s mental health treatment, that T.P. initially refused to sign the safety plan, that she told KVC workers they could keep B.W. after refusing to sign the safety plan, and that T.P. was generally unable to discipline the children during her visitations with them. The State also presented evidence about T.P. undermining KVC's efforts to improve the children's mental health and behavior by telling the children that KVC and DCF were lying to them and that they did not care about them. Moreover, it is an undisputed fact that during the five-plus years the children's CINC cases have been pending, B.W. lived in T.P.'s home for only 17 months, L.W. lived in T.P.'s home for only 4 months, and A.P. lived in T.P.'s home for only 3 months. Given their ages when they entered DCF custody, this means that B.W. has spent about a third of her life in out-of-home placement, L.W. has spent about half of his life in out-of-home placement, and A.P. has spent about two-thirds of his life in out-of-home placement. Of significance, B.W.'s removal from T.P.'s custody the second time was a direct consequence of T.P.'s decision not to sign the safety plan prohibiting her children from coming in contact with Eppens. Regarding B.W.'s, L.W.'s, and A.P.'s best interests, although T.P. testified that she could not recall SRS investigating her in September 2010, Petrie's testimony established that T.P. had been investigated by DCF more than once before M.S.'s death in January 2012. Moreover, Miner-Contreras testified that the behavior, mental health, and grades of B.W., L.W., and A.P. had all improved significantly after family therapy and visitations with their mother had stopped. When one considers the preceding evidence in the light most favorable to the State, it is readily apparent that T.P.'s children have special behavioral and special mental health needs, but the evidence shows that T.P. was either incapable or unwilling to adjust her behavior to adequately address her children's special needs. Her failure to comply with case plan tasks designed to reintegrate her with her children resulted in the children being out of custody for an extended time and also resulted in the failure of KVC's and DCF's reasonable efforts to reintegrate her with her children. Additionally, it is an undisputed fact that once contact with T.P. stopped, all three children improved behaviorally, mentally, and academically. Therefore, the trial court's unfitness findings under K.S.A. 2016 Supp. 38-2269(b)(7)-(9) and (c)(3) and best interests of the children findings under K.S.A. 2016 Supp. 38-2269(g)(1) were supported by clear and convincing evidence. In turn, when considering the evidence in the light most favorable to the State, clear and convincing evidence supported the trial court's decision to terminate T.P.'s parental rights over B.W., L.W., and A.P. Consequently, we affirm the termination of T.P.'s parental rights to B.W., L.W., and A.P. Affirmed.

Schroeder, J.: Sedgwick County (the County) appeals the Board of Tax Appeals' (BOTA) valuation for ad valorem tax purposes of four Target Corporation (Target) retail store locations. The County argues BOTA erred in determining a proper value for the property; this argument is unpersuasive. The record reflects BOTA accepted and relied upon substantial competent evidence to determine each property's value in compliance with Uniform Standards of Professional Appraisal Practice (USPAP). We affirm. FACTS The properties subject to this appeal consist of four retail store locations owned and occupied by Target in Sedgwick County. Target filed protest applications and sought equalization appeals based on the County's real property tax valuations for the 2015 tax year for all four locations. The four equalization appeals were consolidated for hearing before BOTA. The County valued the subject properties at $7,475,000; $10,152,000; $10,028,000; and $7,407,000. Target valued them at $6,550,000; $8,910,000; $8,800,000; and $6,280,000. Trecia McDowell, a certified appraiser, testified as an expert witness on behalf of the County. However, McDowell was not admitted as an expert appraisal witness because she did not appraise the subject property; rather, she was admitted as a mass appraisal expert. McDowell could not explain how the County's 2015 valuations were calculated, only that they were based on settlement values for 2013 and carried over to 2014 and 2015. McDowell testified as to how the County would have valued the properties had it appraised them on January 1, 2015. She testified as to her computer assisted mass appraisal (CAMA) calculations using income and cost approach values for 2015; however, these valuations were not used. Instead, the County relied on the 2013 settlement values. McDowell could not testify as to how those values were determined. McDowell further acknowledged her CAMA valuations for 2015 were based on data lacking in both quantity and quality. Gerald Maier, MAI, testified as an expert appraiser on behalf of Target. Maier inspected the interior and exterior of the subject properties; inspected documents and maps; reviewed county data relating to the properties; researched comparable land and improved sales; conducted buyer and seller interviews; conducted peer appraiser interviews; reviewed multiple property listing services; investigated internet sources; completed cost, sales, and income approach valuations of the properties; and considered market data for the City of Wichita. BOTA found Target's evidence more compelling than the County's. It found Maier's sales and income approaches were competent approaches for valuing the properties' fee simple interest and were the best indicators of value in the record. Based on the evidence presented, BOTA valued the properties at $5,700,000; $8,910,000; $8,800,000; and $6,280,000. The County timely filed a motion for reconsideration. The Board denied the County's motion, and the County timely petitioned this court for review. Additional facts are set forth as necessary herein. ANALYSIS The County argues BOTA's decision was based on errors of fact and law and was otherwise arbitrary, capricious, or unreasonable. The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs appellate review of BOTA rulings. K.S.A. 2016 Supp. 74-2426(a), (c) ; K.S.A. 2016 Supp. 77-603(a). The KJRA delineates specific circumstances under which this court may properly grant relief: • 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; • The agency has erroneously interpreted or applied the law; • The agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof 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; or • The agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 2016 Supp. 77-621(c)(1), (4), (7), (8). Because the County is challenging the validity of BOTA's action, it bears the burden of proving the invalidity of the action. K.S.A. 2016 Supp. 77-621(a)(1). To the extent this issue involves interpretation of a statute, this court's review is unlimited. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). As a general rule in construing tax statutes, provisions which impose a tax are to be construed strictly in favor of the taxpayer. In re Tax Exemption Application of Central Illinois Public Services Co. , 276 Kan. 612, 616, 78 P.3d 419 (2003). The County did not meet its burden below . The County raises several arguments in its brief. However, as Target points out, the County has not addressed whether it met its burden of production and persuasion before BOTA. The subject property is real property primarily used for commercial purposes; thus, the County had the burden of production and persuasion before BOTA. See K.S.A. 2016 Supp. 79-1609. The County was required to properly appraise the subject property and submit a valuation to BOTA. "Each parcel of real property shall be appraised at its fair market value in money, the value thereof to be determined by the appraiser from actual view and inspection of the property." K.S.A. 79-501. In pertinent part, K.S.A. 2016 Supp. 79-503a states: " 'Fair market value' means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion." Appraisals for ad valorem taxation purposes must be performed in accordance with the USPAP. K.S.A. 2016 Supp. 79-505 ; K.S.A. 79-506(a). Here, the County did not base its valuations for the 2015 tax year from an actual view and inspection of the property by the appraiser; rather, its valuations were based on the 2013 tax year agreed-upon settlement values for each of the properties. K.S.A. 2014 Supp. 79-1460 provided for a two-year carryover of any valuation reduced because of an appeal. As of the date of the County's valuation-January 1, 2015- K.S.A. 2014 Supp. 79-1460 was still good law. However, the carryover provision was held unconstitutional by our Supreme Court in Board of Johnson County Comm'rs v. Jordan , 303 Kan. 844, 869, 370 P.3d 1170 (2016). The hearing before BOTA took place after Jordan was decided; therefore, the use of carryover values by the County was impermissible as a matter of law. The County's evidence was limited to McDowell testifying as to how the County would have valued the properties had it appraised them on January 1, 2015. McDowell testified as to her CAMA calculations using income and cost approach values for 2015; however, these valuations were not used. Instead, the County specifically relied on the 2013 settlement values. McDowell could not testify as to how those values were determined. McDowell also testified her CAMA valuations for 2015 were based on insufficient data lacking in both quantity and quality. Kansas law requires all appraisals to be prepared in accordance with USPAP standards. Without having personally appraised the property, McDowell cannot offer a valid opinion of value. See K.S.A. 2016 Supp. 79-501 ; K.S.A. 2016 Supp. 79-505. The County was required to appraise the property as of January 1, 2015, in accordance with K.S.A. 2016 Supp. 79-503a unless otherwise specified by law. K.S.A. 79-1455 ; see In re Equalization Proceeding of Amoco Production Co. , 33 Kan.App.2d 329, 347, 102 P.3d 1176 (2004). The use of the 2013 settlement values was impermissible as of the date of the BOTA hearing; therefore, the County was required to reappraise the properties in accordance with the USPAP standards for the 2015 tax year. The County failed to meet its burden of production and persuasion before BOTA and did not address this issue on appeal. Its failure to do so renders its arguments suspect. Maier's appraisal was appropriate . The County makes several arguments regarding Maier's appraisal of the property, primarily regarding adjustments allegedly not made in the valuation. The County argues against Maier's sales comparison approach but failed to perform a sales comparison approach of its own. This argument is highly suspect given the County had the burden of production and persuasion before BOTA. The County asserts Maier's valuation was inconsistent with In re Equalization Appeal of Prieb Properties , 47 Kan.App.2d 122, 275 P.3d 56 (2012), but fails to cite to any specific language in Prieb in support of its argument. Finally, the County argues it was not necessary for Maier to apply a hypothetical condition in determining the leased fee value. It asserts Maier's hypothetical leased fee value was actually a fee simple value. This argument was explicitly rejected by BOTA when it found "the County's attempts to re-define Maier's valuation conclusions to be at odds with Maier's stated appraisal objectives and hearing testimony, as well as contrary to Kansas ad valorem tax law." The County has not acknowledged, addressed, or rebutted this finding. As the party asserting error, the County has the burden to prove BOTA erred. K.S.A. 2016 Supp. 77-621(a)(1). It has not done so. In any event, Maier's appraisal was appropriate and complied with Kansas law. He used cost, sales, and income approaches. For his cost approach, Maier developed his land value by reviewing the sale of seven vacant lots, adjusting for conditions of sale, time/market conditions, size, physical condition, zoning, and location. He developed his improvement value for the cost approach calculating replacement cost, estimating entrepreneurial profit, and calculated depreciation utilizing functional and external obsolescence. Maier's sales comparison approach discussed three categories of sales: build-to-suit sale/leaseback sales; second-generation leased fee sales; and fee simple sales. Maier selected nine recent comparable sales of single-retailer commercial locations. He examined each sale and adjusted for time and market conditions, age and condition of the property, location, improvement size, quality and utility of the property, and investment quality. He determined the leased fee, build-to-suit sale/leaseback, and second-generation leased fee sales had a higher value than adjusted fee simple sales; therefore, he concluded the value of the investment was greater than the underlying real property. He then determined the values for fee simple and non-fee simple sales of the subject property and concluded the fee simple sale values were lower. Maier also used an income approach analyzing market rents for the subject property. He compared first-generation leases and sales leaseback agreements and determined they were not appropriate valuation methods for market rent. He stated first-generation leases are not to be used in an income approach because "[t]he tenant pays an above market rate for a turn-key lease that provides a prototype building allowing for economies of scale in the overall company. These tenants would not be willing to pay the same rate for space designed for another retailer's use." He further noted sales leaseback agreements are increasingly used to finance nonrealty costs and are not indicative of market rent. Maier further analyzed second-generation leases with owner-financed renovations and second-generation leases taken on an as-is basis. He noted the cost of owner-financed renovations are amortized over the term of the lease; thus, second-generation as-is leases are most indicative of market rent. He analyzed nine leases, adjusting for the same conditions as his sales comparison analysis. He analyzed and accounted for expense reimbursements, vacancy, and credit loss to determine effective gross income. He forecasted expenses to arrive at net operating income. Finally, Maier developed a capitalization rate based on a review of sales of comparable big-box retail properties. Maier's approach is consistent with the factors set forth in K.S.A. 2016 Supp. 79-503a(b), (c), (d), (e), (g), (i), and (k). His appraisal and BOTA's reliance on it were justified. BOTA's decision is properly supported by the record . The County argues BOTA's decision is not supported by substantial competent evidence in the record. Our standard of review under the KJRA is limited. Pursuant to K.S.A. 2016 Supp. 77-621(d), we must consider the record as a whole, including the relevant evidence which detracts from BOTA's findings. This court may not reweigh the evidence or engage in de novo review of an agency's factual findings. See Herrera-Gallegos v. H & H Delivery Service, Inc. , 42 Kan.App.2d 360, 363, 212 P.3d 239 (2009). The County's arguments are inconsistent with the relief it seeks on appeal. It argues Maier's appraisal did not adjust for lease-up costs or rent loss to arrive at an as-vacant value. As Target points out, lease-up costs are adjustments an appraiser would make to adjust a leased fee value to get to a fee simple value. Adjusting for lease-up expenses would result in a downward adjustment. Similarly, adjustments for rent loss would be a downward adjustment. See In re Tax Appeal of Brocato , 46 Kan.App.2d 722, 731, 277 P.3d 1135 (2011). The County argues BOTA's valuations were too low but asserts it erred by not considering factors that would have further reduced the value of the property. The County also argues no adjustments were made for after-sale capital expenditures. As Target points out, such an adjustment is necessarily speculative and is based on the needs of the individual buyer, not the needs or value of the market as a whole. Simply put, remodeling or improvements benefitting one buyer may not be of value to another. Maier testified it was not appropriate to consider these costs when adjusting for a sales comparison approach. The County did not do a sales comparison approach in its valuation. Accordingly, there is nothing in the record that detracts from BOTA's findings with respect to this issue. The County also argues BOTA's valuation is not reflective of the highest and best use of the property. It acknowledges both Maier and McDowell testified the highest and best use of the property was continued use as a single-tenant retail store. Without any citation to the record, the County assumes BOTA found the highest and best use of the property was as vacant. Its argument lacks support in the record. BOTA noted Maier's use of a sales comparison approach and adjustments to determine a fee simple interest. It did not find the highest and best use of the property was as vacant. Next, the County vaguely asserts Maier's sales comparison approach failed to account for properties that were older, distressed, deed-restricted, or in inferior locations. It only points to one such location and does not explain how this alleged error undermines BOTA's decision when viewed in light of the record as a whole. At best, the point is incidentally raised but not fully argued. A point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts , 296 Kan. 636, 645, 294 P.3d 287 (2013). In any event, the County is incorrect as Maier's appraisal accounted for these factors. Finally, the County makes an argument regarding whether the as-vacant value should be listed as a hypothetical condition. Its argument is difficult to follow and not supported by pertinent authority or proper citation to the record. The County fails to explain how not listing the as-vacant value of the property as a hypothetical undermines BOTA's decision. Further, the County erroneously assumes BOTA valued the properties as vacant. BOTA's valuation was based on a sales comparison and income approach that accounted for the value of the property in its current use. The Board did not value the property as though it was presently vacant. There is a difference between a vacant property and the as-vacant value of the property. A vacant property is one that is unoccupied and/or unused. The as-vacant value of the property refers to the separation of the value of the property itself from the value of the business being conducted on it-in other words, the value of the property itself if Target vacated it so another tenant could move in. The County separately argues BOTA's decision was arbitrary, capricious, or unreasonable. Its argument centers largely on the same factual contentions regarding the hypothetical leased fee value and as-vacant value as discussed above. Its arguments are conclusory in nature and are not supported by the record. For the reasons previously discussed herein, the County has failed to demonstrate error in BOTA's order determining the value for the four properties. BOTA's valuations complied with USPAP Standards . Here, the County argues BOTA's valuations did not comply with USPAP standards, specifically USPAP Standard 6 regarding mass appraisals. BOTA's valuation was heavily premised on Maier's appraisal. Again, the County erroneously assumes Maier valued the properties as vacant. He did not. As previously discussed, Maier did an extensive cost, sales, and income analysis of the subject properties in compliance with K.S.A. 2016 Supp. 79-503a. His determination of market rent was based on the property being leased to a second-generation tenant as-is. In other words, his determination was consistent with the property being currently occupied. The County has failed to show error. No error of law . The County argues BOTA's decision was based on an error of law and should be reversed pursuant to K.S.A. 2016 Supp. 77-621(c)(4). Specifically, the County argues BOTA misapplied four decisions from other panels of this court: Prieb , 47 Kan.App.2d 122, 275 P.3d 56 ; In re Tax Appeal of Yellow Freight System, Inc. , 36 Kan.App.2d 210, 137 P.3d 1051 (2006) ; In re Equalization Appeal of Mumbo Jumbo , No. 110,793, 2014 WL 4435905 (Kan. App. 2014) (unpublished opinion); and In re Equalization Appeal of Yellow Equipment & Terminals, Inc. , No. 107,653, 2012 WL 6634418 (Kan. App. 2012) (unpublished opinion). The County asserts BOTA erred in applying Prieb when it determined the properties' values as vacant and available to lease were the best indicator of the fee simple values of the property. The County cites to the following language from Prieb which BOTA cited in its order: " 'The appraiser theoretically should approach the valuation as if the property were vacant and available to be leased at market rent, recognizing the necessary adjustment for lease-up to stabilized occupancy. Although the definitions are not all consistent with this approach, in most assignments that involve a fee simple estimate for a leased property, the appraiser is seeking a value that assumes fully leased (or at a normalized occupancy level) at market rent. ' (Emphasis added.) Lennhoff, Fee Simple? Hardly, The Appraisal Journal 400, 402 (Oct. 1997)." Prieb , 47 Kan.App.2d at 132, 275 P.3d 56. In its order, BOTA emphasized the words "were vacant and available to be leased at market rent." The County argues emphasis should be placed on the words "leased at market rent, recognizing the necessary adjustment for lease-up to stabilized occupancy." The County's argument becomes unclear, however, as it "requests the Court clarify its finding to avoid further confusion." The County argues Prieb should have considered additional statements from the Lenhoff article it cited. In essence, the County is either arguing Prieb was wrongly decided or asking this court to modify, clarify, or extend its holding. The County is not truly arguing BOTA misapplied Prieb . The County further argues BOTA failed to follow Prieb 's admonition against using commercial build-to-suit leases without a disentanglement by adjustments. The County asserts Maier's appraisal was inconsistent with Prieb but fails to cite to any specific language in Prieb in support of its proposition or fully explain the point. Further, the County's allegations about Maier's valuation methods are not supported with citation to the record. At best, the point is incidentally raised but not fully argued and not supported by appropriate citation to authority. A point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman , 296 Kan. at 645, 294 P.3d 287. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 1001, 348 P.3d 602 (2015). The County's arguments with respect to Mumbo Jumbo , Yellow Equipment , and Yellow Freight System are likewise improperly briefed. It does not explain how Mumbo Jumbo or Yellow Equipment apply and provides no citation to Yellow Freight System for the proposition asserted. Nevertheless, the distinction the County tries to draw between the phrases "vacant" and "vacant and available to be leased at market rent" is an argument that was rejected by another panel of this court in In re Equalization Appeal of ARC Sweet Life Rosehill , No. 113,692, 2016 WL 3856666, at *1, 15 (Kan. App. 2016) (unpublished opinion). The ARC panel found it was permissible to "determine the difference between the value of the property under a hypothetical vacant condition and its value as occupied in order to isolate the value of the taxable real estate separate and apart from the business being conducted on it." 2016 WL 3856666, at *15. Through its analysis and use of Maier's appraisal, BOTA's valuation process was reasonable, and BOTA did not commit an error of law. BOTA's valuation of the four properties was in compliance with USPAP standards and was supported by substantial competent evidence. Affirmed.

Green, J.: Stephen M. Deters and Donna K. Deters appeal from the judgment of the district court granting Nemaha-Marshall Electric Cooperative Association, Inc.'s (Nemaha-Marshall) and Alliance Indemnity Company's (Alliance) respective motions for summary judgment. On appeal, the Deters argue that the district court erred by ruling that their claims against Nemaha-Marshall were barred under the statute of repose, K.S.A. 60-513(b). The Deters further argue that the district court erred by ruling that their homeowner's insurance policy with Alliance did not cover their claims for damages. Nevertheless, we conclude that the Deters' arguments are unpersuasive. As a result, we affirm the district court's orders of summary judgment. Uncontroverted Facts The following facts are uncontroverted for purposes of this appeal: The Deters live in Nemaha County, Kansas, and receive electricity from Nemaha-Marshall. Stephen has lived on the same land in Nemaha County his entire life. In 1994, the Deters bought a "Ronk GTS" from Nemaha-Marshall. A GTS "allows a customer to safely connect a generator to his or her household wiring." Thus, if the utility power goes out, or a utility customer simply wants to use the generator, the utility customer has a generator backup. Nemaha-Marshall installed the GTS at the Deters' electric pole. Although Nemaha-Marshall installed the GTS, the Deters owned the GTS outright. While living in their current house, the Deters started constructing a new house on their land. The Deters purchased and installed a heat pump in the new house in 1998 (original heat pump). The Deters also purchased and installed an oven, microwave, dishwasher, washing machine, and dryer in the new house in 1999. In January 2000, the Deters moved into the new house. In the summer of 2000, the Deters removed their old house from their land. In addition to their new house, the Deters had a shop, implement shed, and a partial barn on their land. The new house, shop, and implement shed all received electricity. Nemaha-Marshall connected the GTS to the shop and implement shed sometime in 1994 or 1995. Nemaha-Marshall connected the GTS to the new house sometime between 1996 and January 2000. Nemaha-Marshall charged the Deters for labor, a truck roll, and pigtails-a term for a device used to connect electrical wires-on November 7, 1997. Nemaha-Marshall never charged the Deters for work related to the GTS following 1997. On May 28, 2010, the Deters' original heat pump stopped working. They installed a new heat pump on September 27, 2010. The Deters believed that this heat pump was defective. In October 2011, the Deters replaced this heat pump with another heat pump. Thus, the heat pumps were replaced twice: Replacement heat pump #1 and replacement heat pump #2. After their original heat pump stopped working in May 2010, the Deters filed an insurance claim with their insurer Alliance. The Deters alleged that an electrical event damaged the original heat pump. At first, the Deters asserted that the wiring on the original heat pump caused the heat pump to fail from low voltage. Eventually, though, the Deters asserted that lightning damaged the original heat pump. Ghattas Bitar, an independent engineer retained by Alliance, examined the heat pump's compressor, as well as photos of the heat pump. Bitar explained that the heat pump showed no signs of suffering an "electrical surge event." Instead, there were "signs of arcing and copper globules/balls ... on the rotor and the stator of the compressor indicating severe failure of the windings insulation." Bitar determined that "the failure of the windings' insulation was due to the compressor running hot as a result of low level of refrigerant." Based on this, Bitar concluded that the heat pump underwent "prolonged electrical failure" while running on low refrigerant, ultimately resulting in the pump's failure. Alliance denied the Deters' claim. Alliance notified the Deters that their homeowner's insurance policy did not cover the damage to the original heat pump under Section 1-Perils Insured Against: A. Coverage A-Dwelling and Coverage B-Other Structures, (6)(a) and (b), which stated that Alliance did not cover losses caused by "[w]ear and tear, marring, deterioration" or "[m]echanical breakdown ...." The Deters also experienced some problems with some appliances during 2010. "[B]y November 2010," an electrical event damaged the Deters' oven, microwave, dishwasher, washing machine, and dryer. The Deters replaced only some of their appliances. On January 16, 2013, the Deters made a claim against Alliance for replacement of heat pumps #1 and #2. The Deters alleged that they were entitled to compensation for damage to the replacement heat pumps from low voltage. Since Alliance denied the Deters' claim for damage on their original heat pump, the Deters had purchased an equipment breakdown policy. Derek Geer, an independent engineer retained by Alliance, examined replacement heat pump #2. This was the only heat pump available for examination since the company the Deters bought replacement heat pump #2 from had already removed replacement heat pump #1. Geer determined that "[n]o indications of low voltage were observed." Geer noted that the Nemaha-Marshall's "electronic monitors have reported no low voltage events ...." He noted that there "was no electrical or physical damage observed in the heat pump control compartment." Moreover, he explained that the heat pump's voltage output was normal when he tested it while running other equipment. Geer determined that any issues with replacement heat pump #2 would resolve upon further breaking in of the new unit and installing a "hard start kit," which added "capacitance to the circuit." In September 2013, while the Deters' insurance claim was still pending, Stephen Deters opened the cover of the GTS. When he did this, he discovered that some load wire connections to the GTS were burned. Based on discoloration of some wires, he also believed that there was evidence of a repair attempt. On September 17, 2014, at the Deters' request, Nemaha-Marshall replaced the old GTS with a new GTS. On October 9, 2014, Alliance denied the Deters' pending claim, asserting that they had no coverage under the homeowner's insurance policy for low voltage events. Alliance explained that under the provision on dwellings, their homeowner's insurance policy excluded coverage caused by faulty, inadequate, or defective design, workmanship, repair, construction, or material used in repair or maintenance. It asserted that under the provision on personal property, their homeowner's insurance policy did not include coverage on improper wiring. Moreover, Alliance asserted that the low voltage events did not constitute an "accident" as meant under the Deters' equipment breakdown policy. On March 16, 2015, the Deters sued both Nemaha-Marshall and Alliance for damages related to the heat pumps and appliances. The Deters argued that Nemaha-Marshall's negligent wiring of the GTS resulted in the destruction or damage of their heat pumps and appliances. In their petition, the Deters alleged that Nemaha-Marshall was negligent from the moment it connected the GTS to their new house. The Deters also argued that Alliance was liable because Bitar and Geer "failed to examine the [GTS] or take any measurements from the connection box to determine if there exist[ed] a cause for low voltage events, and if such low voltage events could be related to how the wires were connected in the connection box." As a result, the Deters argued that Nemaha-Marshall and Alliance were jointly and severally liable for over $ 50,000 of damages relating to the original heat pump, the replacement heat pumps, and appliances. During discovery, the Deters hired Cris Neagele as their electrical engineer expert. According to Neagele, Nemaha-Marshall's improper wiring of the GTS caused the damage to the Deters' original heat pump and appliances in 2010. Neagele opined that Nemaha-Marshall crimped wires, placed the wires in pigtails, and then inserted the wires in lugs not designed to fit those particular wires. He explained that this practice could "cause excessive heating, corrosion, and high resistance point, which may cause a voltage drop during periods of high current draw." Neagele also believed that discoloration on some wires suggested that somebody had removed, cleaned, and replaced the wires at least once in the past. During Stephen's deposition, Stephen testified to the following: He testified that he believed Nemaha-Marshall's wiring was responsible for the damage to his original heat pump, replacement heat pumps, and appliances. He testified that the first time he learned about the problem with the GTS was when he opened it in September 2013. He stated that he had no memory of "a service call out to [his] house" where Nemaha-Marshall electrical workers inspected the GTS. He explained that the company from whom he bought replacement heat pump #1 replaced it with replacement #2 at no cost. As a result, he did not have to pay for replacement #2. He explained that since the installation of the "hard start kit" and the new GTS, he had experienced no problems with replacement heat pump #2. He testified that he was unaware of any physical damage to the replacement heat pumps. Nemaha-Marshall and Alliance moved for summary judgment against the Deters. Nemaha-Marshall's Summary Judgment Motion Nemaha-Marshall asserted that even if it were negligent in installing multiple wires in a lug not designed for multiple wires, it was still entitled to summary judgment under the 10-year statute of repose, K.S.A. 60-513(b). Nemaha-Marshall noted that it installed the GTS in 1994, connected the GTS to the shop and implement shed sometime in 1994 and connected the GTS to the new house sometime between 1996 and January 2000. But the Deters did not file their petition alleging that its negligent installation of the GTS harmed their heat pumps and appliances until March 16, 2015. Nemaha-Marshall argued that even if it connected the GTS to the new house in January 2000, the Deters brought their action more than 15 years after its last negligent act giving rise to the Deters' cause of action in this case. The Deters responded that the district court should deny Nemaha-Marshall's motion because Nemaha-Marshall worked on the GTS in February 2007 and in September 2007 while in Stephen's presence. As a result, the Deters contend that K.S.A. 60-513(b)'s 10-year statute of repose would have started running in September 2007, not January 2000. The Deters produced a Nemaha-Marshall utility meter readout summary from February 2007 and a Nemaha-Marshall invoice for "the antenna wire," dated September 27, 2007, in support of this contention. The Deters also relied on statements made by Stephen in a sworn affidavit about (1) Nemaha-Marshall checking his utility meter and finding no problems in February 2007; and (2) Nemaha-Marshall "check[ing] connections" in September 2007. He further alleged in his affidavit that he saw Nemaha-Marshall employees working on the GTS during the February 2007 service call. Stephen asserted that Nemaha-Marshall came both in February and September 2007 on his request because they had been experiencing brown outs and the heat pump was failing. Stephen signed the sworn affidavit following his deposition testimony and about a month after Nemaha-Marshall moved for summary judgment. The district court ultimately granted Nemaha-Marshall's motion for summary judgment: "In the present case, the Deters' negligence action against Nemaha Marshall is [ ] barred by the 10-year statute of repose as set forth in K.S.A. 60-513(b). According to the Deters, Nemaha Marshall improperly installed multiple wires or conductors in a lug inside the Ronk GTS that was not designed for multiple wires when Defendant provided and installed that piece of equipment at the Deters Property and that such act caused Plaintiffs' property loss. According to Mr. Deters' sworn testimony, he purchased the Ronk GTS, or disconnect switch, from Nemaha Marshall in 1994 and it was placed on the electric pole at the Deters Property when that pole was installed by Nemaha Marshall in 1994. According to Mr. Deters, Nemaha Marshall connected the electric lines running from the Shop or Garage and from the Implement Building or Shed on the Deters Property to the Ronk GTS in 1994 or January 1995. Mr. Deters also testified that Nemaha Marshall connected the electric lines running from the Existing House to the Ronk GTS sometime between 1996 and January 2000, when the Deters moved in their Existing House. While Nemaha Marshall's business records indicate that the Deters were charged for pigtails, and/or labor and a truck roll to the Deters Property in 1997, and that the pigtails charged to the Deters are consistent with parts that could be placed in a GTS or disconnect box, it has no business records that would indicate that it connected the electric lines running from the buildings located on the Deters Property to the Ronk GTS. However, for the purposes of this motion for summary judgment, even if Mr. Deters' testimony is assumed to be true, then Nemaha Marshall's alleged negligent act occurred when Nemaha Marshall allegedly connected the lines running from the Shop or Garage, Implement Building or Shed, and the Existing House to the lug inside the Ronk GTS, or disconnect box, and the latest that such act was done would have been when the Deters moved into their Existing House in January 2000. Plaintiffs did not file their negligence action against Defendant until March 16, 2015, which was more than 15 years after the alleged original wrongful act. Accordingly, Plaintiff's negligence action against Defendant in this case is barred by the 10-year statute of repose as set forth in K.S.A. 60-513(b)." Next, the Deters moved the district court to alter or amend its summary judgment ruling. The Deters asserted that the district court should reverse its summary judgment ruling based on Bonnette v. Triple D Auto Parts Inc. , 55 Kan. App. 2d 130, 136-37, 409 P.3d 865 (2017), a premises liability case in which this court held that the statute of repose time limits started to run the last day the landowner-defendant could have breached its duty. 55 Kan. App. 2d at 136-37, 409 P.3d 865. Then, the Deters pointed to their interactions with Nemaha-Marshall in 2007 to argue that it filed its petition within the statute of repose time limits. The Deters also stated that Nemaha-Marshall "should be estopped to claim the statute of repose." The district court denied this motion (1) because it maintained that its original ruling was correct and (2) because Bonnette , as a premises liability case, did not apply. Alliance's Summary Judgment Motion Alliance argued that it was entitled to summary judgment because the Deters' homeowner's insurance policy excluded coverage for damage to the original and replacement heat pumps. In making this argument, Alliance relied on the same provisions of the homeowner's insurance policy and equipment breakdown policy as it did when it denied the Deters' claim for the replacement heat pumps. The Deters responded that the district court should deny Alliance's motion because "any reasonable person would believe that [ ] the continuing losses between 2010 and 2013, all occurring in the same manner and symptom, were the direct physical loss from the same cause, regardless [of] the type of policy coverage in place at the time." The Deters also asserted that Alliance ignored that it had a duty to discover the improper wiring within the GTS when they filed a claim for the failure of the original heat pump. In the end, the district court granted Alliance's motion. Regarding the original heat pump, as well as the appliances, the district court determined that the Deters were not entitled to coverage under their homeowner's insurance policy because of the following: (1) the Deters never established a direct physical loss to the property as required by their homeowner's insurance policy; and (2) the Deters' homeowner's insurance policy excluded damage from faulty workmanship. The district court further asserted that the evidence the Deters used to support the alleged damage to the original heat pump and appliances was speculative. Regarding replacement heat pumps #1 and #2, the district court ruled that the Deters were not entitled to coverage under their homeowner's insurance policy because "there [was] no evidence that anything ever happened to damage the replacement heat pumps." Next, the Deters moved the district court to alter or amend its ruling, arguing the district court had not sufficiently addressed if Alliance adequately investigated their claims. The district court denied the Deters' motion, ruling that Alliance had "no legal duty to inspect [the Deters'] property and discover problems in [the Deters'] wiring system." The Deters appealed the district court's granting of Nemaha-Marshall's and Alliance's motion for summary judgment. Did the District Court Err by Granting Nemaha-Marshall's Motion for Summary Judgment? On appeal, the Deters attempt to controvert the facts submitted by Nemaha-Marshall as to when it last worked on the GTS (January 2000), arguing that the last time Nemaha-Marshall worked on the GTS was in dispute because it had worked on the GTS in 2007. As a result, they contend that this restarted the statute of repose time limitations. The Deters conclude that the district court erred by granting Nemaha-Marshall's summary judgment motion because "Nemaha-Marshall's adjustments to the [GTS in 2007] allowed the restart of the statute of repose." Nemaha-Marshall responds that any 2007 contacts with the Deters are irrelevant because the Deters' cause of action stems from their negligent wiring of the GTS, which occurred no later than January 2000. Nemaha-Marshall also contends that the Deters distort both the facts and caselaw in making their argument that the statute of repose started to run in 2007. Standard of Review When reviewing an order of summary judgment, we apply the following standard of review: " ' "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." ' [Citation omitted.]" Patterson v. Cowley County, Kansas , 307 Kan. 616, 621, 413 P.3d 432 (2018). When the facts are uncontroverted, we exercise de novo review while considering the district court's granting of a summary judgment motion. Martin v. Naik , 297 Kan. 241, 246, 300 P.3d 625 (2013). Generally, courts should grant summary judgment in negligence cases only when the question presented involves a question of law. 297 Kan. at 245, 300 P.3d 625. Whether the statute of repose applies is a question of law over which this court exercises unlimited review. Dunn v. U.S.D. 367 , 30 Kan. App. 2d 215, 218, 40 P.3d 315 (2002). Statute of Repose K.S.A. 60-513 provides: "(a) The following actions shall be brought within two years: .... (4) An action for injury to the rights of another, not arising on contract, and not herein enumerated. .... "(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action ." (Emphasis added.) In the past, this court has explained the function of the statute of repose: "A statute of repose limits the time during which a cause of action can arise and usually runs from the act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time, even though the cause of action may not have yet accrued." Bonnette , 55 Kan. App. 2d 130, Syl. ¶ 3, 409 P.3d 865. The parties agree that the Deters' claim against Nemaha-Marshall is an action for injury not arising under contract that falls under K.S.A. 60-513(a)(4). Moreover, for purposes of this appeal, Nemaha-Marshall concedes (1) that it negligently installed the Deters' GTS and (2) that its negligence led to damaging the Deters' heat pumps and appliances. But the parties disagree on what act constituted the last act giving rise to the Deters' cause of action. The Deters contend that this last act occurred in 2007. The Deters believe that the utility meter readout from February 2007 and the antenna wire invoice from September 2007 established that Nemaha-Marshall conducted work on the GTS in 2007. The Deters admit that they never physically saw Nemaha-Marshall work with the GTS wires in 2007. Instead, they contend that Neagele's opinion that someone removed, cleaned, and reinserted the wires in the GTS at some point, supports that the last act occurred in 2007: "Nemaha-Marshall had then been effectively working with [the] wires and pigtails" given Neagele's opinion that the wires had been cleaned and removed at some point. As a result, the Deters argue that their March 2015 petition was timely because they filed it within 10 years of 2007. Significantly, in making this argument, the Deters never dispute that Nemaha-Marshall first negligently wired the GTS no later than January 2000. Indeed, even in his disputed affidavit, Stephen states that his house was experiencing "low voltage events" before Nemaha-Marshall's February 2007 visit. Thus, we know that the Deters were experiencing low voltage events before Nemaha-Marshall even returned to the Deters' house in 2007 following the initial installation of the GTS. Even so, the Deters ask this court to start the clock for the statute of repose purposes on a date other than when Nemaha-Marshall originally negligently wired the GTS. But K.S.A. 60-513(b) and our caselaw does not support this interpretation. Under Kansas law it is the last act giving rise to the cause of action, not the last contact between the plaintiff and defendant, that starts the running of the statute of repose clock: "[B]ut in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action ." (Emphasis added.) In Admire Bank & Trust v. City of Emporia , 250 Kan. 688, 698, 829 P.2d 578 (1992), for example, our Supreme Court held: "The plain language of [ K.S.A. 60-513(b) ] and the applicable case law require that ... a negligence action must be brought within 10 years of the original wrongful act or the action is barred." ( Emphasis added.) 250 Kan. at 698, 829 P.2d 578. In Dobson v. Larkin Homes, Inc. , 251 Kan. 50, Syl. ¶ 1, 832 P.2d 345 (1992), our Supreme Court repeated this exact holding. Moreover, the Dobson case is factually similar to this case. The Dobsons sued their home builder and insurance carrier for the negligent construction of their house. The district court granted the home builder's motion for summary judgment based on the statute of repose. Our Supreme Court upheld the district court's order because the Dobsons sued more than 10 years after the home builder constructed the house. 251 Kan. at 53, 832 P.2d 345. As a result, Kansas caselaw underscores the point that parties must bring their negligence action within 10 years of the original wrongful act. Despite the preceding caselaw, the Deters cite three cases they believe support their contention that statute of repose "restart[ed]" in 2007: Bonnette , 55 Kan. App. 2d 130, 409 P.3d 865 ; Kaminski v. United States , 218 F. Supp. 3d 1251 (D. Kan. 2016) ; and Dunn , 30 Kan. App. 2d 215, 40 P.3d 315. These cases do not support their argument. In Bonnette , Bonnette tripped on an unmarked step outside Triple D's store. The district court granted Triple D's summary judgment motion based on the statute of repose because Triple D purchased the store some 25 years earlier. The Bonnette court reversed the district court's summary judgment ruling, holding: "A landowner or proprietor has an ongoing duty to warn of nonopen and nonobvious dangerous conditions on the premises. Under the facts presented, the last day the defendant could have breached this duty was the day the plaintiff was injured. Accordingly, the plaintiff's claim for failure to warn was not barred by the statute of repose." 55 Kan. App. 2d 130, Syl. ¶ 5, 409 P.3d 865. In Dunn , a plate glass door injured two students, but the school installed the door over three decades earlier. The school district moved for relief under the statute of repose. This court rejected the school district's argument, determining (1) that the school breached its duty to keep its students safe and (2) that the school's breach of duty was the last wrongful act for statute of repose purposes. 30 Kan. App. 2d at 220, 40 P.3d 315. In Kaminski , Kaminski fell on ice in a United States Post Office parking lot while trying to enter the Post Office. Kaminski sued the United States for negligence. The United States moved for summary judgment, arguing that the statute of repose barred Kaminski's suit because the downspout that caused the accumulation of ice Kaminski fell on had been in the same place for years. The Kaminski court rejected the United States' statute of repose argument because Kaminski presented reasonable evidence that the drainage conditions in the parking lot had not existed in its current manner for the last 10 years. 218 F. Supp. 3d at 1266. Unlike this case, Bonnette , Dunn , and Kaminski are premises liability cases. The caselaw on regular negligence actions differ from the caselaw on premises liability negligence actions because in premises liability cases, the landowner or proprietor has an ongoing duty to warn people of dangers on their land. The landowner or proprietor's ongoing duty to warn people of dangers on their land extends what date a cause of action accrues because it is the breach of the duty that creates the cause of action. But the premises liability circumstances do not exist here. Nemaha-Marshall is not a landowner that has a duty to warn the Deters of some danger on its property. Simply put, the premises liability cases the Deters rely on are distinguishable from their case. Moreover, the Deters misconstrue Kaminski . The Deters contend that their case is much like Kaminski because a genuine issue exists about when Nemaha-Marshall altered the wires in the GTS. The Deters contend that their evidence that Nemaha-Marshall altered the wires in 2007 is comparable to Kaminski's reasonable evidence that the Post Office's parking lot drainage conditions had not existed in the same manner for the past 10 years. The Deters' argument is problematic for a couple of reasons. For starters, as explained in the next section, their evidence that Nemaha-Marshall altered the wires in the GTS in 2007 is unpersuasive. More importantly, the Deters' argument ignores that the rule for determining when the statute of repose begins to run is when the defendant completes the last original wrongful act. Even under the premises liability cases, this is the rule. See Bonnette , 55 Kan. App. 2d 130, Syl. ¶ 4, 409 P.3d 865 (holding that "[t]he 10-year period of the statute of repose found in K.S.A. 50-513[b] begins to run when the defendant completes the last act giving rise to the cause of action"). Here, both parties agree that Nemaha-Marshall first negligently wired the GTS no later than January 2000. In summary, the uncontroverted facts here establish that Nemaha-Marshall connected the GTS to the new house sometime between 1996 and 2000. The heat pumps and appliances all received electricity from the new house. Nemaha-Marshall charged the Deters for work related to the GTS on November 7, 1997. Nemaha-Marshall never charged the Deters for work related to the GTS following 1997. In their petition, the Deters allege that Nemaha-Marshall negligently wired the GTS when it first installed the GTS at their new house. During his deposition, Stephen testified that they experienced low voltage problems before Nemaha-Marshall's February 2007 service call. In other words, the Deters experienced low voltage problems before the date that Nemaha-Marshall employees allegedly regained access to the GTS. Moreover, during his deposition, Stephen also testified that he could not think of any time Nemaha-Marshall worked on the GTS after Nemaha-Marshall installed the GTS. Consequently, the uncontroverted facts establish that the original act giving rise to the Deters' cause of action-Nemaha-Marshall's negligent wiring of the Deters' GTS-occurred no later than January 2000. This means that the Deters filed their March 2015 petition against Nemaha-Marshall about five years after the statute of repose had expired. 2007 Contacts In addition, we note that the Deters' contention that Nemaha-Marshall worked on the GTS in 2007 is unsupported by the record on appeal. The Deters' argument hinges on their belief that premises liability caselaw applied to their case. Under this belief, the Deters argued (1) that they had evidence that Nemaha-Marshall serviced the GTS in 2007 and (2) that the last act giving rise to the cause of action in their case was in 2007. To review, after Nemaha-Marshall moved for summary judgment, the Deters produced the February 2007 utility meter readout, September 2007 antenna wire invoice, and Stephen's sworn affidavit. Now, in their appellate brief, the Deters allege that the preceding documents, along with Neagele's opinion about cleaning the wires, show that Nemaha-Marshall worked on the GTS in 2007. Yet, this inference is based on supposition and conjecture. To begin with, the Deters' utility meter readout is simply a printout of the Deters' utility meter readings from May 2005 to July 2007. According to a Nemaha-Marshall lineman supervisor, the Deters' utility meter and GTS are two distinct devices. Nemaha-Marshall could service one without servicing the other. Additionally, the Deters' expert, Neagele, explained that "[a]ny upstream voltage monitoring device, such as the utility electric meter, might not detect [a low voltage] issue." The antenna wire invoice merely stated that Nemaha-Marshall charged the Deters for a quarter-hour's work and an antenna wire on September 27, 2007. Nothing on the invoice related to work on the GTS. Furthermore, in his sworn affidavit, Stephen admitted that the antenna wire was for his cable, not for his GTS. As for his sworn affidavit, Stephen stated: (1) that he watched Nemaha-Marshall employees work on the GTS for "about 10 minutes" from his window in February 2007; (2) that Nemaha-Marshall employees checked the connections in September 2007, which he understood to mean they worked on the GTS. At his deposition, Stephen testified that he had Nemaha-Marshall electrical employees out at some point in the mid-2000s to address blinking lights. Nevertheless, he also testified that he had no memory of "a service call out to [his] house" where Nemaha-Marshall electrical workers would have worked on the GTS. "It is well-established that '[a] party opposing summary judgment may not rest merely on allegations, but must set forth specific facts to support its position.' [Citation omitted.]" Seitz v. Lawrence Bank , 36 Kan. App. 2d 283, 289, 138 P.3d 388 (2006). " 'The law is clear that "an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility." [Citation omitted.]' " 36 Kan. App. 2d at 290, 138 P.3d 388. Moreover, "an affidavit cannot be used to controvert earlier deposition testimony for the purpose of avoiding summary judgment." Smith v. Kansas Orthopaedic Center , 49 Kan. App. 2d 812, 818, 316 P.3d 790 (2013). The Tenth Circuit of the United States Court of Appeals has explained that when challenging a summary judgment motion, "the nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient." Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991). Our Supreme Court has explained that the nonmovant's allegations cannot be "[f]limsy or transparent." In re Estate of Mullin , 201 Kan. 756, 761, 443 P.2d 331 (1968). We determine that Stephen's affidavit testimony about witnessing Nemaha-Marshall employees working on the GTS, or communicating with Nemaha-Marshall employees about working on the GTS in 2007 was insufficient to establish a genuine issue of material fact. Furthermore, because the statements are flimsy and transparent, they "are insufficient to sustain a justiciable controversy requiring the submission thereof to the trier of facts." 201 Kan. at 761, 443 P.2d 331. Finally, the Deters' assertion that Neagele's opinion that at some point somebody removed, cleaned, and then rewired the GTS does not establish that Nemaha-Marshall did this. The GTS was on the Deters' property for about 15 years. Moreover, as mentioned earlier, although Nemaha-Marshall installed the GTS, the GTS belonged to the Deters. To find that the 2007 utility meter readout and antenna wire invoice relate to the GTS box through Neagele's contention that somebody messed with the GTS wires at some point, this court would have to speculate. As a result, although Nemaha-Marshall may have interacted with the Deters in 2007 when it provided them the utility meter readout and antenna wire services, those services do not establish that Nemaha-Marshall either (1) serviced the GTS or (2) disturbed the GTS without permission. Thus, we conclude that the Deters have failed to come forward with evidence showing a genuine issue of material fact. Improper Arguments Finally, the Deters raise two arguments why the district court erred in granting Nemaha-Marshall's summary judgment motion that are not properly before this court. First, the Deters seemingly complain that Nemaha-Marshall cannot seek tariff protections. Below, the Deters raised the tariff issue in their pretrial questionnaire. Although the Deters do not acknowledge this in their brief, the district court did not reach the tariff issue because it granted Nemaha-Marshall's summary judgment motion based on the statute of repose. It is a well-known rule that this court does not decide moot issues. Stano v. Pryor , 52 Kan. App. 2d 679, 682-83, 372 P.3d 427 (2016). Here, whether Nemaha-Marshall was entitled to tariff protections is moot because Nemaha-Marshall is entitled to summary judgment under the statute of repose. Second, the Deters argue that the doctrine of equitable estoppel requires this court to reverse the district court's summary judgment ruling. Below, the Deters included one sentence on estoppel in their motion to alter or amend the district court's summary judgment ruling: "There is reason at this point that Defendant, Nemaha Marshall, by Defendant's own actions should be estopped to claim the statute of repose." When the district court denied this motion, it did not address the Deters' reference to equitable estoppel. Perhaps, the Deters' failure to object to the district court's order precludes this court's review. See McIntyre v. State , 305 Kan. 616, 618, 385 P.3d 930 (2016) (holding that parties must object to inadequate findings of fact and conclusions of law to preserve their arguments for appeal). Regardless, the Deters' appellate argument consists of one paragraph in which they assert that this court should equitably estop Nemaha-Marshall from pleading the statute of repose because Nemaha-Marshall conceded that it negligently wired the GTS. They cite no caselaw to support their contention that courts should equitably estop parties who concede negligence from using the statute of repose as an affirmative defense. This court has consistently held that an appellant abandons a point raised incidentally in a brief. Russell v. May , 306 Kan. 1058, 1089, 400 P.3d 647 (2017). Moreover, this court has held that the failure to support a point with authority, or explain why that point is sound despite a lack of supporting authority constitutes abandoning the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 1001, 348 P.3d 602 (2015). Here, we determine that the Deters have abandoned their argument by including no analysis in their brief. Did the District Court Err by Granting Alliance's Motion for Summary Judgment? Next, the Deters argue that the district court erred when it granted Alliance's motion for summary judgment. In their brief, the Deters allege that they have two claims against Alliance. First, they allege that their homeowner's insurance policy covers the low voltage damage, meaning Alliance wrongly denied both their claims for damages on the original heat pump and the replacement heat pumps. Second, they contend that Alliance had a legal duty to inspect their property and discover that the source of their electrical problems was the wiring within the GTS. The Deters argue that Alliance did not investigate their claims in good faith. Alliance responds that its homeowner's insurance policy with the Deters, as well as the equipment breakdown policy, did not cover low voltage events. Moreover, Alliance argues that it adequately investigated the Deters' claims. Homeowner's Insurance Policy To begin our analysis, we note that the Deters have abandoned any argument that their homeowner's insurance policy with Alliance covered their heat pumps damaged by low voltage. In their brief, the Deters have included no analysis on their homeowner's insurance policy. Instead, they include a single sentence in which they assert that their homeowner's insurance policy provided coverage. The remainder of their brief focuses on the bad-faith investigation argument. Furthermore, the Deters did not address whether their heat pumps and appliances were fixtures annexed to their realty or merely personal property. This analysis was important because the Deters' homeowner's insurance policy contained different provisions depending on whether the insureds were claiming that the event damaged their dwelling or their personal property. The Deters also never address that when they filed their claims with Alliance, they only requested damages for their original heat pump and for the replacement heat pumps. Now, they seemingly assert that they are entitled to damages from Alliance for their appliances as well. Again, this court considers points raised incidentally in a brief abandoned. Russell , 306 Kan. at 1089, 400 P.3d 647. Here, by providing no analysis about how their homeowner's insurance policy covered low voltage events, we determine that the Deters have abandoned this argument. Regardless, assuming for the sake of argument that the heat pumps and appliances were fixtures attached to the Deters' realty, we note that the district court correctly determined that the Deters' homeowner's insurance policy with Alliance covered no damage caused by low voltage events. Section 1-Exclusions (B) of the Deters' homeowner's insurance policy provides: "We do not insure for loss to property described in Coverages A [Dwelling] caused by any of the following ... : .... 3. Faulty, inadequate or defective: .... b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or all of any property whether on or off the 'residence premises.' " Here, the Deters' entire case hinges on Nemaha-Marshall's defective workmanship when wiring the GTS. As a result, the district court properly found that the homeowner's insurance policy covered no property loss stemming from Nemaha-Marshall's defective workmanship under this provision of the Deters' homeowner's insurance policy. Assuming arguendo that the heat pumps and appliances constituted personal property, we point out the provision of the Deters' homeowner's insurance policy entitled Section 1-Perils Insured Against (B): Coverage-Personal Property lists what direct physical losses it covers. Losses to electrical wiring caused by a low voltage event are not included in the perils that are covered. Indeed, this provision specifically excluded coverage to the circuitry of appliances and fixtures damaged by "sudden and accidental damage from artificially generated electrical current." Thus, under the Deters' homeowner's insurance policy, no coverage existed for electrical events (1) that the utility caused, i.e., that is artificially generated electricity, and (2) that damaged only fixtures and appliances. For this reason, the Deters' homeowner's insurance policy does not cover losses caused by the low voltage events artificially generated by Nemaha-Marshall's negligent wiring if the Deters' heat pumps and appliances constituted personal property. Last, throughout this case, the Deters have used the term "low voltage events" and "brown outs" interchangeably. For instance, in his affidavit, Stephen asserted that in "January and February 2007 [they] experienced 'low voltage events,' more [commonly] known as 'brown outs' ...." The Deters' equipment breakdown policy specifically excludes coverage for "loss, damage, or expense caused by or resulting from: [ ] electrical power surge or brown out." Because the Deters admittedly experienced brown outs because of Nemaha-Marshall's wiring of the GTS, they were not entitled to coverage under their equipment breakdown policy. As a result, even if we were to assume that the Deters had not abandoned their argument on appeal, it is readily apparent that the Deters' homeowner's insurance policy did not cover the damage caused by the low voltage events. Bad-Faith Investigation The Deters frame this issue as follows: "If the insurance company is informed of the problem from the start and decides to investigate, does the insurance company have an obligation to look into the customer's complaint?" Essentially, the Deters assert that because they originally told Alliance that they believed low voltage had caused the damage to their heat pumps, Alliance had a duty to investigate if low voltage caused the damage to their heat pumps. The Deters concede that for their claim on the original heat pump, they switched theories on what caused the damage mid-claim; at first, they asserted it was low voltage from wires on the heat pump , then they asserted that lightning caused the damage to the heat pump. But the Deters believe that their assertion that lightning caused the damage to the original heat pump should not matter since they had mentioned low voltage before. The mere mentioning of low voltage created Alliance's duty to investigate low voltage. The Deters go on to attack the findings of Alliance's claim investigators-Bitar and Geer. Nevertheless, the Deters' argument is unpersuasive. The Deters are correct that insurers must make a good-faith investigation of a claim under Kansas law: "[A]n insurance company is not required to pay a claim when there is a good-faith legal or factual reason to deny a claim, but at the same time, the insurer has a duty to make a good-faith investigation of the facts before refusing to pay. [Citations omitted.] ' "Good faith on the part of the insurer implies honesty, fair dealing and adequate information." [Citation omitted.]' " Foster v. Stonebridge Life Ins. Co. , 50 Kan. App. 2d 1, 28-29, 327 P.3d 1014 (2012). While it is true that Neagele concluded that low voltage may have caused the damage to the original heat pump, Neagele made this opinion (1) after being told there was a low voltage problem and (2) after being shown photographs of the wiring within the GTS. When considering whether an insurer acted in good faith while investigating a claim, we note that the insurer has a duty to make an investigation of the facts and circumstances before refusing to pay the claim. Here, when Bitar conducted his examination of the original heat pump compressor, the Deters were still alleging that lightning damaged the heat pump. Because the Deters were alleging lightning damage, it is unclear how Bitar had a duty to investigate low voltage. Moreover, Neagele-the Deters' own expert-determined that Bitar's conclusion that the original heat pump suffered a prolonged electrical failure because of low refrigerant was reasonable. Because Neagele believed that it was a reasonable conclusion that the original heat pump failed because of low refrigerant, we cannot conclude that Alliance conducted a bad-faith investigation into the original heat pump claim. Clearly, a reasonable factual basis existed for Alliance to deny the Deters' original claim. Next, when Geer examined replacement heat pump #2, he observed that replacement heat pump #2 had no damage. An insurance company cannot be expected to find evidence of damage that does not exist. In any event, Geer's report explicitly stated that there were "no indications of low voltage." In other words, despite the Deters' contention to the contrary, Geer investigated the Deters' assertion that replacement heat pump #2 was not functioning because of low voltage. Furthermore, replacement heat pump #2 continues to work without problems. This means that Geer's analysis continues to be sound-that replacement heat pump #2 did not experience low voltage damage. Although Alliance ultimately denied the Deters' claim for damages related to replacement heat pumps #1 and #2, as considered earlier, Alliance properly denied the Deters' claim because their homeowner's insurance policy and equipment breakdown policy did not cover damage from low voltage events. Again, to investigate with good faith, the insurer needs to act with honesty, fair dealing, and information. Foster , 50 Kan. App. 2d at 28-29, 327 P.3d 1014. When Alliance denied the Deters' claim on the original heat pump, it acted on the information available then. When Alliance denied the Deters' claim on the replacements heat pumps, it acted on the information available then, which included the knowledge of Nemaha-Marshall's negligent wiring. The Deters' argument ignores that Alliance's duty to investigate exists only for the purpose of resolving the claim. Here, Alliance had legitimate factual reasons based in the Deters' homeowner's insurance policy for resolving the Deters' claims. As a result, when Alliance denied the Deters' claim, we conclude that Alliance did so in good faith. Although the district court did not use this reasoning when rejecting the Deters' argument, this court can uphold the district court's decision when it reaches the correct result regardless of the reasoning the district court uses. See Gannon v. State , 302 Kan. 739, 744, 357 P.3d 873 (2015). For the preceding reasons, we affirm the district court's order of summary judgment in favor of Alliance. Affirmed.

The opinion of the court was delivered by Beier, J.: This is defendant Grover D. James' direct appeal of his convictions for first-degree premeditated murder of Leon McClennon and criminal possession of a firearm. James challenges the district judge's refusal to give certain lesser included homicide instructions and failure to tell the jury to consider certain homicide offenses simultaneously. He also challenges the admission of autopsy photographs into evidence, alleges reversible prosecutorial error, and asserts he was deprived of his constitutional right to be present at all critical stages of his trial. James also argues that cumulative error requires reversal of his convictions. Although we identify errors in James' case, the errors are not reversible standing alone or cumulatively. For the reasons outlined below, we affirm James' convictions. FACTUAL AND PROCEDURAL BACKGROUND Resolution of James' appellate issues require an unusually extensive review of the factual and procedural background of this case. On the night of May 8 and into the early morning hours of May 9, 2015, Rance Kindred's friends and family threw him a birthday party, held in the basement of the Parrot-fa-Nalia dress shop in Wichita. The party was attended by a variety of Kindred's friends and family, including: Grover "Boo" James, Kindred's friend; August Hughes, James' girlfriend; Keialsha James, James' sister; Torey West, Kindred's girlfriend and James' sister; Artadius "Ta Ta" Johnson, Kindred's son; and Leon "Fat Head" McClennon, Johnson's cousin and Kindred's nephew. Johnson and McClennon ended up at the party after Johnson spoke with Kindred on the phone. At the party, Kindred introduced James and Johnson for the first time. Kindred would testify that he had "wanted them to meet each other" but "it went bad right away because Ta Ta [Johnson] swolled up," that is, swelled his body in a confrontational manner. See Urban Dictionary, https://www.urbandictionary.com/define.php?term=swole (last visited June 28, 2019). The tension between the two escalated throughout the evening over a perception that Johnson was "mugging" James. On more than one occasion, Kindred told Johnson that he needed to "squash" his issues with James. At some point in the evening, Johnson left with McClennon and another cousin before he returned to the party to "chill with [his] auntie and stuff." According to Johnson, Kindred made another attempt to convince Johnson to "squash" things with James, which caused Johnson to "want[ ] to fight." But before things escalated too far, another of Johnson's cousins-Anita Jones-grabbed him and calmed him down. After this confrontation, many of the guests began leaving the party. Johnson and McClennon stayed to help clean up. James and Hughes initially left the party, but, Hughes would eventually testify, she remembered she had offered to help clean up; so she and James went back. Surveillance camera footage captured what happened in the Parrot-fa-Nalia parking lot and outside the entrance to the basement upon James and Hughes' return. The footage would later be admitted at James' trial. When James and Hughes pulled into the Parrot-fa-Nalia parking lot, Johnson and McClennon were outside. At that point, Johnson and McClennon immediately went down to the basement. Trial testimony would establish that the door at the bottom of the stairs to the basement was shut and could not be opened from the outside. Surveillance footage from inside the door shows that Keialsha, James' sister, opened the door. Johnson and McClennon can be seen coming through the door, followed almost immediately by James. Hughes came through the door a moment later. The events that followed inside the basement-outside the view of any surveillance camera-were disputed at trial. It is undisputed, however, that James fired two shots, one of which hit McClennon in the head, killing him. The internal surveillance footage then shows, approximately 37 seconds after the group had moved off camera, McClennon stumbling headfirst to the floor, where his motionless body comes to rest. While McClennon's body is lying on the ground, James walks past it and back up the stairs. Hughes follows him. After the shooting, James drove Hughes' car to Oklahoma. He was apprehended there and was charged with first-degree premeditated murder and unlawful possession of a weapon. James' first appearance on the charges was in later October 2015. On December 14, 2015, James filed with the clerk of the court a letter he had written to his then-attorney Brad Sylvester. The letter asked Sylvester to take certain actions in his case. James asked Sylvester to "file and pursue any and all necessary paperwork to insure a speedy trial, I'd also ask you to file a 180 day writ [and] a motion for statutory speedy trial." James later reiterated a request that Sylvester "vigor[o]usly pursue" his "speedy trial" and asked that Sylvester "not continue my preliminary hearing ... or continue my trial ever." James also asked to be present at "any and all hearings ... when my case is d[i]scussed." After District Court Judge David J. Kaufman found probable cause at James' January 13, 2016, preliminary hearing, James waived arraignment and the case was set for jury trial on February 16, 2016. On February 16, Sylvester requested a continuance in a filing titled, "Notice and Order Concerning Defense Counsel's Request to Continue Trial after Consultation with the Defendant." District Court Judge Jeffrey E. Goering granted the request to continue the case and reset trial for March 14, 2016. The form document, which was signed and submitted by Sylvester, contained the following paragraph: " 'In submitting this request to the Court, the named defense counsel represents to the Court that counsel has consulted with the named defendant about this continuance and this continuance is to be charged to the defendant pursuant to K.S.A. 22-3402(g).' " On March 16, Sylvester asked for another continuance, using an identical form document. Judge Goering again granted the request and reset trial for June 6, 2016. On April 14, James filed a motion seeking to dismiss counsel. James alleged an irreconcilable conflict and complete breakdown of communication. That same day, the motion was set for hearing on April 22, 2016. James was present for the motion hearing before District Court Judge John J. Kisner, Jr. On April 22 Judge Kisner acknowledged James' previous concerns over a speedy trial. Judge Kisner informed James that recent caselaw required that any further continuances would require James to sign off on them or attend a hearing. Judge Kisner denied the motion to dismiss counsel and informed James that any appointment of new counsel would mean more time for trial preparation. James responded, "I'm not worried about the time." During the hearing, the court and parties discovered that a June 6 start date for trial-the date that had been set on March 16-conflicted with the court's schedule. Trial was reset for July 11, 2016. Judge Kisner advised James that the time would not be charged to the State and asked if James was agreeable to the new trial date. James said he understood and agreed to the new date. On June 15, 2016, James filed an Objection to Continuance. "COMES NOW, the Defendant, pro se , formally objecting to any continuance sought by either the State or defense counsel in the above entitled action. The defendant further asserts his statutory, K.S.A. 22-3208(7), and Fourteenth Amendment Due Process right to appear at all 'critical stages' in a prosecution including any proceeding where the court may order that the Defendant has waived any constitutional or statutory right." The same day, James moved to dismiss the case with prejudice. James alleged that his "statutory right to a fast and speedy trial, and his constitutional right to Due Process and fast and speedy trial" had been violated. In his motion, James set out a timeline of events, alleging that his trial had been continued by his attorney on February 16, March 14, and June 6, outside of James' presence and against his "clear wishes." James further alleged, "At no time has the defendant been present in the courtroom or by video, and asked if he agreed to the continuance or given the opportunity to object to the continuance" and that "[t]here are no signed waivers of speedy trial or signed acknowledgments of continuance." According to James, the time the State had to bring him to trial under K.S.A. 22-3402 began to run on January 13, 2016, the date of his preliminary hearing, and expired on June 12, 2016. The same day James filed his pro se motion, the district court clerk sent Sylvester a letter advising him of the filing and saying that no further action would be taken unless Sylvester directed otherwise. On June 20, James filed another motion seeking to have Sylvester replaced. In an affidavit filed the next day, James alleged he had informed Sylvester in writing that he wanted to be present at all hearings but Sylvester had nevertheless failed to consult him about any of the previous continuances. James further alleged that he had not been given the opportunity to appear at any of the continuance hearings and that, had he been present, he would have objected to any continuance. On July 1, Judge Kaufman heard James' motion for new counsel. James explained that he felt there was a communication breakdown between himself and Sylvester because of the continuances Sylvester had requested without James' knowledge. The State contradicted James' assertion that he had not been present or known about any of the continuances, alerting the court to James' presence at the April 22 hearing and his agreement to the continuance granted that day. James acknowledged that the State was correct but insisted the April 22 continuance was not the only one. "It's several continuance[s]. I have it in my ROA that it's been continued by the defense that I did not sign off on or anything, didn't know it. I also filed a motion for ... dismissal of case for fast and speedy trial violation, constitutional and statutory rights." The State conceded that James had filed a motion to dismiss based on a speedy trial violation. The motion had not been docketed for hearing because it was filed pro se. Judge Kaufman ultimately granted James' request for new counsel. On July 11, Judge Goering continued the trial setting again despite James' in-court refusal to agree to it. James' new counsel had yet to receive any discovery. The State asked for a continuance of the trial until September 12 because of the unavailability of one of its witnesses. Judge Goering granted the State's request over James' objection and set a "firm" trial date of September 12. New counsel was appointed on three occasions in late August and early September, culminating in Steven Mank's appointment on September 1. Mank would represent James through the trial but be replaced before sentencing. On September 12, Judge Goering signed off on another trial continuance, continuing the case from September 12 to November 14, 2016. His order is a form document similar to those filed by Sylvester in February and March. However, unlike the earlier forms, this one required the defendant's signature approving the continuance. The form shows James signed and dated it on September 10. James' trial began on November 14, 2016, and was presided over by District Court Judge Stephen Ternes. At trial, the video surveillance footage from Parrot-fa-Nalia was introduced through the testimony of Wichita Police Detective Robert Chisholm. Chisholm's testimony was followed by the testimony of Dr. Timothy Gorrill, the forensic pathologist who conducted the autopsy of McClennon. Before Gorrill testified, Mank objected to admission of certain of the State's anticipated autopsy photograph exhibits. Mank argued that the exhibits in question "are not necessary to describe the manner of death or what happened to the victim in this case. They are rather strong photographs. ... [W]e would object to them for being overly gruesome and ... not warranted in this case." The State argued that the challenged photos were necessary for Gorrill to explain the autopsy. Judge Ternes overruled the objection. He acknowledged that the photos were "somewhat graphic," but "autopsy photos tend to be that way." Without hearing Gorrill's testimony, Judge Ternes could not say the challenged photos were unnecessary. Mank renewed his previous objection when the State introduced the autopsy photos during Gorrill's testimony. The judge again overruled the objection. The first four photos showed McClennon's body, including closeups of his head and the gunshot wound. Specifically, one image showed an "obvious injury" at the bottom of McClennon's ear. Another showed a "skin defect, a hole, a gunshot wound." Gorrill concluded that this injury was an entry wound because there was no "exit defect" and they had "recovered a bullet along the path." The following photos were the focus of the defense objection. Exhibit 38 showed "the top of Mr. McClennon's skull" after his scalp had been "reflect[ed] back ... with a scalpel." Gorrill highlighted a fracture in McClennon's skull that could be seen in the image. Exhibit 39 showed the base of McClennon's skull after a bone scalpel or saw had been used "to remove that part of the skull" and then the brain removed. Gorrill noted multiple skull fractures in the image. Based on the location of the fractures, Gorrill was able to describe the likely path of the bullet. Gorrill concluded that the bullet entered the left side of McClennon's head, traveled through his skull, and caused the fractures shown in the photo. Exhibit 40 showed "the interior of [McClennon's] neck, the vertebral column" after the "neck structures" had been removed. Gorrill pointed out the projectile, which was "in one piece up here in the back of the neck" in the photo. He then indicated on his own body the approximate location where the projectile would have been lodged. He described the location as "[k]ind of in the neck area." Gorrill concluded "within a reasonable degree of medical certainty" that the cause of McClennon's death was a "[g]unshot wound to the head" and that the manner of death was homicide. The State's main witnesses on the events that occurred off camera in the basement were Johnson and Kindred. Johnson testified that he and McClennon had not planned on going to the party that night, but Kindred called Johnson and asked him to come. Johnson did not know James but had seen him before. After Johnson arrived at Parrot-fa-Nalia, he took a phone call in the parking lot. Kindred approached with James. Kindred "[t]old me [James'] name, said it was Boo, told Boo like who I was, told us we need to squash whatever was going on." Johnson said James was upset about Johnson's romantic relationship with James' niece. Johnson said he told James, "I was grown, she was grown." "He wanted me to leave her alone, told me to leave her alone and end it. I felt disrespected by it because we both grown." At that point, Johnson's cousin grabbed him and they left the party with McClennon. They were gone 45 minutes to an hour. After Johnson "cooled down a little bit," Johnson and McClennon returned to the party. Johnson testified that he had just gotten out of prison and "wanted to spend time with everybody." Kindred and James approached Johnson again after he returned. Kindred told Johnson that he was "mugging" James and that "you know, need to squash this, this and that. We need him on our side. I got upset. That's when I wanted to fight. That's what I like to do, so I wanted to box. My cousin, Puddin, she came and stopped me. Anita Jones, she came and grabbed me, took me to the back, you know. She tried to squash it, break it up. They kept messing with me, so everybody got kind of mad. That's when my [dad] said the matter was over with, everybody started leaving and stuff." Johnson denied "mugging" James at the party, saying, "No. If I was mugging him, I would have approached him." For clarity, the Urban Dictionary describes "mugging" as "star[ing] or look[ing] at someone with malignant thoughts or intentions." Urban Dictionary, https://www.urbandictionary.com/define.php?term=Mugging (last visited June 28, 2019). As most people, including James, left the party, Johnson and McClennon stayed with Kindred and several members of James' family. Just after Johnson finished helping to load speakers in the parking lot, he "heard some tires screeching pulling in the parking lot." Johnson looked up and saw "a black Jeep Cherokee ... pulling in real fast." The driver was wearing a blue hat and a blue shirt, which was what James had been wearing. Johnson testified, "[I] [g]rabbed my cousin and ran downstairs, back down the stairs but the door was shut." They "[b]anged on the door, ... tried to get in before he came ... around the corner." Neither he nor McClennon was carrying a weapon, and Johnson thought James was coming after him, "[b]ecause we had gotten into it. I been in the streets for a lot of years, you know. So my intuition kicked in. I already knew what was going on. He pulled in too fast, didn't look right. We had been getting into it. It wasn't right, something wasn't right. Plus no matter what, he was coming back. No matter what, I had my little cousin with me so I had to protect him, tried to." Keialsha opened the door. Johnson and McClennon pushed their way in and ran to Kindred, who was standing by the dance floor talking to his family. Johnson told Kindred that "his home boy was coming down the stairs with his gun, to get [Johnson]." Kindred told Johnson that "it was my fault, deal with it. I always wanted to be a gang member .... [B]asically saying, you know, it's on me. I got to deal with that ... he ain't going to jump on it. He stood on the left on the side of me. Fat Head was on the right side of me. I was in the middle. He just told me it's your fault basically." Kindred did not try to talk to James but Johnson "kept telling [James] to put the gun down, kept telling him when he walked in there, came in there, he kept, you know, hollering am I tripping out 'cause this, this and that. I kept telling him put the gun down, man, just put the gun down. You ain't got to go there, just put the gun down." In addition, James' "mom and his sisters was in front of him telling him to stop. It wasn't worth it, just an argument .... That's when he fired in the air. I grabbed my cousin, turned around, told him to come on." After the first shot was fired, Johnson ran toward the back door. He did not look back because he felt "bullets flying past [his] head." Johnson soon realized McClennon was not behind him. The door had locked behind Johnson, and he ran to the front of the building to find out what had happened. When Johnson descended the front stairs to the basement, he saw McClennon's body on the floor. Johnson also testified that none of this would have happened if he had brought a gun with him, because he would have shot James first. During cross-examination, Johnson admitted that he had wanted to fight James that night but claimed that McClennon did not want to fight. When confronted with a description of his earlier statement to police "that your cousin took his shirt off to fight [James]," Johnson called defense counsel Mank a liar and denied making the statement. Mank also asked Johnson if a third person, someone named "Travis," was also at Parrot-fa-Nalia that night. Johnson admitted that Travis had been there "for like ten minutes." Travis' last name is not included anywhere in the trial transcript. Kindred's version of events were presented to the jury through a video taken the day after the shooting and through live testimony. In the video, Kindred had explained what happened to McClennon's sister. Kindred testified that Johnson had called him on the night of the party to see if Johnson could come to the party and bring McClennon. Kindred told him, "No. The police be checking this building. [McClennon's] underage." Despite Johnson's disregard of this warning, Kindred introduced Johnson to James because he wanted them to meet, but "it went bad right away because Ta Ta swolled up." In the video, Kindred was asked whether James had said he was leaving the party to get a gun. According to one unidentified person who can be heard in the video, several people had heard James make such a statement. Another unidentified person also reported hearing James' mother say that James was leaving to get a gun. Kindred said that was not true, based on James' post-shooting comments to him. James had told Kindred that he always had a gun with him, and that if he had wanted to shoot anyone, he would have done so earlier. Kindred also said in the video that the door into the basement had been shut because he wanted to show everyone how Johnson had been "mugging" James throughout the night; Kindred did not want Johnson to walk in during the demonstration. Kindred also told McClennon's sister that he told "Ta Ta" after the first altercation to leave "Boo" alone because they needed to keep "Boo" on their "team." According to Kindred, "Boo" was "a killer." He will "kill [someone] out here and don't give a fuck about it." In the video, Kindred also said Johnson and McClennon had run into the basement and then run behind him. Johnson and McClennon were telling Kindred that James was his "boy" and that he could stop James. Kindred said he walked toward James and tried to explain who McClennon and Johnson were and persuade James not to shoot them. Kindred believed he had convinced James to stop, but Johnson and McClennon were standing on the dance floor, acting as if they were preparing to fight, and saying "let that nigga go." Kindred told James that if he wanted to fight Johnson and McClennon, he could, but he needed to put the gun away. Believing James had put the gun in his pocket, Kindred moved out of the way, expecting a fight to ensue. But, as soon as he moved out of the way, he saw James put the gun in his right hand and shoot into the air. In the video, Kindred further explained Johnson and McClennon ran different directions when James fired. Kindred ran behind James. Kindred did not say whether he believed James intended to hit McClennon with the second shot fired. He saw McClennon start to stumble and go down. Initially he thought McClennon was just ducking; Kindred realized McClennon had been hit when his body went limp. After being shown the video at trial, Kindred testified he had lied when he told McClennon's sister James always "roll[ed]" with a gun. According to Kindred, "if I know he had a gun, I would have told him don't come to my party with no gun." During cross-examination, Kindred testified that Johnson had "called some guys to come to the party." Kindred did not think they should be at the party, "because the guys he called, I know that they gang members. They Folks." After Johnson's friends arrived, someone told Kindred that Travis had a gun. Kindred confronted Travis and told him: "If you got a gun, you better get it out of here right now." Travis told Kindred that he had a gun but "didn't bring it up here for no problems." Kindred started to walk away, but Travis called him back and told him, "If I bring a pistol to something like this, I ain't bringing it to give to nobody else. I can use it myself." Kindred replied, "[Y]eah, but you ain't going to do it up in here because if you do, I'm going to fuck you up." Kindred was asked if he "remember[ed] [Travis] being there prior to the shooting, like immediately prior to the shooting" and responded, "He was there the whole time." After the State concluded its case-in-chief, Hughes, West, and James testified for the defense. Hughes testified that she and James left the party to go home but came back when she remembered she had promised to help clean up. When they returned to Parrot-fa-Nalia, Hughes stayed outside for a moment to smoke before going downstairs. When she got downstairs, she saw a confrontation around the dance floor. "I just seen a crowd of people rushing towards Boo as I was walking towards his mom who was sitting at the table cleaning it off." She saw "three or four boys" approaching James, one of whom was Travis. As the group approached James, she heard one of them say "what's up now[?]" Hughes then heard a gunshot and started to run. She heard a second gunshot and, when she looked up, saw McClennon on the floor. Hughes then continued running, leaving Parrot-fa-Nalia with someone else. By the time she reached the outside of the building, both James and her car were gone. West testified that some of Johnson's friends, including Travis, had shown up at the party earlier in the evening. At some point, she noticed Travis had a pistol. West told Kindred about the pistol but was not sure whether he had done anything about it. West did not see what had caused the final confrontation. She explained, "We were cleaning up. The party was over. Pretty much everyone was gone. It was more a majority of women down in the party still cleaning up. We heard a big bam at the door. I'm not sure who opened the door, door came flinging open. "I saw my brother and girlfriend back up. He had her behind him like backing up. Three guys came .... [James] was pushing her around [a bench] so that he wouldn't fall and get back there. One guy came on the side, one stood on a thing right here (indicating) and one stood on the dance floor." West claimed Travis was there at the time. "He was standing by the long side of the thing on the side of the building like inside the building like it separated the dance floor and the bar." According to West, Travis was wearing an orange shirt. She heard someone yelling, "[Y]eah, what's up nigga now[?]" When asked who yelled, West said it was Johnson. West saw Johnson take his hoodie off like "[h]e wanted to fight." She saw that "Leon [McClennon] was in his stance like trying to go towards where everybody else was at and [Travis] was standing along the side of that bank with his hand behind his back." West then heard but did not see a gunshot. She did not know who had fired. When she heard the shot, she ducked and then heard a second shot. West stayed down after the second shot and did not see what happened. When she got up, everyone was gone. She saw McClennon on the floor and stayed with him until police arrived. James testified that he did not know either Johnson or McClennon before the party and did not know anyone in the "younger" group at the party. When James met Johnson, it did not go well because of a "little thing on Facebook" between Johnson and James' nephew. According to James, after the initial introduction, Johnson was "mugging" him as if he had a problem with him. James and Hughes left the party, but came back because Hughes wanted "to help [and] wanted to get a plate." When they returned, James walked into the basement immediately after Johnson and McClennon. James' testimony continued: "When I come in, Rance[ Kindred is] standing right there. I'm walking up to Rance. August [Hughes] walks toward my mother when I walked in. Ta is like what up now, nigga. So I look at him like you want to trip now. So he was standing maybe I'd say 10, 15 feet into the dance floor. "I walk right past Fat Head when I walked in. He didn't say nothing to me. I didn't have no problem with the brother. I don't know him. So he was standing there. He walked behind me like towards the-more towards the tables. "Then there was another cat out there at that time. I didn't know who he was. He had on an orange shirt. He was standing there. Rance called to me. He was like kind of pushing me back. So we stood there for a minute[.] .... [Kindred was saying,] Calm down, bro. Don't trip on that. Don't trip on that, and then after that it just-everything exploded from there I mean. .... "Ta Ta is standing there like this, right. Yeah. What's up now nigga, puffing all up (indicating). I see Fat Head take off his hoodie. He's standing like to the side of me. The other dude is standing back there, but he's standing back there like this like yeah, you know (indicating [with right hand behind his back] )." James interpreted the "other dude['s]" action to mean "[t]hat he had a gun. He had something." James did not see a gun but saw "something flash, was like silverish." The three kept coming toward James, James said. "I pulled out my gun and I fired and then I fired again." James testified that he was not firing at anyone. James also testified that he had the gun on his "hip" the entire night and that he was carrying it because it is "[c]razy out here, man. I just lost an acquaintance of mine maybe two weeks before that. My niece, Reesha ... was killed about a month before that. Another friend of mine was on the highway and the car pulled up beside him and gun-tried to gun him down. It's just-I was keeping it for protection. .... "I was in fear for my life. I didn't know what they was going to do to me. I seen a friend of mine maybe five or six months ago, some dudes jumped him, stomped him crushing his skull, killed him." After the shooting, James left Parrot-fa-Nalia. "I get in the truck, and I just drove, man." He ended up in Oklahoma. He was, "[s]cared man. I had never been in no situation like that in my life. Then when I did talk, I had talked to Rance [Kindred]. When he told me like the baby, you know, Fat [Head] had died, that was a baby. That was a kid, dude. That wasn't my intention to hurt that man. I didn't know him. I have a 17-year-old son. I don't know what I would do if it was my son." James requested jury instructions on the lesser included crimes of second-degree murder, voluntary manslaughter, and involuntary manslaughter for the first-degree murder charge. The State opposed an instruction on second-degree murder under a theory that James had killed McClennon "unintentionally but recklessly under circumstances that show extreme indifference to the value of human life." See K.S.A. 2018 Supp. 21-5403(a)(2). It argued that the evidence was "clear [James] fired two shots" and the "second shot was fired directly at Fat Head and hit him in the left side of the face. ... That was an intentional act." If a second-degree murder instruction were to be given, the State urged Judge Ternes to limit it to intentional second-degree murder. See K.S.A. 2018 Supp. 21-5403(a)(1). Mank argued that sufficient evidence supported instruction on both theories of second-degree murder. "Mr. Kindred testified [James] told him he didn't mean to hit anybody. The fact that one shot apparently was fired straight up into the ceiling I think goes to show that at least as far as the first shot goes, he wasn't intending to shoot or hit anybody, ever." Judge Ternes agreed with the State. "The way that I see it is it would be inconsistent I believe with the testimony of the defendant who clearly said at least twice that he was fearful of this group that he says surrounded him. It would be inconsistent then for him to fire recklessly." On the same rationale, Judge Ternes also denied James' request to instruct on reckless involuntary manslaughter. Mank objected unsuccessfully. The State also opposed the voluntary manslaughter instruction sought by the defense, but Judge Ternes ultimately included voluntary manslaughter instructions on the theory of imperfect self-defense. Mank also sought an involuntary manslaughter instruction on the theory James committed a "lawful act in an unlawful manner," i.e., "excessive use of self-defense." See K.S.A. 2015 Supp. 21-5405(a)(4). The State objected, arguing it was not appropriate because it required an "unintentional act and all the evidence shows this was an intentional act." The judge declined to give the instruction because he could not "go all the way to involuntary manslaughter." He did not believe the evidence supported such an instruction. The final instructions read to the jury before closing arguments included: "Instruction No. 4, in Count 1 the defendant is charged with murder in the first degree. The defendant pleads not guilty. To establish this charge each of the following claims must be proved: No. 1, the defendant intentionally killed Leon McClennon. No. 2, the killing was done with premeditation. No. 3, this act occurred on or about the 9th day of May, 2015, in Sedgwick County, Kansas. .... "Instruction No. 5, if you do not agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree. "To establish this charge each of the following claims must be proved: No. 1, the defendant intentionally killed Leon McClennon. No. 2, this act occurred on or about the 9th day of May, 2015, in Sedgwick County, Kansas. A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State. "Instruction No. 6, if you do not agree that the defendant is guilty of murder in the second degree, you should then consider the lesser included offense of voluntary manslaughter. To establish this charge each of the following claims must be proved: No. 1, the defendant knowingly killed Leon McClennon. No. 2, it was done upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person. No. 3, this act occurred on or about the 9th day of May, 2015, in Sedgwick County, Kansas. .... "No. 7, the offense of murder in the first degree with which the defendant is charged includes the lesser offenses of murder in the second degree and voluntary manslaughter. You may ... find the defendant guilty of murder in the first degree or murder in the second degree or voluntary manslaughter or not guilty. "When there is a reasonable doubt as to which of the two or more offenses defendant is guilty, he may be convicted of the lesser offense only, provided the lesser offense has been proven beyond a reasonable doubt. Your presiding juror should then mark the appropriate verdict. "Instruction No. 8, defendant claims his use of force was permitted as the defense of a person. [The] defendant is permitted to use physical force against another person including using a weapon when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against the other person's imminent use of unlawful force. "Reasonable belief requires both a belief by defendant and the existence of facts that will persuade a reasonable person to that belief. Defendant is permitted to use against another person physical force that is likely to cause death or great bodily harm only when and to the extent that it appears to him that he reasonably believes such force is necessary to prevent death or great bodily harm to himself from the other person's imminent use of unlawful force. "Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief. When use of force is permitted as self-defense, there is no requirement to believe this presumption may be overcome if you are persuaded by a reasonable doubt that the person did not reasonably believe that use of force likely to cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to himself. .... "Instruction No. 10, a person who initially provokes the use of force against himself is not a person permitted to use force to defend himself unless the person reasonably believes that he is in present danger of death or great bodily harm and he has used every reasonable means to escape such danger other than the use of physical force which is likely to cause death or great bodily harm to another person or the person has in good faith withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force but the other person continues or resumes the use of force." During the State's rebuttal closing argument, the prosecutor argued that James would not have fled to Oklahoma if the shooting were justified. "I submit to you a justified man who is killing because he's so scared does not run down the road to Oklahoma in a stolen vehicle. A justified man who has a right to that self-defense to protect himself or the ones he loves from someone else does not pitch his weapon out at 47th and Pawnee as he says he did. Those are not the actions of a justified man acting in defense of himself." The jury found James guilty of first-degree murder and criminal possession of a weapon. Judge Ternes sentenced James to a Hard 50 life sentence for first-degree murder and a concurrent 21-month sentence for criminal possession. REFUSAL TO INSTRUCT ON RECKLESSNESS BASED HOMICIDES James argues that Judge Ternes' refusal to instruct the jury on reckless second-degree murder and reckless involuntary manslaughter constitutes reversible error. An appellate court performs a four-step review of challenges to jury instructions: " ' " '(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 [ 565 U.S. 1221, 132 S.Ct. 1594, 182 L.Ed.2d 205] (2012).' [Citation omitted.] " ' "Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. [Citation omitted.] And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. [Citations omitted.]' " ' "We examine 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' [Citation omitted.]" [ State v. ] Hilt , 299 Kan. [176] at 184-85, [322 P.3d 367 (2014) ].' State v. Mattox , 305 Kan. 1015, 1020, 390 P.3d 514 (2017)." State v. Pulliam , 308 Kan. 1354, 1361-62, 430 P.3d 39 (2018). James requested both instructions and objected to their exclusion. This challenge is therefore properly preserved. We next examine whether the requested instructions were legally appropriate. "An instruction on a lesser included crime is legally appropriate. State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a 'lesser degree of the same crime.' K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized five degrees of homicide. In descending magnitude, they are capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. State v. Carter , 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever , 295 Kan. 229, 258-59, 284 P.3d 1007 [2012] )." Pulliam , 308 Kan. at 1362, 430 P.3d 39. Second-degree murder and involuntary manslaughter are both lesser degrees of first-degree murder and would have been legally appropriate instructions. Judge Ternes' rejection of the requested instructions turned on the element framing the third step of our appellate analysis, whether the instructions were factually appropriate. His interpretation of the admitted evidence was that, even under James' self-defense version, James acted intentionally, because he feared the men surrounding him. Both crimes at issue involve "reckless" behavior, but their degrees of recklessness differ. Reckless second-degree murder requires the killing of a human being committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A. 2018 Supp. 21-5403(a)(2). Reckless involuntary manslaughter requires only the killing of a human being committed "[r]ecklessly." K.S.A. 2018 Supp. 21-5405(a)(1). A "person acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2018 Supp. 21-5202(j) ; see also State v. Gonzalez , 307 Kan. 575, 581, 412 P.3d 968 (2018) (outlining requirements of unintentional second-degree murder, reckless involuntary manslaughter). We have previously addressed the differences between the intentional and reckless forms of second-degree murder in State v. Deal , 293 Kan. 872, 884, 269 P.3d 1282 (2012). In that case, we noted "blind conduct, while one form of reckless conduct, is not the only type of conduct that can be reckless; even an intentional blow can result in an unintentional but reckless killing." 293 Kan. at 882, 269 P.3d 1282. "[I]t is not the intent to inflict a blow but the intent to kill that is the focal point" of the distinction between intentional second-degree murder and unintentional but reckless second-degree murder. 293 Kan. at 882, 269 P.3d 1282. "[T]he unambiguous language of [the second-degree murder] statute requires the killing-the result -to be either intentional or unintentional." ( Emphasis added.) 293 Kan. at 883, 269 P.3d 1282 (citing substantively identical predecessor statute). In short, evidence that James intended the underlying act of shooting is inadequate to rule out an instruction on reckless second-degree murder. The question is whether there was evidence that a killing was committed recklessly. Although we decided Deal on law that predated the legislature's 2011 criminal code recodification, the recodified statute on culpable mental states is consistent with its holding. A person's conduct is intentional with respect to a result "when it is such person's conscious objective or desire to ... cause the result." K.S.A. 2018 Supp. 21-5202(h). This stands in contrast to the definitions of "recklessly" and "reckless" under K.S.A. 2018 Supp. 21-5202(j). Looking at the evidence in this case in a light most favorable to James, as this court must, we conclude that a jury instruction on reckless second-degree murder was factually appropriate. There was testimony and physical evidence that James did not intend to kill McClennon. The first shot fired by James went into the air and hit the ceiling. James testified that he was not firing at anyone when he shot the second time. This testimony echoed what he had told Kindred when he learned McClennon was dead. Although James' version was disputed, there was enough that a reasonable juror could have convicted James of killing McClennon recklessly while manifesting extreme indifference to the value of human life. The State's responsive assertion that there is no testimony that James fired "blindly" or fired only "warning shots" requires too much to justify an instruction for reckless second-degree murder. The instruction was factually appropriate, and the district judge's refusal to give the instruction was error. It does not follow automatically that facts supporting a reckless second-degree murder instruction also support a reckless involuntary manslaughter instruction because of the difference in degree of recklessness between the crimes mentioned above. We thus must examine the evidence supporting reckless involuntary manslaughter. Recently, in State v. Gonzalez , 307 Kan. 575, 412 P.3d 968 (2018), this court rebuffed a constitutional vagueness challenge to the greater crime, differentiating its recklessness requirements from that of involuntary manslaughter along the way. " 'To convict a defendant charged with unintentional second-degree murder, the State is required to prove not only that the defendant consciously disregarded a substantial and unjustifiable risk that death will result from existing circumstances but also that the defendant did so under "circumstances manifesting extreme indifference to the value of human life." [Citation omitted.] Although recklessness is an essential element to prove the offense in both statutes, the unintentional second-degree murder statute still requires an additional element.' " Gonzalez , 307 Kan. at 583, 412 P.3d 968. The "difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind." 307 Kan. at 583, 412 P.3d 968. There is a "recognized spectrum of culpability for the results of one's reckless acts." 307 Kan. at 583, 412 P.3d 968. Recklessness attributable to " 'purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter.' " 307 Kan. at 583, 412 P.3d 968 (quoting State v. Robinson , 261 Kan. 865, 877-78, 934 P.2d 38 [1997] ). In Gonzalez , the "instructions required the jury to place [the defendant's] conduct on that spectrum by deciding whether the facts showed he was not just reckless in disregarding the risk that [the victim] would die, but also extremely indifferent to the value of human life." Gonzalez , 307 Kan. at 583, 412 P.3d 968. This being said, on the particular evidentiary record before us today, an instruction on reckless involuntary manslaughter also was factually appropriate. If jurors accepted that James acted recklessly, the evidence did not foreclose culpability at either end of the spectrum for the results of his reckless acts. The varying accounts of what happened inside the basement-and outside view of any surveillance cameras-presented the jury with a range of possibilities. It was the jury's task, not the district judge's, to consider the evidence and assess factors-such as the number of people in the basement and James' reasons for shooting-before reaching a conclusion on whether James' recklessness rose to the second-degree murder level of extreme indifference to the value of human life. The district judge also erred in refusing to give the reckless involuntary manslaughter instruction. We now turn to harmlessness. James argues that each of the errors identified is a constitutional flaw in his trial. See State v. Salary , 301 Kan. 586, 599, 343 P.3d 1165 (2015). He urges us to reconsider our caselaw applying a statutory harmlessness test to such instruction error. He argues that these errors implicate federal and state constitutional guarantees of a defendant's right to present his or her theory of defense. See State v. Evans , 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to present theory of his or her defense; exclusion of evidence integral to theory violates defendant's fundamental right to fair trial). James does not cite any caselaw or other authority establishing the rule he seeks, and he does not otherwise articulate an argument sufficient to persuade a majority of this court to reconsider application of the statutory test in these circumstances. See State v. Torres , 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply pressing point without pertinent authority, without showing why point sound despite lack of supporting authority or in face of contrary authority akin to failing to brief issue; when party fails to brief issue, issue considered waived, abandoned). We therefore continue to apply the statutory test today. Under that test we "must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial." State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). The burden of demonstrating harmlessness is on the party benefiting from the error, which, in this case, is the State. See State v. Preston , 294 Kan. 27, Syl. ¶ 3, 272 P.3d 1275 (2012). To reach a verdict in this case the jury had to resolve the conflict between two competing versions of the critical moments surrounding the shooting of McClennon. Either James returned to the party intending to do harm to Johnson and McClennon or he returned for other reasons and then was forced to react to a lethal threat from Johnson, McClennon, and Travis. The jury found James guilty of first-degree murder, which required jurors to conclude not only that the killing was intentional but also premeditated. See K.S.A. 2018 Supp. 21-5402(a)(1). This verdict eliminates the possibility that the jury viewed the killing as merely reckless, and we can safely say there is no reasonable probability the judge's refusal to instruct on either or both reckless second-degree murder and involuntary manslaughter affected the outcome of the trial. REFUSAL TO INSTRUCT ON IMPERFECT SELF-DEFENSE INVOLUNTARY MANSLAUGHTER James' second appellate challenge mirrors his first. He argues that the jury should have been instructed on imperfect self-defense involuntary manslaughter. Our analysis of this issue uses the same analytical framework and standard of review outlined for his first issue. Imperfect self-defense based on a "lawful act [committed] in an unlawful manner" has been characterized as a "lawful exercise of self-defense, but with excessive force," State v. McCullough , 293 Kan. 970, 976, 270 P.3d 1142 (2012), and was first recognized in State v. Gregory , 218 Kan. 180, 185-86, 542 P.2d 1051 (1975). James preserved this issue by requesting the instruction and objecting to its omission. The instruction was legally appropriate, because involuntary manslaughter is a lesser degree of homicide and therefore a lesser included crime of first-degree murder. The State argues in its brief that the instruction was not factually appropriate because the crime requires the defendant's act to be unintentional. It cites relatively recent opinions from the Court of Appeals interpreting the current version of involuntary manslaughter, as well as older opinions from this court that interpreted the pre-recodification statute. Although these authorities were good law when the State's brief was filed, this court has since held that there is no requirement that "lawful act in an unlawful manner" involuntary manslaughter be committed unintentionally. Pulliam , 308 Kan. 1354, Syl. ¶ 1, 430 P.3d 39 ("Conviction of involuntary manslaughter under an imperfect self-defense theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing."). The State's alternative argument is that the evidence demonstrated James was an initial aggressor who cannot rely on either perfect or imperfect self-defense. See K.S.A. 2018 Supp. 21-5226. According to the State, "overwhelming evidence showed that defendant retrieved his gun, returned to the party, followed Johnson and the victim down the stairs, and fired the fatal shot 37 seconds after entering the basement." Although the State's version of the facts is certainly plausible, even arguably probable, it was not the only version offered at trial. James testified that he had his gun on his hip the entire night. Both he and Hughes testified that they came back to the party because she had promised to help clean up. It is undisputed-and corroborated by surveillance video-that James followed Johnson and McClennon back into the party. But what happened during the next 37 seconds is not so clear. One version of events has James surrounded by three menacing men, two of them ready to fight and the third possibly armed with a gun. The question of whether James was the initial aggressor was a fact question for the jury to decide and the answer not so obvious that the applicability of imperfect self-defense was precluded. The question remains whether an imperfect self-defense involuntary manslaughter instruction was otherwise supported by the evidence admitted at trial and thus factually appropriate. Based on the trial evidence viewed in the light most favorable to James, we hold that it was. One of the key points of contention at trial was whether any of the three men James described as surrounding him had a gun. The State's position was that no one other than James had such a weapon. If the jury agreed with the State on that point, it is nevertheless possible the jury could have concluded, based on James' testimony and the testimony of others, that James was warranted in exercising some level of self-defense but exceeded necessary force by firing his gun. He would have committed a lawful act in an unlawful manner. It was error for the judge not to instruct the jury on imperfect self-defense involuntary manslaughter. Under the statutory harmless error standard, again, we "must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial." Ward , 292 Kan. at 565, 256 P.3d 801. On the facts of this case, we conclude there was no reasonable probability this instruction error affected the outcome. Despite the theoretical possibility that the jury could have reached an involuntary manslaughter verdict based on imperfect self-defense, such a verdict was highly improbable. According to Gorrill's expert testimony and other witnesses, the second shot that killed McClennon appears to have hit him as he was running away from James after the first shot. Shooting an unarmed person in retreat is antithetical to self-defense, perfect or imperfect. SIMULTANEOUS JURY CONSIDERATION OF LESSER INCLUDED CRIMES James argues that the jury should have been instructed to consider verdicts of premeditated murder and imperfect self-defense voluntary manslaughter simultaneously. James concedes that he did not request the instruction and thus this court should review the issue for clear error. The State also argues that the invited-error doctrine should preclude review by this court because James requested the instruction he now challenges. In reply, James clarifies that he is not challenging Instructions 5 and 6, which told the jury that "if you do not agree that the defendant is guilty of" the greater crime, "you should then consider the lesser included offense." Rather, he is challenging the judge's failure to affirmatively instruct the jury to consider premeditated first-degree murder and imperfect self-defense voluntary manslaughter simultaneously. Regardless of the merit of any preservation argument, James cannot prevail on this issue. A majority of this court has held mere months ago that a "district court is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense." State v. Sims , 308 Kan. 1488, Syl. ¶ 2, 431 P.3d 288 (2018), pet. for cert. filed April 29, 2019. Regardless of any disagreements a minority of the court might have had with that ruling, see 308 Kan. at 1507-09, 431 P.3d 288 (Beier, J., concurring) ("sequential consideration does not ensure that a jury ever reaches, much less effectively considers, [defense] theory"), Sims is now the controlling precedent. The district judge did not err by failing to instruct the jury to consider lesser included crimes simultaneously. ADMISSION OF AUTOPSY PHOTOS James next challenges Judge Ternes' admission of autopsy photos over repeated defense objections. " ' " 'The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion.' " State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (quoting State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 [2009] ). Abuse of discretion also is the standard of review when a party challenges evidence as cumulative.' State v. Hilt , 299 Kan. 176, 195, 322 P.3d 367 (2014). "The burden of demonstrating abuse of discretion falls on the party asserting the error. See State v. Rodriguez , 295 Kan. 1146, 1156, 289 P.3d 85 (2012). A district court abuses its discretion when the challenged action " ' " '(1) is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.' " ' 295 Kan. at 1156 [289 P.3d 85] (quoting State v. Robinson , 293 Kan. 1002, 1027-28, 270 P.3d 1183 [2012] )." State v. Love , 305 Kan. 716, 721, 387 P.3d 820 (2017). James argues that Judge Ternes understated the gruesomeness of the photos and that there was "not a compelling reason for admission, because the State had already admitted a video showing Mr. McClennon's death in real time." Photographic evidence is relevant if "it has a reasonable tendency to prove a material fact." Love , 305 Kan. at 721, 387 P.3d 820. "Autopsy photographs assisting a pathologist in explaining the cause of death are relevant and admissible, but those serving only to ' " 'inflame the minds of the members of the jury' " ' are not. Rodriguez , 295 Kan. at 1157 [289 P.3d 85] (quoting State v. Riojas , 288 Kan. 379, 387, 204 P.3d 578 [2009] ). In addition, a district court may abuse its discretion by admitting unduly repetitious photographs. 295 Kan. at 1157 [289 P.3d 85]. 'The admission of photographs in a murder case has rarely been held to be an abuse of discretion.' 295 Kan. at 1157 [289 P.3d 85] (citing State v. Sappington , 285 Kan. 176, 195, 169 P.3d 1107 [2007] ). ' "[B]ecause the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if the cause of death is not contested." ' Hilt , 299 Kan. at 196 [322 P.3d 367] ; see State v. Dupree , 304 Kan. 43, 64, 371 P.3d 862 (2016) ('As to materiality, photographs showing the jury the manner of death are material in a murder trial.')." Love , 305 Kan. at 721-22, 387 P.3d 820. The photos James challenges were not repetitious. They allowed the pathologist to explain the path of the bullet that killed McClennon and show skull fractures that resulted. Although the State introduced video evidence of McClennon stumbling and falling in the moment after being shot, it is impossible to tell from the video alone what caused McClennon to stumble and fall. Judge Ternes did not abuse his discretion by admitting the photos. PROSECUTORIAL ERROR This court applies a two-step analysis to evaluate claims of prosecutorial error. "To determine if the prosecutor erred, 'the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial.' [ State v. ] Sherman , 305 Kan. [88, 109, 378 P.3d 1060 (2016) ]. If the court finds error, the burden falls on the State to demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' Sherman , 305 Kan. 88, Syl. ¶ 8 [378 P.3d 1060]." State v. Butler , 307 Kan. 831, 863, 416 P.3d 116 (2018). During the State's closing, the prosecutor said, "I submit to you a justified man who is killing because he's so scared does not run down the road to Oklahoma in a stolen vehicle." James argues there was no evidence to support the prosecutor's description of Hughes' car as "stolen." The State attempts to excuse the comment as being a reasonable inference based on the evidence. According to the State, "While defendant is correct in noting that Hughes did not expressly testify that defendant stole her car, Hughes's testimony, as well as that of defendant, indicated that defendant did not seek or obtain Hughes's permission to take the vehicle." There are two basic elements of theft: unauthorized control over the property and an intent to deprive the owner of the property. See K.S.A. 2018 Supp. 21-5801 (theft, permanent deprivation); K.S.A. 2018 Supp. 21-5803 (criminal deprivation, temporary). Given the dating relationship of Hughes and James, it was at least presumptuous of the prosecutor to state, in essence, that James lacked implicit or explicit permission to use Hughes' car as if it were his own. Even assuming lack of authorization was established, there was no evidence that James intended to permanently or temporarily deprive Hughes of the car. The prosecutor's description of the car as "stolen" was error because it was unsupported by evidence. Moreover, as noted in James' brief, referencing an uncharged crime can be problematic because it encourages jurors to draw an inference of a defendant's propensity to commit crimes. Under K.S.A. 2018 Supp. 60-455(a), evidence of other crimes or civil wrongs is generally inadmissible. Even if James' exit in Hughes' car might fall outside the prohibition in K.S.A. 2018 Supp. 60-455(a) because it occurred on the same "specified occasion" as the murder, it qualified as unnecessary and unwise as well as factually unsupported. To avoid reversal of James' convictions for the prosecutor's error, the State must establish "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict." State v. Sherman , 305 Kan. 88, Syl. ¶ 8, 378 P.3d 1060 (2016). In light of the entire record, the error does not require reversal. The remark was isolated. The point the prosecutor sought to make-that a person "justified" in shooting would not flee the state-was a valid argument, regardless of whether the car was stolen. Moreover, the jury heard testimony that Hughes and James were in a dating relationship and that James had driven the car to Parrot-fa-Nalia. In other words, the prosecutor's characterization probably did more to damage her credibility than it did to undermine the defense case. There was no dispute James simply left the scene in the same car he had driven to it. CONSTITUTIONAL RIGHT TO PRESENCE "An appellate argument on a 'defendant's right to be present at every critical stage of his or her criminal trial raise[s] an issue of law over which this court exercises unlimited review.' State v. Verser , 299 Kan. 776, 787, 326 P.3d 1046 (2014)." State v. Wright , 305 Kan. 1176, 1178, 390 P.3d 899 (2017) ( Wright I ). Sylvester asked for, and received, trial continuances on two occasions. The requests were made using the same generic form, and each contained a representation from Sylvester that he had "consulted with" James and acknowledged that the continuance would be charged to the defendant. The State does not dispute that James was not present when either continuance was granted. This court has held that a continuance hearing is a critical stage at which a defendant is entitled to be present. See Wright I , 305 Kan. at 1178, 390 P.3d 899. " 'Under the plain language of [the speedy trial statute,] K.S.A. 22-3402, a continuance resulting from a defendant's request stays the running of the statutory speedy trial period. When the request is made by defense counsel, the request for continuance is attributable to the defendant unless the defendant timely voices an objection. Because a defendant's disagreement matters in a statutory speedy trial analysis, a defendant must have an opportunity to be present to express that disagreement.' State v. Dupree , 304 Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016)." Wright I , 305 Kan. at 1178, 390 P.3d 899. Thus James' right to be present at every critical stage was violated when continuances were ordered outside his presence, unless he knowingly and voluntarily waived that right. See State v. Northern , 304 Kan. 860, 862, 375 P.3d 363 (2016). Because we see nothing in the record to evidence such a waiver, we assume error on this point. Assuming James' right was violated, the error may be declared harmless under the constitutional standard " '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.' " Wright I , 305 Kan. at 1179, 390 P.3d 899 (quoting Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 ). In Wright I , this court remanded the case to the district court for factual findings to enable evaluation of the harmlessness of the deprivation of a defendant's right to be present at a continuance hearing. "Unfortunately, our ability to examine harmlessness here is stymied by the lack of factual findings on the presence issue from the district court. See State v. Hoge , 283 Kan. 219, 221-22, 150 P.3d 905 (2007) (meaningful appellate review precluded when trial court's findings of fact, conclusions of law inadequate to disclose controlling facts, basis for court's findings); see also State v. Moncla , 269 Kan. 61, 65, 4 P.3d 618 (2000) (district judge must make factual findings before appellate review can occur). Without more information about the parties' circumstances and the avenues available to them and the judge on August 19, we cannot determine with any level of confidence whether Wright's absence was prejudicial. We are unable to assume that he would have changed the judge's mind about granting the continuance, making his trial timely commenced; we are unable to assume that the State would have obtained the continuance in spite of Wright's objection; we are unable to make any reliable prediction of the strength of the State's case or the strength of Wright's defense depending on the day the trial began. See Verser , 299 Kan. at 789-90 [326 P.3d 1046] (strength of prosecution's case one of the factors in harmlessness analysis after violation of defendant's right to be present at all critical stages of trial). "Ordinarily we would be inclined to lay the impotence of the record on appeal on this issue solely at the feet of the State, which must demonstrate harmlessness once an error is shown. See Ward , 292 Kan. 541, Syl. ¶ 6 [256 P.3d 801] (State, as party benefitting from error, bears burden of showing harmlessness). We do not do so automatically here, because defense counsel and the district judge also share some responsibility for the absence of findings in the record. Defense counsel put no emphasis on this issue at the hearing on the motion for new trial and did not object to the lack of findings. See State v. Rodriguez , 302 Kan. 85, 91, 350 P.3d 1083 (2015) (party must object to inadequate findings of fact to preserve issue for appeal). And the judge did not ensure that all necessary findings were made on each outstanding issue, which is inconsistent with the judge's duty under Rule 165 (2017 Kan. S. Ct. R. 214). "The one person who certainly shares none of the responsibility for letting this issue drop is Wright himself. He asserted his right to be present in the letter to Frieden, copied to the clerk of the court, who placed the letter in the court file. Wright filed the pro se motion to dismiss for violation of his right to speedy trial and, as part of it, again drew the court's attention to the violation of his right to be present. He repeatedly voiced his disapproval of the continuance Frieden obtained in his absence. This chain of events is reminiscent of those in State v. Raskie , 293 Kan. 906, 925-26, 269 P.3d 1268 (2012), and State v. Seward , 289 Kan. 715, 217 P.3d 443 (2009), in which defendants took steps to raise constitutional issues before district judges, but the judges' findings were inadequate for purposes of appellate review. " 'When an appellate court is presented with inadequate findings, the proper course taken depends on whether the issue was raised and can be resolved without remand.' State v. Neighbors , 299 Kan. 234, 240, 328 P.3d 1081 (2014) (citing Raskie , 293 Kan. at 925-26 [269 P.3d 1268] [remanding because district judge made inadequate findings on defendant's cruel and unusual punishment argument] ). We are left with no choice but remand for findings here, because we cannot decide from the record before us whether Wright's absence on August 19 had serious or minimal consequences." Wright I , 305 Kan. at 1179-80, 390 P.3d 899. Citing Wright I , James asks for a remand for the district judge to make the factual findings necessary for meaningful appellate review of his claim. We are unwilling to take this step. This case differs from Wright because the record is not silent on James' contemporaneous attitude toward the continuances obtained by Sylvester. Although generic forms were used, and there is no evidence of a waiver of James' right to be present, Sylvester represented to the court that he had consulted with his client and at least implied that James agreed with his counsel's course of action. In addition, the record establishes that James later acquiesced in other continuances that postponed his trial. On April 22, 2016, James agreed to his trial being moved from June to July to accommodate the court's calendar. At the same hearing, he told the court, "I'm not worried about the time." In September 2016, after Mank had finally been appointed, James again agreed to a continuance from September to November. James personally signed off on the form requesting the continuance. Unlike the defendant in Wright , James' initial unequivocal demand for no continuances charged against him collapsed in the face of other exigencies, principally the need for adequate time to prepare for new counsel. Absent any consistent assertion of a violation of his speedy trial right or another sign of prejudice arising from James' absence from continuance hearings, any assumed error would not be reversible. Cf. State v. Wright , 307 Kan. 449, 456-58, 410 P.3d 893 (2018) ( Wright II ). CUMULATIVE ERROR We have identified multiple errors in James' trial, and he asserts entitlement to reversal of his convictions under the cumulative error doctrine. " '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. Carter , 305 Kan. 139, 166, 380 P.3d 189 (2016). The errors in this case consist of three instructional errors-refusal to instruct on reckless second-degree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary manslaughter-and one prosecutorial error. In addition, we have assumed a violation of James' right to be present at all critical stages because the record contains no evidence that he knowingly and voluntarily waived that right. The prosecutor's error during closing was a discrete error that in no way compounded the instructional errors. See Sims , 308 Kan. at 1507, 431 P.3d 288 ("Taken together, these errors in no way compounded one another; they were discrete."). Likewise, the assumed violation of James' right to be present at continuance hearings did not compromise his case in any way related to the other errors. The instructional errors, however, were interwoven, and all related to James' degree of culpability in the shooting. Despite this commonality, we nevertheless conclude that the combination of instruction errors did not deprive James of a fair trial. Again, there were two unequivocally competing versions of the critical moments on the night McClennon was killed. Statements of critical witnesses for both sides had inconsistencies. Yet only one of the versions of events had James as the aggressor. The jury must have accepted that version when it convicted him of first-degree premeditated murder, rejecting self-defense generally and passing up the opportunity to convict him of voluntary manslaughter on a theory of imperfect self-defense. Cumulative error does not require reversal of James' convictions. CONCLUSION We affirm the judgment of the district court.

The opinion of the court was delivered by Biles, J.: Michael F. Russ appeals the sentencing court's classification of his prior misdemeanor convictions for violating a City of Wichita municipal ordinance as person offenses to calculate his criminal history score. He claims a Kansas Court of Appeals panel erred by (1) looking beyond the most comparable Kansas offense, i.e., domestic battery, to analyze his Wichita municipal ordinance domestic battery convictions; and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions. See State v. Russ , No. 115,111, 2017 WL 1821215, at *4 (Kan. App. 2017) (unpublished opinion). We affirm. We hold the Wichita domestic battery ordinance is narrower than the comparable state statute, so the panel did not err when it held the district court properly classified the municipal violations as person offenses. See State v. Wetrich , 307 Kan. 552, 561, 412 P.3d 984 (2018) (holding that to be "comparable" under K.S.A. 2017 Supp. 21-6811(e)(3), "the out-of-state crime cannot have broader elements than the Kansas reference offense"). As to the second error claimed, we hold the panel correctly determined the issue was moot because it could have no practical effect on the outcome. See State v. Montgomery , 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 (2012) ; State ex rel. Sanborn v. Bissing , 210 Kan. 389, 397, 502 P.2d 630 (1972). FACTUAL AND PROCEDURAL BACKGROUND Russ pleaded guilty to attempted second-degree murder, a severity level 3 person felony, for acts committed in January 2015. A presentence investigation report recommended a B criminal history score. See K.S.A. 2016 Supp. 21-6809 (B criminal history score requires two person felonies). It reflected several prior convictions, including six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. See K.S.A. 2016 Supp. 21-6811(a) (providing every three prior convictions for class A and B person misdemeanors to be rated as a person felony). The report further recommended aggregating two 1998 domestic battery convictions and one 1998 conviction for failure to comply with bond restrictions and converting them into one person felony. It did not convert the other two eligible convictions-a 2015 domestic battery conviction and a 2015 conviction for violation of a protective order-leaving them listed as person misdemeanor offenses. Russ did not object to the criminal history score recommendation. The district court sentenced him to 206 months in prison, which was the mitigated presumptive sentence. See K.S.A. 2016 Supp. 21-6804(a). Russ appealed, arguing the district court erred by classifying four of his prior municipal ordinance convictions as person offenses: two 1998 domestic battery convictions, a 2015 domestic battery conviction, and his 1998 conviction for failure to comply with bond restrictions. Pertinent to our review, he claimed the domestic battery ordinances were broader than the counterpart Kansas statute. Russ argued the Kansas domestic battery statute prohibited only battery by a family or household member against a family or household member, while the 2012 ordinance also prohibited battery between persons "in a 'dating relationship,' " and the 1996 ordinance prohibited battery among "domestic partners." Compare K.S.A. 2014 Supp. 21-5414(a), with Wichita Mun. Code § 5.10.025 (2012), and Wichita Mun. Code § 5.10.025 (1996). Implicitly relying on the simple battery statute, K.S.A. 2018 Supp. 21-5413(a), the panel reasoned that "[r]egardless of the relationship between the batterer and the victim battered, a battery in Kansas is a person offense." Russ , 2017 WL 1821215, at *4. The panel further held Russ' challenge to the failure-to-comply-with-bond-restrictions conviction's classification was moot. It reasoned that even if the conviction was classified differently, his criminal history score would be the same because there would be enough remaining conversion-eligible misdemeanor convictions to be aggregated and scored as a person felony. 2017 WL 1821215, at *4. Russ petitioned for review, which this court granted. Jurisdiction is proper. K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). CLASSIFYING THE DOMESTIC BATTERY MUNICIPAL ORDINANCE VIOLATIONS Classification of prior offenses for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., and statutory interpretation is a question of law subject to this court's unlimited review. Wetrich , 307 Kan. at 555, 412 P.3d 984. Russ argues the panel erred by affirming the sentencing court's classification of his Wichita domestic battery convictions as person misdemeanors. Under the KSGA, when calculating a defendant's criminal history score, a sentencing court must consider and score prior "convictions and adjudications for violations of municipal ordinances ... which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor." K.S.A. 2018 Supp. 21-6810(a). The KSGA further provides: "Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes." K.S.A. 2018 Supp. 21-6811(a). In Wetrich , 307 Kan. at 562, 412 P.3d 984, the court held "comparable offenses" in K.S.A. 2017 Supp. 21-6811(e)(3) means "the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." Similar to K.S.A. 2017 Supp. 21-6811(e)(3), the statute relevant to the current case requires the municipal ordinance convictions be "comparable" to any Kansas misdemeanor. See K.S.A. 2018 Supp. 21-6810(a). Accordingly, when the code does not have a comparable offense, the municipal ordinance conviction is classified as a nonperson crime. Neither party mentions whether we should extend Wetrich 's statutory interpretation of the term "comparable offense" as used in K.S.A. 2017 Supp. 21-6811(e)(3) to the same term used in K.S.A. 2018 Supp. 21-6810(a) for scoring municipal ordinance violations. But that is the logical result for the same reason Wetrich adopted the identical-or-narrow rule: "further[ing] the KSGA's goal of an even-handed, predictable, and consistent application of the law across jurisdictional lines." 307 Kan. at 561-62, 412 P.3d 984 ; cf. State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019) ("[A] defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending."). Applying Wetrich to our case, the panel correctly held Russ' 1998 and 2015 domestic battery ordinance violations were person offenses. K.S.A. 2018 Supp. 21-5413(a) defines battery as "[k]knowingly or recklessly causing bodily harm to another person; or ... knowingly causing physical contact with another person when done in a rude, insulting or angry manner." Considering how broadly the Kansas statute defines a simple battery, acts constituting an ordinance violation under the 2012 and 1996 versions of Wichita Mun. Code § 5.10.025 would always violate the state statute, and its violation is a person offense. See K.S.A. 2018 Supp. 21-5413(a), (g)(1). The only difference between the ordinances and the statute is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance's proscribed acts narrower, not broader. MOOTNESS The panel correctly declined to address the matter (question/issue/claim) regarding Russ' prior conviction of failure to comply with bond restriction. See Russ , 2017 WL 1821215, at *4 ; Bissing , 210 Kan. at 397, 502 P.2d 630 (issue moot when judgment would be of no consequence). Since all three domestic batteries were properly scored as person misdemeanors, his criminal history score is certain to include a misdemeanor-conversion person felony. See K.S.A. 2018 Supp. 21-6811(a). Regardless of the failure to comply with bond restrictions' classification, Russ' criminal history score remains B. See Sierra Club v. Moser , 298 Kan. 22, 60, 310 P.3d 360 (2013) (declining to address issues mooted by other parts of decision); Montgomery , 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 ("An appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose."). Affirmed.

The opinion of the court was delivered by Stegall, J.: Scot E. Bacon II petitioned for review of the Court of Appeals' holding that his pro se motion quoting KRPC 1.3 of the Kansas Rules of Professional Conduct (KRPC) (2019 Kan. S. Ct. R. 298) did not trigger the Sedgwick County District Court's duty to inquire into a potential conflict between Bacon and his appointed attorney. We assume error but affirm because Bacon retained new counsel for trial; he does not claim his trial attorney was ineffective; and he has not otherwise identified any prejudice flowing from the error. In short, Bacon got the remedy he sought-new counsel for trial-and on this record, there is no showing of prejudice. One evening in August 2014, an officer stopped Bacon and a young woman for jaywalking in Sedgwick County. The officer soon discovered that the young woman was a 17-year-old minor and an active runaway. She told the officer that Bacon had driven her to solicit prostitution on Broadway Street the last few nights. Bacon later admitted this was true but insisted that the prostitution was her idea, even though the money went to him. The State charged Bacon with one count of aggravated human trafficking. See K.S.A. 2014 Supp. 21-5426(b)(4). The district court determined Bacon was indigent and appointed a public defender, James Mamalis, to represent him. Mamalis continued Bacon's preliminary hearing seven times between August and November 2014. Then on December 1, 2014, Bacon filed a handwritten pro se "Motion for Diligence," which contained a copy of KRPC 1.3 and part of the accompanying comments. See KRPC 1.3 (2019 Kan. S. Ct. R. 298). The motion read in its entirety: " K.R.P.C. 1.3 Motion For Diligence "A Lawyer Shall Act with Reasonable diligence and promptness in representing a Client. "1) A lawyer should pursue a matter [on behalf] of a client despite opposition obstruction or personal inconvenience to the lawyer and may take whatever Lawful and ethical measures are required to vindicate [a] clients cause or endeavor a lawyer should act with commitment and dedication to the interest of the client and with zeal in advocacy upon the Clients behalf. However a lawyer in [sic ] not bound to press for every advantage that might be realized for a client. A Lawyer has professional discretion in determining the means by which a matter should be pursued[.] See Rule 1.2[.] A lawyers work load should be controlled so that each matter can be handled adequately. 2) Perhaps no professional shortcoming is more widely resented than procrastination. A clients interest often can be adversely affected by the passage of time or the change of conditions in extreme instances as when a lawyer overlooks A Statute of limitations the clients legal position May be destroyed even when the cliens [sic ] interests are not affected in substance However unreasonable delay can cause A client needless Anxiety and undermind [sic ] Confidence in the lawyers Trustworthiness. 3) unless the relationship is terminated as provided in rule 1.16 A lawyer should carry through to conclusion all matters under-taken for a client if a lawyers employment is limited to specific matters the relationship terminates when the matter has been resolved." A week later, Bacon filed the same pro se motion again. The district court mailed a copy of the motion to Mamalis and the State. The court advised Mamalis by letter, "We await further direction from you as to how to proceed on this matter." But the record suggests no further action was taken. Mamalis continued Bacon's preliminary hearing three more times before it was conducted in February 2015. After that, Mamalis continued the trial three times until it was finally set for September 2015. Then Bacon retained private counsel, Sarah Swain, a week and a half before trial. Swain moved to continue the trial but the court denied the motion. A few days before trial, the State amended its complaint by replacing the single count of aggravated human trafficking with two counts of commercial sexual exploitation of a child. See K.S.A. 2014 Supp. 21-6422(a)(4). The case went to trial and the jury found Bacon guilty of one count of commercial sexual exploitation of a child. Swain later filed a motion for new trial based, in part, on the district court's failure to inquire into Bacon's pro se motions voicing dissatisfaction with Mamalis. The court denied this motion, stating the issue was not timely raised, and regardless, Bacon's pro se documents did not convey a request for new counsel. The court sentenced Bacon to 100 months' imprisonment. The Court of Appeals affirmed Bacon's conviction. State v. Bacon , No. 114,951, 2017 WL 2403355 (Kan. App. 2017) (unpublished opinion). Relevant here, the panel held Bacon's pro se motions quoting KRPC 1.3 did not allege dissatisfaction with Mamalis. 2017 WL 2403355, at *15-16. The panel reasoned: "Bacon's letters fall far short of 'an articulated statement of attorney dissatisfaction,' let alone meet the requirement of 'justifiable dissatisfaction.' See Brown , 300 Kan. at 575, 331 P.3d 797. Although courts should liberally construe pro se pleadings to give effect to their content, '[l]iberal rules of construction cannot transform the reality of a pleading's content or the arguments being advanced, even when a litigant is pro se.' State v. Gilbert , 299 Kan. 797, 798, 326 P.3d 1060 (2014). To construct Bacon's letters as alleging dissatisfaction with Mamalis would require this court to deduce Bacon's dissatisfaction based on the fact he quoted the rule about attorney diligence. In other words, to construct Bacon's letters as alleging dissatisfaction with Mamalis would require this court to make up arguments for Bacon. Clearly, this court is prohibited from taking such action. "Consequently, Bacon never alleged dissatisfaction with Mamalis within the letters sent to the trial court. Because he never alleged dissatisfaction with Mamalis, the trial court never had a duty to inquire about Bacon's dissatisfaction with Mamalis' representation." 2017 WL 2403355, at *15. We granted review of one issue: whether Bacon's pro se motions triggered the district court's duty to inquire into his dissatisfaction with Mamalis. Bacon asks us to reverse the Court of Appeals and remand for further proceedings. Our state and federal constitutions guarantee a criminal defendant the right to effective assistance of counsel, and a district court's duty to inquire into a potential conflict with counsel derives from this right. State v. Brown , 300 Kan. 565, 574-75, 577, 331 P.3d 797 (2014). A defendant seeking substitute counsel "must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant." 300 Kan. 565, Syl. ¶ 3, 331 P.3d 797. The defendant "bears the responsibility of providing an articulated statement of attorney dissatisfaction," which will trigger the district court's duty to inquire about the potential conflict. 300 Kan. 565, Syl. ¶ 4, 331 P.3d 797. A district court abuses its discretion when it fails to inquire about a potential conflict made known to it. State v. Bowen , 299 Kan. 339, 346, 323 P.3d 853 (2014). Bacon claims his "Motion for Diligence" was an articulable statement of dissatisfaction, which triggered the district court's duty to inquire into a potential conflict with Mamalis. Today, we assume without deciding that he is correct. Thus, we assume the district court abused its discretion when it failed to inquire about Bacon's dissatisfaction with Mamalis, as voiced in his pro se motion. Generally, the failure to inquire warrants a remand to the district court to determine whether a conflict existed, and if so, whether the conflict adversely affected the attorney's performance. See Brown , 300 Kan. at 578, 331 P.3d 797. But here a remand is unnecessary because Bacon obtained the remedy he sought-new counsel-and has not otherwise identified any prejudice flowing from the error. We also note that prejudice is not presumed on these facts. See, e.g., Bowen , 299 Kan. at 346, 323 P.3d 853 (holding prejudice is presumed and automatic reversal is required "only when the circumstances present: [1] multiple concurrent representations; [2] a timely objection, meaning an objection before or during the proceeding; and [3] a failure of the district court to inquire and determine there is no conflict"). Bacon claims an actual conflict existed and the district court should have appointed new counsel for him when he voiced his complaint. That may be so. But there is a problem: Bacon availed himself of self-help and retained Sarah Swain before trial. At most, Swain's trial preparation was delayed. But Bacon does not claim that her performance was ineffective or that the delay caused any trial error. Because Bacon retained new counsel and fails to show how the delay in obtaining new counsel prejudiced him at trial, there is nothing to remedy on remand. See Louis v. State , No. 109,082, 2013 WL 5870165, at *3 (Kan. App. 2013) (unpublished opinion) (holding the defendant could not prevail on his ineffective assistance of counsel claim against his first appointed attorney because the district court appointed a new attorney for trial and the defendant failed to establish prejudice); State v. Edwards , No. 106,278, 2012 WL 6061554, at *6 (Kan. App. 2012) (unpublished opinion) (holding a remand to investigate an ineffective assistance of counsel claim against the defendant's first appointed attorney "would serve no legal purpose" because the district court granted the defendant's request to appoint a new attorney before the hearing). On the unique facts of this case, Bacon's alleged conflict with Mamalis did not adversely affect Swain's trial performance or otherwise prejudice Bacon in any way. Thus, we affirm the Court of Appeals as right for the wrong reason. See Atkins v. Webcon , 308 Kan. 92, 102, 419 P.3d 1 (2018). Affirmed.

Per Curiam: Last June we held the State had resolved nearly all of the issues in this long-running school finance appeal. Gannon v. State , 308 Kan. 372, 420 P.3d 477 (2018) ( Gannon VI ). We specifically concluded that through legislation enacted in 2017 and 2018, the State had met its burden of complying with the equity requirements of Article 6, § 6(b) of the Kansas Constitution (obligating the Legislature to "make suitable provision for finance of the educational interests of the state"). 308 Kan. at 373-74, 420 P.3d 477. We further held that the State had not met § 6(b)'s adequacy requirement, although we acknowledged the State had "expressed an intent to comply with the adequacy threshold discussed in Montoy v. State , 282 Kan. 9, 138 P.3d 755 (2006) ( Montoy IV )" through its self-styled "Montoy safe harbor" plan. 308 Kan. at 374, 420 P.3d 477. Specifically, we held the State needed to make timely financial adjustments in response to two inflation problems we identified to "satisfactorily address the remaining constitutional infirmities in adequacy appearing in its chosen plan and particularly in the implementation." 308 Kan. at 374, 420 P.3d 477. Because of the problems with adequacy we retained jurisdiction and stayed the issuance of our mandate more than one year-until June 30, 2019-or further order of the court. We reasoned this gave the State ample opportunity to make those financial adjustments and reach constitutional compliance. The State now claims to have done so through legislative passage of 2019 House Substitute for Senate Bill 16 (S.B. 16), which the Governor signed into law on April 6, 2019. We now hold that through S.B. 16's additional funding of its Montoy safe harbor plan, the State has substantially complied with our mandate from Gannon VI . And we retain jurisdiction to ensure continued compliance with that mandate. FACTUAL AND PROCEDURAL BACKGROUND 2006-2013: Post -Montoy IV This case has a long history-one that dates back at least as far as the conclusion of the last major school finance case, Montoy IV . The Montoy litigation ended on July 28, 2006, when we held the State had enacted legislation in substantial compliance with our orders. Montoy IV , 282 Kan. at 24-25, 138 P.3d 755. And we dismissed the case. Before the State fully implemented the financial solution we accepted in Montoy IV , however, it started making significant cuts to education funding in school year (SY) 2008-09 (fiscal year 2009). The plaintiffs filed this lawsuit in 2010 in response to those cuts. After a 16-day bench trial, a three-judge district court panel concluded the State had failed to provide suitable funding for K-12 public education in violation of Article 6 of the Kansas Constitution. The State appealed. 2014: Gannon I On March 7, 2014, we remanded for the three-judge panel to apply a refined test for education adequacy partially based on Rose v. Council for Better Educ., Inc. , 790 S.W.2d 186 (Ky. 1989), whose standards the Legislature essentially had codified in 2005. Gannon v. State , 298 Kan. 1107, 319 P.3d 1196 (2014) ( Gannon I ). 2015: Panel decision and CLASS On remand, the panel applied our refined test for adequacy and held the Legislature underfunded education between fiscal years (FY) 2009 and 2012. This decision led the 2015 Legislature to repeal its longstanding-and chief-vehicle for public school financing: the School District Finance and Quality Performance Act (SDFQPA). The Legislature replaced the SDFQPA with the Classroom Learning Assuring Student Success Act (CLASS). CLASS established block grants in place of the SDFQPA formula and froze funding levels for FY 2016 and FY 2017 at the FY 2015 level until CLASS was to expire on June 30, 2017. Upon review, the panel held CLASS also was unconstitutional. And the State again appealed to this court. 2016: Gannon II and III The next five months brought a series of legislative actions and this court's decisions solely on the issue of § 6(b)'s equity requirement. On February 11, 2016, we agreed with the panel that CLASS created constitutional equity violations. Gannon v. State , 303 Kan. 682, 368 P.3d 1024 (2016) ( Gannon II ). After later legislative action, we held on May 27, 2016, the inequities had not been cured. Gannon v. State , 304 Kan. 490, 372 P.3d 1181 (2016) ( Gannon III ). Less than one month later, the Legislature revived the structure of the SDFQPA. The parties filed a joint stipulation agreeing the State was now in compliance with the constitutional equity requirement. By order filed June 28, 2016, we held the Legislature had satisfied our orders in Gannon I , Gannon II , and Gannon III regarding equity for SY 2016-17. We retained jurisdiction of the case and all issues and provided the parties time to brief and argue the adequacy portion of the litigation yet to be decided. 2017: Gannon IV, Gannon V, and S.B. 19 On March 2, 2017, we addressed the adequacy issues in Gannon v. State , 305 Kan. 850, 390 P.3d 461 (2017) ( Gannon IV ). There, we held the school finance system was constitutionally inadequate in both structure and implementation. In particular, the State had failed to show that the finance system was reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose , 790 S.W.2d 186. We gave the State until June 30, 2017, to provide adequate funding. Gannon IV , 305 Kan. at 919, 390 P.3d 461. The 2017 Legislature responded to the adequacy structural violation by passing 2017 Senate Bill 19 (S.B. 19), which enacted the Kansas School Equity and Enhancement Act (KSEEA). It essentially provides a base aid formula for distributing education funds in the same way the SDFQPA had done. S.B. 19 also added $317 million over two years-FY 2018 and FY 2019. On October 2, 2017, we examined S.B. 19 in Gannon v. State , 306 Kan. 1170, 402 P.3d 513 (2017) ( Gannon V ), and rejected plaintiffs' claims that failure to fund three statutory requirements rendered S.B. 19's structure unconstitutional. Of significance to the issues now before us, although millions of dollars had been added, we also held the State had failed to meet its burden to satisfactorily demonstrate S.B. 19 was reasonably calculated to address the inadequate implementation of funding. And S.B. 19 created four equity violations. 306 Kan. at 1212-13, 402 P.3d 513. We stayed issuance of the mandate-allowing S.B. 19 to take effect-until June 30, 2018, giving the State sufficient time to provide adequate funding and cure the inequities. 306 Kan. at 1239, 402 P.3d 513. The KSEEA temporarily became law and is now codified at K.S.A. 72-5131 et seq. 2018: S.B. 423, S.B. 61, and Gannon VI In response to the funding shortfall identified in Gannon V , the 2018 Legislature passed 2018 Substitute for Senate Bill 423 (S.B. 423) and 2018 House Substitute for Senate Bill 61 (S.B. 61). These bills amended the provisions of S.B. 19 enacted in 2017. Among other things, they scheduled adding $522 million over a five-year period-SY 2018-19 to SY 2022-23. Together with S.B. 19's funds, the Legislature was projected to add approximately $854 million over a six-year period. Based on the recent passage of S.B. 423 and S.B. 61, the State filed a notice of cure, which we reviewed on June 25, 2018, in Gannon VI . There, we held that under the present circumstances the State had corrected the Gannon V constitutional infirmities regarding equity and created no others. 308 Kan. at 374, 420 P.3d 477. As for adequacy, we observed the State had rejected the report and financial opinions of its expert witness and instead presented a financial remediation plan it called the Montoy safe harbor. 308 Kan. at 384-87, 420 P.3d 477. The State essentially contended: 1. because the three-judge panel ruled the State's K-12 education funding reached constitutional adequacy within several years after Montoy IV and before cuts began; and 2. because the panel's determination of adequacy was based upon the formula's funding increases after the decisions in Montoy v. State , 278 Kan. 769, 120 P.3d 306 (2005) ( Montoy II ), Montoy v. State , 279 Kan. 817, 112 P.3d 923 (2005) ( Montoy III ), and Montoy IV ; 3. then the State's return to the basic formula of that time-and its resultant funding (plus accounting for inflation)-should again produce a constitutionally adequate level of funding. See Gannon VI , 308 Kan. at 387, 420 P.3d 477. Through a series of calculations we analyzed in detail in Gannon VI , the State asserted that by adding $522.2 million to the K-12 school budget via S.B. 423 and S.B. 61 over five years, it would reach the Montoy safe harbor. 308 Kan. at 384-93, 420 P.3d 477. The increases included additional funding for base aid, special education, pre-kindergarten at-risk programs, ACT and WorkKey assessments, teacher mentoring, mental health and JAG-K pilot programs, transportation weighting, supplemental general state aid effects, authority for the local option budget, and KPERS. See 308 Kan. at 378, 380-82, 389, 420 P.3d 477 (discussing all of these types of additional funding). Thus, the State contended it had provided funding comparable in value to that existing before the cuts began less than three years after Montoy IV . We acknowledged the State had increased funding to try to remedy the substantial cuts. We held that while funding added by S.B. 61 and S.B. 423 came closer to resolving the adequacy issue, it did not succeed. Specifically, while the State considered the post-Montoy effects of inflation for SY 2010-11 to SY 2016-17 in its calculations to reach $522 million, it failed to do so for SY 2017-18 and SY 2018-19 in its multi-year plan. The State also failed to consider inflationary effects during the five-year payout: "The State has not met the adequacy requirement in Article 6 of the Kansas Constitution under its proposed remediation plan. But if the State chooses to make timely financial adjustments in response to the problems identified with the plan and its accompanying calculations and then completes that plan, the State can bring the K-12 public education financing system into constitutional compliance with the adequacy requirement. The two obvious problems appearing in its April 23 memo explaining its compliance plan and calculations are: "1. The failure to adjust two years of funding for inflation through the approaching 2018-19 school year. Satisfactory adjustments would result in a higher amount of principal, i.e., more than the $522 million the memo calculates as yet owed to the school districts; and "2. The failure to adjust for inflation until the memo's calculated principal sum ($522 million, plus the adjustment referenced above) is paid in full, e.g., approximately five years. Satisfactory adjustments would result in more than that principal figure being paid during that span. But we acknowledge the first year of payment-for SY 2018-19-need not be adjusted because that inflation has already been accounted for in paragraph 1 above." Gannon VI , 308 Kan. at 398-99, 420 P.3d 477. In addition to advising the State it could reach compliance by making timely financial adjustments in response to the two problems and then completing the plan, we also pointed out that the State needed to explain its treatment of virtual state aid in its calculations. Gannon VI , 308 Kan. at 399, 420 P.3d 477. Because of the problems with adequacy, we retained jurisdiction and again stayed the issuance of our mandate-until June 30, 2019-to once again give the State ample time to achieve constitutionality. The KSEEA-enacted in 2017 by S.B. 19-remained in temporary effect. And the S.B. 423 and S.B. 61 amendments went into temporary effect as well. 308 Kan. at 399-400, 420 P.3d 477. 2019: S.B. 16 Following our June 25, 2018 decision in Gannon VI , the 2019 Legislature passed S.B. 16 in an effort to cover inflation with additional funding and thus complete its safe harbor remediation plan. On April 6, 2019, Governor Kelly signed S.B. 16 into law. The State now submits its updated remediation plan for our review. ANALYSIS Issue: The State's timely financial adjustments make its Montoy safe harbor plan substantially compliant with Gannon VI's mandate to account for inflation. Given our decision in Gannon VI , we now have far fewer issues to resolve. They are whether (1) the State has met its burden to explain its treatment of virtual state aid in its funding calculations; and (2) S.B. 16 provides enough additional funding to account for the previously identified inflation problems and to reach substantial compliance with our Gannon VI mandate. The State asserts it has explained the virtual state aid issue and has reached its self-styled Montoy safe harbor-or has at least substantially complied with our mandate in Gannon VI . The plaintiffs ardently disagree. Standard of Review and Burden of Proof We set out our standard of review for constitutional adequacy in Gannon VI , and it is the same here: " ' "Whether through structure and implementation the K-12 system is reasonably calculated to have all public education students meet or exceed the Rose [v. Council for Better Educ., Inc. , 790 S.W.2d 186, 212 (Ky. 1989) ] standards presents a mixed question of fact and law. When an appellate court reviews these mixed questions, it applies a bifurcated standard of review. Insofar as any of the panel's factual findings are in dispute, the court applies a substantial competent evidence standard. 'Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion.' Gannon v. State , 298 Kan. 1107, 1175, 319 P.3d 1196 (2014) ( Gannon I ). " ' "In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it. Gannon I , 298 Kan. at 1175-76 [319 P.3d 1196] (citing Unruh v. Purina Mills , 289 Kan. 1185, 1195-96, 221 P.3d 1130 [2009] ). Accordingly, appellate courts do not reweigh the evidence or assess the credibility of witnesses. State v. Reiss , 299 Kan. 291, 296, 326 P.3d 367 (2014). " ' "The panel's conclusions of law based on those findings are subject to our unlimited review. 298 Kan. at 1176, 1182 [319 P.3d 1196]. The ultimate determination of whether the legislature is in compliance with Article 6, § 6(b) of the Kansas Constitution is a question of law. See State v. Laturner , 289 Kan. 727, 735, 218 P.3d 23 (2009) (constitutionality of statutes presents question of law over which Supreme Court exercises unlimited review)." Gannon IV , 305 Kan. at 880-81 [390 P.3d 461].' " Gannon VI , 308 Kan. at 382-83, 420 P.3d 477. The burden of proof remains with the State. As we have stated several times in the Gannon appeals: " 'As for the burden of proof, it remains with the State, as we stated in Gannon IV regarding the State's future efforts to replace CLASS that was due to expire on June 30, 2017: " ' "Once a new financing system is enacted, the State will have to satisfactorily demonstrate to this court by June 30, 2017, that its proposed remedy is reasonably calculated to address the constitutional violations identified, as well as comports with previously identified constitutional mandates such as equity. [Citation omitted.] " ' "For those purposes, the State will bear the burden of establishing such compliance and explaining its rationales for the choices made to achieve it. See Gannon II , 303 Kan. at 709 [368 P.3d 1024] (party asserting compliance with court decision ordering remedial action bears burden of establishing that compliance)." Gannon IV , 305 Kan. at 856 [390 P.3d 461]. .... " 'As further explained below, in addition to our again taking judicial notice of appropriate facts, we previously held that the panel's findings of fact were supported by substantial competent evidence. Gannon IV , 305 Kan. at 881 [390 P.3d 461].' " Gannon VI , 308 Kan. at 383, 420 P.3d 477. Montoy Safe Harbor In Gannon VI , we described in some detail the Montoy safe harbor proposed by the State. To highly summarize, the State reasoned that if it returned to the basic funding formula approved in Montoy IV for SY 2009-10 and provided the funding under that formula-including accounting for inflation-it would again reach a constitutionally adequate funding level. 308 Kan. at 386-87, 420 P.3d 477. In making this argument, the State relied heavily on an April 23, 2018 two-page memo from the Kansas Legislative Research Department (KLRD) to Legislative Counsel Curtis Tideman (April 23, 2018 memo) as the basis for the calculations underlying the State's Montoy safe harbor remediation plan. In the April 23, 2018 memo, the State used the formula, base aid amount, and weightings in place in SY 2009-10 (FY 2010) to calculate the total aid amount to the schools for that year: $3,108,690,821. It then adjusted that amount for inflation with yearly increases through SY 2016-17 for a total of $3,434,941,542. Then the State made several reductions. It subtracted state aid "already scheduled." This included virtual school state aid, state foundation (base) aid for SY 2017-18, and the scheduled increase for SY 2018-19 under S.B. 19. Through this computation, the State generated a "total target additional aid" of $522,244,721 in additional funding needed to approximate the same amount, i.e., the same value of funds in SY 2018-19 as the funding formula had provided for SY 2009-10. Virtual School State Aid In Gannon VI , we asked the State to clarify how virtual state aid fit into the calculations from the April 23, 2018 memo: "As for the memo's treatment of virtual school state aid, the State needs to explain whether it included that aid in the first step of its analysis when it generated the initial total aid amount of $3,108,690,821 [for FY 2010]. Because if not, we are unable to conceive of a rationale for the State later deducting it to calculate the total target additional aid of $522,244,721." Gannon VI , 308 Kan. at 399, 420 P.3d 477. In response, the State cites to a March 27, 2019 memo from the KLRD. That memo explains that virtual state aid operated within the funding formula before 2015 and so would have been included as a weighting within the formula during SY 2009-10. After enactment in 2008, the Virtual School Act was codified at K.S.A. 2008 Supp. 72-3711 through 72-3716 by 2008 Senate Bill 669 (S.B. 669). The Act was repealed in 2015 when the Legislature replaced SDFQPA with the block grant system in CLASS in 2015 Senate Bill 7 (S.B. 7). S.B. 7 eliminated the virtual school weighting and replaced it with virtual school state aid as categorical aid outside of the formula. The State explains that because the initial total aid amount of $3,108,690,821 was based on the formula as it existed in SY 2009-10, virtual school state aid was included as a weighting within the formula at that time. According to the State, it therefore was included in the first step of the analysis generating the "target aid amount" for the remediation plan of $522.2 million shown in the memo. Without any specific analysis, the plaintiffs contend the State has failed to justify reducing the total amount necessary to fund inflation by the amount of virtual state aid. We accept the State's explanation. We hold it has met its burden to show that virtual state aid was included in the formula in SY 2009-10 (and thus for the purposes of the April 23, 2018 memo) even though it is no longer contained in the formula. Compare K.S.A. 2010 Supp. 72-3715(d)(2)(A) ("Multiply the full-time equivalent enrollment of the virtual school by an amount equal to 105% of the amount of the base state aid per pupil.") with K.S.A. 72-3715(d) (generally providing $5,000 per FTE in the virtual school). Inflation and Our Mandate from Gannon VI After careful analysis, we accepted the State's Montoy safe harbor approach in Gannon VI and found its accompanying funding could be constitutionally adequate if the State made sufficient adjustments for inflation. To the extent plaintiffs are asking us to reexamine the viability of this safe harbor model itself, we will not do so. Instead, we will focus on the specific inflationary problems we identified. In reviewing the parties' present arguments on inflation, we return to the language of our mandate in Gannon VI . There, we identified the two obvious problems appearing in the State's April 23, 2018 memo explaining the State's compliance plan and calculations. 308 Kan. at 390, 420 P.3d 477. But we did not prescribe a particular method for how to make satisfactory adjustments for inflation. Nor did we identify a specific amount of corrective funding needed. Rather, we left it to the State to determine how to account for inflation in compliance with our mandate, subject to our further review. As we said in Gannon I : "[O]ur Kansas Constitution clearly leaves to the legislature the myriad of choices available to perform its constitutional duty; but when the question becomes whether the legislature has actually performed its duty, that most basic question is left to the courts to answer under our system of checks and balances." 298 Kan. at 1151, 319 P.3d 1196. That said, we also acknowledge compliance sometimes can be achieved without strict adherence to a particular plan. See Gannon I , 298 Kan. at 1170, 319 P.3d 1196 ("For example, even if a legislature had not considered actual costs, a constitutionally adequate education nevertheless could have been provided-albeit perhaps accidentally or for worthy non-cost-based reasons." [Emphasis added.] ). As mentioned, the first problem with the State's plan as enacted in 2018 arose because its April 23, 2018 memo only calculated inflation through FY 2017. The State failed "to adjust two years of funding for inflation through the approaching 2018-19 school year [FY 2019]." We stated that "[s]atisfactory adjustments would result in a higher amount of principal, i.e., more than the $522 million the memo calculates as yet owed to the school districts." Gannon VI , 308 Kan. at 399, 420 P.3d 477. As presented by both parties, if the State had continued the calculations from the April 23, 2018 memo, the missing inflation amount on the total aid for SY 2017-18 would be $49,463,158 and for SY 2018-19 would be $50,175,428 for a combined total of $99,638,586. By adding this total to the $522.2 million already outlined and accepted in Gannon VI , the total principal amount of the State's Montoy safe harbor compliance plan becomes approximately $621.9 million. As to the State's second problem, the State opted to spread its remediation plan payments over five years-but failed to adjust for inflation over that timeframe. Specifically, we held the State failed "to adjust for inflation until the memo's calculated principal sum ($522 million, plus the adjustment referenced above) is paid in full, e.g., approximately five years." We determined "[s]atisfactory adjustments would result in more than that principal figure being paid during that span." Gannon VI , 308 Kan. at 399, 420 P.3d 477. The amount of funding actually provided by the State to make adjustments addressing both problems is found in S.B. 16 as discussed below. Additional Funding Provided by S.B. 16 To place in context the funding added by S.B. 16 in 2019, we first review the base aid amount increased by the Legislature in its 2017 and 2018 sessions. In 2017, the Legislature enacted S.B. 19, which set the base aid per pupil for SY 2017-18 at $4,006 and for SY 2018-19 at $4,128. The Legislature determined that after SY 2018-19, the base aid simply would increase by an average of the consumer price index (CPI) for the Midwest region for the preceding three school years. S.B. 19 (2017). In 2018-through S.B. 61-the Legislature again increased base aid amounts to try to help bring school funding up to adequate levels under its Montoy safe harbor plan. In a departure from S.B. 19's method, the Legislature increased the base aid by specific amounts every year for a five-year remedial period, i.e., ending in SY 2022-23. Later years would have annual base aid general increases based on a particular CPI. S.B. 61 provides: " 'Base aid for student excellence' or 'BASE aid' means an amount appropriated by the legislature in a fiscal year for the designated year. The amount of BASE aid shall be as follows: (1) For school year 2018-2019, $4,165 [increase of $37 from 2017 S.B. 19's $4,128 ]; (2) for school year 2019-2020, $4,302; (3) for school year 2020-2021, $4,439; (4) for school year 2021-2022, $4,576; (5) for school year 2022-2023, $4,713; and (6) for school year 2023-2024, and each school year thereafter, the BASE aid shall be the BASE aid amount for the immediately preceding school year plus an amount equal to the average percentage increase in the consumer price index for all urban consumers in the midwest region as published by the bureau of labor statistics of the United States department of labor during the three immediately preceding school years rounded to the nearest whole dollar amount." (Emphasis added.) K.S.A. 72-5132(e). In 2019-through S.B. 16-the Legislature tried to account for the inflation problems we identified in Gannon VI . It made the adjustment by increasing the specific base aid figure for each of the remaining four years of the remediation plan-SY 2019-20 through SY 2022-23. Later years' annual inflation adjustments were general, again following a particular CPI. S.B. 16 provides: " 'Base aid for student excellence' or 'BASE aid' means an amount appropriated by the legislature in a fiscal year for the designated year. The amount of BASE aid shall be as follows: (1) For school year 2018-2019, $4,165; (2) for school year 2019-2020, $4,302 $4,436 [increase of $134 from 2018's S.B. 61 amount ]; (3) for school year 2020-2021, $4,439 $4,569 [increase of $130 from S.B. 61]; (4) for school year 2021-2022, $4,576 $4,706 [increase of $130 from S.B. 61]; (5) for school year 2022-2023, $4,713 $4,846 [increase of $133 from S.B. 61]; and (6) for school year 2023-2024, and each school year thereafter, the BASE aid shall be the BASE aid amount for the immediately preceding school year plus an amount equal to the average percentage increase in the consumer price index for all urban consumers in the midwest region as published by the bureau of labor statistics of the United States department of labor during the three immediately preceding school years rounded to the nearest whole dollar amount." (Emphasis added.) When the increased annual base aid figure is multiplied by the estimated total adjusted enrollment for that year, millions of additional dollars are produced. See Gannon I , 298 Kan. at 1112, 319 P.3d 1196 (describing application of SDFQPA's similar formula). For SY 2019-20, the State calculates the planned increase of $134 in base aid would produce approximately an additional $90 million. ($134 x 691,025 adjusted enrollment). Given similar annual base aid increases in each of the remaining three years of the State's plan-$130 for SY 2020-21, $130 for SY 2021-22, and $133 for SY 2022-23-they would each produce approximately $90 million more than the increases S.B. 61 provided for the same years. The State argues these annual increases address the inflation concerns expressed in Gannon VI and bring funding well within its self-styled Montoy safe harbor. This basic approach was crafted by the state's deputy commissioner of education. The approach, or slight variations of it, was relied upon by the Kansas State Department of Education, the Kansas State Board of Education, the Legislature, and the Governor. The plaintiffs agree that the $363 million is the amount necessary to provide for inflation and that S.B. 16 is scheduled to provide it. But they argue S.B. 16 fails to actually provide $363 million in "new money" needed to reach the Montoy safe harbor. See Gannon VI , 308 Kan. at 378, 420 P.3d 477 (The State defines new money as only "the first time a new dollar enters the funding system."). Plaintiffs particularly contend the State simply adds the "same" $90 million each year for four years to total $363 million. So they agree the State has adequately funded education with $90 million in new money for the upcoming 2019-20 school year-the first year of the remediation plan-but they disagree it has increased education funding with new money for the remaining three years. Rather than reviewing the arguments about whether the Legislature carefully followed the deputy commissioner's plan or successfully reached the same figure that he ultimately calculated, we instead consider the fidelity of S.B. 16 to our charge in Gannon VI, 308 Kan. at 374, 420 P.3d 477 (State must consider effects of inflation for SY 2017-18 and SY 2018-19 in its calculations to reach new principal beyond $522 million and consider inflationary effects during the five-year period over which it wants to pay out re-calculated new principal). So under the present charge, labeling remedial money as new, old, or otherwise is of no import. Instead, the question remains: whether with these funding adjustments to the safe harbor plan, the State has substantially complied with our Gannon VI mandate. More specifically, has it protected the total money (both old and new) that we identified in Gannon VI from being devalued by inflation? We address that question below. Compliance The State has the burden to satisfactorily demonstrate that its proposed remedy is reasonably calculated to address the constitutional violations identified and comports with previously identified constitutional mandates. And the State has the burden of establishing such compliance and explaining its rationales for the choices made to achieve it. See Gannon VI , 308 Kan. at 383, 420 P.3d 477. As to whether the State has met its burden, we look now for guidance in Montoy IV . See 282 Kan. at 19, 138 P.3d 755 (The "sole issue now before this court is whether the legislation ... compl[ies] with the previous orders of this court."). In Montoy IV , we observed the funding of public education is extraordinarily complex and at that point the Legislature's efforts in 2005 and 2006 had resulted in at least an additional $755.6 million in education funding. We concluded the State had complied with our orders. We affirmed the judgment of the district court and reversed in part, lifted the stays imposed at the time, dismissed the appeal, and remanded to the district court with directions to dismiss the pending case. 282 Kan. at 24-27, 138 P.3d 755. As we previously described Montoy IV : "[W]e held that the projected funds would 'substantially' comply with the level established in those studies, i.e., an amount reasonably close to the funds necessary for schools to meet the legislature's own standards for an adequate education." Montoy v. State , 282 Kan. 9, 21-22, 138 P.3d 755 (2006) ( Montoy IV )." (Emphasis added.) Gannon I , 298 Kan. at 1162-63, 319 P.3d 1196. Here, in assessing substantial compliance with our orders, we consider the inexact nature of accounting for years of future inflation on millions of dollars. While the Kansas State Department of Education, the Legislature, and the Governor have provided us with their best figures, the numbers remain good faith estimates . Other variables add to the imprecision inherent to this question, e.g., projections for the size of the actual student population in Kansas for each year and the number of those students subject to weighting factors. See Gannon I , 298 Kan. at 1112, 319 P.3d 1196 (aid includes adjusting a district's full-time equivalent enrollment by adding various weightings based on the recognition that the needs of some students require more resources than others); see also K.S.A. 72-5132(a) (identifying the weightings); Gannon V , 306 Kan. at 1203, 402 P.3d 513 (describing effect of solely applying at-risk weighting factor). These calculations are in sharp contrast to those where actual inflation was already known: the ones the State performed in Gannon VI for past years SY 2010-11 to SY 2016-17 and those we ordered performed for SY 2017-18 and the recently completed SY 2018-19. With that imprecision in mind, we hold the version of KSEEA in place with the adoption of S.B. 16 substantially complies with our orders expressed in Gannon VI , 308 Kan. at 374, 420 P.3d 477. S.B. 16 schedules annual increases to base aid figures over those increases contained in 2018's S.B. 61. Its planned addition of approximately $90 million per year for four years would cover the $100 million increase in principal-due to past and present inflation-from approximately $522 million to about $622 million. And by employing estimates and projections now available, it also protects against the devaluing effects of future inflation on the $622 million. At the end of those four years, that protection for the base aid is provided through indexing to a CPI standard. The legislative record establishes the sole reason for these increases was to provide for inflation as required by our order in Gannon VI . While the plaintiffs submit an alternative calculation, the adequacy test "rejects any litmus test that relies on specific funding levels to reach constitutional compliance." Gannon IV , 305 Kan. at 917, 390 P.3d 461. And we did not order specific levels or even prescribe a particular method for how to calculate any levels. We Retain Jurisdiction In Gannon VI , we stayed issuance of the mandate until June 30, 2019, or until further order of the court. The KSEEA, S.B. 423, and S.B. 61 then were allowed to go into temporary effect. 308 Kan. at 374-75, 420 P.3d 477. Maintaining its position that it certainly has at least achieved substantial compliance with our order, the State urges us to dismiss this case. The State can point to its compliance with some of our prior decisions in school finance. See, e.g., Gannon VI , 308 Kan. at 398, 420 P.3d 477 (compliance regarding equity issues); Gannon V , 306 Kan. at 1238, 402 P.3d 513 (compliance regarding equity issue); Gannon III , 304 Kan. at 503, 372 P.3d 1181 (compliance regarding capital outlay); Gannon v. State , No. 113,267 (order dated June 28, 2016) (legislative response cured the constitutional inequities identified in Gannon II and Gannon III for SY 2016-17); Montoy IV , 282 Kan. at 26-27, 138 P.3d 755 (substantial compliance with court order); U.S.D. No. 229 v. State, 256 Kan. 232, 275, 885 P.2d 1170 (1994) (concluding SDFQPA is constitutionally permissible legislation). In response, the plaintiffs ask that we retain jurisdiction until all planned funding has been phased in successfully. As support, they specifically cite a legislative attempt to reclaim educational funds this session and the State's reversal of course after Montoy IV was concluded but before the (full) funding approved there was phased in. They also can point to the State's long-term failure to adequately fund education. See Gannon V , 306 Kan. at 1236, 402 P.3d 513 ("Including today's decision, by our count inadequacy has been judicially declared to exist from school years 2002-2003 through 2018-2019, with the possible exception of three years of 'substantial compliance' for 'interim purposes.' "). While we do conclude S.B. 16's financial adjustments to the safe harbor plan bring the State into substantial compliance with our Gannon VI mandate, we retain jurisdiction to ensure continued implementation of the scheduled funding. As we previously stated: "[T]he judiciary clearly has the power to review a law and potentially declare it unconstitutional. But this power is not limited solely to review. It also includes the inherent power to enforce our holdings. [Citations omitted.] Without the inherent power to impose remedies and otherwise enforce our holdings, our power to review would be virtually meaningless. See Kjellander v. Kjellander , 90 Kan. 112, 114, 132 P. 1170 (1913) ('The appellate jurisdiction conferred carries with it, by implication, the power to protect that jurisdiction and to make the decisions of the court thereunder effective.')." Gannon II , 303 Kan. at 737-38, 368 P.3d 1024. See also C. K. & W. Rld. Co. v. Comm'rs of Chase Co. , 42 Kan. 223, 225, 21 P. 1071 (1889) ("Inherently the supreme court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments."). Beier and Stegall, JJ., not participating. Michael J. Malone and David L. Stutzman, Senior Judges, assigned. REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,267 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616, and Senior Judge Stutzman was appointed to hear the same case vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

Per Curiam: Mother appeals the district court's termination of her parental rights as to her children, L.K. and K.K. She contends the evidence presented at trial was insufficient to support the district court's finding that she was an unfit parent. Upon our review we find no error in the district court's judgment terminating Mother's parental rights. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Mother is the natural mother of L.K., born in 2002, and K.K., born in 2004. Father is the natural father of L.K. and K.K., however, he did not appeal the termination of his parental rights. As a result, this appeal only relates to the termination of Mother's parental rights. L.K. and K.K. were initially placed in the custody of the Department of Children and Families (DCF) on January 29, 2013. On January 23, 2013, K.K. found Mother on the kitchen floor, unconscious and bleeding from self-inflicted cuts to both wrists. The police were notified. Mother claimed that her actions were the result of excessive drinking and not mental health issues. She did acknowledge, however, having a history of depression and that she was a recovering "cutter." A temporary custody hearing was held in January 2013 in Douglas County District Court. At the conclusion of the hearing, L.K. and K.K. were ordered to remain in DCF custody and placed in foster care. A case plan was prepared with the goal of reintegrating Mother with L.K. and K.K. In the case plan, Mother was assigned specific tasks primarily designed to address her serious substance abuse and mental health issues. Those tasks included individual and family therapy, psychological and parenting evaluations, random drug and alcohol testing, and visits with social workers. The children were adjudicated to be children in need of care (CINC) at a hearing in February 2014. The goal of the case plan continued to be reintegration until a permanency hearing was held in October 2014. At that hearing, the district court found that Mother had failed to make adequate progress on her case plan goals. Specifically, the district court found that Mother was consuming alcohol again, had failed to sufficiently attend individual therapy to address her serious mental health issues, had unstable housing, and continued having relationship problems with her boyfriend, J.D.H. As a result, the district court revised the goal of the case plan from reintegration to adoption, noting that L.K. and K.K. "have been out of the home almost two years without significant progress" made by Mother. In November 2014, the State filed a motion to terminate Mother's parental rights. In support of the motion, the State highlighted the number of incidents where Mother was drunk, her inconsistent participation in individual therapy, her volatile relationship with J.D.H., and unstable living situation. A trial on the State's motion to terminate parental rights was set for July 2015. In June 2015, however, the State filed a motion to continue the termination hearing because Mother had made significant progress during the preceding months. This suggested that "reintegration may still be a viable option." The catalyst for that progress, which included Mother's increased stability and willingness to complete case plan tasks, was the placement of L.K. and K.K. with their older sister, A.J., and her partner, D.H. In fact, Mother made so much progress in the summer and fall of 2015 that reintegration was recommended and approved in December 2015. Under the latest plan, L.K. and K.K. were permitted to reside with Mother provided they all continued living in the home of A.J. and D.H. The expectation was that parenting responsibilities would be shared between Mother, A.J., and D.H., and "[t]hree individuals were going to be able to contribute to the stability of housing and the financial stability, as well." Upon reintegration, Amber Seater, an aftercare therapist, was assigned to work with the family. Seater was tasked with establishing a case plan for the family to complete. That case plan required Mother to undergo individual therapy and mental health treatment regarding her previously diagnosed borderline personality disorder, a chronic condition that causes Mother's functionality to fluctuate due to current and past trauma as well as the stresses of everyday life. Shortly after reintegration, Seater reported numerous instances wherein she had difficulty making contact with Mother. Mother was unprepared for many of Seater's visits and admitted to forgetting about them on many occasions. In addition, after the reintegration, L.K. began "acting out," both at home and at school. Much of this, Mother acknowledged, was a result of her failure to discipline L.K. In particular, Mother allowed L.K. to stay up all night playing video games and then did not wake him up to attend school in the mornings. Importantly, Mother also initially refused to take L.K. to his individual therapy appointments and consistently refused to allow L.K. to take medication, despite the recommendations of many therapists. Partly due to conflicts over L.K., in March 2016, Mother and her children moved back to J.D.H.'s home. Notably, Mother did not have permission from DCF to move back in with J.D.H. Instead, Mother informed DCF of the move as it occurred. Despite the unauthorized move, DCF assisted in the transfer of L.K. and K.K. to a new school district, and the arrangement of new aftercare services. The family's reintegration faltered under the latest living arrangement. Mother delayed scheduling therapy appointments for L.K. and eventually stopped communicating with the therapist. L.K. and K.K. were also repeatedly left alone together in violation of the agreed upon safety plan. Additionally, Mother continued to refuse to engage in individual therapy to address her borderline personality disorder. Five months after reintegration with Mother, DCF removed the children from Mother's care, citing L.K.'s significant behavioral issues and the total lack of cooperation from Mother. Six months later, in September 2016, the State renewed its motion to terminate parental rights. In May 2017, a three-day trial on the motion to terminate parental rights was held. At the conclusion of the trial, the district court filed a very thorough written order which detailed its factual findings and conclusions of law. The district court found Mother to be unfit and terminated her parental rights. In particular, the district court noted that Mother was presumed unfit under K.S.A. 2016 Supp. 38-2271(a)(6) because the children had been in out of home placement for two years or longer. The district court held that Mother did not meet her burden to rebut this presumption. As discussed in the analysis section of this opinion, the district court also relied on three statutory factors to determine Mother's parental unfitness. Additionally, the district court concluded that Mother's conduct or condition was unlikely to change in the foreseeable future and that it was in the best interests of the children to terminate Mother's parental rights. Mother timely appeals. ANALYSIS On appeal, Mother raises one issue: "The evidence presented was insufficient to support the court's finding of unfitness as to appellant mother." The State counters by arguing that the district court's ruling was properly supported by clear and convincing evidence that Mother's conduct or condition rendered her unfit, and it was unlikely to change in the foreseeable future. The State also argues that the district court properly considered the children's best interests when it terminated Mother's parental rights. We begin the analysis with a brief summary of the standards of review to be applied by district courts and appellate courts in these matters. Before terminating parental rights, the district court must find that the State proved by clear and convincing evidence that the parent is unfit and the conduct or condition which renders the parent unfit is unlikely to change in the foreseeable future. K.S.A. 2017 Supp. 38-2269(a). The district court must also find, by a preponderance of evidence, that termination of parental rights is in the best interests of the child. K.S.A. 2017 Supp. 38-2269 (g)(1). In reviewing a district court's decision terminating parental rights, an appellate court must consider "whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e. , by clear and convincing evidence, that [the parent's rights should be terminated]." In re B.D.-Y. , 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and convincing evidence is an "intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt." 286 Kan. at 691. Appellate courts do not reweigh the evidence, judge the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. Parental Unfitness A district court evaluates whether a parent is unfit by considering a nonexclusive list of factors set forth in K.S.A. 2017 Supp. 38-2269(b) and (c). Any one of the factors standing alone may-but does not necessarily-provide sufficient grounds for termination of parental rights. K.S.A. 2017 Supp. 38-2269(f). In this case, the district court noted that Mother was presumed to be unfit under K.S.A. 2016 Supp. 38-2271(a)(6) because the children had been in out of home placement for two years or longer. The district court held that Mother did not meet her burden to rebut this presumption. On appeal, Mother does not contest the applicability of this presumption or argue that she rebutted it. An issue not briefed by an appellant is deemed waived or abandoned. Superior Boiler Works, Inc. v. Kimball , 292 Kan. 885, 889, 259 P.3d 676 (2011). Instead, Mother challenges the sufficiency of evidence related to the following three statutory factors cited by the district court in support of its legal conclusion that Mother was unfit: 1. Mother physically, mentally, and emotionally neglected the children. K.S.A. 2017 Supp. 38-2269(b)(4) ; 2. Mother demonstrated a lack of effort to adjust her individual circumstances, conduct, or conditions to meet the needs of the children. K.S.A. 2017 Supp. 38-2269(b)(8) ; and 3. Mother failed to carry out a reasonable case plan approved by the court directed toward the integration of the children back into her home. K.S.A. 2017 Supp. 38-2269(c)(3). We will consider whether the district court's findings on one or more of these three factors are supported by clear and convincing evidence. 1. Mother physically, mentally, and emotionally neglected the children. L.K. and K.K. were initially taken into DCF custody and placed in foster care after Mother was found by L.K. unconscious and bleeding from self-inflicted cuts to her wrists. At the time, Mother acknowledged abusing alcohol with a history of depression and suicidal tendencies. More than two years later, the children were reintegrated with Mother while living with their older sister and her partner. Even with this added support, however, Mother was still unable to provide the proper level of parental care. She failed to assure that L.K. had sufficient sleep and regularly attended school. Mother also failed to discipline or control L.K.'s behavior when he began to act out both at school and at home. Moreover, Mother demonstrated a reluctance to afford L.K. with therapy to address his behavioral problems or to allow him to take medication as recommended by many therapists. L.K.'s behavioral issues quickly resulted in a conflict between Mother and A.J. Instead of resolving the issues relating to lack of discipline, however, Mother opted to remove the children from A.J.'s home and take them back to the residence of her longtime boyfriend, J.D.H. Not only was this in violation of the reintegration plan, but it also required L.K. and K.K. to change schools and relocate their aftercare services. Shortly after this latest move, the children were again taken into DCF custody, primarily because of L.K.'s significant behavioral issues and Mother's apparent inability to handle them. Even after losing custody of her children for a second time, Mother continued to demonstrate an inability to provide them with physical and emotional care. This was most clearly demonstrated during visitations when Mother insisted on discussing the case with the children despite repeated warnings to avoid these discussions. As a direct result of her actions, Mother's visits with the children were changed from monitored to fully supervised. 2. Mother demonstrated a lack of effort to adjust her individual circumstances, conduct, or conditions to meet the needs of the children. Mother was diagnosed with post-traumatic stress disorder and borderline personality disorder. In light of those mental health concerns, all of the case plans emphasized treatment, including individual therapy for Mother. The individual therapy was particularly important because Mother's borderline personality disorder ordinarily requires extensive and continuous therapy to treat and manage the condition. Despite receiving numerous reminders that she must undergo individual therapy in order to reintegrate with her children, Mother refused the requests. Significantly, during the almost five years the children were in DCF custody, Mother only attended seven individual therapy sessions. Although on appeal she claims the refusals were the result of her inability to find an appropriate therapist, the record shows that Mother said on numerous occasions that she was unwilling to engage in individual therapy because it was ineffective and of no benefit to her. Mother also failed to provide the children with a stable living situation. She continued to pursue her relationship with J.D.H. while not addressing the longstanding problems inherent in that relationship. For example, Mother and J.D.H. never participated in couple's counseling as recommended. Mother then placed the children in that unstable environment when they moved in with J.D.H. That residential move required the children to change schools and otherwise adjust, once again, to a new living environment. Within a few months of this move, the children were placed once again in DCF custody. One reason for this change was L.K.'s defiant and verbally aggressive behavior in school and in the home. K.K. confided to a therapist that she did not feel safe in the home because she did not believe that L.K.'s behavior was controllable by adults. Still, after losing custody of her children for a second time, Mother continued to be uncooperative towards professionals who were attempting to help her and the children. Of note, Mother refused to even meet with DCF workers in the months preceding the termination hearing. 3. Mother failed to carry out a reasonable case plan approved by the court directed toward the integration of the children back into her home. In addition to constituting a failure to adjust her individual circumstances, conduct, or conditions to meet the needs of the children, Mother's failure to engage in individual therapy also constituted a failure to carry out a reasonable case plan directed towards reintegration. Significantly, as of July 2016 Mother was not taking medication or attending individual therapy. Moreover, Mother testified that she would not take the medication if it was prescribed. Because individual therapy was a prerequisite for family therapy, Mother's failure to participate in individual therapy prevented her from completing family therapy, another important aspect of her case plan that was imperative for reintegration. Upon our review of all the evidence in support of the statutory factors discussed earlier, viewed in the light most favorable to the State, we are convinced that a rational fact-finder could have found it highly probable, i.e., by clear and convincing evidence, that Mother's parental rights should be terminated because she was unfit as a parent. See In re B.D.-Y. , 286 Kan. at 705. Conduct or Condition Unlikely to Change in the Foreseeable Future Although not specifically raised on appeal by Mother, we next consider whether there is clear and convincing evidence to support the district court's finding that the conduct or condition which rendered Mother unfit is unlikely to change in the foreseeable future. A court may predict a parent's future unfitness based on his or her past history. In re Price , 7 Kan. App. 2d 477, 483, 644 P.2d 467 (1982). Moreover, "[a] parent's actions, not intentions, are the measure to be used in determining likelihood of change in the foreseeable future." In re M.H. , No. 117,127, 2017 WL 5951684, at *4 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 987 (2018). In this regard, it is important to emphasize that children experience the passage of time differently than adults. K.S.A. 2017 Supp. 38-2201(b)(4). The test is not whether Mother was making positive steps towards accomplishing the goals set forth in her case plans, but whether she has the ability to actually accomplish-in the foreseeable future-the tasks necessary for reunification. In this case, the district court found the conduct or condition that led to a finding of unfitness was "not likely to change in the foreseeable future." In particular, the district court determined: "The Mother's emotional illness, mental illness or mental deficiency, is of such duration or nature as to render her unable to care for the ongoing physical, mental and emotional needs of the children." In this regard, the district court noted: "Mother's mental illness is one of the primary reasons why [the] Children were taken into DCF custody and Mother has failed to comply with court orders and case plan[ ] tasks requiring her to participate in individual therapy." The district court also observed that the "reasonable efforts of DCF, KVC, and other community agencies have failed to rehabilitate the family." Additionally, the district court expressed concern regarding the lengthy period of time the children were in out of home placements. L.K. was 12 years old and K.K. was 10 years old when they were removed from Mother's care in January 2013. They have, therefore, spent about one third of their lives living in out-of-home placements, and in that time Mother demonstrated little willingness to change her conduct or circumstances. Although Mother, at times, made some progress in dealing with her issues, the evidence revealed that Mother could not make the necessary life changes to properly care for her children. Upon our review, we conclude there exists clear and convincing evidence in the record to support the district court's finding that the conduct or condition which rendered Mother unfit is unlikely to change in the foreseeable future. Best Interests of the Children Finally, for the sake of completeness, we next consider whether there is a preponderance of the evidence to support the district court's finding that termination of parental rights is in L.K. and K.K.'s best interests. K.S.A. 2017 Supp. 38-2269(g)(1) ; In re R.S. , 50 Kan. App. 2d 1105, 1115-16, 336 P.3d 903 (2014). In making this determination, the district court gives primary consideration to the physical, mental, and emotional needs of the children. K.S.A. 2017 Supp. 38-2269(g)(1). As we have stated: "[T]he court must weigh the benefits of permanency for the children without the presence of their parent against the continued presence of the parent and the attendant issues created for the children's lives. In making such a determination, we believe the court must consider the nature and strength of the relationships between children and parent and the trauma that may be caused to the children by termination, weighing these considerations against a further delay in permanency for the children." In re K.R. , 43 Kan. App. 2d 891, 904, 233 P.3d 746 (2010). We review a district court's decision regarding the best interests of children for an abuse of discretion. In re R.S. , 50 Kan. App. 2d at 1116. An abuse of discretion occurs when no reasonable person would agree with the district court or if the court bases its decision on an error of fact or law. 50 Kan. App. 2d 1105, Syl. ¶ 2. In this case, the district court found that it was in the children's best interests to terminate Mother's parental rights because the "[c]hildren's physical, mental, and emotional health would be best served by termination of parental rights." Mother fails to specifically refute this finding, and the record is replete with examples of how Mother's actions and inactions have resulted in significant problems for both L.K. and K.K. Mother has failed to show the district court abused its discretion by finding it was in the best interests of L.K. and K.K. to terminate her parental rights. It is an understatement to observe, as the district court did in its order, that L.K. and K.K. needed "a stable environment in which to thrive." We conclude a reasonable person could agree with the district court that it was in L.K. and K.K.'s best interests to terminate Mother's parental rights. Affirmed.

Per Curiam: Mother appeals the termination of her parental rights to her three children. She argues there was insufficient clear and convincing evidence to support termination of her parental rights or that it was in the best interest of the children to terminate her parental rights. After reviewing the entire record, we disagree and affirm the district court. The district court may terminate a parent's rights when the State as the party seeking to terminate those rights has shown (1) the parent is unfit and will likely remain so for the foreseeable future and (2) it is in the best interests of the child to terminate the parent's rights. See K.S.A. 2017 Supp. 38-2269(a), (g)(1). Further, a parent's rights may be terminated only when the evidence supporting termination is especially strong; under the statute, the evidence must be "clear and convincing." K.S.A. 2017 Supp. 38-2269(a). To be clear and convincing, the facts must be highly probable. In re B.D.-Y. , 286 Kan. 686, 705, 187 P.3d 594 (2008) ; In re D.H. , 54 Kan. App. 2d 486, 489, 401 P.3d 163, rev. denied 307 Kan. 987 (2017). We review a district court's decision to terminate a parent's rights by asking whether a rational fact-finder could have found it highly probable the parent's rights should be terminated. In re M.H. , 50 Kan. App. 2d 1162, 1170, 337 P.3d 711 (2014). Because the district court-which is charged with finding the facts-terminated Mother's parental rights, we will review the evidence in the light most favorable to that determination. 50 Kan. App. 2d at 1170 ; In re K.W. , 45 Kan. App. 2d 353, Syl. ¶ 1, 246 P.3d 1021 (2011). Further, in reviewing the district court's decision, we may not reweigh the evidence, judge the credibility of witnesses, or redetermine factual questions. In re B.D.Y. , 286 Kan. at 705 ; In re M.H. , 50 Kan. App. 2d at 1170. The district court may base its finding of unfitness on one of several bases outlined by the Legislature. See K.S.A. 2017 Supp. 38-2269(a) - (c). If supported by clear and convincing evidence, a single statutory basis for unfitness can support terminating a parent's rights, though courts should consider all applicable factors. K.S.A. 2017 Supp. 38-2269(f) ; In re M.H. , 50 Kan. App. 2d at 1170. Here, the district court relied on four statutory factors: First, Mother had shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children's needs, K.S.A. 2017 Supp. 38-2269(b)(8) ; next, Mother's conduct was mentally and emotionally abusive for the children to witness, K.S.A. 2017 Supp. 38-2269(b)(2) and (4) ; and finally, reasonable efforts by public and private agencies to get the family back together had failed, K.S.A. 2017 Supp. 38-2269(b)(7). The record includes clear and convincing evidence to support the district court's finding Mother had shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children's needs. See K.S.A. 2017 Supp. 38-2269(b)(8). Mother failed to shield the children from Father's abusive behavior, a fact Mother acknowledged. The record also reflects the children had lost confidence in their Mother to change to protect them from Father. She also failed to provide stable housing and at the time of the termination hearing, she was living in a motel room in Lawrence with a friend after moving back from Oklahoma while the case was pending. Additionally, Mother failed to maintain stable employment or even provide proof of employment. The district court also found Mother's conduct was emotionally abusive and neglectful, K.S.A. 2017 Supp. 38-2269(b)(2) and (4). Here, the emotional abuse and neglect the children suffered was a direct result of Mother not protecting them from Father's abusive behavior. As mentioned, Mother acknowledged the emotional trauma the children suffered as a result of her not leaving Father. The psychologist, Dr. Jean Dirks told the court, "[T]he girls were traumatized by seeing their mother, whom they really loved, being beat up by their father and their mother said it's okay." Additionally, Dirks was concerned about Mother's poor judgment for herself and the children. Indeed, we have held that a "parent's failure to protect their child from abuse constitutes 'conduct toward a child of [an] emotionally ... cruel or abusive nature.' " In re S.D. , 41 Kan. App. 2d 780, 789, 204 P.3d 1182 (2009) (quoting K.S.A. 2008 Supp. 38-2269 [b][2] ). Thus, we find clear and convincing evidence supports the district court's finding Mother's conduct was emotionally abusive and neglectful under K.S.A. 2017 Supp. 38-2269(b)(2) and (4). Despite the evidence supporting the district court's findings of unfitness, Mother argues the court should not have terminated her parental rights because she substantially complied with the reintegration plan. She supports her position by citing to In re A.M. , No. 116,391, 2017 WL 2022704, at *6 (Kan. App. 2017) (unpublished opinion), in which we reversed the termination of the father's parental rights. Mother essentially argues that, like the father in A.M. , she couldn't be considered "chronically unfit" because she complied with the reintegration plan. It is true Mother complied with many aspects of her case plan and the district court acknowledged her partial compliance. But in A.M. , we set aside the district court's ruling because the father's behavior "was neither negligent nor malicious [and h]e had no pernicious conditions or characteristics that rendered him statutorily unfit." 2017 WL 2022704, at *6. That simply is not the case here. There is evidence Mother's behavior was negligent-she had a history of returning to Father despite his abusive behavior. Her pattern is also a "pernicious condition" rendering Mother statutorily unfit, since staying with Father causes the children to suffer harm and more abuse. Even if Mother's substantial compliance with the case plan was dispositive, we do not reweigh the evidence on appeal. We must take the evidence in the light most favorable to the State. In re B.D.-Y. , 286 Kan. at 705 ; In re M.H. , 50 Kan. App. 2d at 1170. Under these standards, clear and convincing evidence supports the district court's unfitness finding based on all of the factors the court cited. Although there is no dispute Mother did complete some components of the reintegration plan, we are not tasked with reevaluating the evidence. See In re J.D.D. , 21 Kan. App. 2d 871, 875-76, 908 P.2d 633 (1995) (citing McKissick v. Frye , 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 [1994] ). The record reflects, among other issues, Mother failed to complete the court ordered drug treatment program. She failed to complete the victim-based batterer's intervention treatment program and failed to provide stable housing and employment as the court ordered. Thus, when viewed in the light most favorable to the State, and giving primary consideration to the physical, mental, and emotional needs of Mother's three children, we are convinced there was substantial competent evidence to support the district court's finding under K.S.A. 2017 Supp. 38-2269(b)(7) that reasonable efforts to restore the family had failed. The district court's decision to terminate Mother's parental rights was based upon clear and convincing evidence. The district court also made two other findings pertaining to its overall findings of unfitness. First, it found it was "highly unlikely that [Mother] could meet the emotional and physical needs of any of the children within the foreseeable future." See K.S.A. 2017 Supp. 38-2269(a). It also found terminating Mother's parental rights would serve the best interests of her children, explaining: "Returning these children to the custody and care of [Mother] would be extremely emotionally detrimental." See In re Interest of D.H. , 54 Kan. App. 2d at 488. Mother, however, does not brief her challenge to either of these findings on appeal, so we consider those issues waived. See In re Marriage of Williams , 307 Kan. 960, 977, 417 P.3d 1033 (2018) (issues not briefed are deemed waived and abandoned). In summary, considering all the evidence in the record before us, we find clear and convincing evidence supports a rational fact-finder's conclusion it is highly probable Mother was unfit by reason of conduct or condition rendering her unable to properly care for her children. Mother does not brief her challenge to the court's findings that her conduct or condition was unlikely to change in the foreseeable future and that termination was in her children's best interests. Affirmed.

Green, J.: A.J. (Mother) appeals from a judgment of the trial court placing her children in the custody of their respective fathers after the children were adjudicated as children in need of care (CINC). Mother also argues that the trial court erred by not granting her a reintegration plan. For the reasons stated later, we reject these arguments. Accordingly, we affirm. Mother is the natural mother of B.D., P.D., and P.J. B.D. was born in 2011, P.D. was born in 2014, and P.J. was born in 2016. T.D. is the father of P.J. and P.D. G.D. is the father of B.D. On September 1, 2017, Mother took her oldest child, B.D., to school and left her other two children with her then boyfriend, D.H., before leaving town to retrieve a vehicle. While at school, B.D. fell ill and developed a fever. B.D.'s school tried, without success, to have Mother return to the school after the child's symptoms worsened. Mother allegedly could not return to the school because of car problems. As a result, the school called Gordon Fell, Belle Plaine Chief of Police. Chief Fell gave the school authority to medicate B.D. Chief Fell also retrieved P.J. and P.D. from Mother's home and brought them to B.D.'s school. On arrival, Chief Fell noticed that P.J. had a severe diaper rash and smelled strongly of urine and P.D. had a powdery substance in her hair. Mother eventually arrived at the school. She appeared to have been in a physical altercation, which Chief Fell would later describe as a "severe aggravated battery case." When asked about the bruising and markings on her body, Mother maintained that she could not remember. She also maintained that a refrigerator fell on her as she tried to move it while intoxicated. Later, Mother claimed that she fell down a flight of stairs. She never gave an explanation for the ligature mark around her neck. Because of the severity of her injuries, a person from the Kansas Department for Children and Families (DCF) took Mother to a hospital for treatment. According to Chief Fell, Mother's children were present in the home when her injuries occurred. Mother's boyfriend, D.H., was waiting in a car outside the school during Mother's interaction with Chief Fell. D.H. was later arrested and charged with possession of marijuana, possession of drug paraphernalia, domestic battery, and disorderly conduct. After Mother was transported to the hospital, Chief Fell contacted Jeanne Chew, a juvenile intake worker, and DCF worker, Letitia Quarles. Chew and Quarles contacted the children's fathers and eventually placed the children with their respective fathers. After contacting T.D., the father of P.D. and P.J., Chief Fell accompanied T.D. to Mother's home to retrieve clothing and medicine for the children. The men found that the house was in "deplorable" condition; it was without running water or other utilities. The toilet was clogged and full of feces. The beds were lying on the floor without sheets. Chief Fell described one room as a "party room," which contained alcohol containers and a marijuana pipe. Chief Fell took pictures of the home and described the conditions as uninhabitable. Eventually, Chief Fell placed a placard of inhabitability on Mother's home. Mother contended that the house was under renovation and that the dangerous areas were blocked off from the children for their safety. Mother also asserted that she and her children frequently stayed at her mother's house in Wichita, Kansas. The State requested a temporary custody hearing on September 5, 2017. The next day, the trial court held the custody hearing. All parties, including Mother, agreed to the temporary placement of the children with their fathers. The trial court found that it was in the children's best interests that they remain in the temporary, residential custody of their respective fathers. An adjudication hearing was scheduled on October 18, 2017. Mother requested an evidentiary hearing which was set for December 1, 2017. After the evidentiary hearing, the trial court adjudicated the children as CINC. An evidentiary disposition hearing was held on March 6, 2018. At the disposition hearing, the State proffered the court services report which recommended that the children remain with their fathers. After no objection by the parties, the trial court admitted the report. The guardian ad litem also requested that the trial court take judicial notice of the previous CINC hearing, which the court did. Mother testified that she had completed a drug and alcohol evaluation with no recommendations for treatment, that she was in therapy with a counselor, and that she tried to set up family preservation services. Mother, however, failed to provide evidence of completion of her tasks and did not remember the service providers' names. Mother testified that she had a valid driver's license, which the State refuted by submitting her license status. This showed that her license had been suspended. Mother testified that someone had told her that family preservation services were unavailable because she did not have the children in her home. Mother asserted that her home was no longer under renovation and that her home had all working utilities. She also testified that her home was inspected by a city official who found it fit to live in. Candace Giefer, the court services officer, testified on behalf of the State. Giefer explained that Mother never met with her to report any of her alleged accomplishments. Giefer testified that Mother had scheduled an appointment to speak with her, but she had missed the appointment without explanation, and she did not reschedule another appointment. Giefer also testified that she met with T.D. to discuss the case and care of the children. Giefer felt that the children were doing fine with their fathers and recommended they remain in their fathers' custody. Giefer made an alternative recommendation which included reintegration tasks. Giefer testified that if the children were not placed with their fathers, the children needed to be placed in DCF custody so Mother could avail herself to the extensive services she would need to complete her reintegration tasks. The trial court held that it was in the children's best interests to remain placed with their fathers. The trial court did not grant Mother a reintegration plan but ordered a review hearing to consider child custody orders. Mother timely appeals the trial court's decision under K.S.A. 2017 Supp. 38-2273. Did the Trial Court Err by Placing the Children in the Custody of Their Fathers? The parties dispute whether this court should review Mother's appeal under an abuse of discretion standard, a substantial evidence standard, or a clear and convincing evidence standard. Mother asserts that we should apply a clear and convincing evidence standard. We note, however, that there is no statutorily prescribed standard of review set out under K.S.A. 2017 Supp. 38-2253, K.S.A. 2017 Supp. 38-2256, or K.S.A. 2017 Supp. 38-2257. We further note that Kansas lacks court precedent on what standard should be used at the dispositional stage of the proceeding. We also note that K.S.A. 2017 Supp. 38-2250 requires a clear and convincing evidence standard when a child is adjudicated CINC. Moreover, that same standard is required when a parent's rights are terminated under K.S.A. 2017 Supp. 38-2269. Nevertheless, the clear and convincing evidence standard is left out of the statutes concerning a disposition hearing. Although our Supreme Court clarified that a trial court's decision to adjudicate a child CINC must be reviewed under a clear and convincing evidence standard. In In re B.D.-Y. , 286 Kan. 686, 187 P.3d 594 (2008), we cannot assume that our Supreme Court intended to use a clear and convincing evidence standard at every stage of a CINC case. We note that the disposition hearing stage requires a trial court to determine whether to keep the children in the home, place them in foster care, or make a different placement. Moreover, the trial court is required to consider the children's physical, mental, and emotional well-being along with their need for assistance. These are components of the best interests of the child. Indeed, relevant statutory language revolves around "the best interests of the child" and other similar factors. See K.S.A. 2017 Supp. 38-2252 ; K.S.A. 2017 Supp. 38-2253 ; K.S.A. 2017 Supp. 38-2255. Generally, an appellate court reviews a trial court's decision regarding a child's best interest for an abuse of discretion. See, e.g., In re L.A.M. , 268 Kan. 441, 996 P.2d 834 (2000) ; In re R.S. , 50 Kan. App. 2d 1105, 1116, 336 P.3d 903 (2014). Additionally, when reviewing a trial court's best-interests decision, abuse of discretion is the logical standard of review. See In re J.D.W. , 711 A.2d 826, 834 (D.C. 1998). Often the best interests of the child at the dispositional phase will turn on immeasurable nuances and "[a] best-interests determination is 'in all cases a highly discretionary call.' " In re R.S. , 50 Kan. App. 2d at 1114, 336 P.3d 903 (citing In re J.D.W. , 711 A.2d at 834 ). Thus, we determine that a trial court's decision in a dispositional hearing must be reviewed under an abuse of discretion standard of review. A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) is based on an error of law; or (3) is based on an error of fact. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015). The party asserting an abuse of discretion bears the burden of showing it. In re K.E. , 294 Kan. 17, 23, 272 P.3d 28 (2012). This court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y. , 286 Kan. at 705, 187 P.3d 594. Before entering an order of disposition, K.S.A. 2017 Supp. 38-2255(a) requires that the trial court consider: "(1) The child's physical, mental and emotional condition; "(2) the child's need for assistance; "(3) the manner in which the parent participated in the abuse, neglect or abandonment of the child; "(4) any relevant information from the intake and assessment process; and "(5) the evidence received at the dispositional hearing." Under K.S.A. 2017 Supp. 38-2255(b), "[t]he [trial] court may place the child in the custody of either of the child's parents subject to terms and conditions which the court prescribes to assure the proper care and protection of the child, including but not limited to: "(1) Supervision of the child and the parent by a court services officer; "(2) participation by the child and the parent in available programs operated by an appropriate individual or agency; and "(3) any special treatment or care which the child needs for the child's physical, mental or emotional health and safety." When a trial court makes factual findings in a dispositional hearing under K.S.A. 2017 Supp. 38-2253 and related statutes, we conclude that those factual findings are to be made using a preponderance of evidence standard. Moreover, we further conclude that those factual findings are to be reviewed on appeal to determine whether substantial competent evidence supports those findings. Substantial evidence is evidence which possesses both relevance and substance and which provides a substantial basis of fact from which the issues can be reasonably resolved. Wiles , 302 Kan. at 73, 350 P.3d 1071. At the disposition hearing, the trial court heard testimony from Mother and the court services officer, Giefer. The trial court noted the court file and the evidence presented at the adjudication hearing. Pending the disposition hearing, after adjudication, the children had already been placed with their respective fathers for approximately six months and were reportedly doing fine in their care. Giefer recommended that the children continue in their current placement with their fathers. Giefer also made an alternative recommendation: that the children be placed in DCF custody to allow Mother the services she would need to complete a reintegration plan. Giefer admitted that she had only met with one of the fathers, T.D., before the disposition hearing and had not personally visited the fathers' homes. Still, Giefer testified that she had received no information which would cause her concern over the fathers' ability to care for the children. Additionally, the guardian ad litem argued that there was no evidence presented that would justify a finding under K.S.A. 2017 Supp. 38-2255(c) that the children were likely to sustain harm if they were not immediately removed from their fathers' home. The guardian ad litem also reminded the court that Mother originally agreed to place the children with their fathers. Moreover, at the disposition hearing, Mother again testified that she had no concerns with B.D.'s father, G.D. With regards to Mother, Giefer testified that Mother's living conditions, that the neglect of the children, and that her violent relationship with D.H. caused her great concern. Giefer also testified that Mother had failed to meet with her or submit any evidence of completing a psychological evaluation, drug and alcohol treatment, or a written budget as required by the court. Mother testified about her newly developed concerns with T.D.'s parenting abilities. Mother testified that she had to bring P.J. to the hospital for a high fever after a stay with T.D. Mother also testified that she had "drastically" changed the conditions of her home to make it habitable. Mother presented a letter written by a city official which allegedly showed the home had been inspected after Mother completed several renovations. Mother also testified that she was willing to work with Giefer but failed to meet with Giefer before the disposition hearing. Mother also testified that she no longer had contact with D.H. After considering all the evidence, the trial court concluded that it was in the children's best interests to remain with their fathers. The trial court then ordered a review hearing to consider child custody orders. The trial court also granted Mother continuing visitation with the children and entered a no contact order with D.H. It was within the trial court's discretion to order placement of the children with their respective parents. We conclude that substantial competent evidence supports the placement of the children with their fathers. Thus, the trial court did not abuse its discretion. As a result, we conclude that Mother's first argument fails. Was the Trial Court Required to Grant Mother a Reintegration Plan? Mother argues that the trial court was required to grant her a reintegration plan to regain residential custody of her children. Mother couches her assertion on a public policy argument that pursuing her claim for residential custody of her children in domestic court will put her at a significant disadvantage. Mother points to the need to retain counsel as one disadvantage and seemingly implies that the trial court's decision against her also hinders her future custody claims. Mother's challenge of the trial court's denial of a reintegration plan raises a legal issue. This court reviews the trial court's legal conclusions, including the interpretation of relevant statutes, de novo with no deference to the trial court. See In re A.F. , 38 Kan. App. 2d 773, 776-77, 172 P.3d 66 (2007), disapproved on other grounds In re B.D.-Y. , 286 Kan. at 699-703, 187 P.3d 594 ; In re K.M. , No. 111,109, 2014 WL 3907119 (Kan. App. 2014) (unpublished opinion). This court has held that developing a reintegration plan before termination is not compulsory. In re J.G. , 12 Kan. App. 2d 44, 51, 734 P.2d 1195, rev. denied 241 Kan. 838 (1987), overruled on other grounds In re B.D.-Y. , 286 Kan. at 702-03, 187 P.3d 594 ; see also In re R.M.C.H. , No. 104,249, 2011 WL 1344774 (Kan. App. 2011) (unpublished opinion). In In re R.M.C.H. and other similar cases, this court has held that because the trial court made a finding that reintegration was not a viable option, the court was not required to develop a reintegration plan before terminating parental rights. 2011 WL 1344774, at *5. Here, the trial court did not make the specific finding that reintegration was not viable but this is not a case where Mother's rights were terminated. Instead, permanency with a parent was attained; therefore, reintegration with Mother was not an issue the trial court was required to decide at the disposition hearing. K.S.A. 2017 Supp. 38-2201(b) states that the CINC code is to "be liberally construed to carry out the policies of the state," which includes "plac[ing] children in a permanent family setting, in absence of compelling reasons to the contrary." Under K.S.A. 2017 Supp. 38-2255(e), if custody has been removed from a parent and awarded "to a person other than a parent , a permanency plan shall be provided or prepared pursuant to K.S.A. 38-2264, and amendments thereto." (Emphasis added.) Then, K.S.A. 2017 Supp. 38-2264(j) contemplates the placement of a child with either parent: "If permanency with one parent has been achieved without the termination of the other parent's rights, the court may, prior to dismissing the case, enter child custody orders, including residency and parenting time that the court determines to be in the best interests of the child. The court shall complete a parenting plan pursuant to K.S.A. 2017 Supp. 23-3213, and amendments thereto." Thus, once a child has attained permanency with one parent without terminating the other parent's parental rights, the trial court no longer needs to make a finding of viability for reintegration. Instead, that matter is best decided in domestic court. Then, if the trial court wishes to consolidate any pending civil custody case with an open CINC case, it has the authority to do so under K.S.A. 2017 Supp. 38-2264(j)(3). Here, the children were placed with their fathers thus attaining permanency with a parent. After placing the children with their fathers, the trial court ordered a review hearing under K.S.A. 2017 Supp. 38-2264(j), to consider child custody orders. Once the children attained permanency with their fathers, the trial court was not required to grant Mother a reintegration plan but rather to complete a parenting plan under K.S.A. 2017 Supp. 23-3213. K.S.A. 2017 Supp. 38-2264(j). The trial court still has the opportunity to complete a final parenting plan at the review hearing that it already ordered. Thus, the trial court properly refused to grant Mother a reintegration plan after placing the children with their fathers. Affirmed.

Powell, J.: Dana Raymond Towle petitioned the Wyandotte County District Court for separate maintenance (more commonly known as a legal separation) from his wife, Louise LèGarè. After the case had been pending for several months, Louise was diagnosed with terminal cancer. Ultimately, the parties were apparently able to reach a property settlement agreement that was placed on the record and approved by the district court. The court, anticipating Louise's pending demise, filled out and signed a docket sheet approving the parties' property settlement agreement and directed Louise's counsel to prepare the journal entry. Unfortunately, several months passed and Louise died without her counsel having filed the journal entry. Dana then sought dismissal of the case on the grounds that Louise's death had abated the action and divested the court of jurisdiction. The district court denied Dana's motion to dismiss and substituted Louise's son, Mathieu Bonin, for Louise even though he was not the executor of Louise's estate. It ordered Mathieu, now represented by Louise's counsel, to submit a journal entry within 72 hours. Several more months went by without the journal entry being filed. Instead of filing a journal entry, Mathieu sought enforcement of the property settlement agreement, claiming Dana had breached it. The district court found that the parties had sufficiently memorialized their agreement and granted Mathieu's motion. On appeal, Dana principally claims the district court erred by not dismissing the case as the action abated at the time of Louise's death. As a matter of first impression and for reasons more fully explained below, we agree with Dana that his petition for separate maintenance is a personal one which abated upon Louise's death. Because the journal entry memorializing the parties' property settlement agreement had not been approved by the district court and filed with the clerk prior to Louise's death, the district court erred in not dismissing the case. Accordingly, we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND A. Background of the Parties Dana and Louise were married in Missouri in the late 1980s. Louise was originally from Montreal, Quebec, where her son from a previous relationship, Mathieu, resides. During the marriage, the parties accumulated significant assets including real estate in Kansas, Missouri, and Quebec and surgical centers as part of Dana's medical profession in Kansas. No children were born of the marriage. B. Initiation of the Separate Maintenance Action and Dana's Voluntary Dismissal In November 2015, Dana filed a petition for separate maintenance in Wyandotte County District Court, alleging he was a resident of Edwardsville, Kansas. Louise filed an answer, admitting she had lived in Edwardsville for 90 days but denying that Dana had resided there. Louise asserted no counterclaims in her answer. In May 2016, Dana and Louise agreed to a temporary order, which the district court approved, allowing the parties to live separately during the action. Among other provisions, the order provided that Dana would continue to pay Louise's living expenses, Louise would continue to possess the parties' Edwardsville residence, and no party would be dispossessed of any property without a joint written agreement or court approval. Thereafter, the parties worked with a certified public accountant, financial mediator, and valuation analyst to develop a comprehensive valuation and division of the parties' assets and debts. As of October 2016, the parties were able to develop a comprehensive list of their assets and debts, along with their agreed values. This understanding was memorialized in a one-page document known as Exhibit 101. In June 2016, Louise was diagnosed with stage 4 metastatic lung cancer. Although Dana learned of Louise's illness in August 2016, Louise did not inform Dana of the details surrounding the diagnosis until October 2016. On October 26, 2016, Dana's counsel filed a motion to dismiss his petition for separate maintenance without prejudice and attached a proposed order. However, because the order's title included the word "proposed," the district court clerk rejected the filing and directed Dana's counsel to correct it. The next day, Dana's counsel refiled the now correctly titled order but failed to refile the motion. Dana's counsel later told the district court that the clerk's staff only told him to refile the proposed order and not the motion itself. As the district judge stated, "[E]ither [Dana's counsel] misunderstood the instruction or [was] given the wrong instruction, whichever way, but ... there was no motion [to dismiss] filed." No such motion to dismiss appears in the record on appeal. Louise's counsel stated that she never received notice of such a motion. Nevertheless, it appears there was such a motion before the district court at some point because on October 27, 2016, it granted Dana's motion to dismiss without prejudice and, on October 31, 2016, the district judge signed a docket entry dismissing the case. Louise's counsel admitted that these two orders were entered into the e-filing system and served on Louise; her counsel later claimed that she believed the matter was dismissed in error. After dismissal of this case, Dana filed for divorce in Jackson County, Missouri. C. Setting Aside the Dismissal and Louise Filing a Counterpetition On March 2, 2017-122 days after the apparent dismissal of the case-Louise sought to set aside the dismissal order under K.S.A. 2016 Supp. 60-260(b). She argued the order violated K.S.A. 2016 Supp. 60-241(a) and K.S.A. 2016 Supp. 60-207(b) because Dana had not formally filed a motion to dismiss. Louise asserted that the order had to be set aside as the result of surprise, excusable neglect, misrepresentation, or misconduct by an opposing party and that Dana's dismissal was a ruse to unjustly enrich himself. "[Dana] misrepresented his intentions to [Louise] knowing that [her] medical condition prevents [her] from easily participating in the litigation process, knowing that a delay in the entry of the final division of assets herein and [Louise's] untimely death would allow [Dana] to receive all of the parties' assets herein thereby unjustly enriching [him], and knowing that due to the advanced nature of [Louise's] terminal cancer [she] cannot file a new Petition and wait the statutorily required time for entry of a Decree. ... It is in the interest of substantial justice that this Court set aside its Dismissal Order entered herein as it is necessary for [Louise] to complete the division of the parties' assets and return to her son prior to her death and as without this Court setting aside its Dismissal Petitioner shall be unjustly enriched by his misrepresentations to [Louise] and the Court." In support of her assertions, Louise attached to her motion a three-week-old letter from her physician, which attested to her condition and stated she "desire[d] to return to her family and home in Montreal, Canada for her remaining months of life" and "it is of the most urgent necessity that she gets her divorce settled so that she has funds to move, get medical care, and live with her family that can support and care for her." Dana opposed Louise's request to set aside the dismissal. Although he denied many of her allegations, he did admit that the motion to dismiss was not correctly filed. Before the district court heard arguments on Louise's motion to set aside the dismissal, and without leave of the court, on March 6, 2017, Louise filed what her counsel entitled as a "Counter Petition for Legal Separation." After hearing arguments on March 27, 2017, concerning Louise's motion to set aside the order of dismissal, the district court found that because Dana had not properly filed a motion to dismiss, it did not have the authority to grant Dana's motion of voluntary dismissal under K.S.A. 2016 Supp. 60-241. Dana then made an oral motion to dismiss the action. In response, Louise argued Dana could not now voluntarily dismiss the action because she had filed a "counterpetition." Dana responded that Louise's counterclaim was out of time and she would need leave of the district court to amend her answer, which she had not done. Louise argued that her "counterpetition" was timely without leave; Dana refuted this assertion, arguing that a counterclaim could be filed only in an answer to the original petition, which at this point was now several years after the initial November 2015 filing. Thus, Louise was out of time to amend her answer without leave of the court. Nevertheless, the district court, sua sponte, asked Louise, "[A]ssuming the requirement would be 21 days after the petition, what would your arguments be ... as far as being given the opportunity to file your counterclaim out of time?" Louise responded that the parties had been negotiating and she expected to resolve the case through that negotiation; however, the parties had not yet resolved the case, so she needed to file her "counterpetition." The district judge stated that he was not 100% sure of a deadline or requirement for filing a counterclaim, but even assuming there was, he found there was an exception under the circumstances of this case and allowed Louise to amend her answer to include a counterclaim for separate maintenance out of time as of March 27, 2017. The district court then permitted Dana to withdraw his oral motion to dismiss and set the case for trial on April 18, 2017. Subsequently, Dana timely filed an answer to Louise's counterclaim. D. The April 2017 Hearing At the April 2017 hearing, the parties announced they had reached an agreement on the division of property and spousal support. Dana testified and confirmed the division of assets and debts, including his agreement to pay Louise maintenance. Dana also agreed to pay a $227,000 equalization payment to Mathieu, if that was who Louise designated as her heir. Dana also agreed to dismiss the pending Missouri divorce case within 10 days. Louise also testified and confirmed the agreement. The parties had reduced the division of assets and debts to writing in Exhibit 101. The district court accepted the parties' settlement and stated it would "do simply a short docket sheet of today's hearing. It won't lay out anything, but I will attach [Exhibit 101] to be filed with the docket sheet." The district judge asked, "Do we need to make any specific findings concerning the legal separation of this matter?" Louise's counsel replied that findings regarding the legal separation were not necessary but there should be detailed findings or a proposed journal entry regarding certain property and the maintenance payments. Dana's counsel agreed that a detailed journal entry was necessary. The district court found the agreement was "made in fair negotiations" and was "equitable" and "fair," stated it adopted the agreement of the parties as its own, made it the order of the court effective that day, and filled out a docket sheet reflecting such. Regarding the journal entry, the district judge stated: "You can make it however you want it, and, if you want to attach a copy of this to the journal entry, and just have the parties sign it after this is attached to it or make this supplemental to it and then make it as detailed as you would like. "I mean, pretty much this is my order and whatever you-all agree to as long as it's consistent with this whatever format you put it in, doesn't make me any big bit of difference." Counsel for both parties discussed wanting to list every maintenance payment and detailing each property with the legal description. Louise's counsel requested 10 days to file the proposed journal entry, and the district judge responded, "That's fine, however long it takes. What we're going to do is do a docket sheet today. Essentially, I'll attach [Exhibit 101] to it, and we'll have a record. My order is effective as of today. "So even if she, God forbid, passes prior to the journal entry, the order is effective when given. So we'll just wait on that." The district court then completed a docket sheet that read as follows: "Parties reach agreement and presents [sic ] testimony of agreement. [Louise] introduces Exhibit 101, which is an agreed spreadsheet of all property owned by the parties. "After hearing all testimony and the agreements of the parties the court finds the agreement to be fair and equitable. The court adopts the agreement, and makes it the court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit 101, attached hereto, is adopted as [the] entire property list of the parties." Dana later dismissed the Missouri divorce case. E. Louise's Death, the Denial of Dana's Second Motion to Dismiss, and Substitution of Mathieu for Louise On July 1, 2017, Louise died. At the time of Louise's death, her counsel still had not filed the court-ordered journal entry. In a letter to the court on July 5, 2017, Dana's counsel reported that he and Louise's counsel had agreed he would draft the journal entry and forward it to her, which he had done on May 8, 2017, but he never heard back from Louise's counsel. Dana's counsel argued "the failure to have a signed journal entry at the time of the death of one of the parties, resulted in the parties still being married and the court being unable to enter a journal entry following the death of one of the parties." Dana asked the court to take no further action and dismiss the matter due to the passing of Louise. On July 14, 2017, Dana filed proof of Louise's death; five days later, he sought to dismiss the action, arguing that under K.S.A. 2017 Supp. 60-258 the failure to have a journal entry on file at the time of Louise's death meant the separate maintenance or legal separation action abated at that time, so the action had to be dismissed. Louise's counsel opposed the motion for dismissal but did not make any specific counterarguments in support of her objection. On August 31, 2017, Louise's counsel and Dana appeared at a hearing on Dana's motion to dismiss. Before hearing argument on that motion, Louise's counsel made an oral motion under K.S.A. 2017 Supp. 60-225(a) to substitute Mathieu as a successor or a representative of Louise's interests. Louise's counsel informed the court that Mathieu retained her on July 31, 2017, and argued that K.S.A. 2017 Supp. 60-225(a) was very clear that once a motion for substitution of a party is made by the successor or representative, the district court must grant the motion. Dana opposed this oral motion for substitution, arguing that the action and Louise's claim extinguished on her death, so no one could be substituted for her at all, and even if the claim was not extinguished, only Louise's estate could be substituted for Louise under K.S.A. 2017 Supp. 60-225(a). Mathieu confirmed at a later hearing that he was not Louise's executor. Notwithstanding, the district court granted the motion and substituted Mathieu for Louise. The district court then heard Dana's motion to dismiss. Dana testified and acknowledged that he and Louise had reached a separation agreement, that he had made payments to Louise of $5,000 per month both before and after the April 2017 hearing, and that he had paid her credit card bills both before and after the April 2017 hearing. After Dana's testimony, his counsel argued that the case had to be dismissed because the district court lost jurisdiction upon Louise's death as there had been no journal entry filed in the case memorializing the parties' agreement. Mathieu opposed the motion, arguing that a journal entry is a record of the judgment but is not the judgment itself and that it was clear from the April 2017 hearing that there was an oral binding agreement placed on the record that the district court had adopted. Additionally, Mathieu argued the district court's docket sheet was sufficient to constitute a judgment form that also qualified as the entry of a judgment. The district judge denied Dana's motion to dismiss, stating, "I do believe the docket sheet as referred to by [Mathieu's] counsel in his arguments, it does, in fact, contain the requisite information that a journal entry will contain absent the specific details." The district judge further commented "that this Court itself expedited matters and moved other hearings and cases out of the way because of [Louise's] illness to try to bring a final conclusion to this matter prior to her death" and "what this Court expected was a more thorough, more exhaustive journal entry." The district court also remarked "in hindsight, perhaps we did not do it according to the rule of law and if that be the case, then the Court of Appeals will make the right decision and I'll be reversed and [Dana] will have the benefit of the law." Mathieu's counsel offered to submit a proposed journal entry memorializing the agreement but replacing Louise's name with Mathieu's. The district court agreed and ordered Mathieu's counsel to submit the journal entry within 72 hours. F. Mathieu's Claim for Enforcement of the Marital Settlement Agreement Surprisingly, Mathieu's counsel failed to file the court-ordered journal entry within 72 hours, and by mid-September 2017 there still was no journal entry filed. Instead, on September 14, 2017, Mathieu's counsel filed a document entitled "Counter Petition for Enforcement of Marital Settlement Agreement," alleging breach of contract, unjust enrichment, and equitable estoppel claims again Dana. Specifically, Mathieu alleged that Dana had breached the April 2017 separation agreement and Mathieu, as Louise's successor, was owed damages, attorney fees, and costs. Dana denied and opposed all of these claims, arguing in part that there was no enforceable agreement once Louise died without a journal entry having been entered. Additionally, despite the district court's previous denial of Dana's motion to dismiss, Mathieu's counsel filed arguments in opposition to Dana's motion to dismiss and, alternatively, asked the district court to enter a judgment nunc pro tunc "to correct any error necessary to give the court's order and judgment full force and effect as of April 18, 2017, as ordered on April 18, 2017." On November 15, 2017, the district court held a hearing on these motions. First, the district judge denied Mathieu's request for a nunc pro tunc order, stating that while he had intended for the April 2017 docket sheet to be a final decision, he had been ignorant of the law requiring a journal entry. The district court indicated that the docket entry was not a journal entry or a judgment form but was a trial docket or a docket sheet; the district court had expected a journal entry; and if the docket entry was final, then the district court had not given any notice to the parties of the right to appeal that entry. Nevertheless, the district court again refused to dismiss the case due to Louise's death and instead took up Mathieu's request to enforce the settlement agreement. Both Dana and Mathieu testified. Dana did not dispute that since the April 2017 hearing he had taken care of the properties assigned to him in Exhibit 101; that Louise had resided in one of the Canadian properties assigned to her until her death; that he had paid her credit card bills, her maintenance, and paychecks; and that he had dismissed his Missouri divorce action. However, Dana also testified that it was not his "understanding that every single little detail [of the agreement] was laid out in front of this court" at the April 2017 hearing and that several details of the agreement missing from the testimony provided at that time would have been reduced to writing in the journal entry. Dana contended that the agreement was never reduced to a formal writing because he and his attorneys proposed a full written agreement in the form of a journal entry but Louise and her counsel never approved it or submitted it to the court. Mathieu testified that he had contact with Dana after the April 2017 hearing and before Louise's death and Dana never told him there were documents that needed to be signed by Louise to finalize anything. Mathieu also testified that Louise informed him there had been an agreement reached, but Dana had never told him this nor had he ever seen Exhibit 101 or an agreement. The district court found there had been a meeting of the minds between Dana and Louise at the April 2017 hearing, found the disposition of all the property was testified to on that date, and granted Mathieu's motion to enforce the property settlement agreement. It ordered that a journal entry reflecting the agreement be prepared by Mathieu's counsel and that the journal entry include not only Exhibit 101 but also every aspect of the agreement that was testified to at the April 2017 hearing. G. Final Actions and Filing of the Journal Entry in the District Court By February 2018, no journal entry had yet been filed. So, on February 14, 2018, Dana moved for a mistrial or alternatively to dismiss the case. This motion finally prompted Mathieu's counsel to act, and on February 22, 2018, Mathieu's counsel submitted a proposed journal entry, which the court signed without amendment. The journal entry denied Dana's July 2017 motion to dismiss; outlined what property and debts Dana and Louise were to receive; ordered Dana to pay Louise an equalization payment of $227,000 payable over 15 years at 2% annual interest with a balloon payment at the end of the equalization payments totaling 5 years' worth of payments; ordered Dana to pay nonmodifiable maintenance of $5,000 a month until November 2026 or upon the death of either party; and ordered Dana to dismiss his Missouri action. Exhibit 101 was also attached to the order. Dana timely appeals. DID THE DISTRICT COURT ERR IN DENYING DANA'S MOTION TO DISMISS AFTER LOUISE'S DEATH ? Dana's principal argument on appeal is that the district court erred in not granting his July 2017 motion to dismiss. Specifically, he argues that because Louise died before a final journal entry had been entered in the case, the separate maintenance action abated upon her death and, therefore, the district court was divested of jurisdiction. Mathieu argues that a civil action does not automatically terminate upon the death of a party and that the court properly proceeded on Mathieu's claim for enforcement of the property settlement agreement as an oral contract. Whether jurisdiction exists is a question of law over which we exercise unlimited review. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017). A. Does an action for separate maintenance abate upon the death of one of the parties? At common law, all personal actions permanently abate upon the death of a sole plaintiff or defendant. 1 Am. Jur. 2d Abatement, Survival, and Revival § 44 ; see 1 C.J.S., Abatement and Revival § 132 (a pending action abates upon death of either party at common law unless altered by statutory enactment). Kansas has altered the common law rule, and according to our Supreme Court, "whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801." Gross v. VanLerberg , 231 Kan. 401, 405, 646 P.2d 471 (1982). K.S.A. 60-1801 states: "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same." The most fundamental rule of statutory construction "is that the intent of the legislature governs if that intent can be ascertained." State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). When a statute is plain and unambiguous, we should not speculate about the legislative intent behind that clear language and should refrain from reading something into the statute that is not readily found in its words. See Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). According to the plain language of K.S.A. 60-1801, all actions at common law that survive the death of a party, plus those listed in the statute, do not abate upon the death of a party. But because personal actions at common law do abate, the question is whether an action for separate maintenance is a personal one. The law in Kansas has long recognized that "[a] divorce action is purely personal and ends on the death of either spouse." Wear v. Mizell , 263 Kan. 175, 180, 946 P.2d 1363 (1997) ; see Adamson v. Snider , 131 Kan. 284, 285, 291 P. 744 (1930) ("The principal point to be determined in an action for divorce is the marital status of the parties, and after the death of one of them that is no longer open to litigation."); see also In re Marriage of Wilson , 245 Kan. 178, Syl. ¶ 2, 777 P.2d 773 (1989) ("In an action for divorce, when a party dies after the divorce is orally granted but prior to the requested journal entry of judgment being signed by the trial judge and filed with the clerk of the district court, it is held that K.S.A. 60-258 renders the divorce decree ineffective."). In short, "[a] divorce action abates at the time of death." Wear , 263 Kan. at 180, 946 P.2d 1363. A century ago, the Illinois Supreme Court discussed the personal nature of a divorce action and its similarities with a separate maintenance action for the purposes of abatement: "Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. "While the present action is one for separate maintenance, and differs from a divorce proceeding, in that the latter is one for dissolution of the marriage relation, while the former is one in affirmance of it and to enforce the obligations of that relation, they are both, nevertheless, similar in their nature, as the marriage relation constitutes the foundation of the action in each case, and the dissolution of that relation extinguishes the subject-matter which forms the basis for such an action." Bushnell v. Cooper , 289 Ill. 260, 264-65, 124 N.E. 521 (1919). Under K.S.A. 23-2701 and K.S.A. 23-2706, both the grounds and the remedies for divorce and separate maintenance are the same. But unlike a divorce, an action for separate maintenance does not terminate the marriage but allows the parties to live separate and apart. Like in a divorce, in a separate maintenance action, the court may order or the parties may agree to determine property and inheritance rights. See 1 Kan. Law & Prac., Family Law § 9:58 (2018). Given that the nature of a spousal maintenance action is very similar to a divorce action, and its essence is personal as it allows for a married couple to live separately, we hold that a separate maintenance action is a personal one that abates at the time of a party's death. This finding is in accord with other jurisdictions which have considered the question. See, e.g., In re Marriage of Hilke , 4 Cal. 4th 215, 220, 14 Cal. Rptr. 371, 841 P.2d 891 (1992) (action for legal separation or dissolution is personal and abated at spouse's death); Bushnell, 289 Ill. at 264-65, 124 N.E. 521 (separate maintenance action abates upon death of a spouse); Cregan v. Clark , 658 S.W.2d 924, 927 (Mo. App. 1983) ("[A] suit for dissolution or for legal separation abates upon the death of one of the parties before final judgment."); Trinosky v. Johnstone , 149 N.M. 605, 608, 252 P.3d 829 (Ct. App. 2011) ("[U]nder the common law rule of abatement, if a party to a legal separation action died prior to entry of a final decree, the court was divested of jurisdiction over the matter."). Accordingly, just as in a divorce, if either spouse in a separate maintenance action dies prior to the filing of a final journal entry, the separate maintenance action abates upon the death of that spouse and the district court loses jurisdiction. B. Was there a legally sufficient journal entry filed in the case prior to Louise's death? The next question is whether Louise died before a journal entry was entered. If there was a journal entry entered before the death of Louise, then her death would be inconsequential to the enforceability of the property settlement agreement. Although it involves a divorce action, In re Marriage of Wilson , 245 Kan. at 178-79, 777 P.2d 773, illustrates the importance of determining if a binding journal entry was entered before the death of a party. In Wilson , at the divorce hearing the parties verbally agreed on a property settlement, child custody, child support, and maintenance. The district court then "orally granted a divorce to each party and accepted the parties' stipulation as to their agreement on the balance of the issues" and directed wife's counsel to prepare the journal entry. 245 Kan. at 179, 777 P.2d 773. The journal entry was filed with the district court approximately 30 days later. However, nine hours before the court entered that journal entry, the husband died. The wife then requested to be relieved from the decree. The district court agreed with the wife, set aside the journal entry, and dismissed the action, holding that under K.S.A. 60-258 the parties were still married at the time of the husband's death and so the journal entry was void. The administrator of the husband's estate appealed. The Kansas Supreme Court ultimately unanimously affirmed the district court, holding: "The 1976 amendment [to K.S.A. 60-258 ] unequivocally states that no judgment is effective until a journal entry or the judgment form is signed and filed. A journal entry was requested by the trial court herein. The decision of the trial court could not become effective prior to its filing by the express language of K.S.A. 60-258. If the decision of the trial court granting the divorce could not become effective prior to the filing of the journal entry, then it was ineffective prior to that time. [Husband] died prior to the trial court's approval of, and the filing of, the journal entry. At the time of his death, [Husband] was lawfully married to [Wife]. His death terminated that marriage. Accordingly, there was no marriage for the decree of divorce to terminate at the time the journal entry reflecting the judicial termination was filed. [Wife] was [Husband's] widow at the time the journal entry was signed and filed. We must conclude that the majority opinion of the Court of Appeals correctly affirmed the trial court's setting aside of the journal entry granting a decree of divorce." 245 Kan. at 180-81, 777 P.2d 773. Further, the Supreme Court held that the parties' oral agreement to the division of property and debts, orally approved of by the district court, was not effective absent a journal entry: " 'Although separation agreements are authorized by statute, K.S.A. 1988 Supp. 60-1610(b)(3), division of property and apportionment of debt are not necessary where the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this case; therefore, the agreement incorporated therein must also be ineffective. If there is no divorce, there is no division of marital property.' [Matter of Marriage of Wilson ] 13 Kan. App. 2d [291] at 294, 768 P.2d 835 [1989]." 245 Kan. at 181, 777 P.2d 773. Other Kansas cases dealing with the entry of journal entries or judgment forms have held similarly to Wilson -if the death of a spouse comes before the journal entry is entered, the case abates; if the death of a spouse comes after the journal entry is entered, the case does not abate. See Wear , 263 Kan. at 180, 946 P.2d 1363 (holding divorce action abated when husband died before filing of journal entry); Great Plains Trust Co. v. Wallins , No. 99,483, 2008 WL 5135043, at *3 (Kan. App. 2008) (unpublished opinion) (holding divorce case ended when the husband died before journal entry entered); In re Marriage of Gilchrist , No. 91,029, 2004 WL 1716204, at *3 (Kan. App. 2004) (unpublished opinion) (holding husband could not seek to set aside judgment and relitigate child support and other issues because "trial court lost subject matter jurisdiction over the divorce case when [the wife] died"). And these holdings align with the mandate from K.S.A. 2016 Supp. 60-258 that "[n]o judgment is effective unless and until a journal entry or judgment form is signed by the judge and filed with the clerk." Yet, here, the question before us contains a unique wrinkle: The district judge filled out a docket sheet that was used to add line entries in the district court's register of actions and record minutes of what transpired during a proceeding before the district court. The docket sheet read: "Parties reach agreement and presents [sic ] testimony of agreement. [Louise] introduces Exhibit 101, which is an agreed spreadsheet of all property owned by the parties. "After hearing all testimony and the agreements of the parties the court finds the agreement to be fair and equitable. The court adopts the agreement, and makes it the court's order. [Louise] to prepare [a journal entry] of today's hearing. [Louise's] Exhibit 101, attached hereto, is adopted as [the] entire property list of the parties." Louise's counsel never filed a journal entry prior to her client's death. "The law in Kansas is clear that a case is not final until there is no possibility of further court action. The effective date of a journal entry is when it is signed by the trial judge and filed with the clerk of the district court. A journal entry containing findings of fact and conclusions of law takes precedence over and may differ from the trial court's oral pronouncement from the bench. A judgment that has been orally pronounced but that lacks a journal entry is therefore not a final judgment. [Citations omitted.]" Valadez v. Emmis Communications , 290 Kan. 472, 482, 229 P.3d 389 (2010). Thus, we must determine if the district court's docket sheet is sufficient to qualify as a journal entry or judgment form under K.S.A. 2016 Supp. 60-258. A judgment is effective only when a journal entry or judgment form has been signed by the judge and filed with the clerk of the district court. 290 Kan. at 482, 229 P.3d 389. Importantly, trial docket minute sheets do not comply with K.S.A. 2016 Supp. 60-258. See Wilson , 245 Kan. at 180-81, 777 P.2d 773. Although the docket sheet or minute sheet in this case bears the signature of the district judge, this document was never filed with the clerk of the district court. It bears no file stamp. Moreover, while the docket sheet states it adopted the agreement of the parties as the court's order, actually, there is no indication in the docket sheet of the substance of the parties' agreement apart from an exhibit listing the property of the parties. There is nothing regarding the settlement figure testified to, maintenance, living expenses, or the dismissal of the Missouri divorce action. The docket sheet itself even orders a journal entry to be prepared and filed. Notably, the district judge himself conceded that this was not a journal entry but "was a trial docket or what we call here in Wyandotte County a docket sheet" and that the court had "expected another document that would have the title journal entry on the document." Under the facts presented here, the docket sheet did not qualify as a final journal entry or judgment form. Because the district court's docket sheet was insufficient to stand in place of a journal entry or judgment form and because Louise died before any final journal entry was filed, Dana's separate maintenance action abated upon Louise's death and the district court lost subject matter jurisdiction over the case. The district court erred in denying Dana's motion to dismiss filed after Louise's death. The judgment of the district court is reversed, and the case is remanded with instructions for the district court to dismiss the case. The other issues raised by Dana are moot, and we express no opinion as to their propriety. Reversed and remanded with directions.

Atcheson, J.: SUMMARY OF CASE AND DISPOSITION The central issue in this case turns on whether Steven Moore manipulated John and Joyce Moore, his parents, to part with land they owned, thereby gutting a trust they had set up as an estate plan to benefit all four of their children. Joyce contends Steven beset John on his deathbed and exploited her depleted physical and emotional condition to get them to sign a contract selling their homestead to his son (and their grandson) Jebediah Moore. She says that several months later Steven improperly induced her to sell farmland to Jebediah. Those two contracts enabled Jebediah to acquire real estate worth $1.4 million with a down payment of $25,000 and an agreement to pay Joyce and the trust an additional $377,000 over as long as 30 years at nominal interest. Those transactions left Joyce with little of immediate value to pass on to her other children or grandchildren. Joyce and the trust she and John established sued Steven and Jebediah in Brown County District Court in September 2015 to set aside the two contracts. Joyce and the trust have been jointly represented throughout this case and are united in legal interest, so from here on we dispense with repeated references to the trust as a distinct party. Steven and Jebediah are similarly unified in their defense, and the evidence points to Steven as the driving force behind the transactions. At trial, about a year later, Joyce specifically claimed that she and John lacked the capacity to enter into the contract for the homestead and she lacked the capacity to sell the farmland. She pressed an alternative claim that the contracts should be set aside because Steven exerted undue influence over John and her after cultivating their confidence that he would look out for their best interests. The jury considered four specific claims: (1) Whether John and Joyce had the capacity to enter into the contract to sell their homestead to Jebediah; (2) whether Joyce had the capacity to enter into the contract to sell farmland to Jebediah; (3) whether Steven unduly influenced John and Joyce to sell their homestead to Jebediah; and (4) whether Steven unduly influenced Joyce to sell farmland to Jebediah. As we explain, the district court incorrectly instructed the jury in a way materially disadvantaging Joyce on her undue influence claims, rendering its verdicts in favor of Steven and Jebediah on that theory deficient. We, therefore, reverse that part of the judgment the district court entered for Steven and Jebediah and remand the case with directions. On appeal, Joyce also disputed the jury verdicts for Steven and Jebediah on the claim she and John lacked the capacity to enter into the contracts. We find her arguments do not require reversal of those verdicts and affirm that part of the judgment. Because Joyce pursued equitable claims rooted in upending the contracts rather than legal claims for monetary damages and Steven and Jebediah asserted no counterclaims, no one was entitled to a jury trial as a matter of right then or now. The parties were and are owed a fair hearing of their dispute in front of the district court sitting as the finder of fact-that is, in a bench trial. On remand, a new trial is unnecessary. The district court should promptly make findings of fact and conclusions of law resolving Joyce's undue influence claims based on the evidence admitted during the jury trial and consistent with this opinion. That directive corrects for the erroneous jury result and affords the parties the fact-finding they have always been procedurally due. REVERSIBLE INSTRUCTIONAL ERROR ON UNDUE INFLUENCE District Court Mishandled Burden of Proof of Undue Influence The district court committed reversible error in instructing the jurors on the law applicable to the claims the contracts should be set aside because Steven exerted undue influence over John and Joyce. As we explain, the error deprived Joyce of fair consideration of her contention that Steven should have been required to prove the absence of undue influence. Had the burden of proof been shifted to Steven, the jurors reasonably could have reached a different conclusion. We begin with the test for assessing instructional error, since that drives how we review the evidence. As the party asserting the jury had been erroneously instructed, Joyce must show: (1) she raised and preserved the instructional issue in the district court; (2) she requested the jury be instructed on a legally appropriate matter; and (3) the facts supported giving the instruction. Foster v. Klaumann , 296 Kan. 295, 301-02, 294 P.3d 223 (2013). With that showing, an appellate court may conclude the district court erred in failing to instruct the jury on the particular point. The appellate court must then consider whether the error can be discounted as harmless. Here, we assume the applicable standard of review on harmlessness to be the one for an instructional error impinging on a nonconstitutional right of the complaining party. Steven and Jebediah would be entitled to no more favorable a standard. As the parties benefiting from the error, they have to establish there was " 'no reasonable probability' " the instructional foul-up contributed to verdicts in their favor. 296 Kan. at 305, 294 P.3d 223 (harmlessness standard for error not implicating constitutional right) (quoting State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 [2011] ); accord Siruta v. Siruta , 301 Kan. 757, 771-72, 348 P.3d 549 (2015) (burden of proving harmlessness); State v. Williams , 295 Kan. 506, 516, 286 P.3d 195 (2012) (burden of proving harmlessness). 1. Issue Preservation Joyce requested an instruction informing the jury that when one party to a contract has placed confidence or trust in the other party, the party in whom that trust or confidence has been reposed bears the burden of proving the contract was not the product of undue influence. In a case such as this, that reverses the typical allocation of proof, since the party seeking relief from a contract typically would be required to prove undue influence. Joyce specifically asked the district court to instruct the jury on that legal principle and offered a proposed instruction. The district court's instructions failed to give the jurors meaningful guidance on the point. Joyce sufficiently raised the issue in the district court to preserve any error for appellate review. 2. Legal Appropriateness Kansas courts have long recognized that contracts between parties in a confidential or fiduciary relationship require particular scrutiny should their fairness be challenged. The danger, of course, lies with the party in whom trust has been placed and his or her ability to exploit the relationship to gain unfair advantage in any transaction with the other party. As an antidote, the courts have required the trusted party to prove the absence of undue influence over the trusting party in bargaining and contract formation. Frame, Administrator v. Bauman , 202 Kan. 461, 467, 449 P.2d 525 (1969) ; Smith v. Smith , 84 Kan. 242, 244-45, 114 P. 245 (1911). In effect, the courts presume undue influence in contracts between parties occupying a confidential relationship. The Frame court captured the rule this way: When parties occupying a confidential relationship enter into a contractual transaction, "the burden rests upon the person [in whom confidence has been placed] to show that the transaction was conducted in good faith and did not result from the exercise of undue influence." 202 Kan. 461, Syl. ¶ 5, 449 P.2d 525 ; see Curtis v. Freden , 224 Kan. 646, 651, 585 P.2d 993 (1978) (recognizing rule and citing Frame ); PIK Civ. 4th 124.09 Comment (noting ruling). The principle bears obvious legal relevance to Joyce's allegations attacking the contracts. Kansas courts, however, apply a different rule to wills and other testamentary instruments. If the recipient of a bequest in a will had a confidential or fiduciary relationship with the testator, a court should presume undue influence when "suspicious circumstances" surround the making of the will. Cresto v. Cresto , 302 Kan. 820, 833-34, 358 P.3d 831 (2015). So in a will contest, unlike a contract dispute, the burden to prove the absence of undue influence shifts to a legatee only when he or she occupied a confidential relationship with the testator and the bequest invites suspicion. As we discuss, the district court failed to appreciate the differing rules governing contracts and wills involving parties occupying confidential relationships. And that likely contributed to the instructional error. In any event, an instruction or instructions addressing confidential relationships between contracting parties and the burden of proof on undue influence in those circumstances were legally appropriate here. 3. Factual Appropriateness In assessing the sufficiency of the factual basis for an instruction, both the district court in the first instance and this court on appellate review must look at the record in the best light for the party asking for the instruction, here Joyce. Foster , 296 Kan. at 301, 294 P.3d 223. We summarize the evidence that way. As they grew older, John and Joyce set up a trust that provided for the disposition of three quarter sections of land they owned in Brown County, including farmland and the house they lived in. The trust permitted the surviving spouse to use the house and all of the land. Upon his or her death, the trust assets were to be divided among John and Joyce's four adult children, including Steven. Steven assisted John in running the family farm and took over more and more of the operation as his parents aged. Jebediah actively participated in the farming business as both a child and an adult. In its final form, the trust directed that upon the deaths of Joyce and John, Steven would receive the quarter section of farmland on which he lived and all the farm equipment. The trust severed John and Joyce's house and about 2 acres of land from the rest of the homestead quarter section and directed that both parcels go to their other children: John W. Moore, Sue Hartter, and Wilma Rainwater. John W., Sue, and Wilma also were to receive the third quarter section of farmland. The trust gave Steven the first right to purchase the farmland from his siblings at a fair market price to be set through an appraisal process. Family members understood the intent behind the trust to be that Steven would continue the farming operation on all the land, thus his first option to purchase any of the farmland his siblings might wish to sell. At some point, John and Joyce signed powers of attorney for their financial affairs and medical directives naming Steven as the successor to whichever of them died first. In early 2014, John, then 81 years old, was dying of pancreatic cancer. Joyce, then 80 years old, had been caring for him at home with the help of a hospice program. On May 16, Joyce was admitted to a local hospital with fever, chills, and nausea; she was diagnosed as having a severe abdominal infection. Later that day, Steven went to see his father and had him sign a contract selling his and Joyce's house and the surrounding 2 acres to Jebediah for $110,000. The contract called for a down payment of $20,000 with the balance to be paid to John and Joyce in monthly installments over 20 years at 2 percent interest. Steven then took the contract to the hospital and had his mother sign it. John died six days later. Steven assumed full control of the farming operation and consistent with the power of attorney began handling Joyce's personal finances in addition to those of the business. During the trial, witnesses variously described Joyce as "completely devastated," "distraught," and "grieving" following John's death. Over the next several months, Steven repeatedly told Joyce that she should let Jebediah buy the farmland to preserve the family business and that if she did not, the other children literally could sell the property out from underneath him. On September 9, Steven, Jebediah, and Joyce went to see a lawyer with the firm that had regularly done work for Joyce and John for about 30 years. The firm had advised John and Joyce on business and personal legal matters, including the trust disposing of their land. The lawyer presented Joyce with a contract to sell the remainder of the homestead quarter section and the third quarter section to Jebediah for $292,000. The contract required a down payment of $5,000 with the balance to be paid to Joyce in annual installments over 30 years at 2 percent interest. Steven, rather than Joyce, had asked the lawyer to prepare the contract. Joyce had not seen the contract before the meeting. And the lawyer did not discuss with Joyce the effect of the sale on the trust. Joyce signed the contract then and there. John W., Sue, and Wilma received no advance notice of the sale. Through the contracts, Jebediah acquired the two quarter sections, including John and Joyce's home, designated to go to Steven's siblings under the terms of the trust. The only remaining trust asset of substantial value was the quarter section of land designated to go to Steven. The contracts together called for Jebediah to pay $25,000 up front with the balance of $377,000 due in installments to Joyce over 20 to 30 years with 2 percent interest. An appraisal of the quarter sections done in probating John's estate showed one to have a fair market value of $642,000 and the other $768,000. So Jebediah bought real estate worth about $1.4 million for $402,000 with nearly 95 percent of the purchase price due in installments through 2044. By agreeing to the installment arrangements, Joyce personally financed the transactions except for the down payments. Those facts taken in the best light for Joyce would support a finding that Steven held a position of confidence with John and her. See Brown v. Foulks , 232 Kan. 424, 430-31, 657 P.2d 501 (1983) (confidential or fiduciary relationship entails one party "repos[ing] special trust and confidence in [another party] who is in a position to have and exercise influence over the first party"; Nelson v. Nelson , 38 Kan. App. 2d 64, 78, 162 P.3d 43 (2007) (same), aff'd 288 Kan. 570, 205 P.3d 715 (2009). Steven had assumed significant control of the family farming business-control that deepened as John succumbed to pancreatic cancer and Joyce concentrated on caring for him. After John's death, Steven further insinuated himself into both the business and Joyce's personal finances. More generally, John and Joyce displayed the requisite sort of confidence in Steven both through his involvement in the family business and their trusting him enough to name him in their powers of attorney and medical directives. Jury instructions on confidential relationships and their relevant legal consequences were factually appropriate. The jurors, therefore, should have been instructed on circumstances creating a confidential or fiduciary relationship and that if Steven occupied a position of confidence in dealing with John and Joyce, he and Jebediah bore the burden of proving that either or both contracts were not the result of Steven's undue influence over his parents. The district court did instruct the jurors on the nature of confidential relationships consistent with PIK Civ. 4th 125.01 and the caselaw. But the district court failed to inform the jurors that the burden of proof shifted to Steven and Jebediah if the jurors found confidential relationships. So the lone instruction, as given, provided no meaningful guidance to the jurors in applying Kansas law on contracts between parties in a confidential relationship. The district court erred on this point. 4. Harmlessness We could excuse the error if it were harmless in the sense that the evidence so favored Steven and Jebediah that the jurors would have come to the same conclusion had they been properly instructed. To make that assessment, we review all the trial evidence with no particular deference to either side. State v. Plummer , 295 Kan. 156, 168, 283 P.3d 202 (2012). But Steven and Jebediah, as the parties aided by the error, must establish harmlessness. Siruta , 301 Kan. at 771-72, 348 P.3d 549. First, the jurors had sufficient evidence to find Steven maintained confidential relationships with John and Joyce predating the contracts, and nothing changed the basic nature of their interaction as the events surrounding the real estate sales unfolded. Steven largely ran the family farm as John's health declined and Joyce focused on caring for her husband in his last illness. After John's death, Steven also managed Joyce's personal finances. Close blood relatives, such as parent and child, may forge confidential relationships through interactions, including financial dealings, that evince one reposing trust in the other. But consanguinity alone is insufficient. See Estate of Draper v. Bank of America , 288 Kan. 510, 519, 205 P.3d 698 (2009) (" 'confidential relationship' " may arise from "blood relationship" when trust reposed, but parent-child relationship alone not presumptively confidential); Brown , 232 Kan. at 432, 657 P.2d 501 (real estate transfers between family members may create fiduciary or confidential relationships). Ultimately, the Kansas appellate courts have declined to fashion an overarching definition of confidential relationships and defer, instead, to an inquiry into the particular facts of a given case. In re Estate of Farr , 274 Kan. 51, 72, 49 P.3d 415 (2002) ; Denison State Bank v. Madeira , 230 Kan. 684, 691-92, 640 P.2d 1235 (1982). Steven did not aggressively contest the confidential nature of his relationship with John and Joyce, likely a wise tactical decision in light of the evidence. Second, the instructional error theoretically would be harmless if the trial evidence clearly established Steven did not exert undue influence over John and Joyce with respect to the contracts. Steven didn't dispute the terms of the contracts or the general circumstances under which John and Joyce assented. Rather, he testified that his parents acted knowledgably and independently in selling the homestead to Jebediah and that he did not impermissibly influence Joyce later to sell the farmland to Jebediah. Joyce, however, testified that she felt pressured to sign the contracts. Both Steven and Joyce were interested witnesses with something to gain. See State v. Scott , 39 Kan. App. 2d 49, 56, 177 P.3d 972 (2008) ("One of the methods or techniques for attacking the credibility of a witness is to show partiality, including bias, motive, and interest in the outcome."); Dalton v. Battaglia , 402 F.3d 729, 735 (7th Cir. 2005) ("[A] witness's potential self-interest in testifying about matters for which he or she has direct knowledge goes to the weight and credibility of the testimony."). A physician testified that after reviewing relevant medical records of John and Joyce, he concluded neither of them likely was sufficiently engaged in May 2014 to make well-informed decisions about major financial matters. Lay witnesses offered varied assessments of John's and Joyce's mental and emotional pliability in May 2014 and Joyce's in September 2014. Whether a contracting party has been unduly influenced presents a question of fact turning upon the particulars of the transaction. Frame , 202 Kan. at 468, 449 P.2d 525 ; Leppke v. Heier , No. 108377, 2013 WL 5187437, at *4 (Kan. App. 2013) (unpublished opinion). The question asks if the party " 'exercised his [or her] own free agency and acted voluntarily by the use of his [or her] own reason and judgment.' " Frame , 202 Kan. at 468, 449 P.2d 525 (quoting Cersovsky v. Cersovsky , 201 Kan. 463, 467, 441 P.2d 829 [1968] [quoting Homewood v. Eggers , 132 Kan. 256, Syl. ¶ 5, 295 P. 681 (1931) ] ). Undue influence requires that degree of pressure sufficient to overpower the party's free will. Cersovsky , 201 Kan. at 467, 441 P.2d 829. The fact-finder should consider all the circumstances, including the relationship of the parties; the timing and manner of suggestion, advice, or other pressure; the motive for applying that pressure; and the effect of the pressure. 201 Kan. at 467, 441 P.2d 829. Reviewing the whole trial record, we decline to say the evidence tilted so far in Steven's direction that an instruction placing the burden on him to disprove undue influence over John and Joyce would have had no impact on the outcome. On balance, we see this case viewed from Steven's perspective as, at best, a close one, meaning the allocation of the burden of proof on undue influence may very well have affected the jury verdicts. The evidence offered multiple indicators of undue influence: • Steven presented the contract to sell the homestead to John as he was dying from pancreatic cancer. A physician testified that John probably did not fully comprehend the transaction. The same day, Steven had Joyce sign the contract after she had been admitted to the hospital. The physician similarly suggested she was in no condition to make significant financial decisions. Even if John and Joyce had the capacity to enter into contracts, their weakened conditions could have made them susceptible to pressure from Steven to act when they otherwise would not have. • Jebediah purchased the homestead at a discounted price on especially favorable terms calling for installment payments to Joyce for 20 years. • Four months later, Steven presented Joyce with a contract to sell two parcels of farmland to Jebediah. The contract was drafted at Steven's request by the law firm that had regularly done work for John and Joyce. Joyce had not seen the contract before Steven took her to the law office to sign it. • Jebediah purchased the farmland at a steeply discounted price again on favorable terms with installment payments to Joyce for 30 years. • As a result of the land sales to Jebediah, the only significant asset left in a trust John and Joyce had set up years earlier was a quarter section of farmland that would go to Steven upon their deaths. The land Jebediah bought would have gone to John and Joyce's other children. Joyce never expressed any interest in or took any steps to change the trust. • After John's death, Steven repeatedly told Joyce she needed to let Jebediah buy the land because her other children would eventually sell off the land they received through the trust, thereby destroying the family farm. But the trust gave Steven a first option to purchase any of the land his siblings might wish to sell and established an appraisal process to set a fair market price. • John and Joyce's other children were not informed of the land sales to Jebediah, even though the transactions adversely affected their beneficial interests created in the trust. Those circumstances show Steven presented the first contract to John and Joyce when they were especially vulnerable. And Joyce was afforded no opportunity to review or consider the second contract. Steven engineered the transactions without informing his siblings, who, as a result, lost the only assets they would have received from the trust. Steven pressured Joyce to sell the homestead and farmland to Jebediah for much less than fair value-real property that otherwise would have been gone to Steven's siblings through the trust. He relied on a plea to Joyce that the family farm would be lost if she didn't. But Steven actually had the right to purchase that land from his siblings under the trust, although the price almost certainly would have been considerably higher than what Jebediah paid. The evidence arguably depicts Steven manipulating John and Joyce to secure for his own benefit (through Jebediah) real property that John and Joyce had already made a deliberative choice to bequeath to John W., Sue, and Wilma. He did so with what could be characterized as ambush-like presentations of sales contracts to John and Joyce and wily entreaties to Joyce. Although we decline to speculate about precisely why the jury found for Steven and Jebediah, we easily conclude they cannot show to a reasonable probability the result would have been the same had they been required to prove the absence of undue influence.[1] [1] As a legal matter, it makes no difference that Steven exerted the challenged influence over John and Joyce for the immediate benefit of Jebediah. See Frame , 202 Kan. at 467, 449 P.2d 525. Steven benefitted because his son acquired the homestead and farmland at considerably less than fair market value, removing those properties from the trust John and Joyce had set up. Steven and Jebediah had already partnered in running the farm. The district court's instructional error, therefore, cannot be disregarded as harmless. The mistake deprived Joyce of fair consideration of her undue influence claims and requires reversal of those verdicts for Steven and Jebediah with a remand to the district court for further proceedings. District Court Erred Even Under Inapplicable Testamentary Law Before getting to the appropriate remedy on remand, we pause to explain the district court's mistaken analysis leading to the instructional error. The district court concluded that the rule recently repeated in Cresto governing testamentary instruments, such as wills and trusts, governed this issue, meaning Joyce had to show both a confidential relationship with Steven and "suspicious circumstances" surrounding the contracts to shift the burden of proof on undue influence. How the district court came to that conclusion isn't entirely clear given the longstanding distinction in Kansas law between contracts and testamentary instruments when it comes to proof of undue influence when confidential relationships may be involved. The court in Frame reiterated the established rule governing contracts between parties in a confidential relationship. 202 Kan. at 467, 449 P.2d 525. That rule and the distinction between contracts, on the one hand, and testamentary instruments, on the other, when it comes to undue influence reach deep into Kansas legal history, as the extended discussion in Smith illustrates. 84 Kan. at 244-47, 114 P. 245. Although Smith clearly defines the differing treatment of contracts and wills, the courts have offered no readily discernible policy rationale for the dichotomy. We suppose a couple of reasons might be at work. First, the law strongly favors effectuation of a will over intestate succession. Parsons v. Smith, Trustee , 190 Kan. 569, 573, 376 P.2d 899 (1962) ; In re Estate of Crawshaw , 15 Kan. App. 2d 273, 279, 806 P.2d 1014 (1991). Second, a disputed will cannot be probated or enforced unless the document has been witnessed and the witnesses testify the testator voluntarily signed it and appeared to be mentally competent or the will is "self-proved" through an affidavit of the witnesses that the testator "was of sound mind and under no restraint." See K.S.A. 59-606. Those considerations in tandem arguably support a more rigorous standard to reverse the usual burden of proving undue influence for wills than for contracts. Nothing in Cresto , a will contest, suggests the law on this point has changed. While Cresto doesn't discuss undue influence claims in contract cases-law that would have been irrelevant-it repeatedly relies on Ginter v. Ginter , 79 Kan. 721, 101 P. 634 (1909), another early Kansas case discussing the differences between undue influence in contract disputes and will contests and a key precedent in Smith , 84 Kan. at 245-46, 114 P. 245. The district court incorrectly transplanted into this case the legal test for reversing the burden of proof on undue influence in will contests, as outlined in Cresto . In the district court and again on appeal, Steven relies heavily on Heck v. Archer , 23 Kan. App. 2d 57, 927 P.2d 495 (1996), that unfortunately (and, in our view, incorrectly) blurs the distinction between contract cases and will contests involving assertions of undue influence. In that case, Heck set up several pay-on-death bank accounts with substantial deposits. Upon his death, the account balances were to go to a woman with whom he had an intermittent relationship. An heir of Heck's challenged the pay-on-death accounts as the product of the woman's undue influence over Heck. By statute, pay-on-death bank accounts were then and are now considered nontestamentary, even though they function, in part, to shift assets from someone who has died to a designated beneficiary. K.S.A. 2017 Supp. 9-1215. This court held that no confidential relationship existed between Heck and the woman, so she did not bear the burden of proving the absence of undue influence. 23 Kan. App. 2d at 64, 927 P.2d 495. The court, however, summarized what it characterized as the law governing contracts and wills as "nearly identical" and as requiring both a confidential relationship and suspicious circumstances to shift the burden of proving undue influence to the person seeking to enforce the contract or will. 23 Kan. App. 2d at 62-63, 927 P.2d 495. Without acknowledging authority such as Frame , Smith , and Ginter , the court incorrectly collapsed the rule governing proof of undue influence in contract disputes into the different rule for will contests. Here, the district court may have been misguided by the incomplete discussion in Heck and, as a result, relied on the rule for wills and other testamentary instruments laid out in Cresto . Even if we are mistaken and the rule in Cresto actually applies, thereby requiring both a confidential relationship and suspicious circumstances to shift the burden of proof on undue influence, the district court erred in fashioning the jury instructions. The district court considered the trial evidence and concluded Joyce had presented insufficient evidence to prove suspicious circumstances and, therefore, simply instructed the jurors that Joyce had to establish undue influence. The district court effectively weighed the evidence as if it were a super juror and ruled against Joyce. But that is not the correct standard in determining whether to instruct a jury. The test is whether reasonable jurors could view the evidence as supporting the disputed proposition-here, under Cresto , were there suspicious circumstances surrounding either or both contracts? See State v. Lindemuth , 55 Kan. App. 2d 419, Syl. ¶ 2, 417 P.3d 262 (2018) ("A requested jury instruction should be given when there is sufficient evidence that a rational fact-finder could use to find for [the party] on that theory."). If so, the district court should instruct the jurors. The existence of suspicious circumstances typically presents a question of fact. But what constitutes suspicious circumstances is especially elastic and turns on the particulars of a given case. Cresto , 302 Kan. at 836, 358 P.3d 831 ; In re Estate of Haneberg , 270 Kan. 365, 376, 14 P.3d 1088 (2000) ; In re Estate of Bennett , 19 Kan. App. 2d 154, 170, 865 P.2d 1062 (1993). What may be suspicious in one case may not be in another case. Cresto , 302 Kan. at 835-36, 358 P.3d 831. The trial evidence we have laid out as indicative of undue influence also, by and large, could reasonably be considered suspicious circumstances. For example, the contracts effectively disinherited John W., Sue, and Wilma in contradiction of the trust John and Joyce had set up. See Cresto , 302 Kan. at 836-37, 358 P.3d 831 (unexplained disinheritance of children likely suspicious). Joyce's apparent lack of interest in or initiative to alter the trust only heightens the suspicious character of the contracts. The particularly favorable terms of sale could be suspicious, especially given the conditions under which each contract was signed. And Steven's repeated pleas to Joyce that the sale of the farmland to Jebediah was essential to preserve the family business when the trust gave Steven a right to purchase that land, albeit at a fair market price, could be characterized suspicious. In short, the pattern of Steven's conduct in preparing and presenting the contracts coupled with the substantial benefit accruing indirectly to him and directly to Jebediah and the concomitant disadvantage to John W., Sue, and Wilma establishes more than enough to allow a fact-finder to conclude the transactions were rife with suspicion. Had Cresto governed here (though we think it did not), the district court should have instructed the jury on confidential relationships and suspicious circumstances in conjunction with who bore the burden of proving undue influence. Even under its view of the controlling law, the district court committed reversible error in failing to submit the question of suspicious circumstances to the jurors for their determination.[2] [2]We do not delve into the best way to have presented those interlocking issues to the jurors. Who bore the burden of proof of undue influence-Joyce or Steven-would have depended upon the jurors' factual findings on whether there were confidential relationships and suspicious circumstances. One option would have been to give the jurors a conditional instruction that informed them that if they found confidential relationships and suspicious circumstances, then Steven had to prove the absence of undue influence but otherwise Joyce had to prove there was undue influence. Another option would have been to bifurcate the issues, entailing sequential instructions, arguments, and jury determinations first on confidential relationships and suspicious circumstances and then on undue influence with the burden of proof fixed by the initial determinations. See ABA Civil Trial Practice Standards § 10.e (2007) (trial court should consider submitting issues to jury sequentially if determination of one issue may moot others). By any measure, the district court failed to adequately instruct the jurors on the law applicable to Joyce's undue influence claims. The error prejudiced Joyce and, given the trial evidence, cannot be dismissed as harmless. We reverse the verdicts in favor of Steven and Jebediah finding neither contract to be the product of undue influence. On appeal, Joyce challenged the jury instructions in other ways she contends deprived her of fair consideration of her undue influence claims. We need not and do not consider those arguments given our decision to otherwise reverse those verdicts. JOYCE FAILED TO ESTABLISH REVERSIBLE ERROR ON CAPACITY CLAIMS Factual and Procedural Background At trial, Joyce contended that neither she nor John had the required mental capacity to enter into a binding contract when they agreed in May 2014 to sell the homestead to Jebediah. And she likewise argued she lacked capacity to contract in September when she sold the farmland to Jebediah. The jury returned verdicts in favor of Steven and Jebediah on the lack of capacity claims. On appeal, Joyce challenges those verdicts on factually interrelated bases of improper closing argument by Steven and Jebediah's lawyer and juror misconduct during deliberations. We find insufficient grounds to reverse the verdicts for those reasons. Those arguments, if well-taken, also would have required reversal of the verdicts for Steven and Jebediah on undue influence. A person lacks the capacity to enter into a contract if he or she hasn't the mental wherewithal "to understand in a reasonable manner the nature and effect" of the agreement. DeBauge Bros., Inc. v. Whitsitt , 212 Kan. 758, 762, 512 P.2d 487 (1973). Because the appellate challenges Joyce presses do not depend on the trial evidence related to capacity, we need not recite that evidence or comment further on the law governing the lack of capacity to contract. But we do need to add some other facts and procedural history to put the challenges in context. In her petition, Joyce sued the law firm for professional negligence and breach of fiduciary duty for its role in preparing both contracts and its participation in the September 2014 meeting at which Joyce signed the contract selling the farmland. She sought money damages on those claims. Before trial, Joyce dismissed the law firm as a defendant. Information in the record indicates Joyce and the law firm reached some sort of settlement. During the trial, the jurors heard no evidence about Joyce's specific complaints about the law firm's conduct, that the law firm had been sued, or that some resolution between Joyce and the law firm had been reached. But the lawyer who prepared the contract for sale of the homestead and the lawyer who prepared the contract for the sale of the farmland and participated in the September 14 meeting with Joyce both testified. In closing argument, Joyce's lawyer told the jurors those lawyers had violated their duty to Joyce and had "failed in a key job" by acting as they did on behalf of Steven. Steven and Jebediah's lawyer countered that if Joyce believed the lawyers acted inappropriately, she should "make a claim against them .... There's no evidence." Joyce, of course, did make a claim against the lawyers, so the counterargument was, at the very least, deceptive and improper. Her lawyer did not immediately object but requested a bench conference before beginning his rebuttal to the jury. The bench conference was off the record, so we don't know what the lawyers or the district court said. In their briefs, the parties agree the discussion focused on the remark of Steven and Jebediah's lawyer suggesting Joyce should have made a claim against the lawyers involved in preparing and presenting the contracts. In his rebuttal, Joyce's lawyer told the jurors: "[Steven's counsel] implied to you that if we had a problem with [the lawyers], that we should have made a claim against them. Do you remember him saying that to you? Implying that if we really felt that way, we should do something about it. We all have been very diligent this entire trial of not exposing you guys to the fact that they were sued for breach of duty to Joyce Moore, for breach their duty they owed to her, because we agreed to keep it confidential. [Steven's counsel] opened the door by implying that if we really meant it, we should bring a claim against them. Well, we did. And they got their carrier involved and they paid for breaching their duty to Joyce Moore. We thought we would do this case without that fact being known to you, but now it is because the door was opened. Factor that into your deliberations, too. I think you're entitled to that." Joyce's lawyer offered that rebuttal argument without objection from Steven and Jebediah's lawyer or admonition from the district court. We, therefore, presume that during the off-the-record conference, the district court authorized the gist of the rebuttal as a remedy for the improper argument from Steven and Jebediah's lawyer. We, of course, don't know if Joyce's lawyer preferred some other fix or if they even considered an alternative, such as a curative instruction from the district court. In a motion for a new trial, Joyce cited the remark of Steven and Jebediah's lawyer as sufficiently prejudicial to deprive her of a fair trial. She also asserted two instances of purported juror misconduct, one of which ties back to the closing argument kerfuffle. Joyce alleged several jurors talked about the settlement with the law firm during deliberations and suggested Joyce would be financially secure as a result of that settlement combined with what she would receive from the land sales to Jebediah. Joyce also alleged that during deliberations the presiding juror said he knew her and the Moore family. In jury selection at the start of the trial, he did not disclose that he knew any of the parties. Joyce submitted a short affidavit from one juror with her motion confirming both assertions. The motion itself recites that Joyce's lawyer spoke with two other jurors who said the settlement with the lawyers came up during deliberations. The district court held a hearing on Joyce's motion for a new trial. A transcript of that hearing has not been included in the record on appeal. The district court denied the motion in an order entered several months later that simply identified and denied without explanation the points Joyce had raised. Juror Misconduct On appeal, Joyce reprises the juror misconduct arguments and submits the jurors' discussion of her settlement with the lawyers demonstrates actual prejudice flowing from the closing argument. We first look at the claimed misconduct and then turn to the closing argument. As the party alleging error, Joyce must furnish a record that supports the claimed mistakes. See State v. Kidd , 293 Kan. 591, 601, 265 P.3d 1165 (2011) ; State v. Paul , 285 Kan. 658, 670, 175 P.3d 840 (2008). Thus, "[w]hen there are blanks in that record, appellate courts do not fill them in by making assumptions favoring the party claiming error in the district court." Harman v. State , No. 108478, 2013 WL 3792407, at *1 (Kan. App. 2013) (unpublished opinion). And that poses a problem here. As a sworn statement containing firsthand observations, the affidavit from the juror, though cursory, was procedurally sufficient to warrant a hearing on the issue. Cornejo v. Probst , 6 Kan. App. 2d 529, Syl. ¶ 2, 630 P.2d 1202 (1981) ; cf. Douglas v. Lombardino , 236 Kan. 471, 489-90, 693 P.2d 1138 (1985) (motion for new trial based on newly discovered evidence requires supporting affidavit, deposition, or comparable foundation). The unsupported representations in the motion reciting what other jurors later said about their deliberations probably were not. An affidavit, however, typically would not be admissible as substantive evidence at a hearing. It is the out-of-court declaration of the affiant and, thus, inadmissible hearsay. In re Marriage of Lynn , No. 114154, 2016 WL 3856630, at *3 (Kan. App. 2016) (unpublished opinion) ("Affidavits are generally treated as inadmissible hearsay at trial and in most evidentiary hearings, since the declarants cannot be cross-examined and the factfinder cannot gauge their demeanor."). Here, the affiant's own statements about what happened in the jury room fit within no hearsay exception. Nothing in the record indicates the juror signing the affidavit appeared or testified at the hearing on Joyce's motion for a new trial. See K.S.A. 2017 Supp. 60-460(a) (hearsay exception for out-of-court statements when declarant present and available for cross-examination). Because we have no transcript, we don't know what the parties presented (or objected to) as evidence at the hearing. And we don't know why the district court denied Joyce's point. What we can and do say is that while the juror affidavit alone may have been sufficient to trigger a hearing, it failed to provide a sufficient evidentiary basis to grant the motion at a hearing. From what we have before us, we cannot find the district court erred in denying Joyce a new trial because of juror misconduct. We have no basis to conclude Joyce presented any admissible evidence at the hearing in support of the claim. Given the paucity of evidence, we offer no opinion on the substantive merits of either allegation of misconduct. The product of that endeavor would be inappropriately speculative and advisory. See State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016) ("Kansas courts do not issue advisory opinions."). Improper Jury Argument Turning to the improper jury argument, we begin with the general principle that district courts have broad authority in remedying lawyer error or misconduct during trial. See State v. Sherman , 305 Kan. 88, 118-19, 378 P.3d 1060 (2016) (district court denial of mistrial for alleged prosecutorial error reviewed for abuse of discretion); Thompson v. KFB Ins. Co. , 252 Kan. 1010, 1030, 850 P.2d 773 (1993). If the district court acted within that authority in addressing the comment from Steven and Jebediah's lawyer, then Joyce can show neither a sound basis for a new trial nor an error in denying her motion. We apply an abuse of discretion standard in reviewing the district court's handling of the objectionable argument. A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 935, 296 P.3d 1106 (2013) ; State v. Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). As with the juror misconduct issue, we are hamstrung by an incomplete record, most notably the off-the-record bench conference. We obviously haven't a transcript. And nobody later summarized on the record the gist of the discussion and the resulting ruling. So we don't know why the district court decided to permit a brief rebuttal argument disclosing the claim Joyce brought against the lawyers and the resulting settlement as the best remedy for the comment from Steven and Jebediah's lawyer. Particularly pertinent to our task, we have no idea whether Joyce's lawyer requested that remedy or really wanted something else. If that were the corrective Joyce sought, she can't complain about it now as a basis to upset the jury verdicts. That would be an invited error precluding appellate relief. See State v. Hargrove , 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013). From the appellate record, we can't say. In a civil case, we might infer Joyce's claimed error to have been invited based on a silent record. But maybe Joyce's lawyer asked for a mistrial or an instruction from the district court to the jurors and had to settle for a limited disclosure about the litigation with the lawyers. If the record showed as much, we could assess the relative merits of the requested relief as against the relief the district court allowed. We don't have the necessary information to do so, and Joyce had the obligation to furnish that information to us. Given those constraints, we cannot say the district court abused its discretion on this point. We presume the district court understood the factual circumstances. It had handled the case for months and was familiar with Joyce's claims against the lawyers. It heard the trial evidence and the closing arguments. Nothing in the record suggests the district court misapprehended what happened. We don't see a patent legal error in the relief afforded Joyce, although we suppose there might have been more efficacious ways to repair the damage done. That's not the test. We have the luxury of hindsight and virtually unlimited time to contemplate an unusual situation the district court had to resolve with dispatch. Because the appellate record establishes neither a factual misunderstanding nor a clear legal mistake, we are left to ask whether another district court would have handled the problem essentially the way this district court did. Our answer is yes. The district court's solution came within the broad range of reasonableness that characterizes judicial discretion. RESOLUTION OF APPELLATE ISSUES As we have described, Joyce challenged two contracts selling land to Jebediah on the grounds of lack of capacity and of undue influence. Those are independent bases for vitiating the contracts. So the trial centered on four claims. We have found instructional errors sufficiently misinformed the jurors about the law governing the undue influence claims to deprive Joyce of a fair hearing on those claims. Those verdicts in favor of Steven and Jebediah on both contracts must be set aside, along with that part of the judgment. We have found no reversible error with respect to the verdicts for Steven and Jebediah on the lack of capacity claims as to both contracts. Those verdicts remain in place. The verdicts that John and Joyce had the capacity to enter into contracts do not, however, have any direct legal effect on the undue influence claims or the instructional defects rendering those verdicts legally insufficient. That's because individuals with the mental capacity to enter into contracts may still be unduly influenced to agree to things they otherwise would not, thereby rendering any contract void. See Rezac v. Rezac , 115 Kan. 482, 484, 223 P. 295 (1924) (district court decision finding deeds valid affirmed where evidence supports finding grantor had capacity to contract and was not subject to undue influence); Linn v. Blanton , 111 Kan. 743, 749, 208 P. 616 (1922) ("[T]hat Blanton had mental capacity to make the deed ..., we do not think [that] establishes undue influence."). Were the law otherwise, lack of capacity would be a necessary condition for a successful undue influence claim. In turn, undue influence claims would become vestigial, since lack of capacity would void any contract without the need to consider undue influence. The judgment for Steven and Jebediah must be reversed. The case has to be remanded to the district court for further proceedings on Joyce's undue influence claims as to both contracts. PROCEEDINGS ON REMAND Ordinarily when a party has been deprived of a fair trial because jurors have been incorrectly instructed on the law, the party would be entitled to a do-over with a new jury. As we explain, Joyce had no right to a jury trial in the first place, so she can't be entitled to another one as a remedy here. But she is and always has been entitled to a fair hearing in front of an appropriate fact-finder. Because Joyce has asserted equitable claims, the district court properly acts as the fact-finder in a bench trial. So what Joyce should receive on remand is a fair bench trial, and that does not require a new trial. Both claims Joyce pursued at trial-lack of capacity and undue influence-were equitable rather than legal in that they effectively would void or rescind the contracts rather than yield money damages for breach. See In re Estate of Johnson , 176 Kan. 339, 345, 270 P.2d 293 (1954) (undue influence in transfer of real property presents equitable claim); Peterson v. Peterson , 10 Kan. App. 2d 437, Syl. ¶ 2, 700 P.2d 585 (1985) (characterizing undue influence as claim "cognizable in equity"). Rescission is recognized as an equitable remedy. Waggener v. Seever Systems, Inc. , 233 Kan. 517, Syl. ¶ 4, 664 P.2d 813 (1983) ; Harnden v. Hadfield , 113 Kan. 525, 527, 215 P. 441 (1923). A successful claim for rescission does not call for money damages as a remedy. Money damages for what historically would have been a claim at law typically triggers the right to a jury trial. Waggener , 233 Kan. at 523, 664 P.2d 813 ; In re Estate of Heiman , 44 Kan. App. 2d 764, 771-72, 241 P.3d 161 (2010). Since undue influence entails an equitable claim for which Joyce sought rescission, she had no right to a jury trial. See Waggener , 233 Kan. 517, Syl. ¶ 4, 664 P.2d 813 ("Rescission is a suit in equity[,] and the party is not entitled to a jury trial as a matter of right."); In re Estate of Johnson , 176 Kan. at 345, 270 P.2d 293. Steven and Jebediah pursued no counterclaims, so they had no independent basis to request a jury trial.[3] [3]By contrast, Joyce's claims against the lawyers for professional malpractice and breach of fiduciary duty, for which she sought money damages, were legal rather than equitable and would have supported a request for a jury trial. But Joyce dismissed those claims before trial and could no longer demand a jury trial as a matter of right. Steven and Jebediah did not object to a jury trial at that point, although they could have. And the district court could have required the parties to proceed with a bench trial. The district court also had the option to empanel an advisory jury, but it didn't do that either. See K.S.A. 2017 Supp. 60-239(c) (district court may seat advisory jury or otherwise try any issue to a jury with consent of the parties). Before trial, Joyce suggested that if she prevailed on either of her claims for lack of capacity or undue influence, she would be entitled to at least a portion of the profits Steven and Jebediah realized from the farming operation from 2014 forward. The record isn't clear about the status of her position; there is some indication she withdrew her request for that relief. Even if she didn't, the request entailed an accounting and disgorgement, although Joyce did not use that terminology. Those are equitable remedies and would not have supported a right to jury trial. See Petrella v. Metro-Goldwyn-Mayer, Inc. , 572 U.S. 663, 134 S.Ct. 1962, 1978, 188 L.Ed.2d 979 (2014) (disgorgement of "unjust gains" form of equitable relief); Karnes Enterprises, Inc. v. Quan , 221 Kan. 596, 603, 561 P.2d 825 (1977) (accounting constitutes equitable relief); Carnes v. Meadowbrook Executive Bldg. Corp. , 17 Kan. App. 2d 292, 297, 836 P.2d 1212 (1992) (same). They are also closely allied remedies in that an accounting may be necessary to determine the amount to be disgorged as improper financial gain or profit. See SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC , 580 U.S. ----, 137 S.Ct. 954, 964, 197 L.Ed.2d 292 (2017) ; Roberts, Supreme Disgorgement , 68 Fla. L. Rev. 1413, 1427 (2016) (noting "historical affiliation" of disgorgement "with the equitable remedy of accounting"). Here, the error on which we reverse tainted the jury deliberations, resulting in deficient verdicts on the undue influence claims. But the error did not infect other parts of the trial. The district court saw the witnesses and examined the documentary evidence along with the jurors. The district court is, therefore, in a position to make findings of fact and conclusions of law based on the testimony and other evidence admitted during the jury trial. The witnesses need not again assemble to testify to what they have already said under oath before the district court. In her appeal, Joyce has not asserted any material issues with the evidentiary record. That is, she has not complained that the district court erred in admitting or excluding evidence during the trial. Even if there were evidentiary problems, they would not require a complete do-over. The district court could simply disregard improperly admitted evidence and would have the authority to supplement the existing record by receiving any improperly excluded evidence. But neither appears to be necessary here. On remand, the district court certainly can ask the parties for proposed findings and conclusions or invite additional argument from their lawyers on the undue influence claims as to both contracts if that would be helpful. In short, the district court should now treat the 2015 jury trial as a bench trial and make findings of fact and conclusions of law resolving Joyce's undue influence claims based on the trial evidence. Finally, we do not now and have not intended to suggest how the district court should decide those claims or the scope of any appropriate equitable remedy to be afforded Joyce if she prevails in any respect. Affirmed in part, reversed in part, and remanded with directions.

The opinion of the court was delivered by Luckert, J.: In this case, a trust and its beneficiaries assert separate damage claims against a deceased trustee for (1) punitive and (2) double damages under K.S.A. 58a-1002 of the Kansas Uniform Trust Code (KUTC) and under the common law relating to a breach of trust and a breach of fiduciary duty. This appeal asks us to determine as a matter of first impression whether those damages may be recovered after the death of a trustee. The short answer is, "Yes." K.S.A. 58a-1002, the punitive damages provisions in K.S.A. 60-3702 and 60-3703, and the Kansas survival statute, K.S.A. 60-1801, do not directly answer this question, leaving an ambiguity. But our statutory construction leads us to the conclusion that these statutes, when read together and in conjunction with Kansas common law, reveal a legislative intent to preserve the right to damages-even those that are penal in nature-after a tortfeasor's death. Thus, we conclude the death of a trustee does not prevent a trial court from allowing a trier of fact to determine whether the estate of a deceased trustee who committed a breach of fiduciary duty and knowingly committed a breach of trust should be liable for (1) punitive damages and (2) statutory damages equal to twice the amount of the property converted when those provide the greater recovery under K.S.A. 58a-1002(a). FACTS AND PROCEDURAL HISTORY Alain Ellis and her husband Dr. Harvey Ellis, Sr., both executed living trusts. After Alain's death, Harvey served as the trustee of her trust. Under the trust agreement, Harvey was entitled to all income from the trust during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, and each was to receive income from the principal. When either son died, the principal was to go to that son's children or, if he had no children, it was to be combined with the other son's trust. Neither Alain nor Harvey told their sons or their sole grandchild of the trust. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. His trust beneficiaries were several charitable and educational organizations. After his death, the improper transfers were discovered and investigated, resulting in $1,431,143.45 being returned to Alain's trust. Alain's trust and her trust's beneficiaries (cumulatively, Alain's Trust) sought additional damages by suing several parties, including The Harvey D. Ellis Living Trust, Harvey's estate, Cathleen Gulledge (an attorney who had advised Harvey and the successor trustee of Alain's trust), and Emprise Bank (a successor trustee for both Alain's and Harvey's trust). Some beneficiaries of The Harvey D. Ellis Living Trust-specifically, The Kansas University Endowment Association, Dallas Theological Seminary, and a Christian ministry group known as The Navigators-intervened to protect their interests as beneficiaries of Harvey's trust. (Harvey's trust, Harvey's estate, and the intervening beneficiaries of Harvey's trust will be cumulatively called Harvey's Estate.) Before trial, the trial court made two rulings that are now at issue. One relates to a motion to amend the petition to add a claim for punitive damages and the second to a ruling on a motion for partial summary judgment. In the first ruling, the trial court partially granted a motion to amend the petition by allowing Alain's Trust to make a claim for punitive damages against Gulledge and Emprise Bank. But it denied the request to seek punitive damages from Harvey's Estate. The trial court found that the facts established Harvey had engaged in willful and wanton misconduct, but it concluded Alain's Trust could not bring a punitive damages claim because he had passed away. In the second ruling, the trial court granted partial summary judgment after concluding Alain's Trust was not entitled to recover double damages under K.S.A. 58a-1002 against the assets of Harvey's Estate. The trial court held the facts did not fit K.S.A. 58a-1002(a)(3) -the provision of the KUTC that allows double damages. Alternatively, the trial court reasoned the provision, even if factually applicable, was not legally applicable because it was penal and claims for penal damages, such as punitive damages, do not survive the death of a malfeasant trustee. At trial, the trial court made some rulings as a matter of law. These resulted in the court instructing the jury that the court had ruled that Harvey's trust and estate were liable for any damages that resulted when Harvey "converted and embezzled principal in the amount of $1,541,827.59 from the Alain Ellis Living Trust and placed it in the Harvey D. Ellis Living Trust." The jury entered a verdict partially in favor of Alain's Trust. It found Harvey committed a breach of trust and a breach of fiduciary duty and that Gulledge had committed a breach of fiduciary duty. But the jury found that Emprise Bank was free of wrongdoing. The jury also determined the damages to be $1,557,973.48 and also found all "of those damages are a direct result of a breach by: Harvey D. Ellis, Sr." Despite finding wrongdoing by Gulledge, the jury declined to find her liable for any damages. The jury further found the damages should be offset with a credit in the amount of $1,431,143.45 because of the assets returned to Alain's Trust. On appeal to the Court of Appeals, Alain's Trust challenged the trial court's two rulings that prevented the jury from considering whether Alain's Trust should receive double or punitive damages against Harvey's Estate. One of the beneficiaries of Alain's trust also asserted the trial court erred in refusing to require Harvey's Estate to pay his attorney fees. The Court of Appeals affirmed the trial court's decision. Alain Ellis Living Trust v. Harvey D. Ellis Living Trust , 53 Kan. App. 2d 131, 385 P.3d 533 (2016). Alain's Trust petitioned for review of only the two issues about double and punitive damages. We granted review. The Court of Appeals' decision about payment of attorney fees is not before us. Nor is its conclusion that Harvey converted the property to his own use. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56) ("[I]ssues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals."). ANALYSIS We must decide: First, did the trial court err in ruling that Alain's trust could not seek punitive damages from a deceased settlor's revocable trust or estate even though the trustee has committed a breach of trust? Second, did the trial court err in ruling that the double damage penalty of K.S.A. 58a-1002(a)(3) does not survive the death of a malfeasant trustee? Both issues share the common question of whether Kansas law allows an injured party to recover all the various types of damages provided for in the KUTC or allowed at common law even if the trustee has died before judgment. As the Court of Appeals noted: "There is no doubt in this case that [Harvey] acted toward [Alain's Trust] with willful conduct and fraud that would have supported a claim against him for punitive damages had he still been alive at the time of the litigation." Alain Ellis Living Trust , 53 Kan. App. 2d at 137, 385 P.3d 533. Similarly, in addressing the double damages provision, the Court of Appeals held that Harvey's "actions would have subjected him to the double damages of K.S.A. 58a-1002(a)(3) had he been alive during this litigation." 53 Kan. App. 2d at 143, 385 P.3d 533. Nevertheless, the Court of Appeals determined Alain's Trust could not ask the jury to award the damages because: (1) K.S.A. 58a-1002 and other Kansas statutes do not specifically provide for recovery against an estate and there must be express statutory language that allows an injured party to seek to have punitive damages paid by anyone other than the actual wrongdoer, including the wrongdoer's estate; (2) as found by a majority of other courts, awarding punitive damages against an estate would not further the purposes of punitive damages, and (3) the double damage award, like the punitive damage provision, is penal and trust beneficiaries cannot seek double damages from the trustee's estate for the same reasons a court cannot award punitive damages against a deceased trustee's estate. 53 Kan. App. 2d at 141-45, 385 P.3d 533. We first address whether a trust beneficiary can seek punitive damages-whether sought under K.S.A. 58a-1002(c) or under common law-from the estate of a deceased tortfeasor. 1. Does Kansas law allow a trust and its beneficiaries to seek punitive damages from a deceased trustee ? During pretrial proceedings, the trial court denied a motion filed by Alain's Trust seeking to amend its petition to add a claim for punitive damages against Harvey's Estate. Both Alain's Trust and Harvey's Estate recognize this court has not decided whether a wrongdoer's death means an injured party cannot make a claim for punitive damages against the estate of a deceased wrongdoer. And the Court of Appeals has considered this question only in the decision we now review and in the more recent decision of Harder v. Foster , 54 Kan. App. 2d 444, 475, 401 P.3d 1032 (2017). Harder applied the reasoning of the Alain Ellis Living Trust Court of Appeals' panel to the general question of whether punitive damages can be applied against a deceased tortfeasor in a common-law cause of action-in that case, fraudulent conveyance. Even though this issue is one of first impression for our court, we review it as we would any other trial court ruling on a motion to amend-for an abuse of discretion. Adamson v. Bicknell , 295 Kan. 879, 887, 287 P.3d 274 (2012). A trial court can abuse its discretion in several ways, including when it bases a decision on an error of law. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011). And that is what Alain's Trust alleges happened here-the trial court made an erroneous ruling about the availability of punitive damages under Kansas law. The issue before us thus involves an "abstract question of law," which we review de novo. See In re Care and Treatment of Girard , 296 Kan. 372, 376, 294 P.3d 236 (2013). Harvey's Estate presented this issue of law to the trial court when it opposed the motion to amend filed by Alain's Trust. It argued that neither Kansas common law nor statutes allowed recovery of punitive damages against the estate of a deceased trustee. In response, Alain's Trust contends that legislative silence means the damages are available because the Legislature provided for the damages and then created no exception if a tortfeasor died. Alain's Trust points out that courts do not generally add words to a statute. See State v. Gray , 306 Kan. 1287, 1294, 403 P.3d 1220 (2017). And she suggests we would have to do so to create an exception not currently in the statutes. The proposed punitive damages claim offered by Alain's Trust does not rest solely on K.S.A. 58a-1002(c), however. Alain's Trust also alleged a common-law claim for breach of a fiduciary duty. See Newton v. Hornblower, Inc ., 224 Kan. 506, Syl. ¶ 1, 582 P.2d 1136 (1978) ("Punitive damages, as well as actual damages, are proper where a breach of fiduciary duty is involved."). And both parties focus on the caselaw of other jurisdictions to argue about whether punitive damages are generally available against a deceased tortfeasor. The outcome of many of these cases is based on statutory interpretation, at least in part. For example, at least 14 of the cases adopting the position that an injured party cannot recover punitive damages from the estate of a tortfeasor-the majority rule-reached that conclusion because their respective state legislatures had passed a statute stating that position. And two other courts took the opposite position by applying a statute that adopted the minority position. Still other courts had no clear statutory language to rely upon, but these courts applied rules of statutory construction and discerned their respective state legislature's intent about whether a punitive damage claim survives the death of a trustee. See, e.g., Estate of Farrell ex rel. Bennett v. Gordon , 770 A.2d 517, 522 (Del. 2001) ; see also Note, Invading the Realm of the Dead: Exploring the (Im)Propriety of Punitive Damage Awards Against Estates , 47 U. Mich. J.L. Reform 827, 831-35 (2014). The Kansas statutes most relevant to our inquiry include those generally providing for punitive damages, K.S.A. 60-3702 and 60-3703 ; K.S.A. 58a-1002, the applicable damage provision from the KUTC; and the Kansas survival statute, K.S.A. 60-1801. We consider these statutes de novo and apply the fundamental principle of statutory interpretation: The intent of the Legislature governs. State v. Spencer Gifts , 304 Kan. 755, 761-62, 374 P.3d 680 (2016). "And 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." Wright v. Noell , 16 Kan. 601, 607, 1876 WL 1081 (1876) ; see Spencer Gifts , 304 Kan. at 761, 374 P.3d 680. Kansas statutes, like the statutes in several states, do not directly address the effect of a death on punitive damages. In other situations in which statutes displace the common law, we have recognized that ambiguity about the scope of the displacement may arise from legislative silence. See State v. Quested , 302 Kan. 262, 268, 352 P.3d 553 (2015). The same type of ambiguity exists here. "When faced with an ambiguity, courts must attempt to ascertain legislative intent and in doing so may look to canons of construction, legislative history, the circumstances attending the statute's passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested." 302 Kan. at 268, 352 P.3d 553. We consider those principles as applied to punitive damages in Kansas caselaw and statutes. 1.1. Kansas Caselaw and Statutes As early as 1864, this court recognized that punitive damages had "been long established, recognized and acted upon by enlightened Courts." Malone v. Murphy , 2 Kan. 250, 262, 1864 WL 425 (1864). Following this decision and during much of our state's history, Kansas law about punitive damages was based on common law. Eventually, however, the Kansas Legislature passed a punitive damages statute. And in 1988, the Kansas Legislature adopted the statutes now codified, with some later amendments, at K.S.A. 60-3702 and 60-3703. See L. 1997, ch. 173, § 33 (amendment); L. 1992, ch. 307, §§ 3, 4 (amendment); L. 1988, ch. 209, §§ 3, 4 (adopting K.S.A. 60-3702 and 60-3703 ). After the adoption of these statutes, this court recognized that the Kansas Legislature has "the power to abolish punitive damages altogether" and "certainly has the right to modify the method by which those damages are determined." Smith v. Printup , 254 Kan. 315, 331, 866 P.2d 985 (1993). Thus, as the Court of Appeals concluded, "the recovery of punitive damages is governed by statute." The Alain Ellis Trust , 53 Kan. App. 2d at 140, 385 P.3d 533. K.S.A. 60-3702 begins by stating: "In any civil action in which exemplary or punitive damages are recoverable, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed." K.S.A. 60-3702(a). K.S.A. 60-3703 specifies a procedure for seeking those damages. The party seeking punitive damages must file a motion to amend its pleading to state a claim for punitive damages and must support the motion with affidavits. The party must establish a probability of success on the punitive damage claim before the amendment will be allowed. At trial, a plaintiff seeking punitive damages "shall have the burden of proving, by clear and convincing evidence, ... that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice." K.S.A. 60-3702(c). Applying that provision, this court has cautioned trial courts "not to usurp the role of the jury" but to look at the evidence "in a light most favorable to the party moving for the amendment, and [consider] if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice." Fusaro v. First Family Mtg. Corp ., 257 Kan. 794, 802, 897 P.2d 123 (1995). But this standard does not speak to the threshold determination of whether a party who can meet this evidentiary standard always has a right to punitive damages. The only guidance comes from the opening words of the statute: "In any civil action in which exemplary or punitive damages are recoverable." Punitive damages are generally allowed in breach of trust and breach of fiduciary actions if a plaintiff can meet the burden of proof requirement of K.S.A. 60-3702(c). See Capitol Fed'l Sav. & Loan Ass'n v. Hohman , 235 Kan. 815, 816-17, 682 P.2d 1309 (1984) (breach of trust); Newton, 224 Kan. 506, Syl. ¶ 1, 582 P.2d 1136 3 (breach of fiduciary duty). The KUTC also recognizes and preserves the potential availability of punitive damages when a trust beneficiary brings an action for breach of trust. It first addresses three methods for calculating damages and then discusses punitive damages: "(a) A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of: (1) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; (2) the profit the trustee made by reason of the breach; or (3) if the trustee embezzles or knowingly converts to the trustee's own use any of the personal property of the trust, the trustee shall be liable for double the value of the property so embezzled or converted. .... "(c) The provisions of this section shall not exclude an award of punitive damages." K.S.A. 58a-1002. Even though K.S.A. 60-3702 and K.S.A. 58a-1002 do not explicitly discuss the effect of a party's death, Alain's Trust argues that one reading these statutes would understand that the trust beneficiaries could bring a cause of action against Harvey's Estate and may seek punitive damages. Harvey's Estate counters with several arguments. First, Harvey's Estate points out that the Kansas survival statute preserves "causes of action" and says nothing about preserving remedies or specific types of damages. His argument arises because a cause of action for tort did not generally survive the death of either a plaintiff or a defendant at common law. See generally Seamans v. Brown , 109 Kan. 448, 199 P. 473 (1921). K.S.A. 60-1801, commonly called the Kansas survival statute, displaces this common law rule, however. It states: "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same." K.S.A. 60-1801. Even so, Harvey's Estate points out that K.S.A. 60-1801 merely provides that the cause of action against Harvey survived; it does not inform us of what remedies are available under any specific cause of action after the death of either party. See Printup , 254 Kan. at 322-23, 866 P.2d 985 (holding that no cause of action arises just because of an injury, punitive damages are "incidental" to actual damages, and punitive damages do not by themselves create a cause of action); see generally Black's Law Dictionary 266 (10th ed. 2014) ("cause of action" means the theory or grounds for bringing a lawsuit). Printup is instructive, however. There, this court considered whether punitive damages could be claimed (1) in a wrongful death action and (2) in a survival action under K.S.A. 60-1801. The Printup court held those who had brought a wrongful death action could not seek punitive damages. The court explained that the wrongful death cause of action had been created by statute and, because it was a statutory cause of action, the Legislature had to provide for punitive damages in order for them to be recoverable. And the Legislature had not done so. 254 Kan. at 333, 866 P.2d 985 ; see Folks v. Kansas Power & Light Co ., 243 Kan. 57, 755 P.2d 1319 (1988). But the Printup court allowed representatives of the injured party who had died shortly after a vehicle accident to recover punitive damages in the survival action. 254 Kan. at 323, 866 P.2d 985. We understand there are reasons to differentiate between the injured party receiving punitive damages and a deceased wrongdoer's estate paying the damages-the policy reasons that drive court decisions in Kansas and other jurisdictions, as we will discuss in more detail. Still, according to Printup , the Legislature intended to ensure the survival of both the cause of action and the remedies incidental to that cause of action. Thus, we do not find the first argument presented by Harvey's Estate-that the survival statute merely addresses a "cause of action"-determinative. Second, Harvey's Estate argues neither K.S.A. 60-3702 nor K.S.A. 58a-1002 specifically state that an injured party can recover punitive damages even if a tortfeasor has died. It specifically points out that K.S.A. 58a-1002 uses only the term "trustee" and not "a trustee's estate." But an estate generally stands in the shoes of the deceased, and one reason an estate exists is to meet the financial obligations of a decedent, including damages that may result from legal claims against the decedent. See Nelson v. Nelson , 288 Kan. 570, 591, 205 P.3d 715 (2009) ("The nonclaim statute recognizes that a decedent no longer has the individual capacity to respond in damages to torts, to pay debts, to carry out contracts, or to administer his or her estate; therefore, the estate must meet the decedent's financial obligations."). And in some cases, a trust may also be liable for claims against a creditor. Commerce Bank, N.A. v. Bolander , 44 Kan. App. 2d 1, 13, 239 P.3d 83 (2007) (holding that even after a settlor's death the "clear unambiguous intent of the legislature [expressed] in K.S.A. 58a-505 [a][3] [is to] mak[e] the assets of a revocable trust 'subject to the claims of the settlor's creditors.' "). But see Taliaferro v. Taliaferro , 252 Kan. 192, 843 P.2d 240 (1992) (in an action by a surviving spouse seeking to invalidate two revocable inter vivos trusts created by her husband, holding that [1] the district court erred in ordering all the corporate stock held by a husband's trust be transferred to the estate, [2] the district court erred in failing to require the surviving spouse to file an election, and [3] if, upon remand, the surviving spouse elects to take against the will, the court should order a transfer to the estate of only that portion of the corporate stock held by the trust which is necessary to give the surviving spouse her one-half share of the decedent's assets under K.S.A. 59-602 [2] ). The lack of any reference to the trustee's estate is not an obstacle to Alain's Trust making a claim for punitive damages because statutes other than K.S.A. 58a-1002 make clear that the estate can stand in the shoes of a deceased tortfeasor. Third, Harvey's Estate asks us to adopt the reasoning of the Court of Appeals' panel about the import of various provisions of K.S.A. 60-3702(d). These provisions, the Court of Appeals concluded, expressed the Legislature's intent to impose punitive damages on only the wrongdoer. Alain Ellis Living Trust , 53 Kan. App. 2d at 137, 139, 385 P.3d 533. For example, K.S.A. 60-3702(d)(1) limits the circumstances in which courts may assess exemplary or punitive damages against a principal or employer for the acts of an agent or employee to those acts authorized or ratified by the principal or employer. And K.S.A. 60-3702(d)(2) prohibits assessing punitive or exemplary damages against a partnership or corporation for the acts of a partner or a shareholder unless the partnership or corporation authorizes or ratifies the acts. Because of the intent expressed in these statutes, the Court of Appeals refused to recognize that an estate could be liable for punitive damages. This point finds some support in our caselaw as well, notably in this court's determination that courts cannot impose joint and several liability for punitive damages: "Punitive damages are awarded to punish the wrongdoer. Each wrongdoer is liable to pay the punitive damages assessed against him or her. The amount of the award is to be calculated with the individual defendant's financial status and conduct in mind. ... Joint and several liability undermines these considerations and therefore is unavailable." Printup , 254 Kan. at 356 [866 P.2d 985]. Also, in Koch v. Merchants Mutual Bonding Co. , 211 Kan. 397, 507 P.2d 189 (1973), this court held a court could not require a surety company to pay punitive or exemplary damages without express statutory authority for doing so, explaining: "Where exemplary damages are awarded for purposes of punishment and deterrence, as is true in this state, public policy should require that payment rest ultimately as well as nominally on the party who committed the wrong; otherwise they would often serve no useful purpose. The objective to be attained in imposing punitive damages is to make the culprit feel the pecuniary punch, not his guiltless guarantor." 211 Kan. at 405 [507 P.2d 189]. While these holdings and statutory provisions support a conclusion that punitive damages are limited to the wrongdoer unless a statutory exception applies, this does not fully answer the question. Here, the estate-consisting of the tortfeasor's assets-would pay the judgment. And as we have discussed, one reason an estate exists is to meet the financial obligations of a decedent, including damages that may result from legal claims against the decedent. See Nelson , 288 Kan. at 591, 205 P.3d 715. Further, until the wrongdoer's estate, including claims against it, is settled, heirs and third-party beneficiaries have only an inchoate-and perhaps unknown-interest. We agree with the Pennsylvania Supreme Court's analysis of this argument in G.J.D. by G.J.D. v. Johnson , 552 Pa. 169, 713 A.2d 1127 (1998). That court rejected the proposition that allowing punitive damages would punish innocent beneficiaries of the estate. The court observed that "[t]he heirs of the decedent tortfeasor are in essentially the same financial position as if the tortfeasor were living at the time damages were awarded." 552 Pa. at 176, 713 A.2d 1127. And perhaps more significantly, "To allow a tortfeasor's estate to escape payment of punitive damages would be comparable to the injustice of allowing a defendant to transfer his wealth to his prospective heirs and beneficiaries prior to the trial of a case in which punitive damages are sought against him." 552 Pa. at 177, 713 A.2d 1127. In summary, we do not find any of the arguments asserted by Harvey's Estate to be determinative. And, our review of Kansas law-both as found in statutes and in caselaw-provides no clear resolution of the question of whether an injured party may seek punitive damages from a tortfeasor's estate. We therefore consider the two different approaches adopted in other jurisdictions. See Annot., Claim for Punitive Damages in Tort Action as Surviving Death of Tortfeasor or Person Wronged , 30 A.L.R. 4th 707 (1984). 1.2. Cases from Other Jurisdictions As we have noted, the first approach, sometimes identified as the majority approach, precludes recovery of punitive damages from a deceased tortfeasor's estate. By one count, when you remove the jurisdictions that have legislatively adopted the majority rule, 14 courts (13 states and the District of Columbia) have adopted this view. This count includes Kansas because a federal court had predicted Kansas would adopt the majority view. See Fehrenbacher v. Quackenbush , 759 F.Supp. 1516 (D. Kan. 1991). In contrast, nine states adopted the minority position by judicial decision. See Comment, Adding Insult to Death: Why Punitive Damages Should Not Be Imposed Against a Deceased Tortfeasor's Estate in Ohio , 49 Akron L. Rev. 553, 564-65 (2016) ; see also Note, 47 U. Mich. J.L. Reform at 849-51. Virtually all the cases consider the purposes of punitive damages and discuss whether imposing punitive damages on a deceased tortfeasor's estate will further the purposes of punishment and deterrence. See Whetstone v. Binner , 146 Ohio St. 3d 395, 397-98, 57 N.E.3d 1111 (2016) (discussing the different views). So, before discussing those cases, we will review the purposes recognized in Kansas. In an early punitive damages decision, Chief Justice Samuel Kingman, writing for the court, declared punitive damages to "be not only good law, but founded on sound principles, and beneficial in its application. It often furnishes the only restraint upon a bad man, who cares little for his neighbor's character, his person, or his property." Albert Wiley v. Keokuk , 6 Kan. 94, 107, 1870 WL 463 (1870). Thus, from the beginning of statehood, this court has recognized deterrence or restraint as a justification for the imposition of punitive damages. And we find it significant that this court emphasized this purpose so early in our state's history. But this court also recognized that punitive damages can be a form of punishment. E.g., Schippel v. Norton , 38 Kan. 567, 572, 16 P. 804 (1888). More recent cases clarified that the purpose of deterring bad conduct applied to both the tortfeasor (often called a specific deterrence) and others (called a general deterrence): "The express purpose of punitive damages is and has been to punish the tortfeasor and to deter it and others from committing similar wrongs in the future." (Emphases added.) Printup , 254 Kan. at 325, 866 P.2d 985 ; see Koch , 211 Kan. 397, Syl. ¶ 4, 507 P.2d 189 ("Exemplary or punitive damages go beyond actual or compensatory damages in that they are imposed, not because of any special merit in the plaintiff's case, but to punish the wrongdoer for his willful, malicious, oppressive or unlawful acts and to deter and restrain others from similar wrongdoings." [Emphases added.] ). At times, this court has even said "the ultimate purpose" of punitive damages is "to restrain and deter others from the commission of similar wrongs." Cerretti v. Flint Hills Rural Electric Co-op Ass'n , 251 Kan. 347, 366, 837 P.2d 330 (1992) ; see Hayes Sight & Sound, Inc. v. ONEOK, Inc. , 281 Kan. 1287, 1324, 136 P.3d 428 (2006). The current statute reflects the continuation of the common-law policies supporting punitive damages as expressed in Kansas cases, including: "(1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant's misconduct; "(2) the degree of the defendant's awareness of that likelihood; "(3) the profitability of the defendant's misconduct; "(4) the duration of the misconduct and any intentional concealment of it; "(5) the attitude and conduct of the defendant upon discovery of the misconduct; "(6) the financial condition of the defendant; and "(7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situations similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected." (Emphasis added.) K.S.A. 60-3702(b). The first six factors focus on the individual and his or her actions and relate to punishment as a basis for imposing punitive damages. But the seventh factor requires consideration of the deterrent effect by considering several factors. These reasons are consistent with the justifications provided in other jurisdictions. See Note, 47 U. Mich. J.L. Reform at 831-35. With that in mind, we turn to the decisions of the other courts. The Iowa Supreme Court's decision in In re Vajgrt , 801 N.W.2d 570 (Iowa 2011), reflects the majority view. There, Bill Ernst, Inc. (Ernst) authorized Johnny Vajgrt to remove a fallen tree from its property. Vajgrt exceeded his authority, uprooting around 40 live trees. Vajgrt died before Ernst filed a claim, so Ernst pursued a claim against Vajgrt's estate. Unlike Kansas, Iowa had decisions dating to 1884 in which the court had barred recovery of punitive damages when a tortfeasor died before judgment. The court explained the rationale underlying the earliest case and reiterated it over time: "[B]ecause the role of punitive damages is punitive, rather than compensatory, such damages should not be awarded when the person to be punished has died." 801 N.W.2d at 573. As we have noted, in contrast, this court had recognized the deterrent effect of punitive damages in its early caselaw. Ernst also argued the court should overrule earlier cases based on the Iowa survival statute. The court found Ernst's position flawed. Among other things, the court noted-as this court stated in Printup , 254 Kan. at 323, 866 P.2d 985 -that the survival statute allowed causes of action to survive death, but punitive damages are not a separate cause of action. But unlike Kansas, Iowa had a similar survival statute in place when the court had decided its earlier cases. The Iowa court also found the Iowa punitive damage statute's silence on whether such damages survive a tortfeasor's death supported its conclusion-the earlier precedent existed when the Iowa Legislature enacted the statute, yet the Legislature did not overturn the court's holding. 801 N.W.2d at 574-75. The Iowa court then turned to the purposes for punitive damages: "(1) punishment, (2) specific deterrence, and (3) general deterrence." 801 N.W.2d at 575. The court rejected Ernst's argument that general deterrence warranted reversing earlier cases and applied Iowa's existing rule. 801 N.W.2d at 575. Other cases following this approach have applied similar reasoning. E.g., Doe v. Colligan , 753 P.2d 144, 145-46 (Alaska 1988) (following rule of no recovery against estate because central purpose of punishment cannot be served and "general deterrent effect becomes speculative at best"); Crabtree v. Estate of Crabtree , 837 N.E.2d 135, 137-40 (Ind. 2005) (acknowledging central purpose is to punish and deter the wrongdoer, holding open the possibility of a different result if a tortfeasor appears to consider death as an escape from punitive damages); Jaramillo v. Providence Washington Ins. Co. , 117 N.M. 337, 345-46, 871 P.2d 1343 (1994) (holding punishment and deterrence not accomplished by allowing recovery against estate of tortfeasor). The Restatement (Second) of Torts agrees. See Restatement (Second) of Torts §§ 908, comment a, 926 (1979). And, as we have noted, a federal court, focusing on the purpose of punishing the wrongdoer, has predicted that Kansas will follow the majority rule and not allow punitive damages if a tortfeasor has died. Fehrenbacher , 759 F.Supp. 1516. And the trial court and Court of Appeals agreed with that conclusion. Alain Ellis Living Trust , 53 Kan. App. 2d at 140-41, 385 P.3d 533. For the counterpoint, Alain's Trust relies on the Pennsylvania decision in G.J.D. , 552 Pa. 169, 713 A.2d 1127. There, G.J.D. sued Darwin Thebes who distributed sexually explicit photographs of her, including her name, phone number, and language suggesting she was a prostitute, after she ended their relationship. G.J.D. asserted various tort claims and sought punitive damages. Thebes committed suicide before trial, and the executrix of his estate was substituted as a defendant. The jury awarded compensatory and punitive damages to G.J.D. and her children. The Pennsylvania Supreme Court held the trier of fact should determine whether punitive damages are appropriate in a particular case. The court identified three reasons for its conclusion. First, the court noted an important purpose for imposing punitive damages is to deter the tortious behavior-both on the part of the wrongdoer and on the part of others. The decedent's behavior was "egregious" and "[t]o the extent that it may reasonably be done, the law should be applied so as to have a deterrent effect on such conduct." 552 Pa. at 176, 713 A.2d 1127. Thus, while the decedent would "not be punished or deterred from committing further perverse and egregious acts, the imposition of punitive damages upon his estate may serve to deter others from engaging in like conduct." 552 Pa. at 176, 713 A.2d 1127. And while the court recognized the deterring impact of its decision was speculative, it concluded it was not more so "than in cases where the tortfeasor is alive." 552 Pa. at 176, 713 A.2d 1127. Second, the court rejected the proposition that allowing punitive damages would punish innocent beneficiaries of the estate. The court observed that "[t]he heirs of the decedent tortfeasor are in essentially the same financial position as if the tortfeasor were living at the time damages were awarded." 552 Pa. at 176, 713 A.2d 1127. And perhaps more significantly (and thus warranting our repeating the point), "To allow a tortfeasor's estate to escape payment of punitive damages would be comparable to the injustice of allowing a defendant to transfer his wealth to his prospective heirs and beneficiaries prior to the trial of a case in which punitive damages are sought against him." 552 Pa. at 177, 713 A.2d 1127. Finally, the Pennsylvania Supreme Court noted that "safeguards exist to protect against the arbitrary imposition of punitive damages." 552 Pa. at 177, 713 A.2d 1127. These safeguards include jury instructions that allow the jury to consider the reasons for imposing punitive damages, thus giving the jury the opportunity to determine whether its verdict would further the purposes of punitive damages. And "[t]he jury can then consider the value of the deceased tortfeasor's estate in arriving at a proper assessment of punitive damages. In the event the award shocks the conscience of the court, the trial court may grant a remittitur." 552 Pa. at 176-77, 713 A.2d 1127. Other jurisdictions cite G.J.D in reaching the same conclusion. E.g., Haralson v. Fisher Surveying, Inc. , 201 Ariz. 1, 3-6, 31 P.3d 114 (2001) ; Estate of Farrell v. Gordon , 770 A.2d 517, 521-22 (Del. 2001) ; Kaopuiki v. Kealoha , 104 Hawai'i 241, 260, 87 P.3d 910 (2003). Others independently reached the same result. E.g., Tillett v. Lippert , 275 Mont. 1, 909 P.2d 1158 (1996) (concluding that whether to assess punitive damages against tortfeasor's estate to set an example is a question for the trier of fact). The Ohio Supreme Court recently addressed the different approaches in Whetstone , 146 Ohio St. 3d 395, 57 N.E.3d 1111. Whetstone presented a different wrinkle because the defendant was still alive when the case was filed. In Kansas, this situation would fall under K.S.A. 60-1802 ("No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, or for a nuisance."). But the Ohio court's reasoning is still applicable because it points out the injustice that results when a wrongdoer can put off or avoid the payment of damages. In Whetstone , a mother sued her grandaunt who injured her five-year-old child while babysitting. The mother found the grandaunt with one hand on the child's neck and her other hand holding a pillow over the child's face. The grandaunt, who had cancer, failed to respond to the complaint. The court entered a default judgment and set an evidentiary hearing on damages, including punitive damages. The grandaunt then requested to reschedule the hearing because it conflicted with her scheduled treatment. The grandaunt died before the hearing. The trial court determined punitive damages could not be awarded against an estate, and the mother appealed. The Ohio Supreme Court reversed this conclusion, holding the grandaunt's estate could be held liable for punitive damages because "[t]o hold otherwise would send a message that by delaying a damages hearing, a defendant or his or her estate might avoid the award of punitive damages." 57 N.E.3d at 1115-16. Still other courts focus on statutory language the courts read as expressing legislative intent, even though the language may not directly address the effect of a death on a punitive damages claim. For example, the Delaware Supreme Court in Gordon , 770 A.2d at 521, approvingly quoted the reasoning of the Pennsylvania Supreme Court's decision in G.J.D ., 552 Pa. 169, 713 A.2d 1127. But it also noted that, unlike Pennsylvania's survival statute, Delaware's statute contained specific limitations on recovery. "Had the General Assembly intended to exclude claims for punitive damages from recovery against the estate of a deceased tortfeasor, it could easily have done so. The omission is significant and we are not inclined to engraft a further restriction by embracing the Restatement provision." Gordon , 770 A.2d at 522. Ultimately, as this review of other jurisdictions shows, how we resolve our case hinges on how we view the purpose or purposes of punitive damages and what we can discern about legislative intent relating to the Kansas statutes. Some jurisdictions, like Iowa, have concluded imposing punitive damages against an estate does not serve the purpose of punishment. We agree with this concept. But we part company with those courts that conclude punitive damages do not serve the purpose of deterring unlawful conduct. The facts of this case suggest the opposite conclusion is warranted. A trustee who believes the malfeasance can go undiscovered indefinitely, or at least until he or she is no longer alive, would not be restrained if courts could not impose postdeath punitive damages. And a trustee like Harvey, whose wife had recently died, may have viewed his death as only a matter of time and not some amorphous future inevitability. And the incentive may be even higher if the converted property is of the nature that makes it difficult to calculate actual damages-one of the reasons Alain's Trust argues the double damage provision relates to compensatory, not punitive, damages. But knowing the trustee will have to pay back embezzled or converted assets and face additional, punitive damages may dissuade trustees from engaging in illegal conduct. See Whetstone , 57 N.E.3d at 1115-16 ; see also Crabtree , 837 N.E.2d at 137-40. We understand that some courts have concluded this deterrence is speculative. See Fehrenbacher , 759 F.Supp. at 1521-22 (citing a Minnesota case rejecting a similar argument as speculative). But like the Pennsylvania Supreme Court, we fail to see how the prospect is any more speculative when a defendant has died than when the defendant is still alive. We also find no basis to say that punitive damages deter the conduct of others when a tortfeasor is alive but that punitive damages do not deter another's conduct if the tortfeasor has died. Instead, the knowledge that a trustee's estate will possibly have to pay punitive damages may restrain a trustee. We also conclude that a trial court can weigh these considerations when deciding whether to allow a motion under K.S.A. 60-3703, and a jury can do so when considering the K.S.A. 60-3702(b) factors. The jury will know the trustee has died and that the party in the suit is his or her estate. Often, that will decrease-if not eliminate-the weight of many of the first six considerations. And that will leave for the jury the consideration of the overall deterrence effect. Weighing all the factors, the jury may determine that punitive damages are not appropriate-just as it did in this case with regard to Gulledge. Most significantly, however, we discern an intent by the Legislature to allow an injured party to recover the same damages when a tortfeasor is dead as the injured party would recover if the tortfeasor were alive. The intent of the survival statute is best served when an injured party can bring the same cause of action and pursue the same remedies regardless of whether the tortfeasor is alive or dead. In addition, we agree with the reasoning of the Delaware Supreme Court in Gordon , 770 A.2d at 522. It considered determinative the fact its Legislature had stated some exceptions to damage recovery in its survival statute but had not made an exception for deceased tortfeasors. We find it significant the Kansas Legislature created some exceptions to the availability of punitive damages in K.S.A. 60-3702. Like Delaware and other states, we would have to graft another exception onto the statute. The same is true with K.S.A. 58a-1002, which allows punitive damages without exception. In this context, the question is not whether to allow punitive damages but whether to extinguish damages the Legislature has authorized. And it is not an appropriate role for a court to add those words to any of the Kansas statutes without an indication of legislative intent, especially when doing so would limit a remedy the Kansas Legislature has allowed. See Gray , 306 Kan. at 1294, 403 P.3d 1220 (courts do not generally add words to statutes). We hold that a trust and its beneficiaries with a cause of action for a trustee's breach of trust and breach of fiduciary duties may seek punitive damages from the estate of a deceased trustee under the procedures and requirements of K.S.A. 60-3702 and 60-3703. Here, we know the jury found a breach of trust and breach of fiduciary duty by the trustee. We do not know, however, whether a jury would have awarded Alain's Trust punitive damages. We, thus, remand for further proceedings. 2. The plain language of the KUTC does not address whether a malfeasant trustee's estate can be made to pay double damages. We next consider the trial court's order granting the motion for partial summary judgment. In granting that motion, the trial court ruled that Alain's Trust could not recover double damages under the KUTC because of Harvey's death. The trial court and the Court of Appeals' panel relied on the rule adopted in other jurisdictions that penal damages do not survive the death of the tortfeasor. Because the issue on which partial summary judgment was granted was one of law and the material facts are undisputed, we review the decision de novo. See Hockett v. The Trees Oil Co. , 292 Kan. 213, 219, 251 P.3d 65 (2011). Alain's Trust argues the trial court failed to apply the plain language of K.S.A. 58a-1002 and, instead, read into the statute a common-law rule that punitive damages do not apply to deceased defendants. Again, subsection (a) of that statute, provides that the trustee is liable for the greater of three measures of damages: (1) the amount necessary to restore the lost value; (2) the trustee's profits, or (3) "if the trustee embezzles or knowingly converts to the trustee's own use any of the personal property of the trust, the trustee shall be liable for double the value of the property so embezzled or converted." And subsection (c) states that the allowance of those damages "shall not exclude an award of punitive damages." Alain's Trust argues K.S.A. 58a-1002(a) sets minimum damage floors and allows accumulative damages-that is, "[s]tatutory damages allowed in addition to amounts available under the common law." Black's Law Dictionary 471 (10th ed. 2014). And no one disputes that (a)(3) provides the greatest damages here. Nor does Harvey's Trust argue before us that (a)(3) does not factually apply. Harvey's Trust did make this argument before the trial court. And the trial court, in ruling on summary judgment, held Harvey had not used any of the property he converted for his personal use, which meant that the criteria for awarding damages under (a)(3) had not been established. But the Court of Appeals disagreed, and Harvey's Estate did not cross-petition seeking our review of this ruling. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 53); Gray , 306 Kan. at 1292-93, 403 P.3d 1220 (noting this court would not consider a ruling adverse to the appellee without cross-petition for review). Thus, for our consideration, the factual applicability of (a)(3) is not disputed. The issue before us is one of the legal applicability and the meaning of (a)(3) and (c). Can they be applied when a trustee died? Alain's Trust contends that K.S.A. 58a-1002(a)(3) is clear: The statute provides a trustee is liable for the greater of three damages and may be liable for punitive damages. The three provisions apply without qualification-it does not distinguish between trustees who are alive or those who are dead. Alain's Trust asks us to read the silence as authorizing both double and punitive damages against the trustee's estate, which in this case means Harvey's trust. Harvey's Estate notes the lack of a reference to the trustee's estate, a point we have already determined we do not find persuasive. The Estate also argues it cannot be held responsible for penal damages. We have addressed many of these arguments in the context of the punitive damages claim. And as we have stated before, we do not find the lack of a reference to the "trustee's estate" or the silence on the subject to be determinative. What may be determinative, however, is our ruling on the availability of punitive damages even after a tortfeasor has died. The parties vigorously argue about whether K.S.A. 58a-1002(a)(3) provides for remedial or penal damages, citing legislative history and cases in which they argue this court has found similar provisions penal and others where this court has found a similar damage provision remedial. Harvey's Estate points us to a very apt quotation from the United States Supreme Court decision in PacifiCare Health Systems, Inc. v. Book , 538 U.S. 401, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003). There, Justice Antonin Scalia, writing for a unanimous Court, observed: "Our cases have placed different statutory treble-damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards." 538 U.S. at 405, 123 S.Ct. 1531. The same statement applies to Kansas cases. We need not sort through the implications of these various decisions here, however, if our decision that trust beneficiaries may seek punitive damages after a trustee's death applies to the double damage provision. As we have discussed, that decision rests, in part, on the purposes of punitive damages, including the dual penal and deterrence effects. Harvey's Estate presents us with no argument regarding why the penal nature of a double damage award would present reasons we would depart from our analysis of the punitive damage issue. We have said that double damages-when they are penal in nature-serve the same purposes as do punitive damages. As with punitive damages, this court has observed a long history exists, " 'dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish .' " (Emphasis added.) Hayes Sight & Sound, Inc., 281 Kan. at 1315-16, 136 P.3d 428 (quoting State Farm Mut. Automobile Ins. Co. v. Campbell , 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 [ (2003) ], and citing BMW of North America, Inc. v. Gore , 517 U.S. 559, 581 and n.33, 116 S.Ct. 1589, 134 L.Ed.2d 809 [ (1996) ] ). Thus, assuming the double damage provision of K.S.A. 58a-1002(a)(3) is penal rather than remedial, its penal nature would also serve the purpose of deterring malfeasance. As a result, there is no basis for concluding a different result should apply to the double damage provision than we have reached for punitive damages, especially given that our other reasons for reaching that decision, including our statutory construction, would apply. We thus hold that the trial court should have allowed Alain's Trust to pursue double damages under K.S.A. 58a-1002 even though the trustee had died. Thus, the trial court erred in granting the partial summary judgment. Alain's Trust argues we can enter judgment and declare the amount of damages that should be awarded. But Harvey's Estate presented issues to the trial court and the Court of Appeals that neither court addressed-issues those courts did not need to reach because of the ruling that Alain's Trust could not recover double damages against Harvey's Estate. In these issues, Harvey's Estate argued Alain's Trust could not recover these damages because of K.S.A. 58a-505 and 58a-507. It also argued that questions remained about what amount would be doubled-the difference between the amount the judgment exceeded the amount returned to Alain's Trust or some other number. The rules relating to petitions for review applicable when Alain's Trust sought review provided: "In civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review." Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56); Troutman v. Curtis , 286 Kan. 452, 452-53, 185 P.3d 930 (2008). Here, we decline to address the issues not considered by the lower court. The parties have presented minimal appellate arguments on these issues, merely seeming to seek to preserve them for further consideration. And we must remand for further proceedings because of our ruling on the punitive damages issue. Plus, Harvey's Estate asserts that factual issues remain, and appellate courts do not make factual determinations. Hence, we remand for consideration of any remaining issues and the calculation of the damages. CONCLUSION Because we determine the district court and the Court of Appeals' panel erred in concluding Kansas law did not allow consideration of punitive and double damages because of Harvey's death, we remand to the district court for further consideration of its two rulings based on this decision. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded to the district court for further proceedings. Beier, J., not participating. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Senior Judge Malone was appointed to hear case Nos. 113,097, 113,282 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

The opinion of the court was delivered by Biles, J.: When a natural father assumes his parental responsibilities, the right to raise his child is entitled to constitutional protection. In re Adoption of G.L.V. , 286 Kan. 1034, 1057, 190 P.3d 245 (2008). Underlying this doctrine is the common sense understanding that the natural father must have had a real-world opportunity to take on his obligation under the circumstances presented. See In re Adoption of Baby Girl P. , 291 Kan. 424, 433, 242 P.3d 1168 (2010) ("The preservation of a father's relationship with his child is the starting point of a termination proceeding, not the finish line that a father must labor to reach."). In this appeal from a district court's order terminating a natural father's parental rights, that understanding was lost in pursuit of another outcome. We reverse the lower court rulings and remand to the district court for the purpose of conducting proceedings effectuating a change in custody consistent with this opinion. We do so fully aware that painful challenges and traumas lie ahead for those involved. FACTUAL AND PROCEDURAL BACKGROUND On Tuesday, September 13, 2016, baby boy C.L. was born in Topeka. According to his Mother, she did not know she was pregnant until earlier that morning. While in the hospital, Mother put the newborn up for adoption through Kansas Children's Service League, a not-for-profit agency with an affiliated infant adoption program. Mother signed relinquishment papers early Thursday afternoon, September 15. On the same day, KCSL placed the infant with a custodial couple who took the infant to their home in the Kansas City area. The couple hoped to become the adoptive parents. Also on September 15, Melinda Kline, a KCSL social work supervisor, began trying to contact the person Mother believed was the baby's biological father. She spoke with him by phone about 7:49 p.m. Kline told Father about C.L.'s birth and that he was believed to be the father. This news shocked him. Kline said the baby was already "placed" with prospective adoptive parents and explained she was asking him to relinquish his parental rights. She said the baby's mother wanted a closed adoption, i.e., one in which the natural parents would not have contact with the child. She could not recall later whether she clarified what that meant. Father asked who the baby's mother was. Kline refused to answer over the phone, preferring instead to meet with Father to sign relinquishment papers. Father asked if he would be able to meet with the prospective adoptive parents or see the baby. Kline's written log indicates she responded, "[T]his is usually dependent on trust with the adoptive family." According to Kline, Father was initially receptive to signing relinquishment papers, but he disputes that. She believed the two would meet the next day to sign the papers. Kline's log states she advised Father her agency would provide "a free legal consult if he requests." Father later testified that "[a]t no time" did he tell Kline he would surrender his rights. The next day, which was Friday, September 16, Kline spoke to Father by phone at about 2:20 p.m. Father's mother joined the conversation. They told Kline that Father had an attorney, provided that attorney's contact information, and asked for a paternity test. Father's mother said if the baby was Father's, "they" wanted custody. The dueling court proceedings On the following Monday, September 19, at 1:14 p.m., the prospective adoptive parents filed a petition for adoption in Wyandotte County District Court. The petition also sought to terminate Father's parental rights because: "a. The identified biological father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the biological mother during the six months prior to the Child's birth; "b. The identified biological father abandoned the biological mother after having knowledge of the pregnancy; "c. The identified biological father has made no reasonable efforts to support or communicate with the Child after having knowledge of the birth of the Child; "d. The identified biological father abandoned or neglected the Child after having knowledge of the Child's birth; "e. The identified biological father is unfit; and "f. Termination of the parental rights of the identified biological father is in the best interests of the Child." These alleged grounds for terminating Father's parental rights were made without prior factual investigation. More disturbingly, the termination allegations were substantively false when filed because Father had only learned of both the pregnancy and the birth barely four days before the filing. Nevertheless, the prospective adoptive parents verified these contentions were true under oath and their attorney signed the petition. The next day, and with no knowledge about the out-of-county adoption action, Father filed a petition to establish paternity in Shawnee County District Court. Father stated he was "willing and able to meet the financial and emotional needs of the minor child" and was "a fit and proper person to be awarded the care, custody and control of the minor child." Father did not know the child's present address but believed the baby was placed in KCSL's care and custody. Father was "advised that the child has been placed with third parties [whose] identity is unknown." Father asked the court to "enter an order for genetic testing to determine the paternity of the child, if appropriate, acknowledging Petitioner as the father of the minor child, establish child support for said minor child pursuant to Kansas law, award custody of the minor child to the Petitioner and designate the Petitioner as residential parent , establish a parenting time schedule for each party with the minor child, an Order for name change and amendment of the birth record and for such further relief as the court deems just and equitable." (Emphasis added.) On October 5, Mother filed a motion to stay the Shawnee County case. This was filed through counsel who was representing Mother in the Wyandotte County adoption case. Mother's counsel was supplied by KCSL, but the record is unclear who paid for the legal effort to stay Father's paternity action. The motion asked that the Shawnee County case be suspended until the Wyandotte County adoption concluded because that litigation was filed first. It further asserted if Father's parental rights were terminated in the adoption case, the paternity case would be moot. Mother's motion argued that "any Order of custody, support, parenting time or paternity entered in this case will contravene the prior, and thus, superior jurisdiction held by the Court in Wyandotte County." On October 25, the Wyandotte County court ordered a hearing on the adoption petition and scheduled it for November 29. It required Father to be notified by personal service. For reasons undeveloped in the record, Father was not served until 32 days later-Saturday, November 26, at a little after 5 p.m.-for the hearing that Tuesday. We note state law requires this notice not include a copy of the adoption petition, so the record is silent what Father knew going into the hearing. See K.S.A. 2016 Supp. 59-2133(d). The record also does not reflect that Father's attorney was informed of the November 29 hearing, even though he entered his appearance in the adoption proceedings on November 4. At the November 29 hearing, Father appeared in person and by counsel. Father objected to the adoption. The court ordered Father to arrange and pay for genetic testing with the laboratory to schedule the baby's DNA sample. It also agreed with the prospective adoptive parents' request that "[Father] and his attorney have no access to the documents in the Court's case file other than a redacted copy of the Petition for Adoption." On December 6, the Shawnee County District Court stayed Father's paternity case. The order noted the Wyandotte County court achieved jurisdiction first and had already ordered paternity testing, so further hearings would be duplicative of Father's requested relief in Shawnee County. The parental rights termination hearing On December 13, Father complied with the Wyandotte County court's November 29 order for a DNA sample. The baby was not tested until January 9, 2017. On January 27, the DNA lab report was filed. The results showed "[t]he alleged father ... cannot be excluded as the biological father of the child ... since they share genetic markers. ... [T]he probability of paternity is 99.99%, as compared to an untested, unrelated man." On March 24, just 56 days after the paternity results were filed, the Wyandotte County court conducted the evidentiary hearing on Father's parental rights termination. The prospective adoptive parents called as their witnesses Mother, Father, Kline, and the prospective adoptive father. Father returned to the witness stand in his case in chief and also called his mother. Mother testified she learned she was pregnant the morning she gave birth and that she never told anyone she was pregnant before that day. Mother admitted Father contacted her while she was in the hospital before he learned about the birth. In a text message, Father asked why she was in the hospital. She told him "[t]hey had to cut me open" and "[t]hey haven[']t really told me anything as of right now." She said Father expressed sincere concern for her and her health. Mother did not tell Father about the baby "[b]ecause I wanted to tell him in person because I would think it was inappropriate for me, myself to talk to him about it over the phone," but Kline did that before she could. Mother had an on-again, off-again romantic relationship with Father between 2012 and December 2015. She broke up with him in the summer of 2014, because she believed he had an alcohol abuse problem. After a week, they began dating again until she broke up with him in December 2015. She described their relationship after that as more than a "casual" friendship because they occasionally slept together. She did not consider it a boyfriend/girlfriend situation. Mother said after the birth Father provided her with no financial support for the child. Father testified he learned about the birth from Kline on September 15, 2016. He believed the baby was his son all along. He said his purpose in being in court was to seek to raise his child. Father worked in Topeka at the time of the hearing, making a $14.50 hourly wage. Most weeks he worked overtime, for which he received time-and-a-half pay. Father lived with his mother and 28-year-old brother in a three-bedroom apartment. All three worked full time and shared expenses. He had just purchased a 2014 model car, paying $460 per month. When asked about the expense of raising a child, Father acknowledged he was "[f]ully aware" that it costs money to support a child, although he did not know exactly how much or whether it costs "hundreds, perhaps thousands of dollars a month." But he testified he "definitely [has] money to support my child, and I make good money." At the time of the hearing, C.L. was six and a half months old. Father conceded he had not provided the child with any financial or material support and had not asked "if or how" he could help the prospective adoptive parents nor asked if there were any unpaid medical bills. And although Father had not provided financial support yet, he had purchased baby toys, clothes, bottles, a car seat, a crib, and a play pen, among other things, in preparation of taking custody. He and his mother prepared a room for the baby in their home. They made these preparations a couple of weeks earlier. Father said shortly after the birth he transitioned from his mother's health insurance to his own coverage through his employer because he "knew [he] needed health insurance to put the baby on ...." But he did not tell the prospective adoptive parents, their lawyer, or KCSL about this. He never had his own lawyer tell anyone either. The record is unclear whether insurance coverage for C.L. was accessible prior to establishing paternity and securing appropriate court orders. When asked why he bought the car instead of supporting his child, Father responded he needed a reliable and safer car for a baby. Father acknowledged he knew the prospective adoptive parents had been caring for the baby since birth. He did not know their identity, although he acknowledged he had the opportunity to sit next to the adoptive parents in court on three occasions. Father conceded he never asked how C.L. was but clarified he had not spoken to them in any context. Father also was unaware of any communication his lawyer may have had with opposing counsel about the baby and had not asked his lawyer to initiate any. Father also never asked Kline about the child. Father had not sent a letter or card to the baby through his lawyer or opposing counsel. But Father said he was committed to fighting for his baby. He said he told Kline "that I think ... this whole situation is messed up, that this is my kid, and just basically the whole situation I talked to her about it, like, it's just messed up like, you know, it's messed up to take a baby away from these people, but I told her, you know, that this is my kid and I mean, it's messed up to take the baby away from me so ... I mean, the whole situation is really messy." Kline testified about her conversations with Father and identified her logs of those discussions. She explained Father had three ways to contact her: phone, text, and Facebook. She had also given him the adoption agency's name and address. Despite this, she said, Father had not provided the child any support through KCSL. Father had not asked how the baby was doing and had not provided gifts, letters, photos of himself, or anything else to pass along. There is nothing in the record showing KCSL had any such pass-along mechanisms for putative parents to use or that Father was advised about them if they did exist. The prospective adoptive father testified next. He said he and his wife took C.L. home from the hospital on September 15 and provided for his care ever since. He said they neither received support from Father nor had any contact with him or on his behalf. Father and his mother testified on Father's behalf. Father's mother spoke favorably about Father. She described him as a "go-getter" and said he was up for a promotion at work. She said Father had never called into work sick and worked Monday through Friday and most weekends. She said there was a positive change in Father in the year or so he had been working at his present job. Father testified he filed the paternity suit that sought "to establish child support for the child pursuant to Kansas law" but was not specifically intending to force Mother to pay child support. Father noted he had asked the Shawnee County court to be allowed to meet the child's financial and emotional needs and was willing and able to do so. Father said he would be the residential parent. He agreed that, "as far as [he] knew," it was his "understanding that [he was] prohibited by Court Order from attempting to make contact with the child." The lower court rulings On April 26, 2017, the district court terminated Father's parental rights. The court limited its consideration to two statutory grounds: (1) Father abandoned or neglected C.L. after having knowledge of the birth; and (2) Father had made no reasonable efforts to support or communicate with C.L. after having knowledge of his birth. The court made the following findings of fact and conclusions of law: " K.S.A. 2016 Supp. 59-2136(h)(1)(A) states the court may terminate the parental rights of the natural father if the court finds by clear and convincing evidence the father abandoned or neglected the child after having knowledge of the child's birth. Black's Law Dictionary , Sixth Edition defines Abandon as, 'to desert, surrender, forsake or cede.' Black's page 2. [Father] has never had any contact with the minor child. [Father] did not ask the mother to see the child. [Father] did not ask the case manager to see the child. Black's also defines neglect as 'May mean to omit, fail or forbear to do a thing that can be done, or that is required to be done.' Black's page 1032. There have been no requests from [Father's] lawyer to Petitioner's lawyer to have contact with the minor child. Again, it is noted by this Court that the stay in the Paternity case did not include any language prohibiting contact between the minor child and [Father]. There is no evidence that [Father] requested information about ... the child's health and welfare after placement with the proposed adoptive parents. There is no evidence before the court that [Father] requested a picture of the child. The court recognizes that [Father] caused a paternity action to be filed. However, that step alone is not enough to support a finding that [Father] has 'assumed a sufficient level of parental responsibility under Kansas law to entitle his parental rights to constitutional protection.['] Adoption of G.L.V , 286 Kan. at 1061-62, 190 P.3d 245. The petitioners have proved by clear and convincing evidence that [Father] abandoned or neglected the child after he was made aware of the birth of the child. " K.S.A. 59-2136(h)(l)(C) states, 'the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth[.]' In the case at bar, [Father] testified, 'money is not a problem for me.' Further, he testified as to his income and expenses and it is clear he had money to support the child during the pendency of this action. In fact the father stated, 'I don't know how much it will cost. I have money to raise it.' Despite the father's statements about his money, there is no evidence he provided financial support of any kind to the child through the case worker or through his lawyer. In fact, [Petitioners] presented evidence that no offers of support had been made by [Father]. During his testimony, [Father] claimed he put the child on his insurance through his employer. However, he did not communicate this fact to anyone and therefore, it has no impact. Had [Father] provided this information to [Petitioners] through their lawyer, the birthing expenses of the child would have been covered under [Father's] plan. The adoptive parents paid the birthing expenses in the amount of $6500. In contrast to the father in Adoption of G.L.V , [Petitioners] presented evidence that [Father] gave the child no gifts and made no explicit offers of support concerning the child. Furthermore, the [Petitioners] presented evidence that [Father] sent no letters to the child; [Father] sent no mementos to the child and sent no Christmas gifts to the child. Although [Father] did not have the address of the prospective adoptive parents, he could have and should have sent communication and gifts through the lawyers involved. This court concludes that the petitioners have met their burden of proof that [Father] made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth." Father appealed to the Court of Appeals. He argued the evidence and applicable law did not support termination of his rights under either K.S.A. 2016 Supp. 59-2136(h)(1)(A) (abandonment or neglect) or K.S.A. 2016 Supp. 59-2136(h)(1)(C) (no reasonable efforts to support or communicate). A Court of Appeals panel affirmed. In re Adoption of C.L. , No. 117723, 2018 WL 1022887 (Kan. App. 2018) (unpublished opinion). The panel concluded Father's "explicit concession" that he did not provide or offer direct financial support "on behalf of the child through KCSL, Mother, or petitioners' attorney" was fatal. 2018 WL 1022887, at *4. The panel rejected Father's claim that "he sought to provide financial, emotional, and other support for his child through the paternity action" because "the paternity petition ... was stayed without any limitation upon his ability to provide support through [the adoption] proceedings." 2018 WL 1022887, at *4. "While [Father] challenged the adoption and termination and filed the paternity action, he concededly made no effort to either communicate with or support the child in any respect." 2018 WL 1022887, at *5. According to the panel, "while the filing of the paternity action ... may have ultimately afforded Father the opportunity to support and communicate with his child, his legal efforts cannot make up for the evidence that he made no reasonable effort to support or communicate with C.L. after learning of his birth." 2018 WL 1022887, at *5. As to the district court's alternative basis for termination, the panel held the record did not support the conclusion that parental rights termination was justified under K.S.A. 2016 Supp. 59-2136(h)(1)(A) (abandoned or neglected child). After reciting the Black's Law definition of abandonment, the panel concluded "[i]t can hardly be said that in this limited time frame there was a sufficient opportunity for Father to have engaged as a parent or willfully left the child while evidencing no intent to return." 2018 WL 1022887, at *6. Father petitioned this court for review, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). The prospective adoptive parents did not challenge in our court the panel's adverse ruling against them concerning their abandonment claim, so that much is settled on review. See Ullery v. Othick , 304 Kan. 405, 415, 372 P.3d 1135 (2016). ANALYSIS The only ground for termination before this court is K.S.A. 2016 Supp. 59-2136(h)(1)(C) : "[T]he father has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth." (Emphasis added.) In this case, the prospective adoptive parents had the burden of proving the termination of parental rights is appropriate through clear and convincing evidence. See K.S.A. 2016 Supp. 59-2136(h)(1). Standard of review This court engaged in an extensive review of clear and convincing evidence as a standard of proof, as well as an appellate court's review of a trial court's determination based on that standard, in In re B.D.-Y. , 286 Kan. 686, 187 P.3d 594 (2008). That was a child in need of care case, but we have applied its holdings governing clear and convincing evidence to parental rights terminations in adoption cases. See, e.g., In re Adoption of B.B.M. , 290 Kan. 236, 243, 224 P.3d 1168 (2010). Clear and convincing evidence is an "intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt." B.D.-Y. , 286 Kan. at 691, 187 P.3d 594. It applies when " ' " 'particularly important individual interests or rights are at stake.' " ' " 286 Kan. at 697, 187 P.3d 594 (quoting Ortega v. IBP, Inc. , 255 Kan. 513, 528, 874 P.2d 1188 [1994] ). " '[A] standard of proof serves to allocate the risk of error [between the litigants] and to instruct the factfinder as to the degree of confidence society expects for a particular decision. To effectuate those purposes, a standard of proof should operate to set the degree to which the factfinder must be persuaded of a particular factual conclusion.' " B.D.-Y. , 286 Kan. at 696, 187 P.3d 594 (quoting Taylor v. Commissioner of Mental Health , 481 A.2d 139, 154 [Me. 1984] ). The B.D.-Y. court adopted a definition of clear and convincing evidence requiring that "the factfinder believes that the truth of the facts asserted is highly probable ." ( Emphasis added.) 286 Kan. at 697, 187 P.3d 594 ; see also Colorado v. New Mexico , 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (proponent's factual contentions are highly probable "only if the material [the proponent] offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence [the opponent] offered in opposition"). The B.D.-Y. court then turned to appellate review of factual determinations based on that standard. It analyzed then-current Kansas caselaw, as well as that in other jurisdictions, and modified the standard of review, explaining: "When an appellate court reviews a trial court's determination which is required to be based upon clear and convincing evidence, it considers whether, after review of all the evidence, viewed in the light most favorable to the [proponent of the finding], it is convinced that a rational factfinder could have found the determination to be highly probable." B.D.-Y. , 286 Kan. 686, Syl. ¶ 4, 187 P.3d 594. In conducting this review, an appellate court does not "weigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual questions." In re Adoption of Baby Girl P. , 291 Kan. 424, 430-31, 242 P.3d 1168 (2010). Discussion Natural parents who have assumed parental responsibilities have a fundamental right to raise their children that is protected by the United States Constitution and the Kansas Constitution. Baby Girl P. , 291 Kan. at 430, 242 P.3d 1168. State law expresses our state's public policy that the best interests of children are served by fostering their relationships with their natural parents when the parents have assumed parental duties toward their children. In re Guardianship of Williams , 254 Kan. 814, 822, 869 P.2d 661 (1994) ; see also In re Kailer , 123 Kan. 229, 231, 255 P. 41 (1927) ("[T]he welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents' right thereto is not infringed upon or denied."). Adoption statutes are strictly construed in favor of maintaining the natural parents' rights when it is claimed consent to adoption is not required by reason of a parent's failure to fulfill statutory parental obligations. Baby Girl P. , 291 Kan. at 430, 242 P.3d 1168. In this case, if the district court properly terminated Father's parental rights under K.S.A. 2016 Supp. 59-2136(h)(1), Father's consent to the adoption would not be required. See K.S.A. 2016 Supp. 59-2129(a). Therefore, the same strict statutory construction is appropriate in this case, as it was in Baby Girl P . In making a finding to terminate parental rights under the statute, a court may "[c]onsider and weigh the best interest of the child" and "disregard incidental visitations, contacts, communications or contributions." K.S.A. 2016 Supp. 59-2136(h)(2)(A)-(B). But the best interests of the child may not be the sole basis for termination because "to hold otherwise would invite courts to seek 'better' families for any number of children whose family circumstances are challenging or financially difficult." 291 Kan. at 435-36, 242 P.3d 1168. And it is important to emphasize the district court made no finding that it was in C.L.'s best interests to terminate Father's parental rights. We are dealing exclusively with K.S.A. 2016 Supp. 59-2136(h)(1)(C) (no reasonable efforts to support or communicate). Baby Girl P. has meaningful similarities as to how the protections afforded for the natural father's rights were erroneously viewed by the lower courts. And in correcting those views, this court set out principles to be observed in future cases. We noted, for example, there was no legislative call in the statutory scheme "to make the assertion of paternal rights a Herculean task." 291 Kan. at 433, 242 P.3d 1168. The Baby Girl P. case emphasized lower courts must not reward other parties for erecting a "series of hurdles" the natural parent must clear before being able to establish his or her protected interest. 291 Kan. at 433, 242 P.3d 1168. The only statutory requirement is for the father to make "reasonable" efforts to support or communicate with the child. The Baby Girl P. court also rejected the criticism of the biological father's failure to discover the natural mother's deception about a miscarriage. This, the court said, suggested "that a father should disregard the mother's warnings that he is to leave her alone and instead go to her school or place of work or inquire of her friends to determine whether she is pregnant." 291 Kan. at 432-33, 242 P.3d 1168. And the court went on to explain it would not "read into the statute a requirement that a father invade a mother's privacy to determine whether she is pregnant when the father has sound reasons to believe that she is not." 291 Kan. at 433, 242 P.3d 1168. Similarly, the Baby Girl P. court concluded the biological father's actions in seeking visitation, offering the custodial parents anything they might need, telling them he was prepared to assume his responsibility to provide for his daughter, and providing her Christmas gifts were "the actions of a father who is attempting to maintain a relationship with his child, not the actions of a father who is neglecting his child ." ( Emphasis added.) 291 Kan. at 434, 242 P.3d 1168. The court rejected the panel's suggestion "that an all-encompassing offer of support was not reasonable and that a father must undertake additional actions, such as setting up a special bank account for the child whom he is not allowed to support directly, to prove his willingness to provide support." 291 Kan. at 434, 242 P.3d 1168. The court found "nothing in the adoption statute requiring that a parent must make extraordinary displays of financial support in order to avoid a finding of neglect." ( Emphasis added.) 291 Kan. at 434, 242 P.3d 1168. The Baby Girl P . court then held that biological father's actions were not "incidental" activities that could be disregarded. 291 Kan. at 434, 242 P.3d 1168 ; see also K.S.A. 2016 Supp. 59-2136(h)(2)(B). "[I]ncidental means 'casual, of minor importance, insignificant, and of little consequence.' " 291 Kan. at 434, 242 P.3d 1168 (quoting In re Adoption of McMullen , 236 Kan. 348, Syl. ¶ 1, 691 P.2d 17 [1984] ). The father had "retained counsel, he filed court actions to obtain visitation, he gave gifts, and he offered to give anything that was needed for his daughter's support." Baby Girl P. , 291 Kan. at 434, 242 P.3d 1168. "[Father's] conduct upon learning that he had a daughter was scarcely casual or insignificant. It demonstrated a commitment to assuming the role of a father ." ( Emphasis added.) 291 Kan. at 434, 242 P.3d 1168. Returning to C.L.'s case, we begin by noting there are some obvious problems with the district court's factual recitations. For example, the district court found "[Father] did not ask the case manager to see the child." Yet, the record indicates Father "inquired if he would be able to ... see the baby." And Kline advised "this is usually dependent on trust with the adoptive family." The point is that Father did ask and was told the visitation outcome depended on the adoptive family. Also, much is made about Father's medical insurance, but the record is less than clear on this. Father's testimony was that he did not have insurance through his employer when the baby was born because he was on his mother's insurance. But after learning about the baby, he initiated health insurance for himself, believing this would allow him to add the baby to the plan when the time came. And the record further shows paternity was not established until January 2017, so what might have happened after that with the insurance is undeveloped and subject to much argumentative conjecture. In other words, the district court's conclusions on this subject are not supported by clear and convincing evidence. But more importantly, in reaching its conclusion that Father made no reasonable efforts to support or communicate with C.L., the picture the district court selectively paints with the established facts is incomplete. Cf. Baby Girl P. , 291 Kan. at 430, 242 P.3d 1168 (to terminate under section requiring support during pregnancy, court must consider "all of the relevant surrounding circumstances"). The district court's primary focus was that Father did not create alternative mechanisms to provide financial or material support through third parties, which in a typical case might be meaningful. But this case is not typical, and Father's unique circumstances should not have been dismissed by the lower courts. After all, Father did attempt to enlist the Shawnee County court to authoritatively establish his rights and support obligations through the paternity action. And when the focus is placed on Father's action, attention is immediately drawn to the "series of hurdles" put in his way in his effort to support his child. No one disputes Father was unaware Mother was pregnant until after the baby was born. Kline informed him of C.L.'s birth on the evening of Thursday, September 15, two days after the fact. And he was given this news in a phone conversation with a stranger working on someone else's behalf, who was asking him-and expecting him-to relinquish his parental rights as soon as the next day. The record also strongly suggests that by this time, the prospective adoptive parents had already taken C.L. home from the hospital-even though they would later be critical of Father for not visiting C.L. in the hospital as evidence supporting their bid to terminate his parental rights. Additionally, when asked, Kline refused to tell Father who the mother was, so he was left in the dark about that as well. Finally, and as mentioned, Father asked Kline about the possibility of seeing the child and was cryptically advised that was "usually dependent on trust with the adoptive family." The record is also undisputed that by the next day-a Friday-Father was acting to protect his parental rights. He advised Kline he wanted custody, had retained a lawyer to accomplish this, and gave Kline his lawyer's contact information. Notably, instead of prompting a cooperative opportunity to work with that attorney to explore Father's potential relationship with his child, this news apparently triggered a one-sided, "first strike" race to the courthouse to initiate adoption proceedings in another county that would preempt any lawsuit by Father to establish his paternity and support obligations. That tactical move by the prospective adoptive parents had the desired result, but they admittedly got there by filing a lawsuit without appropriate factual investigation and by alleging false grounds for terminating Father's parental rights. They claimed, for example, that Father had failed to support Mother during the six months prior to C.L.'s birth and abandoned her after having knowledge of the pregnancy, even though he did not learn of the pregnancy and birth until two days after the fact. Worse yet, the prospective adoptive parents, under oath, verified these false accusations as being true. As Judge Malone observed in his concurrence, "these allegations obviously were untrue" given the fact that no one-not even Mother-was aware of the pregnancy. Adoption of C.L. , 2018 WL 1022887, at *7 (Malone, J., concurring). And once forced into the Wyandotte County action, the record is unclear why Father was not personally served until after 5 p.m., Saturday, November 26-just three calendar days before the hearing on the adoption petition. But what is clear is that if Father had failed to appear at the November 29 hearing, he would have been even more seriously prejudiced in his ability to preserve his parental rights. See Baby Girl P. , 291 Kan. at 437-42, 242 P.3d 1168 (Luckert, J., concurring) (parental preference doctrine does not apply when no person appears claiming parental custodial rights at an adoption hearing, citing In re Adoption of A.A.T. , 287 Kan. 590, 196 P.3d 1180 [2008] ). Yet, Father did appear to assert his rights. In short, throughout the brief period Father knew about his son, a series of calculated obstructions were placed between him and his child in what was already a difficult circumstance. And each barrier consistently put him in an inferior position that required him to strategically or creatively react to avoid forfeiting his parental rights without any demonstrated willingness from the prospective adoptive parents or KCSL to actually include Father in C.L.'s life. Indeed, the record would reasonably suggest given their experience in these matters that KCSL and the attorney representing the prospective adoptive parents well understood any facilitation of Father's involvement would stymie the adoption outcome they sought. In its decision, the district court highlighted how no court order prohibited Father from having contact with C.L. But framing the evidence as it did in terms of what Father legally might or could have done despite the obstacles and circumstances-rather than what a reasonable person would do in this same situation-is contrary to the statutory dictates that permit termination only when "the father has made no reasonable efforts to support or communicate with the child." K.S.A. 2016 Supp. 59-2136(h)(1)(C). It does not appear either lower court ever seriously considered whether what Father did do was a reasonable effort in this particular circumstance, especially since Father only learned of the pregnancy after C.L. was born and further recognizing that Father was not certain he was the biological father until less than 60 days before the termination hearing. After reviewing all the evidence in the light most favorable to the prospective adoptive parents, this court cannot be convinced a rational fact-finder could have found it highly probable that Father made no reasonable effort to support or communicate with C.L. after having knowledge of C.L.'s birth. The Shawnee County action speaks volumes to this. And how can we say Father has not "accept[ed] some measure of responsibility for the child's future" when he asked the Shawnee County court to declare and delineate exactly that responsibility? Lehr v. Robertson , 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). A putative father need not "undertake additional actions, such as setting up a special bank account for the child whom he is not allowed to support directly, to prove his willingness to provide support." Baby Girl P. , 291 Kan. at 434, 242 P.3d 1168. The corollary under our facts would recognize that Father was not expected to stuff cash in an envelope in hopes that it would later be deemed sufficient or even delivered to the right place. See K.S.A. 2016 Supp. 59-2136(h)(2)(B) (incidental activities may be disregarded). And nothing in the record reflects he had any other reasonable alternative. But what Father did do, through the advice of counsel, was to promptly ask a court to declare him to be C.L.'s father and issue enforceable orders establishing how support and custody should be achieved as appropriate for the child. His failure to more quickly adjust after his Shawnee County efforts failed because of the Wyandotte County lawsuit is insufficient to "instantly tilt[ ] the evidentiary scales" in favor of finding he made no reasonable efforts to support or communicate with C.L. "when weighed against the evidence" of the circumstances and the steps he took. Colorado v. New Mexico , 467 U.S. at 316, 104 S.Ct. 2433. Notably, those steps included filing a paternity action seeking custody and asserting his rights through the court system immediately after learning about both the pregnancy and C.L.'s birth from a social worker that enigmatically told him contact with the baby would hinge on "trust with" the prospective adoptive parents. Simply put, these were "the actions of a father who is attempting to maintain a relationship with his child, not the actions of a father who is neglecting his child ." (Emphasis added.) Baby Girl P. , 291 Kan. at 434, 242 P.3d 1168. To hold otherwise would encourage those with another interest to place a "series of hurdles" between a putative father and his child to increase the likelihood of a successful adoption. 291 Kan. at 433, 242 P.3d 1168. The record in this appeal certainly suggests that possibility. Termination of parental rights should not be determined by which side schemes to be shrewder or more strategic. In that regard, we echo the comments Judge Malone made in his concurrence when he observed: "In light of the preference recognized in the law favoring a biological parent's right to raise his or her child, assuming the parent is fit, it seems to me like this case went off track from the moment C.L. was born. Only three days later, [Father] expressed his desire to assume his parental responsibilities. At that point, instead of rushing to the courthouse to file an adoption petition, all parties involved in the case should have at least temporarily put the adoption plans on hold. In the meantime, KCSL or some other appropriate agency could have conducted an investigation of [Father]'s home and background to see if he would have been a suitable placement option for C.L. Assuming that [Father] passed the initial investigation and background check, C.L. could have been temporarily placed with [Father] for a trial period to be monitored by the appropriate agency or the courts. Then, if any evidence developed that [Father] was not properly caring for C.L., a petition for termination of parental rights could have been filed with the court. Giving [Father] more of a chance to prove his fitness as a father would have been a better approach than rushing into an adoption proceeding and finding out later if there was any evidence to support it." Adoption of C.L. , 2018 WL 1022887, at *8 (Malone, J., concurring). The lower courts erred by failing to focus on all the circumstances when determining whether clear and convincing evidence demonstrated that Father made "no reasonable efforts" to support or communicate with C.L. after knowledge of his birth. K.S.A. 2016 Supp. 59-2136(h)(1)(C). We must reverse their contrary conclusions and remand to the district court to initiate proceedings effectuating a change in custody consistent with this ruling for the now two-year-old child at the center of these unfortunate proceedings. As was done in Baby Girl P. , we acknowledge: "Years of developing family ties cannot be undone, and a separation at this point will doubtless cause considerable pain. Had the mandates of the statutory process been followed ..., much potential anguish might have been avoided, and in any case the law cannot be applied so as to automatically 'reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.' Matter of Adoption of Halloway, 732 P.2d 962, 972 (Utah 1986). It is not ours to say whether the trauma that might result from removing [this child] from [his] adoptive family should outweigh the interest of the father-and perhaps the child [himself]-in having [him] raised by [his] natural father." Baby Girl P. , 291 Kan. at 436-37, 242 P.3d 1168 (citing Mississippi Choctaw Indians Band v. Holyfield, 490 U.S. 30, 53-54, 109 S.Ct. 1597, 104 L.Ed.2d 29 [1989] ). Due to these obvious concerns, we remand with instructions similar to those given in Baby Girl P. for the district court to recognize the potential traumatic impact of a sudden, precipitous separation of a child from the only parents he has known. We direct the court to expedite the custodial transition process, but we do not specify, as we did in Baby Girl P. , that this process be completed within 30 days. The court is in the better position to effectuate how C.L. and Father are to be united without undue delay. The court may in its discretion include the participation of appropriate professional personnel. See Baby Girl P. , 291 Kan. at 437, 242 P.3d 1168. Reversed and remanded with instructions. Beier, J., not participating. Jeffrey E. Goering, District Judge, assigned. REPORTER'S NOTE: District Judge Goering was appointed to hear case No. 117,723 vice Justice Beier under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

Powell, J.: Robert M. Gerleman and his now ex-wife, Jeannette M. Gerleman, were divorced in July 2013. Their divorce was very contentious and has resulted in two appeals to this court. After remand from the second appeal, the district court entered a judgment against Robert for unpaid spousal maintenance and Jeannette's portion of Robert's military retirement pay. Armed with the district court's judgments, Jeannette then attempted to garnish Robert's wages. However, shortly after the orders of garnishment were filed, Robert's father, who lives in Texas, was diagnosed with brain cancer, requiring Robert to take off more than two weeks from work to travel from his home in Washington, D.C., to help care for his father as he recovered from brain surgery and sought additional treatment. Robert sought to stop the garnishments during the time he was caring for his ill father as provided for in K.S.A. 2017 Supp. 60-2310(c) and filed an affidavit claiming he was exempt from garnishment because he was prevented from working for more than two weeks due to the illness of a family member. The district court rejected Robert's request, holding that K.S.A. 2017 Supp. 60-2310(c) only exempts a debtor from garnishment if the debtor is prevented from working due to an illness of a member of his or her household-not any family member. Robert now appeals the district court's refusal to grant him the exemption. As a matter of first impression, we agree with Robert that the words "any member of the family of the debtor" contained in K.S.A. 2017 Supp. 60-2310(c), by its plain language, is not limited to family members residing in the household of the debtor. Consequently, we reverse and remand with directions. FACTUAL AND PROCEDURAL BACKGROUND To say this case has arrived before us via a contentious path is an understatement. In August 2012, Robert filed for divorce from Jeannette, and the district court entered a decree of divorce in July 2013. Two appeals to this court followed; these appeals dealt with different issues than the appeal at hand. In re Marriage of Gerleman , No. 114,855, 2017 WL 66339 (Kan. App. 2017) (unpublished opinion); In re Marriage of Gerleman , No. 110,461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion). After remand from this court, the district court entered a judgment on May 12, 2017, against Robert for back spousal maintenance owed to Jeannette and for his previously agreed-to portion of military retirement pay. Additionally, the district court found Robert in contempt for his failure to pay the ordered spousal maintenance. The court also reaffirmed the parties' property settlement agreement in which Robert agreed to pay Jeannette spousal maintenance of $1,950 per month for a total of 62 months. Although the record is spotty, it appears that Robert has not approved any qualified domestic relations order (QDRO) dividing his military retirement, nor has he paid any portion of his military retirement pay to Jeannette since he was ordered to do so. Additionally, it appears that Jeannette was able to garnish only a small portion of the spousal maintenance owed to her-$2,841.98 as of July 5, 2017. Around this same time, the district court entered three orders of garnishment to Robert's employer, the United States Department of Homeland Security: the first on March 16, 2017, to attach earnings for a claimed amount of $15,600; the second on April 18, 2017, to attach earnings for a claimed amount of $2,280.60; and the third on June 14, 2017, to attach earnings for a claimed amount of $65,226.44. This third order of garnishment superseded the first two orders of garnishment. A review of the record on appeal indicates that answers to these orders of garnishment were never filed by Robert's employer, and it is unclear whether amounts were ever withheld from Robert's wages and when. On May 29, 2017, Robert's father was diagnosed with a brain tumor. His father and stepmother live in Dallas, Texas; at the time, Robert lived and worked in Washington, D.C. On June 5, 2017, Robert's father underwent surgery to remove the tumor and was shortly after diagnosed with brain cancer. On June 9, 2017, Robert took more than two weeks off from work to assist his father and stepmother while his father recovered and sought treatment options. The record on appeal does not indicate the exact length of time that Robert took off work, but Robert stated at oral argument that it was 15 days. On July 3, 2017, Robert filed an "Affidavit to Cease Garnishment Pursuant to K.S.A. 60-2310(c)," attesting to the above information regarding his father's illness and attesting that as a result of his father's illness he had "been unable to work in [his] regular profession for more than two weeks." On July 12, 2017, Robert filed a Motion for Release of Garnishment Orders, arguing, in part, that an exception under K.S.A. 2017 Supp. 60-2310(c) required the garnishments to cease due to his father's illness. On July 21, 2017, the district court held a hearing to consider Robert's motion. For reasons that will be discussed in greater detail below, the district court held that Robert was not exempt from garnishment and memorialized this ruling in a journal entry filed on September 1, 2017. On July 27, 2017, the district court entered another order of garnishment for "spousal support and accrued judgment interest" for $21,494.52. This order of garnishment was issued to Defense Finance and Accounting Service, the federal agency that handles Robert's military retirement pay. On August 28, 2017, the district court entered a fifth order of garnishment for past due retired military pay totaling $68,197.61. This garnishment order was issued to Robert's employer. Again, no answer to either of these garnishment orders appears in the record on appeal, and it is unknown whether amounts were ever withheld. Although not included in the district court's register of actions and no transcript of the hearing is included in the record, the district court filed a journal entry from a hearing conducted on September 5, 2017, denying Robert's outstanding "Objection to Garnishment, Request for Sanctions" and his "Relief from, and to Set Aside, Void Garnishment." However, for reasons that are unclear based on a review of the record before us, on September 19, 2017, Jeannette filed releases from garnishment on the first three orders of garnishment. There were two additional releases from garnishment filed by Jeannette on July 19, 2017, and July 20, 2017; however, the garnishees and the filing dates listed for the orders of garnishment in the releases do not correspond to the dates and garnishees of the other two remaining orders of garnishment in the record on appeal. Therefore, it appears the July 27 and the August 28, 2017 garnishment orders for $21,494.52 owed for spousal support and $68,197.61 owed for military retirement pay, respectively, remain intact yet unanswered. At oral argument, the parties agreed that the garnishments at issue only involve Robert's wages from the Department of Homeland Security. Robert timely appeals the district court's finding that his father's illness did not exempt him from garnishment. IS ROBERT EXEMPT FROM GARNISHMENT UNDER K.S.A. 2017 SUPP . 60-2310(c) ? On appeal, Robert argues that the district court erred in holding that he was not exempt from garnishment under K.S.A. 2017 Supp. 60-2310. This statute governs wage garnishments and authorizes creditors to garnish the wages of debtors subject to various limitations. One such limitation is contained in K.S.A. 2017 Supp. 60-2310(c), which states: "Sickness preventing work . If any debtor is prevented from working at the debtor's regular trade, profession or calling for any period greater than two weeks because of illness of the debtor or any member of the family of the debtor, and this fact is shown by the affidavit of the debtor, the provisions of this section shall not be invoked against any such debtor until after the expiration of two months after recovery from such illness." The district court held that this statute did not prevent Robert's wages from being garnished because his father was not a member of his household. At the hearing, the district court held: "I looked for some guidance on application and interpretation of this subsection, and, frankly, I didn't find much. And my inclination is to restrict the meaning of the word 'family' in this subsection to household members, because it does contain the word 'prevented from working at the debtor's regular trade, profession or calling', and so it's hard for me to think that the Legislature, when they used that word in this subsection, which is a statute of repose in a certain sense, it's to provide protection to a debtor from being garnished when it would create some-an unavoidable substantial hardship for the person. "When I look at the Family Medical Leave Act it's my understanding of that federal law that it does apply to parents, and I am not aware of a definition that requires the parent to live in the home or depend on the family member for their existence. But, number one, that's federal law which I don't [sic ], and it was passed in '93, and this act is much older than that, and I am not aware of any-nobody's brought to my attention any reason to believe that that Federal Act has application here. When I look at the word 'prevented' that further strengthens my view that we're talking about immediate household family members. "So, it's my finding that K.S.A. 60-2310(c) does not have application to the circumstances described by Mr. Gerleman. For that reason the request for exemption is denied." Resolution of Robert's argument on appeal requires us to examine three issues. First, we must interpret K.S.A. 2017 Supp. 60-2310(c) to determine if Robert's father is included in the Legislature's designation of "any member of the family of the debtor." Second, if Robert's father is considered to be "any member" of Robert's family, we must then assess whether Robert's affidavit was sufficient to exempt him from garnishment. Third, if we declare that Robert was entitled to the exemption from garnishment, we must then determine how long the exemption should have lasted. Each of these inquires requires us to interpret K.S.A. 2017 Supp. 60-2310(c), which is a question of law over which we exercise unlimited review. See Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule of statutory construction "is that the intent of the legislature governs if that intent can be ascertained." State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). " 'An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 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.' [Citations omitted.]" Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). "Dictionary definitions are good sources for the 'ordinary, contemporary, common' meanings of words." Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n , 306 Kan. 845, 851, 397 P.3d 1205 (2017). Each inquiry will now be addressed in turn. A. Under K.S.A. 2017 Supp. 60-2310(c), is Robert's father classified as "any member of the family of the debtor"? First, we must determine if Robert's father qualifies as "any member of the family of the debtor" under K.S.A. 2017 Supp. 60-2310(c). This question appears to be a matter of first impression before this court. Obviously, Robert is the debtor here, and the parties do not appear to dispute that father is included in the definition of family. The focus of the dispute centers around Jeannette's argument that the term family is limited to family residing in the same household. As we see it, defining the term "any member of the family" requires defining its parts, namely the words "any," "member," and "family." Because caselaw on this matter is lacking, in this context and in others, dictionary definitions are appropriate. First, the word "any" is defined in part as "some, no matter how much or how little, how many, or what kind" and "without limit." Webster's New World College Dictionary 64 (5th ed. 2016). Second, the word "member" is defined in part as "a person belonging to some association, society, community, party, etc." Webster's New World College Dictionary 912 (5th ed. 2016). The true debate lies in the meaning of the word "family." Jeannette argues that the word "family" in this context means a member of the debtor's household. Relying on Friedman v. Alliance Ins. Co. , 240 Kan. 229, 235, 729 P.2d 1160 (1986), Jeannette attempts to argue that the terms "family" and "household" are substantially synonymous. We disagree that Friedman supports such a statement. One of the issues the Friedman court was attempting to resolve was whether a son could make a claim under his parents' insurance policy even though he had completed college and was in the process of moving out of his parents' home. The issue in the case was principally about the son's residency, and the court quoted with approval a Utah Supreme Court case stating that a " 'resident of a household is one who is a member of a family who live under the same roof.' " 240 Kan. at 235, 729 P.2d 1160 (quoting American States Ins. Co., Western Pac. Div. v. Walker , 26 Utah 2d 161, 164, 486 P.2d 1042 [1971] ). The court did not say that a member of a family is limited to someone who lives under the same roof. Black's Law Dictionary defines "family" in part as "[a] group of persons connected by blood, by affinity, or by law, [especially] within two or three generations" and "[a] group consisting of parents and their children." Black's Law Dictionary 721 (10th ed. 2014). Black's Law Dictionary further provides definitions for different categories of "family"-blended family, extended family, immediate family, and intact family. Black's Law Dictionary 721. Of these categorical definitions, the most restrictive is "immediate family," which is defined as "[a] person's parents, spouse, children, and siblings." Black's Law Dictionary 721; see also K.S.A. 2017 Supp. 17-2205(a)(4)(A) (credit union statute defines " 'immediate family or household' " as "spouse, parent, stepparent, grandparent, child, stepchild, sibling, grandchild or former spouse and persons living in the same residence [as] a single economic unit"); 1 Elrod, Kansas Law and Practice: Kansas Family Law § 4:1 (2017-2018 ed.) ("Family historically has been defined by biology or marriage."). Using the ordinary meaning of these terms we have discussed above, we have no trouble concluding that Robert's father should be classified as any member of Robert's family. To read K.S.A. 2017 Supp. 60-2310(c) as Jeannette argues we should-"any member of the family of the debtor residing in the household of the debtor "-requires us to read words into the statute that are simply not found there, something we are forbidden to do. See Ullery , 304 Kan. at 409, 372 P.3d 1135. The Legislature did not add any requirement that the family member must live with the debtor, and to place such a limitation on the family member of the debtor goes against the express legislative intent of the statute and adds words into the statute that are plainly not found in its text. Moreover, this interpretation is in line with how the Legislature has defined "family" in another context. Although admittedly wholly unrelated to the subject matter at hand, in the criminal realm regarding domestic battery, the Legislature defines " 'family or household member' " as "persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past ." (Emphasis added.) K.S.A. 2017 Supp. 21-5414(e)(2). Parents no longer living with the child are included in this definition of "family." Admittedly, the word "family" could be read quite broadly; therefore, we specifically limit our holding to the facts of this particular case-namely that a member of the debtor's family referred to in K.S.A. 2017 Supp. 60-2310(c) includes a debtor's father or parent, and is not limited to a father or parent residing in the debtor's household. We render no opinion as to what other relation to a debtor may qualify under the term "family." Accordingly, based on the plain language of K.S.A. 2017 Supp. 60-2310(c), Robert's father is a member of Robert's family. B. Was Robert's affidavit submitted under K.S.A. 2017 Supp. 60-2310(c) sufficient to temporarily exempt him from garnishment? Next, we must decide whether Robert's affidavit submitted to the district court was statutorily sufficient to satisfy the requirements of K.S.A. 2017 Supp. 60-2310(c). The statute requires the debtor to show by affidavit that the "debtor is prevented from working at the debtor's regular trade, profession or calling for any period greater than two weeks because of illness of the debtor or any member of the family of the debtor." Here, Robert submitted an affidavit that attested to the following: "1. On May 29, 2017, my father was diagnosed with a brain tumor. "2. On June 5, 2017, my father underwent brain surgery to remove the tumor. However, the neurosurgeon was unable to completely remove that tumor and it was determined to be malignant. "3. On June 8, 2017, it was discovered that the tumor was the most aggressive and most deadly form of brain cancer (Glioblastoma Multiforme ). "4. On or about June 9, 2017, my father and step-mother requested that I travel from my residence and work location in Washington, D.C. to their home near Dallas, Texas to assist them in the coming weeks. "5. As a result, I have been unable to work in my regular profession for more than two weeks and have been on leave without pay pursuant to the Family and Medical Leave Act since June 19, 2017." Jeannette argues that Robert's affidavit fails to properly allege that his father's illness prevented him from working; rather, his affidavit merely alleged he was unable to work. Obviously, Robert argues that "unable" and "prevented," in this context, mean the same thing. We agree with Robert. "Prevent" is defined, in part, as "to stop or keep (from doing something)," "to keep from happening; make impossible by prior action; hinder," and "to interpose an obstacle." Webster's New World College Dictionary 1154 (5th ed. 2016). "Unable" means "not able; lacking the ability, means, or power to do something." Webster's New World College Dictionary 1570 (5th ed. 2016). Although these two words have different definitions, when the use of the word "unable" in Robert's affidavit is read in context, it logically appears that he was explaining he was unable to work because his father's illness and necessary travel prevented him from working. Jeannette's argument is that Robert had a choice not to work and, because he had a choice about whether to work, Robert was not prevented from working. However, the statute does not require this showing, and such an argument, when applied, becomes illogical. See K.S.A. 2017 Supp. 60-2310(c). We are to construe statutes to avoid unreasonable results. See Milano's Inc. v. Kansas Dept. of Labor , 296 Kan. 497, 501, 293 P.3d 707 (2013). As Robert points out, requiring that the debtor have no choice but to miss work would leave only a few situations, and possibly none, to which the exemption would be applicable. For example, a debtor with a hospitalized child would not qualify for this exemption if he or she did not work during this hospitalization because, even without the parent's assistance or care, the hospital would ensure the child's survival while the parent was at work. And if the debtor wanted to be at the hospital to support the child and help with the care decisions, according to Jeannette's interpretation, he or she would have made the choice not to work to be with the child and, therefore, would not qualify as being "prevented from working." We cannot agree with this interpretation. From the affidavit Robert submitted, it is clear that his father requested Robert to be with him in the days after his cancer diagnosis to help him recover and make care and treatment decisions. The fact that his father lives in Texas and Robert was required to travel to help his father logically leads to the conclusion that his father's illness, and the travel it necessitated, both prevented Robert from working and made him unable to do so. As Robert's affidavit satisfies the conditions contained in K.S.A. 2017 Supp. 60-2310(c), the district court erred in holding that Robert was not exempt from garnishment. C. For how long is Robert exempt from garnishment under K.S.A. 2017 Supp. 60-2310(c) due to his father's illness? Having resolved that the garnishment exemption is applicable to Robert, we must now determine how long the exemption applies because its applicability is temporally limited. As to the starting date of the exemption, while neither side addresses this issue, given that the statute requires the debtor to submit an affidavit setting forth sufficient facts entitling the debtor to the exemption, the start date should begin no sooner than the date the debtor files the affidavit. As to the end date, K.S.A. 2017 Supp. 60-2310(c) states that "the provisions of this section shall not be invoked against any such debtor until after the expiration of two months after recovery from such illness." At oral argument, Robert confirmed that his father was in the gallery, meaning he is still living but apparently still suffering from brain cancer, and that Robert had returned to work after 15 days. At the time of his original diagnosis, Robert's father was given a life expectancy of 13 months. In our view, given the statute's requirement that the debtor be prevented from working to claim the exemption, once the debtor returns to work, it is contrary to the language contained in K.S.A. 2017 Supp. 60-2310(c) to continue the exemption indefinitely until the family member recovers from the illness; instead, the exemption ends once the debtor returns to work, plus the two-month grace period. Although a family member still may not be fully recovered from the illness, the context of the statute indicates that the illness must be preventing the debtor from working. Once the debtor returns to work, the illness suffered by the debtor's family member is no longer preventing the debtor from working and the exemption no longer applies. Any other interpretation would be unreasonable. See Milano's Inc. , 296 Kan. at 501, 293 P.3d 707. The plain language of the statute indicates its purpose is to give a debtor a grace period during financial hardship due to his or her inability to work because of the debtor's own or a family member's illness. There is an additional two-month grace period after a return to work to allow the debtor to recover from any financial hardship created during the time the debtor was prevented from working. Here, it appears Robert has returned to work. Because he has returned to work, Robert's father has apparently reached a point of recovery that no longer prevents Robert from working. To continue Robert's exemption past the two-month period after he returned to work because his father continues to be ill, in our judgment, provides an unintended windfall allowing Robert to continue to avoid his obligations to his ex-wife. If Robert's father's illness is no longer preventing Robert from working, according to the statute, his father's illness cannot serve to indefinitely prevent the garnishment of Robert's wages. Accordingly, we reverse the judgment of the district court and remand the case for the district court to determine (1) the dates on and after the filing date of the affidavit when Robert was not working due to his father's illness, plus two months; (2) what amounts, if any, were improperly withheld from Robert's wages during this period of time; and (3) the appropriate disposition of any improperly withheld funds. Reversed and remanded with directions.

Hill, J.: In this case, a widow appeals the dismissal of her tort claim against a company nurse and her employer for misdiagnosing her deceased husband's heart condition at work. The district court, relying upon an old case as precedent as well as offering no consideration of the intervening major revisions of the Kansas Workers Compensation Act, ruled that her lawsuit was barred by the exclusive remedy of workers compensation. The trouble with ancient precedent is that the law is never static. Each wave of legislation and each new appellate decision changes the law's seascape. What was once legally possible, in time, becomes legally impossible. Because the fundamental changes in the Kansas Workers Compensation Act cannot be ignored, we hold the precedent the district court relied upon is no longer reliable. We do not know what the future holds in store for this action but we do know it must survive a motion to dismiss. We reverse and remand. Steve Endres has chest pains at work followed by his death after work . We have gleaned the following facts from a fair reading of the petition filed in this case. As we point out later, under our civil procedure rules, they must serve as the only facts that the district court could rely upon when it considered the Defendants' joint motion to dismiss. Around 7:30 a.m., while he was working at Creekstone Farms Premium Beef, LLC, Steven Endres, the director of plant operations, began to experience chest pains. Over the noon hour, he sought treatment from the company nurse, Kimberly Young, RN. She noted he had mildly elevated blood pressure, a low pulse, and he was mildly dehydrated. Young diagnosed Endres with gastroesophageal reflux disease. Endres returned to his usual duties. That evening, after work, Endres went to the golf course, suffered a heart attack, and died. The emergency room doctor noted that Endres was at a cardiac standstill (asystole ) the entire time he was in the emergency room. His time of death is listed as 8 p.m. Endres' widow, Amy Endres, on behalf of herself, the heirs, and as administrator of Steven's estate, brought a medical negligence lawsuit against both Nurse Young and Creekstone. She alleged that because of Young's deviation from the standard of care, Endres suffered loss: "As a result of defendants' deviations from the standard of care in failing to properly treat Mr. Endres' acute coronary syndrome (ACS), including but not limited to, transferring Mr. Endres to the hospital, Mr. Endres died. "Had Steven Endres' condition been properly assessed, diagnosed, monitored and appropriate care and treatment been provided by defendants, Steven Endres would not have endured significant avoidable pain, suffering and death. Accordingly, defendants breached their duty to Steven Endres, which breach caused or contributed to the injury and death of Steven Endres. "After his evaluation by Kimberly Young, RN and before his death, and as a direct result of the deviations from the standard of care by defendants, Steven Endres suffered permanent injury, pain, suffering, mental anguish, medical expenses and other losses." The Defendants responded by contending that the Plaintiffs' exclusive remedy was through the Kansas Workers Compensation Act and not through a tort action. Both moved to dismiss the lawsuit for failure to state a claim. In their view, this lawsuit was barred by law. The district court agreed and granted the motion to dismiss. This appeal followed. It is significant that this was a motion to dismiss. The district court dismissed the petition for failure to state a claim under K.S.A. 2016 Supp. 60-212(b)(6). This is the procedural equivalent to saying, "We have read your petition and say, so what? Since there is no legal significance to your claim, your lawsuit must be dismissed." Because this case centers on a motion to dismiss, certain rules guide our review. Whether a district court erred by granting a motion to dismiss is a question of law subject to our unlimited review. Cohen v. Battaglia , 296 Kan. 542, 545, 293 P.3d 752 (2013). During our review, caselaw commands that we must view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. See Cohen , 296 Kan. at 545-46, 293 P.3d 752 ; K.S.A. 2016 Supp. 60-212. We will not resolve any factual disputes when deciding a motion to dismiss for failure to state a claim. Dismissal of a lawsuit is proper only when the allegations in the petition clearly demonstrate the plaintiff does not have a claim. See Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc. , 305 Kan. 761, Syl. ¶ 2, 388 P.3d 84 (2017). Interestingly, this is a rather unique case where the employer is arguing that the worker (or his estate) is entitled to workers compensation benefits. Basically, the Defendants contend that the Plaintiffs have not stated a claim for which relief may be granted because the exclusive remedy provision of the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., precludes the claims. The law is clear on this point. If an injured employee could have recovered compensation for the injury under the Act, the law commands that the employee cannot maintain an action against his or her employer or another employee for damages based on common law negligence. Indeed, K.S.A. 2015 Supp. 44-501b(d) states clearly that no civil suit is permitted if "compensation is recoverable under the workers compensation act." See Robinett v. Haskell Co. , 270 Kan. 95, 97, 12 P.3d 411 (2000). The exclusive remedy provision prevents double recovery by an injured worker. Scott v. Hughes , 281 Kan. 642, 646, 132 P.3d 889 (2006). After taking all of these rules into account, this means that in order to persuade us to affirm the court's grant of their motion to dismiss, Nurse Young and Creekstone must show that Endres (or his heirs) could have recovered compensation under the Act. See Wheeler v. Rolling Door Co. , 33 Kan. App. 2d 787, 791, 109 P.3d 1255 (2005). If there can be no recovery under the Act, then the exclusive remedy provision of the law does not apply and the motion to dismiss should not have been granted. We begin with the district court's ruling. In granting the Defendants' motion to dismiss, the district court ruled that Scott v. Wolf Creek , 23 Kan. App. 2d 156, 928 P.2d 109 (1996), applied and therefore controlled the outcome of this case. In Scott , the estate and heirs of a worker who had died from a heart attack sued his employer and three coemployees claiming medical malpractice. The lawsuit alleged that Gary R. Scott had lost a chance of surviving a heart attack due to the negligent medical treatment he received when he suffered a heart attack while working at the Wolf Creek power plant. The district court in Scott granted summary judgment to the employer and the coemployees, holding the exclusive remedy of workers compensation barred a tort claim. On review, this court upheld the grant of summary judgment. In dicta, the Scott panel agreed with the employer and the coemployees that had the plaintiffs sought workers compensation benefits for Mr. Scott's heart attack, the "heart amendment would likely have barred their claim." 23 Kan. App. 2d at 158, 928 P.2d 109. The claim, however, of the defendants' negligence which caused or contributed to Scott's death by reducing his chance of surviving the heart attack was not barred by the heart amendment. Therefore, workers compensation benefits for such a claim were possible. And, since benefits were possible, the exclusive remedy law precluded the tort claim. The Defendants here persuaded the district court that since Scott was a medical negligence tort case which sought recovery for the loss of a chance for survival-which was barred by the exclusive remedy provision in the Kansas Workers Compensation Act-the medical negligence tort case here, seeking recovery for a misdiagnosis that ended in a heart attack after work, should be barred as well. We are not so persuaded. We pause here to note that the "heart amendment" mentioned in Scott is an enactment found in K.S.A. 2017 Supp. 44-501(c)(1). It specifically precludes workers compensation coverage for workers with coronary or coronary artery disease unless caused by exertion that was more than the employee's usual work in the course of the employee's regular employment. We will examine the heart amendment in greater detail later. With the massive changes in the Kansas Workers Compensation Act made in the last few years, we find the persuasive power of the Scott holding, horizontal precedent for us at best, to be greatly diminished. The Act was overhauled in 2011. It is fair to say that the revisions were made in an effort to limit workers compensation benefits and not to enlarge them. Important provisions have been changed since Scott . They dealt with the concepts of injury, accident, and causation. When we examine these new provisions, while keeping in mind that we are considering a motion for dismissal on the pleadings, we conclude the district court erred when it granted this motion to dismiss. Put simply, Scott has lost its luster. Changes in the Kansas Workers Compensation Act appear to preclude recovery here. First we begin with one of the basics of workers compensation law: the term "injury." At all relevant times, in both the older and newer versions of the law, "injury" has meant a "lesion or change in the physical structure of the body, causing damage or harm thereto." K.S.A. 2015 Supp. 44-508(f)(1) ; K.S.A. 44-508(e) (Furse 1993). This leads us to the question, what was Endres' injury here? The claimed misdiagnosis itself cannot, by definition, be the injury because it is not a change in the physical structure of the body. The injury suffered here was a change in Endres' heart condition-his heart attack. This becomes increasingly important when we consider the new provisions of the term "accident." Next, perhaps the most dramatic change in the Act focuses on the term "accident." Now, an "accident" must cause the injury. K.S.A. 2015 Supp. 44-508(f)(1) provides, "Personal injury or injury may occur only by accident , repetitive trauma or occupational disease as those terms are defined." (Emphasis added.) Clearly, there are no allegations in the petition here of repetitive trauma or occupational disease causing Endres' death, so we must look at injury by accident. Before it was changed, K.S.A. 44-501(a) (Furse 1993) read, "personal injury by accident." There was no "only by accident" in the law then. This is important here because according to the Plaintiffs' petition, Nurse Young's negligence caused Endres' heart attack and death. If the claimed negligence-Nurse Young's alleged misdiagnosis-is to be compensable under the Act, then that negligence must fit within the definition of accident. A look at the two versions of the statute is helpful at this point. A contrast of the 1993 and 2015 versions of the definition of "accident" illustrates the great differences between the two versions of the law. We begin with the older and more nebulous version: " 'Accident' means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment ." (Emphasis added.) K.S.A. 44-508(d) (Furse 1993). Now, the newer, more precise, version: " 'Accident' means an undesigned, sudden and unexpected traumatic event, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. An accident shall be identifiable by time and place of occurrence, produce at the time symptoms of an injury, and occur during a single work shift. The accident must be the prevailing factor in causing the injury ." (Emphasis added.) K.S.A. 2015 Supp. 44-508(d). It is easy to see how a misdiagnosis could be considered an "accident" under the 1993 definition. The term accident was "not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense." K.S.A. 44-508(d) (Furse 1993). But the current law replaced that language with more exacting requirements. Now, the law requires that the accident must be identifiable by time and place, produce symptoms at the time of an injury, and occur during a single work shift. K.S.A. 2015 Supp. 44-508(d). Here, the alleged misdiagnosis was identifiable by time and place and occurred during a single work shift-around noon in Nurse Young's office when she diagnosed Endres with reflux disease. He had symptoms of chest pain when he went to see her. But we see nothing in the petition that shows the alleged misdiagnosis "produce[d] at the time symptoms of an injury." The petition simply does not allege that the misdiagnosis itself produced, at that time of its making, any symptoms. After all, Endres' heart attack occurred at the golf course, after work. We cannot stretch the words of this statutory definition of accident to cover these facts. It is clear that a misdiagnosis such as the one alleged here is not contemplated by this current statutory definition of accident. To be compensable under the Act, personal injury must occur only by accident. An important component of accident is the concept of trauma. We now look at the inclusion of trauma in the 2011 revisions. The word "traumatic" was added to the definition of "accident" in 2011. Previously, accident was an "undesigned, sudden and unexpected event or events." The Legislature added "traumatic" and deleted "or events." We have already noted that the Legislature added language requiring that the accident be "identifiable by time and place of occurrence" and "occur during a single work shift." At the same time, it deleted language referring to an accident occurring as a result of a series of events. See L. 2011, ch. 55, § 5. We note that reference to a "traumatic event" was used in various Kansas Workers Compensation Board opinions prior to 2011 to distinguish cases dealing with a "single traumatic event" from those involving repetitive trauma. See e.g., Fleming v. Ridgeway Controls, Inc. , No. 244331, 1999 WL 1113619, *2 (Kan. Work. Comp. App. Bd. 1999). In 2011, the Legislature separated the terms accident and repetitive trauma, adding a new definition of repetitive trauma. It appears that the change in language was merely meant to distinguish a single "accident" from "repetitive trauma." But what is manifest is that the Legislature added a line that states, " 'Accident' shall in no case be construed to include repetitive trauma in any form." The definition continues to state that the traumatic event is "often, but not necessarily, accompanied by a manifestation by force." From this, it follows that the Legislature chose not to limit an accident to a manifestation of force. The Defendants invite us to ignore the word, arguing that the term "traumatic" is ambiguous as a matter of law because of the "number of radically different legitimate dictionary definitions of the word." They cite several out-of-state court opinions discussing the definition of traumatic in this and other contexts, including a couple of cases from the New Jersey Supreme Court. None are persuasive. One such definition comes from Webster's Dictionary, which defines "trauma" as "1 Med. bodily injury, wound, or shock "2 Psychiatry a painful emotional experience, or shock, often producing a lasting psychic effect and, sometimes, a neurosis "3 any emotionally painful experience [ the trauma of being laid off] ." Webster's New World College Dictionary 1542 (5th ed. 2016). Despite the various dictionary meanings, what is important here is that words come in clusters to communicate ideas. No matter how the word "traumatic" is defined, the accident must cause an injury. And the injury must be a "lesion or change in the physical structure of the body." K.S.A. 2015 Supp. 44-508(f)(1). The bare bones facts found in the allegations made in the petition here offer no evidence of accident or trauma. The district court did not address any of these concepts in its order. Instead, it relied entirely upon the holding in Scott. Moving on, we note that the Plaintiffs also contend that their claim did not "arise out of employment" as that phrase is defined in the Act. Before and after Scott , the Act has required that the claimant have suffered a personal injury "arising out of and in the course of employment." K.S.A. 44-501(a) (Furse 1993); K.S.A. 2015 Supp. 44-501b(b). But the meaning of that phrase has changed significantly. Importantly, whether an injury arose out of and in the course of employment is a question of fact. Moore v. Venture Corp. , 51 Kan. App. 2d 132, 137, 343 P.3d 114 (2015). The following language was added to the Act and clearly limits compensation: "An injury is compensable only if it arises out of and in the course of employment. An injury is not compensable because work was a triggering or precipitating factor. An injury is not compensable solely because it aggravates, accelerates or exacerbates a preexisting condition or renders a preexisting condition symptomatic." K.S.A. 2015 Supp. 44-508(f)(2). "An injury by accident shall be deemed to arise out of employment only if: "(i) There is a causal connection between the conditions under which the work is required to be performed and the resulting accident; and "(ii) the accident is the prevailing factor causing the injury, medical condition, and resulting disability or impairment." K.S.A. 2015 Supp. 44-508(f)(2)(B). Under the prior version of the Act, when a worker's job duties aggravated, accelerated, or intensified a preexisting condition, the worker was entitled to compensation for any increase in the functional impairment associated with the aggravation. K.S.A. 44-501(c) (Furse 1993) stated: "The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting." But the 2011 amendments changed those rules. The statute now excludes liability for preexisting conditions when the injury is solely an aggravation of the preexisting condition. See Le v. Armour Eckrich Meats , 52 Kan. App. 2d 189, 193-95, 198, 364 P.3d 571 (2015). In their brief, Plaintiffs contend that Endres had a preexisting coronary condition, though it is not alleged in their petition. If Endres' heart attack was indeed solely an aggravation, acceleration, or exacerbation of his preexisting coronary condition, then Plaintiffs' claim would be excluded under the Act. But the district court had no medical evidence to consider and could not decide this factual question when ruling on a motion to dismiss. Neither can we. Previously, an injury was deemed to arise out of employment where it arose out of the nature, conditions, and incidents of employment and did not arise from a hazard to which the worker would have been equally exposed apart from the employment. Martin v. U.S.D. No. 233 , 5 Kan. App. 2d 298, 299, 615 P.2d 168 (1980). For example, the Scott court found that "Scott would not have been equally exposed to the risk of negligent medical treatment by Wolf Creek physician's assistants apart from his employment at Wolf Creek." 23 Kan. App. 2d at 160, 928 P.2d 109. In 2011, the "prevailing factor" requirement was added to the Act. The Act provides that " '[p]revailing' as it relates to the term 'factor' means the primary factor, in relation to any other factor. In determining what constitutes the 'prevailing factor' in a given case, the administrative law judge shall consider all relevant evidence submitted by the parties." K.S.A. 2015 Supp. 44-508(g). Here, the accident-the misdiagnosis-must be the primary factor "causing the injury, medical condition, and resulting disability or impairment." K.S.A. 2015 Supp. 44-508(f)(2)(B)(ii). There is no relevant evidence to consider because of the procedural posture of this case. If the primary factor causing Endres' cardiac arrest, acute myocardial infarction, or death was not Nurse Young's misdiagnosis-but rather Endres' preexisting coronary condition-then the Plaintiffs' claim is not compensable under the Act. An employee can only recover if the accident, not a preexisting condition, was the primary cause of the employee's injury. See Buchanan v. JM Staffing, LLC , 52 Kan. App. 2d 943, 949, 379 P.3d 428 (2016). Endres had chest pain before he went to see Nurse Young. It is possible that her negligence was a contributing factor to Endres' heart attack and death, but not the primary factor. Plaintiffs' petition provides for such possibility when it states that Nurse Young's negligence "caused or contributed to" the injury and death of Endres. This is another question of fact that the district court could not decide. Again, neither can we. The district court's decision speaks in terms of "but for" causation and the "concurrence rule." After the 2011 amendments, however, not only must there be "a causal connection between the conditions under which the work is required to be performed and the resulting accident," but the accident must now be "the prevailing factor causing the injury, medical condition, and resulting disability or impairment." K.S.A. 2015 Supp. 44-508(f)(2)(B). It appears that the district court here used the incorrect standard of "but for causation" and not "the prevailing factor causing injury." Moreover, it appears the concurrence rule was eliminated by the 2011 amendments to the Act, specifically K.S.A. 2015 Supp. 44-508(f)(3)(A)(i)-(iv). See Graber v. Dillon Companies , 52 Kan. App. 2d 786, 798, 377 P.3d 1183 (2016), rev. granted 306 Kan. 1317 (2017); Stepter v. LKQ Corp. , No. 117,002, 2017 WL 4456730, at *5 (Kan. App. 2017) (unpublished opinion). Under that statute, the Act excludes injuries that are the result of the natural aging process and injuries that arise out of a risk personal to the worker. With the statutory changes to injury, accident, trauma, and the imposition of the new requirement of making the accident the prevailing factor of injury, Scott is no longer trustworthy precedent. The legal matrix has changed and we are no longer persuaded by its holding. Also, when we look at the inherent limitations of a motion to dismiss on the pleadings, relying solely on the limited fact allegations in the petition, we and the district court have no way to make important judgments about the applicability of the Act that exists now, as opposed to the Act of 20 years ago. We simply do not have enough facts to make those legal judgments. The heart amendment also comes into play. From time to time, the Legislature draws a line in the sand and says we cannot cross it. Such a line is the heart amendment. It did so when it amended the Kansas Workers Compensation Act in 1967 to limit the compensability for workers' heart attacks and ended a long line of cases in which compensation had been awarded even though a preexisting heart or vascular condition was a predisposing factor to injury. Mudd v. Neosho Memorial Regional Medical Center , 275 Kan. 187, 190, 62 P.3d 236 (2003). This amendment is frequently referred to as the "heart amendment." The heart amendment clearly denies compensation to workers for heart attacks unless the exertion of the work precipitated the injury: "[C]ompensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the employee's usual work in the course of the employee's regular employment." K.S.A. 2015 Supp. 44-501(c)(1). One of the definitions of precipitate is "to cause to happen before expected." See Webster's New World College Dictionary 1147 (5th ed. 2016). Accordingly, in order to receive benefits, claimants must demonstrate that their coronary and cerebrovascular injuries arose out of something more than the exertion required of their usual work in the course of their regular employment. Mudd , 275 Kan. at 191, 62 P.3d 236. There has been no substantial change to the heart amendment since its enactment, except that exclusions for firefighters and law enforcement officers, under certain circumstances, have been created by the Legislature. See L. 1967, ch. 280, § 1. Even with the massive revision of the Act in 2011, the heart amendment remains intact. This lack of change strikes us as significant. When the Legislature had an opportunity to change the law and did not take it, to us, that means that law is still the public policy that controls. We must look at the plain meaning of this statute. There are certain principles of statutory construction that are fundamental. One is that 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. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016). The Plaintiffs argue that Endres' heart attack was not caused by unusual exertion at work and, thus, a workers compensation claim would be barred by the heart amendment. We agree. There is certainly no claim in the petition of an external force that caused Endres' injury that would avoid the heart amendment altogether, as the extreme heat did in Dial v. C.V. Dome Co. , 213 Kan. 262, 515 P.2d 1046 (1973), or the extreme cold in Makalous v. State Highway Comm., 222 Kan. 477, 565 P.2d 254 (1977). These are two cases from 40 years ago where the Supreme Court held the heart amendment was not applicable. They are briefly acknowledged in Mudd. They do not affect our reasoning. The plain meaning of the law compels this interpretation: based on the allegations made in this petition, the heart amendment bars any workers compensation benefits here. It follows then, that if the Plaintiffs' claims are not compensable under the Kansas Workers Compensation Act, then the court erred when it granted the Defendants' motion to dismiss on the pleadings. The Defendants have not met their burden to show that that Act provides for the Plaintiffs' recovery. We cannot reasonably hold that Plaintiffs' claim is compensable under the Act based on the allegations in the petition. We are reminded that the dismissal of the lawsuit was proper only if the allegations in the petition clearly demonstrate the plaintiffs do not have a claim. Steckline , 305 Kan. 761, Syl. ¶ 2, 388 P.3d 84. With no exclusive remedy provided by workers compensation, we examine this petition as a tort claim. Within its four corners, the Plaintiffs' petition states a claim for which relief may be granted. Kansas common law recognizes a claim for "loss of chance to survive" when a plaintiff was already suffering from some injury or illness and a misdiagnosis is alleged to have diminished the plaintiff's chance of surviving from that preexisting injury or illness. The claim is similar to an ordinary medical malpractice claim, but with a reduced standard of proof of causation. The Plaintiffs must show that the alleged negligence was the proximate cause of the lost chance, but the lost chance itself need only be a substantial chance for a better result, in the absence of any malpractice. Delaney v. Cade , 255 Kan. 199, 202, 212, 215-16, 873 P.2d 175 (1994) ; Calvert v. Pevehouse , No. 94,253, 2006 WL 3056509, at *5 (Kan. App. 2006) (unpublished opinion). Plaintiffs alleged that "[h]ad Steven Endres' condition been properly assessed, diagnosed, monitored and appropriate care and treatment been provided by defendants, Steven Endres would not have endured significant avoidable pain, suffering and death." The Plaintiffs have stated a claim for the purposes of K.S.A. 2016 Supp. 60-212. We reverse and remand for further proceedings.

Bruns, J.: This is a derivative action filed in Johnson County District Court by Monica Ross-Williams on behalf of the Sprint Nextel Corporation. The action arises out of the 2005 merger of the former Sprint Corporation and Nextel Communications. In her verified petition, Ross-Williams asserted claims for monetary damages as well as for non-monetary relief against several officers and directors of the Sprint Nextel Corporation. In addition, the verified petition named the corporation as a nominal defendant. Three other shareholders filed similar derivative actions on behalf of the Sprint Nextel Corporation. Each of the derivative actions was stayed pending the resolution of a related shareholder class action lawsuit filed in the United States District Court for the District of Kansas. While the derivative actions were stayed, the SoftBank Group Corp. (SoftBank) and the Sprint Nextel Corporation merged to form a new corporation-also known as the Sprint Corporation-in Delaware. As a result, the Sprint Nextel Corporation became a wholly owned subsidiary of the new corporation. After the federal class action settled, the parties to the four derivative actions entered into a comprehensive proposed settlement agreement. Unlike the settlement in the federal class action, the proposed settlement in the derivative actions did not provide for any monetary relief to the corporation or its shareholders. Rather, the proposed settlement included non-monetary relief in the form of various changes in the governance structure and internal controls of the newly formed Sprint Corporation. The proposed settlement also included $4.25 million in attorney fees and expenses as well as $5,000 incentive awards for each of the individual plaintiffs in the derivative actions. After the district court preliminarily approved the proposed settlement agreement, the parties provided notice to all owners of record-as well as to the beneficial owners-of common stock of the new Sprint Corporation. In response to the notice, one of the shareholders-Michael Hartleib-filed a timely objection to both the substantive portions of the proposed settlement as well as to the request for attorney fees and expenses. Ultimately, the district court approved the proposed settlement but awarded $450,000 in attorney fees and expenses instead of the amount requested. The district court also approved the incentive awards for each of the plaintiffs in the derivative actions. Additionally, the district court denied Hartleib's request for an incentive award or expense reimbursement. In his capacity as an objector, Hartleib timely appeals from the district court's approval of the settlement as well as from the award of attorney fees and expenses. Moreover, Ross-Williams cross-appeals the district court's decision to reduce the amount of the attorney fees and expenses from the amount requested as part of the proposed settlement agreement. After reviewing the record and considering the legal arguments raised on appeal, we conclude that the district court did not abuse its discretion in approving the settlement or in awarding attorney fees and expenses. Finally, although we find that the objector performed a valuable service in this case, we conclude that neither the district court nor this court has the authority to grant Hartleib's request for an incentive award or expense reimbursement. Thus, we affirm. FACTUAL AND PROCEDURAL HISTORY Merger of Sprint Corporation and Nextel Communications In December 2004, the Sprint Corporation, then organized under the laws of the State of Kansas, announced that it would acquire Nextel Communications, Inc., which was organized under the laws of the State of Delaware. On August 12, 2005, the transaction-which was publicized as a "merger of equals"-was completed. On the same day, the Sprint Corporation filed documents with the Kansas Secretary of State's Office to officially change its name to the Sprint Nextel Corporation. Because the purchase price of $37.8 billion paid by the Sprint Corporation was $15.6 billion more than the fair market value of the assets of Nextel Communications, the Sprint Nextel Corporation booked the difference as goodwill. Evidently, the purchase price reflected the anticipated benefit of integrating the wireless networks of the two companies. However, subsequent efforts to integrate the two technologies proved to be unsuccessful. As a result, the Sprint Nextel Corporation began suffering substantial financial losses. On January 18, 2008, the Sprint Nextel Corporation publicly disclosed that it suffered a net loss of 683,000 prepaid subscribers during the fourth quarter of 2007. Then, on February 28, 2008, the Sprint Nextel Corporation publicly disclosed that it would be recording a non-cash goodwill impairment charge of $29.7 billion for the fourth quarter of 2007. The next day, the corporation filed its Annual Report for the 2007 fiscal year. The report revealed-among other things-the significant loss of subscribers as well as efforts made to extend credit to subscribers that were apparently inconsistent with previous statements made to shareholders. Commencement of Litigation in State and Federal Court On March 10, 2009, a securities class action was filed on behalf of shareholders against the Sprint Nextel Corporation in the United States District Court for the District of Kansas. See Bennett v. Sprint Nextel Corporation , Case No. 09-CV-2122-EFM-GEB. One year later, Robert B. Weiser of the Weiser Law Firm-at the time located in Wayne, Pennsylvania-sent a pre-suit demand letter on behalf of Ross-Williams to Daniel R. Hesse, President and Chief Executive Officer of the Sprint Nextel Corporation, pursuant to K.S.A. 60-223a. In the letter, Weiser alleged that certain officers and directors of the Sprint Nextel Corporation had breached their fiduciary duties of loyalty and good faith in various ways. Weiser demanded that the Board of Directors of the Sprint Nextel Corporation conduct an independent internal investigation into possible violations of the law and commence a civil action against the corporate officers and directors to recover the damages allegedly suffered by the corporation. In a letter dated November 15, 2010, the Sprint Nextel Corporation-through its legal counsel-notified Weiser that the Board of Directors had unanimously voted to reject the demand. A few months later, on February 25, 2011, Ross-Williams filed this derivative action on behalf of the Sprint Nextel Corporation against several officers and directors of the corporation in Johnson County District Court. Although Ross-Williams' attorneys called their initial pleading a "Verified Shareholder Derivative Complaint," we will refer to it as a verified petition in this opinion to be consistent with Kansas law. See K.S.A. 2017 Supp. 60-223a(b). In the verified petition, counsel for Ross-Williams asserted claims for breach of fiduciary duty, unjust enrichment, abuse of control, and waste of corporate assets. The verified petition sought both monetary damages and nonmonetary relief in the form of corporate governance reforms. Furthermore, counsel for Ross-Williams asserted a claim for reasonable attorney fees and expenses. Three similar derivative actions arising out of events surrounding the merger of the Sprint Corporation and Nextel Communications were also filed in Johnson County District Court during 2009 and 2010. See Murphy v. Forsee , Case No. 09 CV 3132; Price v. Forsee , Case No. 11 CV 3257; Randolph v. Forsee , Case Nos. 10 CV 6261 and 12 CV 4447. The Murphy case was removed to the United States District Court of Kansas shortly after it was filed. See Murphy v. Forsee , Case No. 09-CV-2242-EFM-KMH. Although the four derivative actions were never officially consolidated, all of them would eventually become part of the comprehensive settlement approved by the district court in this case. Before the defendants filed responsive pleadings or commenced discovery, the parties agreed to stay each of the derivative actions until completion of discovery in the federal securities class action. Accordingly, no discovery was completed and no substantive motions were filed in the derivative actions prior to the parties entering into the proposed settlement agreement that is the subject of this appeal. Rather, as a result of an agreement between the parties, the attorneys representing the plaintiffs in the derivative action were given access to the discovery in Bennett v. Sprint Nextel Corporation , Case No. 09-CV-2122-EFM-GEB. According to counsel representing the various plaintiffs in the derivative actions, they received about 460,000 documents-containing approximately 2.5 million pages-as a result of the agreement. Of these documents, the attorneys or their employees reviewed and coded about 103,600 documents-or approximately 22.5% of the discovery documents produced. On December 11, 2012, plaintiffs' counsel sent a settlement demand letter to counsel for the defendants setting forth-among other things-claimed deficiencies in the governance policies and internal controls of the Sprint Nextel Corporation that were identified during the document review. The letter proposed several corporate governance reforms to help address the alleged deficiencies. Moreover, it appears that attorneys representing the plaintiffs began drafting an amended verified petition in June 2013, but it was never filed with the district court. Merger of SoftBank and Sprint Nextel Corporation On June 25, 2013, the shareholders of the Sprint Nextel Corporation voted to approve a merger in which SoftBank acquired around 70% of the corporation's stock. The merger-completed on July 10, 2013-involved several transactions and the filing of numerous documents with the Securities and Exchange Commission as well as with the State of Delaware and the State of Kansas. A new corporation-which ultimately became known as the Sprint Corporation-was organized in Delaware. In addition, the Sprint Nextel Corporation filed documents with the Kansas Secretary of State changing its name to Sprint Communications, Inc. Accordingly, as a result of the merger with SoftBank, Sprint Communications, Inc. f/k/a the Sprint Nextel Corporation became a wholly owned subsidiary of the newly formed Sprint Corporation of Delaware. In addition, according to public documents filed with the Securities and Exchange Commission, the newly formed Sprint Corporation became the "successor registrant" to the Sprint Nextel Corporation under Rule 12g-3 of the Securities Exchange Act of 1934. Furthermore, as part of the merger transaction, the former shareholders of the Sprint Nextel Corporation who did not sell their stock for cash received stock in the new Sprint Corporation in exchange. Mediation and Proposed Settlement of Derivative Actions On July 8, 2014, the parties to the four derivative actions participated in their first formal mediation session. Layn R. Phillips, a former judge from the United States District Court for the District of Oklahoma, conducted the mediation sessions in New York City. Apparently, former Judge Phillips also mediated the related securities class action filed in federal court, which settled for $131 million in 2015. Although the derivative actions did not settle at the first mediation session, a general structure for settlement negotiations was established. Subsequently, attorneys representing the plaintiffs in the derivative actions retained James Tompkins, Ph.D.-a Professor of Finance at Kennesaw State University in Georgia-as an expert witness to assist them in the area of corporate governance reform. On March 9, 2015, former Judge Phillips conducted a second mediation session in the derivative actions. Once again, the parties were unable to reach an agreement but they were able to make additional progress towards settlement. Over the next several months, the parties evidently continued to discuss settlement. At a third mediation session conducted by former Judge Phillips on December 11, 2015, the parties were finally able to reach an agreement on the material terms of a comprehensive settlement of the four derivative actions. Specifically, the parties agreed on several reforms in the corporate governance and internal control polices to be adopted by the new Sprint Corporation. Significantly, the proposed settlement agreement did not include a clawback provision or any monetary recovery from the defendants. The proposed settlement agreement did, however, include $4.25 million in attorney fees and expenses to be paid by the Sprint Corporation to counsel for the plaintiffs-subject to court approval-as well as incentive fees in the amount of $5,000 for each of the individual plaintiffs. The parties executed a Stipulation and Agreement of Settlement on February 22, 2016, which set forth the terms of the proposed settlement and the procedures for implementing the settlement if approved by the district court. In addition, the Stipulation provided that the Weiser Law Firm would serve as the receiving agent of any attorney fees and expenses approved by the district court. Attached as Exhibit A to the Stipulation and Agreement of Settlement was a document entitled "Corporate Governance Reforms," which set out the parties' agreement as to the reforms the Sprint Corporation would implement in its general corporate governance and internal controls. The proposed reforms fell under five subheadings: (1) General Corporate Governance, (2) Mergers & Acquisitions Activity, (3) Audit Committee, (4) Share Repurchase Policy, and (5) Other. According to Exhibit A, the Board of Directors of the Sprint Corporation agreed to "adopt resolutions, amend committee charters, and take other steps necessary to implement the reforms" within 30 days following the entry of an order by the district court approving the proposed settlement. In addition, the exhibit explained that the reforms would "remain in effect for three years following the date of the agreement to the proposals by [the Sprint Corporation]." Notwithstanding, the exhibit also indicated that the reforms could be modified or terminated by the Sprint Corporation's Board of Directors "[a]fter two years from the date of the agreement" so long as the Board provided "notice [of the modification or termination] on the Investor Relations page of Sprint.com." Preliminary Approval of Settlement and Notice to Shareholders On February 25, 2016, exactly five years after Ross-Williams had initially filed her verified petition in this derivative action, counsel for Ross-Williams filed in the Johnson County District Court a motion seeking preliminary approval of the proposed comprehensive settlement of the four derivative actions. A copy of the executed Stipulation and Agreement of Settlement was attached to the motion along with several other documents. On March 23, 2016, the district court issued an order granting preliminary approval to the proposed settlement, subject to further consideration at a final settlement hearing to be held on May 26, 2016. Moreover, the district court set a deadline for the filing of objections to the proposed settlement and required that the parties give notice of the proposed settlement to all record and beneficial owners of common stock of the Sprint Corporation as of February 22, 2016. On April 6, 2016, Susan Z. Haller-in her capacity as Vice President, Legal of the Sprint Corporation-filed a Form 8-K Current Report with the Securities and Exchange Commission. The report included the Notice of Pendency and Proposed Settlement of Stockholder's Actions as well as a brief summary of the proposed settlement. On the same day, the Sprint Corporation posted the Form 8-K Current Report on the Investor Relations page of its website. In addition, the Summary Notice was published in Investor's Business Daily on April 11, 2016. The following day, the Sprint Corporation also added a reference to the settlement to the News & Events section of the Investor Relations page of its website. Motion for Final Approval of Settlement and Objection On May 5, 2016, counsel for Ross-Williams filed a motion for final approval of the proposed settlement in district court. At the same time, Robert B. Weiser filed a Declaration in Support of Plaintiff's Motion for Final Approval of Settlement and Award of Attorneys' Fees and Reimbursement. Weiser attached a Declaration prepared by Dr. Tompkins in which he stated that he had reviewed the corporate governance reforms agreed upon by the parties as part of the proposed settlement and believed them to be "significant and valuable." In Dr. Tompkins' opinion, the proposed reforms "promote important corporate governance improvements designed to ensure that the 'right' people at the Board level are engaged in superior governance processes. As a result, moving forward, decisions such as the 2005 Nextel merger that destroyed significant shareholder value are much less likely to occur." Weiser also attached a Declaration signed by former Judge Phillips in support of the motion for final approval of the settlement. In his Declaration, he reviewed his role as mediator in the derivative actions and stated that "the settlement was carefully reached through hard fought, arm's-length negotiations conducted by skilled counsel in good faith." He also noted that the attorneys involved in the mediation process were from respected law firms and were experienced in handling complex litigation. Moreover, former Judge Phillips rendered the opinion that he believed an award of $4,250,000 in attorney fees and expenses in this case would be fair, just, and reasonable. In addition, Brett D. Stecker-also a partner in the Weiser Law Firm-filed a Declaration in support of the requested award of attorney fees and expenses. In his Declaration, Stecker represented to the district court that his firm had performed legal research, prepared the pre-suit demand, drafted the verified petition, reviewed documents, prepared a settlement demand, drafted mediation statements, attended each of the mediation sessions, and performed other legal work on behalf of Ross-Williams. According to Stecker, attorneys and staff at his law firm worked a total of 7,646.25 hours-with an alleged lodestar amount of $2,462,583.75-on this case. The Declaration filed by Stecker also stated that the Weiser Law Firm had incurred $42,488.02 in unreimbursed expenses. George C. Aguilar, a partner of the law firm of Robbins Arroyo LLP of San Diego, California, also filed a Declaration asserting that his law firm worked a total of 7,630 hours-with an alleged lodestar amount of $2,257,342.50-on Cheryl Randolph's case. Aguilar also claimed that his firm incurred $120,067.93 in unreimbursed expenses. Similarly, Alfred G. Yates, Jr., whose office is located in Pittsburgh, Pennsylvania, filed a Declaration asserting that his firm worked a total of 1,588.95 hours-with an alleged lodestar amount of $870,103-in representing Kent D. Murphy. Yates also claimed $33,956.87 in unreimbursed expenses. Finally, Willem F. Jonckheer, from Schubert Jonckheer & Kolbe LLP of San Francisco, California, submitted a Declaration asserting that his firm worked a total of 1,051.7 hours-with an alleged lodestar amount of $652,032-representing Connie Price. Jonckheer also claimed that his firm incurred $68,785.08 in unreimbursed expenses. On May 12, 2016, Michael Hartleib of Laguna Niguel, California-who formally owned stock in the Sprint Nextel Corporation and currently owns stock in the Sprint Corporation-filed a pro se objection to the proposed settlement, award of attorney fees, and reimbursement of expenses. No other objections were filed. Final Hearing and Subsequent Filings The district court held a final hearing pursuant to K.S.A. 2015 Supp. 60-223a(d) on May 26, 2016. At the hearing, the district court heard arguments from counsel for the parties in support of the motion to approve the proposed settlement. The district court also heard the arguments presented by Hartleib in opposition to the motion to approve the proposed settlement and to the request for an award of attorney fees and expenses. At the conclusion of the hearing, the district court granted the parties and the objector leave to file supplemental briefs and took the matter under advisement. On June 24, 2016, counsel for Ross-Williams filed a supplemental brief in support of the request for an award of attorney fees and reimbursement of expenses. At some point, counsel also submitted billing records to the district court for an in camera inspection. We note, however, that the billing records submitted to the district court are not part of the record on appeal. In addition, we note that no request has been made to file the billing records-either under seal or otherwise-with the Clerk of the Appellate Court. On August 8, 2016, Hartleib filed a supplemental brief in support of his objection to the attorney fees and expenses portion of the settlement agreement. In response, counsel for Ross-Williams filed a supplemental reply brief on August 15, 2016, and a response to additional authority submitted by Hartleib on August 24, 2016. Two days later, counsel for the defendants sent a letter to the district court suggesting that it should approve the proposed settlement regardless of how it ruled on the request for attorney fees and expenses. On August 29, 2016, Hartleib filed a sur reply and on September 8, 2016, counsel for Ross-Williams filed a motion to strike the sur reply. Judicial Approval of Settlement, Attorney Fees, and Expenses On November 22, 2016, the district court entered a 33-page memorandum decision in which it approved the substantive portions of the proposed settlement. In addition, the district court awarded attorney fees and expenses to plaintiffs' counsel in the amount of $450,000. In the memorandum decision, the district court reviewed the facts and examined the terms of the proposed settlement in detail. In doing so, the district court found that the primary purpose of judicial approval is to protect the interests of the shareholders of the corporation on whose behalf a derivative action is brought. The district court also found that its role was to determine whether the proposed settlement is fair and reasonable under the circumstances. The district court found it to be significant that the proposed comprehensive settlement of the derivative actions did not include any monetary relief for the corporation or its shareholders-with the exception of the $5,000 incentive payments to the individual plaintiffs to be paid from funds awarded for attorney fees and expenses. Rather, the district court noted that the relief proposed-corporate governance reforms-was therapeutic in nature. In turn, the district court reviewed each of the proposed corporate governance reforms as well as the opinion rendered by Dr. Tompkins in support of such reforms. The district court observed that "[i]deally, these reforms will prevent [the Sprint Corporation] from engaging in transactions like the Sprint Nextel merger, and improve post-merger processes and activities." However, the district court found some of the proposed reforms to have limited value and others to be primarily cosmetic in nature. Overall, the district court believed that the proposed corporate "reforms may be far less effective than as portrayed by the parties ...." Ultimately, the district court concluded that the proposed settlement "gives the narrow benefit of promising to implement these reforms" and recognized "that some of the reforms, as they would be for any corporation, are in [the Sprint Corporation's] best interest and could help ensure its survival in the short run." Although the district court ultimately approved the substantive terms of the proposed settlement, it found that the results achieved did not justify an award of $4.25 million in attorney fees and expenses. In reaching this conclusion, the district court thoroughly analyzed the requested attorney fees under the eight factors set forth in Rule 1.5 of the Kansas Rules of Professional Conduct. Again, the district court found it to be significant that the counsel for the plaintiffs had obtained no monetary relief from the defendants and that the corporate governance reforms that were attained provided only a limited benefit to the corporation and its shareholders. In particular, the district court found that the reforms "depend nearly entirely on the will of the Board of Directors to implement these changes, and maintain the reforms for three years through the end of the sunset provision." The district court pointed out that the derivative actions were stayed for the majority of the time they were pending, that the parties had not conducted any discovery, and that the parties had filed no substantive motions prior to reaching the proposed settlement. As a result, the vast majority of the time billed in the derivative actions was for document review and participating in settlement negotiations. The district court found the approximately "18,000 hours-or 750 cumulative days of work-is an astonishing amount" in light of the limited results achieved. The district court was particularly skeptical of the "[o]ver 6,900 of those hours [that] were billed by a single [purported] attorney for document review services." The person who purportedly worked almost 7,000 hours on document review-at the rate of $300 per hour-was held out to be "Alexander J. Silow" and was identified as being "of counsel" to the Weiser Law Firm. Furthermore, the district court found the billing records submitted for in camera inspection to be "deserving of strong criticism." Even before it came to light that Silow was actually a disbarred attorney, the district court astutely questioned the credibility of the billing records submitted by the Weiser Law Firm for Silow's time. In the memorandum decision, the district court discussed Silow's billing records-which included 550 time entries-at length. In doing so, the district court noted that on most days, Silow claimed to have performed document review 10 to 15 hours a day for an average of 12.6 hours per day. The district court noted that "[w]orking 14 hours a day, as Mr. Silow's records reflect he did for 315 of the days in question, would mean that he would be preforming document review from 6:00 AM until 8:00 PM every day, without any breaks to eat meals or attend to other personal matters. This is unbelievable!" Based on its in camera review of the billing records, the district court found: "Even more shocking is the pattern of days that Mr. Silow claims he has worked. From November 3, 2011 through February 4, 2012, Mr. Silow worked in five to 14 day stints, with one day gaps in between, all while billing over 10 hours per day. There is a month-long gap in Mr. Silow's billing history from February 5, 2012 through March 5, 2012 where he presumably did not work on this matter. Mr. Silow then began working in five to 12 day stints from March 5, 2012 through April 7, 2012 at the same rigorous pace, taking one day off between each stint. "Mr. Silow then worked the next 75 days, from April 9, 2012 through June 23, 2012 without taking any days off. This is not the only time Mr. Silow recorded his work in long stints like this. He worked 55 days without a break in billing activity from September 30, 2012 through November 23, 2012. After only one day off, he worked 97 more days without a break in his billing activity from November 25, 2012 through March 2, 2013. Then, after a period of no billing activity from March 3, 2013 through July 31, 2014, Mr. Silow recorded a final 118 day stint of continual billing activity from August 1, 2014 through November 26, 2014. "The Court does not find that Mr. Silow's billing records are remotely accurate or credible. The Court understands the rigorous nature of document review, and that an attorney may occasionally log 14 hours for a short stint of days to meet a discovery deadline. Yet Mr. Silow logged 315 days over the course of the document review where he worked 14 hours. Even the most junior of associates, let alone an attorney that bills $300 per hour, would not be expected to record 14-hour days, every single day for two to four months at a clip. "Mr. Silow's billing history casts a cloud of doubt that looms over the veracity of the other billing records. The number of hours Mr. Silow claims he worked, 6,905.25 hours, which when multiplied by the effective billing rate of $233 per hour results in $1,539,870.75 in fees, or 36.23% of the requested fee award. That is over three normal full-time 8-hour day work years exclusively on a stayed case! Taking this into consideration, it seems that the vast amount of work performed on this case is illusory, perhaps done for the purpose of inflating the billable hours to push the effective billing rate down in order to support a multi-million dollar fee award." Although Hartleib argued in his objection that the district court should award no attorney fees and expenses to plaintiffs' counsel, the district court found that they "should be fairly compensated for what reforms they were able to achieve, even if they fell short of their original shot across the bow." In determining an amount that would be fair and reasonable, the district court noted that the results obtained in the derivative cases were "far from excellent" and would result in only "negligible changes to [the Sprint Corporation], and marginal benefit, if any, to its shareholders." Similarly, it found that "the billing records reviewed by the Court paint a troublesome portrait of exploiting Sprint's missteps for a substantial reward for counsel, and minimal relief to Sprint and its shareholders that suffered." Post-Hearing Motions On December 16, 2016, counsel for Ross-Williams filed a motion to alter or amend the memorandum decision to clarify whether the district court had approved payment of incentive awards to the plaintiffs. Four days later, counsel for Ross-Williams filed a second motion to alter or amend the part of the district court's memorandum decision addressing attorney fees and expenses. In the second motion to alter or amend, counsel asked the district court to amend its previous order and grant the entire $4.25 million originally requested as part of the proposed settlement. Thereafter, on December 21, 2016, Hartleib filed a request for an incentive award and reimbursement of expenses. Attached to the second motion to alter or amend was another Declaration from George C. Aguilar of the Robbins Arroyo law firm. In this Declaration, Aguilar asserted that the Robbins Arroyo law firm "oversaw the coordinated document review process by the various derivative plaintiffs' counsel." He stated that the various law firms representing the plaintiffs in the derivative actions had used a computerized document review platform-known as "Relativity"-that records user activity. Moreover, Aguilar alleged that computer records supported the hours Silow claimed to have worked on this case. In addition, he attached a computer printout-that had not been previously presented to the district court-indicating that a "Silow, Jeff" had spent 6849.26 hours on the computer-purportedly reviewing documents. Also attached to the second motion to alter or amend was a Declaration allegedly signed by "Alexander J. Silow" in which he represented to the district court that he was "of counsel" at the Weiser Law Firm and had been practicing law for over 40 years. Silow also stated that he was a "member in good standing of the bars of the Commonwealth of Pennsylvania and the District of Columbia." He claimed that "[t]hroughout my forty-year career, I have never been accused of an ethical violation or been the subject of any disciplinary action." Finally, he declared that the hours reflected on the Relativity document review platform accurately reflected the time he worked on this case. The district court ruled on the pending motions in a memorandum decision filed on January 6, 2017. In its ruling, the district court clarified that it had intended to approve the incentive payments of $5,000 to each of the named plaintiffs in the four derivative actions when it approved the substantive portions of the proposed settlement. The district court also stated that "[t]he only specific exception to the approval [of the proposed settlement] was the reduction of the requested attorney fee award." Turning to the renewed attempts by plaintiffs' counsel to substantiate their request for $4.25 million in attorney fees and expenses, the district court found: "Plaintiff's counsel should have expected strong criticism of Mr. Silow's billing records had [they] bothered to examine the purported time [he] submitted as spent on document review. ... "A cursory glance at Mr. Silow's billing records appropriately casts a shadow of doubt over the veracity of the billing records in their entirety. [The] affidavits documenting Mr. Silow's time spent on [document review] are wholly unpersuasive. They do support that it takes merely a keystroke of activity once every hour to keep [the computer program] from timing out or logging off a session. "Furthermore, the Court does not think it is proper to consider the Exhibits attached to the Plaintiff's Motions to Alter or Amend that relate to Mr. Silow's time computation. By attaching the Affidavit to further bolster the veracity of the billing records[,] counsel submitted a document that should have been submitted prior to the Court's Memorandum Decision, even though the Court is ultimately unpersuaded by the Exhibit. ... The Court allowed the parties and Objector following the May 26, 2016, hearing to present additional information requested by the Court so it would have the full set of facts to justify the requested fee award. By continuing to allow parties to submit information in a piecemeal fashion after a decision has been rendered sets a bad precedent that would open the door to additional rounds of document submissions. ... Plaintiff's counsel had ample opportunity to substantiate all of their time records when the Court requested the records for in camera review. Even though Plaintiff's counsel was seemingly blindsided by the Court's criticism and scrutiny of the requested information, a cursory look at Mr. Silow's billing records should have been met with equal criticism by counsel making the submission in the first instance or at least given them pause to reconsider the sufficiency of their submission to the Court." Accordingly, other than the clarification regarding the incentive payments to the plaintiffs named in the derivative actions, the district court denied the motions to alter or amend filed by counsel for the plaintiffs. In addition, the district court denied Hartleib's request for an incentive award and reimbursement of expenses. Although the district court recognized that an "Objector plays an important role in the Court's obligation to review and approve derivative case settlements and dismissals," it found that there was no agreement reached by the parties and that there is no Kansas statute that would authorize it to grant Hartleib's request. Appeal and Remand to District Court Hartleib initially filed a notice of appeal on December 21, 2016, from the district court's order approving the settlement. Following the district court's ruling on the second motion to alter or amend, counsel for Ross-Williams filed a notice of cross-appeal from the district court's award of attorney fees and expenses. Thereafter, Hartleib filed an amended notice of appeal from the district court's denial of his request for an incentive award and reimbursement of expenses. In a disturbing development, Robert B. Weiser sent a letter to the district court-as well as a similar letter to the Clerk of the Kansas Appellate Courts-on February 3, 2017. In his letter to the district court, Weiser stated that he had "learned that a person who had held himself out ... as Alexander J. Silow ('Silow') was in actuality named Jeffrey M. Silow, and more importantly, that Mr. Silow is not a licensed Pennsylvania attorney in good standing, having been disbarred in Pennsylvania in 1987." Weiser indicated that Silow had been "of counsel" with the Weiser Law Firm for "the past decade" after being recommended to the law firm by a recruiting agency in 2008. Interestingly, although the résumé of the Weiser Law Firm-which is part of the record on appeal-listed "Alexander Jeffrey Silow" as being "admitted to practice in Pennsylvania and the District of Columbia," Silow's résumé-which was attached to Weiser's letter-listed his name as "Jeffrey Silow" and did not state that he was a member of the Pennsylvania bar. Instead, Silow's résumé only listed the District of Columbia under the heading "Bar Admissions." In a footnote to his letters, Weiser stated that "it appears as though Mr. Silow has also been suspended from the practice of law by the District of Columbia." We note that the District of Columbia subsequently disbarred Silow from the practice of law on December 21, 2017. In re Jeffrey M. Silow , 175 A.3d 88 (D.C. 2017). Weiser evidently continues to believe that Silow actually performed the work reported in the billing records submitted to the district court. Nevertheless, Weiser recognized in his letter "that Mr. Silow had been held out as an active attorney, and that Mr. Silow's declaration, signed under penalty of perjury, states, inter alia , that he is a licensed attorney in good standing that had never been the subject of any disciplinary action." Hence, Weiser acknowledges that Silow's "declaration is therefore false in material respects," and as a result, the Weiser Law Firm-which served as the lead counsel in this derivative action-"will not be participating in any recovery that may result from the pending Cross-Appeal. Although we will yield to the disciplinary authorities in the Commonwealth of Pennsylvania-or elsewhere-to sort out what the attorneys representing the plaintiffs in these derivative actions knew or should have known about the status of Jeffrey Silow's license to practice law, we find the information provided by Weiser to be very troubling. As indicated above, the hours billed by Silow constituted a substantial amount of the total hours allegedly worked by counsel for the plaintiffs in these derivative actions. Thus, we agree with Weiser that his law firm should not receive any of the attorney fees and expenses awarded in this case. In light of the revelations regarding Silow's status as an attorney, we granted Hartleib's request to stay this appeal. On March 30, 2017, the case was remanded to the district court to determine the impact-if any-that the new information regarding Silow might have on its decision to approve the settlement. On May 11, 2017, the district court filed a memorandum decision in which it found that the new information simply confirmed its previously stated concerns about the credibility of Silow's billing records. As such, the district court concluded that the new information did not change its previous decision. After receiving the district court's memorandum decision, we lifted the stay on June 7, 2017, and established a new briefing schedule. Finally, on February 13, 2018, oral arguments were presented. ANALYSIS Overview of Derivative Actions in Kansas Class actions and derivative actions are both types of representative litigation that involve similar procedures. Compare K.S.A. 2017 Supp. 60-223 with K.S.A. 2017 Supp. 60-223a. Although shareholder derivative actions often arise out of the same occurrence as shareholder class actions, it is important to recognize that the two are separate and distinct causes of action. While a shareholder class action is brought against a corporation by a representative acting on behalf of a particular group of shareholders, a shareholder derivative action is brought by a representative on behalf of a corporation to enforce a right that the corporation has failed to enforce. As this court has found, "[w]hen a corporation has been injured by the actions of those in control thereof, the well-established general rule is that the suit seeking to redress for such a grievance belongs to the corporation and must be brought as a derivative action ...." Lightner v. Lightner , 46 Kan. App. 2d 540, Syl. ¶ 2, 266 P.3d 539 (2011). In Kansas, derivative actions are controlled by K.S.A. 2017 Supp. 60-223a. A derivative action may be commenced by "one or more shareholders or members of a corporation or an unincorporated association" who "fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association." K.S.A. 2017 Supp. 60-223a(a). Petitions filed in derivative actions are to be verified and they must assert "that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiff's share or membership later devolved on it by operation of law." K.S.A. 2017 Supp. 60-223a(b)(1). The verified petition also must assert "that the action is not a collusive one to confer jurisdiction that the court would otherwise lack." K.S.A. 2017 Supp. 60-223a(b)(2). Furthermore, the verified petition must "state with particularity" the efforts made by the plaintiff "to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members" as well as "the reasons for not obtaining the action or not making the effort." K.S.A. 2017 Supp. 60-223a(b)(3)(A) and (B). From a procedural standpoint, shareholder class actions and shareholder derivative actions are similar in nature. As in class actions, district courts have the authority to issue "any appropriate orders" that are necessary to make sure that derivative actions are conducted fairly. K.S.A. 2017 Supp. 60-223a(c). The purpose of this rule is to give district courts the ability to oversee derivative actions in order to prevent abuses by the parties and to protect the interests of those shareholders-or members of an unincorporated association-who are not parties to the lawsuit. See Balotti & Finkelstein, Delaware Law of Corporations and Business Organizations § 13.19 (3d ed. 2018 Supp.) ("The purpose of [the rule] is to give the Court a means to meaningfully supervise the derivative [action] and to prevent abuses, such as paying a plaintiff and/or his counsel to discontinue the action."). There is a strong public policy in Kansas supporting the voluntary settlement of disputed claims. Tilzer v. Davis, Bethune & Jones , 288 Kan. 477, 496, 204 P.3d 617 (2009). Nevertheless, similar to class actions, derivative actions "may be settled, voluntarily dismissed or compromised only with the court's approval." K.S.A. 2017 Supp. 60-223a(d). Also similar to class actions, proposed settlements in derivative actions may not be finally approved until proper notice has been given "to shareholders or members in the manner that the court orders" in order to protect their interests in the proceedings. K.S.A. 2017 Supp. 60-223a(d). As has been recognized by Delaware courts, "[m]eaningful objections can help ensure the fairness of settlements in representative actions." Brinckerhoff v. Texas Eastern Products, LLC , 986 A.2d 370, 397 (Del. Ch. 2010). In Quality Developers, Inc. v. Thorman , 29 Kan. App. 2d 702, 705, 31 P.3d 296 (2001), this court noted the role of the district court in reviewing a proposed settlement of a derivative action, stating: " 'The role of the court is to see that the compromise is fair and reasonable under the circumstances and that no collusion or fraud has been practiced in the consummation of the settlement. To do this the court must weigh the probabilities and the possibilities of victory or defeat as indicated by the legal or factual situation presented. If such considerations lead to the conclusion that the settlement agreed upon by the plaintiffs in the suit is not unfair or unreasonable to the corporation (in which all the other stockholders have their interest), then the action of the plaintiffs in compromising the suit should be approved.' " 29 Kan. App. 2d at 716 [31 P.3d 296] (quoting Winkelman v. General Motors Corporation , 48 F.Supp. 490, 493 [S.D.N.Y. (1942) ] ). We also note that the Delaware courts-which have a great deal of experience handling derivative actions-have found that in reviewing a proposed settlement a court must balance the public policy favoring settlement with the need to protect the interests of the corporation and its shareholders. See In re Activision Blizzard, Inc. Litigation , 124 A.3d 1025, 1043 (Del. Ch. 2015) (quoting Barkan v. Amsted Industries, Inc. , 567 A.2d 1279, 1283 [Del. 1989] ). In the case of In re Activision Blizzard, Inc. Litigation , the court held: "The settlement of representative litigation ... 'is unique because the fiduciary nature of the [litigation] requires the Court ... to participate in the consummation of the settlement. ...' Prezant v. De Angelis , 636 A.2d 915, 921 (Del. 1994). The potential divergence between the personal interests of the attorneys conducting the litigation and the interests of the class or corporation they represent means that 'the Court ... must ... play the role of fiduciary in its review of these settlements. ...' In re Resorts Int'l S'holders Litig. Appeals , 570 A.2d 259, 266 (Del. 1990). In carrying out this role, the court 'must balance the policy preference for settlement against the need to insure that the interests of the class [or corporation] have been fairly represented.' Barkan v. Amsted Indus., Inc. , 567 A.2d 1279, 1283 (Del. 1989)." 124 A.3d at 1042-43. Ultimately, "[a]lthough the standards and procedures for review and approval of settlements vary, in general the [reviewing court] is required to scrutinize the proposed settlement to ensure that it is fair to the persons whose interests the court is to protect." Herr, Annotated Manual for Complex Litigation, Fourth § 13:14 (2017). Standing and Subject Matter Jurisdiction Before we examine the district court's approval of the settlement agreement, we must address the threshold question of standing. In particular, we must decide whether Ross-Williams has standing to pursue this derivative action in light of events that occurred after this lawsuit was filed. Although it does not appear that Hartleib is challenging Ross-Williams' standing to initially file this action on behalf of the Sprint Nextel Corporation, he does contend that she lost standing to pursue this derivative action as a result of the merger between SoftBank and the Sprint Nextel Corporation while the derivative actions were pending. In response, plaintiffs' counsel contends that Ross-Williams continues to have standing and that Kansas does not have a continuing-ownership requirement. On the other hand, defense counsel contends that whether Ross-Williams continues to have standing is arguably an open question under Kansas law. Regardless, defense counsel argues that the fact that the issue is disputed is actually a factor weighing in favor of approving the settlement. Standing to bring a lawsuit is a component of subject matter jurisdiction and may be raised by the parties or the court at any time. Vorhees v. Baltazar , 283 Kan. 389, 397, 153 P.3d 1227 (2007). Likewise, the question of standing is one of law over which we have unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes , 279 Kan. 178, 185, 106 P.3d 483 (2005). To have standing, a party must have a sufficient personal stake in the outcome of a case to justify court action to resolve the matter. Varney Business Services, Inc. v. Pottroff , 275 Kan. 20, 30, 59 P.3d 1003 (2002). In FV-I, Inc. v. Kallevig , 306 Kan. 204, 212, 392 P.3d 1248 (2017), the Kansas Supreme Court found: " 'Under Kansas law, in order to establish standing, a plaintiff must show that (1) he or she suffered a cognizable injury and (2) there is a causal connection between the injury and the challenged conduct.' Solomon v. State , 303 Kan. 512, 521, 364 P.3d 536 (2015). A cognizable injury is established by showing a 'personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct.' 303 Kan. at 521, 364 P.3d 536 (quoting Sierra Club v. Moser , 298 Kan. 22, 33, 310 P.3d 360 [2013] ). Moreover, '[t]he injury must be particularized, i.e. , it must affect the plaintiff in a "personal and individual way." ' [Gannon v. State, ] 298 Kan. [1107,] 1123, 319 P.3d 1196 [ (2014) ]. K.S.A. 2017 Supp. 60-223a(a) provides that a derivative action may be commenced by "one or more shareholders ... of a corporation" who "fairly and adequately represent the interests of shareholders ... who are similarly situated in enforcing the right of the corporation ...." Similarly, K.S.A. 2017 Supp. 60-223a(b)(1) requires that a plaintiff bringing a derivative action must assert in the verified petition that he or she "was a shareholder ... at the time of the transaction complained of, or that the plaintiff's share ... later devolved on it by operation of law." As this court has previously held, the "provisions [of K.S.A. 60-223a ] read in tandem require that the plaintiff be a shareholder at the time of the harm to the corporation and at the time the derivative action is filed." However, "[n]othing in the statutory language mandates the party bringing the derivative action continue as a shareholder after filing suit." Smith v. Roger Smith & Sons, Inc. , No. 105,456, 2012 WL 2148173, at *7 (Kan. App. 2012) (unpublished opinion); see also White ex rel. B.W. II, L.L.C. v. Barbieri , No. 106,078, 2012 WL 3966527, at *4 (Kan. App. 2012) (unpublished opinion) (applying the same rationale to a derivative action filed on behalf of an LLC). Although we recognize that some jurisdictions have adopted a continuing-ownership requirement in derivative actions, we find that the plain and unambiguous language of K.S.A. 2017 Supp. 60-223a does not include such a requirement. As this court held in Smith : "Were we to accept the invitation to impose such a mandatory requirement under K.S.A. 2011 Supp. 60-223a, we would be adding judicial gloss inconsistent with the clear statutory language the Kansas Legislature has adopted. That is not a proper judicial function. Courts are not to emboss statutes with additional language or disregard language already there even if they may think the changes better advance the public policy behind the legislation. Robinson v. City of Wichita Retirement Bd. of Trustees , 291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court 'will not speculate on legislative intent and will not read the [statutory] provision to add something not readily found in it.'); Unruh v. Purina Mills , 289 Kan. 1185, 1201, 221 P.3d 1130 (2009) (rejecting an argument that 'asks the court to read into the statute language that is not present'). The Kansas Supreme Court encapsulated the rule of interpretation this way: 'A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute.' Casco v. Armour Swift-Eckrich , 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). We decline the invitation. If requiring a plaintiff to own stock during the course of litigation reflects the better mousetrap of shareholder derivative actions, the Kansas Legislature must build it." 2012 WL 2148173, at *7, 277 P.3d 1193. We find the reasoning of Smith to be sound based on Kansas law. Quite simply, "[w]hen a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be." Patterson v. Cowley County, Kansas , 307 Kan. 616, 413 P.3d 432, 438 (2018). As such, it is not the role of this court to add a continuing-ownership requirement to K.S.A. 2017 Supp. 60-223a. Thus, we do not find that Ross-Williams lost standing as a result of the merger transaction between SoftBank and the Sprint Nextel Corporation. We pause to note that even in jurisdictions such as Delaware that recognize a continuing-ownership requirement, there are certain exceptions to the general rule that a plaintiff loses standing to maintain a derivative suit where the corporation merges with another company. See Arkansas Teacher Ret. System v. Caiafa , 996 A.2d 321, 322-23 (Del. 2010). Likewise, we note that Delaware courts have approved derivative settlements in cases in which there is a dispute regarding standing. See Brinckerhoff , 986 A.2d at 383-84 ; In re Caremark Intern. Inc. Deriv. Lit. , 698 A.2d 959, 972 n.30 (Del. Ch. 1996). Consequently, a good-faith dispute over the ultimate outcome of a legal issue does not prevent the parties from entering into a fair and reasonable settlement of a derivative action. In fact, as we will discuss below, one of the relevant circumstances that a district court may consider in determining whether a settlement of representative litigation is fair and reasonable includes "whether serious questions of law and fact exist that place in doubt the ultimate litigation outcome." Coulter v. Anadarko Petroleum Corp. , 296 Kan. 336, Syl. ¶ 8, 292 P.3d 289 (2013). We also note that it appears that Hartleib may be arguing that the Sprint Nextel Corporation is no longer the real party in interest in this case. Unfortunately, the concepts of standing and real party in interest are often confused. See 6A Wright, Miller, and Kane, Federal Practice and Procedure: Civil 3d § 1542 (2010). Unlike standing, objections to whether a party is the real party in interest do not involve subject matter jurisdiction and may be waived. See Robinson v. Kansas State High Sch. Activities Ass'n , 260 Kan. 136, 139, 917 P.2d 836 (1996) ; O'Donnell v. Fletcher , 9 Kan. App. 2d 491, 494, 681 P.2d 1074 (1984). Here, because no real party in interest objection was filed below, any objection on this ground has been waived. Personal Jurisdiction and Venue Additionally, Hartleib contends that the bylaws of the new Sprint Corporation require that derivative actions are to be filed in Delaware. Regardless of whether that is true, a review of the settlement documents and public filings in the record in this case reflect that the Sprint Corporation participated in the settlement negotiations between the parties-including mediation-and agreed to be bound by the terms of the comprehensive settlement ultimately reached in the derivative actions. In fact, the substantive portions of the settlement agreement are specifically based on changes in the corporate governance and internal controls to be adopted by the Board of Directors of the Sprint Corporation. The settlement agreement also provides that it is binding not only on the named parties but also on "their respective agents, executors, heirs, successors, and assigns." As previously noted, Sprint Communications, Inc.-formally known as the Sprint Nextel Corporation-is now a wholly owned subsidiary of the new Sprint Corporation. Likewise, the former shareholders of the Sprint Nextel Corporation who did not sell their stock for cash have received stock in the new Sprint Corporation in exchange. In addition, the new Sprint Corporation became the successor registrant to the Sprint Nextel Corporation under Rule 12g-3 of the Securities Exchange Act of 1934. Thus, we conclude that the Sprint Corporation has submitted-either voluntarily or as a successor to the Sprint Nextel Corporation-to the jurisdiction of Kansas courts and has also agreed that the terms of the settlement agreement are to be enforced under laws of the State of Kansas. Approval of Settlement by District Court Hartleib further contends that the district court erred by approving the substantive terms of the settlement between the parties. Specifically, Hartleib argues that the terms of the settlement approved by the district court provide only illusory relief to the corporation and its shareholders. Not surprisingly, the parties to the settlement agreement are now aligned in their belief that the substantive terms of the settlement agreement are fair and reasonable. In light of the representative nature of both class actions and derivative actions-as well as the similarities between the judicial review provisions set forth in K.S.A. 2017 Supp. 60-223(e) and K.S.A. 2017 Supp. 60-223a(d) -we find that it is appropriate for Kansas appellate courts to review a district court's approval of a settlement in a derivative action under an abuse of discretion standard. Although the Kansas Supreme Court has not expressly addressed the standard of review of a district court's approval of a settlement in a derivative action, it has applied an abuse of discretion standard to appellate review of class action settlements. Coulter , 296 Kan. 336, Syl. ¶ 6, 292 P.3d 289. We also note that Delaware appellate courts utilize an abuse of discretion standard in reviewing the approval of settlements in both class actions and derivative actions. See Mentor Graphics Corp. v. Shapiro , 818 A.2d 959, 963 (Del. 2003) ; see also Polk v. Good , 507 A.2d 531, 536 (Del. 1986) ("When a settlement has been approved as fair and reasonable we must find the evidence so strongly to the contrary as to amount to an abuse of discretion."). Although Coulter was a class action case, we note that our Supreme Court quoted the following language from Jones v. Nuclear Pharmacy, Inc. , 741 F.2d 322, 324 (10th Cir. 1984), which involved an appeal from a federal district court's approval of a settlement agreement in a derivative action, in addressing the types of factors a reviewing court should consider: " 'In assessing whether the settlement is fair, reasonable and adequate the trial court should consider: (1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable.' " 296 Kan. at 358-59, 292 P.3d 289 (quoting Jones , 741 F.2d at 324 ). We find that a similar analysis is appropriate in both class actions and derivative actions. We also find that Hartleib-as the appellant-bears the burden to establish that the district court abused its discretion in approving the settlement in this derivative action. See Coulter , 296 Kan. at 357, 292 P.3d 289 (citing Harsch v. Miller , 288 Kan. 280, 293, 200 P.3d 467 [2009] ). Furthermore, we find that in order to establish an abuse of discretion, Hartleib must show that the district court either went "outside the framework" for the judicial approval of settlements or failed to consider proper legal standards. Coulter , 296 Kan. at 357, 292 P.3d 289 (citing Farrar v. Mobil Oil Corp. , 43 Kan. App. 2d 871, 876-77, 234 P.3d 19 [2010] ). In order to comply with its duties under K.S.A. 2017 Supp. 60-223a(d), a district court must independently scrutinize a proposed settlement of a derivative action-as well as the surrounding circumstances that led to the settlement-to determine whether it is fair and reasonable. However, similar to a class action, there is not a specific list of factors that must always be used by a district court in approving a proposed settlement in a derivative action. As our Supreme Court has recognized, to require a specific list of factors might encourage a district court "to make a rote recitation of the mandated list in lieu of performing a logical and independent analysis of all of the relevant circumstances affecting a particular settlement." Coulter , 296 Kan. at 359, 292 P.3d 289. A review of the record in the present case reveals that the district court took its responsibilities under K.S.A. 2017 Supp. 60-223a(d) very seriously. Following a final settlement hearing and substantial post-hearing briefing by the parties as well as the objector, the district court entered a comprehensive Memorandum Decision in which it approved the substantive terms of the proposed settlement. From reading the Memorandum Decision in light of the record on appeal, we have no doubt that the district court fulfilled its obligation to independently analyze the circumstances surrounding the proposed settlement. In its analysis of the substantive terms of the proposed settlement, the district court not only looked to caselaw, it also appropriately looked to Principles of Corporate Governance, § 7.14 (1994)-entitled "Settlement of a Derivative Action by Agreement Between the Plaintiff and a Defendant"-for guidance. Section 7.14(b) of the treatise provides: "The court should approve a proposed settlement or other disposition if the balance of corporate interests warrants approval and the settlement or other disposition is consistent with public policy. In evaluating a proposed settlement, the court should place special weight on the net benefit, including pecuniary and non-pecuniary elements, to the corporation. " (Emphasis added.) The district court noted that the proposed settlement in this case did not include any pecuniary or monetary benefit to the corporation or its shareholders. Rather, as the district court recognized, the proposed settlement provides "exclusively therapeutic relief in the form of four major corporate governance reforms ... together with a substantial fee and expense payment from the [Sprint Corporation] to Plaintiff's lawyers." We pause to note that "therapeutic relief" is a term used by Delaware courts-as well as by some other jurisdictions-to refer to non-monetary relief. See Nottingham Partners v. Dana , 564 A.2d 1089, 1102 (Del. 1989). Hence, the terms therapeutic relief, non-pecuniary relief, and non-monetary relief have the same meaning and are often used interchangeably. As the district court observed, "[i]t is difficult to assign an exact value to therapeutic relief achieved in a Settlement" because "[a]ny value achieved is speculative and depends on a number of factors, ranging from decisions of the [Board of] Directors to market forces." Citing to Principles of Corporate Governance § 7.14, the district court found that in reviewing relief in the form of corporate governance reforms, "it should determine [whether] such measures represent more than 'corporate cosmetics' and are likely to result in meaningful relief that would not have occurred but for a settlement." Although the district court found that most of the proposed corporate reforms were cosmetic in nature, it ultimately concluded that some of the reforms provided a benefit-if only slight-to the Sprint Corporation moving forward. The district court also appears to have appreciated the potential problems associated with settlements in representative litigation that are primarily or exclusively based on non-monetary relief such as corporate governance reforms. District courts asked to approve such settlements must be cognizant of the possibility of a conflict between the attorneys representing the plaintiff in a derivative action and the interests of the corporation's shareholders. As the Principles of Corporate Governance cautions, "the parties may enter into a settlement under which the defendants are not required to make any financial contribution and the corporation receives only cosmetic relief, but the plaintiff's attorneys profit handsomely. In such a context, the fact that the parties favor the settlement does not carry the usual assurance that the settlement reflects the parties' discounted estimates of the likely outcome at trial, and a greater need for judicial scrutiny of the proposed settlement is therefore evident ." (Emphasis added.) Principles of Corporate Governance § 7.14, note c. Unfortunately, non-monetary relief such as corporate governance reforms "can sometimes represent a means by which the parties can increase the apparent value of the settlement and thereby justify higher attorney's fees for plaintiff's counsel." Principles of Corporate Governance § 7.14, note e. In fact, the Principles of Corporate Governance notes that empirical research confirms the increased frequency of settlements in derivative actions that involve little or no monetary relief to the corporation or its shareholders but include significant attorney fee awards. Principles of Corporate Governance § 7.14, Reporter's Note 5. As such, a district court must be particularly diligent in exercising its duty to scrutinize a proposed settlement in a derivative action that includes an award of attorney fees but does not include monetary relief for the corporation on whose behalf the action is commenced. A review of the record on appeal in this case reveals that the district court was diligent in exercising its duty to scrutinize the proposed settlement. In its Memorandum Decision, the district court thoughtfully reviewed each of the proposed corporate governance reforms. The district court also compared the relief requested in the verified petition with that actually attained as a result of the proposed settlement agreement. In doing so, the district court determined: "When comparing the requested relief and the achieved results, the Settlement brings a mixed bag of reforms that the parties claim will benefit [the Sprint Corporation]. After closely examining them, however, the reforms may be far less effective than as portrayed by the parties in their filings and oral statements at the [final settlement hearing] in May. "The ultimate goal of the Settlement is to prevent [the Sprint Corporation], in its current or future iterations, from retuning to its old ways. It gives the narrow benefit of promising to implement these reforms, but does not include any pecuniary relief as requested in the Petition. The effectiveness of the Settlement depends on [the Sprint Corporation] dutifully carrying out its responsibilities under the Settlement and implementing the reforms to improve [the Sprint Corporation]. Essentially, Plaintiff's counsel was able to get [the Sprint Corporation] to agree to conduct itself like the telecommunications giant that it is. The reforms achieved by the Settlement are programs and guidelines that [the Sprint Corporation] could implement on its own for the sake of the corporation's own survival. As such, they are not unfair to the corporation. The Court does recognize that some of the reforms, as they would be for any corporation, are in [the Sprint Corporation's] best interest and could help ensure its survival in the short run." The district court agreed with many of Hartleib's concerns regarding the proposed settlement. Although it found that the proposed settlement "could, should and might have some benefit to [the Sprint Corporation] if honestly implemented and rigorously followed," it also determined that the settlement was "mostly illusory, with the most beneficial aspect being only those reforms to [the Sprint Corporation's] Board of Directors and Committee compositions." The district court also pointed out that the proposed reforms were to sunset in three years and could end after two years if the Sprint Corporation provided appropriate notice to its shareholders. It also found that some of the reforms are redundant to policies already in place or that should already be in place at any large telecommunication corporation. The district court ultimately found that the Sprint Corporation's "promise to bring in outside Directors to make up the majority of the Board and Finance Committee, and to comprise the Compensation Committee of solely outside Directors is the only truly beneficial reform within the Settlement agreement." The district court noted that "[h]ad the Settlement lacked this provision, the Court would be inclined to reject such an illusory Settlement entirely. But this reform, unlike nearly all of the others, has the potential to bring about positive change to [the Sprint Corporation] moving forward." Thus, the district court-albeit reluctantly-approved the substantive terms of the settlement relating to corporate governance reforms. Despite Hartleib's arguments to the contrary, we find no evidence in the record that the substantive portion of the settlement agreement was the result of fraud or collusion by the parties. Moreover, we find the substantive terms of the proposed settlement agreement to have been fairly negotiated by the parties. In particular, we find it significant that the parties reached the agreement with the assistance of an experienced mediator who worked with the parties over a period of several months. Likewise, we find that there are disputed issues of law-and perhaps of fact-in this case that would place the ultimate outcome of the litigation in doubt if it were to move forward. We, therefore, conclude that the district court applied an appropriate legal framework and considered the proper legal standards in reviewing the proposed settlement agreement. We also conclude that the district court's approval of the substantive portions of the settlement relating to the corporate governance reforms to be implemented by the Sprint Corporation was reasonable. Finally, we conclude that the district court did not abuse its discretion. District Court's Award of Attorney Fees and Expenses Hartleib also contends that under the circumstances presented in this case, no award of attorney fees was warranted. On the other hand, counsel for Ross-Williams contend that the district court erred by only awarding $450,000 in attorney fees and expenses instead of the $4.25 million that the parties tentatively agreed upon as part of the proposed settlement agreement. They argue that the requested amount should have been awarded in full because it was "proposed by a neutral and nationally recognized mediator, and supported as reasonable by the record of the relevant factors considered by Kansas courts in determining attorneys' fees." Defense counsel takes no position on this issue. In Kansas, the allowance of attorney fees and expenses is a matter of public policy to be determined by the Legislature. See Johnson v. Westhoff Sand Co. , 281 Kan. 930, 958, 135 P.3d 1127 (2006). In other words, a court's equitable powers do not extend to the awarding of attorney fees and expenses. Accordingly, Kansas courts may not award attorney fees or expenses absent statutory authority or an agreement by the parties. Unruh v. Purina Mills , 289 Kan. 1185, 1200, 221 P.3d 1130 (2009). Unlike K.S.A. 2017 Supp. 60-223(h) -which provides for the "award [of] reasonable attorney's fees" in a certified class action-there is no similar provision in K.S.A. 2017 Supp. 60-223a. However, in the present case, the parties agreed as part of the proposed settlement of the derivative actions that the Sprint Corporation would "pay or cause to be paid to Plaintiffs' Counsel attorneys' fees and expenses in the total amount of four million two hundred fifty thousand dollars ($4,250,000) ... subject to approval by the Court." Thus, the district court had an obligation pursuant to K.S.A. 2017 Supp. 60-223a(d) -as well as under the express terms of the proposed settlement agreement-to independently review the requested attorney fees and expenses to determine if they were reasonable. As we noted in the previous section of this opinion, there is "a greater need for judicial scrutiny" in reviewing proposed settlements of derivative actions in a case such as this in which no monetary relief has been obtained. Principles of Corporate Governance § 7.14, note c. In such cases, there is no fund from which to pay attorney fees and expenses. Instead, the corporation that was allegedly injured must compensate the plaintiffs' attorneys. Likewise, settlements of derivative actions in which only nonmonetary relief is obtained "can sometimes represent a means by which the parties can increase the apparent value of the settlement and thereby justify higher attorney's fees for plaintiff's counsel." Principles of Corporate Governance § 7.14, note e. In Kansas, district courts are experts on attorney fees and the factors set forth in Kansas Rule of Professional Conduct 1.5(a) (2018 Kan. S. Ct. R. 294) are to be used to evaluate the reasonableness of a request for attorney fees. See Westar Energy, Inc. v. Wittig , 44 Kan. App. 2d 182, Syl. ¶ 8, 235 P.3d 515 (2010). On appeal, we review both a district court's determination of the reasonableness of requested attorney fees and the actual award of attorney fees under an abuse of discretion standard. Davis v. Miller , 269 Kan. 732, 748, 7 P.3d 1223 (2000). "Although an appellate court is also an expert on the reasonableness of attorney fees, it will not substitute its judgment for that of the district court unless in the interest of justice such is necessary." Wenrich v. Employers Mut. Ins. Co. , 35 Kan. App. 2d 582, 595, 132 P.3d 970 (2006) (citing Davis , 269 Kan. at 751, 7 P.3d 1223 ). Hence, " '[a]n attorney fee award will not be set aside on appeal when supported by substantial competent evidence.' " Freebird, Inc. v. Cimarex Energy Co. , 46 Kan. App. 2d 631, 641, 264 P.3d 500 (2011) (quoting In re Marriage of Burton , 29 Kan. App. 2d 449, 454, 28 P.3d 427 [2001] ). KRPC 1.5(a) lists eight factors that courts are to consider when determining the reasonableness of a fee: "(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) the 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 the client; "(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and "(8) whether the fee is fixed or contingent." We note that these factors are very similar to the factors recognized by our Supreme Court in determining the amount of attorney fees to be awarded in a class action. See Shutts v. Phillips Petroleum Co. , 235 Kan. 195, Syl. ¶ 1, 679 P.2d 1159 (1984) ; see also Gigot v. Cities Service Oil Co. , 241 Kan. 304, Syl. ¶ 2, 737 P.2d 18 (1987). In the Memorandum Decision entered on November 22, 2016, the district court examined each of the eight factors set forth in KRPC 1.5(a) when making its ruling regarding the reasonableness of the requested attorney fees. First , the district court recognized that a derivative action can be "notoriously difficult and unpredictable." However, the district court noted that the four derivative actions that are the subject of this settlement were stayed shortly after they were filed. As a result, the parties did not conduct formal discovery nor did they file substantive motions prior to entering into the proposed settlement agreement. Rather, the attorneys and their staffs primarily performed document review, consulted with their expert witness, and participated in settlement negotiations-including the three mediation sessions. Thus, the time and labor required in these derivative actions was substantially less than the time and labor required in representative litigation that is aggressively litigated. Moreover, based on a review of the billing records submitted to it for in camera inspection, the district court found the amount of time billed-approximately 18,000 hours or 750 cumulative work days-was "astonishing" for the type of legal services performed. In particular, the district court was troubled by the nearly 7,000 hours billed by Silow at the rate of $300 per hour. At the time, the district court did not know that Silow was a disbarred attorney. However, the district court's concerns regarding Silow's credibility proved prophetic based on the subsequent revelation that the Commonwealth of Pennsylvania had disbarred him from the practice of law in 1987. Furthermore, we must accept the district court's findings regarding the billing records submitted to it for in camera inspection as being correct since those records have not been provided to us-under seal or otherwise-as part of the record on appeal. A party asserting that a district court has erred must designate a record sufficient to support its arguments and to establish its claims on appeal. "When facts are necessary to an argument, the record must supply those facts and a party relying on those facts must provide an appellate court with a specific citation to the point in the record where the fact can be verified." Friedman v. Kansas State Bd. of Healing Arts , 296 Kan. 636, 644, 294 P.3d 287 (2013) ; see also Supreme Court Rule 6.02(a)(4) (2018 Kan. S. Ct. R. 34). Second , the district court recognized that class actions and derivative actions can "require a great deal of work, and because of this, attorneys (or sometimes entire firms) are unable to take on other matters." However, it also noted that the professional services provided in the four derivative actions that are included in this settlement did not "come close to the intensity" of work that is often required in representative litigation. Likewise, the district court found it to be significant that counsel for the plaintiffs were only able to achieve "some cursory corporate governance reforms that do not achieve any significant financial relief, e.g. such as a claw-back provision aimed at [the Sprint Corporation's] former CEO, who oversaw the merger." In light of the nature of the professional services provided and the fact that these actions were stayed for several years, it is difficult to envision how work on these cases precluded counsel from representing other clients. Third , the district court noted that it "is familiar with the hourly rates customarily charged by business litigation attorneys in [Kansas City]." In addition, the district court indicated that it "is also familiar with the rates paid for 'document review' companies and for attorneys doing that limited type of work in this area." It recognized "that services were performed in California and Pennsylvania-states that on average have significantly higher hourly rates than Kansas City law firms for similar work." However, the district court also found that "[d]ocument review rates ... are significantly lower than those that business litigation counsel charge" and noted that law firms "often rely upon temporary staffing agencies to hire document review attorneys who earn from $25-50 per hour." Fourth , the district court found-citing Gigot , 241 Kan. at 315, 737 P.2d 18 -that "[t]he most important factor in assessing the reasonableness of a fee is the ultimate result obtained." Although it recognized that the corporate governance reforms agreed upon by the parties provided a limited benefit to the Sprint Corporation, the district court was concerned about the fact that "they depend nearly entirely on the will of the Board of Directors to implement these changes, and maintain the reforms for three years through the end of the sunset provision." In fact, as indicated above, the corporate governance reforms can actually be modified or terminated after only two years so long as the Sprint Corporation provides "notice [of the modification or termination] on the Investor Relations page of Sprint.com." Again, the district court found it significant that the settlement lacked a "financial component" and "expressed strong concern regarding the enforceability of the Settlement" because "[t]here is no clear mechanism for shareholders to enforce the corporate governance reforms." In fact, the district court found that "the enforcement of the Settlement by shareholders would likely require another derivative suit should [the Sprint Corporation] fail to implement the reforms or violate any of them." As such, the district court found the results obtained to be only "moderately commendable" and that they require the Sprint Corporation to do "the bare minimum of what is expected [of a major corporation] and nearly nothing more." Notwithstanding, the district court did not accept Hartleib's contention that the result obtained "is so nominal that [the attorneys] are not entitled to any award." Instead, the district court determined that "[w]hile the Court is skeptical of the actual benefit conferred to [the Sprint Corporation] that would warrant a $4.25 million fee award, Plaintiff's counsel should be fairly compensated for what reforms they were able to achieve, even if they fell short of their original shot across the bow." The district court noted that even though the derivative actions were stayed while the shareholder class action was ongoing in federal court, counsel for the plaintiffs "spent some amount of time and energy on this matter, despite it being stayed while the securities litigation was ongoing." Specifically, the district court identified the coordination and performance of document review, preparation for the three mediations, and retention of an expert witness. Fifth , the district court found that there were no pressing time limitations imposed by the client or by the circumstances. We agree and find this to be particularly true in light of the fact that no formal discovery was conducted and no substantive motions were filed prior to the parties entering into the proposed settlement agreement. Rather, these derivative actions were stayed for several years. As such, other than document review, legal research, and settlement negotiations-including participation in mediation-the parties were primarily waiting for the resolution of the related shareholder class action filed in federal court. Sixth , the district court found that there "has been a significant relationship between Plaintiff and counsel for the duration of this case." It also found that there were similar relationships between the attorneys and clients in the other derivative lawsuits arising out of the merger. The district court rejected Hartleib's contention that there was no true relationship between Ross-Williams and her attorneys. Although it does appear from the record that Ross-Williams' role in this case was limited, the district court appropriately recognized that "[w]hile the structure of a derivative suit is non-traditional, there still is an attorney-client relationship between [the attorneys and the] shareholder plaintiffs bringing a derivative lawsuit against a Board of Directors." Seventh , the district court noted the experience of the law firms representing the plaintiffs in the four derivative actions. Moreover, at the time the district court entered the Memorandum Decision, it had "no qualms about the capability or reputation of Plaintiff's counsel." Of course, since that time, it has come to light that nearly 7,000 hours out of the approximately 18,000 hours billed were performed by a disbarred attorney being billed at the rate of $300 per hour. However, the district court was able to consider this new information on remand and decided that the outcome would not have changed because it had already considered Silow's credibility in its original order regarding attorney fees and expenses. Thus, we will not substitute our judgment for that of the district court regarding the overall experience, reputation, and ability of the attorneys representing the plaintiffs. Eighth , the district court noted that "[a] law firm undertakes a significant risk when handling complex litigation on a contingency basis" and that "[d]erivative suits are notoriously risky because there is an extremely small likelihood that such actions would succeed at trial." However, the district court also pointed out that a contingency fee is normally "paid by the client from the [monetary] recovery." Of course, in this case there is no monetary recovery from which to pay attorney fees and expenses. Thus, although the district court determined that counsel for the plaintiffs should receive some amount of attorney fees, it did not find the amount requested to be appropriate "when the fee is to be paid by the derivative client corporation that suffered the alleged harm in the first place." Ultimately, the district court concluded: "The Court rejects the requested $4.25 million fee award. The results obtained in the Settlement are not commensurate with the fee requested. An unjustifiably high fee award with respect to the minimal relief obtained abuses the trust of the shareholders. Furthermore, the billing records reviewed by the Court paint a troublesome portrait of exploiting [the Sprint Corporation's] missteps for a substantial reward for counsel, and minimum relief to [the Sprint Corporation] and its shareholders that suffered. The billing records submitted furthermore lack credibility. The focus appears to have been upon an easy, cheap settlement in the first instance. No motion practice or serious discovery efforts were ever undertaken to address the egregious acts originally alleged against the individual Defendants who were responsible for the losses to [the Sprint Corporation]. The Court approves a Settlement that allows Plaintiff's counsel a reasonable fee and their expenses limited to the total amount of $450,000." Based on our review of the record on appeal in light of Kansas law, we do not find the district court's decision to approve attorney fees and expenses in the amount of $450,000 to be an abuse of discretion. Instead, we find that the district court thoughtfully reviewed the exhibits presented, diligently analyzed the factors set forth in KRPC 1.5(a), and seriously considered the arguments presented by the parties as well as those presented by the objector. Furthermore, a review of the record reveals that the findings made by the district court are supported by substantial competent evidence. Motion to Alter or Amend Nearly a month after the district court had rendered its decision regarding the reasonableness of fees and expenses, counsel for the plaintiffs filed a motion to alter or amend this portion of the judgment under K.S.A. 2016 Supp. 60-259(f). Specifically, plaintiffs' counsel sought to submit additional evidence they claimed confirmed the hours billed by Silow. A declaration signed by a partner in the Robbins Arroyo firm asserted that his firm had coordinated the document review and a software program called "Relativity" had been used to keep "logs of user activity, including without limitation: 'Total Usage Time,' 'Views,' 'Distinct Views,' 'Edits,' [']Distinct Edits,' and '# Documents.' " According to the declaration, a user begins a session when he or she logs in to the Relativity program, and will be timed out automatically after approximately 62 minutes of inactivity. Attached to the declaration was a document from the Relativity program purporting to show the activity of "Silow, Jeff" during document review. However, this evidence had not been submitted to the district court prior to the entry of its order awarding attorney fees and expenses. As such, the district court determined-citing Antrim, Piper, Wenger, Inc. v. Lowe , 37 Kan. App. 2d 932, 939, 159 P.3d 215 (2007) -that it was not appropriate for it to consider the declaration or the attachments after it had already ruled on the issue of attorney fees and expenses. We agree with the district court. We review challenges from the denial of a motion to alter or amend under K.S.A. 2017 Supp. 60-259(f) for abuse of discretion. Cutler v. Sosinski , 34 Kan. App. 2d 647, 649, 122 P.3d 405 (2005).The purpose of a motion to alter or amend under K.S.A. 2017 Supp. 60-259(f) is to allow a district court to correct a prior error. It is not an opportunity to present additional evidence that could have been previously submitted. See Antrim, Piper, Wenger, Inc. , 37 Kan. App. 2d at 939, 159 P.3d 215. Hence, it is proper for a district court to deny a motion to alter or amend if the movant could have-with reasonable diligence-presented the argument or evidence before the entry of the final order. See Wenrich , 35 Kan. App. 2d at 590, 132 P.3d 970. Here, there was no showing that the additional evidence was previously unavailable to present to the district court. We note that, in the alternative, the district court also found that even if it were to consider the additional evidence submitted by counsel, the "affidavits documenting Mr. Silow's time spent on Relativity are wholly unpersuasive." The district court went on to point out "that it takes merely a keystroke of activity once every hour to keep Relativity from timing out or logging off a session." In other words, as the district court astutely noted, simply hitting a key on one's computer every hour does not equate to actually reviewing documents. Accordingly, we do not find that the district court abused its discretion in denying the motion to alter or amend filed pursuant to K.S.A. 2017 Supp. 60-259(f). Hartleib's Request for Fees or Sanctions The final issue we must address is whether Hartleib-in his capacity as an objector-is entitled an incentive fee or expense reimbursement. According to Hartleib, objectors who provide a meaningful assistance in a derivative action should be entitled to recover their reasonable expenses. Although we do not disagree with this sentiment, this is a public policy matter to be decided by the Legislature and not by the courts. As indicated above, Kansas courts simply do not have the authority to grant a request for fees and expenses without statutory authority or an agreement of the parties. See Unruh , 289 Kan. at 1200, 221 P.3d 1130. There is no doubt that Hartleib has performed a valuable service for the Sprint Corporation and its shareholders in this case, and we commend him for doing so. Although we recognize that objectors like Hartleib can play an important role in the review of proposed settlements, we are aware of no statutory authority in Kansas that would allow a district court to grant an objector an incentive fee, attorney fees, or expenses in a derivative action. Moreover, notwithstanding the fact that Hartleib played a significant role in saving the Sprint Corporation and its shareholders literally millions of dollars in attorney fees and expenses in this case, it does not appear that the corporation has agreed to provide him with reimbursement. Under the appropriate circumstances, one may request the imposition of sanctions pursuant to K.S.A. 2017 Supp. 60-211 against a person who has abused the judicial process. K.S.A. 2017 Supp. 60-211(c). Under K.S.A. 2017 Supp. 60-211(c), a district court can "impose an appropriate sanction on any attorney, law firm or party that violated the statute or is responsible for a violation committed by its partner, associate or employee. The sanction may include an order to pay ... reasonable expenses, including attorney's fees ...." A motion for sanctions under K.S.A. 2017 Supp. 60-211"may be served and filed at any time during pendency of the action, but must be filed not later than 14 days after the entry of judgment." K.S.A. 2017 Supp. 60-211(c). Although this is possibly a remedy that Hartleib could have pursued, it does not appear that he has filed a motion for sanctions under K.S.A. 2017 Supp. 60-211. We note that Hartleib generically references sanctions in various pleadings filed with the district court as well as with this court. However, it is imperative that one comply with the requirements of K.S.A. 2017 Supp. 60-211 to invoke the authority of the court to impose sanctions. Without a timely filed motion pursuant to K.S.A. 2017 Supp. 60-211, neither the district court nor this court has the authority to impose sanctions. Thus, although we appreciate Hartleib's efforts in this case, we cannot grant him the relief that he requests. Affirmed.

Gardner, J.: Bruce F. Bahlmann appeals the district court's dismissal of his motion to modify child custody. He contends that the court failed to consider the facts alleged in his motion as true and failed to give him adequate notice of a hearing on Rebecca Bahlmann's motion to dismiss his motion. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND When Rebecca filed for divorce from Bruce she received ex-parte temporary orders for custody and parenting time. Bruce then filed several motions seeking to modify the ex-parte orders. The court heard those motions, held a final hearing on the divorce and custody matters, and then adopted Rebecca's parenting plan. After the court's written decision, the parties remained contentious and continued to litigate custody. Two motions underlie this appeal. First, Bruce moved to modify child custody and for custody evaluation a little over a year after the court's written decision. He claimed a material change in circumstances warranted a change in their parenting plan and custody. He alleged that Rebecca had become physically and emotionally abusive toward the children since custody was last determined and that both children's grades had suffered since the parenting plan began, making their daughter academically ineligible to participate on the cross-country team. Second, Rebecca moved to dismiss Bruce's motion. Rebecca denied any material change in circumstances and alleged it would not be in the children's best interests to live with Bruce. She denied Bruce's allegations of physical and emotional abuse, asserted that the children's grades had not suffered, and stated that their daughter was on the honor roll. Rebecca also alleged that the court had heard Bruce's complaints before and that the parties had already litigated these issues. The parties were set to mediate Bruce's motion, but the court sua sponte changed the order from mediation to conciliation. This prompted the parties to file a joint motion for mediation, and Bruce's attorney filed a notice of hearing for that motion. Rebecca appeared at that hearing in person with her attorney, but Bruce appeared only through his attorney. The first issue the court addressed in the hearing, however, was not the joint motion for mediation but Bruce's motion to modify custody and Rebecca's motion to dismiss that motion. The court discussed Bruce's allegations and Rebecca's responses to them, noting that Bruce's allegations lacked specific times and dates. Bruce's attorney noted that although the motion lacked specific dates, it alleged that the changes had occurred since the last custody determination. He asserted that the court should consider the alleged facts in the light most favorable to Bruce. The district court dismissed Bruce's motion, finding it failed to state facts with specificity and did not show a material change in circumstances. That ruling mooted the parties' joint motion for mediation. Bruce appeals. DID THE DISTRICT COURT USE THE WRONG STANDARD IN EVALUATING REBECCA'S MOTION TO DISMISS ? The district court dismissed Bruce's motion to modify child custody and motion for custody evaluation, finding that the motion failed to state with specificity facts that rose to the level of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3218. Bruce argues that the district court erred by considering opposing allegations in Rebecca's motion to dismiss and by failing to accept his factual allegations as true. Our Standard of Review Given the district court's unique vantage point of what is often an emotionally charged situation in child custody disputes, an appellate court generally will not overturn such decisions unless the court abused its discretion. See Harrison v. Tauheed , 292 Kan. 663, 672, 256 P.3d 851 (2011). When a party challenges the evidence underlying the district court's decision regarding custody, "this court reviews the evidence in a light most favorable to the prevailing party below to determine if the court's factual findings are supported by substantial competent evidence and whether those findings support the court's legal conclusion." In re Marriage of Vandenberg , 43 Kan.App.2d 697, 704, 229 P.3d 1187 (2010). This court cannot reweigh evidence, pass on witness credibility, or redetermine questions of fact. 43 Kan.App.2d at 705, 229 P.3d 1187. Here, however, the district court did not hold an evidentiary hearing on Bruce's motion to modify child custody and instead granted Rebecca's motion to dismiss that motion. Bruce contends that under these circumstances, the district court and this court on review must assume all factual allegations in Bruce's motion are true. In support of that proposition, however, Bruce cites only to civil cases dismissed for failure to state a claim at the pleading stage before any evidence was presented, namely Cohen v. Battaglia , 296 Kan. 542, 546, 293 P.3d 752 (2013) ; Campbell v. Husky Hogs , 292 Kan. 225, 227, 255 P.3d 1 (2011) ; and Halley v. Barnabe , 271 Kan. 652, 656, 24 P.3d 140 (2001). We have applied that pleading standard to a motion to modify child custody at least once. See In re Marriage of Uehling , No. 116466, 2017 WL 1369958, at * 2 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1318 (2017) (finding that the court's dismissal of a motion to modify based on the pleadings and without an evidentiary hearing was "akin to granting a motion to dismiss, which means we assume the factual allegations contained in the motion are true"). But we do not do so here. As we discuss below, the district court had good reason not to assume the truth of all the factual allegations in Bruce's motion. And a motion is not a pleading. See K.S.A. 2018 Supp. 60-207(a) (listing the only pleadings allowed); (b) (listing requirements for motions and other papers). Bruce has not shown why we should apply the same standard to Rebecca's motion to dismiss his posttrial motion to modify that we apply to a pretrial motion to dismiss a pleading. We assume the factual allegations in a motion to dismiss a pleading are true because no evidence has been presented, the case has just begun, and generally, the only issue is the legal sufficiency of the pleading in stating a claim upon which relief may be granted. See, e.g., Platt v. Kansas State University , 305 Kan. 122, 126, 379 P.3d 362 (2016). Yet the procedural posture of a motion to modify child custody is significantly different. Bruce and Rebecca filed their pleadings long ago and then presented evidence at trial. The district court weighed that evidence, made credibility calls, and issued a final order in the case. Bruce later moved to modify that final order, Rebecca responded by seeking to dismiss Bruce's motion, and the district court dismissed the motion. What happened here is more akin to the court dismissing Bruce's posttrial motion for a new trial based on newly discovered evidence than it is to a court dismissing a pleading before any evidence has been presented. See K.S.A. 2018 Supp. 60-259(g) (requiring a movant for a new trial based on newly discovered evidence to present evidence by affidavit or by declaration under penalty of perjury); State v. Laurel , 299 Kan. 668, 676, 325 P.3d 1154 (2014) (requiring such a movant to show, in addition to other things, that the evidence is of such materiality that it would be likely to produce a different result upon retrial); State v. Warren , 302 Kan. 601, 615, 356 P.3d 396 (2015) (finding the district court must assess the credibility of the newly proffered evidence in determining whether that evidence is material). We exercise unlimited review in determining whether a plaintiff has presented a prima facie case. See Becker v. Knoll , 291 Kan. 204, 206, 239 P.3d 830 (2010) ; In re Marriage of Novacek , No. 118628, 2018 WL 3320195, at *8 (Kan. App. 2018) (unpublished opinion) (applying unlimited review in the context of whether a movant made a prima facie case of material change of circumstances in a child custody case); In re Marriage of Uehling , 2017 WL 1369958, at *2 (same). We apply this standard here. Accordingly, we exercise de novo review of Bruce's motion. A prima facie showing is one "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it [may] later be proved to be untrue." Black's Law Dictionary 1382 (10th ed. 2014). Cf. Frick Farm Properties v. Kansas Dept. of Agriculture , 289 Kan. 690, Syl. ¶ 1, 216 P.3d 170 (2009) (finding "[p]rima facie evidence is evidence sufficient to sustain a verdict in favor of the issue it supports, even though it may be contradicted by other evidence"). This is similar but not identical to the pleading standard Bruce suggests. The Statutory Requirements The foremost consideration in any custody determination is a placement that is in the best interests of the child. In re Marriage of Vandenberg , 43 Kan.App.2d at 701, 229 P.3d 1187. A decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. Simmons v. Simmons , 223 Kan. 639, 642, 576 P.2d 589 (1978). Yet a district court "may change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown." K.S.A 2018 Supp. 23-3218(a). This statute requires a party who moves a district court to modify its previous decision on custody, residency, and parenting time, to file a motion stating "with specificity in the verified motion, or in an accompanying affidavit, all known factual allegations which constitute the basis for the change of custody or residential placement. If the court finds that the allegations set forth in the motion or the accompanying affidavit fail to establish a prima facie case, the court shall deny the motion. If the court finds that the motion establishes a prima facie case, the matter may be tried on the factual issues." K.S.A. 2018 Supp. 23-3219(a). The statute requires both sworn testimony and specificity. Bald conclusions, mere affirmations of belief, or suspicions are thus insufficient to make a prima facie case of a material change in circumstances. The purpose of requiring verification is shown by the contents of the verification itself: to assure the court that what is stated in the document is true. See K.S.A. 53-502(c) (providing " '[v]erification upon oath or affirmation' means a declaration that a statement is true made by a person upon oath or affirmation"). This serves the same purpose as an affidavit, which is to assure the court that the affiant is willing to swear to the truthfulness of the facts asserted. See Simpson and Selden, The Truth About Affidavits , 11 App. Advoc. 7, 10 (1998) (noting "[t]he purpose of an affidavit is to ensure the efficient admission of truthful evidence of personally known facts"). A statutory requirement that a document be supported by affidavit or verification not only assures the truthfulness of the document but also discourages claims lacking merit. See Crosby v. County of Spokane , 137 Wash.2d 296, 301, 971 P.2d 32 (1999) (regarding application for writ of certiorari). By requiring that a movant file a "verified motion, or ... an accompanying affidavit," K.S.A. 2018 Supp. 23-3219(a) requires evidentiary proof, not merely unsupported factual allegations: "In [his] petition, he not only made allegations of fact, he arguably provided proof of any allegations he had made because he verified his petition-meaning he swore an oath that the contents of the petition were 'true and correct.' This court has long held that a 'petition verified, positively, and not on information and belief, is, in effect, an affidavit.' Atchison v. Bartholow , 4 Kan. 124, 128, 1866 WL 457 (1866). And we have allowed the use of a verified petition as evidence as long as it was not 'verified on information and belief.' State, ex rel. Fatzer v. Molitor , 175 Kan. 317, 325, 263 P.2d 207 (1953)." Sperry v. McKune , 305 Kan. 469, 488, 384 P.3d 1003 (2016). Matters verified on information and belief do not rise to the level of evidence but are mere unsupported allegations. "A petition verified on information and belief only is not an affidavit and is not evidence.... The reasoning is simple, a witness would not be permitted from the witness stand to testify to a fact upon his information and belief. By the same token his affidavit on information and belief only will not be given the weight accorded sworn testimony." State, ex rel. Fatzer v. Molitor , 175 Kan. 317, 325, 263 P.2d 207 (1953) (finding a petition verified on information and belief an insufficient base upon which to appoint a receiver). In addition to requiring sworn testimony and specific facts, the statute requires a showing of material change in circumstances. The party requesting the modification bears the burden of showing a material change in circumstances. Kimbell v. Kimbell , 190 Kan. 488, 490, 376 P.2d 881 (1962). "A material change in circumstances" requires the district court to consider a variety of factors and circumstances. Johnson v. Stephenson , 28 Kan.App.2d 275, 280, 15 P.3d 359 (2000). "[O]ur courts have not been very specific as to what constitutes a material change in circumstances." In re Marriage of Cobb , 26 Kan.App.2d 388, 389, 988 P.2d 272 (1999). Nonetheless, the district court must determine whether the facts sworn to in the motion are material, meaning that these facts have some real bearing on the decision in the case. State v. Haygood , 308 Kan. 1387, 1392, 430 P.3d 11 (2018). And to be considered a material change in circumstances, the change must be of a substantial and continuing nature as to make the prior custody decree unreasonable. In re Marriage of Whipp , 265 Kan. 500, Syl. ¶ 3, 962 P.2d 1058 (1998). Requiring a material change in circumstances is for good reason: "A twofold policy underlies the material change in circumstance rule. First, a reasonable degree of stability in a child's important relationships contributes to the emotional, intellectual, and moral development of the child. Second, the court generally favors one-time adjudication of matters and opposes repetitive actions. Johnson v. Stephenson , 28 Kan.App.2d 275, 280, 15 P.3d 359 (2000), rev. denied 271 Kan. 1036 (2001)." In re Marriage of Lehner , No. 96698, 2007 WL 1667115, at *8 (Kan. App. 2007) (unpublished opinion). Those policies are well served by K.S.A. 2018 Supp. 23-3219(a)'s requirement that a party who seeks to change a court order of child custody must do so by specific and known factual allegations either in a verified motion or in an affidavit accompanying an unverified motion. The Motion to Modify Child Custody With those general principles in mind, we examine Bruce's motion to modify child custody. It was not accompanied by an affidavit but purported to be a verified motion, as the statute permits. See K.S.A. 2018 Supp. 23-3219(a). Bruce's verification of the motion swore that he had read the motion, that he "knows and understands the contents thereof, and that the statements and allegations therein made are true." The first factual assertion in Bruce's motion was that the parties had entered an agreed parenting plan. Yet that factual assertion was one the district court could not accept as true. The district court had held an eight-hour evidentiary hearing on the matter, which the court characterized as "highly contested." The district court's order correctly found that the parties had fully litigated the issues of child custody and parenting time at an all-day evidentiary hearing. After hearing the evidence, the district court adopted Rebecca's parenting plan, making it the order of the court. A party seeking to modify child custody based on a prior agreement of the parties incorporated into the divorce decree does not have to show a material change of circumstances when there has never been a prior court hearing held on child custody. See In re Marriage of Jennings , 30 Kan.App.2d 860, 863-64, 50 P.3d 506 (2002). Instead, in that situation, the court may modify an agreement simply based on the best interests of the child. See 30 Kan.App.2d at 862-63, 50 P.3d 506. But that was not Bruce's situation. Because no agreed parenting plan had been entered, Bruce bore the burden to show a material change of circumstances in addition to the best interests of the children. Bruce's first factual statement in his motion was not only inaccurate, it was materially so. Bruce's motion next alleged that since the parenting plan had been entered, a material change in circumstances had occurred and it would be in the children's best interests for him to have primary residential custody and for Rebecca to have limited and supervised parenting time. This assertion is merely introductory and conclusory, and largely repeats the legal standard necessary for such motions. Bruce's motion then made four assertions to show a material change in circumstances: "a) "Upon information and belief, [Rebecca] has physically and emotionally abused the children since custody was last determined. The children have been slapped to the point their nose bled and [Rebecca] pokes, slaps, pinches, scratches, and 'fist pushes' the children. "b) Upon information and belief, [Rebecca] berates the children in front of their friends. One such incident occurred at a child's track meet. [Rebecca] became upset that the child didn't recognize that [she] was cheering on the child from the stands during the race. [Rebecca] unnecessarily confronted the child in front of all of her friends at the conclusion of the race in a manner not in the child's best interest, but solely in the interest of [Rebecca]. Upon returning home an argument ensued and [Rebecca] slapped the child so hard that the child began to cry. When the child tried to move away from [her], [Rebecca] dug her nails into the child's shoulder and dragged her back towards [her.] "c) Since the prior Parenting Plan, both children's grades have been greatly challenged and several of their grades substantially fell. When [Bruce] is exercising parenting time, the parties' son often forgets, or is directed, to not bring his homework with him. Both children have fallen behind on their school work. Daughter was declared academically ineligible for cross country. [Bruce] believes that [Rebecca] is not spending adequate time with the children on their studies and actively encourages the children not to do their homework with [Bruce]. ".... [Bruce] is cut out of school activities due to lack of notice by [Rebecca], is not a part of enrollment or class selection, and has had zero say in the medical decisions related to the children." The first two factual allegations were admittedly not based on Bruce's personal knowledge-instead they were based "upon information and belief." That portion of the motion consists of mere allegations even though the motion itself was verified under oath. See Aeroflex Wichita, Inc. v. Filardo , 294 Kan. 258, 276, 275 P.3d 869 (2012) (examining a verified petition). But the statute requires the movant to set forth "all known factual allegations which constitute the basis for the change of custody or residential placement." K.S.A. 2018 Supp. 23-3219(a) ; see In re Marriage of Ziebart , No. 117293, 2018 WL 1545786, at *7 (Kan. App. 2018) (unpublished opinion) (finding " K.S.A. 2016 Supp. 23-3219 [a] ... acts as a gatekeeper requiring verified facts to be alleged with specificity and requires a court to deny the motion if it fails to allege a prima facie case for a change of legal or residential custody"). Bruce's allegations of physical and emotional abuse were based on information and belief and were not verified factual assertions-they fail to meet the statutory requirement of sworn evidence. We have not often addressed the requisite evidentiary basis for a motion to change child custody. But we have often addressed the necessary evidentiary basis for affidavits in the criminal context. Affidavits are usually based on one's personal knowledge of the facts stated in the document. But they may be based on hearsay in some circumstances. "[W]hile [a search warrant] affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to an affiant's personal knowledge to provide a rational basis upon which a magistrate can make a determination of probable cause." State v. Hicks , 282 Kan. 599, 614, 147 P.3d 1076 (2006). Those requirements, of course, do not apply here. But the underlying rationale is the same. If a verified motion or an affidavit in support of a change of custody motion is based on hearsay, such as a statement made by one's child, it must contain sufficient affirmative allegations of fact about the movant's personal knowledge to provide a rational basis on which the district court can determine whether the movant has met the statutory requirements. The district court cannot be faulted for considering in its prima facie determination the movant's admitted lack of personal knowledge of the facts alleged. But even if Bruce's factual allegations had been sufficiently sworn and based on his personal knowledge, his motion would still not have met the statutory standard. His allegations of Rebecca's physical and emotional abuse were substantial and perhaps continuing, but they were not specific as to time, place, or other circumstances. The same is true for Bruce's allegation that Rebecca berates the children in front of their friends. These are conclusory assertions or opinions which the court must disregard. Only the sworn facts of a verified motion, as distinguished from mere conclusory allegations, must be accepted as true. See Aeroflex , 294 Kan. at 278, 275 P.3d 869 (examining verified petition and affidavits in reviewing whether a plaintiff had made a prima facie showing that the defendant had committed a tortious act in Kansas). And Bruce's allegation about the track meet incident, even if specific and substantial, was about a one-time event, not of a continuing nature. Declining grades, although concerning to parents, can be due to many causes. Bruce's allegations about grades and homework issues are not sufficiently substantial or specific to warrant a hearing on a motion to modify child custody. But even if Bruce's facts were properly sworn and specific enough, Bruce failed to show they constituted a material change in circumstances. The district court found, to the contrary, that some or all the issues Bruce alleged in his motion had been previously litigated, saying it was "unable to determine whether any of these allegations raised in the motion took place before the hearing." It specifically noted Bruce's "whole deal of notice at the school," "issues of abuse," and "issues of school," were among the many issues the parties had litigated during the prior evidentiary hearing. Bruce does not dispute that finding on appeal. Bruce cannot meet his burden of establishing a prima facie case with the same evidence the trial court previously considered and rejected. Before concluding that Bruce had failed to state the facts with specificity, the district court noted that Rebecca denied the abuse and said their daughter was on the honor roll. It stated: "You can't be on the honor roll and be declared academically ineligible." Bruce argues that this comment, among others, shows that the district court did not accept the allegations in his motion as true but relied on Rebecca's motion and weighed the competing factual allegations in her favor. We agree that the district court erred in this respect and should have based its decision about a prima facie case solely on the sworn facts in Bruce's verified motion. See K.S.A. 2018 Supp. 23-3219(a) ("If the court finds that the allegations set forth in the motion or the accompanying affidavit fail to establish a prima facie case, the court shall deny the motion. If the court finds that the motion establishes a prima facie case, the matter may be tried on factual issues." [Emphasis added.] ). But we find no reversible error. Our review is de novo. Having reviewed the motion ourselves, we find that even if we consider only Bruce's motion and consider all its sworn facts as true, the factual assertions fail to make a prima facie case of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3219(a). Because Bruce failed to make a prima facie case, the district court did not need to conduct an evidentiary hearing. See K.S.A. 2018 Supp. 23-3219(a). Thus, no reversible error has been shown. DID THE DISTRICT COURT ERR BY HEARING THE MOTION TO DISMISS WITHOUT PROVIDING NOTICE TO THE PARTIES ? Bruce next contends that the district court committed reversible error by dismissing his motion to modify child custody at a hearing which noticed only the parties' joint motion for mediation and at which he was not present. This, he contends, violated his right to due process. Rebecca responds that Bruce did not raise the issue of improper notice at the time of the hearing and that under the circumstances, no hearing or notice of hearing on his motion was necessary. This matter is governed by our statutes and court rules. Bruce relies on K.S.A. 2018 Supp. 60-206(c)(1), which generally provides that a written motion and notice of the hearing must be served at least seven days before the time specified for the hearing. But Kansas Supreme Court Rule 133(c) (2019 Kan. S. Ct. R. 204) specifies that when neither party requests oral argument, the court may either set the matter for hearing or rule on the motion without a hearing and communicate the ruling to the parties. That is what happened here. "(c) Oral Argument . The following rules govern oral argument and rulings on motions. (1) When Oral Argument is Requested . A party may request oral argument-either in the motion or in a response filed by the adverse party under subsection (b). The court must grant a timely request for oral argument unless it states in the ruling or by separate communication that oral argument would not aid the court materially. (2) When Oral Argument is Not Requested . If no party requests oral argument, the court may: (A) set the matter for hearing; or (B) rule on the motion immediately and communicate the ruling to the parties." Rule 133 (c) (2019 Kan. S. Ct. R. 205). Neither party requested oral argument of either Bruce's motion to modify child custody or of Rebecca's motion to dismiss, so the district court had the authority under Supreme Court Rule 133(c)(2)(B), after waiting the seven-day response time, to rule on both motions without any hearing. It did so. The district court addressed the motion to dismiss during a hearing that had been noticed for the parties' joint motion for mediation. This is not ideal but neither is it reversible error. The district court did not need to notice a hearing because it had the power to rule on Bruce's or Rebecca's motion immediately and to communicate the ruling to the parties. Because dismissal of Bruce's motion to modify was warranted, no need to mediate that motion existed. Bruce was not prejudiced because the district court had no duty to hold a hearing either on his motion to modify or on Rebecca's motion to dismiss, and Bruce had ample opportunity to request a hearing on both or either motion yet chose not to do so. Under these circumstances, where the district court complied with both the statute and Supreme Court Rule 133(c)(2)(B), no due process violation has been shown. Affirmed.

The opinion of the court was delivered by Biles, J.: In this medical malpractice action, Kevin Biglow, the surviving husband of Charla E. Biglow, alleges Marshall E. Eidenberg, D.O., negligently provided emergency medical care, resulting in Charla's death. The jury returned a verdict for the doctor. On appeal, Biglow argues the district court erred when it: (1) instructed the jury on a physician's right to elect treatment; (2) defined "negligence" and "fault" using a comparative fault pattern instruction; and (3) granted a motion in limine prohibiting Biglow and his expert witnesses from using derivatives of the word "safe" or the phrase "needlessly endangering a patient." A Court of Appeals panel affirmed. Biglow v. Eidenberg , No. 112701, 2016 WL 1545777 (Kan. App. 2016) (unpublished opinion). On petition for review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Charla developed a cough in October 2009 that persisted for several weeks. Her primary care physician diagnosed her with a viral infection and recommended over-the-counter medication. Her condition did not improve. A week after that visit, Kevin took her to the emergency room at Via Christi Saint Francis Hospital in Wichita around 11 p.m. Charla's chief complaints were the persistent cough, body aches, and a 102.7-degree fever that began that day. Eidenberg was the emergency room physician. When she arrived, Charla's respiratory rate was a little fast and her oxygen saturation level a little low. Around midnight, Eidenberg ordered several laboratory exams, including a chest x-ray, blood work, and urinalysis. Based on the test results, he diagnosed Charla with pneumonia, prescribed medications, and admitted her to the hospital. Charla received Xopenex, a breathing treatment for the lungs. Afterward, Charla's heart rate increased from 90 beats per minute (bpm) to 170 bpm. A rate over 100 bpm, called tachycardia, is abnormal. Charla told Eidenberg her heart was beating fast. He responded that this was "perfectly normal and not to worry." Eidenberg thought multiple factors affected Charla's heartbeat: the breathing treatment, the pneumonia, the fever, and the over-the-counter medication. Tachycardia can involve different types of heart rhythms. Sinus tachycardia occurs when the "normal pacemaker" in the heart is "firing faster than usual," but still with a normal sinus rhythm. Eidenberg believed Charla had sinus tachycardia, so he did not order an electrocardiogram (EKG), which would show the heart rhythm's actual electrical waves. About an hour later, Charla received antibiotics. Thirty to 45 minutes after that, she was taken from the ER to a hospital room. A final vital sign reading showed low blood pressure, continuing high heart and respiratory rates, and a fever. Eidenberg marked her chart "improved" and "stable." A nurse observed that Charla walked "fine" from the transport cart to her bed, seemed "alert and oriented," and was not "confused." Her last vital signs showed "about the same" tachycardia. Charla complained of nausea, which Eidenberg attributed to pneumonia. The nurse left the room to get Charla some ice chips. When she returned, Charla was unresponsive and had no pulse. Other personnel were starting CPR. Heart monitor readings showed Charla's heart was not beating but was experiencing pulseless electrical activity. Charla died. Kevin pursued this wrongful death action against Eidenberg, Via Christi's parent corporation, and two other individuals: Charla's primary care physician and the respiratory therapist who administered the breathing treatment. Only the claim against Eidenberg proceeded to trial. The litigation focused on whether Eidenberg violated the standard of care by not using an EKG to identify Charla's heart rhythm and the type of tachycardia she was experiencing. Eidenberg testified that because Charla was a 37-year-old woman with no previous heart disease and a "nice strong pulse" with no objective findings besides the fast heart rate, he believed she had a sinus tachycardia. He said if there was a dangerous abnormal heart rhythm, he would expect to see other things, such as a "change in mental status from confusion to not responding," sweating, and a weak pulse. According to him, "[n]one of that was happening in this case." Expert Testimony We must detail some expert testimony to better understand the arguments and our outcomes for the issues raised. Two plaintiff experts agreed Eidenberg breached the standard of care by not ordering an EKG to identify Charla's heart rhythm and failing to identify the type of tachycardia she was experiencing, without which it was impossible to treat the rhythm and provide Charla with appropriate care to save her life. Two defense experts testified Eidenberg acted within the standard of care because an EKG was not required since there were reasonable explanations for her fast heartbeat. Scott Kaiser, a family physician with emergency room experience treating tachycardia, testified for plaintiff. He said Charla's heart rate could not have shown her heart rhythm, so the actual electrical waves could have been detected only with an EKG. He said any reasonable physician under the circumstances would have ordered an EKG as part of a "differential diagnosis" to rule out conditions that presented similar symptoms. Failing this, it would be "impossible to treat the rhythm and provide care to the patient." Kaiser said Eidenberg breached the standard of care by failing to order an EKG and by not reassessing Charla's condition after the pneumonia treatment. The second plaintiff expert, Michael Sweeney, a cardiologist familiar with the standard of care for an emergency room physician treating cardiac issues, said Eidenberg breached the standard of care by failing to diagnose and treat Charla's tachycardia by using a rhythm strip or an EKG to identify her specific tachycardia type. Sweeney said an EKG would have been easy to obtain in an emergency room. He testified the typical heart rate increase with Xopenex would be 10 beats or less, so it was unusual that Charla's heart rate nearly doubled to 170 bpm. During cross-examination, Sweeney agreed pneumonia was an appropriate diagnosis and that the general approach to treat sinus tachycardia was to treat the underlying stressor triggering it. Eidenberg's first expert, Kent Potter, who was residency trained and board certified in emergency medicine, testified Eidenberg "exceeded" the applicable standard of care for an experienced emergency room physician under the same or similar circumstances. Potter testified Eidenberg appropriately diagnosed Charla with pneumonia and that it was proper to prescribe Xopenex. He believed the breathing treatment played a significant role in the heart rate increase and noted Charla's tachycardia likely resulted from fever, pneumonia, and previous episodes of sinus tachycardia. Potter testified that to determine whether a patient with tachycardia needs an EKG, a physician looks at whether the patient has a primary cardia cause. He explained a patient with tachycardia, combined with other complaints or problems such as pneumonia, generally has sinus tachycardia. The standard of care, he said, does not require the attending doctor to order an EKG. In his experience, Potter had never heard of a patient developing anything other than sinus tachycardia after receiving a breathing treatment. Accordingly, he believed there was nothing that would make any experienced emergency room physician order an EKG for Charla. Potter further testified that "any experienced emergency physician would come to the conclusion without a doubt that [Charla] had a sinus tachycardia" and "it was consistent with the standard of care to treat the underlying cause of the sinus tachycardia and not treat the tachycardia, itself." He also agreed that any "emergency room physician would have reached an opinion that sinus tachycardia [at the rate that Charla was running] would not pose a threat" to her. The second defense expert was Jeffery Reames, who was residency trained and board certified in emergency medicine. He testified Eidenberg met the applicable standard of care. He agreed with Eidenberg's pneumonia diagnosis. He said the breathing treatment ordered was appropriate and believed an EKG was not required because there were reasonable explanations for Charla's fast heart rate. Finally, he testified the standard of care did not require Eidenberg to reassess Charla's condition after the antibiotics and fluids were administered. PHYSICIAN'S SELECTION OF COURSE OF TREATMENT Biglow complains the district court erred by giving Jury Instruction No. 15, which was a modified version of PIK Civ. 4th 123.11 (2012 Supp.), titled "PHYSICIAN'S RIGHT TO ELECT TREATMENT TO BE USED." As given, Instruction No. 15 read: "Where within a physician's field of medicine there exists more than one recognized approach to an issue of treatment , it is not negligence for the physician to adopt any such approach if it was a recognized and approved approach within the profession at the time the medical services in question were provided. "However, the selection must be consistent with the skill and care which other physicians practicing in the same field in the same or similar community would use in similar circumstances." (Emphasis added.) Biglow claims Instruction No. 15 was factually inappropriate because PIK Civ. 4th 123.11 was for use when there is a dispute whether a physician properly selected between two or more courses of treatment. Biglow argues Eidenberg never considered any treatment at all, simply choosing instead not to test and treat Charla's tachycardia. Additional Facts and Background At the time of trial, PIK Civ. 4th 123.11, titled "PHYSICIAN'S RIGHT TO ELECT TREATMENT TO BE USED," provided this pattern instruction: "Where, under the usual practice of the profession of the defendant, _______(name ), different courses of treatment are available which might reasonably be used, the (physician ) ... has a right to use (his ) (her ) best judgment in the selection of the choice of treatment. "However, the selection must be consistent with the skill and care which other (physicians practicing in the same field in the same or similar community ) ... would use in similar circumstances." The "Notes on Use" for PIK Civ. 4th 123.11 indicated, "Where there is a dispute as to which of two or more courses is to be pursued in administering treatment, this instruction should be used. PIK 4th 123.01, Duty of Health Care Provider ... must also be given." PIK Civ. 4th 123.11. Prior to Biglow's trial, PIK Civ. 4th 123.11 drew a critical eye in Foster v. Klaumann , 296 Kan. 295, 294 P.3d 223 (2013). The Foster court held the first paragraph in PIK Civ. 4th 123.11 was not a misstatement of the law as long as the second paragraph was given with it. The court explained this was "because the second paragraph direct[ed] the jury to the objective standard of care, clarifying any potential confusion caused by referencing a physician's right to use the doctor's best judgment." 296 Kan. at 313, 294 P.3d 223. But the court also noted an instruction discussed in Natanson v. Kline , 186 Kan. 393, 399, 350 P.2d 1093 (1960), did "a better job of focusing the jury on the issue before it-whether the physician committed malpractice-than the language in PIK ... 123.11, which state[d] that a physician has a 'right' to exercise his or her best judgment when picking a course of treatment." Foster , 296 Kan. at 312, 294 P.3d 223 ; see also Natanson , 186 Kan. at 399, 350 P.2d 1093 (pertinent part of the instruction stated: " '[I]f among [physicians] more than one method of treatment is recognized, it would not be negligence for the physician to have adopted any of such methods if the method he did adopt was a recognized and approved method in the profession at the time and place of treatment.' " [Emphasis added.] ). Prompted by Foster , Eidenberg requested an instruction he suggested as "an alternative to PIK 4th 123.11." It read: "Where within a physician's field of medicine there exists more than one recognized approach to an issue of diagnosis or treatment, it is not negligence for the physician to adopt any such approach if it was a recognized and approved approach within the profession at the time the medical services in question were provided." Eidenberg argued his modifications to PIK Civ. 4th 123.11 were based on both Foster and Natanson . Biglow argued against the proposal for three reasons. First, he insisted there were not two or more courses of treatment for the doctor to have chosen because the disputes were whether Eidenberg failed to order an EKG to identify the type of tachycardia and failed to adequately monitor or reassess Charla. Second, Biglow claimed the statement that "it is not negligence for the physician to adopt any such approach if it was a recognized and approved approach" was not an accurate statement of the law. Biglow noted the word "negligence" was not used in PIK Civ. 4th 123.11 and the proposed instruction included the "negative language." Lastly, Biglow argued the proposed instruction omitted the second paragraph-"the selection must be consistent with the skill and care which other (physicians practicing in the same field in the same or similar community ) ... would use in similar circumstances." The district court modified Eidenberg's proposed instruction, which it gave as Instruction No. 15. The court deleted the word "diagnosis" and added the second paragraph from PIK Civ. 4th 123.11. In December 2014, after the Biglow trial, the PIK Committee deleted PIK Civ. 4th 123.11 and replaced it with a "Comment" stating, "No separate instruction concerning a physician's selection of treatment is recommended . The Committee believes the applicable standard of care instruction is sufficient to properly instruct the jury when there is a dispute over the course of treatment selected by the physician. The selection among alternative courses of treatment, like other aspects of medical care provided by a physician, must be consistent with the applicable standard of care. "The language of the former version of this instruction stating that a physician had a 'right' to exercise his or her best judgment when picking a course of treatment was criticized by the court in Foster v. Klaumann , 296 Kan. 295, 294 P.3d 223." (Emphasis added.) Standard of Review " '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)....' [Citation omitted.]" Foster , 296 Kan. at 301-02, 294 P.3d 223. In addressing an instructional error, an appellate court examines " 'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.' " State v. Hilt , 299 Kan. 176, 184, 322 P.3d 367 (2014) (quoting State v. Williams , 42 Kan.App.2d 725, Syl. ¶ 1, 216 P.3d 707 [2009] ). Discussion The panel held sufficient evidence supported the district court's decision to instruct on alternative approaches to a treatment issue. Biglow , 2016 WL 1545777, at *10. In doing so, it properly noted there was a "fundamental disconnect between the parties' arguments related to the propriety of Instruction No. 1[5] under the facts presented." 2016 WL 1545777, at *9. "On the one hand, the plaintiff frames the question presented as whether there existed more than one recognized course of treatment to resolve the tachycardia . On the other hand, the defendant frames the question as whether there existed more than one recognized diagnoses for the cause of the tachycardia (sinus tachycardia as opposed to cardio tachycardia ), which in turn dictated the proper course of treatment. The instruction provided to the jury on this issue generally framed the question as whether 'there exists more than one recognized approach to an issue of treatment.' Since the definitive or ultimate diagnosis is one upon which a medical treatment program is based, we conclude the instruction as provided was broad enough to encompass the existence of one or more recognized diagnoses for the cause of the tachycardia , which in this case was sinus tachycardia as opposed to cardio tachycardia." (Emphases added.) 2016 WL 1545777, at *9. Biglow's factual-appropriateness argument focuses on the language of PIK Civ. 4th 123.11-"different courses of treatment"-in relation to the case's facts. We note Biglow ignores the trial court's modification to address a situation in which there is "more than one recognized approach" to a treatment issue. Biglow argues there was no such choice because Eidenberg did not treat Charla's tachycardia at all. Accordingly, he claims the " 'physician's selection of course of treatment' instruction" was inappropriate. Biglow insists the real question is "whether it was appropriate for Dr. Eidenberg not to diagnose (and then treat) [Charla's] tachycardia at all, rather than to diagnose and treat it"-not whether two or more courses of treatment were considered by Eidenberg. He argues the doctor violated the standard of care by not testing further to identify the type of tachycardia. In other words, Biglow contends failing to diagnose Charla's tachycardia cannot be a course of treatment as contemplated by PIK Civ. 4th 123.11. We disagree with Biglow's issue characterization. We find nothing in the record that Charla's tachycardia was anything other than sinus tachycardia as Eidenberg believed. In other words, there is no evidence that diagnosis was wrong. Viewed most favorably to Biglow, the evidence suggests only that Eidenberg should have done more to ensure his diagnosis was correct. Given this, we reject the jury instruction challenge. As outlined in Instruction No. 14, Biglow claimed Charla was injured due to Eidenberg's "fault in the following respects: That [Dr. Eidenberg] failed to provide diagnosis and treatment to Charla ... by "a. Failing to perform a differential diagnosis on [Charla]'s tachycardia ; "b. Failing to diagnose [Charla]'s tachycardia by identifying her heart rhythm; "c. Failing to treat [Charla]'s tachycardia ; "d. Failing to perform an [EKG]; "e. Failing to perform a BNP test; "f. Failing to perform a blood gases test; "g. Failing to perform a troponin test; and/or "h. Failing to reassess [Charla] after fluid/medication interventions and before discharging her from the Emergency Room." Two claims dealt with the treatment Eidenberg adopted: "c. Failing to treat [Charla]'s tachycardia" and "h. Failing to reassess [Charla] after fluid/medication interventions and before discharging her from the Emergency Room." As to "c," Biglow contended the doctor should have directly treated Charla's tachycardia by medication or other means to bring the heart rate down artificially, while Eidenberg asserted treating her underlying stressors was adequate. As to "h," Biglow claimed the standard of care required Eidenberg to reassess Charla's condition after she was treated for her pneumonia, while the doctor insisted it did not. The evidence underlying these claims and defenses provided sufficient factual basis to instruct the jury on alternative approaches to treatment issues. Instruction 15 was factually appropriate. TWO INSTRUCTIONS DEFINING " NEGLIGENCE " The trial court gave two instructions defining "negligence." Instruction No. 8 defined reasonable-person negligence and Instruction No. 9 defined health-care-provider negligence. On appeal, Biglow challenges Instruction No. 8's legal appropriateness by arguing it confused the jury and allowed it to find Eidenberg acted reasonably using the reasonable person standard. The panel held Biglow raised this challenge for the first time on appeal and concluded Instruction No. 8 was not clearly erroneous. Biglow , 2016 WL 1545777, at *12. On review, Biglow makes two arguments. First, he contends the issue was properly preserved, so the panel erred by using the clear error standard of review. Second, he continues to assert the separate reasonable-person negligence definition was legally inappropriate, confused the jury, and prejudiced him. Additional Facts As given, Instruction No. 8 stated: "You must decide in this case if the Defendant is at fault. In doing so, you will need to know the meaning of the terms 'negligence' and 'fault'. "Negligence is the lack of reasonable care . It is the failure of a person to do something that a reasonable person would do, or it is doing something that a reasonable person would not do, under the same circumstances. "A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claims for damages." (Emphasis added.) Instruction No. 9 provided: "A Physician has a duty to use the learning and skill ordinarily used by other members of that same field of medicine in the same or similar communities and circumstances. In using this learning and skill, the Physician must also use ordinary care and diligence. A violation of this duty is negligence." Also relevant is Instruction No. 11, which provided: "In determining whether a Physician used the learning, skill, and conduct required, you are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge . On questions of medical or scientific nature concerning the standard of care of a Physician, only those qualified as experts are permitted to testify. The standard of care is established by members of the same profession in the same or similar communities under like circumstances. It follows, therefore, that the only way you may properly find that standard is through evidence presented by Physician expert witness ." (Emphases added.) The preservation issue requires a deeper look. The trial transcript reflects the district court conducted an informal discussion with the parties about instructions the day before the formal jury instruction conference. Because of that, when the court convened the formal conference, it said it wanted to make a record about the informal meeting and "go through the instructions one by one and give everybody a chance to comment as to if they have an objection to it or not." As to Instruction No. 8, the court began, "[Biglow] made the point yesterday, he's correct, this is a comparative fault instruction. This is not a comparative fault case. But as we also discussed yesterday, PIK is so interwoven and intertwined that if I chose, and I did, to use the term 'fault' later in the instructions, or even on the verdict, you've got to have somewhere, where you define what fault is. Therefore, I have modified 105.01." So modified, Instruction No. 8 omitted this language found in PIK Civ. 4th 105.01 (2010 Supp.): "I am required to reduce the amount of damages you may find for any party by the percentage of fault, if any, that you find is attributable to the party. "A party will be able to recover damages only if that party's fault is less than 50 percent of the total fault assigned. A party will not be able to recover damages, however, if that party's fault is 50 percent or more." After explaining why it wanted to use the remainder, as set out in Instruction No. 8, the court asked Biglow if he had any objection. Biglow responded, "Yes, Your Honor. The only objection I have is that, of course the Court previously noted, this is not a comparative fault case. It's hard sometimes, and I understand, to reconcile a non-comparative fault case given that a lot of PIK instructions are drafted in terms of comparative fault, so I understand that. What we would suggest instead of course is that our version of the instruction is placed in." (Emphasis added.) Biglow's proposed instruction, a modified version of PIK Civ. 4th 106.01 (2010 Supp.), in relevant part, stated, "The Plaintiffs Claim: "1. That they were injured when Defendant failed to provide diagnosis and treatment to Charla ... ; and "2. That such acts/omissions of Defendant that failed to meet the standard of care included the following: "a. Failing to perform a differential diagnosis on [Charla's] tachycardia ; .... "h. Failing to reassess [Charla] after fluid/medication interventions and before discharging her from the Emergency Room. "3. That Defendant's acts/omissions listed (a) through (h) above each failed to meet the standard of care and constituted negligence on the part of Defendant; and "4. That Defendant's negligence caused or contributed to cause the death of Charla. ... "The Plaintiffs' burden of proof: "The plaintiffs have the burden to prove that it is more probably true than not true that Defendant caused or contributed to cause the death of Charla ... by one or more of the claimed negligent acts/omissions listed (a) through (h) in Paragraph 2 above. ..." (Emphasis added.) Eidenberg then objected on a different issue with Instruction No. 8. The court rejected both parties' objections, including Biglow's "to the concerns about comparative fault and how we're defining fault and negligence ." (Emphasis added.) Preservation Biglow insists he properly preserved this issue for two reasons. First, he notes his version of the proposed instructions "contained only the professional negligence definition and excluded the ordinary negligence definition, while including the definition of fault the court indicated it wanted." He argues this suggested opposition to any variation to what he submitted. Second, he relies on the district's court's ruling, "I will overrule [Biglow's] objection to the concerns about comparative fault and how we're defining fault and negligence ." (Emphasis added.) Biglow essentially asks us to speculate that he specifically objected on his definition theory during the informal conference. But the transcript reflects this specific objection was not made to the district court as required by statutory procedures. K.S.A. 2017 Supp. 60-251(c) requires a party, who objects to an instruction, to "do so on the record, stating distinctly the matter objected to and the grounds for the objection." Despite the open-ended opportunity to state any objections, Biglow limited his to the grounds that "this is not a comparative fault case." It is Biglow's burden to furnish a record sufficient to support his claim. Southwestern Bell Tel. Co. v. Beachner Constr. Co. , 289 Kan. 1262, 1275, 221 P.3d 588 (2009) ("The responsibility for providing a record on appeal sufficient to support a party's argument belongs to that party."). He cannot do so by implying an objection based on his proposed instructions lacking the language he now objects to on appeal. The statute not only requires that objections to jury instructions be made on the record by distinctly stating the matter objected to and the grounds for the objection, but it also sets out when a party is to make those objections-the instructions conference. K.S.A. 2017 Supp. 60-251(c)(2) (party is to object at the opportunity required by [b][2], or if the party was not informed of an instruction before the opportunity to object "and the party objects promptly after learning that the instruction or request will be, or has been, given or refused"). This court has previously noted, "The purpose of the statute [that requires specific objection] is to afford the district court an opportunity upon second thought, and before it is too late, to correct an inadvertent or erroneous failure to instruct the jury on the law applicable to the issues. The statute also serves to lessen the burden of an appellate court by diminishing the number of rulings at the trial which it may be called upon to review." Bott v. Wendler , 203 Kan. 212, 222, 453 P.2d 100 (1969). Biglow did not afford the district court the opportunity for a second thought as the statute requires. We agree with the panel and hold the definition issue was raised for the first time on appeal, so clear error analysis applies. Standard of Review An appellate court employs the four-step analysis described above when reviewing alleged instructional errors. See Foster , 296 Kan. at 301-02, 294 P.3d 223. And when a party advances a new ground for challenging a jury instruction not raised with the district court, the appellate court will apply clear error analysis. K.S.A. 2017 Supp. 60-251(d)(2) ("A court may consider an error in the instructions that has not been preserved as required by subsection [d][1] if the giving or failure to give an instruction is clearly erroneous and the error affects substantial rights."). "[T]o determine whether a challenged jury instruction is clearly erroneous, [the court] must assess whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred." In re Care & Treatment of Thomas , 301 Kan. 841, 846, 348 P.3d 576 (2015). Discussion The panel properly noted that "both instructions defining negligence were correct statements of the law." Biglow , 2016 WL 1545777, at *13. But the issue is whether both worked together in a way that fairly and accurately stated the applicable law. Plummer , 295 Kan. at 161, 283 P.3d 202. In this medical malpractice case, we hold Instruction No. 8's recitation about what a reasonable person would (or would not) do under the same circumstances was legally inappropriate. "To establish medical malpractice, a plaintiff must show: (1) the health care provider owed the patient a duty of care, which required that the provider meet or exceed a certain standard of care to protect the patient from injury; (2) the provider breached that duty or deviated from the standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider's breach of the standard of care. Miller v. Johnson , 295 Kan. 636, Syl. ¶ 1, 289 P.3d 1098 (2012). "The duty of care owed by all physicians ... is to exercise reasonable and ordinary care and diligence. But the particular decisions and acts required to satisfy that duty of care vary, i.e. , the required skill depends on the patient's situation and the physician's medical specialty .... What constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine involved. [citation omitted.]" Foster , 296 Kan. at 302, 294 P.3d 223. "[E]xpert testimony is generally required in medical malpractice cases to establish the applicable standard of care and to prove causation, except where lack of reasonable care or existence of proximate cause is apparent to an average layperson from common knowledge or experience." Puckett v. Mt. Carmel Regional Med. Center , 290 Kan. 406, 435-36, 228 P.3d 1048 (2010). Therefore, what a reasonable person would (or would not) do under the same circumstances is irrelevant. We agree with Biglow that Instruction No. 8 was legally inappropriate, but we further hold its impact was harmless for two reasons. First, considering the jury instructions as a whole, Instruction No. 8 would not confuse the jury about Eidenberg's duty of care. Instruction No. 9 clearly stated Eidenberg's duty as a physician and provided the health care provider definition for negligence. And Instruction No. 11 told the jury it could only consider expert testimony in determining whether Eidenberg breached the applicable standard of care. Instruction No. 14 supplemented these by detailing the alleged fault. Building on this, the second reason is that the expert testimony on the standard of care focused exclusively on Eidenberg as a physician. In Foster , the parties disputed whether it was proper to issue the general physician standard of care instruction when the specialist standard of care was also provided. Without determining whether the general physician instruction was legally and factually appropriate, the Foster court held the challenged instruction "could not have affected the trial's outcome because the only standard of care evidence presented was that of a specialist." 296 Kan. at 307, 294 P.3d 223 ; see also Douglas v. Lombardino , 236 Kan. 471, 480, 693 P.2d 1138 (1985) (giving both specialist and general physician instructions could be confusing if there was a dispute whether a doctor was a specialist). Foster is particularly instructive because the objection was properly preserved, so the court was viewing the error's impact with more scrutiny, i.e., whether there was no reasonable probability the error contributed to the verdict. Foster , 296 Kan. at 305, 294 P.3d 223. We hold Instruction No. 8 was not clear error under these circumstances. We are not firmly convinced the jury would have reached a different verdict had the district court avoided giving it. See Thomas , 301 Kan. at 846, 348 P.3d 576. MOTION IN LIMINE The district court granted Eidenberg's motion in limine, preventing Biglow's counsel and witnesses from using any derivative of the word "safe" or the phrase "needlessly endanger a patient" during trial, because they were "inconsistent with the law in Kansas as to a doctor's duty." On appeal, Biglow argues these concepts are relevant in medical malpractice cases generally and the ruling therefore prevented him from fully presenting standard of care evidence. The panel held the issue was not properly preserved, and even if it were, there was no error and it did not prejudice plaintiff's case. Biglow , 2016 WL 1545777, at *16-17. Additional Facts In his motion, Eidenberg provided examples of questions asked of him during a discovery deposition to demonstrate how they would misstate the law, confuse the jury, and be irrelevant and prejudicial. Those questions were: "Q. Okay. You would agree with me that a doctor must never needlessly endanger a patient . Correct? .... "Q. ... A doctor must never needlessly endanger their patient . Do you understand that question? .... "Q. ... A doctor must use all reasonably available tools at his [disposal] if it would be medically beneficial to a patient. .... "Q. ... A doctor must not discharge or transfer a patient that they are unsure of their condition. .... "Q. ... When confronted with two options for treatment, a doctor should prescribe the safest option for the patient?" (Emphases added.) The district court asked Biglow for an example of questions that would be prevented if the court would sustain the motion. Biglow answered: "Well, for instance, you know, on cross-examination with some other experts they believe that-they thought it was not-unnecessary to order a 12-lead EKG. So I would ask them about the standard of care, and I would say, you would disagree with me that the standard of care requires a 12-lead EKG[,] correct? And I would say, if the patient has what could be a life-threatening condition wouldn't the standard of care require that patient to be tested to rule out that life-threatening condition? He would say, yes. I would say, isn't that a safer option than not doing the test , and I think that's completely consistent with the standard of care." (Emphasis added.) The district court granted the motion in limine, reasoning: "At this time, I am concerned for the reasons I have articulated that safe because of the nebulous nature of the [word] safe is of such a degree that it requires a standard of care which means to be the best, perfect, the most cutting edge, and I do believe that is inconsistent with Kansas law." Even so, the district court told Biglow it would revisit the limitation at any point during trial. The issue reoccurred on two occasions. The first was when Kaiser, an expert for Biglow, testified about an emergency room physician's responsibilities. Kaiser said the "physician's job" is "to perform diagnosis," "treatment," and "disposition." Biglow's counsel asked, "Would you say those are the three main responsibilities?" Kaiser answered, "I think so. I think overlying that all is patient safety . We do it because we're there to take care of people and help people, but really the safety ." (Emphases added.) Defense counsel objected, insisting Kaiser's use of the prohibited word-safety-violated the order in limine. Biglow moved to reconsider the order, arguing: "Your Honor, I believe that-and I don't believe Dr. Kaiser intended to use the word safe. It's just this is-this is so fundamental when we're talking about emergency room medicine and safety. I understand the issue in this case is whether the doctor has breached the standard of care, but there's some underlying things that go with the standard of care, and I believe that we should be able to explain that to the jury. "One of the main things that we're going to be talking about in this case is ... whether the appropriate tests were performed and things like that. There's a reason the tests are performed. There's a reason that the diagnosis and treatment should have been provided to this patient and that is because, frankly, if you don't do those things you endanger the patient's safety and they can die . That's the core of the case. I think it underlies the standard of care . I don't think it's misleading or confusing to the jury. The jury is going to have the instructions, they're gonna have the law, and they're gonna know how to apply it in this case. "So I don't believe that the use of the word safety, while I know unintentional by Dr. Kaiser, should be excluded from this case entirely. I think that we need leeway to argue in these type of cases and, basically, you know, gagging our mouths so we can't use certain phrases I would, respectfully, submit to the Court that it is a little too broad of a restriction." (Emphases added.) The court made the same ruling prohibiting the questioning and restated its reasoning: "[I]t is misleading as far as the standard in law in the State of Kansas." The issue did not arise again until just before closing argument when Biglow asked for reconsideration, explaining: "I wanted to renew my objection to not being able to use the word safety in closing. I think that is an unreasonable prior restraint. We need leeway to argue what the standard of care is and why it is the standard of care and why it's important. I think that is a broad overreach to say that we cannot use the word safety at all." The district court denied reconsideration. The second occasion came during the jury instruction conference, when the district court declined Biglow's request to use the word "safety" in closing on its determination that "the general term of safe and the derivatives thereof are inconsistent with the law in Kansas as to a doctor's duty." Biglow claims now that the district court's order in limine erroneously prevented his experts from testifying that: (1) the standard of care required Eidenberg to refrain from needlessly endangering his patient; (2) patient safety is an important part of the standard of care; (3) for these reasons, the standard of care required Eidenberg to test Charla's tachycardia before diagnosing it because the condition may have been lethal; and (4) Eidenberg's failure to order the test compromised Charla's safety, breaching the standard of care and resulting in her death. Standard of Review A district court's decision on a motion in limine involves a two-prong test. We apply a different standard when reviewing the court's ruling on a motion in limine, depending on which prong or what exact challenge was made to a motion in limine. See Schlaikjer v. Kaplan , 296 Kan. 456, 467, 293 P.3d 155 (2013). Under the test, to grant the motion, the district court must determine: (1) the material or evidence in question will be inadmissible at trial; and (2) as opposed to a ruling during trial, a pretrial ruling is justified because (a) the mere offer or mention of the evidence at trial may cause unfair prejudice, confuse the issues, or mislead the jury; (b) the issue's consideration during trial might unduly interrupt and delay trial; or (c) a pretrial ruling may limit issues and save the parties time, effort, and cost in trial preparation. 296 Kan. at 467, 293 P.3d 155. Biglow does not procedurally challenge the order in limine. The argument focuses only on the admissibility of derivatives of the word "safe" or the phrase "needlessly endanger a patient." The district court's rationale was that these terms were inconsistent with Kansas law regarding a physician's standard of care. In State v. Shadden , 290 Kan. 803, Syl. ¶ 4, 235 P.3d 436 (2010), the court laid out the appellate role for the first factor: "A district court ruling on the first motion in limine factor-i.e., the admissibility of evidence-and an appellate court reviewing that ruling apply a multistep analysis. Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court's standard of review of this third step varies depending on the rule or principle that is being applied. Some rules or principles grant the district court discretion, while others raise matters of law. Finally, an analysis under K.S.A. 60-445 may be required, depending on the issue and parties' arguments. Under that statute, a district court may exclude evidence if its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had a reasonable opportunity to anticipate that such evidence will be offered. This analysis is reviewed under an abuse of discretion standard." Discussion Error predicated on evidence excluded by a pretrial motion in limine must be based on a proffer of the evidence in question during trial or on a motion for reconsideration. Brunett v. Albrecht , 248 Kan. 634, 640, 810 P.2d 276 (1991). Biglow's first effort at reconsideration during Kaiser's testimony presents difficulties on review. We first dispose of the evidentiary aspects to this issue. We note that no error can arise from the district court's decision to adhere to the order in limine upon Eidenberg's objection to Kaiser's testimony that: "I think so. I think overlying that all is patient safety . We do it because we're there to take care of people and help people, but really the safety ." (Emphases added.) Kaiser's response remained in the record; the jury was not instructed to disregard it, and it was not stricken. There is nothing to appeal from as to that specific question and answer. Biglow's new claim that this order prevented some expert testimony is not preserved because he never proffered that testimony. In the Court of Appeals, Eidenberg made a preservation argument, which the panel tended to disagree with even though it went on to decide the merits. The panel commented, "[I]t is questionable whether the plaintiff made a satisfactory proffer of the evidence that was in danger of being excluded by the order in limine." Biglow , 2016 WL 1545777, at *16. We agree the failure to proffer in greater detail limits what Biglow can challenge now. We now turn to the remaining issue-the district court's restriction on Biglow using the words "safe and the derivatives thereof" in closing argument. "The scope of oral argument generally lies within the sound discretion of the trial court, and the court's rulings will form no basis for a reversal absent a showing of abuse of discretion." State v. Francis , 282 Kan. 120, 143, 145 P.3d 48 (2006). "Abuse of discretion occurs when judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact." Kaelter v. Sokol , 301 Kan. 247, 250, 340 P.3d 1210 (2015). To address whether the district court abused its discretion, it is important to understand two interrelated concepts about a physician's duty of care and a physician's standard of care. The duty of care is legally defined. It is owed by all physicians, regardless of medical specialty and it "is to exercise reasonable and ordinary care and diligence." Foster , 296 Kan. at 302, 294 P.3d 223. "What constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine involved." 296 Kan. at 302, 294 P.3d 223. "The standard of medical ... care that is to be applied in any given case is not a rule of law, but a matter to be established by the testimony of competent medical experts." Nold v. Binyon , 272 Kan. 87, Syl. ¶ 7, 31 P.3d 274 (2001) ; see also Dawson v. Prager , 276 Kan. 373, 375, 76 P.3d 1036 (2003) ("Expert testimony is necessary to prove a deviation from the standard of care by a health care provider."). Biglow wanted to use the term "safe" to argue what the standard of care was. Because an attorney may not refer to facts not in evidence during closing argument, the only evidence that could have supported such an argument was Kaiser's testimony that an emergency room physician's job is "to take care of people and help people, but really the safety." Biglow argues this testimony addressed the standard of care, which is a factual question. The trial court and the panel decided it inappropriately rephrases the duty of care. Biglow , 2016 WL 1545777, at *16-17. We agree with the trial court and panel. The district court's ruling was based on Kansas law defining a physician's legal duty of care-a physician has a duty to use the learning and skill ordinarily used by other members of that same field of medicine. Kaiser's broad and abstract statement that a physician's job is to "take care of people and help people, but really the safety" does nothing to establish whether Eidenberg breached that duty by deviating from the standard of care when he did not order an EKG. The trial court did not abuse its discretion in restricting Biglow's use of the word "safe" and discussion of Kaiser's testimony in the closing argument. Affirmed.

Schroeder, J.: The Kansas Legislature is vested with setting the public policy of our state. Even though some may disagree with that public policy, we must accept that policy unless it conflicts with our Constitution. On appeal, Alysia R. Tillman and Storm Fleetwood challenge the denial of their cause of action, first recognized by our Kansas Supreme Court in Arche v. United States of America , 247 Kan. 276, 798 P.2d 477 (1990). In 2013, our Legislature passed K.S.A. 60-1906, stating no cause of action exists in Kansas for wrongful birth of a child. The district court granted Dr. Katherine A. Goodpasture, D.O.'s motion for judgment on the pleadings. The district court found K.S.A. 2013 Supp. 60-1906 was constitutional, finding Section 5 and Section 18 of the Kansas Constitution Bill of Rights did not protect this cause of action since wrongful birth was not a cause of action recognized in 1859 when our Constitution was adopted. We agree with the district court. K.S.A. 2013 Supp. 60-1906 is constitutional since a cause of action for wrongful birth was unavailable when our Constitution was adopted and thus does not implicate Sections 5 or 18 of the Kansas Constitution Bill of Rights. We affirm. FACTS Tillman and Fleetwood filed a wrongful birth action against Dr. Goodpasture resulting from the birth of their daughter, Baby A. They alleged Dr. Goodpasture failed to diagnose severe structural abnormalities and defects in the fetus' brain. In utero, Baby A was subsequently diagnosed with schizencephaly and is alleged to be severely and permanently neurologically, cognitively, and physically handicapped. Tillman and Fleetwood alleged Dr. Goodpasture's failure to diagnose appropriately the structural abnormalities and defects denied them the right to make an informed decision on whether to terminate the pregnancy and, had they been informed of the physical, neurological, and cognitive defects, they would have terminated the pregnancy. Tillman and Fleetwood also alleged K.S.A. 2013 Supp. 60-1906 violated Section 5 and Section 18 of the Bill of Rights by denying them their right to trial by jury and their right to remedy by due course of law. They sought damages over $75,000 and a determination K.S.A. 2013 Supp. 60-1906 was unconstitutional. Dr. Goodpasture moved for judgment on the pleadings contending K.S.A. 2013 Supp. 60-1906 barred Tillman and Fleetwood's cause of action. Tillman and Fleetwood responded, arguing K.S.A. 2013 Supp. 60-1906 was unconstitutional. The State moved to intervene to defend the constitutionality of K.S.A. 2013 Supp. 60-1906. The district court heard argument on the motion for judgment on the pleadings and granted the State's motion to intervene. After the hearing, the district court allowed supplemental briefing. Upon receipt of the supplemental briefing, the district court granted Dr. Goodpasture's motion for judgment on the pleadings. It found Arche , which recognized wrongful birth as a new cause of action in Kansas in 1990, required proof of two additional elements beyond the elements necessary to prove ordinary negligence. As a result, the district court found wrongful birth was a new cause of action that did not exist when the Kansas Constitution was adopted in 1859, and thus K.S.A. 2013 Supp. 60-1906 did not implicate Section 5 or Section 18 of the Bill of Rights. Procedurally, this matter comes to us from the district court's grant of Dr. Goodpasture's motion for judgment on the pleadings. In this posture, we presume the facts alleged in the petition are true. The appellants' motion to transfer this appeal to the Kansas Supreme Court was denied. ANALYSIS In 1990, the Kansas Supreme Court first recognized a cause of action for wrongful birth in Arche . In a tort of wrongful birth, "suit is brought by the parents, who claim they would have avoided conception or terminated the pregnancy had they been properly advised of the risks or existence of birth defects to the potential child." 247 Kan. at 278, 798 P.2d 477. In 2013, the Legislature enacted K.S.A. 60-1906(a) : "No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion." On appeal, Tillman and Fleetwood challenge the constitutionality of K.S.A. 2013 Supp. 60-1906. Determining a statute's constitutionality is a question of law subject to unlimited review. The appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if any reasonable construction would maintain the Legislature's apparent intent. Solomon v. State , 303 Kan. 512, 523, 364 P.3d 536 (2015). It is the duty of the party attacking the statute to sustain its burden of proof the statute is unconstitutional. State ex rel. Schneider v. Liggett , 223 Kan. 610, 616, 576 P.2d 221 (1978). K.S.A. 2013 Supp. 60-1906 does not implicate Section 5 of the Bill of Rights. Tillman and Fleetwood argue K.S.A. 2013 Supp. 60-1906 violates Section 5 of the Bill of Rights, which guarantees the right to a jury trial, because their claim for wrongful birth was an action seeking monetary damages. Since they sought monetary damages, they argue wrongful birth is an action at law triable to a jury when our Constitution was adopted, and they are guaranteed a trial by jury. In contrast, Dr. Goodpasture and the State argue K.S.A. 2013 Supp. 60-1906 does not violate Section 5 of the Bill of Rights because Section 5 only applies to specific causes of action justiciable in 1859. Since abortion was illegal in Kansas until 1973 and the Kansas Supreme Court first recognized a cause of action for wrongful birth in Arche , as a new tort , Dr. Goodpasture and the State contend Section 5 does not apply to wrongful birth claims. Section 5 of the Bill of Rights states: "The right of trial by jury shall be inviolate." It preserves the jury trial right as the right existed at common law when our Constitution was adopted. Miller v. Johnson , 295 Kan. 636, 647, 289 P.3d 1098 (2012). In Samsel v. Wheeler Transport Services, Inc. , 246 Kan. 336, 349, 789 P.2d 541 (1990), abrogated on other grounds by Miller , 295 Kan. 636, 289 P.3d 1098, the Kansas Supreme Court described the common law: "The common law can be determined only from decisions in former cases bearing upon the subject under inquiry. As distinguished from statutory or written law, the common law embraces that great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason. It may otherwise be defined as custom long acquiesced in or sanctioned by immemorial usage and judicial decision. 15A Am. Jur. 2d, Common Law § 1. "In a broader sense, the common law is the system of rules and declarations of principles from which our judicial ideas and legal definitions are continually derived. See generally Steele v. Latimer, 214 Kan. 329, 332, 521 P.2d 304 (1974). It is not a codification of exact or inflexible rules for human conduct, the redress of injuries, or protection against wrongs; rather, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. 15A Am. Jur. 2d, Common Law § 1." In Hoffman v. Dautel , 189 Kan. 165, Syl. ¶ 2, 368 P.2d 57 (1962), the Kansas Supreme Court held: "The common law is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystalized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society." The Kansas Supreme Court recently addressed the Section 5 analysis: "Although our caselaw has never explicitly acknowledged it, there are two basic questions in any Section 5 analysis: In what types of cases is a party entitled to a jury trial as a matter of right? See, e.g. , Hasty v. Pierpont , 146 Kan. 517, 72 P.2d 69 (1937) (distinguishing causes at law from causes in equity) .... And when such a right exists, what does the right protect? See, e.g. , Miller , 295 Kan. at 647-48, 289 P.3d 1098 (analyzing jury's role in determining damages); Kimball v. Connor , 3 Kan. 414, 432 (1866) ('[ Section 5 ] ... does [not] contemplate that every issue, which, by the laws in force at the adoption of the constitution of the State, was triable by jury ... should remain irrevocably triable by that tribunal.'). "In answering the second question, this court has consistently noted that when the Section 5 jury trial right is implicated, ' "[i]t applies no further than to give the right of such trial upon issues of fact so tried at common law and does not affect the pleading stage of the case." ' (Emphasis added.) Hasty , 146 Kan. at 519, 72 P.2d 69. The right to have the jury determine issues of fact is in contrast to the determination of issues of law, which has always been the province of the court. See, e.g. , General Laws of the Territory of Kansas, 1859, ch. 25, sec. 274 ('That issues of law must be tried by the court .... Issues of fact arising in an action, for the recovery of money, or specific, real or personal property, shall be tried by a jury.'). Issues of fact for the jury to determine include liability and actual damages in civil cases and guilt in criminal cases. See Miller , 295 Kan. at 648, 289 P.3d 1098 (damages are jury issue under Section 5, citing Samsel v. Wheeler Transport Services Inc. , 246 Kan. 336, 358, 789 P.2d 541 [1990] ); Smith v. Printup , 254 Kan. 315, 324, 866 P.2d 985 (1993) (punitive damages not independent cause of action; no Section 5 protection)." State v. Love , 305 Kan. 716, 735-36, 387 P.3d 820 (2017). Undeniably, common-law tort actions were historically triable to a jury. Miller , 295 Kan. at 647, 289 P.3d 1098. Similarly, wrongful birth is undeniably a tort. See Arche , 247 Kan. at 294, 798 P.2d 477 (Six, J., concurring). Thus, the question is whether Section 5 preserves a right to a jury trial in every tort-since the right to a jury trial generally applied to torts at common law-or whether Section 5 only applies to torts recognized in 1859. If Section 5 of the Bill of Rights applies generally to torts, K.S.A. 2013 Supp. 60-1906 is unconstitutional. That said, if Section 5 only applies to specific causes of action recognized in 1859, K.S.A. 2013 Supp. 60-1906 is not unconstitutional since the Kansas Supreme Court first recognized a cause of action for wrongful birth in 1990 and it was called a new tort in Justice Six's concurrence. Section 5 only applies to torts recognized in 1859. We have been unable to find any case in Kansas where a court has addressed whether Section 5 guarantees the right to a jury trial in a common-law tort first recognized after the Kansas Constitution's adoption. Historically, the Kansas Supreme Court has considered the general nature of the cause of action-whether equitable, statutory, or an action at law-rather than the specific cause of action alleged in determining whether Section 5 applies. See Kansas Malpractice Victims Coalition v. Bell , 243 Kan. 333, 343, 757 P.2d 251 (1988), disapproved of on other grounds by Bair v.Peck , 248 Kan. 824, 811 P.2d 1176 (1991) ; Hindman v. Shepard , 205 Kan. 207, 215-16, 468 P.2d 103 (1970) ; Swarz v. Ramala , 63 Kan. 633, 636, 66 P. 649 (1901) ; Kimball and others v. Connor, Starks and others , 3 Kan. 414, 432 (1866). Based on this caselaw, whether a party is entitled to a jury trial seemingly depends on whether the case was triable by jury at common law before the adoption of the Constitution. That said, in Lemuz v. Fieser , 261 Kan. 936, 933 P.2d 134 (1997), the Kansas Supreme Court seemingly implied the Kansas Constitution protected only specific causes of action existing at the time of its adoption. In determining whether a statute implicated Section 18 of the Bill of Rights, the Kansas Supreme Court wrote: "[C]orporate negligence causes of action are not 'new' causes of action but are simply different applications of the basic concepts of negligence which existed at common law when the Kansas Constitution was adopted . As such, corporate negligence causes of action are protected by § 18." ( Emphasis added.) 261 Kan. at 945, 933 P.2d 134. The Kansas Supreme Court felt compelled to explain corporate negligence-which is clearly a tort-was protected by the Kansas Constitution because it was simply a different application of negligence-a tort recognized in 1859. To us, this is strong evidence Section 5 only applies to specific causes of action recognized in 1859. Lemuz is the only case we have found that seems to require a specific cause of action to have been recognized in 1859 to be protected by the Constitution. But Lemuz is also the most recent case addressing this issue, so we find it controls. Thus, we hold Section 5 of the Kansas Constitution applies only to specific torts, like negligence, existing at common law in 1859. Is wrongful birth a new tort? In Arche , the United States District Court for the District of Kansas certified two questions to the Kansas Supreme Court under K.S.A. 60-3201 : "1. Does Kansas law recognize a cause of action for the wrongful birth of a permanently handicapped child? "2. If Kansas does recognize such a cause of action, what is the extent of damages which may be recovered upon proper proof?" 247 Kan. at 276, 798 P.2d 477. Chief Justice Miller began Arche by declaring: "This is a medical malpractice wrongful birth action." 247 Kan. at 276, 798 P.2d 477. In its analysis, the Kansas Supreme Court set forth the elements to prove a medical malpractice action in Kansas: " '(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.' " Arche , 247 Kan. at 281, 798 P.2d 477 (quoting Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 [1988] ). After recognizing a cause of action for wrongful birth, the Arche court continued: "In recognizing a cause of action for wrongful birth in this state, we assume that the child is severely and permanently handicapped. By handicapped, we mean, in this context, that the child has such gross deformities, not medically correctable, that the child will never be able to function as a normal human being. We further assume that there is negligence on the part of the defendants; that the gross defects of the child could have been determined by appropriate testing prior to birth; that defendants owed plaintiffs a duty to perform such tests; and that no such tests were offered or performed, or if performed, were negligently performed." 247 Kan. at 281, 798 P.2d 477. In arguing wrongful birth is a theory of medical malpractice, Tillman and Fleetwood focus their argument on Chief Justice Miller's opening sentence and the latter half of the quoted paragraph. They contend Arche assumed as true the elements of a medical malpractice cause of action. They also argue a majority of jurisdictions recognize wrongful birth as a common-law negligence action. Even so, the list of cases they discussed has not changed in 28 years and is identical to the list of 20 cases discussed in Arche . See 247 Kan. at 278-79, 798 P.2d 477. In contrast, Dr. Goodpasture and the State argue wrongful birth is a new tort , focusing on the first half of the quoted paragraph and Justice Six's concurring opinion. They contend Arche set forth additional elements which must be proven to show wrongful birth. They argue a plaintiff must show the child is "severely and permanently handicapped," the disabilities are "not medically correctable," and "the child will never be able to function as a normal human being." Dr. Goodpasture and the State have the better argument. First, the Arche court assumed there was negligence on the part of the defendants and assumed the child was severely and permanently handicapped. This latter element is necessary to prove the new tort of wrongful birth but is not necessary to prove the traditional tort of medical malpractice. The court defined "handicapped, [to] mean, in this context, that the child has such gross deformities, not medically correctable, that the child will never be able to function as a normal human being." Arche , 247 Kan. at 281, 798 P.2d 477. Implicitly, then, the additional elements required to prove wrongful birth in Kansas change the complexity of the cause of action from one recognized at common law. Furthermore, Tillman and Fleetwood's petition seemingly acknowledges severe and permanent handicap is an additional element of wrongful birth. In addition to pleading the usual elements of negligence-duty, breach of that duty, causation, and damages-the petition also alleges: "Baby A is severely and permanently neurologically, cognitively and physically disabled and handicapped . Baby A's severe and permanent neurological, cognitive and physical injury resulting from her schizencephaly is not medically correctable and Baby A will never be able to function with normal neurological, cognitive or physical activity." (Emphases added.) If severe and permanent handicap is not an element of wrongful birth, there would be no reason to quote this language from Arche in the petition. Second, the Kansas Supreme Court could have stated wrongful birth was a different application of the concept of negligence. In Lemuz , the court established corporate negligence causes of action were "simply different applications of the basic concepts of negligence." 261 Kan. at 945, 933 P.2d 134. Similarly, in some cases Arche cites as recognizing wrongful birth, the courts specifically held wrongful birth was an extension of negligence. See, e.g., Naccash v. Burger , 223 Va. 406, 413, 290 S.E.2d 825 (1982) (" '[The] holding that the [parents] have stated a cause of action for damages caused by negligence in the performance and interpretation of an amniocentesis involves the application of the doctrine of negligence ... to a recently developed medical procedure.' " [Emphasis added.] ) (quoting Gildiner v. Thomas Jefferson Univ. Hospital , 451 F.Supp. 692, 696 [E.D. Pa. 1978] ); Harbeson v. Parke-Davis, Inc. , 98 Wash. 2d 460, 476, 656 P.2d 483 (1983) ("The action for wrongful birth, therefore, fits within the conceptual framework of our law of negligence . An action in negligence claiming damages for the birth of a child suffering congenital defects may be brought in this state." [Emphasis added.] ). The fact Arche did not similarly state wrongful birth was simply a different application of negligence suggests it is a new tort. Third, in his concurring opinion, Justice Six referred to wrongful birth as both a "new claim" and a "new tort." Arche , 247 Kan. at 292, 294-95, 798 P.2d 477 (Six, J., concurring). The majority could have corrected Justice Six and stated wrongful birth fit within the conceptual framework of negligence. It did not. Thereafter, the Supreme Court referred to wrongful birth as "a new cause of action based on public policy." OMI Holdings, Inc. v. Howell , 260 Kan. 305, 314, 918 P.2d 1274 (1996). Coupled with the fact Arche requires at least one additional element, and has special rules for determining damages and the management of them during the child's life, it seems clear the Kansas Supreme Court recognized wrongful birth as a new tort, not an extension of an already existing claim for medical malpractice. Fourth, wrongful birth is based on public policy that did not exist in 1859. Even if the elements of wrongful birth were identical to those of a traditional medical malpractice case, the tort itself is unlike anything on which a person had a right to a jury trial or a right to a remedy in Kansas in 1859. As Arche recognized, the objective of a wrongful birth action is different than that of a typical tort action: "The aim of a tort action is to restore the plaintiff to the position he or she would have occupied had the injury not occurred. However, in a wrongful birth case, the result of the tortious conduct is the existence, or benefit, of a child. [Citation omitted.]" 247 Kan. at 281-82, 798 P.2d 477. The Kansas Supreme Court's adoption of the new tort of wrongful birth was based on public policy. OMI Holdings, Inc. , 260 Kan. at 314, 918 P.2d 1274. That public policy in Arche was exclusively based on the fact the mother could have chosen to have an abortion had she not been denied her right to make an informed decision under facts which could and should have been disclosed. 247 Kan. at 281, 798 P.2d 477 (citing Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147 [1973] ). But that public policy was nonexistent in Kansas and elsewhere before the United States Supreme Court decided Roe in 1973. See Hummel v. Reiss , 129 N.J. 118, 127, 608 A.2d 1341 (1992) (noting eugenic abortions were not lawful in cases arising before Roe ). The new tort of wrongful birth fashioned in Arche in 1990 was founded on public policy that sprang into being in 1973 and did not exist in 1859 just because the tort of medical malpractice existed in 1859. The former is too dissimilar to the latter in its objective, its elements, and its underlying public policy. Finally, in Bruggeman v. Schimke , 239 Kan. 245, 254, 718 P.2d 635 (1986), the Kansas Supreme Court refused to recognize a claim for wrongful life: "It has long been a fundamental principle of our law that human life is precious. Whether the person is in perfect health, in ill health, or has or does not have impairments or disabilities, the person's life is valuable, precious, and worthy of protection. A legal right not to be born-to be dead, rather than to be alive with deformities-is a theory completely contradictory to our law. We agree with the Supreme Courts of Idaho, Alabama and North Carolina, and with the Court of Appeals of New York, whose opinions we have quoted above." (Emphasis added.) Arche , which created the cause of action for wrongful birth, did not overrule Bruggeman , which denied a cause of action for wrongful life. Life is precious and worthy of protection. To claim one is entitled to damages for the birth of their child when they claim they would have aborted the fetus does not protect and value life. We hold Section 5 only applies to those causes of action recognized in 1859. Section 5 is not implicated in this case, and the Legislature was within its power to enact K.S.A. 2013 Supp. 60-1906 because there was no right available under the common law for a wrongful birth action in 1859. K.S.A. 2013 Supp. 60-1906 does not implicate Section 18 of the Bill of Rights. Tillman and Fleetwood also contend K.S.A. 2013 Supp. 60-1906 violates Section 18 of the Bill of Rights, which states: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." Section 18 has "been found since our early caselaw to mean 'reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.' " Miller , 295 Kan. at 655, 289 P.3d 1098 (quoting Hanson v. Krehbiel , 68 Kan. 670, Syl. ¶ 2, 75 P. 1041 [1904] ). Again, K.S.A. 2013 Supp. 60-1906(a) states: "No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion." (Emphasis added.) Since we have determined Section 5 is not implicated by K.S.A. 2013 Supp. 60-1906, we move to analyze whether K.S.A. 2013 Supp. 60-1906 implicates Section 18 of the Bill of Rights. Tillman and Fleetwood contend " Section 18 applies to all common law causes of action, regardless of whether they existed at common law when the Kansas Constitution was adopted." They contend the Kansas Supreme Court misstated the law in Leiker v. Gafford , 245 Kan. 325, 361, 778 P.2d 823 (1989), when it stated: "The apparent purpose of this argument is to avoid Kansas case law which holds that the Bill of Rights of the Kansas Constitution preserves the right to trial by jury ( § 5 ) and the right to remedy by due course of law ( § 18 ) only as to civil causes of action that were recognized as justiciable by the common law as it existed at the time our constitution was adopted. See Kansas Malpractice Victims Coalition v. Bell , 243 Kan. 333, 342, 757 P.2d 251 (1988) ; In re Estate of Suesz , 228 Kan. 275, 277, 613 P.2d 947 (1980) ; First Nat'l Bank of Olathe v. Clark , 226 Kan. 619, Syl. ¶ 1, 602 P.2d 1299 (1979) ; In re Rome , 218 Kan. 198, 204, 542 P.2d 676 (1975) ; Craig v. Hamilton , 213 Kan. 665, 670, 518 P.2d 539 (1974) ; Kimball and others v. Connor, Starks and others ., 3 Kan. 414, 428 (1866)." Tillman and Fleetwood incorrectly argue none of the cases Leiker cited analyze Section 18-Kansas Malpractice Victims Coalition does a Section 18 analysis-still, their overall point is correct: none of these cases held Section 18 only applies to civil causes of action recognized as justiciable by the common law in 1859. However, Brown v. Wichita State University , 219 Kan. 2, 10, 547 P.2d 1015 (1976), held: " Section 18 does not create any new rights, but merely recognizes long established systems of laws existing prior to the adoption of the constitution. Since the right to sue the state for torts was a right denied at common law, such right is not protected by Section 18. This conclusion is consistent with our view that the laws at the time the constitution was framed are relevant in interpreting our constitution. [Citations omitted.]" Thus, while the Leiker court may have miscited the law, based on Brown , it did not misstate the law. Despite Tillman and Fleetwood's arguments to the contrary, Lemuz also implies Section 18 only applies to causes of actions existing at the time the Kansas Constitution was adopted. Suggesting Section 18 only applies to causes of action existing at common law when the Kansas Constitution was adopted, the Lemuz court held: "[C]orporate negligence causes of action are not 'new' causes of action but are simply different applications of the basic concepts of negligence which existed at common law when the Kansas Constitution was adopted. As such, corporate negligence causes of action are protected by § 18. If this were not the case, then any evolution of negligence law since the time the Kansas Constitution was adopted could be abrogated without implicating § 18 . Since K.S.A. 60-442(b) precludes a corporate negligence cause of action, it implicates § 18." 261 Kan. at 945, 933 P.2d 134. Unlike in Brown , Leiker , and Lemuz , the Supreme Court in Miller did not indicate Section 18 only applied to causes of action that existed prior to the adoption of the Kansas Constitution. Despite this, Miller is not controlling. First, it did not overrule its holdings in Brown , Leiker , and Lemuz . Moreover, Miller does not address whether Section 18 only applies to causes of action that existed at the adoption of the Kansas Constitution; there was no dispute statutory caps on noneconomic damages implicated Section 18. 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. Majors v. Hillebrand , 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015), rev. denied 303 Kan. 1078 (2016). Miller does not indicate the Kansas Supreme Court is departing from its holdings in Brown , Leiker , and Lemuz . This court is duty bound to follow their precedent. Section 18 only applies to causes of action existing at commonlaw when the Kansas Constitution was adopted. We are duty bound to interpret a statute as being constitutional, if possible, to maintain the Legislature's apparent intent. Solomon , 303 Kan. at 523, 364 P.3d 536. Tillman and Fleetwood have not met their burden of proof to show the Legislature's enactment of K.S.A. 2013 Supp. 60-1906 violates Section 5 and Section 18 of the Kansas Constitution Bill of Rights. Since neither Section 5 nor Section 18 is implicated by K.S.A. 2013 Supp. 60-1906, we need not apply the quid pro quo analysis reaffirmed by Miller. Our decision today reflects K.S.A. 2013 Supp. 60-1906 does not implicate Sections 5 or 18. Thus, the quid pro quo test from Miller is not implicated, and we need not address it. Affirmed.

The opinion of the court was delivered by Biles, J.: Kimber L. Eubanks, M.D., and PainCARE, P.A., appeal from a jury verdict finding them liable for medical malpractice after a patient committed suicide. The lawsuit alleges Vernon "Joel" Burnette contracted bacterial meningitis from lumbar epidural steroid injections administered through an infected lump in 2009. Joel developed arachnoiditis, a severe pain disorder caused by inflammation of a membrane protecting spinal cord nerves. This pain led Joel to suicide in 2013. On appeal, defendants challenge the causal link between their medical treatment and the suicide. They also contest $550,000 in wrongful death economic damages awarded to Joel's parents. Defendants argue: (1) the jury instructions were wrong because they did not expressly require their medical malpractice to be a "but-for" cause of Joel's suicide; (2) the expert testimony was legally insufficient to establish their negligence caused Joel's suicide; and (3) the trial court improperly permitted the jury to consider as economic damages the parent's claim for "[l]oss of attention, care, and loss of a complete family," rather than considering those losses noneconomic, which would subject them to the statutory cap under K.S.A. 60-1903. A Court of Appeals panel affirmed. Burnette v. Eubanks , 52 Kan. App. 2d 751, 779, 379 P.3d 372 (2016). We hold the jury instructions on causation were legally and factually appropriate, so there was no error. And based on the reasoning used to resolve the jury instruction causation issue, we hold the expert testimony was legally sufficient because it described the causal link between defendants' negligence and Joel's suicide in harmony with those instructions. We reverse the $550,000 awarded as economic damages for "[l]oss of attention, care, and loss of a complete family." The evidence supporting these losses impermissibly distorted the distinction between economic and noneconomic damages. Economic losses possess a tangible quality for which a plaintiff is entitled to the jury's valuation essentially as replacement for the loss. See McCart v. Muir , 230 Kan. 618, 626, 641 P.2d 384 (1982) (economic losses are the "loss of money or of something by which money or something of money value may be acquired"). And while each case has nuanced circumstances, an item identified as an economic loss must be capable of being valued using either expert testimony or the jury's common-sense understanding about what an item of actual loss costs in the marketplace. See Wentling v. Medical Anesthesia Services , 237 Kan. 503, 514-15, 701 P.2d 939 (1985). The evidence failed this established standard. We affirm the jury's verdict on the causation issues, but reverse and vacate the disputed $550,000 monetary award. We remand the case to the district court for entry of judgment consistent with this decision. FACTUAL AND PROCEDURAL BACKGROUND Before his death, Joel sued Eubanks, Daniel Bruning, M.D., and their clinic, PainCARE, P.A., alleging negligence in administering epidural steroid injections for back pain. Joel claimed he told the clinic's nursing staff and Eubanks about a painful lump on his back, but Eubanks dismissed the concern and gave him an injection through the infected lump-failing to diagnose and medically treat his spinal epidural abscess. From this, Joel claimed he developed spinal meningitis, significant permanent nerve damage, and arachnoiditis. About four years after the injection, Joel committed suicide. Joel left his parents a note explaining he "couldn't live one more day with this pain." He wrote, "I tried. So damn hard. I tried. For three long years I tried. And now, I'm tired. So tired. Tired of the pain. Tired of the frustration. Tired of failing. Tired. So very, very, tired." Joel's parents, Vernon and Gail Burnette, filed a wrongful death claim against Eubanks and PainCARE based on the new cause of action arising from the suicide. They continued with Joel's original lawsuit as a "survival" action on behalf of his estate. See K.S.A. 60-1801 (cause of action for personal injury by wrongful act or omission survives death of person entitled to maintain claim). The district court consolidated the lawsuits. A jury found Eubanks and PainCARE at fault for Joel's injuries and death. On the personal injury claim, the jury awarded Joel's estate $2,060,317.84, including $1,460,000 in noneconomic damages. Those noneconomic damages were reduced to $250,000 by court order. See K.S.A. 60-19a02 (statutory cap for noneconomic losses in personal injury actions). On the wrongful death claim, the jury awarded Joel's parents $820,062. This included funeral expenses and an additional $550,000 as economic damages, which were not subject to a noneconomic damages cap in wrongful death actions. See K.S.A. 60-1903. The $550,000 economic award was itemized on the verdict form as "[l]oss of attention, care, and loss of a complete family." Defendants appealed. A Court of Appeals panel affirmed. Burnette, 52 Kan. App. 2d at 779, 379 P.3d 372. Defendants timely filed a petition for review with this court, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). THE CAUSATION INSTRUCTIONS We consider first whether the jury instructions improperly diluted the legally necessary causal link between defendants' conduct and Joel's suicide. The panel succinctly described the chain of events: "But for [defendants'] negligence, it was foreseeable that Joel would have become infected. Then, due to infection, Joel contracted arachnoiditis and because of the arachnoiditis, Joel committed suicide." 52 Kan. App. 2d at 762, 379 P.3d 372. To recover damages on a medical malpractice theory, a plaintiff must show: "(1) [T]he health care provider owed the patient a duty of care, which required that the provider meet or exceed a certain standard of care to protect the patient from injury; (2) the provider breached that duty or deviated from the standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider's breach of the standard of care. Miller v. Johnson , 295 Kan. 636, Syl. ¶ 1, 289 P.3d 1098 (2012)." Foster v. Klaumann , 296 Kan. 295, 302, 294 P.3d 223 (2013). Our attention is on that fourth element. Proximate cause is the cause that " ' "in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act." ' " Yount v. Deibert , 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). Individuals are not responsible for all possible consequences arising from their negligence-just those that are probable according to ordinary and usual experience. Hale v. Brown , 287 Kan. 320, 322, 197 P.3d 438 (2008). Defendants argue they can be liable only if Joel's suicide would not have occurred without their negligent conduct, i.e., but-for causation. They claim the jury instructions failed to ensure this. From defendants' perspective, the culprit is Jury Instruction No. 11, which stated: "A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim for damages." (Emphasis added.) Defendants contend the italicized language permitted the jury to find liability without making the legally required causal connection between their negligence and Joel's suicide nearly four years later. To resolve this, we must decide whether an actor's conduct that "contributes to" an event that brings about the claim is the same as a "but-for" cause of a plaintiff's injuries. We consider jury instructions together and read them as a whole. Puckett v. Mt. Carmel Regional Med. Center , 290 Kan. 406, 437, 228 P.3d 1048 (2010). And as discussed below, when taken as a whole, the instructions correctly supply the cause-in-fact requirement under Kansas law. Instruction No. 11, which is the centerpiece for this question, permitted the jury to find a defendant at fault only if that defendant's negligence "caused or contributed to the event which brought about the claim for damages ." (Emphasis added.) If the jury believed Joel's suicide would have occurred without a defendant's negligence, i.e., the negligence did not have a share in producing Joel's death, the instructions required the jury to find no fault as to that defendant. In other words, to impose liability for Joel's suicide under Instruction No. 11, the jury would have to have found a defendant's negligence was a "but-for" cause of his death. This, coupled with the other instructions, correctly stated the law and appropriately communicated to the jury the test to be applied. Additional Background The district court provided two other relevant instructions. Instruction No. 12 stated: "When answering questions on the verdict form, you should keep the following things in mind: "1. Your first obligation is to determine if any defendant is at fault . "2. If you decide that any defendant is at fault , you must then assign a percentage of fault to each defendant you find to be at fault. "3. For a defendant not at fault, show 0% on the verdict form. "4. If you find any defendant at fault, show 1% to 100% on the verdict form for that defendant. "5. If one or more defendants are assigned fault, the total of all fault must be 100%. "You may assign fault to: "Kimber L. Eubanks, M.D. "PainCARE, P.A." (Emphases added.) Instruction No. 16 stated: "The plaintiffs claim that Joel Burnette was injured, sustained damages, and died due to the defendants' fault in one or more of the following respects." (Emphasis added.) It then identified the negligence allegations against Eubanks and PainCARE. It then told the jury: "The plaintiffs have the burden to prove that one or more of their claims are more probably true than not true. It is not necessary that each of you agree upon a specific claim." At trial, defendants objected to Instruction No. 11 claiming it incorrectly stated causation under the wrongful death statute, which authorizes an action for damages resulting from a person's death "caused by the wrongful act or omission of another." (Emphasis added.) K.S.A. 60-1901. They renewed this objection when requesting a new trial. The district court conceded Instruction No. 11 "doesn't square perfectly" with the wrongful death statute but concluded it was legally appropriate anyway, relying on caselaw in which the same instruction was used in comparative-fault wrongful death claims. In the Court of Appeals, defendants continued to assert Instruction No. 11 conflicted with the wrongful death statute. Defendants argued the words "contributed to" permitted the jury to hold them liable if it found their negligence had just a small part in causing the accident but without finding Joel's suicide would not have occurred "but-for" that negligence. They further claimed the phrasing "caused or contributed to" aggravated their concern because the word "or" operated as a conjunctive that made "caused" irrelevant in the jury's deliberative process. Defendants would have stricken "or contributed to" from Instruction No. 11. The panel disagreed. Burnette , 52 Kan. App. 2d at 756, 379 P.3d 372. The panel noted plaintiffs proved both causation in fact and legal causation. It said, "The ultimate question the jury had to decide ... was whether Joel's death was a result of [defendants' negligence]"; and since plaintiffs alleged two parties were at fault, "[c]ertainly ... within the context of the jury's assessment of comparative fault, the use of the word 'contributed' is appropriate." 52 Kan. App. 2d at 762, 379 P.3d 372. The panel held "a contributing cause is a cause as the term is used in the wrongful death statute," so if a defendant's "negligence contributes to the cause of death and it is foreseeable, then [the defendant] can be held liable for that death in proportion to [the defendant's] percentage of fault." 52 Kan. App. 2d at 759, 379 P.3d 372. The panel further reasoned comparative fault principles applied in a wrongful death action because the comparative negligence statute provides that a party's contributory negligence " 'does not bar that party or its legal representative from recovering damages for negligence resulting in death ... if that party's negligence was less than the causal negligence of the party or parties against whom a claim is made.' " 52 Kan. App. 2d at 751, 379 P.3d 372 (quoting K.S.A. 2015 Supp. 60-258a [a] and citing cases applying comparative fault in wrongful death cases). Finally, the panel concluded defendants' interpretation of the wrongful death statute was too restrictive because it would preclude recovery "when there are complex facts and several different forces are engaged in an incident that results in death." 52 Kan. App. 2d at 758, 379 P.3d 372. It held the defendants' proposed instruction was legally inappropriate. Standard of Review " '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)....' [Citation omitted.]" Foster , 296 Kan. at 301-02, 294 P.3d 223. Discussion There are two preliminary points. First, although defendants' instruction issue and our holding apply equally to the survival action, defendants frame the question as a challenge limited to the wrongful death claim. Presumably this is to bring focus on the wrongful death statute's "caused by the wrongful act or omission of another" language. (Emphasis added.) K.S.A. 60-1901(a). Second, defendants do not question the panel's conclusion that comparative fault applies in wrongful death actions, nor do they suggest the causal requirement in wrongful death actions is more stringent than other negligence claims. We mention this because the panel needlessly explored whether comparative fault applies in wrongful death suits. 52 Kan. App. 2d at 758-59, 379 P.3d 372. As a practical matter, that was a distraction because defendants did not dispute it. We must focus on the second step in the jury instruction analysis, i.e., whether Instruction No. 11 was legally appropriate. An instruction " 'must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.' " State v. McDaniel , 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting State v. Plummer , 295 Kan. 156, 161, 283 P.3d 202 [2012] ). The instruction asked the jury to determine whether Joel's suicide proximately resulted from the alleged breach of the standard of care by these two healthcare providers. See Foster , 296 Kan. at 302, 294 P.3d 223 (proximate cause is one of the four elements plaintiff must show in order to establish medical malpractice). In Kansas, "[t]here are two components of proximate cause: causation in fact and legal causation. To establish causation in fact, a plaintiff must prove a cause-and-effect relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury can conclude that more likely than not, but for defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal causation, the plaintiff must show it was foreseeable that the defendant's conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes was foreseeable." Drouhard-Nordhus v. Rosenquist , 301 Kan. 618, 623, 345 P.3d 281 (2015). Proximate cause is ordinarily a factual question to be resolved by the trier of fact. Cullip v. Domann , 266 Kan. 550, 972 P.2d 776 (1999). But see Hale , 287 Kan. at 324, 197 P.3d 438 (noting when "all the evidence on which a party relies is undisputed and susceptible of only one inference, the question of proximate cause becomes one of law"). Under the comparative fault statute, "(a) Effect of contributory negligence . The contributory negligence of a party in a civil action does not bar that party or its legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if that party's negligence was less than the causal negligence of the party or parties against whom a claim is made, but the award of damages to that party must be reduced in proportion to the amount of negligence attributed to that party. If a party claims damages for a decedent's wrongful death, the negligence of the decedent, if any, must be imputed to that party. .... "(d) Apportioning liability . When the comparative negligence of the parties is an issue and recovery is permitted against more than one party, each party is liable for that portion of the total dollar amount awarded as damages to a claimant in the proportion that the amount of that party's causal negligence bears to the amount of the causal negligence attributed to all parties against whom recovery is permitted." (Emphases added.) K.S.A. 2017 Supp. 60-258a. In comparative fault cases, the PIK Committee recommends instructing a jury: "You must decide this case by comparing the fault of the parties. In doing so, you will need to know the meaning of the terms 'negligence' and 'fault.' "Negligence is the lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or it is doing something that a reasonable person would not do, under the same circumstances. .... "A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim(s) for damages . "I am required to reduce the amount of damages you may find for any party by the percentage of fault, if any, that you find is attributable to the party. "A party will be able to recover damages only if that party's fault is less than 50 percent of the total fault assigned. A party will not be able to recover damages, however, if that party's fault is 50 percent or more." (Emphasis added.) PIK Civ. 4th 105.01 (2010 Supp.). The italicized language was covered by Instruction No. 11. The pattern instruction's definition of "fault" first appeared in Kansas caselaw in 1978. It then repeated in numerous decisions from this court. See Miles v. West , 224 Kan. 284, 289, 580 P.2d 876 (1978) (holding no error in automobile negligence case for failing to instruct on proximate cause regarding defendant's intoxication when fault instruction made clear the intoxication "had to cause or contribute to the accident before the jury could assess liability on that basis" [emphasis added] ); see, e.g., Sharples v. Roberts , 249 Kan. 286, 295, 816 P.2d 390 (1991) ("The plaintiff bears the burden of proving the necessary causation and normally in medical malpractice cases, this court has described the duty in general terms, merely stating there must be a causal connection between the negligent act and the injury or that the act caused or contributed to the injury." [Emphasis added.] ); Allman v. Holleman , 233 Kan. 781, Syl. ¶ 4, 667 P.2d 296 (1983) ("A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made." [Emphasis added.] ). The PIK Committee explains that the court in Reynolds v. Kansas Dept. of Transportation , 273 Kan. 261, 269, 43 P.3d 799 (2002), approved PIK's definition of fault. PIK Civ. 4th 105.01 Comment. Reynolds contains this brief statement: "[T]he jury was correctly instructed that '[a] party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which a claim is made.' " (Emphasis added.) 273 Kan. at 269, 43 P.3d 799. But Reynolds did not analyze whether this correctly conveyed the cause-in-fact component. See 273 Kan. at 269, 43 P.3d 799. We consider that next. Our "proximate cause" requirement, which encompasses both causation-in-fact and legal causation, is equivalent to the "legal cause" concept from the Restatement (Second) of Torts § 431 (1965). Donnini v. Ouano , 15 Kan. App. 2d 517, 520, 810 P.2d 1163 (1991) ; see also Roberson v. Counselman , 235 Kan. 1006, 1012, 686 P.2d 149 (1984), modified on other grounds by Delaney v. Cade , 255 Kan. 199, 873 P.2d 175 (1994) ; Restatement (Third) of Torts: Liability for Physical Harm § 26, comment a (2010) (noting Restatement Second employed " 'legal cause' to encompass two distinct inquiries: factual cause and proximate cause"). Under the Restatement, an actor's conduct is "a legal cause of harm to another if (a) [the actor's] conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which [the actor's] negligence has resulted in the harm." Restatement (Second) of Torts § 431 (1965). And consistent with Kansas' cause-in-fact requirement, under the Restatement (Second) of Torts § 432 (1965), "(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent . "(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about ." (Emphases added.) Similar to how Kansas treats "proximate cause," the Restatement (Third) of Torts refines in a consistent way the Restatement (Second) concept by abandoning the phrase "legal cause" and more pointedly describing causation as two separate components: "Factual Cause" and "Scope of Liability (Proximate Cause)." Restatement (Third) of Torts, Chapters 5 & 6 (2010). And as with the cause-in-fact component of "legal cause" under the Restatement (Second), factual cause under the Restatement (Third) requires but-for causation-except when there are multiple causes, each sufficient to cause the harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26, comment c (2010). Describing factual causation, the Restatement (Third) explains: "An actor's tortious conduct need only be a factual cause of the other's harm. The existence of other causes of the harm does not affect whether specified tortious conduct was a necessary condition for the harm to occur. Those other causes may be innocent or tortious, known or unknown, influenced by the tortious conduct or independent of it, but so long as the harm would not have occurred absent the tortious conduct, the tortious conduct is a factual cause . Recognition of multiple causes does not require modifying or abandoning the but-for standard in this Section. Tortious conduct by an actor need be only one of the causes of another's harm. When there are multiple sufficient causes ..., each of which is sufficient to cause the plaintiff's harm, supplementation of the but-for standard is appropriate . [Citation omitted.] "A useful model for understanding factual causation is to conceive of a set made up of each of the necessary conditions for the plaintiff's harm. Absent any one of the elements of the set, the plaintiff's harm would not have occurred. Thus, there will always be multiple (some say, infinite) factual causes of a harm, although most will not be of significance for tort law and many will be unidentified. That there are a large number of causes of an event does not mean that everything is a cause of an event. The vast majority of acts, omissions, and other factors play no role in causing any discrete event . "This causal-set model does not imply any chronological relationship among the causal elements involved, although all causes must precede the plaintiff's harm. ... Nor does this model imply any relationship among the causal elements; causal elements may operate independently, as when a property owner neglects a patch of ice on a sidewalk and a careless pedestrian fails to notice the condition, producing a fall." (Emphases added.) Restatement (Third) of Torts: Liability for Physical Harm § 26, comment c (2010). In Hale , the court rejected an effort to "jettison the traditional concept of proximate cause and replace it with a requirement that a plaintiff be able to prove that injury resulting from the defendant's conduct was foreseeable and that the defendant's conduct contributed to the injury." 287 Kan. at 323, 197 P.3d 438. In other words, the plaintiff contended that "any contribution to the plaintiff's injuries should be left for the jury to calculate as a percentage of overall fault." 287 Kan. at 323-24, 197 P.3d 438. The court reasoned that "such an expansive causation element would greatly increase the number of potential defendants in negligence actions and the concomitant costs of litigation," and would conflict with statutes the court viewed as "recogniz[ing] proximate cause as an element of negligence actions." 287 Kan. at 323, 197 P.3d 438. The issue in Hale was not causation in fact, but legal cause. The Hale court upheld a district court's decision granting defendants' summary dismissal from a comparative fault lawsuit based on plaintiff's failure to establish proximate cause. The defendant motorist was in a single-car accident. Plaintiff slowed her vehicle at the accident scene, and another motorist ran into her. The court held the defendant motorist did not proximately cause the collision involving plaintiff because the passage of time and the third party's intervening negligence broke the causal connection between the defendant motorist's actions and plaintiff's injuries. 287 Kan. at 324, 197 P.3d 438 ; cf. Restatement (Second) of Torts § 433 (1965) (listing considerations important when determining if conduct is a "substantial factor" in bringing about harm, including lapse of time and whether an actor's conduct was harmless unless acted on by other forces outside actor's responsibility). Hale speaks to the legal cause component of the causation element proposed and rejected in that case. But a second case addresses the piece not discussed in Hale -the factual cause component. In Lollis v. Superior Sales Co., Inc. , 224 Kan. 251, 252, 580 P.2d 423 (1978), the court held a police officer who investigated an automobile accident could not testify that plaintiff was speeding and following too closely, or that the defendant driver made no "contributing actions." In doing so, the court applied the rule that expert testimony is inadmissible when lay jurors' normal experience and qualifications would enable them to draw proper conclusions without expert opinion. 224 Kan. at 261, 580 P.2d 423. It reasoned that fault in causing the accident was within common knowledge. And as to this causation issue, the court explained: "[T ]he distinction between 'causing an accident' and 'contributing to an accident' is a distinction without a difference. ... An act of negligence which contributes to an accident must, of necessity, have at least a part in causing the accident . We note that in Webster's Third New International Dictionary 496 (3rd ed.), the word 'contribute' is defined in a causal sense as 'to have a share in any act or effect.' Likewise, the word 'contributing' is defined as something that ''has a part in producing an effect.' We, therefore, hold that in an automobile negligence case, an expert witness, whether an investigating police officer or another expert, may not state his opinion as to what actions of the parties, if any, contributed to the collision or as to who was at fault in causing the collision." 224 Kan. at 263, 580 P.2d 423. Similarly, in Puckett v. Mt. Carmel Regional Med. Center , 290 Kan. 406, 435, 228 P.3d 1048 (2010), the court indicated a cause that "contributed to causing" a subsequent event is a but-for cause of that event. The court held it was error to instruct that a doctor's negligence in using a particular medical device could cut off liability for earlier health care providers whose negligence created the conditions necessitating the doctor's intervention with that device. 290 Kan. at 436-37, 228 P.3d 1048. The instruction was error, the court explained, because expert testimony established a cause-in-fact relationship between the earlier medical care and the decedent's death from aspiration, and because no evidence established the later doctor's intervention was "so extraordinary or unusual as to break the causal connection between" the earlier medical care providers' negligence and the death. 290 Kan. at 415, 435, 437, 228 P.3d 1048. The event chain was: decedent had an infection the earlier providers failed to properly diagnose and treat; this caused sepsis; the sepsis was treated with fluids; the combination of sepsis and fluid retention led to respiratory distress, which required respiratory care; one treatment method for that care was the device used by the doctor; that device can put pressure on the stomach; and aspiration can result from pressure on a stomach full of fluid. The court reasoned, "[A]ccording to [the expert], no single factor ... caused the aspiration event. Rather, various causes contributed to causing the aspiration .... In light of the concurring causes, the issue for the jury was whether [the nurse and doctor] committed negligence that was the cause in fact of the need to use some form of respiratory assistance that led to the foreseeable use of the BiPAP mask. If that cause in fact was established, [the expert] connects [the nurse and doctor's] acts or omissions with the other causes of the aspiration event. His testimony thus does not provide evidence on which a reasonable jury could find a superseding, intervening cause." ( Emphasis added.) 290 Kan. at 435, 228 P.3d 1048. Against this background, Eubanks and PainCARE argue the phrase "contributed to" as a statement of but-for causation allowed plaintiffs too much leeway. They assert all Joel's parents needed to show was that "in some way, no matter how small, [a] defendant's negligence played a part in the outcome." But this is wrong. An event may have multiple but-for causes. Defendants' argument ignores the role "legal causation" plays to cut off liability for those whose causal conduct is too remote for liability to attach. See Hale , 287 Kan. at 324, 197 P.3d 438. We hold Instruction No. 11, taken with the other instructions, correctly communicated the cause-in-fact requirement under Kansas law. Instruction No. 11 permitted the jury to find fault only if a defendant's negligence "caused or contributed to the event which brought about the claim(s) for damages." (Emphases added.) Instruction No. 12 explained how to do that. And Instruction No. 16 told the jury plaintiffs had to prove they were injured "due to the defendants' fault ." (Emphasis added.) Applying the Lollis court's reasoning, the instructions told the jury that to impose liability for Joel's suicide on either defendant, it would have to find defendant's negligence was a but-for cause of his death. The "caused or contributed to" language in Instruction No. 11 permitted the jury to assign fault only if a defendant's negligence "ha[d] a share in" producing the injury. Lollis , 224 Kan. at 263, 580 P.2d 423. If the jury believed the injury would have occurred without a defendant's negligence, i.e., the negligence did not have a share in producing the injury, the instructions told the jury to assign no fault to that defendant. EXPERT TESTIMONY ESTABLISHING THE CAUSAL LINK Defendants claim they were entitled to judgment as a matter of law on the wrongful death claim because plaintiffs' evidence from expert testimony was insufficient to demonstrate defendants' negligence was a factual cause of Joel's death. This argument ties directly to the previous but-for causation issue. Defendants contend that because both plaintiff experts testified defendants' negligence "contributed to" the event chain, the evidence was fatally lacking in proving but-for causation. Their argument fails for the same reasons we concluded the jury instructions were legally appropriate. Additional Background Two plaintiff experts gave their opinions about the causal connection between the alleged medical negligence and Joel's death: Sharleen Clauser, a licensed clinical social worker, and Steve Simon, M.D., a pain management practitioner from Overland Park. Clauser saw Joel about 50 times for psychotherapy sessions. She believed she was unqualified to make a medical diagnosis but qualified to provide a psychiatric diagnosis. She thought Joel's arachnoiditis contributed to his suicide. By "contributed to" she meant it was her opinion arachnoiditis caused Joel to have bipolar symptoms that contributed to his worsening depression. She said Joel's back pain, specifically his "adhesive arachnoiditis and all of the symptoms with it," contributed to his suicide. Simon's opinions were to a reasonable degree of medical certainty or probability. He examined Joel in September 2012 and believed he suffered from cauda equina syndrome. Simon said arachnoiditis was scar tissue caused by Joel's meningitis, producing "a thickening of [the] nerves" and causing them to "[clump] together." He explained that "a huge problem in chronic pain ... is the loss of hope that patients get who have it." Simon described Joel as a patient "controlled by his pain." Simon agreed that chronic pain "can contribute to depression and suicide." He said depression "is probably the most common symptom after pain" for individuals with chronic pain and explained that "for many patients, when they feel overwhelmed by this type of a situation and they see no way out, unfortunately, sometimes those patients will choose suicide. It's something we recognize in the world of chronic pain. I have to admit that, yes, I've had patients who have done that." Simon agreed that, "Joel's physical pain contributed to his decision to end his life" and "contributed to cause" that decision. Defendants moved for judgment as a matter of law on both the wrongful death and survival claims. Focusing on the wrongful death, defendants claimed expert medical testimony was required to "link up causation in the suicide claim." Specifically, they argued, Clauser's opinion that the arachnoiditis only contributed to the suicide failed to sufficiently link Joel's death to their negligence. Likewise, they said, Simon only believed pain played a role in Joel's suicide. The court denied the motion. The court found there was "clearly sufficient evidence to support" Joel's survival claim for damages accruing during his lifetime. It recounted that (1) Clauser said arachnoiditis contributed to the suicide by causing bipolar symptoms and contributing to his depression worsening; (2) Simon mentioned a contributing link between the condition and suicide; and (3) another witness testified people with arachnoiditis occasionally commit suicide. The court said, "I'm going to go back to what [Clauser] testified to. I think ... there is sufficient linkage to allow this matter to go before the jury." The court relied on Wozniak v. Lipoff , 242 Kan. 583, 750 P.2d 971 (1988) (concerning expert medical testimony necessary to create a jury question whether a doctor's negligence caused a patient's suicide by prescription medication overdose). In revisiting defendants' challenge when deciding the new trial motion, the district court cast the issue as whether there was sufficient evidence to connect Joel's death back to the negligence allegations. The court acknowledged no expert testimony concluded the suicide was "caused by" the alleged negligence, adding: "I don't believe there was the expert testimony ... tying up that linkage between the condition and the suicide, but as per Wozniak , that was not required." The court concluded plaintiffs "clearly established" sufficient evidence allowing the jury to make the determination that the alleged negligence caused significant consequences to Joel. The court explained, "[I]t was not necessarily for the plaintiffs to, through expert testimony, directly tie up that condition with the suicide through testimony that in an expert's opinion that one caused the other." On appeal, defendants continued to argue the expert testimony did not support a finding that Joel's suicide would not have occurred but for defendants' negligence. They claimed the testimony permitted the jury to base its decision on conjecture. They also argued the district court misread Wozniak to create a "suicide exception" to the expert testimony requirement for proving medical malpractice causation. The panel viewed defendants' arguments about Clauser as a challenge to her testimony's admissibility to prove causation under K.S.A. 65-6319 (defining the permissible scope of licensed social workers' practices). Burnette , 52 Kan. App. 2d at 763, 379 P.3d 372. The panel concluded her testimony was admissible within the trial court's discretion. 52 Kan. App. 2d at 764, 379 P.3d 372. Then, the panel stated it was unnecessary to decide whether medical testimony was required to show Joel's suicide was caused by medical negligence or whether the district court misread Wozniak because Simon and Clauser provided the necessary expert testimony. 52 Kan. App. 2d at 765, 379 P.3d 372. Standard of Review K.S.A. 2017 Supp. 60-250(a) provides: "If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may ... grant a motion for a judgment as a matter of law against the party on a claim ... that, under the controlling law, can be maintained ... only with a favorable finding on that issue." An appellate court applies the same standard as the trial court when considering a motion for judgment as a matter of law under K.S.A. 2017 Supp. 60-250. The court resolves all facts and inferences reasonably drawn from the evidence in favor of the nonmoving party. If the evidence could lead reasonable minds to different conclusions, the motion must be denied. Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 405, 266 P.3d 516 (2011) (quoting National Bank of Andover v. Kansas Bankers Surety, Co. , 290 Kan. 247, 267, 225 P.3d 707 [2010] ); see also Smith v. Kansas Gas Service Co. , 285 Kan. 33, 40, 169 P.3d 1052 (2007) ("[A] motion for judgment as a matter of law must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party."). " 'Stated another way, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." ' " Wolfe Electric, Inc. , 293 Kan. at 405, 266 P.3d 516 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L. Ed. 2d 202 [1986] ). Discussion Defendants argue the panel "effectively excused the requirement of expert testimony to support proximate causation" by upholding the judgment when plaintiffs' experts only testified that "defendants' actions 'contributed' to the adverse outcome." This limited testimony, they continue, was "insufficient to establish but-for causation." But this is simply a revised version of the jury instruction argument rejected above, so the argument is without merit. See Lollis , 224 Kan. at 263, 580 P.2d 423 (holding opinion that party's action "contributed to" occurrence constitutes opinion on causation because negligence contributing to an event necessarily had at least a part in causing it). Plaintiffs' evidence supported the jury's findings that defendants' negligence caused Joel to develop arachnoiditis. Clauser and Simon both testified this condition contributed to Joel's suicide. And under our construction of "contributed to," as previously discussed, this expert testimony sufficiently established how the alleged medical negligence produced the suicide, i.e., of necessity, their actions had at least a part in causing it-either as the sole cause or as one cause that combined with others to produce the result. See Lollis , 224 Kan. at 263, 580 P.2d 423 ; Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26, comment c (2010) (harm may have more than one cause, and liability attaches to actor's negligence so long as it is one of the causes); cf. Sharples , 249 Kan. at 297, 816 P.2d 390 (holding trial court correctly concluded there was insufficient causation evidence in medical malpractice action when testimony did not "establish that the [negligence] probably caused or contributed to plaintiff's [injuries]"). While neither Clauser nor Simon expressed their opinions in the language defendants would have us require, i.e., Joel's suicide would not have occurred "but-for" defendants' medical negligence, that phrasing was not required. Their testimony sufficiently established a direct causal link under our caselaw. And since there was expert testimony sufficient to create a jury question on causation, we need not consider Eubanks' argument that the district court erred by concluding as an aside that such testimony may not have even been necessary. ECONOMIC/NONECONOMIC WRONGFUL DEATH DAMAGES The purpose for awarding damages is to make a party whole by restoring that party to the position the party was in prior to the injury. Evenson v. Lilley , 295 Kan. 43, 46, 282 P.3d 610 (2012). To warrant recovery for damages, there must be some reasonable basis for a computation to enable the trier of fact to arrive at an estimate of the amount of the loss. Miller v. Johnson , 295 Kan. 636, 677, 289 P.3d 1098 (2012) ; Cerretti v. Flint Hills Rural Electric Co-op Ass'n , 251 Kan. 347, 360-61, 837 P.2d 330 (1992). To be sure, money damages in a wrongful death lawsuit are an inadequate substitute for a loved one's loss. See Borer v. Am. Airlines, Inc ., 19 Cal. 3d 441, 455, 138 Cal.Rptr. 302, 563 P.2d 858 (1977) (" ' "Money is a poor substitute for the loss of an only child or the pain resulting from serious injuries." ' "); Theama by Bichler v. City of Kenosha, 117 Wis. 2d 508, 523, 344 N.W.2d 513 (1984) (" 'To say that plaintiffs have been "compensated" for their loss is superficial; in reality they have suffered a loss for which they can never be compensated.' "). But money damages are what our system permits. K.S.A. 60-1903 and 60-1904 ; Smith v. Printup , 254 Kan. 315, 334, 866 P.2d 985 (1993) (wrongful death is a statutory creature; K.S.A. 60-1901 et seq. identifies the specific damages recoverable). The jury awarded Joel's parents $820,062, which included $550,000 as economic damages for past and future "[l]oss of attention, care, and loss of a complete family." On appeal, defendants challenged both the "loss of a complete family" descriptor and the classification of the parents' evidence concerning their losses denoted as economic damages. The panel held the verdict form descriptor "loss of a complete family" was legally inappropriate as an economic loss. Burnette , 52 Kan. App. 2d at 769-70, 379 P.3d 372. Plaintiffs did not seek review of this ruling, so that much is decided. See Ullery v. Othick , 304 Kan. 405, 415, 372 P.3d 1135 (2016). But the panel affirmed the $550,000 award nonetheless. Burnette , 52 Kan. App. 2d at 771, 379 P.3d 372. The evidence supporting that award is now before us on review. To resolve defendants' challenge we must consider: (1) what properly comprises economic damages, as opposed to noneconomic damages; (2) what evidence, if any, supported the $550,000 economic loss award upheld by the panel; and (3) whether clear error requires reversal because the "loss of a complete family" descriptor was erroneously included as an economic damage item. These inquiries overlap. That said, we emphasize no one questions that Joel's death resulted in heartbreaking loss on many dimensions. But our task is deciding how the evidence offered at trial to support what remains as the "[l]oss of attention [and] care" claim must be classified under existing law. That analysis is not meant to be insensitive, but the necessary legal inquiry no doubt looks that way. See Morris v. Francisco , 238 Kan. 71, 77, 708 P.2d 498 (1985) (commending medical malpractice victim's "spirit in the face of multiple physical problems that would have daunted many persons," but noting damages "must be looked at objectively and the proper legal standards applied"). Additional Background Plaintiffs concede there was no "loss of services" claim of the type that are more typically understood as economic damages, like lost wages. Defendants argue before this court that the evidence makes it impossible to differentiate the remaining "[l]oss of attention [and] care" line item, from what should fall under the verdict form's noneconomic damages line item entitled "Loss of Society, loss of comfort, or loss of companionship." In their appellate briefing, Joel's parents fully describe what evidence they say supported their economic "[l]oss of attention [and] care" damages. We quote this verbatim because it illuminates the controversy and the analytical difficulties when trying to distinguish the economic claim from the noneconomic "Loss of Society, loss of comfort, or loss of companionship" claim: "Joel's father, Vernon Burnette, testified that Joel took care of the needs of his family. Joel was extremely close to his parents. Joel engaged in numerous activities with his father including sports, target shooting and fishing. Joel taught his father how to fly-fish. Joel spoke to his parents by phone nearly every day. Joel played board games with his parents. His father testified that even after his health went downhill, Joel still tried to be caring and attentive to the needs of his family. At trial, Joel's father discussed a card that Joel had sent to his parents which showed how caring and attentive Joel was to his parents. Joel's father testified that Joel regularly gave similar notes to his parents. "Joel's mother, Gail Burnette, testified that Joel regularly went on trips to the zoo with his parents. He also went on trips to the lake with his parents. She testified that Joel was close to his father and engaged in activities with him such as working on cars. In describing her relationship with Joel, Gail described him as her best friend. She testified that Joel helped his parents see the world through the eyes of a younger generation, and that she valued that. She testified that Joel was attentive to the needs of his parents and was a caring son. His mother testified that even after Joel became ill, he still tried to be attentive to his family's needs. Even after he became sick, Joel continued going to movies and similar activities with her, but he found it difficult with his physical condition. "Joel's sister, Kim Lazano, testified that Joel was close to his father and engaged in many activities with his father. She testified that Joel was also close to his mother and engaged in a variety of activities with her. Joel's girlfriend, Ellen Short, testified that Joel was close to both his parents." The trial testimony paralleled this description. More pointedly, this is the entire evidentiary basis for the challenged monetary award. And plaintiffs' closing argument on the wrongful death claim carried this forward when counsel told the jury: "Let's talk about the wrongful death claim, that is even a little bit tougher to talk about. Some parts are; some parts aren't. There will be a line on the verdict form for funeral expenses. We presented the evidence of what those are. And we ask that you include in your verdict an award for funeral expenses, $20,062. There will be two lines in your verdict form that will be for noneconomic loss to Gail and Vernon. Grief, and I can't-my worries can't do justice to what you heard in this courtroom from Gail and Vernon. So just remember back to what they said. Vernon is 64 years old; Gail is 63 years old. If they lived 20 more years, that is 7300 days, 175,200 hours. The sadness they feel is so deep, and it's so overwhelming that it's impossible to describe in words, but it [came] through. "For noneconomic damages, we ask you to include in your verdict for the past, $50,000 for the years ... since they've lost Joel. And for the future, for the next 19 years, we ask that you include money in your verdict in the amount of $200,000. $250,000 total, not a penny more, but not a penny less. This [is] a reasonable figure in light of the loss that they sustained. .... "What really matters, and where the loss is really felt and where the benefits that they expected to receive from Joel will no longer be there, is the loss of a complete family. The loss of Joel's care, the loss of his attention. That came through during the testimony. And we could have brought you 300 people, everybody who was at the wake to come and tell a story about Joel and how attentive he was to the needs of his parents, how he cared for his parents, and how their family unit was so close and so special. We only brought you a snapshot and it still came through how special that bond is. His note, his note, the last page of his note, 'call these people, mom and dad, they will help you.' To the very end, he's most concerned about mom and dad. And he's caring for mom and dad. "This is a very close family, they're very loving, they're very supportive of each other. Now that Joel is gone, Mr. Burnette said it's like losing an arm. Every day and every hour, you notice it's not there. Gail lost her best friend. She sees him everywhere, but he's gone. The daily phone calls, the trips to the zoo. It's a special time. They'll live without for the next 19 years. That is real loss, real harm, and it's more important than a medical bill. It's more important than lost wages. "If you compensated Gail and Vernon, again, $500 a day for the loss of Joel's care, attention, and loss of a complete family, the number would be [$]3,650,000. If you compensated him $20 an hour, it would be $3,504,000. If you compensated him $250 a day, it would be $185,000. Ten dollars an hour would be $1,752,000. The medical bills, billed amount in the lost wages, again, [$]600. We know these losses are more important. We know we all value them greater. How much more? Four times, four times as much. If you did that, then the number would be $2,400,000. Three times more important, that would be $1,800,000. We ask you to ... include in your verdict for past loss of attention, care, and loss of a complete family, $50,000. And for the next 19 years, when the loss is felt every day, every hour, we ask you to include money in your verdict in the amount of $950,000. " (Emphases added.) Instruction No. 19 explained to the jury the damages that could be awarded on the wrongful death claim: "Economic damages include : "1. Loss of attention, care, and loss of a complete family . "2. Reasonable funeral expenses. "For item 1, above, you should allow an amount that you believe would be equivalent to the benefit plaintiffs ... could reasonably have expected to receive from the continued life of the deceased . "Noneconomic damages include : "1. Mental anguish, suffering, or bereavement. "2. Loss of Society, loss of comfort, or loss of companionship . "For noneconomic damages, there is no unit value and no mathematical formula the court can give you. You should allow an amount that you find to be fair and just under all the facts and circumstances ." (Emphases added.) Defendants objected to Instruction No. 19, claiming "[i]t submits Wentling damages. And we think under ... Wentling and subsequent cases that evidence needs to be presented, that was not presented in this case, to justify Wentling damages, which would be a financial loss beyond a noneconomic loss to the parents ." (Emphasis added.) Defendants were referring to Wentling v. Medical Anesthesia Services, 237 Kan. 503, 512-13, 701 P.2d 939 (1985) (husband proved economic damages for "loss of services, care, and guidance" from wife's death by showing closeness of the marriage, care during husband's illness and assistance with his job, and caring for handicapped child, amounting to at least 98 hours per week of services, care, and guidance). The trial court ruled the evidence by Joel's parents was sufficient to support giving Instruction No. 19. After trial, defendants renewed their objection, focusing on the $550,000 economic award for the "[l]oss of attention, care, and loss of a complete family" line item. They argued they were entitled to judgment as a matter of law because there was not competent evidence to support that award. And in a separate argument, they contended these economic damages were excessive and resulted from passion or prejudice, which warranted a new trial. They asked for a new trial as an alternative to their request for judgment as a matter of law. As a final alternative, they sought remittitur to reduce or eliminate the economic damages award because, in their view, it was not supported by the evidence and shocked the conscience. Before the panel, defendants continued challenging the $550,000 award on two grounds. First, they argued the economic damages component entitled "loss of a complete family" in the line item did not constitute economic damages since it was "indistinguishable from nonpecuniary damages such as loss of society, comfort or companionship." Second, they renewed their argument that the evidence did not support a loss of "services, counsel, guidance, financial support or anything else of an economic nature." They framed the issue as a jury instruction challenge. They did not renew with the panel their alternative arguments that a new trial was appropriate because the verdict was excessive or subject to remittitur. Accepting this as a jury instruction issue, the panel held the insufficient evidence question was argued to the trial court, so it was preserved for appeal. But as to the "loss of a complete family" descriptor, the panel decided defendants did not raise that with the district court, so it was unpreserved and subject to the clear error standard of review. Burnette , 52 Kan. App. 2d at 766, 379 P.3d 372 ; see also K.S.A. 2017 Supp. 60-251(d) (clear error standard applies when "an error in the instructions ... has not been preserved"); In re Thomas , 301 Kan. 841, 846, 348 P.3d 576 (2015) (To decide whether a challenged instruction is clearly erroneous, the court "must assess whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred."). As to the sufficiency challenge, the panel rejected it, noting the evidence established that Joel " 'devoted great care to his parents, ... engaged in numerous and regular activities with his parents, ... was very attentive to the needs of his parents, and ... was very close to his parents.' " Burnette , 52 Kan. App. 2d at 773-74, 379 P.3d 372. In doing so, the panel relied on Wentling , 237 Kan. at 512-13, 701 P.2d 939, as well as Huffman v. Thomas , 26 Kan. App. 2d 685, 693, 994 P.2d 1072 (1999) (holding evidence created jury question whether parents suffered economic damages for "loss of services, loss of attention, loss of filial care, [and] loss of protection" from adult son's death, noting he lived at home, father and mother were disabled, son helped around house, contributed money for household expenses, and parents had loving relationship with son). As to the "loss of a complete family" descriptor, the panel agreed Instruction No. 19 was legally inappropriate as potential economic damages. Burnette , 52 Kan. App. 2d at 769-70, 379 P.3d 372. For this, it relied on Howell v. Calvert , 268 Kan. 698, 707, 1 P.3d 310 (2000) (holding damages for loss of "the value of a continued family relationship" and "[l]oss of enjoyment and entertainment" were "strikingly similar to loss of society, comfort, or companionship," which are noneconomic damages). Even so, the panel affirmed the $550,000 award. Applying the clear error standard, the panel held it was not firmly convinced the jury would have awarded a different amount without the error. The panel reasoned, "[T]he jury awarded $550,000 for 'loss of attention, care and loss of a complete family,' [and] [g]iven that the issue was not itemized separately, we have no means to differentiate between how the jury viewed the three claims or apportioned its award." Burnette , 52 Kan. App. 2d at 770, 379 P.3d 372. It explained that even though the district court should not have instructed on "loss of a complete family" as an economic damage, the $550,000 award was not so large it should be considered excessive or contrary to the evidence. 52 Kan. App. 2d at 771, 379 P.3d 372. To illustrate its difficulty, the panel referenced this passage from Wentling : " 'The clear error standard of review leads in most cases to affirmance of the trial court's determination of damages. Ordinarily, reversal will be warranted only where: (1) there was no evidence at all to establish the element of loss upon which the award in issue was based; or (2) the award was so patently contrary to the evidence as to shock the conscience of the court.' " Wentling , 237 Kan. at 511, 701 P.2d 939. Standard of Review For jury instruction issues, we apply an analytical progression with corresponding standards of review, which we have described as: " '(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)....' [Citation omitted.]" Foster v. Klaumann , 296 Kan. 295, 301-02, 294 P.3d 223 (2013). Discussion Defendants properly preserved their factual appropriateness challenge to the economic loss damage item, i.e., "[l]oss of attention, care, and loss of a complete family," by objecting on that basis. Their legal challenge to the specific language of "loss of a complete family" was raised for the first time on appeal. We must repeat that the panel's holding that it was error to allow the jury to consider evidence of "loss of a complete family" as an economic loss item is settled for our purposes. Given this posture, we consider the "loss of a complete family" item in the instructions as legally inappropriate. The impact from that error will be discussed later. Similarly, defendants do not argue the remaining "[l]oss of attention [and] care" language was a legally inappropriate descriptor for items of economic loss. This leaves us to decide whether the "[l]oss of attention [and] care" descriptor as an economic loss line item was properly submitted to the jury given the evidence, i.e., factually appropriate. We conclude the evidence failed to sufficiently connect the "[l]oss of attention [and] care" claim with any evidence of a demonstrated economic character capable of being valued under Wentling , i.e., based on the jury's common-sense understanding about what a claimed item of actual loss costs in the marketplace. See Wentling , 237 Kan. at 514-15, 701 P.2d 939. We acknowledge loss of care and attention damages are properly recoverable in a wrongful death action, but whether such losses can be characterized as economic or noneconomic turns on the evidence. And this difficulty is particularly acute when the claims are so generalized as they were in this case. A trial court must instruct only on those damages for which there is evidence to base an award. K.S.A. 60-1903(e). K.S.A. 60-1904(a) lists nonexclusive items of recoverable damages: "(1) [m]ental anguish, suffering, or bereavement; (2) loss of society, companionship, comfort or protection; (3) loss of marital care, attention, advice or counsel; (4) loss of filial care or attention; (5) loss of parental care, training, guidance or education; and (6) reasonable funeral expenses for the deceased." The statute does not distinguish between economic and noneconomic losses. Nonetheless, K.S.A. 60-1903 provides that "damages, other than [economic] loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs." Moreover, it requires that a wrongful death verdict "shall be itemized by the trier of fact to reflect the amounts, if any, awarded for: "(1) [economic] damages; "(2) expenses for the care of the deceased caused by the injury; and "(3) [economic] damages other than those itemized under subsection (c)(2)." The pattern jury instructions introduce Kansas juries to the required categorization of damages as economic versus noneconomic. PIK Civ. 4th 171.02 (2016 Supp.) defines these terms: "Economic loss includes loss of time or income and losses other than medical expenses incurred as a result of plaintiff's injuries to date (and the economic loss plaintiff is reasonably expected to incur in the future) [reduced to present value]. "... Noneconomic loss includes pain, suffering, disabilities, disfigurement and any accompanying mental anguish suffered as a result of plaintiff's injuries to date (and the noneconomic loss plaintiff is reasonably expected to suffer in the future) [reduced to present value]." PIK Civ. 4th 171.32 details damages for the wrongful death of a child. It identifies four items as economic: (1) loss of filial care, attention, or protection; (2) loss of earnings the child would have contributed to the parents during the remainder of the child's lifetime; (3) expenses for the deceased child's care caused by the injury; and (4) reasonable funeral expenses. PIK recommends juries be expressly told: "For items 1 and 2 above you should allow an amount that you believe would be equivalent to the benefit plaintiff could reasonably have expected to receive from the continued life of the deceased ." (Emphasis added.) PIK Civ. 4th 171.32 identifies two items as noneconomic damages: (1) mental anguish, suffering, or bereavement; and (2) loss of society, loss of comfort, or loss of companionship. As to these, PIK recommends the jury be further advised: "For noneconomic damages there is no unit value and no mathematical formula the court can give you . You should allow an amount that you find to be fair and just under all the facts and circumstances ." (Emphasis added.) It is noteworthy PIK Civ. 4th 171.32 distinguishes noneconomic damages as having no unit value or mathematical formula and simply admonishes the jury to be "fair and just under all the facts and circumstances." But for economic damages, provable damages, i.e., "expenses," are mentioned for items 3 and 4; and items 1 and 2 are discussed in terms of "equivalent" benefit. This distinguishes economic damages as those that are capable of computation or conversion using some equivalence to a monetary basis or material standard based on the marketplace. See Wentling , 237 Kan. at 514-15, 701 P.2d 939. This stands in contrast to noneconomic damages, which must be understood to require valuing based on the plaintiff's unique and personal suffering from a loss that cannot be replaced. Parents suing for the wrongful death of an adult child are not foreclosed from claiming economic loss. "Pecuniary loss for the parent of an adult child is defined as the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that the parents would, in reasonable probability, have received from their child had the child lived." (Emphasis added.) 1 Stein on Personal Injury Damages Treatise § 3:37 (3d ed. 2018). And our caselaw demonstrates that economic value-even if a precise value is not readily ascertainable-is the touchstone for distinguishing between economic and noneconomic losses. In short, economic losses are the "loss of money or of something by which money or something of money value may be acquired." McCart v. Muir , 230 Kan. 618, 626, 641 P.2d 384 (1982). Even so, our court has emphasized that losses need not be proven with mathematical precision through experts. Wentling , 237 Kan. at 508, 701 P.2d 939 (rejecting argument that wrongful death economic damages evidence must provide "monetary figures sufficient to calculate both the value of the loss and proposed compensation"). Economic "loss or damages in a wrongful death case should be equivalent to those [economic] benefits or compensation that reasonably could have been expected to have resulted from the continued life of the deceased." McCart , 230 Kan. at 626, 641 P.2d 384. "In some states there is a presumption of [economic] injury, especially those limiting recovery to [economic] losses, in the loss of a child's society, which presumption applies also to the death of an adult child." 1 Stein on Personal Injury Damages Treatise § 3:37 (3d ed. 2018) (citing Bullard v. Barnes , 102 Ill. 2d 505, 517, 82 Ill.Dec. 448, 468 N.E.2d 1228 [1984], and Ballweg v. Springfield , 114 Ill. 2d 107, 102 Ill.Dec. 360, 499 N.E.2d 1373 [1986] ). But such a presumption is inconsistent with Kansas caselaw. See Howell , 268 Kan. at 707, 1 P.3d 310 (holding "[l]oss of the value of a continued family relationship" was not economic damage since the item of loss was "strikingly similar to loss of society, comfort or companionship-[noneconomic] damages"). In other words, the economic damages and their value claimed by Joel's parents cannot be presumed-they must be proven and be capable of being valued. In Wentling , the court affirmed an economic damage award based on evidence of a homemaker's services, care, and guidance. Notably, an expert was unable to place a specific dollar figure on some loss items but testified the deceased's services-such as moral, social, and educational training-"have real economic value insofar as they contribute to a person's welfare and ability to mature, interact and obtain productive employment in society." (Emphasis added.) Wentling , 237 Kan. at 513, 701 P.2d 939. And the husband provided testimony on "the extent of services, attention, marital care, advice and protection he was receiving from his wife, as well as the parental" services rendered and lost. 237 Kan. at 513, 701 P.2d 939. In particular, the Wentling court highlighted how the husband testified "in detail concerning the couple's closeness in their marriage, [decedent's] care during his illnesses , and even her on-site assistance at some of his construction jobs . Although [she] was naturally upset with her first son's handicap, she and her husband determined to keep the boy at home rather than place him in an institution or foster home . [She] appears to have been the moving force in her first son's life. She joined support groups, read extensively for information on Down's syndrome, spent time with the physical therapist for instructions on how to work with him, and attended to all the child's medical problems. [Her husband] testified [she] spent at least 98 hours per week providing services, care and guidance ." ( Emphases added.) 237 Kan. at 512-13, 701 P.2d 939. All parties in Wentling conceded losses for "services, care and guidance" were "valuable per se and [economic] in nature." 237 Kan. at 514, 701 P.2d 939. Yet even though no actual dollar evidence of value or estimated value was presented, the court held it was within the jury's province to determine those losses' monetary value. 237 Kan. at 514, 701 P.2d 939. The court reasoned "[t]he mere fact these items of loss, having acknowledged economic value, are incapable of exact economic valuation does not mean plaintiff should be denied recovery. The jury was capable of exercising its collective experience and judgment in this matter ." ( Emphasis added.) 237 Kan. at 514, 701 P.2d 939. Put another way, the jurors were not being asked to speculate, or to simply be "fair and just under all the facts and circumstances" as they would be when valuing noneconomic damages. This court has said of pain and suffering, which is a noneconomic loss: " 'Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.' " Kansas Malpractice Victims Coalition v. Bell , 243 Kan. 333, 346, 757 P.2d 251 (1988), disapproved of on other grounds by Bair v. Peck , 248 Kan. 824, 811 P.2d 1176 (1991). The panel analogized the evidence presented by Joel's parents for loss of attention and care to the evidence discussed in Huffman v. Thomas , 26 Kan. App. 2d 685, 994 P.2d 1072 (1999). Burnette , 52 Kan. App. 2d at 773, 379 P.3d 372. In Huffman , a Court of Appeals panel held there was sufficient evidence to support an economic damages award submitted to the jury in five separate categories: "loss of services, loss of attention, loss of filial care, loss of protection, and funeral expenses." Huffman , 26 Kan. App. 2d at 693, 994 P.2d 1072. The jury was instructed the "amount awarded ... should be equivalent to the monetary benefits or compensation ... [plaintiffs] could have expected to receive ." ( Emphasis added.) 26 Kan. App. 2d at 693, 994 P.2d 1072. The Huffman panel noted: "[Decedent] was 22 years old. He lived at home with his parents. ... [H]is father ... is disabled and unable to work. ... [H]is mother ... is a double amputee. [The father] testified that [decedent] helped around the house and the yard, trimming and cutting down dead trees. [Decedent] also remodeled the family bathroom. [He] helped his mother by doing laundry and other household chores. He also helped her with heavy lifting and other tasks that [she] was unable to perform, and he contributed money for household expenses. "Both [plaintiffs] testified about their loving relationship with [decedent]. The family spent a lot of time together in the evenings, watching basketball and talking. [Plaintiffs] presented testimony from friends and neighbors who knew [decedent]. [One] described [decedent] as a willing, friendly, and kind person[, and] ... a 'really caring person' who helped out around the house." 26 Kan. App. 2d at 692-93, 994 P.2d 1072. After noting the evidence regarding specific services or contributions made around the house in Huffman , the Burnette panel reasoned, "[W]ith respect to the claims for loss of attention and care, this court noted [in Huffman ] the evidence of 'the companionship' the son provided. Specifically, this court pointed to evidence supporting 'the loving relationship' between the parents and their child, that '[t]he family spent a lot of time together,' and that the son was a 'caring person.' 26 Kan. App. 2d at 693 [994 P.2d 1072]." Burnette , 52 Kan. App. 2d at 773, 379 P.3d 372. The panel's reading of Huffman does not withstand scrutiny. Nothing in Huffman suggests the panel's analysis was specifically directed at just the claims for loss of attention and care. Rather, the Huffman panel only considered generally the defendant's arguments that the Huffman plaintiffs had "failed to establish the nature and extent of the [economic] damages they sustained" and that the amount awarded "was not supported by the evidence." 26 Kan. App. 2d at 691, 693, 994 P.2d 1072. Huffman does not stand for the proposition that evidence of a loving parent-child relationship, a caring disposition, or evidence of time spent together as a family are enough to prove economic loss without something more. The Huffman panel's evidence recitation could as easily be explained as showing the jury was permitted to conclude a strong family relationship was relevant to demonstrating a probability of future loss. See 1 Stein on Personal Injury Damages Treatise § 3:37 (3d ed. 2018) ("The test of the right to recover is whether the fact adduced indicates a probable willingness by the decedent and his or her ability to continue contributions to the beneficiary in the future."). But nothing in the evidence about Joel's close relationship and loving companionship with his parents, his attentiveness, or his caring nature propelled the loss of care and attention claim into the realm of economic loss-something understood as having equivalence to a monetary basis or material standard in the marketplace. Though we do not intend to diminish this loss, there was no evidence establishing more than a speculative or subjective basis for the jury to conclude Joel would have contributed money or economically valuable services to them. Indeed, no claim for loss services was made. And this was tellingly demonstrated by plaintiffs' closing argument that merely offered the jury wide ranging hourly or per diem amounts as the supposed guide for valuing the then-claimed "[l]oss of attention, care, and loss of a complete family" line item; or suggested damages could be based on how much "more important" the jury viewed the Burnettes' losses than Joel's medical expenses or lost wages. Reduced to its essence, plaintiffs simply asked the jury to be fair and just when considering this component of their claimed economic losses, which is the same valuation methodology used for noneconomic damages. The evidence provided nothing on which a jury could base an economic valuation-even under Wentling 's presumption that juries are capable of converting economic losses into their monetary equivalents on the basis of their own experience and knowledge. Wentling , 237 Kan. 503, Syl. ¶ 1, 701 P.2d 939. The economic damages in Wentling were supported by evidence about actual services lost, which were understood to be of the type capable of being purchased, e.g., providing in-home, rather than out-of-home, care for a disabled child; or things that would have otherwise economically benefitted plaintiffs, e.g., guidance that would have contributed to the child's ability to obtain future employment. But there was no loss of services claim by Joel's parents. And the evidence presented about actual losses from Joel's death did not establish-or even reference-any economic dimension. The jury had nothing to associate the loss of care and attention claim to some reasonable basis for monetary computation or equivalence to enable it to arrive at an economic loss recovery. Given this, it becomes readily apparent this item of loss was indistinguishable from those for which the jury was permitted to award noneconomic damages under the jury instruction defining those to include "[l]oss of society, loss of comfort, or loss of companionship." And the jury gave Joel's parents all they asked for in noneconomic damages. Accordingly, Instruction No. 19 was factually inappropriate in that it permitted the jury to award economic damages for loss of care and attention without evidentiary support and it was error under these facts to include this item as a separate verdict form entry apart from nonpecuniary damages. Cf. Leiker v. Gafford , 245 Kan. 325, 340, 778 P.2d 823 (1989) (holding loss of enjoyment of life is not an independent category of nonpecuniary damages and, therefore, separate instruction or separate verdict form entry on the item was error), overruled on other grounds by Martindale v. Tenny, 250 Kan. 621, 829 P.2d 561 (1992). Having concluded the instruction was both legally inappropriate because of the "loss of a complete family" descriptor based on the panel's decision and factually inappropriate because of the evidence presented, we must also conclude these errors were not harmless. Admittedly, this analysis is complicated because we are facing two errors, only one of which is preserved, making the standards of review different. But because these errors together mean it was error to submit this as an item of economic loss, the misclassification cannot withstand any test for harmlessness. In short, K.S.A. 60-1903(c) requires a verdict to be itemized to reflect noneconomic and economic damages. Instruction No. 19 inappropriately identified "loss of a complete family" as economic damages, and the evidence at trial did not support the remaining instruction classifying the "[l]oss of attention [and] care" claim as an economic one. Absent these jury instruction errors, we conclude the jury would not have awarded $550,000 as economic damages under the line items for past and future "[l]oss of attention, care, and loss of a complete family." It would not have had the option to do so. These errors were not harmless. The appropriate remedy is to reverse and vacate the $550,000 award only as to these losses because the jury lacked an evidentiary basis to award damages for this line item. See Wackman v. Rubsamen , 602 F.3d 391, 408 (5th Cir. 2010) (reversing portion of the jury's damage award because plaintiffs failed to produce evidence to support any damages for the challenged item); Rosario v. City of Union City Police Dept ., 263 F.Supp.2d 874 (D. N.J. 2003) (vacating wrongful death damages under scheme that permitted recovery only for pecuniary loss when evidence failed to supply jury with adequate basis to value the claimed losses); Carrano v. Yale-New Haven Hosp. , 279 Conn. 622, 653, 661, 904 A.2d 149 (2006) (holding evidence insufficient to permit jury to find plaintiff suffered economic loss due to loss of decedent's disability income when evidence failed to establish such income exceeded decedent's expenses, reversing judgment, and remanding for new judgment in amount excluding economic loss); Horner v. Sani-Top, Inc. , 143 Idaho 230, 237, 141 P.3d 1099 (2006) (holding evidence insufficient to support award for loss of financial support from decedent, and trial court erred denying motion to alter or amend judgment to eliminate the award). The district court's judgment with respect to liability is affirmed. Its judgment with respect to the $550,000 challenged economic damages is reversed and vacated. The case is remanded for judgment to be entered consistent with this decision.

Per Curiam: On December 17, 2015, the State filed petitions in the Dickinson County District Court seeking findings that J.P.P and J.J.P. were children in need of care. The district court adjudicated those children as in need of care on February 2, 2016. A petition asking for the same finding with respect to J.P. was filed on June 8, 2016, and a week later the district court placed J.P. in temporary custody of the Department for Children and Families (DCF). J.P., however, was not adjudicated as a child in need of care until August 15, 2017. In November 2017, the district court entered orders terminating the parental rights of the mother, M.P., to all three children. She timely appeals those orders. This is the second time we have visited this appeal. After review of the briefs and the record, we remanded this case to the district court for more specific findings in support of its conclusions of law. The district court promptly prepared and filed its revised findings of fact and the parties, after considering the revised findings, waived the opportunity we had offered for supplemental briefing. We now take up the merits. M.P. presents three issues for our review: (1) There was not clear and convincing evidence supporting the district court's finding that she was unfit; (2) the district court erred in finding that termination of her rights was in the children's best interest; and (3) the district court erred in finding that public agencies made reasonable efforts to rehabilitate the family. Because we find no error by the district court, we affirm. FACTS AND PROCEDURAL BACKGROUND Drawn from the district court's revised findings and supplemented by the record, these facts provide the basis for our evaluation of the district court's conclusions. On December 16, 2015, case workers from DCF called law enforcement to a residence in Abilene because of concerns about the environment in which children in the home were living. The DCF representatives told the officer they had been at the home on December 8, 2015, saw the condition of the residence, and gave the family a week to bring the home up to standards acceptable for children to live there. As the officer walked through the residence, he saw dog feces and garbage inside and experienced an odor that forced him outside several times during the walk-through. Living in the house at that time were: M.P. with her children J.P.P. and J.J.P.; M.P.'s mother and aunt; and M.P.'s sister with her two minor children. The State took custody of J.P.P. and J.J.P. based on the conditions of the home and filed a petition in the Dickinson County District Court on December 17, 2015, asking that J.P.P. and J.J.P. be adjudicated as children in need of care. The district court held a temporary custody hearing and ordered that J.P.P. and J.J.P. remain in State custody with out-of-home placement. Near the end of December, M.P. entered into a case plan with Saint Francis Community Services (SFCS), the private entity contracted by DCF for case planning, management, and supervision. The case plan goal was reintegration of the children with M.P., with numerous tasks for M.P. to accomplish toward that end. M.P. told SFCS that the family had created a chore chart to help ensure regular cleaning for a safe living environment for the children. M.P. worked as a dishwasher at a restaurant but at minimum wage with only minimal hours. On February 2, 2016, M.P. submitted a no-contest statement in response to the allegations in the State's petition, providing the basis for adjudication of J.P.P. and J.J.P. as children in need of care. An inspection of the home a few weeks later showed cleanliness improved from the condition in December and clutter had been reduced. The improvement was mitigated, however, by an infestation of cockroaches. Nonetheless, in recognition of the progress, the district court lifted an earlier prohibition on visits in the home. As a means of trying to improve M.P.'s parenting skills, SFCS decided to provide the Strengthening Families program during M.P.'s visits. SFCS also agreed to bear half the cost for Orkin to provide extermination services for the cockroach problem. By the end of March 2016, M.P. had also completed the first of two sessions for the parenting psychological evaluation that was a task on her case plan. The district court noted that John H. Fajen, Ph.D., the clinical psychologist who performed the evaluation, found M.P. may always need some family or government subsidy program to live on her own with her children, and she may or may not ever be able to function totally on her own as a single individual or as a single parent alone with her children. Dr. Fajen considered that M.P. needed job training and commented that she understood the restaurant job would not provide a sufficient source of support for her and her children, meaning other employment would need to be found. On June 8, 2016, M.P. gave birth to a full-term baby at her home. M.P. represented she was unaware of the pregnancy. Law enforcement were contacted and assisted with the birth at the residence, after which M.P. and the baby, J.P., were taken to a hospital. Given the circumstances, M.P. had obtained no prenatal care and was not prepared for the introduction of a newborn into the home. The State filed a child in need of care petition concerning J.P. on the day of the child's birth and the district court, also on the same day, ordered J.P. into the custody of DCF. Staff at the hospital expressed concerns that M.P. did not seem able to understand the concepts she was being shown, requiring continual repetition. At a temporary custody hearing for J.P. a week later, the district court continued custody with DCF and, along with conditions to be followed by M.P., ordered SFCS to arrange supervised visits. Within a month after J.P.'s birth, SFCS observed a decline in M.P.'s parenting skills, potentially attributable to fatigue, and saw the outside of the residence deteriorate, with trash and dog feces that attracted a significant number of flies. During the supervised visits, SFCS provided instruction to M.P. about how to interact with the children, how to feed them nutritious meals, and how to clean them. During a visit with J.P., the newborn, about three weeks after the birth, M.P. was feeding J.P. J.P. began to choke and M.P. did not react to the baby's situation. SFCS staff needed to tell M.P. to stop feeding J.P., prop her up, and pat her on the back so she could stop choking and breathe. SFCS staff also observed that M.P. did not appear to know how to change J.P.'s diaper and required instruction to reclean the infant to thoroughly remove all feces. During a case plan meeting at the end of June 2016, M.P. was directed to find other housing, since her mother had in the past been substantiated for neglect and DCF policy prohibited placing children in a home where her mother lived. M.P. was also told to contact a vocational rehabilitation office to obtain services. In August 2017 the court adjudicated J.P. a child in need of care. Near the end of September, the district court made findings of continuing struggles by M.P., whose parenting skills appeared to have declined further, as shown by deferring parenting tasks to other adults and failing to keep her children appropriately clean, considering their activities. The chore chart had been taken down and resistance surfaced to removal of clutter and garbage around the residence, which connected with the need to have monthly exterminator visits. At a review hearing with the district court on November 15, 2016, SFCS first stated the opinion that reintegration with M.P. was not possible. The district magistrate found that M.P. was complying with some aspects of her case plan, but "was still not maintaining a clean and stable home for the minor children." In addition to the unsanitary conditions at the home, M.P. had not applied for vocational training or worked toward obtaining public housing. By January 2017, SFCS reported to the court that M.P.'s parenting skills were suffering further, as she relied on others to fill that role for her children. SFCS expressed further doubt to the court that M.P. could meet the basic needs of the children-and probably her own needs-even if she were to gain independent housing, away from family support. At some point in April 2017, M.P. moved to Salina to live with her boyfriend and other friends. On or about June 5, 2017, M.P. contacted SFCS and told them the children's plan must be faxed to the housing authority that day or she would lose her spot. The district court found that since the plan was not faxed within the 12-minute period remaining, M.P. did, in fact, lose her spot. Although SFCS gave her a copy of the case plan and urged her to reapply, she moved back home with her mother, aunt, and sister, On July 20, 2017 the district magistrate judge heard evidence on the continued viability of reintegration of the three children with M.P. After hearing testimony on behalf of both the State and M.P., including M.P.'s own testimony, the court found reintegration with M.P. was no longer viable and directed the State to file a motion for termination of M.P.'s parental rights. The district court judge heard testimony and argument on that motion on October 2, 2017, and entered an order terminating M.P.'s parental rights to J.P.P., J.J.P., and J.P. We include additional facts from the record as relevant to our review. ANALYSIS K.S.A. 2017 Supp. 38-2269(a) establishes the decisions to be made by a district court in considering a motion to terminate the rights of a parent: "When the child has been adjudicated to be a child in need of care, the court may terminate parental rights or appoint a permanent custodian when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future." That section also lists nonexclusive factors the court must consider in every case when evaluating unfitness, with an additional list to be considered when a child is not in the parent's physical custody. K.S.A. 2017 Supp. 38-2269(b) and (c). Any one of the factors in K.S.A. 2017 Supp. 38-2269(b) or (c) may, on its own, be sufficient to establish grounds for termination of parental rights. K.S.A. 2017 Supp. 38-2269(f). After finding a parent is unfit, "the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child," giving primary consideration to the physical, mental, and emotional needs of the child. K.S.A. 2017 Supp. 38-2269(g)(1). The district court found M.P. was unfit in part due to "her mental deficiency" but "also due to her lack of effort to adjust to conditions, her failure to assure care of the children in the parent's home when able to do so, and her failure to carry out a reasonable plan approved by the court." See K.S.A. 38-2269(b)(1), (b)(8), (c)(1), and (c)(3). Standard of Review "When this court reviews a district court's termination of parental rights, we consider whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable, i.e. by clear and convincing evidence, that the parent's rights should be terminated. [Citation omitted.]" In re K.W. , 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y. , 286 Kan. 686, 705, 187 P.3d 594 (2008). The evidence supported the district court's finding of unfitness The evidence The record begins with J.P.P. and J.J.P. being taken into custody because of filthy living conditions that included a stench sufficiently strong that the law enforcement officer who was there for the welfare check needed to step outside several times. Both photos in the record and the officer's affidavit establish the adults and children in the house lived among garbage, animal feces, and clutter. M.P. had been involved with DCF twice with her oldest child for unsafe living conditions in other homes. Both cases had been assigned for Family Preservation Services. Even after DCF took custody of J.J.P. and J.P.P. in these cases, M.P.-living with her family-struggled for nearly two years to maintain a clean and safe home, with only a brief period of improvement. Two months into the case, SFCS case managers reported M.P.'s home was infested with cockroaches. For a time, M.P. and the other adults in her home worked to reduce the clutter while SFCS set up and helped pay for pest control services. M.P. had a chore chart for a while as part of an effort to assign regular cleaning duties. Then, during the next several months, the children visited M.P. at her home but the conditions of the home deteriorated. Over time, pet feces outside attracted flies that entered the home. SFCS reported to the court that after a lapse in services because M.P. and her family had not contacted Orkin to set up planned bimonthly treatments, Orkin had returned. Orkin advised SFCS to move the treatments to monthly because of clutter and trash in the home and surroundings that prevented thorough treatment. In November 2016, SFCS reported to the court that the agency had been providing M.P. with specific instructions on how to clean the home, address safety concerns, give the children nutritional meals, and otherwise meet the children's fundamental needs, but there had been "continued minimal progress in all areas." SFCS reported the children were playing and walking in animal feces in their play area outside. At the termination hearing, Mother testified the home where she was living still was not a good place for her children to live. Evidence submitted at the termination hearing showed the clutter and trash endangered the children and sharp objects and choking hazards were left lying around the home during visits. In one instance, J.J.P. found a sharp knife lying around and attempted to cut open a package with it. M.P. did not intervene to stop him and, as he tried to open the package, the knife jerked backwards toward J.P.P.'s head. SFCS staff intervened since M.P. was not taking action on the safety concern. The ongoing clutter and trash also provided a breeding ground for mice. At one point, Orkin identified an infestation of mice mites, which can be the source of bites. The ongoing failure to deal consistently with the clutter and trash in and around the home proved to be a challenge to effective control of the pests. Except for three months in 2017, M.P. lived in Abilene with her other family members for the duration of these cases. In the spring of 2017, M.P. moved to Salina and lived at her boyfriend's house. The children and their foster family had moved to Salina previously. M.P. applied for housing with Salina's housing authority. She testified she was at the top of the placement list, but the Salina housing authority needed a copy of her case plan for the children. M.P. said she lost her copy when she moved to Salina and reached out to multiple SFCS staff members for nearly a week through phone calls and text messages but could not get a response to her calls. SFCS explained that an extended absence from the office by one SFCS worker and the failure of others to close the gaps contributed to the missed contact. SFCS staff also reported to the district court they had received a text from M.P. on June 5, 2017, at 4:48 p.m., stating the housing authority needed the case plan by 5:00 p.m. or she would lose her place on the list and have to reapply. As a result of being in a meeting when the request was made, the case plan was not provided in that 12-minute window. SFCS provided M.P. with a copy of the plan at a meeting on June 9 and urged her to reapply for housing. M.P. soon returned to her family's home in Abilene. She said she left her boyfriend's home because she did not believe the environment was safe for her or the children. M.P. did reapply with Salina's housing authority shortly after returning to Abilene. However, Saline County residents have preferred placement over non-Saline county residents, making it unlikely that M.P., as a nonresident, would be offered a place. M.P. had the option of applying for temporary housing in Salina where she could stay until the housing authority found her a residence but chose not to do so. She also elected not to apply with the housing authority in Abilene. The district court findings Of the four statutory considerations upon which the district court based its finding of unfitness, the one that is least supported by the evidence-or for which there is the least stated support from the record-is the one upon which the court "partly" relied, K.S.A. 2017 Supp. 38-2269(b)(1), which considers a "mental deficiency ... of such duration or nature as to render the parent unable to care for the ongoing physical, mental and emotional needs of the child." However, after hearing the evidence, the district court specifically found SFCS "provided support and instruction through their strengthening family program in regard to how to care for the minor children," and M.P. appeared to learn but then regressed when back around the other adults in her family. Hospital staff were concerned about M.P.'s apparent inability to learn the concepts for care of her newborn, J.P., despite repetition. Although M.P. contends more should have been done to accommodate her disability, the record does not support an argument that it was disregarded. In contrast, however, we find the evidence supporting the other three grounds upon which the district court relied. K.S.A. 2017 Supp. 38-2269(b)(8), (c)(1), and (c)(3), viewed in the light most favorable to the State, is such that a rational fact-finder could have found it to be clear and convincing proof that M.P.'s parental rights should be terminated. By the time of the hearing on the State's motion to terminate, the two older children had been out of the home for 21 months and the youngest, since her birth almost 16 months prior to the hearing. The principal cause for the initial removal of the children was the trash-strewn and unsanitary condition of the home; at the termination hearing M.P. acknowledged that, although the mice and insect problems had improved, the house was not a good place for the children to live at that time and she had no alternative living arrangements. The record does show a period of improvement in the months after removal of the children from the residence M.P. shared with her family members. But it also shows, over time, a reversion to levels of trash, clutter, and animal feces in play or living areas that made pest control difficult and created breeding opportunities for flies, mice, and associated pests. The district court also found the oldest child had been the subject of two previous cases in which Family Preservation services were offered, both of which involved unhealthy living conditions. The district court found that "[t]he significant event in this case that turned a possible positive reintegration into an almost impossible situation occurred on June 8, 2016," the date on which M.P. unexpectedly gave birth to J.P., a full-term daughter, at her home. The court found that during supervised visits SFCS instructed M.P. on how to interact with J.P.P. and J.J.P. and pay attention to them, and also instructed her on how to clean the children and feed them nutritious meals. Nonetheless, the district court found M.P. failed to demonstrate an ability to attend to their most fundamental needs, shown by M.P.'s inability to properly clean and diaper J.P., although she was her third child, and she did not respond to J.P.'s choking during a feeding, requiring intervention by the SFCS worker. The record also shows M.P.'s failure to appreciate the danger of J.J.P. attempting to use a sharp knife, a situation exacerbated by the proximity of his sibling. Once again, SFCS intervened for safety. The district court found that M.P.'s demonstrated abilities with the children diminished as she deferred to the other adults in her home to carry out parenting tasks. M.P. maintains that if SFCS had responded timely to her request for a copy of her case plan to be sent to the housing authority in Salina, she could have obtained her own residence for her and the children. In isolation, the failure of the DCF contractor to respond to such a simple request over the course of a few days is without excuse. And, SFCS admits a failure in their case coverage. In context, however, the record presents a more complex view. The district court found that SFCS had urged M.P. to apply for housing for some time, especially in light of the inability under DCF rules to place the children in a home with the maternal grandmother, who had been substantiated for neglect. When M.P.'s text request was finally received, 12 minutes remained before the deadline. SFCS immediately urged her to reapply and provided the case plan to her, but M.P. instead moved back into the family residence in Abilene. The district court specifically found the failure by SFCS to communicate as it should have in response to M.P.'s request was "unsatisfactory," but the court did not find it to be a pivotal event. After considering the evidence, the court found "if [M.P.] were to find another residence ... the Court does not believe that she is able to live on her own and take care of herself, much less provide for three ... minor children." The district court cited to the facts that SFCS provided the case plan and encouraged her to reapply, "but [M.P.'s] plans were already made and ... she was moving back home." And the court also pointed to the effort by SFCS to get M.P. to live in temporary housing in Salina so she could reapply for housing there while SFCS set her up to parent the children by herself in another living environment. M.P. declined that suggestion and told the court she "didn't know how it would look on [her] case to be living in the homeless shelter." Viewed in the light most favorable to the State, the apparent inability of M.P., over the almost two-year course of the case, to sustain a minimally clean and sanitary home and to appreciate and provide for the care and safety needs of her children, constituted a basis upon which a rational fact-finder could find it highly probable that M.P. was unfit by conduct or condition that rendered her unable to care properly for her children. The persistence of the problem, extending back through prior Family Preservation efforts, clearly supports a finding that the conduct or condition was unlikely to change in the foreseeable future. Upon making a finding of unfitness of the parent, "the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child." K.S.A. 2017 Supp. 38-2269(g)(1). In making such a decision, the court shall give primary consideration to the physical, mental, and emotional needs of the child. K.S.A. 2017 Supp. 38-2269(g)(1). The district court is in the best position to make findings on the best interests of the children; its judgment will not be disturbed absent an abuse of discretion. In re K.P. , 44 Kan. App. 2d 316, 322, 235 P.3d 1255 (2010). "A district court abuses its discretion when no reasonable person would agree with its decision or the decision is based on a legal or factual error." In re R.S. , 50 Kan. App. 2d 1105, Syl. ¶ 2, 336 P.3d 903 (2014). In its conclusion, the district court found termination was in the best interest of the children, because "the minor children of [M.P.] deserve a stable, safe environment, and that since July 29, 2011, when Family Preservation was first involved with [J.J.P.], that it is obvious over these six ... years, that M.P. is unable to provide a stable home environment for the minor children." Based on the evidence cited by the district court, we certainly cannot say no reasonable person would agree with the conclusion that it was in the best interest of the children to seek permanence elsewhere. The evidence showed little to no such safety and stability in their maternal home throughout the lives of these children. M.P.'s argument that there was not clear and convincing evidence supporting the district court's finding that she was unfit is not persuasive when reviewing the record in light of the applicable standard of review. And, while M.P. claims there was no evidence showing the children were physically harmed by the condition of her home or by her parenting when they were in her care, and there was "no professional testimony at the termination hearing that M.P.'s conduct or condition was unlikely to change in the foreseeable future," the district court's findings are supported by the clear and convincing evidence that was presented. It is not our role to reassess the weight given to the evidence presented to the district court, but to measure that court's findings and conclusions against the standard of review. Affirmed.

Powell, J.: In this consolidated appeal, the State of Kansas seeks interlocutory review of two separate district court orders suppressing evidence seized following two separate vehicle searches of cars driven by Amanda Sue Hockmuth and Amber Renee Cline. In Hockmuth's case, the district court granted the motion to suppress because it found that the officers lacked a reasonable and articulable suspicion to conduct a dog sniff during the traffic stop. In Cline's case, the district court granted the motion to suppress without making any findings at all. The State argues the district court should not have suppressed the evidence because the dog sniffs did not unreasonably prolong the traffic stops. Unfortunately, because the district court failed to make sufficient factual and legal findings to allow for meaningful appellate review of the propriety of its suppression orders, we vacate its orders and remand both cases for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND A. State v. Hockmuth In January 2017, the State charged Hockmuth with one count of misdemeanor possession of marijuana and one count of driving without headlamps when required. Prior to trial, Hockmuth filed a motion to suppress with the district court, arguing the officers unreasonably extended the scope and duration of the traffic stop by requesting a K-9 unit to perform a dog sniff on her vehicle without any reasonable suspicion of illegal criminal activity. Instead of requesting an evidentiary hearing, the parties stipulated to the admission of the videotape of the stop, the police reports of the officers involved, what appears to be the arrest or charging affidavit, and the following facts: "1. Sergeant James Bachar and Corporal Shane Becker are employed by the Great Bend Police Department. "2. Bachar and Becker are properly trained and certified as law enforcement officers. "3. On October 1, 2015, Bachar was patrolling the 1200 Block of Main Street in Great Bend, Kansas, 67530, which is located in Barton County. "4. At approximately 11:55 p.m., Bachar observed a vehicle operating with no headlights or taillights illuminated. "5. The defendant was the driver and only occupant of the vehicle. "6. At 11:58 p.m., Bachar initiated a stop of the vehicle. "7. Bachar request[ed] and received the defendant's driver's license and proof of insurance. "8. Bachar requested that Dispatch run a computer check on the defendant and her driver's license. "9. Bachar began writing a citation for the defendant's traffic violation. "10. Bachar knew the defendant was a user of illegal narcotics. "11. Bachar also had reliable information that the defendant was involved with persons who distribute methamphetamine. "12. At the time of the stop, no other facts were known to the officer that would give rise to the belief that the defendant had illegal narcotics in her car at that time. "13. At 11:58 p.m., Bachar requested via radio for Becker and his Police Service Dog, Lazar, to respond to his location. "14. Becker and Lazar arrived at 12:00 a.m. "15. Bachar had not yet completed the citation at this time. "16. Becker requested that the defendant exit the vehicle for safety reasons, while Bachar continued to fill out the citation. "17. Becker and Lazar[ ] are properly trained and certified to perform drug detection sniffs. "18. At 12:03 a.m., Becker walked Lazar around the vehicle for a sniff. "19. At 12:03 a.m., Lazar alerted to the odor of a controlled substance inside the vehicle. "20. According to officer body camera footage, the dog sniff lasted approximately 35 seconds. "21. At the time that Lazar alerted, Bachar had just finished discussing with the defendant, at her [initiation], the lights on the vehicle and her reason for not realizing that they were off. "22. Bachar also informed the defendant that her driver's side mirror needed to be fixed because it was not in compliance with the law. "23. At the time that Lazar alerted, Bachar had not yet explained or had the defendant sign the citation. "24. The officers searched the vehicle." The district court granted Hockmuth's motion to suppress in a very brief written order, finding "that Great Bend Police Department Officers involved in this matter did not have sufficient articulable suspicion to justify calling for the involvement of a drug sniffing dog. The Court finds that mere knowledge that [Hockmuth] had been in the past into illegal narcotics and that the officers believed they had reliable information that she was involved with other persons who distributed methamphetamine was insufficient." The district court made no other factual or legal findings in its order. B. State v. Cline In February 2017, the State charged Cline with two misdemeanor counts of possession of controlled substances, one count of possession of drug paraphernalia, and one count of operating her vehicle with a defective registration lamp. Prior to trial, Cline filed a motion to suppress, arguing that the traffic stop-conducted by the same two officers who stopped/searched Hockmuth's vehicle-was merely a pretext to instead conduct a drug investigation of Cline. At the evidentiary hearing on Cline's motion, Becker testified that at 10:23 p.m. on August 23, 2016, he saw a vehicle driving without a working tag light in Barton County, Kansas. Becker pulled over the vehicle several blocks later and recognized the driver as Cline. Becker testified that he had had past dealings with Cline that indicated she was a user of marijuana or illegal narcotics. However, Becker admitted that he had no idea whether Cline had illegal narcotics in her vehicle that night. After initiating the traffic stop, Becker informed Cline of his reason for stopping her and requested her identification and proof of insurance. Becker testified that while he was talking with Cline, Bachar arrived at the scene a few minutes later. Although Becker stated that he had not requested Bachar to come to the scene, officers tended to back up each other during night-time traffic stops for officer safety. Becker asked Bachar to complete a check on Cline's driver's license and to begin filling out a warning citation for the tag light violation. Bachar testified that he had not completed the driver's license check on Cline and had not finished writing the citation when Becker conducted the dog sniff of Cline's car. The first video of the traffic stop included in the record on appeal does not show Becker's initial interaction with Cline. Rather, it appears to show Bachar arriving at the scene and does not contain any audio until one minute into the recording. Between 1:07 and 1:30 minutes from the beginning of the recording, the audio recorded Bachar requesting from dispatch a driver's license check on Cline. The camera is then moved to show Cline's stopped car. Around 1:52 to 2:30 minutes, the video shows Becker walking Lazar, the drug dog, around Cline's car. Becker testified that Lazar alerted to the presence of a controlled substance at the driver's side door. Bachar testified that he had not completed the citation when Lazar indicated. Between 2:54 to 3:15 minutes, the audio of the video recording reveals that dispatch contacted Bachar with the results of the driver's license check. Becker testified that he then asked Cline to exit her car so that he could conduct a search. Becker testified that the subsequent vehicle search uncovered a small pipe with a green leafy vegetation on it and two green pills. Becker stated that the green leafy vegetation field tested positive for marijuana and that a later test confirmed the green pills were a controlled substance. Cline submitted a supplemental memorandum of law in support of her motion to suppress, arguing that the district court should suppress the evidence and find that "the officer must have some reasonable suspicion to run the drug dog during a routine traffic stop," regardless of whether it measurably prolongs the traffic stop. In a very brief written order, the district court granted Cline's motion to suppress without making any findings of fact or conclusions of law. The order read: "WHEREUPON, the Court after taking the matter under advisement in order to review video of the traffic stop and allow for both parties to submit written closing finds that the defendant's motion shall be granted and all evidence obtained from the seizure of the defendant shall be suppressed." The State timely seeks interlocutory review of these suppression orders. DID THE DISTRICT COURT ERR BY GRANTING THE MOTIONS TO SUPPRESS ? The State argues that the district court erred in suppressing the evidence in both cases because the Fourth Amendment to the United States Constitution does not require officers to have a reasonable suspicion to conduct a dog sniff during a lawful traffic stop. " 'When reviewing a district court's decision on a motion to suppress, we bifurcate our analysis, first assessing whether the factual findings below are supported by substantial competent evidence and then applying a de novo standard to the ultimate legal conclusion to be drawn from those facts.' The defendant carries the burden of establishing the facts necessary to support his or her suppression motion in the district court. However, the State bears the burden of proving the lawfulness of a search and seizure. [Citations omitted.]" State v. Keenan , 304 Kan. 986, 993, 377 P.3d 439 (2016). When the material facts are not in dispute, "the suppression issue simply presents a question of law subject to de novo review." State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016). The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides the same protections from unlawful searches and seizures as the Fourth Amendment. State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). A traffic stop is a seizure under the Fourth Amendment "when a law enforcement officer displays authority and restrains an individual's liberty by stopping a vehicle on a public roadway." State v. Jones , 300 Kan. 630, 637, 333 P.3d 886 (2014). "[F]or a law enforcement officer's seizure of a citizen to be constitutionally reasonable, the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction." 300 Kan. at 637. However, an officer's stop of an individual is not invalid simply because it was a pretext for a drug search so long as a traffic violation actually occurred. Jones , 300 Kan. at 638. A seizure justified on the basis of a traffic infraction should " 'resemble, in duration and atmosphere, the kind of brief detention authorized in Terry .' [ Citations omitted.]" 300 Kan. at 639. In fact, " '[a] seizure that is justified solely by the interest in issuing a warning [or traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.' Illinois v. Caballes , 543 U.S. 405, 407, 125 S. Ct. 834, 160 L.Ed. 2d 842 (2005)." Jones , 300 Kan. at 639-40. The permissible duration of a traffic stop includes the time it takes for the officer to complete the ordinary inquiries incident to a traffic stop and to address related officer safety concerns. The "reasonableness of a [traffic stop] seizure ... depends on what the police in fact do." Rodriguez v. United States , 575 U.S. ----, 135 S. Ct. 1609, 1616, 191 L.Ed. 2d 492 (2015). "If an officer can complete traffic-based inquiries expeditiously, then that is the amount of 'time reasonably required to complete [the stop's] mission.' Caballes , 543 U.S. at 407." 135 S. Ct. at 1616. Moreover, "[b]ecause addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. [Citations omitted.]" 135 S. Ct. at 1614. In Rodriguez , the United States Supreme Court expressly stated that the ordinary inquiries incident to a traffic stop include "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." 135 S. Ct. at 1615. Similarly, our Supreme Court has stated that: "[T]he legitimacy of the duration of a traffic stop is measured by the time it takes for an officer to ask for, obtain, and record the driver's license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. As a general principle, once the officer determines that the driver has a valid license and the purpose for the traffic stop has ended, the driver must be allowed to leave without further delay. [Citations omitted.]" Jones , 300 Kan. at 640. But, "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." Arizona v. Johnson , 555 U.S. 323, 333, 129 S. Ct. 781, 172 L.Ed. 2d 694 (2009) ; Jones , 300 Kan. at 640. With regard to dog sniffs, the Rodriguez Court held that "a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment's proscription of unreasonable seizures." 135 S. Ct. at 1612 ; Caballes , 543 U.S. at 408-09. In Caballes , the United States Supreme Court explained that because a person has no legitimate privacy interest in searches which only reveal the location of contraband, the officers do not need reasonable suspicion to conduct an exterior dog sniff of a vehicle during a lawful traffic stop. See 543 U.S. at 408-10 ; see also State v. Barker , 252 Kan. 949, 957, 850 P.2d 885 (1993) ("[A] drug dog's sniff of the exterior of a vehicle is not a search for the purposes of the Fourth Amendment."). A dog sniff is not an ordinary inquiry incident to a traffic stop but "a measure aimed at 'detect [ing] evidence of ordinary criminal wrongdoing.' " Rodriguez , 135 S. Ct. at 1615. "The critical question ... is not whether the dog sniff occurs before or after the officer issues a ticket, ... but whether conducting the sniff 'prolongs'-i.e. , adds time to-'the stop.' " (Emphasis added.) 135 S. Ct. at 1616 ; see Statev. Lewis , 54 Kan. App. 2d 263, 271, 399 P.3d 250 (2017), rev. denied 307 Kan. ---- (December 22, 2017). Relying upon our court's decision in State v. Wilson , No. 117,125, 2017 WL 3948450 (Kan. App. 2017) (unpublished opinion), the State argues we should find that the officers did not unreasonably prolong the traffic stops, reverse the district court's suppression orders, and remand both cases for trial. Unlike in the present cases, however, while the district court in Wilson expressly found that the traffic stop was not unreasonably prolonged, the district court suppressed the evidence anyway after concluding that the officers lacked a reasonable suspicion to justify conducting the dog sniff during the traffic stop. The key finding missing from the district court's suppression orders in both cases here is whether the traffic stops were unreasonably prolonged. The State asks us to validate the searches as lawful, but our Supreme Court has declared that "the absence of factual findings in the district court proceeding interferes with [the appellate court's] analytical model, because appellate courts do not make their own factual findings. Rather, appellate courts only review those factual findings which have been made by the district courts." State v. Estrada-Vital , 302 Kan. 549, 555, 356 P.3d 1058 (2015). Appellate courts are limited to reviewing a district court's factual findings on a motion to suppress for substantial evidence, normally, giving "great deference to the factual findings of the district court." State v. Talkington , 301 Kan. 453, 461, 345 P.3d 258 (2015). But "[w]hen the record on review does not support a presumption that the district court found all the facts necessary to support the judgment, this court will remand the case for additional findings and conclusions." State v. Vaughn , 288 Kan. 140, 143, 200 P.3d 446 (2009). A. Hockmuth Generally, "if the material facts are not in dispute, the suppression issue simply presents a question of law subject to de novo review." Cleverly , 305 Kan. at 604. "Nevertheless, an appellate court's de novo review can only be based on factual findings made by the district judge. An appellate court cannot resolve disputed facts." Jones , 300 Kan. at 643. In Hockmuth's case, the parties stipulated that Bachar stopped Hockmuth's vehicle because she did not have her headlights turned on. Although the lawfulness of the stop is not at issue, the reason for the stop is relevant to the question of how much time was necessary to complete the mission of issuing a citation or ticket for the violation. See Rodriguez , 135 S. Ct. at 1614 (the "tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission' "). The State argues we should find the seizure lawful on appeal because the dog sniff did not unreasonably prolong the traffic stop as Lazar alerted only five minutes into the traffic stop and Bachar had not completed issuing the citation. But Hockmuth argues the officers prolonged the traffic stop by taking the time to request the K-9 unit. As stated above, our determination of whether a traffic stop seizure is reasonable depends on what the officers actually did during the stop. The time it takes for the officers to complete the traffic stop in relation to the dog sniff is not necessarily dispositive. In fact, the United States Supreme Court rejected the government's argument in Rodriguez that officers may buy more time to conduct unrelated tasks "so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. ... The critical question ... is not whether the dog sniff occurs before or after the officer issues a ticket, ... but whether conducting the sniff 'prolongs'-i.e. , adds time to-'the stop.' " 135 S. Ct. at 1616. Given the district court's limited findings and failure to determine whether the officers unreasonably prolonged the traffic stop to conduct the dog sniff, we find it impossible to determine the propriety of the dog sniff of Hockmuth's car based upon the record before us. Although the parties stipulated to the facts here, the parties did not stipulate to, and the district court did not make, a factual finding on when dispatch returned the results of Bachar's requested computer and driver's license check on Hockmuth. The district court also did not make any factual findings on whether Bachar had completed, or reasonably should have completed, the traffic investigation before or after Bachar's request for the K-9 unit and when the K-9 unit performed the dog sniff on Hockmuth's car. While it may be true that the officers lacked reasonable suspicion to conduct the dog sniff of Hockmuth's car, the district court erred in suppressing the evidence based on this legal conclusion because reasonable suspicion was not required to justify a dog sniff during a lawful traffic stop. Because the record on appeal does not support the presumption that the district court found all the facts necessary to support an implicit legal conclusion that the officers prolonged the traffic stop, we vacate the district court's order suppressing the evidence obtained against Hockmuth and remand the case to the district court for further findings and the taking of further evidence, if necessary. See Vaughn , 288 Kan. at 143. Specifically, the district court needs to make factual findings and conclusions of law regarding the overall duration and reasonableness of the stop, including-as outlined above-determining when dispatch returned the results of the computer and driver's license check on Hockmuth. Additionally, the district court must determine whether the traffic stop was, or reasonably should have been, completed when Bachar requested the K-9 unit and when the K-9 unit performed the dog sniff. B. Cline In Cline's motion to suppress, the parties did not stipulate to the facts. Rather, the district court held a hearing on the motion and admitted videos and audio recordings of the traffic stop. But, in its very brief written order granting Cline's motion to suppress, the district court failed to make any findings whatsoever, including whether the dog sniff may have unreasonably prolonged the duration of the traffic stop. Cline argued before the district court that it should suppress the evidence because the officers needed but lacked a reasonable, articulable suspicion to justify a dog sniff even if the dog sniff did not unreasonably prolong the traffic stop. Before us, Cline concedes that the officers did not unreasonably prolong the traffic stop to conduct the dog sniff, and the State seizes upon this concession to argue that we should reverse the district court's suppression order and remand the case for trial. As already explained, the law does not require reasonable suspicion to justify a dog sniff. While law enforcement may conduct a drug dog sniff during a lawful traffic stop so long as it does not unreasonably prolong the stop, central to determining whether the dog sniff prolonged the traffic stop is whether the officer had completed the ordinary inquiries incident to the traffic stop. See Rodriguez , 135 S. Ct. at 1614-16. Here, the district court made no factual findings whatsoever regarding the parties' presentation of the evidence. Although the record on appeal contains the transcript of the hearing and the video and audio recordings of the traffic stop, the record on appeal does not support the presumption that the district court found all the facts necessary to support its judgment that the officers prolonged the traffic stop. We therefore vacate the district court's order suppressing the evidence obtained against Cline and remand the case to the district court for further findings and the taking of further evidence, if necessary. See Vaughn , 288 Kan. at 143. Specifically, the district court needs to make factual findings and conclusions of law regarding the overall duration and reasonableness of the stop and determine when the officers requested-and when dispatch returned-Cline's driver's license check in relation to when Becker conducted the dog sniff on her vehicle. The district court's suppression orders are vacated, and the cases are remanded for further proceedings consistent with this opinion.

Arnold-Burger, C.J.: This case represents a tragic story of two highly gifted and respected physicians, Dr. Dan Hancock and Dr. Daniel Kloster, who specialize in pain management care. They maintained a highly successful practice and each made over a half million dollars a year. They were like brothers to each other, until a dispute over money sent their friendship and their practice into a death spiral. Following a dispute over the proposed distribution of income, Hancock began broadcasting complaints regarding Kloster's patient care to several state agencies, hospitals, and ultimately-when he believed the other entities were not responding quickly enough or in the manner he hoped-to the Kansas City Star. He alleged that Kloster was either killing or hastening the death of his patients. None of the complaints bore fruit. After hundreds of hours defending his reputation Kloster successfully sued Hancock for defamation, breach of fiduciary duty, fraud, and conversion. Hancock appeals that verdict. On appeal, Hancock argues that the district court misapplied the statutory privilege in K.S.A. 65-4925, which provides that reports and records of state licensing agencies are confidential, by admitting evidence that two state agencies had cleared Kloster of any wrongdoing. Although we find that the district court did not err in admitting evidence that the state licensing agencies cleared Kloster of wrongdoing, it did err in holding that Kloster's submissions to the state licensing agencies were privileged. However, the error was harmless because Hancock had other ways of discovering the information. Hancock also argues that there was insufficient evidence to support the jury's damages awards for Kloster's defamation and nondefamation claims. But, the jury had a sufficient evidentiary basis to support its award of damages on all claims. Finally, Hancock argues that the damages for Kloster's defamation claim should have been capped under K.S.A. 2016 Supp. 60-19a02(b), which provides a statutory cap of $250,000 for noneconomic damages in personal injury cases. However, defamation is not a personal injury action. Additionally, he did not object to the jury's failure to itemize damages, a failure that is fatal to his claim. Accordingly, we affirm. FACTUAL AND PROCEDURAL HISTORY Dr. Daniel Kloster and Dr. Dan Hancock are anesthesiologists specializing in pain management. They formed Rockhill Pain Specialists, P.A. (Rockhill) in 2001. Their practice included, among other pain management procedures, the implantation of pain pumps in terminally ill cancer patients for end-of-life pain management. At that time, they were "good friends, like brothers." Rockhill was an S-corporation, and as Kloster and Hancock were the only two shareholders of Rockhill they split all profits evenly. Kloster brought in about two-thirds of the patients while Hancock brought in the other third. Hancock handled Rockhill's business, and served as Rockhill's president, director, and compliance officer. The doctors' relationship began deteriorating in 2011. The doctors had different ideas about why this occurred. Hancock maintained that he was concerned about Kloster's patient care. Kloster argued that the doctors had a monetary dispute sparked by a job offer he received from a company called Assured Pharmacy. In 2011, Assured Pharmacy approached Kloster about a potential position as its national medical director. Kloster described the position as a business advisory role. The position entailed about 35 to 40 hours of work per month. Kloster thought he would not be expected to split profits from this position with Hancock because their agreement was only to split money earned in the practice of medicine. Hancock, however, thought that the position entailed the practice of medicine because the employment contract specified that the employee had to be a licensed physician and anesthesiologist who specialized in pain management. Kloster asked Rockhill's corporate counsel, Randy Schultz, whether he would have to share profits from the Assured Pharmacy position with Hancock. Schultz told him that he would not have to share because the position was unrelated to the practice of medicine. Kloster and Hancock went out to dinner in December 2011. They continued to disagree over whether Kloster's earnings from Assured Pharmacy should go to Kloster or to Rockhill. Kloster said he would look at Rockhill's books and discuss the issue again with Hancock at a later point in time. Kloster had not looked at Rockhill's books before because that aspect of the business was managed by Hancock. When Kloster looked at Rockhill's books, he realized that he had brought in twice as much business as Hancock had for the previous five years. The doctors met for another dinner in January 2012. Kloster alleges that Hancock "just went off" and started screaming at him. Kloster said that Hancock accused him of working with Schultz to deprive Rockhill of the Assured Pharmacy money and that Hancock screamed, "Oh, you're going down. Randy [Schultz] is going down." Hancock denied threatening Kloster or Schultz at this meeting, and said that Kloster actually threatened him by saying he would kill Hancock if he did anything to injure Kloster's wife or children. The parties met again briefly in March or April of 2012. Kloster asked Hancock if he would be open to a different compensation system where, instead of splitting profits evenly, they would split profits based on production. Hancock refused. Due to the parties' disagreement on compensation, Kloster recommended that they cease receiving any distributions from Rockhill beyond their base pay. Direct deposits of $15,000 per month were given to Kloster during this time period, just like Hancock, but Kloster returned them to the corporation. Hancock continued to take distributions from Rockhill. Schultz instructed Rockhill's bookkeeper to cease making distributions until the doctors could agree on a compensation model. But Hancock emailed the bookkeeper and said that "as president of Rockhill Pain Specialists, I am instructing you to make the monthly distributions for May as you have every month for the past 4-5 years." On June 14, 2012, Kloster called a special meeting of Rockhill's board of directors. Kloster, Hancock, and Schultz attended. Kloster and Hancock each brought a private attorney as well. Kloster raised the issue of distributions again, but Hancock continued to receive them. The parties also discussed a production-based compensation arrangement, and Kloster's attorney agreed to "prepare a proposed compensation arrangement that was partially based upon a production formula while taking into consideration any special administrative duties being provided by the parties." After discussing compensation, Hancock raised the issue of Rockhill's billing and coding practices. The special meeting minutes state that Hancock requested a third-party review of Rockhill's billing and coding activities. The minutes also state that Hancock agreed to provide Schultz with the names of two to three physicians who could conduct an independent review of Rockhill's practice. During the trial, Hancock denied that he agreed to do this. At the time of the special shareholder's meeting, neither Kloster nor Schultz knew why Hancock raised an issue with Rockhill's billing. Although he did not disclose it at the special shareholder's meeting, Hancock had been investigating Rockhill's billing practices for several months. Hancock testified that he began having concerns with Kloster's patient care in 2011. Hancock's primary concern was with Kloster's implantation of intrathecal pain pumps in patients. These pumps are about the size of a hockey puck and are inserted under a patient's skin. Pumps provide a powerful way to deliver medicine into patients with severe pain. Hancock thought that patients receiving pumps were dying at a faster rate than usual. He thought Kloster was "either choosing patients that [were] inappropriate to receive pumps or that the concoction that he was using was hastening their demise." Hancock was also concerned with the pain pump issue from a compliance standpoint. Medicare asks doctors to certify that they have a reasonable certainty that a patient will survive for 90 days after implantation of a pump. Hancock thought that if Kloster was selecting inappropriate patients for pump procedures that Rockhill might be subject to a Medicare audit or sanction. In January 2012, shortly after the doctors' monetary dispute began, Hancock met Vicki Myckowiak at a conference in Scottsdale, Arizona. Myckowiak is an expert in fraud and abuse in medical billing. Hancock told Myckowiak that he had concerns over Rockhill's billing practices and Kloster's use of pain pumps. Hancock hired Myckowiak on behalf of Rockhill to conduct a review of some of Rockhill's files. Hancock sent Myckowiak records from 12 patients of Kloster's who had died within 90 days of their pump placements. These were records that Rockhill maintained for billing purposes, and did not include operating room notes or nursing notes. On June 6, 2012, Hancock provided Kloster with a peer review reference. Hancock certified that he would recommend Kloster without reservations. Hancock strongly agreed that Kloster provided appropriate patient assessments, evaluations, and surgical procedures. Shortly after the June 2012 special shareholder meeting, Myckowiak hired Dr. Andrea Trescot as an expert to conduct additional review of the records. After reviewing the records, Trescot prepared an expert report. She stated that "[a]lthough these were cancer patients, presumably with a limited life span, I am seriously concerned that the medicines that Dr. Kloster chose for the pump hastened if not caused these patients' deaths." She also said that "[r]eview of these cases force[s] me to conclude that an emergency suspension of pump implantations is necessary to protect patient welfare." Hancock did not contact Schultz throughout his consultations with Myckowiak or Trescot. He also did not discuss Trescot's findings with Kloster. Hancock testified that he raised concerns regarding the pain pumps with Kloster as early as August 2011. He said that Kloster told him "that he could justify all of the pumps that he put in, that [Hancock] needed to be more aggressive in patient treatment and that [Hancock] should not be lecturing him about how to treat pump patients." Hancock testified that he discussed the issue with Kloster again in December 2011 or January 2012 to reinforce his previous concern that Kloster was choosing the wrong patients or being too aggressive in his treatment. Hancock alleged that Kloster said, "I'm telling you that these patients are going to die anyway and I'm going to make as much money off of them before they die as I can." At trial, Kloster denied that Hancock ever expressed any concerns over his patient care. On August 8, 2012, Myckowiak filed complaints against Kloster with the Kansas State Board of Healing Arts and Missouri Board of Registration for the Healing Arts. These complaints stated that she was writing "on Dr. Hancock's request to provide you with information showing that his partner, Daniel L. Kloster, M.D. is providing services to patients ... that are below the standard of care and which, it appears, caused the death of at least one patient." The primary concern in the complaints regarded the implantation of intrathecal pain pumps. Later that month, Hancock sent letters to several people at Menorah Medical Center and Research Medical Center, including the CEOs, credentials committees, and peer review committees regarding his concerns over Kloster's patient care. Hancock asked Myckowiak to send complaints to the attorneys general and governors of Missouri and Kansas, the federal Drug Enforcement Administration, the Missouri Bureau of Narcotics and Dangerous Drugs, and the Kansas Bureau of Investigation. Hancock also made an anonymous call to the Overland Park Police Department. Kloster began thinking about dissolving Rockhill when Hancock lodged complaints against him. The doctors' business dispute continued, with Hancock accepting distributions and Kloster continuing to reject them. This led to Hancock accruing approximately $100,000 more than Kloster by September 2012. At that time, Kloster's attorney wrote a letter informing Hancock that his acceptance of the distributions breached his fiduciary duty to Rockhill and put Rockhill's S-corporation status at risk. Kloster also discovered that Hancock had used Rockhill funds to pay his personal attorney, Myckowiak, and Trescot. Kloster asked Hancock to reimburse those funds, and Hancock refused. In early 2013, Kloster withdrew $38,515.15 to equalize the doctors' distributions. Hancock responded by taking an equal amount out of Rockhill's account. Kloster responded to this by withdrawing about $42,830.13 from Rockhill-some to equalize distributions and the rest for routine expenses like gasoline and continuing medical education credits. Throughout the business dispute, Hancock continued investigating Kloster's patient care. Hancock provided Trescot with 33 more of Kloster's patient billing records to review. Trescot issued a second opinion in January 2013. She concluded: "This review identifies multiple cases of treatment below the standard of care, probable Medicare fraud, and, I am afraid, possibly manslaughter. In my many years of reviewing medical cases, I have rarely seen a magnitude of cases this egregious." Hancock sent Trescot's second report to the state licensing agencies to supplement his complaints against Kloster. In March 2013, Kloster filed suit against Hancock. Kloster sued for breach of fiduciary duty, fraud, fraud through silence, conversion, defamation, and invasion of privacy by false light. Kloster also asked for judicial dissolution of Rockhill as well as an accounting and appointment of a receiver. Hancock counterclaimed for breach of fiduciary duty. Later that month the district court appointed Craig Chance as receiver for Rockhill for the pendency of the dissolution. Chance's duty was to preserve Rockhill's assets during the winding down of the company. Chance was also tasked with determining whether Kloster or Hancock made inappropriate disbursements of Rockhill funds. At the end of March 2013, Hancock began talking to a reporter from the Kansas City Star. Hancock was frustrated when he talked to the reporter because none of the state licensing agencies, hospitals, or other parties to whom Hancock had transmitted complaints about Kloster had taken action. Hancock deemed this a "government failure" and thought that he needed to "alert the general public" to the dangers posed by Kloster's patient care. The Kansas City Star published an article titled, "When doctors divorce, the breakup can be as messy as a marital split" in June 2013. The article begins, "It sounds like the lead-in to any of 101 divorces. One partner is accused of outrageous misconduct, the other of not doing his share. There are threats, maybe shouting. The silent treatment. And underneath it all, a simmering dispute over money." The article goes on to discuss Hancock's allegations that Kloster was "practicing so far below the standard of care that two of his patients died through massive overdoses of pain medications." It also contained Hancock's allegations that patients were dying too quickly after implantation of pain pumps. Eventually, both the Missouri and Kansas licensing agencies concluded their investigations of Kloster and found that he did not violate the standard of care. In May 2014, Hancock made a motion to compel discovery responses from Kloster. Hancock sought "Kloster's written responses to the different medical boards and regulatory boards of the various hospitals and the boards of health for [the] states of Kansas and Missouri." Kloster objected, arguing that the records were confidential. The district court agreed with Kloster and held that Kloster's responses to the licensing agencies were confidential. A couple of weeks before trial, Hancock filed a motion in limine asking the court to exclude "[e]vidence, testimony, exhibits, and/or statements regarding the conclusions, results, or any other determinations of Dr. Kloster's conduct or practice methods from any peer review process of any hospital, the Kansas Board of Healing Arts, or the Missouri State Board of Registration for the Healing Arts." Hancock argued that the conclusions of the investigations were confidential and inadmissible in court. Kloster replied, arguing that Hancock waived any right to the privilege of confidentiality in the content of the administrative proceedings when Hancock publicized the proceedings in court documents and in the newspaper. The district court denied Hancock's motion in limine, holding that Hancock waived any confidentiality that may exist in the conclusions. At trial, Kloster and Hancock both testified. Chance, the court-appointed receiver, presented his findings. Chance testified that Hancock had incurred unsubstantiated travel costs, fuel charges, and other expenses. Chance also thought it was inappropriate for Rockhill to pay Myckowiak, Trescot, and Hancock's personal attorney fees. The jury found in favor of Kloster on all counts. It awarded Kloster $925,000 for defamation, $63,343.11 for breach of fiduciary duty, $9,083.75 for fraud, and $9,269.60 for conversion. The jury also found that Hancock should pay punitive damages. The district court later awarded Kloster $200,000 in punitive damages and $9,337.02 in costs. The jury also found that Kloster breached his fiduciary duty to Hancock. However, it did not award Hancock damages for the breach. Hancock filed a motion for a new trial. He argued that there was no evidence to support the jury's award for defamation. Alternatively, he argued that the district court should reduce the jury's defamation award because there is a $250,000 statutory cap on damages for actions involving personal injury. Hancock also argued that the jury failed to acknowledge the distinction between Kloster and Rockhill when apportioning damages. Finally, he reiterated his evidentiary arguments about the admission and exclusion of certain documents generated by the state health boards when they investigated Kloster. The district court denied Hancock's motion. Hancock appealed. ANALYSIS The district court did not err in admitting the final results of the investigations by the Kansas and Missouri boards of health. Hancock's first argument is that the district court erred by permitting Kloster to admit evidence that the Kansas and Missouri boards of health dismissed Hancock's complaint against him. Hancock argues that the district court's ruling "contravened well-established Kansas and Missouri public policy." He argues that Kansas and Missouri law provide civil immunity for persons who report malpractice to the state boards of health. Additionally, he argues that Kansas law prohibits admitting reports generated during the administrative disciplinary process into evidence. In sum, he contends that the letters from the disciplinary boards are inadmissible as a matter of law. Generally speaking, all relevant evidence is admissible. K.S.A. 60-407(f) ; see K.S.A. 60-401(b). But a court's consideration of the admissibility of evidence can also require application of statutory rules controlling the admission and exclusion of certain types of evidence. State v. Bowen , 299 Kan. 339, 348, 323 P.3d 853 (2014). Accordingly, an appellate court exercises de novo review of a challenge to the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence. 299 Kan. at 349, 323 P.3d 853. Preservation Before reaching the substantive issue, we must address a preservation issue. Kloster argues that this court is precluded from reviewing Hancock's evidentiary argument because Hancock failed to lodge a timely objection to Kloster's testimony regarding the results of the boards' investigations. Kloster relies on the following line of questioning from his direct examination on the first day of trial: "Q: Besides the complaints that were lodged by Dr. Hancock that we'll hear about, do you have any other complaints made to the State Boards of Healing Arts concerning your patient care? "A: I have not. "Q: Okay. Are you currently under investigation by either Missouri or Kansas State Boards of Healing Arts? "A: I am not. "Q: Have your licenses to practice medicine ever been suspended or limited in any way or restricted? "A: No. "Q: You remain in good standing both with the State of Missouri and the State of Kansas? "A: Correct. "Q: Have you ever had your privileges suspended at any hospital? "A: Never." Hancock did not object to this line of questioning. While this discussion approaches the topic of the boards' results, the boards' conclusions were not directly addressed. Thus, Hancock was not required to object at that point to preserve this issue for appeal. On the second day of trial, Kloster's attorney was still examining him. The attorney stated: "I want to talk to you about the conclusion of the state board investigations into Dr. Trescot's report." Hancock's attorney objected, and the court said that the objection was preserved but overruled. Because Hancock objected when the conclusions of the boards' investigations were raised, Hancock has properly preserved it for our review. Statutory Interpretation Hancock relies on K.S.A. 65-4925 to support his argument that the results of the Kansas and Missouri boards' investigations were inadmissible as evidence in his case. This statute provides: "(a) The reports and records made pursuant to K.S.A. 65-4923 or 65-4924, and amendments thereto, shall be confidential and privileged, including: (1) Reports and records of executive or review committees of medical care facilities or of a professional society or organization; (2) reports and records of the chief of the medical staff, chief administrative officer or risk manager of a medical care facility; (3) reports and records of any state licensing agency or impaired provider committee of a professional society or organization; and (4) reports made pursuant to this act to or by a medical care facility risk manager, any committee, the board of directors, administrative officer or any consultant. "Such reports and records shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and shall not be admissible in any civil or administrative action other than a disciplinary proceeding by the appropriate state licensing agency." K.S.A. 65-4925. The statute clearly establishes a privilege regarding the use of reports and records generated by a state licensing agency during the agency's investigatory process. Additionally, the statute protects reports and records from "any state licensing agency" so both Kansas' and Missouri's board reports and records are protected. K.S.A. 65-4925(a)(3). At trial, Kloster testified that the Kansas board "exonerated" him, and that it did not find evidence that Kloster had violated the standard of care. He also testified that the Missouri board closed his case because there was insufficient evidence that he violated the rules of his profession. Kloster introduced a letter from the Missouri, but not Kansas, board as an exhibit. It read: "Dear Licensee: "The Missouri State Board of Registration for the Healing Arts has completed its review of the complaint filed against you by Vicki Myckowiak, Esq. After careful consideration of the information available to the Board at this time, the Board has voted to close this case since there appears to be insufficient evidence of a violation of the statutes and rules regulating your profession." The issue is determining whether Kloster's testimony or the letter violate the prohibition on admitting reports and records of a state licensing agency. Kansas courts have not had an opportunity to address this issue. Few courts have discussed the privilege in K.S.A. 65-4925 at all, and most references to the statute are in federal court decisions. The general rule regarding the admission of evidence in Kansas courts is longstanding and clear. "Except as otherwise provided by statute ... all relevant evidence is admissible." K.S.A. 60-407. The restrictions contained in K.S.A. 65-4925 are a statutory exception to this general rule. "[O]rdinarily a strict or narrow interpretation is applied to statutory exceptions." Broadhurst Foundation v. New Hope Baptist Society , 194 Kan. 40, 44, 397 P.2d 360 (1964). The United States Supreme Court has explained that evidentiary privileges should be "strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' " Trammel v. United States , 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed. 2d 186 (1980). This is because " 'the public ... has a right to every man's evidence.' " United States v. Bryan , 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950) (quoting Wigmore, Evidence § 2192 [3d ed.] ). Kloster argues that K.S.A. 65-4925"does not prohibit testimony about the ultimate outcome of the investigation." We agree. The plain language of K.S.A. 65-4925 does not prohibit the discussion of the ultimate result of an investigation by a public health care licensing agency. K.S.A. 65-4925 does not define the words "report" or "record." Given the public policy behind statutory evidentiary exceptions, the terms should be interpreted narrowly. Black's Law Dictionary defines "report" as "[a] formal oral or written presentation of facts or a recommendation for action." Black's Law Dictionary 1492 (10th ed. 2014). It defines "record" as "[a] documentary account of past events, usu. designed to memorialize those events." Black's Law Dictionary 1465 (10th ed. 2014). There were no specific facts or recommendations in the boards' communications to Kloster. The letters also did not document the proceedings of the boards. Rather, the boards simply informed Kloster that there was insufficient evidence to continue investigating Hancock's complaints. Moreover, the argument that the boards' conclusions are not protected by K.S.A. 65-4925 is supported by the boards' websites. Both Kansas and Missouri publish disciplinary actions taken against doctors. See 2017 Board Actions, Kansas State Board of Healing Arts, 2017 Board Actions , http://www.ksbha.org/boardactions/boardactions.shtml (last visited Sept. 11, 2017); Missouri State Board of Registration for the Healing Arts, Disciplinary/Miscellaneous Actions Taken http://pr.mo.gov/boards/healingarts/DisciplinaryM¨iscellaneousR¨eport.pdf (last visited Sept. 11, 2017). See K.S.A. 60-409(b)(4) (judicial notice may be taken of specific facts capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy); K.S.A. 60-412(c) (reviewing court in its discretion may take judicial notice of any matter specified in K.S.A. 60-409 whether or not judicially noticed by district court). If publicizing the boards' negative findings is not prohibited by K.S.A. 65-4925, it follows that publicizing the boards' positive findings is also not prohibited. Hancock argues that the district court's decision violates public policy because "[a]llowing the statute prohibiting disclosure of these records to be so easily disregarded will chill all future complainants against physicians." However, this argument is misguided. K.S.A. 65-2898 provides civil immunity to any "person reporting to the state board of healing arts in good faith." This statute provides ample protection to persons reporting misconduct, as long as the report is made in good faith. The district court instructed the jury on good faith as follows: "If you believe that Dr. Hancock reported to the State Board of Healing Arts in good faith any information that he had relating to alleged incidents of malpractice, or the qualifications, fitness or character of Dr. Kloster, then that report cannot be the basis for any damages awarded to Dr. Kloster." The good-faith immunity provided under K.S.A. 65-2898 for persons that report information regarding incidents of malpractice, or the qualifications, fitness or character of, or disciplinary action taken against, a person licensed, registered or certified by the board of healing arts adequately protects the public interest in encouraging reporting of unfitness. The plain language of K.S.A. 65-4925 does not prohibit Kloster from testifying that the state boards dismissed Hancock's complaints against him. Thus, the district court did not err by admitting the evidence. However, even if we were to conclude that the boards' results are privileged the error is subject to the harmless error analysis. K.S.A. 2016 Supp. 60-261. Where an error implicates a statutory right, the party benefiting from the error must persuade the court that there is no reasonable probability that the error affected the trial's outcome in light of the entire record for it to be deemed harmless. State v. McCullough , 293 Kan. 970, 983, 270 P.3d 1142 (2012). Hancock does not attempt to explain why this purported error entitled him to a new trial. Kloster, however, has provided persuasive reasons why any error in admitting the boards' conclusions is harmless in this case. Throughout the trial, Hancock made references to his displeasure with the boards' findings. For example, he stated that he had a difficult time "comprehending and accepting" the fact that Missouri would not be "concerned about the deaths of several patients after they had had an implantable pump surgically implanted in their body." Hancock also testified that he disagreed with the conclusions of the Kansas board and that its members were not qualified to review patients who were treated with pain pumps. Additionally, Hancock accused the CEO of Menorah Hospital of being biased in favor of Kloster when it did not restrict Kloster's privileges. Hancock also testified that he went to the Kansas City Star in March 2013 because he was frustrated that none of the organizations and persons to whom Hancock had transmitted complaints about Kloster had taken action. Even without the letters, a jury listening to Hancock's testimony could have deduced that the state boards did not sanction Kloster. Furthermore, Kloster testified that (1) he was not currently under investigation by the Missouri or Kansas State boards of health; (2) his licenses to practice medicine had never been suspended, limited, or restricted in any way; (3) he remained in good standing in both Kansas and Missouri; and (4) he had never had his privileges suspended from any hospital. This testimony also gave the jury a reasonable basis to conclude that Kloster was not sanctioned by the state boards, regardless of whether the boards' direct conclusions were admitted at trial. Conclusion The results of the Kansas and Missouri boards' investigations are not privileged reports or records under K.S.A. 65-4925. Even if they were and their admission was in error, the error is harmless in light of testimony from both parties from which the jury could reasonably infer that Kloster was cleared of wrongdoing by the boards. The district court erred in denying Hancock's discovery request, but the error was harmless. Hancock's next argument is that the district court erred by refusing to allow him to discover the documents Kloster provided to the Kansas and Missouri boards of health. He argues that exclusion of this evidence was unfair because "Dr. Kloster was able to use the boards' favorable conclusions to buttress his argument that Dr. Hancock defamed him, while blocking any inquiry into the boards' deliberations that led to that conclusion." Hancock maintains his position that neither the boards' conclusions nor Kloster's disclosures to the boards should have been admitted into evidence. However, he argues that "having disregarded the statute and allowed the conclusions into evidence, simple fairness dictated that the court allow Dr. Hancock to discover what information Dr. Kloster was providing the boards" that resulted in their respective conclusions. Standard of review and preservation The standard of review for discovery issues is abuse of discretion. Hill v. Farm Bur. Mut. Ins. Co. , 263 Kan. 703, 704, 952 P.2d 1286 (1998). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015). But "even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court's discretionary decision is based. State v. Ernesti , 291 Kan. 54, 65, 239 P.3d 40 (2010). The district court held that Kloster's communications with the boards were protected by K.S.A. 65-2898(a). Whether the communications were protected by statute is an issue of law which we review de novo. Kloster argues that this court should refuse to consider Hancock's argument because he failed to specify the place in the record where the district court ruled on this issue. Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) states that each issue in an appellant's brief "must begin with ... a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on." It is true that Hancock's discussion of this issue in his brief does not include a citation to the record where the district court ruled on the issue. However, he does include such a citation in his statement of facts. This court has previously held that lack of pinpoint citations is not fatal to appellate review of an issue. State v. Allen , 49 Kan. App. 2d 162, 168, 305 P.3d 702 (2013) ("[T]he State made the necessary citations to the record for each issue in the fact statement of its brief, rather than under the discussion of each issue.... [H]owever, the State provided extensive argument and relevant legal authority from which this court can research and analyze the issues."); Davis v. State , No. 114436, 2016 WL 5344256, at *6 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. ---- (August 29, 2017); State v. Briscoe , No. 114278, 2016 WL 2775676, at *2 (Kan. App. 2016) (unpublished opinion). Hancock provides sufficient citations and argument to enable appellate review of this issue. Discussion Hancock sought to discover Kloster's "responses to the various medical and ethical boards" to which Hancock sent complaints. Hancock argued that he had a right to these documents because Kloster was alleging that Hancock made the complaints in bad faith. He argued that "[t]heoretically, Dr. Kloster's responses to the complaints could admit wrongdoing, which would be highly relevant to a determination of whether Dr. Hancock's complaints were in good faith." Kloster argued that the records were confidential under K.S.A. 65-2898(a). The district court held that the documents were confidential and protected by K.S.A. 65-2898(a), and that Kloster did not waive the confidentiality by discussing his responses to the boards with third parties. The district judge rejected Hancock's argument that he needed the documents to discover whether Kloster had admitted to wrongdoing, adding that it would be counterintuitive for the boards to clear Kloster of wrongdoing if he had admitted fault in his responses to the boards. The judge suggested that if Hancock wanted to discover this information he could ask Kloster what the basis of his bad-faith allegations were, whether Kloster has ever admitted to wrongdoing, or whether Kloster had ever taken diversion. The statute cited by Kloster and the district court as the basis of the documents' confidentiality, K.S.A. 65-2898(a), does not mention confidentiality or privilege at all. It provides civil immunity to persons reporting to the state board of healing arts in good faith. K.S.A. 65-2898(a). So to determine if Kloster's responses are discoverable, we must examine several other statutes relevant to state health board and peer review committee investigations. "A privilege is a rule of evidence that allows a person 'to shield [a] confidential communication or information from compelled disclosure during litigation.' " State v. Gonzalez , 290 Kan. 747, 757, 234 P.3d 1 (2010) (quoting Imwinkelried, The New Wigmore: Evidentiary Privileges § 1.1, p. 2 [2d ed. 2009] ). Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged matter that is relevant to a party's claim or defense and proportional to the needs of the case, K.S.A. 2016 Supp. 60-226(b). Because Kloster does not argue on appeal that the information is not relevant, we are left with a determination as to whether the information is privileged and not subject to disclosure by operation of law. Responses to peer review committees Kloster's responses to the peer review committees are protected by K.S.A. 2016 Supp. 65-4915(b). This statute provides that "the reports, statements, memoranda, proceedings, findings and other records submitted to or generated by peer review committees or officers shall be privileged and shall not be subject to discovery...." K.S.A. 2016 Supp. 65-4915(b). However, the statute specifies that the holder of the privilege is "[t]he peer review officer or committee creating or initially receiving the record." K.S.A. 2016 Supp. 65-4915(b). Because Kloster is not the holder of the privilege, he cannot assert it as a basis for refusing to reveal his responses to the peer review committees. Therefore, it was error for the district court to prohibit Hancock from discovering Kloster's responses to the peer review committees absent an assertion of the privilege by the peer review committees or some separate and supportable claim of confidentiality by Kloster. Reports of state health boards The state health boards also enjoy an evidentiary privilege. The statute discussed in the previous section, K.S.A. 65-4925(a), provides that "reports and records made pursuant to K.S.A. 65-4923 or 65-4924, and amendments thereto, shall be confidential and privileged, including: ... (3) reports and records of any state licensing agency...." However, Kloster's responses were not made pursuant to K.S.A. 65-4923 or 65-4924, and they do not constitute reports or records of the state board as those terms have been interpreted by our Supreme Court. See Adams v. St. Francis Regional Med. Center , 264 Kan. 144, 164-66, 955 P.2d 1169 (1998) (citing with approval Hill v. Sandhu , 129 F.R.D. 548, 550 [D. Kan. 1990] ; Porter v. Snyder , 115 F.R.D. 77, 78 [D. Kan. 1987] ). We will explain further. K.S.A. 65-4923(a) requires health care workers to report knowledge that a health care provider has committed a reportable incident. The statute does not require the health care provider accused of the reportable incident to answer the complaint. See K.S.A. 65-4923. K.S.A. 65-4924 is not relevant because it relates to physical or mental impairment of a health care provider. Finally, the information Kloster sent to the state licensing agency is not a report or record of that licensing agency. In Porter , the court examined K.S.A. 1986 Supp. 65-4925(a), which provided that "[r]eports and records of executive or review committees" were privileged. 115 F.R.D. 77-78. The court held that "[b]y its plain meaning, this does not include incident reports which are not reports of the review committee, but rather are contemporaneous statements of facts relating to incidents which are reviewed by the committee." 115 F.R.D. at 78 ; see also Hill , 129 F.R.D. at 550 (1990) (holding that the peer review privilege statute, which provided that " 'the reports, statements, memorandums, proceedings, findings, and other records of peer review committees or officers shall be privileged' ... clearly [did] not include reports reviewed by the committee"). Nor are Kloster's responses to the Kansas board privileged under K.S.A. 65-2839a. This statute specifically protects information submitted to the Kansas Board of Healing Arts. The statute provides: "Patient records, including clinical records, medical reports, laboratory statements and reports, files, films, other reports or oral statements relating to diagnostic findings or treatment of patients, information from which a patient or a patient's family might be identified, peer review or risk management records or information received and records kept by the board as a result of the investigation procedure outlined in this section shall be confidential and shall not be disclosed." K.S.A. 65-2839a(d). Kloster's responses to the Kansas Board of Healing Arts investigation falls under this statute as "information received ... by the board as a result of the investigation." However, the fact that such information is confidential and shall not be disclosed does not necessarily mean that the statute has created an evidentiary privilege. The other statutes we have discussed, K.S.A. 2016 Supp. 65-4915 and K.S.A. 65-4925, explicitly mention privilege and state that the information protected by the statutes is not subject to discovery. Other Kansas privilege statutes, located at K.S.A. 60-423 through K.S.A. 60-436, also specifically state that a privilege exists. The fact that K.S.A. 65-2839a does not specify that a person or entity holds the privilege further suggests that the statute does not create a privilege at all. Evidentiary privileges "are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon , 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed. 2d 1039 (1974). As is evident from the language in K.S.A. 2016 Supp. 65-4915 and K.S.A. 65-4925, the Legislature clearly knows how to create a privilege and protect information from discovery. Moreover, the Legislature uses the terms confidential and privileged separately, indicating distinct meanings. Accordingly, because K.S.A. 65-2839a does not explicitly create a privilege it does not automatically protect Kloster's responses from discovery. See Pearson v. Miller , 211 F.3d 57, 68 (3d Cir. 2000) ("Statutory provisions providing for duties of confidentiality do not automatically imply the creation of evidentiary privileges binding on courts."); In reGrand Jury Subpoena Dated December 17, 1996 , 148 F.3d 487, 492 (5th Cir. 1998) (holding that a statute requiring a state's agricultural loan mediation program sessions to remain confidential did not mean that the sessions were privileged); Nguyen Da Yen v. Kissinger , 528 F.2d 1194, 1205 (9th Cir. 1975) (holding that Immigration and Naturalization Service records were "confidential but not privileged"). We pause to note that we are not suggesting that all confidential information is discoverable. The Kansas Supreme Court has held that "the existence of a privilege is not necessary in order to limit discovery" because "[t]his is done under the court's supervisory powers over discovery pursuant to K.S.A. 60-226." Berst v. Chipman , 232 Kan. 180, 187, 653 P.2d 107 (1982). Under this provision, the district court "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters." K.S.A. 2016 Supp. 60-226(c)(1)(D). In striking a balance between discovery and nondisclosure, courts should consider " 'the nature of the proceeding, whether the deponent is a party, whether the information sought is available from other sources, and whether the information sought goes to the heart of the claim.' " Berst , 232 Kan. at 188, 653 P.2d 107 (quoting Richards of Rockford, Inc. v. Pacific Gas & Electric , 71 F.R.D. 388, 390 [N.D. Cal. 1976] ). Additional factors to conclude are the degree of harm that would be caused by disclosure, the type of controversy before the court, and the public interest in forbidding discovery. Berst , 232 Kan. at 188-89, 653 P.2d 107. "[W]hen a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discovery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material." 232 Kan. at 187, 653 P.2d 107. In sum, given the facts as presented here, the district court abused its discretion by its blanket refusal to allow Hancock to discover Kloster's responses to the peer review committees and state boards. When faced with Hancock's discovery request and Kloster's objection on the basis of confidentiality of the records, the district judge should have conducted an in camera inspection to determine the relevance and discoverability of the requested documents. But an error by the court is not grounds for disturbing a judgment unless the error affects a party's substantial rights. See K.S.A. 2016 Supp. 60-261. The district court provided a couple of reasons why Hancock's substantial rights are not affected by exclusion of this evidence. First, the district court suggested that Hancock was free to ask Kloster whether he admitted wrongdoing to the boards in a deposition. While the court held that the actual records Kloster submitted to the boards were privileged, the underlying facts in those responses were not. At the hearing on the motion to compel discovery Hancock admitted that he had not asked Kloster directly whether Kloster had ever admitted to wrongdoing. Kloster's attorney was adamant that Kloster would deny admitting to any wrongdoing if asked about it in a deposition. Second, the district judge said that it would be "counterintuitive" for the state boards to clear Kloster of wrongdoing if he had admitted that he violated state regulations. We agree with the district court's comments supporting a finding that it was harmless error to exclude discovery of Kloster's factual responses to the boards' investigations. Hancock had other ways of discovering the information even though he failed to pursue them. He could have asked Kloster how he responded to the complaints, in other words, what his justifications were for each challenged pump insertion. Hancock could have asked Kloster if he admitted or admits to any wrongdoing in any of the individual patient cases referred for review. He could have asked Kloster if Kloster had been placed on diversion or received any admonishments, albeit informal, related to Hancock's complaints. But there is nothing in the record to suggest that Kloster ever admitted to any wrongdoing, nor was he asked. In the absence of such fundamental requests, we cannot find that the error in disallowing discovery of the requested documents affects Hancock's substantial rights. Conclusion It was error for the district court to refuse to allow Hancock to discover Kloster's submissions to the state boards. However, the error was harmless in light of the fact that Hancock had other ways of discovering the information. Kloster sufficiently proved damages related to his defamation claim. Hancock argues that Kloster failed to prove damages on his defamation claim. Hancock raised this issue in his motion for a new trial. He argued that there was not "any kind of a quantifiable testimony that ... can be used to establish how [the jury] achieved the $925,000 figure," and that the large judgment indicated passion or prejudice on behalf of the jurors. Hancock "[thought] what the jury was doing was punishing Dr. Hancock rather than remurating [sic ] Dr. Kloster for his loss because there is just no evidence to suggest that he lost $925,000 due to this defamation." The judge then denied Hancock's motion, holding that he did not prove that the jury verdict was a result of passion or prejudice. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. City of Mission Hills v. Sexton , 284 Kan. 414, 421, 160 P.3d 812 (2007). An abuse of discretion occurs if judicial action is either: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011). Generally, "a verdict will be set aside as contrary to law where, under the evidence, the verdict is contrary to the instructions given by the trial court." City of Mission Hills , 284 Kan. at 421, 160 P.3d 812. "A new trial will not be granted, however, on mere allegations. There must be evidence that 'the jury consciously conspired to undermine the jury process by ignoring the instructions. Otherwise, it must be presumed that the jury has properly determined the before and after values before arriving at damages.' " 284 Kan. at 422, 160 P.3d 812. Here, the jury was instructed: "Instruction No. 18. Defamation is communication to a person of false information tending to deprive another of the benefits of public confidence and social acceptance. "Instruction No. 19. If you find that the communication was defamatory and the facts and circumstances surrounding the making of it resulted in injury and harm to the reputation of the plaintiff, then you should award the plaintiff such amount that will compensate plaintiff for the damage the evidence shows plaintiff sustained ." (Emphasis added.) Hancock argues that the jury failed to follow the jury instructions because it compensated Kloster for damages that Kloster failed to prove. "The elements of defamation include false and defamatory words, communicated to a third person, which result in harm to the reputation of the person defamed." Hall v. Kansas Farm Bureau , 274 Kan. 263, 276, 50 P.3d 495 (2002). "[D]amage to one's reputation is the essence and gravamen of an action for defamation." Gobin v. Globe Publishing Co. , 232 Kan. 1, 6, 649 P.2d 1239 (1982). "Proof of such damages typically entails showing that persons were deterred from associating with the plaintiff, that the plaintiff's reputation had been lowered in the community, or that the plaintiff's profession suffered." Ali v. Douglas Cable Communications , 929 F.Supp. 1362, 1385 (D. Kan. 1996). "Damage to reputation can be inferred from the evidence so long as the inference is reasonable." Sunlight Saunas, Inc. v. Sundance Sauna, Inc. , 427 F.Supp.2d 1032, 1072 (D. Kan. 2006) (citing Moran v. State , 267 Kan. 583, 590, 985 P.2d 127 [1999] ). Additionally, "[a] victim's own observations may be suitable as proof of harm to his reputation for defamation cases in Kansas ... but they must raise a reasonable inference that the damage was caused by the plaintiff's statements. [Citation omitted.]" Debord v. Mercy Health System of Kansas, Inc. , 860 F.Supp.2d 1263, 1283 (D. Kan. 2012). However, "[b]road and factually unsupported allegations ... do not support a claim for damages for alleged defamation." Davis v. Hildyard , 34 Kan.App. 2d 22, 30, 113 P.3d 827 (2005). The parties first dispute whether Kloster had to prove actual damages, or whether he could rely on a theory of presumed damages. Kloster argues that plaintiffs can rely on a theory of presumed damages. He cites Moran , in which the Kansas Supreme Court stated that it "ha[d] not squarely decided whether in Kansas any and all defamation plaintiffs must allege and prove actual damages rather than relying on the theory of presumed damages." Moran , 267 Kan. at 598, 985 P.2d 127. However, on the next page of the Moran opinion the court did decide the issue. The court held that in light of Gertz v. Robert Welch, Inc. , 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 2d 789 (1974), "[d]amages recoverable for defamation, whether per se or not, could no longer be presumed but must be proven." 267 Kan. at 599, 985 P.2d 127 ; see also Wright v. Bachmurski , 29 Kan.App. 2d 595, 600, 29 P.3d 979 (2001) ( "In Kansas, any plaintiff in a defamation action must allege and prove actual damages and may no longer rely on the theory of presumed damages."); Debord , 860 F.Supp.2d at 1280 ("Damages recoverable for defamation cannot be presumed but must be proven."); Sunlight Saunas, Inc. , 427 F.Supp.2d at 1072 ("In Kansas, damages for defamation may not be presumed but must be established by proof of actual damages."). Although the trial was five days long, Kloster's testimony regarding damages from defamation was brief. Kloster testified that he had to take time out of his practice to respond to Hancock's complaints to the state boards and others. Kloster did not keep track of the time it took him to deal with the complaints, but he would "guess in the hundreds of hours." He testified that even though Hancock's expert witness only spent six hours reviewing the audited cases, Kloster went through numerous boxes of medical records, met with the Chief Executive Officers of each hospital, the peer review committees, and the state licensing boards. As to the value of his time, it was undisputed that each doctor earned in excess of $500,000 per year. Kloster also testified that he received questions from patients about the Kansas City Star article and that his patients "felt bad for [him]" and "wanted to make sure [he] was okay." Kloster went to Florida to serve on an advisory panel and said that his colleagues, including physicians from the Cleveland Clinic and Johns Hopkins, were aware of the article. Kloster said he was unable to determine the impact of the article on his practice because there was no way for him to determine whether people were intimidated by the article. However, he did present a letter from his malpractice insurer showing that the insurer refused to renew Rockhill's insurance because of the article and indicating that other anesthesiologists would not be comfortable sharing the insurance risk with him. This letter states in part: "Moreover, in our opinion, Dr. Hancock has unnecessarily undermined PPM's defense of his former partner, Daniel Kloster, M.D., due to what we would characterize as a bitter business dispute surrounding the dissolution of Rockhill Pain Specialists, P.A. As you are undoubtedly aware, this dispute was the subject of an article in the Kansas City Star dated June 30, 2013 entitled, 'When Doctors Divorce, the Breakup can be as Messy as a Marital Split.' The content of this article casts both Drs. Hancock and Kloster in a negative light and, in our opinion, increases the likelihood of future litigation against both physicians and their former group. "Finally, our underwriting standards at PPM focus on insuring 'preferred physicians', individuals with whom other anesthesiologists are comfortable sharing risk. Regardless of Dr. Hancock's motives, we do not believe the atmosphere surrounding their former practice presents a risk profile that other anesthesiologists we insure should be asked to share." Finally, Kloster testified that he had never had any complaints or malpractice claims filed against him prior to Hancock's accusations. But after the accusations, the heirs of one of the patients Hancock reported on filed a malpractice claim against Kloster. Hancock testified that despite his reports to various boards, he did not know whether the installation of the pump was found to have caused the patient's death. The jury could easily and properly infer that this claim would not have been made but for Hancock's accusations against Kloster in a variety of forms. Hancock propounds several ways that Kloster's evidence is too weak to support an award of actual damages. He notes that Kloster could not specify exactly how much time he spent responding to Hancock's complaints. Kloster did not testify that he lost patients or referrals. In fact, Kloster's testimony about his patients' reactions to the Kansas City Star article showed that they all still held him in high esteem. The same is true regarding the reactions of other doctors with whom Kloster interacted. Hancock also notes that Kloster did not lose any privileges from hospitals or the state licensing boards, which further shows that his reputation was not damaged. Finally, Hancock discounts the letter from Rockhill's malpractice insurer by noting that Kloster was later able to secure new malpractice insurance. The issue is determining whether the district court abused its discretion in finding that the jury followed its instruction to award damages that the evidence shows Kloster sustained. Hancock makes good points about Kloster's testimony regarding comments from his patients and other physicians. From this testimony alone, it would appear that Kloster did not prove harm to his reputation. However, the testimony did help establish that knowledge of Hancock's allegations was widespread. A jury could make a reasonable inference that widespread accusations that Kloster killed patients could harm Kloster's reputation. As Kloster explained at trial, it would be difficult for him to present direct evidence that patients were deterred from seeking him out because he would not have come into contact with those patients. Kloster's evidence regarding the time it took him to respond to Hancock's complaints could have been stronger. He did testify that it probably took him hundreds of hours to respond to the complaints, but he did not quantify his time or translate the time into lost earnings. But, in Gertz the Supreme Court said that "all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury." 418 U.S. at 350, 94 S.Ct. 2997. Kloster's testimony provided the jury with competent evidence to conclude that Kloster suffered damages. Kloster was an anesthesiologist in a lucrative industry-it was reasonable for the jury to conclude that he suffered damages as a result of lost time dealing with Hancock's complaints. Kloster's letter from his malpractice insurer was the clearest evidence that his reputation had been harmed and that the harm was caused by Hancock. The letter directly states that Hancock "unnecessarily undermined" the insurer's defense of Kloster. The letter also shows that the Kansas City Star article "casts both Drs. Hancock and Kloster in a negative light." Finally, the insurer did not think that other anesthesiologists would feel comfortable sharing risk with Kloster and Hancock. The letter demonstrates that Hancock's complaints caused actual harm to Kloster's reputation. Finally, the fact that no malpractice cases had been filed against Kloster before the accusations, but a malpractice suit was filed by one of Kloster's patients who Hancock targeted after his accusations, would also lead the jury to conclude that there was actual damage to Kloster's reputation. Conclusion The district court did not abuse its discretion in refusing to grant Hancock a new trial on this issue. The jury heard sufficient evidence to support an award of actual damages to Kloster. Because Hancock fails to establish that defamation is a personal injury action, the district court did not err in failing to reduce Kloster's award to the $250,000 statutory cap established in K.S.A. 2016 Supp. 60-19a02. Hancock argued for the first time in his motion for a new trial that the jury's award for defamation should be reduced to $250,000. He bases his argument on K.S.A. 2016 Supp. 60-19a02, which provides a statutory cap of $250,000 on noneconomic damages in personal injury actions. Kloster argues that defamation is not a personal injury action covered by K.S.A. 2016 Supp. 60-19a02, and that even if it was Hancock failed to request an itemization of damages. This court reviews the trial court's decision on a motion for new trial for an abuse of discretion. City of Mission Hills , 284 Kan. at 421, 160 P.3d 812. An abuse of discretion occurs if judicial action is either: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Ward , 292 Kan. at 550, 256 P.3d 801. A "personal injury action" is defined as "any action seeking damages for personal injury or death." K.S.A. 2016 Supp. 60-19a02(a). It does not appear that Kansas courts have decided whether defamation constitutes a personal injury action for the purposes of K.S.A. 2016 Supp. 60-19a02. Hancock provides no citation for his contention that defamation constitutes a personal injury action. His argument is limited to the following: "A defamation action qualifies as a 'personal injury action.' Kansas law makes clear that 'personal injury actions' are not restricted to negligence." He cites Cott v. Peppermint Twist Mgt. Co. , 253 Kan. 452, 493-94, 856 P.2d 906 (1993), which held that "personal injury actions" were not restricted to negligence. Peppermint Twist does not stand for the proposition that defamation is a personal injury action. "A failure to support an argument with pertinent authority or to show why the argument is sound despite a lack of supporting authority ... is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned." State v. Tague , 296 Kan. 993, 1001, 298 P.3d 273 (2013). It cannot be said that the district court abused its discretion in refusing to apply K.S.A. 2016 Supp. 60-19a02 when Hancock failed to provide the court with authority that defamation is a personal injury action as that term is used in K.S.A. 2016 Supp. 60-19a02(a). Furthermore, the Kansas Supreme Court has suggested that defamation is not a personal injury action. In Valadez v. Emmis Communications , 290 Kan. 472, 229 P.3d 389 (2010), the Kansas Supreme Court had to determine whether a claim for defamation survived the death of the plaintiff making the claim. The court examined K.S.A. 60-1801, which provided that a cause of action for injury to the person survives that person's death. It then held that "[d]efamation is similar to invasion of privacy, in that there is no requirement of proof of personal injury that would allow the action to survive under K.S.A. 60-1801." 290 Kan. at 480, 229 P.3d 389. Finally, when examined in the criminal context, the crime of criminal false communication, which is the equivalent of civil defamation, has been designated by the Legislature as a nonperson misdemeanor, indicating it is not a crime which would inflict, or could inflict, physical or emotional harm to another generally. K.S.A. 2016 Supp. 21-6103(b) ; State v. Waggoner , 51 Kan. App. 2d 144, 154-55, 343 P.3d 530 (2015), rev. denied 303 Kan. 1081 (2015). Accordingly, we conclude that defamation is not a personal injury action as contemplated by K.S.A. 2016 Supp. 60-19a02(a). But even assuming K.S.A. 2016 Supp. 60-19a02 did apply to defamation, Hancock faces another hurdle to his claim that Kloster's damages should be capped under the statute-he failed to request an itemization of noneconomic damages. K.S.A. 2016 Supp. 60-19a02(c) provides: "In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss." In cases applying the statute, the jury itemized the damages. See, e.g., Natalini v. Little , 278 Kan. 140, 142, 92 P.3d 567 (2004) ; Hilburn v. Enerpipe, Ltd. , 52 Kan.App. 2d 546, 548-49, 370 P.3d 428 (2016) ("After hearing all the evidence, the jury returned a verdict of $335,000 in total damages for Hilburn; $301,509.14 constituted noneconomic loss damages. Pursuant to our Kansas damages cap statute, K.S.A. 2016 Supp. 60-19a02, the district court reduced the amount of noneconomic loss damages to $250,000."), rev. granted 306 Kan. ---- (August 24, 2017); Lundeen v. Lentell , No. 114,493, 2017 WL 2833984, at *5 (Kan. App. 2017) (unpublished opinion) ("The jury awarded damages of $85,514.33 for medical expenses, $35,000 for economic loss, and $2,000,000 for noneconomic loss. The court reduced the verdict to $322,308.59 after applying the comparative fault of the parties and the statutory cap of $250,000 for noneconomic damages."). Kloster cites Sultani v. Bungard , 35 Kan. App. 2d 495, 497, 131 P.3d 1264 (2006), to support his argument that Hancock waived the right to assert the statute. There, the Sultanis brought a wrongful death action against April Bungard. The jury awarded $11,000 in damages to the Sultanis but found that they should receive $0 in noneconomic damages. The district court "offered the Sultanis the option to require the jury to resume deliberations to consider an award for noneconomic damages." 35 Kan. App. 2d at 496, 131 P.3d 1264. The Sultanis declined the district court's offer and accepted the jury verdict. Later, the Sultanis moved for a new trial, "arguing that the jury's failure to award noneconomic damages was contrary to the evidence presented at trial." 35 Kan.App. 2d at 497, 131 P.3d 1264. The trial court denied the Sultanis' motion, holding "that they had waived their right to a new trial by declining to require the jury to resume deliberations for an award of noneconomic damages." 35 Kan.App. 2d at 497, 131 P.3d 1264. The Sultanis appealed. The Court of Appeals affirmed the district court, holding that "[t]he Sultanis' conduct in declining to have the jury return to deliberations and in accepting the verdict constituted a waiver of any right they might have had to recover noneconomic damages in their wrongful death action." 35 Kan.App. 2d at 498, 131 P.3d 1264. It does not appear that Kansas courts have determined whether waiver applies to K.S.A. 2016 Supp. 60-19a02. However, the caselaw related to waiver of other verdict issues suggests that Hancock waived his right to request a new trial on this issue by failing to object to the jury's verdict before the jury was discharged. Banbery v. Lewis , 173 Kan. 59, 244 P.2d 202 (1952), involved a three-way car collision. The plaintiff, Frederick Banbery, sued J.A. Lewis and Alfred Noone, alleging that their negligence caused the collision. Noone had struck Lewis, causing Lewis' car and trailer to swerve into Banbery's lane on the highway. Noone and Lewis filed cross-petitions against each other, each alleging that the other acted negligently. The court submitted seven verdict forms to the jury, "some of which related to the liability of [Lewis] and [Noone] as between themselves," but "the jury returned but one general verdict in which it found [Lewis] and [Noone] jointly liable." 173 Kan. at 68, 244 P.2d 202. Lewis did not object to the verdict. On appeal, Lewis argued that he should be granted a new trial against Noone because the jury never decided his cross-petition against Noone. The Kansas Supreme Court rejected this argument, holding: "The record fails to disclose [Lewis] made any objection to the verdict until after the jury was discharged. In that situation he is deemed to have waived any objections he might have thereto and cannot urge them for the first time upon a motion for a new trial or on appeal." 173 Kan. at 68, 244 P.2d 202. This rule was reiterated in several later cases. See, e.g., City of Olathe v. Stott , 253 Kan. 687, 703, 861 P.2d 1287 (1993) ("The landowners did not object to the verdict at trial and did not preserve this issue for appeal. We have held that absent an objection before the jury is discharged, a party cannot later assert an objection to the verdict."); Kitchen v. Lasley Co. , 186 Kan. 24, 28, 348 P.2d 588 (1960) (holding that it is an "established rule of this jurisdiction that, absent any objection to a verdict until after the jury is discharged, a litigant is deemed to have waived any objections he might have thereto and cannot urge them for the first time upon a motion for a new trial or on appeal"); Watkins Co. v. Hanson , 185 Kan. 758, 763, 347 P.2d 447 (1959) ("[T]his court is committed to the rule that, absent any objections to a verdict until after the jury is discharged, a litigant is deemed to have waived any objections he might have thereto and cannot urge them for the first time upon a motion for a new trial or on appeal."). "The rule requiring an objection if there is some ambiguity serves the objective of avoiding the expense and additional time for a new trial by having the jury which heard the facts clarify the ambiguity while it is able to do so." Bennion v. LeGrand Johnson Constr. Co. , 701 P.2d 1078, 1083 (Utah 1985) ; see Kitchen , 186 Kan. at 28-29, 348 P.2d 588. Issues of alleged juror misconduct can also be waived. " '[W]here alleged juror misconduct claimed as prejudicial is known by the party or his counsel before the verdict is rendered, and no objection is made nor is the matter brought to the court's attention, the party cannot later assert the misconduct as grounds for a new trial.' " State v. Wheaton , 240 Kan. 345, 354, 729 P.2d 1183 (1986). The reasons for this rule are as follows: " 'If the alleged misconduct is brought to the court's attention a hearing may be held and the situation remedied, if that is possible. If not, a mistrial may be declared immediately without wasting the time and expense required to complete the trial. The rule is a corollary of the contemporaneous objection rule as to evidence and the requirement of an objection to erroneous instructions. A party is not permitted to remain silent in the face of known error, gamble on the verdict, and show his hole card only if he loses. [Citations omitted.]' " 240 Kan. at 354, 729 P.2d 1183 (quoting State v. Buggs , 219 Kan. 203, 208, 547 P.2d 720 [1976] ). Similar principles are at play here. If Hancock had an objection to the court's failure to itemize the jury's verdict form, he should have objected before the jury was discharged. He should not now receive a new trial, and thus a chance at reducing the damages award, because of his failure to object to the verdict at the appropriate time. Conclusion While Hancock argues that defamation is a personal injury action, and thus subject to the statutory cap in K.S.A. 2016 Supp. 60-19a02, he fails to support his argument with pertinent authority. Thus, he has failed to adequately brief this issue. Furthermore, defamation does not require proof of personal injury so the statute does not apply to defamation claims. Even if K.S.A. 2016 Supp. 60-19a02 applied to defamation claims, Hancock did not object to the jury's failure to itemize damages in the verdict. By failing to request that the jury itemize damages, Hancock waived his right to apply K.S.A. 2016 Supp. 60-19a02. The damages award for nondefamation claims did not ignore the distinction between Kloster and Rockhill. Hancock's final argument is that the jury's award for Kloster's claims of breach of fiduciary duty, fraud, fraud by silence, and conversion ignored the distinction between Kloster and Rockhill. The jury awarded Kloster $63,343.11 for breach of fiduciary duty, $9,083.75 for fraud, and $9,269.60 for conversion. Hancock argues that Kloster's "evidence of damages rested on calculations made by the receiver ... [b]ut the receiver's report plainly indicates the amounts used to calculate damages were in fact owed to Rockhill, not Dr. Kloster personally." He points to the fact that the jury's award for fraud was $9,083.75 and argues that the number "almost certainly is based" on Hancock's $5,083.75 payment for his personal health insurance plus $4,000 obtained from a severance payment Hancock made. Because these sums were due to Rockhill, based on the 50-50 distribution of income and expenses, Hancock contends that Kloster would only be entitled to half those amounts. Accordingly, he asserts that the jury ignored the distinction between Kloster and Rockhill. Kloster argues that the jury's award was "well within the range of proof offered" at trial. Hancock first raised this issue in his motion for a new trial. As stated above, this court reviews the trial court's decision on a motion for new trial for an abuse of discretion. City of Mission Hills , 284 Kan. at 421, 160 P.3d 812. An abuse of discretion occurs if judicial action is either: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Ward , 292 Kan. at 550, 256 P.3d 801. Kloster presented several bases for damages on each of his claims. For breach of fiduciary duty, Kloster argued that he should receive damages for Hancock's (1) distribution of Rockhill's profits in 2012 and 2013 when the parties did not agree how to distribute the profits, (2) diversion of Rockhill funds for his own benefit, (3) making bonus and severance payments to his wife when Rockhill was winding down, (4) concealing his improper use of Rockhill's funds, and (5) making malicious attacks against Kloster. Kloster argued similar bases for damages in his conversion claim. For fraud and fraud by silence, Kloster argued that he was damaged when Hancock used Rockhill funds for personal expenses and concealed that fact from Kloster. Kloster relied on the receiver's report as evidence of his damages. The report contained an analysis of the doctors' credit card charges, and determined that between 2010 and 2012 Hancock accrued $32,609.50 in disallowed expenses for office supplies, automobile expenses, clothing, meals and entertainment, and travel. The receiver also disallowed $24,827.96 in expenses for Hancock's payments to Myckowiak, Trescot, and his personal law firm. The receiver also took issue with bonus and severance payments that Hancock made to various employees during Rockhill's winding down process. The doctors had not agreed on severance payments, but Hancock paid $34,704 in severance to three employees. Hancock also made $37,223.38 in bonus payments that were not approved by Kloster. Assuming these funds were paid back to Rockhill and split between the partners, Kloster would receive $64,682.42. Kloster also asked for damages that were not quantified in the receiver's report, such as damages for Hancock's concealment of his use of Rockhill funds. "[I]f a verdict is supported by substantial evidence it will not be disturbed on appeal." Diefenbach v. State Highway Commission , 195 Kan. 445, 447, 407 P.2d 228 (1965). A verdict for actual damages will not be "disturbed merely because this court cannot definitely ascertain the precise method by which the jury arrived at the exact amount of its verdict when such an amount is reasonably within the range of the evidence." 195 Kan. at 447, 407 P.2d 228. The jury's total award of $81,696.46 for Kloster's nondefamation claims is supported by the evidence. The receiver's report, the doctors' dispute over compensation, and Kloster's claims for damages outside the scope of the receiver's report provide sufficient evidence to conclude that the district court did not abuse its discretion in refusing to grant Hancock a new trial on this basis. Affirmed.

Hill, J.: Small actions, at times, have profound legal consequences. The filing of a satisfaction of a judgment is most often the final action in a lawsuit. That is what happened here and is the reason why we dismiss this appeal. With the judgment in this case satisfied, we see no controversy remaining between these litigants. We will not offer them an advisory opinion concerning the merits of the appeal because to do so is contrary to the long-standing policy of Kansas appellate courts. Accordingly, we dismiss this appeal as moot. After recounting what has happened in this case since the appeal was docketed, we address the question of setoff. The law and the contract of the parties say that Security Bank of Kansas City has the right to that remedy. We then move to the question of acquiescence and demonstrate that, contrary to the Bank's claim, Anthony Nichols has not acquiesced in this judgment. Then, after recognizing the significance of the satisfaction of judgment filed in this case, we show that this appeal is now moot. This lawsuit is based on a guaranty contract. The district court granted summary judgment to the Bank against Nichols based upon their commercial guaranty contract. In the contract with the Bank, Nichols had agreed to guarantee the debts of Tripwire Operations Group, LLC-a corporation in which he had a membership interest. When Tripwire later defaulted on its credit card account, based on the contract, the Bank sued Tripwire, Nichols, and Ryan Morris-another guarantor-to recover money under their guaranty. Nichols then appealed, claiming various reasons why the court should not have granted summary judgment. After the appeal was docketed and Nichols had filed his brief, the Bank moved for the involuntary dismissal of the appeal on the grounds that it was now moot and Nichols had acquiesced in the judgment by not posting a supersedeas bond. Through exercising its statutory and contractual right of setoff, the Bank took $7,595.96 from an account that was in Nichols' name and applied it to the judgment. The record on appeal contains a satisfaction of judgment filed by the Bank in the district court on June 19, 2017. It acknowledges full and complete satisfaction of the Bank's judgment against Nichols, Morris, and Tripwire. Thus, the summary judgment that Nichols is appealing has been satisfied. Nichols had not filed a request for a stay of proceedings to enforce the judgment in the district court, nor did he file a supersedeas bond under K.S.A. 2016 Supp. 60-262(d) that would stay collection efforts on the Bank's judgment. The Bank, through a self-help legal remedy, resolved the controversy. In the Bank's view, there is nothing more to litigate because it has no more claims against Nichols. The motions panel of this court denied the Bank's motion to dismiss the appeal "on present showing," thus leaving the issue unresolved, deferring the question to this panel. Essentially, the motions panel refused to address the question of acquiescence raised by the Bank in its motion since it did not have access to the entire record on appeal. The question for us becomes, since the Bank's judgment is now satisfied is this appeal moot? For the reasons we give later, we hold it is. But we address the issue of setoff first. The law is clear. The Bank had the right to do what it did. When it adopted the Banking Code, the Legislature granted the right to any bank to set off any matured claim it has against any depositor. A bank's right to setoff under K.S.A. 9-1206 is a self-help remedy through which a bank may apply funds in a depositor's account in full or partial satisfaction of any mature obligation or claim the bank has against the depositor. Iola State Bank v. Bolan , 235 Kan. 175, 187-88, 679 P.2d 720 (1984). This right to setoff is not absolute-for instance, the debts must be mutual and a bank may not exercise the right to setoff if it has actual knowledge that money in the account belongs to a third person. 235 Kan. at 188, 191, 679 P.2d 720. Because the right to setoff is a type of self-help remedy, there is no requirement that any judicial action needs to occur before the bank exercises the remedy. In contrast, there are ways to satisfy a judgment that are necessarily not self-help remedies. For example, an execution, whether general or special, must be issued by the clerk of the district court and signed by a judge. K.S.A. 2016 Supp. 60-2401. Similarly, a garnishment requires some legal procedure, a judgment, and an order to be effective. See K.S.A. 60-721. The self-help nature of the bank's right to setoff is explained in Karner v. Willis , 10 Kan. App. 2d 432, 700 P.2d 582, aff'd 238 Kan. 246, 710 P.2d 21 (1985). In Karner , judgment creditors sent an order of garnishment to the judgment debtor's bank. Although the judgment debtor had a deposit account with the bank, the bank responded that there were no funds to garnish. There were no funds to garnish because the judgment debtor was indebted to the bank, and the bank had taken the funds in the deposit account as a setoff. This court ruled the bank's setoff was proper even though it had received the order of garnishment prior to its setoff. 10 Kan. App. 2d at 433-34, 700 P.2d 582. Even though Karner involved a bank's secured interest controlled by the Uniform Commercial Code, K.S.A. 84-1-101 et seq., the court held the security agreement created an "additional option of pursuing the collateral according to the terms of the security agreement," and the bank does not have to "exhaust the collateral as a prerequisite to the exercise of its setoff right." 10 Kan. App. 2d at 435-36, 700 P.2d 582. Karner clearly illustrates the point that the right to setoff is a self-help remedy that banks may exercise against mature obligations and claims. We must also point out that the guaranty contract signed by Nichols had a setoff provision that he agreed to. "To the extent permitted by applicable law. Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender may apply the funds in those accounts to pay what Guarantor owes under the terms of this Guaranty." Thus, we conclude that the Bank had a contractual right, as well, to do what it did. The facts are simple. The Bank had a judgment debt against Nichols. No stay order had been entered by the district court. With no legal impediment preventing collection efforts, the Bank took steps to recover its debt. Nichols had money in an account at the Bank, and through exercising its rights under the contract and a self-help remedy allowed by law, it satisfied its claim against Nichols. The satisfaction of that judgment was proclaimed to the entire world by filing a satisfaction of judgment. The significance of filing a satisfaction of judgment by a judgment creditor, such as the Bank here, cannot be overstated. "Generally, a satisfaction of a judgment is the final act and end of a proceeding. A satisfaction of judgment on the record extinguishes the claim and ends the controversy. An unconditional satisfaction and release of judgment operates as a total relinquishment of all rights ... in the judgment; it is a complete discharge of the debt created by the judgment ..., including the right to challenge the judgment on appeal .... "If a judgment creditor accepts money in complete satisfaction and release of the creditor's judgment, that judgment has no further force or authority. "A satisfaction of judgment bars any further effort to alter or amend the final judgment." 47 Am. Jur. 2d, Judgments § 766 (2017). Applying these principles to this case, it becomes obvious that Nichols' judgment debt to the Bank is now satisfied. The satisfaction of judgment is a final release of all claims that the Bank has against Nichols. Since there is no counterclaim by Nichols, the controversy between these litigants has evaporated. We now consider acquiescence. The Bank claims that this court lacks jurisdiction because Nichols has acquiesced in the judgment by failing to stay any execution on the judgment through posting a supersedeas bond with the court as provided by K.S.A. 2016 Supp. 60-262(d). Nichols argues to the contrary. We hold Nichols is correct on this point. The doctrine of acquiescence prevents a party from taking the inconsistent positions of challenging a judgment through an appeal and accepting the burdens or benefits of that judgment. Whether a party has acquiesced involves a question of this court's jurisdiction and is a question of law subject to unlimited review. Uhlmann v. Richardson , 48 Kan. App. 2d 1, 6, 287 P.3d 287 (2012). But there is one prime requirement to prove acquiescence. In order for acquiescence to cut off the right to appeal, the acceptance of the burdens or benefits of a judgment debtor must be voluntary . Whether a payment of a judgment is voluntary depends on the facts of the particular case, and the ultimate issue is whether the payer intended to waive his or her legal rights. Varner v. Gulf Ins. Co. , 254 Kan. 492, 497, 866 P.2d 1044 (1994). We see no action by Nichols that indicates his intent to waive his appeal. For support of its contention that Nichols has acquiesced, the Bank cites Vap v. Diamond Oil Producers, Inc. , 9 Kan. App. 2d 58, 671 P.2d 1126 (1983). In Vap , a panel of this court found acquiescence when the appellant knew of the plaintiff's intent to garnish but took no action to prevent the execution of the judgment. 9 Kan. App. 2d at 61, 671 P.2d 1126. The appellant knew of the plaintiff's intent to garnish because garnishment proceedings had begun while the appellant was contesting the underlying judgment. Here, the facts differ from those found in Vap . After the district court granted the Bank summary judgment, Nichols filed his notice of appeal on March 29, 2017, and filed his docketing statement on April 18, 2017. Then, after the appeal had been docketed, the Bank withdrew funds from Nichols' account and gave him notice after the fact that the funds had been withdrawn. We see no voluntary action by Nichols in this scenario. Simply put, we cannot say that Nichols voluntarily complied with the summary judgment when he simply received a letter saying the Bank had taken his money out of his account. We hold that Nichols' failure to post a bond alone is not acquiescence according to caselaw. See State v. Downey , 198 Kan. 564, 568, 426 P.2d 55 (1967) ; Citifinancial Mortgage Co. v. Clark , 39 Kan. App. 2d 149, 156-57, 177 P.3d 986 (2008). The facts do not show that Nichols voluntarily submitted to the judgment. We move now to the issue of mootness. This court exercises unlimited review over whether a claim is moot. State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012). Generally, courts do not decide moot questions or render advisory opinions. State v. Montgomery , 295 Kan. 837, 840, 286 P.3d 866 (2012). The mootness doctrine is a court policy that recognizes the role of the court is to " 'determine real controversies relative to the legal rights of the persons and properties which are actually involved in the particular case properly before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.' " Hilton , 295 Kan. at 849, 286 P.3d 871. "An appeal will not be dismissed for mootness unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights." Wiechman v. Huddleston , 304 Kan. 80, 84, 370 P.3d 1194 (2016). When we ask what is left to litigate in this case, the answer is: nothing. There is no controversy remaining between these parties. Had the Bank exercised its right of setoff before summary judgment was granted by the district court, or even before the lawsuit was filed, there would have been the same result. There is no counterclaim. This lawsuit is done. We address the Bank's request for attorney fees in a separate order. Appeal dismissed.

The opinion of the court was delivered by Johnson, J.: This is a quiet title action involving the mineral interests in two tracts of real estate that were conveyed by deeds in which the grantor excepted the mineral interests for a "period of 20 years or as long thereafter" as minerals may be produced. The grantor's successors in interest (Grantor's heirs) claim that the future interests in the minerals that the deeds purported to convey to the grantees-that is, ownership of the minerals when grantor's excepted term interest ended-violated the common-law rule against perpetuities (the Rule), thereby voiding those conveyances ab initio and preventing them from subsequently devolving to the grantees' successors in interest (Grantees' heirs). Consequently, Grantor's heirs now claim full ownership of the mineral interest in both tracts. The district court relied on the intent of the parties to the original deeds to find that the Grantees' heirs obtained ownership of the minerals when 20 years expired without production on the property. We affirm the district court's result, but on different grounds. We determine that the common-law rule against perpetuities, being a rule founded upon public policy, should not be applicable to the circumstances presented here. FACTUAL AND PROCEDURAL OVERVIEW The parties do not dispute the facts. On December 30, 1967, Frank E. Littler (Grantor) executed two deeds conveying tracts of real estate situated in the same section, to-wit: Section 20, Township 16 South, Range 19, West of the 6th P.M., Rush County, Kansas. He conveyed the East Half of the section (East Tract) to Franklin G. Littler and Elaine Littler (Littler Grantee). He conveyed the Northwest Quarter of the section (Northwest Tract) to Ruby I. Myers and George E. Myers (Myers Grantee). The Littler Grantee and the Myers Grantee will be collectively referred to as Grantees. Both the deed transferring the East Tract and the deed transferring the Northwest Tract contained the following language: "EXCEPT AND SUBJECT TO: Grantor saves and excepts all oil, gas and other minerals in and under or that may be produced from said land for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced therefrom and thereunder." (the reservation). On December 28, 1973, in Rush County Probate Case No. 3802, a Journal Entry of Final Settlement distributed specified percentages of the residue of Grantor's estate, which would encompass any excepted interest in the above-described real estate, to children and grandchildren. Some of the Grantor's grandchildren and great-grandchildren who succeeded to the residuary interests under Grantor's will are the Grantor's heirs claiming the invalidity of Grantor's conveyance of the future interest in minerals to the Littler Grantee and the Myers Grantee. From the expiration of the 20-year term of years, December 30, 1987, to the date the district court filed its memorandum decision granting summary judgment to the Grantees' heirs, May 31, 2017, there was no drilling operation conducted on either the East Tract or the Northwest Tract, and no oil or gas or other minerals was ever produced from either tract. In 2016, Jason Oil Company, LLC (Jason Oil) filed its amended petition to quiet title to both tracts, claiming to hold valid and subsisting oil and gas leases. With respect to the Northwest Tract, the petition alleged that Michael L. Stull, Jerilyn Ann Stull, and Craig A. Stull-successors to the interests of the Myers Grantee-own all of the oil, gas, and other minerals in and under the property. With respect to the East Tract, the petition alleged that F&E Littler, LLC-presumably the successor to the interests of the Littler Grantee-owns all of the oil, gas, and other minerals in and under the property. Debra Baldwin Burkhart, Susan Baldwin Manes, and James Baldwin and others (Grantor's heirs) answered, claiming an interest in the mineral rights through Frank E. Littler's will, as his grandchildren and great-grandchildren. In a motion for judgment on the pleadings, the Grantor's heirs argued that after the deeds were executed and delivered, Grantor was vested with a fee simple determinable in the mineral rights and the Littler Grantee and Myers Grantee held springing executory interests in the minerals which were subject to and invalidated by the Rule. Michael Stull, Jerilyn Ann Stull, Craig Stull, Janice Stull, and F&E Littler, LLC, as Grantees' heirs, also answered. They admitted all of the allegations in Jason Oil's amended petition and cross-claimed against all other defendants, alleging that Michael Stull, Jerilyn Ann Stull, and Craig Stull owned the Northwest Tract minerals as successors to the Myers Grantee and that F&E Littler, LLC owned the East Tract minerals as successors to the Littler Grantee. Alternatively, Grantees' heirs asserted that if the court determined the future interest in minerals conveyed by Grantor violated the Rule, the interests should be reformed under the Uniform Statutory Rule Against Perpetuities (USRAP) specifically under K.S.A. 59-3405(b) to conform with the intent of the parties and avoid violating the Rule. The Grantor's heirs filed a motion for summary judgment seeking a ruling that the future interests in minerals created in the deeds are springing executory interests that are void under the Rule; that USRAP, including K.S.A. 59-3405(b), is void for violating Article II, § 16 of the Kansas Constitution because it was passed in a bill containing more than one subject; and that ownership of the minerals lying in and under both Tracts passed with the residue of Frank E. Littler's estate as stated in the Journal Entry of Final Settlement of the probate case. The district court granted the Grantees' heirs' contested motion for bifurcation, ruling that the court would not determine whether USRAP violated Article II, § 16 of the Kansas Constitution until it determined the threshold issue of whether the mineral interests violated the Rule. The Grantees' heirs and Jason Oil responded in opposition to the Grantor's heirs' motion for summary judgment. The Grantees' heirs filed their own summary judgment motion. On May 31, 2017, the district court denied the Grantor's heirs' motion and granted summary judgment to the Grantees' heirs. The district court noted that "[t]here is no serious dispute that Frank E. Littler [Grantor] conveyed all of his interest in the subject properties to the respective grantees, subject only to the grantor's express reservation, excepting and saving a term mineral interest." The court found that when construing deeds, all other rules are subordinate to the intention of the grantor and Frank E. Littler's intention "could not be clearer than stated." With respect to classifying the mineral interests, the court found: "Frank E. Littler granted less than the entire interest in the subject real estate and created a defeasible estate by reservation. The defeasible term mineral interest in each deed is a future estate reserved to the grantor and a reversion. A reversion remaining in the grantor is not subject to the [Rule]." The district court also considered the public policy underlying the Rule and found that Grantor's reservation had not restricted alienation of the surface and mineral estates of the real property in question. The Grantors' heirs filed a motion to alter or amend the judgment requesting that the district court change its analysis to focus on the future interest created in the grantees and hold the Rule applied to the grantees' interests. If the court continued to rule for the Grantees' heirs, the Grantor's heirs requested an order quieting title in the Grantees' heirs to ensure the judgment was a final appealable order. The district court granted the request to quiet title but denied the remainder of the motion to alter or amend. After the Journal Entry of Judgment Quieting Title was filed, the Grantor's heirs timely appealed to the Court of Appeals. This court granted the Grantor's heirs' motion to transfer the appeal from the Court of Appeals and granted motions to file amicus curiae briefs on behalf of the Kansas Independent Oil & Gas Association (KIOGA), the Eastern Kansas Oil & Gas Association (EKOGA), and the Wichita Association of Petroleum Landmen (WAPL). THE APPLICABILITY OF THE COMMON-LAW RULE AGAINST PERPETUITIES We are asked to decide a question of first impression in this state that carries the potential of voiding innumerable transfers of mineral interests and creating marketable title problems of epic proportions. Does the common practice of reserving a term interest in minerals that continues so long as minerals are produced create a springing executory interest that must be invalidated by the Rule? Standard of Review This court has unlimited review for two reasons. First, the parties agree that the material facts are uncontroverted; therefore, this court reviews the district court's summary judgment decision de novo. See Superior Boiler Works, Inc. v. Kimball , 292 Kan. 885, 890, 259 P.3d 676 (2011). Second, "[t]he interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review." Thoroughbred Assocs. v. Kansas City Royalty Co. , 297 Kan. 1193, 1207, 308 P.3d 1238 (2013) ; see also Rucker v. DeLay , 295 Kan. 826, 830, 289 P.3d 1166 (2012) (in case decided based on documents and stipulated facts, appellate court has de novo review over whether royalty interest is void under the rule against perpetuities); Central National Resources v. Davis Operating Co. , 288 Kan. 234, 240, 201 P.3d 680 (2009) (legal effect of coal deed is a question of law subject to unlimited review). Analysis We begin by discussing the Rule. It " 'precludes the creation of any future interest in property which does not necessarily vest within twenty-one [21] years after a life or lives presently in being, plus the period of gestation, where gestation is, in fact, taking place.' " Rucker , 295 Kan. at 831, 289 P.3d 1166 (quoting Singer Company v. Makad, Inc. , 213 Kan. 725, 728-29, 518 P.2d 493 [1973]). In the context of a decedent's estate, we opined: "The test for determining whether an interest violates the rule is simple: Can a hypothetical case be posed, based upon the facts as they existed at the date of the testator's death, in which the interest will vest later than lives in being and 21 years?" In re Estate of Freeman , 195 Kan. 190, 196, 404 P.2d 222 (1965). This court has also explained, "[w]here the twenty-one [21] year period has no reference to a life or lives in being, it has been said to be in gross, and the devise or grant is not too remote if the contingency must happen within that time." Singer , 213 Kan. at 729, 518 P.2d 493. In Kansas, the Rule "began as a creation of common law." Rucker , 295 Kan. at 830, 289 P.3d 1166. In 1992, the Kansas Legislature "codified and somewhat modified" the Rule by adopting USRAP, K.S.A. 59-3401 et seq. 295 Kan. at 830, 289 P.3d 1166. USRAP supersedes the Rule; however, this statutory modification applies only to nonvested property interests "created on or after the effective date of this act." K.S.A. 59-3405(a) ; see also Gore v. Beren , 254 Kan. 418, 429, 867 P.2d 330 (1994) (holding USRAP did not apply to property interest created in 1962). So USRAP's modification of the Rule does not apply to the property interests the deeds created in 1967. Therefore, we must determine whether the common-law Rule applies in this case. See K.S.A. 77-109 ("The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state."). The Grantor's heirs first argue the district court erred when it analyzed whether the present interests the Grantor kept violated the Rule. They assert that the district court should have analyzed the future interests Grantor conveyed to the Grantees. We agree with the Grantor's heirs on this point. The district court's decision contained the following conclusions classifying the interests: "1. Frank E. Littler, as the grantor in each deed, reserved a defeasible term mineral interest. "2. The future estate kept by Littler in the mineral interest of the subject property was a reversion. .... "5. The reservation of the defeasible term mineral interest by Frank E. Littler was a reversion, and was not subject to the [Rule]." (Emphases added.) With regard to conclusion number 1, the district court's finding that Grantor's mineral interest was a "defeasible term mineral interest" is accurate under Kansas law, albeit Kansas courts have not addressed such a classification issue in the context of a Rule violation challenge. See Classen v. Federal Land Bank of Wichita , 228 Kan. 426, 437, 617 P.2d 1255 (1980) (describing a tract "subject to a defeasible term one-fourth mineral interest of the [grantor] created in a single instrument for a primary term of twenty years ... and so long thereafter." [Emphases added.] ); see also Dewell v. Federal Land Bank , 191 Kan. 258, 260, 380 P.2d 379 (1963) ("This court has held in a long line of decisions that the conveyance or reservation of minerals in place by deed for a primary term and so long thereafter as oil or gas is produced or the premises are being developed creates a base or determinable fee."), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 ; 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."); Williams & Meyers, Manual of Oil and Gas Terms, 272 (17th ed. 2018) (defining "defeasible-term interest" as "[a] mineral, royalty or nonexecutive mineral interest for a fixed term of years and for an indefinite period of time thereafter, usually so long as oil or gas is produced"). In its conclusions 2 and 5, the district court veered off course. The defeasible term mineral interest Grantor kept was a present interest. Compare 3 Restatement (Third) of Property § 24.1 (2011) ("A present interest is an ownership interest in property that entitles the owner to possession or enjoyment of the property."), with 3 Restatement (Third) of Property § 25.1 (2011) ("A future interest is an ownership interest in property that does not currently entitle the owner to possession or enjoyment of the property. The owner's right to possession or enjoyment is postponed until some time in the future and may be contingent or vested."). Before the conveyances, Grantor owned the mineral interests outright and possessed all of the incidents of ownership; he had a vested interest in the minerals. After the conveyances, Grantor possessed the same incidents of ownership; those incidents could be presently enjoyed or exercised, i.e., his interest in the minerals remained vested after the conveyances and for at least 20 years. In classifying the defeasible term mineral interest as a future interest, the district court relied on Rucker . But that case dealt with a royalty interest, which is not analogous to the mineral interest at issue here. A royalty interest is personal property, whereas a mineral interest is real property. Rucker , 295 Kan. at 830, 289 P.3d 1166 ; see also Oxy USA v. Red Wing Oil , 309 Kan. 1022, 1025-27, 442 P.3d 504, 507-08 (2019) (misappropriation of a royalty is not adverse possession of the minerals in place because a royalty is mere personal property while minerals in place remain real property); Shepard, Executrix v. John Hancock Mutual Life Ins. Co. , 189 Kan. 125, 130-31, 368 P.2d 19 (1962) ("The term 'mineral interest' means an interest in and to oil and gas in and under the land and constitutes present ownership of an interest in real property."). Moreover, we have caselaw holding that a royalty interest created in a transferee is a future interest that vests at production. Rucker , 295 Kan. at 835-36, 289 P.3d 1166. Nevertheless, the district court was correct in holding that the Rule did not apply to Grantor's excepted interest, albeit for a different reason. The interest was not a reversion, but rather it was a present, vested interest to which the Rule is simply inapplicable. The future interest created by the deeds that the district court should have focused on is the interest in the minerals that passed to the Grantees. That interest is the right for the Grantees to have full possession and use of the mineral interest following the expiration or termination of the Grantor's reserved defeasible term interest. By the terms of the reservation, the earliest vesting of Grantees' future interest was December 30, 1987, the end of the 20-year term. But because the Grantor retained the possession and use of the mineral interest in each tract for so long after December 30, 1987, that minerals were being produced from the respective tract, the actual date upon which the future interests would vest in Grantees could not have been ascertained when the deeds were executed, i.e., when the future interests were created. At that time, the possibility existed that oil or gas could be discovered underlying either or both tracts and that the tracts would continue to produce minerals for more than 21 years after the death of the last of the Grantor's heirs or Grantees' heirs who were alive on December 30, 1967. In other words, the future interest would violate the Rule. Our task, then, is to determine whether the Rule should be applied to this type of future interest. The Grantor's heirs acknowledge that this case presents an issue of first impression as it relates to this particular reserved defeasible term mineral interest, notwithstanding that such reservations have been commonly used in this state for a long time. But they nevertheless rely on the doctrine of stare decisis, contending that our caselaw applying the Rule to future interests in other contexts mandates a reversal. Moreover, they argue the Rule must be applied to avoid uncertainty and confusion in the area of real estate titles. Specifically, the Grantor's heirs assert that the Grantees' future interest should be labeled either a springing executory interest or a contingent remainder, both of which are void under the Rule. See Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass'n. v. Kring , 225 Kan. 499, 502, 592 P.2d 438 (1979) ("An executory interest is not a vested estate and is subject to the rule against perpetuities."); McEwen v. Enoch , 167 Kan. 119, 122, 204 P.2d 736 (1949) ("The distinction between vested and contingent interests is of great importance as concerns the rule against perpetuities, for a true vested interest is never obnoxious to the rule, while a contingent interest not only may be, but often is."). The Grantor's heirs primarily rely on Beverlin v. First National Bank , 151 Kan. 307, 98 P.2d 200 (1940), a case holding that a contingent class gift to the testator's grandchildren violated the Rule. The testator gave one-third of his property to each of his two daughters but to be held in trust until they reached 40 years of age. If a daughter reached age 40, her interest became indefeasible and an absolute legal interest. But if a daughter died before she attained age 40, then her property divested, and if she had children, the testator's grandchildren who attained age 25 received the gift. This court held that the executory devise to the grandchildren was a class gift to a group capable of future change in number; therefore, it violated the Rule because it could possibly vest too remotely. 151 Kan. at 310-12, 98 P.2d 200. The Grantor's heirs also point to Kring , where a trust provided a present interest for the benefit of a hospital's maintenance. Should the hospital cease to be operated as a hospital, the fund became the property of a third party or his heirs. This court held the gift over to the third party or his heirs violated the Rule. The court reasoned the gift over appeared to be an executory interest, but if it was not an executory interest, it was a contingent remainder, and both interests were subject to the Rule. Kring , 225 Kan. at 502-03, 592 P.2d 438. Beverlin and Kring provide some support for the Grantor's heirs' arguments under traditional property law classifications. But as the Grantees' heirs argue, Beverlin and Kring addressed far different property interests created in a different manner than the future interest created by the Grantor's reservation at issue in this case. No Kansas case has addressed whether to apply the Rule to a grantee's future interest in minerals following the grantor's reservation of a defeasible term mineral interest. Given that the Rule is a creature of common law and we have no binding precedent, we are free to decide whether the Rule should apply in this context. The Grantees' heirs contend that property scholars and courts are moving away from the traditional classifications of future interests; therefore, this court should not feel compelled to classify their future interest as an executory interest subject to the Rule. Rather, they ask us to join the modern trend tempering the Rule, and, if the future interest must be classified at all, it should be designated as a reversion, possibility of reverter, or a vested interest not subject to the Rule. See Rucker , 295 Kan. at 832, 289 P.3d 1166 (vested remainders and reversions are not subject to the Rule); Kring , 225 Kan. at 502, 592 P.2d 438 ("It is universally agreed that the possibility of reverter is not within the rule."). As the Grantees' heirs point out, out-of-state authority addressing this issue has overwhelmingly declined to apply the Rule to void similar future interests, utilizing a variety of property law classifications and policy rationales. See, e.g., ConocoPhillips Co. v. Koopmann , 547 S.W.3d 858, 873 (Tex. 2018) ("[I]n this oil and gas context, where a defeasible term interest is created by reservation, leaving an executory interest that is certain to vest in an ascertainable grantee, the Rule does not invalidate the grantee's future interest."); Williams v. Watt , 668 P.2d 620, 632-33 (Wyo. 1983) (holding that under the unique characteristics of mineral interests, an excepted and reserved defeasible term-plus-production mineral interest could be treated as a life estate that was certain to pass automatically to the grantee upon the "demise" of the prior mineral estate); Earle v. International Paper Co ., 429 So. 2d 989, 994-95 (Ala. 1983) (applying a fictitious two-grant theory to classify a defeasible term-plus-production mineral interest excepted and reserved in the grantor as creating a reservation through an implied regrant from the grantee to the grantor); Bagby v. Bredthauer , 627 S.W.2d 190, 194-96 (Tex. App. 1981) ; (applying a fictitious two-grant theory to classify an interest excepting and reserving a term-plus-production defeasible term royalty interest [an interest in land under Texas law] in the grantor as if the grantor had conveyed his entire royalty interest to the grantee and then had the grantee convey the same back to the grantor). Compare Rousselot v. Spanier , 60 Cal. App. 3d 238, 241, 131 Cal. Rptr. 438 (1976) (holding deed excepting and reserving term-plus-production mineral interest created a profit à pendre, an interest in real property in the nature of an incorporeal hereditament, " 'essentially indistinguishable from [an] easement[ ]' " and not subject to the Rule), with Victory Oil Co. v. Hancock Oil Co. , 125 Cal. App. 2d 222, 224, 230-36, 270 P.2d 604 (1954) (noting a deed excepting and reserving minerals for a period of five years, and " 'in the event' " minerals were found within the 5-year period, continuing for 20-years-plus production, was void under the Rule; additionally noting there was production on the land in the secondary term). The Grantees' heirs acknowledge that some of those foreign cases ignore, or change, well-established labels historically applied to future interests in real property and that some of the cases employ contrived theories. But they argue that we should follow suit because of the practical implications for mineral ownership and the chaotic impact on the oil and gas industry that would occur if the Rule were applied to these types of transactions. For example, pointing to Earle and Bagby , the Grantees' heirs argue that it is absurd to hold that the deeds here violate the Rule because each future interest was conveyed using only one instrument when the grantor and grantee clearly could have accomplished the same end result without implicating the Rule if they had utilized two instruments: a grant of all interests and a regrant of the term mineral interest. The Grantor's heirs do not dispute that structuring the transaction as a double conveyance would have avoided the creation of a Rule violation. Nevertheless, they insist we must apply the Rule to the actual instruments that were utilized here, and those instruments created future interests that are void under the Rule. The Grantor's heirs also quibble that the deeds created an exception-not a reservation-of the defeasible term interest. Given the obvious intent of the parties, as corroborated by the district court's findings, we decline to drill down into the traditional property law distinction between exceptions and reservations. See Earle , 429 So. 2d at 993 (" '[C]ourts construe a reservation as an exception, and vice versa, in order to give effect to the obvious intention of the parties.' "). Further, we decline the invitation to adulterate the traditional, and long-standing, definition of the future interest in realty that was created by the deeds' language. Likewise, we decline the invitation to employ a legal fiction, such as the grant and a regrant theory. Rather, we will construe the deeds that were actually used, not those that could have been used. Under that straightforward methodology, we determine that the deeds created in the Grantees a springing executory interest. If the Grantees' heirs are to receive what the original parties to the deed obviously intended the Grantees to have, it will be because this court carves out a narrow exception to the common-law rule against perpetuities in this state, making the Rule inapplicable to a reserved (or excepted) defeasible term mineral interest of the kind presented here. In making the determination of whether to make this narrow exception to the common-law Rule, it is helpful to take a look at our prior statements about the purpose of having the Rule: "The policy considerations behind the rule against perpetuities are clear. " 'The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.' First Nat'l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, Syl. ¶ 8, 678 P.2d 118 (1984). "The rule was first developed 'to prevent the practice of tying up family property for generations and thereby creating unreasonable restraints upon the alienation of property.' Barnhart , 235 Kan. at 517, 682 P.2d 112." Gore , 254 Kan. at 428-29, 867 P.2d 330. See also In re Estate of Woods , 181 Kan. 271, 280, 311 P.2d 359 (1957) ("Broadly stated, the rule against perpetuities is grounded traditionally on a farsighted public policy which frowns on the total exclusion of property from commerce for long periods of time and is supported by the practical needs of modern times."); Freeman , 195 Kan. at 200, 404 P.2d 222 ("[T]he purpose of the rule against perpetuities ... is to keep property alienable within the reasonable limits fixed by the rule."). Cf. Singer , 213 Kan. 725, Syl. ¶ 2, 518 P.2d 493 ("The modern tendency is to temper the rule if possible where its harsh application would obstruct or do violence to an intended scheme of property disposition."). With respect to the purpose behind the Rule, the Grantor's heirs assert that "Kansas courts seem to have missed the nature of the Rule's origin, though there is still time to right the ship." They contend that the Rule is designed to accomplish three related objectives: (1) balancing the rights of the current owner and future owner; (2) contributing to the utilization of wealth in society; and (3) ensuring property can be used to meet the urgent needs of its current owners. But in their view, modern courts have improperly synthesized these considerations into a policy of ensuring property is alienable. They argue that courts should instead focus on ensuring the present interest holder may enjoy all of the rights attendant to that interest. Ultimately, the Grantor's heirs insist that the Rule must be applied "remorselessly," without regard to whether the property at issue is alienable and without regard to the grantor's intent. Apparently, when it comes to the public policy behind our common law, the Grantor's heirs are no longer enamored with the principle of stare decisis. As the Grantees' heirs counter, Kansas courts have clearly adopted alienability of property as an overarching policy for the Rule's continued application in this state. We see no reason to depart from that precedent. Our next step, then, is to assess how applying the Rule in this circumstance would comport with the policy behind the Rule. The Grantees' heirs contend that expanding the Rule to void the future interest following the reserved defeasible term mineral interest in this case serves no valid purpose or public policy, but rather it would be a nonsensical act of legal formalism. They point out that this court has previously rejected the "remorseless" approach the Grantor's heirs ask this court to apply. Cf. Freeman , 195 Kan. at 200, 404 P.2d 222 (holding that valid parts of will could stand despite invalidity of certain devises under the Rule and stating "[t]his court has never adhered to the classical view of 'remorseless' construction developed in England"). They contend, and we agree, that the application of the Rule in this case would actually impede the alienability of the land. Applying the Rule in this case would result in the Grantor's heirs holding the mineral interests in the real estate in perpetuity. One would presume that the number of owners of that interest would increase over time, as heirs beget more heirs. Moreover, the possessors of the subsurface mineral interest are not as readily ascertainable as the occupiers of the surface interest. Thus, a person wanting to purchase the entirety of the tracts would have to go way beyond locating and negotiating with the possessors of the surface interest. Such prospective purchaser would have to locate all of the grantor's heirs and negotiate with each one for the purchase of his or her respective interest in the minerals in order to reunite the mineral interest with the surface interest. Other courts have pointed out that applying the Rule to prevent the reuniting of split mineral interests would actually "frustrate the policies behind the rule." Earle , 429 So. 2d at 995. The same frustration is caused by voiding the deed provisions in this case that actually provide for the reunification of the surface and mineral interest. We do not stand alone in believing that a straightforward exempting of reserved defeasible term mineral interests from the remorseless application of the Rule does more good than harm. For instance, the Williams & Myers treatise opines: "[D]efeasible term interests serve a useful social purpose, whether reserved or granted. The term interest, as compared with a perpetual interest, tends to remove title complications when the land is no longer productive of oil or gas. This simplification of title promotes alienability of land, which is one purpose served by the Rule against Perpetuities. We believe, therefore, that the courts should simply exempt interests following granted or reserved defeasible term interests from the Rule, on the straightforward basis that they serve social and commercial convenience and do not offend the policy of the Rule Against Perpetuities." 2 Williams & Meyers, Oil and Gas Law, § 335 (2018). Recently, the Texas Supreme Court relied in part on the Williams & Meyers treatise's straightforward rationale when declining to apply the Rule to a similar interest under Texas law, reasoning "restraint on alienability and promoting the productivity of land is not at issue in the oil and gas context." Koopmann , 547 S.W.3d at 869. The concurrence in Williams also supported this rationale. Williams , 668 P.2d at 638 (Thomas, J., concurring) ("Essentially Williams and Meyers ... is advocating the application to this situation of the maxim that when the reason upon which a rule is justified is not present the rule should not be invoked."). While we adopt the approach from Williams & Meyers, we note that other learned treatises likewise recognize that the policy behind the Rule is not furthered in this context. See Anderson et al., Hemingway Oil and Gas Law and Taxation, § 2.8(B) (4th ed. 2004) ("Rather than misapply common law rules relating to future interests, a better judicial approach would be to treat the interests resulting from conveyances of terminable [mineral] rights in oil and gas as sui generis and fashion a rule of construction related to the realities of such transactions."); 1 Kuntz, Law of Oil & Gas, § 17.3 (1987) ("The application of the rule against perpetuities to the interest following a retained term mineral interest is easily overlooked, probably because the evil designed to be avoided by the rule is not readily apparent if it is present at all."). The Grantees' heirs and the Amici Curiae additionally argue that these transactions are common in the oil and gas industry and application of the Rule will impact many other property owners who received their interest from similarly worded deeds. We recognize that the undisputed facts relied upon by the district court did not address this contention. But as KIOGA points out, Kansas caselaw provides multiple examples of these transactions, and we cannot ignore that reality. See Kneller v. Federal Land Bank of Wichita , 247 Kan. 399, 400, 799 P.2d 485 (1990) (deed grantor, Federal Land Bank, excepted and reserved one-half defeasible term-plus-production mineral interest); Classen , 228 Kan. at 427, 617 P.2d 1255 (deed grantor, Federal Land Bank, excepted and reserved one-fourth defeasible term-plus-production mineral interest); Friesen v. Federal Land Bank of Wichita , 227 Kan. 522, 522-23, 608 P.2d 915 (1980) (deed grantor, Federal Land Bank, excepted and reserved one-fourth defeasible term-plus-production mineral interest), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 (1980) ; Shepard , 189 Kan. at 126-27, 368 P.2d 19 (deed grantor, John Hancock Mutual Life Insurance, excepted and reserved one-fourth defeasible term-plus-production mineral interest); Dewell , 191 Kan. at 258, 380 P.2d 379 (deed grantor, Federal Land Bank, excepted and reserved one-half defeasible term-plus-production mineral interest); see also Oxy USA , 309 Kan. at 1023, 442 P.3d 504, (grantor reserved one-half defeasible term-plus-production mineral interest); Stratmann v. Stratmann , 204 Kan. 658, 663, 465 P.2d 938 (1970) ("A mineral interest may ... be reserved for a period so long as production from the land continues."), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 (1980) ; Brooks v. Mull , 147 Kan. 740, 741, 78 P.2d 879 (1938) (grantor reserved one-half defeasible term-plus-production mineral interest). The commonality of these transactions is likewise apparent in rulings from our sister states and in treatises discussing this issue. See, e.g., Williams , 668 P.2d at 630 ("Many cases simply assume the validity of these interests without any discussion of the rule against perpetuities."); 1 Kuntz, § 17.3 ("In many reported cases, the presence of the [Rule] problem has gone unnoticed, and the apparent assumption has been made that the interest is valid."). Our precedent makes clear that the policies behind the common-law Rule include promoting the alienability of property. The practice of retaining a defeasible term-plus-production interest in minerals is ingrained in the oil and gas industry and actually promotes the alienability of land. Applying the Rule here would be counterproductive to the purpose behind the Rule and create chaos. Therefore, we hold that where a grantor creates a defeasible term-plus-production mineral interest by exception, leaving a future interest in an ascertainable grantee, the future interest in minerals is not subject to the Rule. As previously indicated, in the district court, the Grantees' heirs alternatively pled that if the district court found a Rule violation, the deeds should be reformed under K.S.A. 59-3405(b), which applies retroactively. Because we hold that the interests at issue are exempt from the Rule, we need not address the statutory reformation remedy. We hold that the Rule does not apply in this circumstance; therefore, we affirm the district court's grant of summary judgment to the Grantees' heirs and order quieting title to the Tracts. Affirmed.

The opinion of the court was delivered by Stegall, J.: This case arises from a dispute over a one-half ownership interest in the minerals under a quarter section of land in Haskell County. Royalties from these mineral rights are being generated by mineral production occurring on adjacent land which is part of the same unitized production unit. The producer initiated an interpleader and quiet title action in order to determine who is the rightful owner of these royalties. As set forth below, we determine that the rightful owner of the disputed one-half interest in the minerals is the fee owner of the surface property and that, as a matter of law on these facts, adverse possession does not bar the surface owner's rightful claim to ownership. Factual and Procedural Background In 2009, Oxy USA Inc. (Oxy) developed a productive oil and gas well on a unitized production unit of land in Haskell County. The unitized area included the quarter section of land which is the subject of this lawsuit (the Property). The well is not actually located on the Property, but the owner of the minerals under the Property is entitled to receive royalties from the production by virtue of the unitization agreement. But Oxy was unable to determine which party owned a disputed one-half interest in the minerals under the Property. Thus, Oxy initiated this interpleader and quiet title action to determine the rightful legal owner of the minerals under the Property. The real contestants here are the two potential owners of the minerals at issue. Alice LaVelle King, who currently owns the surface of the Property and an undisputed one-half interest in the minerals, claims the other one-half mineral interest belongs to her. Opposing King are at least 41 different people or entities that claim some fraction of the disputed one-half mineral interest under a term interest once held by Frank Luther. For ease of reference, we will refer to these parties as the Luther Term Interest Holders. Highly summarized, the history of ownership of the disputed minerals on the Property proceeds as follows. In 1943, the owner of the Property entered into an oil and gas lease with a producer. Following the Property owner's death, the Property passed to Frank Luther, who took the property subject to the lease. Then, Luther sold the Property, reserving only: "an undivided one-half interest in and to all oil, gas or other minerals in and under and that may be produced from the ... property and the right of participation in all events pertaining to said oil, gas or other minerals for a period of twenty (20) years from the date of this instrument or as long thereafter as oil, gas or other minerals is produced therefrom[.]" This is known as the "Luther Term Mineral Interest." The district court found that the Luther Term Mineral Interest expired in 1972 and the one-half interest in the minerals reverted to the fee holder at that time. The parties do not contest this finding. So, it is undisputed that the reversionary interest was triggered in 1972 in favor of the fee owner of the Property. King's father was the fee owner of the Property in 1972, and ultimately King became owner of the Property. This case arises squarely out of the next fact. Between 1972 and 2009 (when Oxy completed the well on the Property) the Luther Term Interest Holders received royalties flowing from their claimed one-half interest in the minerals. The parties now agree the Luther Term Interest Holders should not have been receiving the royalties because the Luther Term Mineral Interest had expired and the right to receive these royalties had reverted to King's predecessor in interest (the fee owner of the Property). But neither King nor her predecessors ever took any action to prevent the Luther Term Interest Holders from receiving these royalties or attempted to recover-either in law or in fact-their reversionary interest in the minerals. It appears the fee owners of the Property did not attempt to enforce their reversionary rights in the disputed minerals until Oxy filed this action. As a result, this complex web of ownership claims boils down to a straightforward question: Can King enforce her reversionary interest in the minerals against the Luther Term Interest Holders, or is she now prevented from doing so by either a statute of limitation or by adverse possession? The material facts are undisputed, and the questions presented are resolvable purely as a matter of law. The district court granted summary judgment in favor of the Luther Term Interest Holders, finding King's claim was time barred by the statute of limitations in K.S.A. 60-507. King appealed, and the Court of Appeals reversed, holding that the real question was whether the Luther Term Interest Holders were adverse possessors under K.S.A. 60-503. See Oxy USA, Inc. v. Red Wing Oil , 51 Kan. App. 2d 1028, 1036, 360 P.3d 457 (2015). The Court of Appeals held that the record revealed King had no notice of the Luther Term Interest Holders' receipt of royalty payments and, as a result, there could be no adverse possession as a matter of law. 51 Kan. App. 2d at 1038-39, 360 P.3d 457. While the scope of the dispute was wider in the courts below, on appeal to this court, the Luther Term Interest Holders present us with a significantly narrowed argument. Their prior claims about whether the disputed mineral interest ever reverted to the fee owner of the Property have not been advanced and are not before us. Essentially, the Luther Term Interest Holders now argue that the Court of Appeals misread the record. They claim there was evidence that King knew of the royalty payments. This error, they argue, led the Court of Appeals to improperly direct that summary judgment be entered in King's favor. The Luther Term Interest Holders now contend they have alleged sufficient facts of adverse possession to survive summary judgment. They admit that the term interest expired in 1972, triggering the reversionary interest in favor of King and her predecessors in interest, and therefore, they had no legal interest in the disputed minerals as of 1972. But they argue that between 1972 and 2009 they openly, exclusively, and continuously took the royalties that flowed from the mineral interest and King either knew or should have known they were taking these royalties. Thus, the Luther Term Interest Holders ask this court to order a remand to develop the factual record through discovery. King, in turn, argues that under no circumstances could these facts, even if true, qualify as adverse possession of the mineral interest as a matter of law. Analysis We exercise plenary review over lower courts' decisions concerning motions for summary judgment. Central Kansas Medical Center v. Hatesohl , 308 Kan. 992, 1002, 425 P.3d 1253 (2018). And the standard for summary judgment is well known and often stated: " ' "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." ' " 308 Kan. at 1001, 425 P.3d 1253. Furthermore, to the extent that we must interpret K.S.A. 60-503 and K.S.A. 60-507, we exercise unlimited review. 308 Kan. at 1002, 425 P.3d 1253. As a preliminary matter, the parties agree that the Court of Appeals was correct to analyze the dispute through the lens of adverse possession under K.S.A. 60-503 (rather than under K.S.A. 60-507 ). We agree and will briefly explain why. K.S.A. 60-503 states in relevant part: "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." While K.S.A. 60-507 states: "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." The language of the two statutes suggests there might be a factual scenario under which an action for the recovery of real property is time-barred by K.S.A. 60-507 even though the elements of adverse possession have not been satisfied under K.S.A. 60-503. It is not necessary to decide whether King's claim is time-barred by the 15-year statute of limitation in K.S.A. 60-507 because, in this case, the Luther Term Interest Holders do not argue that King's cause of action accrued more than 15 years before her claim was made. Instead, as the Court of Appeals found and as the Luther Term Interest Holders now concede, their affirmative defense against King's claim of ownership has always sounded in adverse possession. Thus, the Luther Term Interest Holders must satisfy the elements of adverse possession under K.S.A. 60-503. Given this, the Luther Term Interest Holders claim their open, exclusive, and continuous possession of the royalties for a period of 15 years is sufficient to establish adverse possession of the disputed mineral interest and to quiet legal title to those minerals in them, thus extinguishing King's legal claim to ownership. The Court of Appeals suggested there were many reasons why the Luther Term Interest Holders' claim must fail, including what the Court of Appeals understood to be factual deficiencies in the record. The Luther Term Interest Holders dispute the Court of Appeals' understanding of the record, especially its misunderstanding of the location of the actual well and the effect of the unitization agreement. We discern a clearer pathway to the same result-one that does not entangle us in factual disputes. Simply put, even if all the facts the Luther Term Interest Holders rely on are true, and even if a remand for further discovery could produce evidence that King and her predecessors in interest had actual knowledge that the Luther Term Interest Holders were improperly collecting royalties, this still would not be sufficient as a matter of law to establish a viable claim for adverse possession of the mineral interest here. While it is legally possible to adversely possess a mineral interest, the mere misappropriation of royalties standing alone is not sufficient to establish adverse possession of a mineral interest. A royalty represents a portion of the value of minerals after production. Thus, being in open, exclusive, and continuous possession of a royalty can never suffice to establish an adverse claim over minerals in place . As our Court of Appeals explained in Stratmann v. Stratmann , 6 Kan. App. 2d 403, 408, 628 P.2d 1080 (1981), "[c]ollection of royalty payments has been held not to constitute adverse possession of the minerals in place. Such collection of royalty payments is merely conversion of the oil and gas that has already been produced and does not affect what remains in the ground." Thus, improperly receiving a royalty is something like a mere conversion of produced minerals-akin to tapping a pipeline and diverting its flow. These are not acts asserting ownership over the minerals still in the ground. Adversely possessing minerals in place requires something more than receiving royalties after the minerals have been extracted. It requires the adverse possessor actively "working the minerals." See 1 Kuntz, Law of Oil & Gas § 10.5 (1987) (discussing how an adverse possessor can gain title by actively working the minerals). This element may be satisfied by facts demonstrating physical control over the minerals while they are still in the ground. But we decline to speculate further about what factual scenario might be sufficient to establish adverse possession of minerals in place. It is enough for today's case to establish that the passive receipt of royalties, even if open, exclusive, and continuous for a period of 15 years, is not-as a matter of law-adverse possession of the minerals in place. Ultimately, we agree with the Court of Appeals' decision that King is the legal owner of the minerals under the Property. Moreover, for reasons other than those enunciated by the Court of Appeals, we further agree with the lower court's conclusion that the Luther Term Interest Holders cannot establish the elements of adverse possession in this case. As such, title in the disputed minerals must be quieted in favor of King. We therefore affirm the Court of Appeals order directing the district court to enter summary judgment in favor of King as being right for the wrong reason. See State v. Williams , 303 Kan. 585, 595, 363 P.3d 1101 (2016) (court can affirm judgment when right for the wrong reason). Affirmed. Nuss, C.J., not participating. Mike Keeley, District Judge, assigned. REPORTER'S NOTE: District Judge Keeley was appointed to hear case No. 111,973 vice Chief Justice Nuss under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.

The opinion of the court was delivered by Stegall, J.: The City of Topeka passed Ordinance No. 20099, amending Uniform Public Offense Code § 5.7 (2015) making it unlawful for any person to: "(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or (2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age." The day before the Ordinance was to take effect, DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs 'n' Stuff, L.L.C. sued Topeka seeking to prevent enforcement of the Ordinance. Vapebar argued the Ordinance was unconstitutional under article 12, section 5 of the Kansas Constitution because it impermissibly conflicted with and was preempted by the Kansas Cigarette and Tobacco Products Act, K.S.A. 79-3301 et seq., referred to as the Act. Additionally, Vapebar argued the Ordinance exceeded Topeka's police power authority. The district court issued a temporary restraining order and eventually a permanent injunction. Topeka appealed and moved to transfer the case to this court. Topeka asked us to consider: (1) whether the Act preempts Topeka from prohibiting retailers from selling cigarettes, electronic cigarettes, tobacco products, and liquid nicotine to persons under the age of 21 years; and (2) whether the Ordinance conflicts with the Act. We granted Topeka's motion to transfer and now hold the Ordinance is not preempted by and does not conflict with the Act. Thus, the Ordinance is a constitutionally valid exercise of Topeka's home rule power under article 12, section 5 of the Kansas Constitution. ANALYSIS Topeka sought to join other Kansas cities in making it unlawful for retailers to sell, furnish, or distribute cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old. The Ordinance passed by Topeka provided, in part: "(2) Section 5.7 of UPOC [Uniform Public Offense Code] 2015, relating to selling, giving or furnishing cigarettes or tobacco products to a minor is hereby deleted and the following language is substituted therefor: "(a) It shall be unlawful for any person to: (1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or (2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age. "(b) It shall be a defense to a prosecution under this section if: (1) The defendant is a licensed retail dealer, or employee thereof, or a person authorized by law to distribute samples; (2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to the person under 21 years of age with reasonable cause to believe the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine; and (3) To purchase or receive the cigarettes, electronic cigarettes, tobacco products or liquid nicotine, the person under 21 years of age exhibited to the defendant a driver's license, Kansas non driver's identification card or other official or apparently official document containing a photograph of the person and purporting to establish that the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine. (4) For purposes of this section the person who violates this section shall be the individual directly selling, furnishing or distributing the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age or the retail dealer who has actual knowledge of such selling, furnishing or distributing by such individual or both. "(c) It shall be a defense to a prosecution under this subsection if: (1) The defendant engages in the lawful sale, furnishing or distribution of cigarettes, electronic cigarettes, tobacco products or liquid nicotine by mail; and (2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to the person by mail only after the person had provided to the defendant an unsworn declaration, conforming to K.S.A. 53-601 and amendments thereto, that the person was 21 or more years of age. "(d) The words and phrases in Section 5.7 of UPOC 2015 shall have the same meanings as defined in K.S.A. 79-3301, and amendments thereto. 'Liquid nicotine' shall mean the active ingredient of the tobacco plant (nicotine) in liquefied form suitable for the induction of nicotine, whether by nasal spray, ingestion, smoking or other means, into the human body. 'Sale' shall mean any transfer of title or possession or both, exchange, barter, distribution or gift of cigarettes, electronic cigarettes, tobacco products or liquid nicotine with or without consideration. "(f) [sic ] Violation of this section shall constitute a Class B violation punishable by a minimum fine of $200." According to Vapebar, the Ordinance is unconstitutional because it "impermissibly conflicts with and is therefore preempted by uniform state law [the Act] under the Home Rule Amendment to the Kansas Constitution, Article 12, § 5 (b)." The Act, in relevant part, provides: "It shall be unlawful for any person: .... "(l) To sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age. "(m) Who is under 18 years of age to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products. "(n) Who is under 18 years of age to possess or attempt to possess cigarettes, electronic cigarettes or tobacco products." K.S.A. 2018 Supp. 79-3321(l) - (n). The district court found "conflicts between the city ordinance ... and state law" and enjoined enforcement of the Act on that basis. As such, the lower court declined to rule on Vapebar's police power claim and dismissed it without prejudice. The preemption and conflict issues raised in this appeal derive from article 12, section 5 of the Kansas Constitution -also known as the home rule amendment. Taking effect in 1961, the home rule amendment empowered local governments to determine their local affairs and government by ordinance. Kan. Const. art. 12, § 5 (b); Steffes v. City of Lawrence , 284 Kan. 380, 385, 160 P.3d 843 (2007). Following the amendment, cities no longer had to rely on the Legislature to specifically authorize the exercise of a particular power or action via statute. The amendment further provided that the "[p]owers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government." Kan. Const. art. 12, § 5 (d). Cities exercise this power through charter or "ordinary" ordinances. Kan. Const. art. 12, § 5 (b) and (c); see also Heim, Home Rule: A Primer , 74 J.K.B.A. 26, 31 (January 2005). Here, the parties agree the Ordinance is an ordinary ordinance. A city may adopt ordinary ordinances when no state law exists on the subject or when a uniform law applicable to all cities exists on the subject but the Legislature has not expressed a clear intent to preempt the field and there is no conflict between the state and local law. City of Wichita v. Hackett , 275 Kan. 848, 851-52, 69 P.3d 621 (2003). Thus, to determine whether an ordinary ordinance is a valid exercise of home rule power courts must ask: (1) Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is a uniform state law, does it preempt further action by cities? and (4) If there is a uniform state law but there has been no preemption, does the local regulation conflict with the uniform state law? See Heim, Home Rule Power for the Cities and Counties in Kansas , 66 J.K.B.A. 26, 32 (1997). The first two questions are not in dispute. The parties agree that the Act and the Ordinance govern the same subject-i.e., the regulation of cigarettes, electronic cigarettes, tobacco products, and liquid nicotine in Kansas. The parties also agree that the Act is a uniform state law applicable to all cities. Thus, we must resolve the latter two questions-preemption and conflict. We exercise unlimited review over constitutional challenges. Steffes , 284 Kan. at 388-89, 160 P.3d 843. To the extent this constitutional inquiry requires us to engage in statutory interpretation, our review is likewise unlimited. Hackett , 275 Kan. at 850, 69 P.3d 621. Vapebar asks us to find that the Legislature preempted the field of tobacco regulation when it passed the Act. But there is no express statement of preemption in the Act, and since 1961, we have consistently rejected the doctrine of implied legislative preemption. See McCarthy v. City of Leawood , 257 Kan. 566, 584, 894 P.2d 836 (1995) ; City of Junction City v. Griffin , 227 Kan. 332, 336, 607 P.2d 459 (1980) ; Garten Enterprises, Inc. v. City of Kansas City , 219 Kan. 620, Syl. ¶ 3, 549 P.2d 864 (1976) ; City of Junction City v. Lee , 216 Kan. 495, 503, 532 P.2d 1292 (1975) ; City of Lyons v. Suttle , 209 Kan. 735, 738, 498 P.2d 9 (1972). Instead, we have held that legislative intent to reserve exclusive jurisdiction to the state must be clearly manifested by statute-i.e., by expressly prohibiting cities from enacting any type of ordinance related to the state law. Zimmerman v. Board of Wabaunsee County Comm'rs , 289 Kan. 926, 973, 218 P.3d 400 (2009). To avoid application of this caselaw, Vapebar first points us to our decision in Trimble v. City of Topeka , 147 Kan. 111, 75 P.2d 241 (1938), suggesting that the Legislature may implicitly preempt even without an express statement of intent. Trimble , of course, was decided long before the home rule amendment. Prior to 1961, the general rule was that "the superior power is with the state" and "the city's only power is that delegated to it by the state." Trimble , 147 Kan. at 114, 75 P.2d 241. In other words, unless the statute expressly granted cities a right to act, it was presumed the state had preempted the field. After the amendment, however, cities no longer need a legislative delegation of power. Rather, cities are "empowered to determine their local affairs" and courts are to construe this power "liberally ... for the purpose of giving to cities the largest measure of self-government." Kan. Const. art. 12, § 5 (b) and (d). Legislative silence is no longer sufficient to imply state preemption. Rather, " ' "legislative intent to reserve to the state exclusive jurisdiction to regulate an area must be clearly manifested by statute before it can be held that the state has withdrawn from the cities the power to regulate in the field." ' " McCarthy , 257 Kan. at 584, 894 P.2d 836 (quoting Garten Enterprises, Inc. , 219 Kan. 620, Syl. ¶ 3, 549 P.2d 864 ). Here, the Act does not manifest a clear intent to preempt cities from action. The language of the Act is plain and unambiguous and 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." Steffes , 284 Kan. at 386, 160 P.3d 843. Moreover, the Legislature knows how to expressly preempt city home rule power but did not do so here. See, e.g., K.S.A. 2018 Supp. 75-5174(a) ("The power to regulate, license and tax the management, operation and conduct of and participation in games of bingo and raffles is hereby vested exclusively in the state ." [Emphasis added.] ). In fact, some provisions of the Act seem to contemplate cities enacting ordinances covering at least some of the same conduct. See K.S.A. 2018 Supp. 79-3393(c) ("Acts classified as cigarette or tobacco infractions by K.S.A. 79-3322 [d], and amendments thereto, shall be classified as ordinance cigarette or tobacco infractions by those cities adopting ordinances prohibiting the same acts. The fine for an ordinance cigarette or tobacco infraction shall be $25."). Vapebar suggests that perhaps the Legislature's enactment of a "comprehensive scheme" of regulation is sufficient to clearly manifest an intent to preempt the field. We disagree. We have already rejected the idea that the Legislature's adoption of a comprehensive scheme can establish a clear intent to preempt the field. See Lee , 216 Kan. at 502-04, 532 P.2d 1292. In Lee , the defendants relied on a Judicial Council comment that described the state weapons control act as " 'a comprehensive weapons control act.' " 216 Kan. at 503, 532 P.2d 1292. Rejecting this argument for preemption, we held that "[l]egislative intent to preempt is not to be so simplistically found. ... Absent clear expression to that effect, we cannot conceive that the legislature intended by its enactment, comprehensive though it be, to exclude cities' traditional resources" from protecting its citizens' well-being. 216 Kan. at 503, 532 P.2d 1292. Next, Vapebar directs us to State ex rel. Schneider v. City of Kansas City , 228 Kan. 25, 612 P.2d 578 (1980), for authority. Our decision in Schneider , however, is distinguishable because it only questioned whether the home rule amendment authorized Kansas City to enforce its building permit and code ordinances upon the Board of Regents, which derives its authority from article 6, section 2(b) of the Constitution. Given these unique circumstances and the interplay between the two constitutional provisions, the Schneider court limited its holding "to the parties and factual situation before us." Schneider , 228 Kan. at 33, 612 P.2d 578 ; see also State ex rel. Kline v. Board of Comm'rs of Unified Gov't of Wyandotte Co./KC , 277 Kan. 516, 85 P.3d 1237 (2004) (refusing to recognize Schneider as applicable precedent). Schneider is inapplicable here. In a final bid for implied preemption, during oral argument, Vapebar cited our decision in Blevins v. Hiebert , 247 Kan. 1, 795 P.2d 325 (1990). The Blevins court held: "An enabling act is uniformly applicable to all cities or counties if it authorizes all cities or counties to perform certain acts. Such statutes are state law and preempt the field of their application without the use of preemptive language unless there are express exceptions in the statutes or unless the statutes pertain to police power regulations." 247 Kan. 1, Syl. ¶ 4, 795 P.2d 325. This language may suggest Kansas has recognized the doctrine of implied legislative preemption except where police powers were concerned. See 66 J.K.B.A. at 36. Our decisions since Blevins have not treated it as such. Of the eight cases that cite Blevins , none repeat Blevins ' use of implied legislative preemption. 74 J.K.B.A. at 31 (citing David v. Board of Norton County Comm'rs , 277 Kan. 753, 760, 89 P.3d. 893 [2004] ; Hackett , 275 Kan. 848, 69 P.3d 621 ; City of Junction City v. Cadoret , 263 Kan. 164, 170, 946 P.2d 1356 [1997] ; McCarthy , 257 Kan. at 584, 894 P.2d 836 ; Johnson County Water Dist. No. 1 v. City of Kansas City , 255 Kan. 183, 193, 871 P.2d 1256 [1994] ; Dillon Stores v. Lovelady , 253 Kan. 274, 279, 855 P.2d 487 [1993] ; Executive Aircraft Consulting, Inc. v. City of Newton , 252 Kan. 421, 425, 845 P.2d 57 [1993] ; Blevins v. Board of Douglas County Comm'rs , 251 Kan. 374, 376, 834 P.2d 1344 [1992] ). Instead, we have recognized that the " '[b]road language in Blevins unsettled the principle' " of requiring a clearly manifested legislative intent by statute to preempt the field. McCarthy , 257 Kan. at 584, 894 P.2d 836. And cases since Blevins continue to require a clear statement of legislative intent in order to limit home rule power. See, e.g., Wyandotte Co./KC , 277 Kan. at 533-35, 85 P.3d 1237 ; Kansas City Renaissance Festival Corp. v. City of Bonner Springs , 269 Kan. 670, 673, 8 P.3d 701 (2000) ; McCarthy , 257 Kan. at 584, 894 P.2d 836. Based on these "cases decided since Blevins , this court seems to be restricting it to its facts." 257 Kan. at 584, 894 P.2d 836. Here too, we restrict Blevins to its facts and disapprove any indication in prior unclear language that we are adopting the doctrine of implied preemption. With no language manifesting a clear intent to preempt the field in the Act, the Act does not preempt the Ordinance. But preemption is not the last restriction on a city's home rule power. In order to clear the final hurdle, the Ordinance must not conflict with state law. 257 Kan. at 570-71, 894 P.2d 836 ; see State v. Jenkins , 295 Kan. 431, 437, 284 P.3d 1037 (2012) (if a state statute applies uniformly to all cities and the state has not preempted the field, a city may adopt an ordinance that does not conflict with state law). We have emphasized that " '[a] city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute.' " McCarthy 257 Kan. at 569, 894 P.2d 836 (quoting Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 4, 654 P.2d 445 [1982] ); see Heartland Apartment Ass'n v. City of Mission , 306 Kan. 2, 9, 392 P.3d 98 (2017). In determining whether an actual conflict exists between an ordinance and a statute, we apply the well-cited conflict test articulated in Lee , 216 Kan. at 501, 532 P.2d 1292 : "[W]hether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict." As with all things home rule, our consideration of whether there is a conflict must be informed with the constitutional command to "liberally construe[ ]" the home rule power so as to give "to cities the largest measure of self-government." Kan. Const. art. 12, § 5. Vapebar argues that the Ordinance conflicts with the Act because the Ordinance prohibits what the Act authorizes. If there was an express authorization in the Act for people under the age of 21 to buy tobacco products, or an express authorization to sell tobacco to those people, Vapebar would have a point. But there is no express authorization. The Act is silent with respect to people who are 18, 19, or 20 years old. In the face of such silence, "where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition ... there is no conflict." 216 Kan. at 501, 532 P.2d 1292. For example, in Lee we found an ordinance outlawing the carrying of both concealed and unconcealed weapons did not conflict with a state statute outlawing only the carrying of concealed weapons. 216 Kan. at 500-01, 532 P.2d 1292. The court found the essential difference to be that "the ordinance denounces carrying on one's person a dangerous knife or firearm ... while the statute makes such carrying criminal only where the weapons are concealed." 216 Kan. at 500, 532 P.2d 1292. The court held that no conflict existed between the statute and ordinance because the ordinance was merely "more restrictive" than the statute. 216 Kan. at 501, 532 P.2d 1292. And a more restrictive ordinance will stand as long as "the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized ." ( Emphasis added.) 216 Kan. at 501, 532 P.2d 1292. More recently in Hackett , we reiterated the Lee test and found an ordinance criminalizing the operation of a bicycle while intoxicated did not conflict with the state law that criminalized motor vehicle DUIs. There, the state statute at issue defined "vehicle" to exclude " 'devices moved by human power .' " 275 Kan. at 850, 69 P.3d 621. The City adopted additional traffic regulations that prohibited operation of a bicycle while under the influence of alcohol. In holding this ordinance valid, the court ruled the statute did not expressly authorize the operation of bicycles by those intoxicated. Rather, the statute merely failed to proscribe it. 275 Kan. at 851, 69 P.3d 621. Similarly, the Ordinance and the Act coexist without conflict. The Act does not "expressly authorize" what the Ordinance prohibits-the selling and buying of tobacco products to and by 18-, 19-, and 20-year-olds. The Act simply fails to proscribe it. Thus, the Ordinance does not conflict with the Act because the Ordinance does not prohibit what the Act expressly authorizes. The Ordinance merely enlarges a provision of the statute by requiring more than the statute-a practice we have repeatedly treated as creating no conflict. See, e.g., City of Wichita v. Basgall , 257 Kan. 631, 635, 894 P.2d 876 (1995) ("Where a municipal ordinance merely enlarges ... the provisions of a statute by requiring more than is required by the statute, there is no conflict between the two unless the legislature has limited the requirements for all cases to its own prescription."); Leavenworth Club Owners Assn v. Atchison , 208 Kan. 318, 320-22, 492 P.2d 183 (1971) (upholding more stringent local closing hours). The Ordinance prohibiting retailers from selling, furnishing, or distributing cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old is a constitutional exercise of Topeka's home rule power. The Act does not preempt cities from regulating tobacco products, and the Ordinance does not conflict with the Act by imposing greater restrictions. Because the Ordinance is a constitutional exercise of the City's home rule power, we reverse the district court's permanent injunction. Vapebar remains free to pursue any of its claims previously dismissed without prejudice in a separate action should it choose to do so. Reversed. Luckert and Johnson, JJ., not participating. Karen Arnold-Burger, Chief Judge of the Kansas Court of Appeals, assigned. Michael J. Malone, Senior Judge, assigned. REPORTER'S NOTE: Chief Judge Arnold-Burger, of the Kansas Court of Appeals, was appointed to hear case No. 119,269 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 2018 Supp. 20-3002(c). REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 119,269 vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 20-2616.

The opinion of the court was delivered by Stegall, J.: In May 2013, the Saline County District Court first found Clay Robert Snyder not competent to stand trial because of his intellectual disability. Since then, Snyder has cycled through competency detainment and involuntary commitment at least twice. Most recently in November 2016, the district court found Snyder was still not competent to stand trial and ordered the State to initiate civil commitment proceedings against him. Shortly thereafter, Snyder petitioned for habeas relief, asking us to release him from confinement and dismiss his criminal charges with prejudice to remedy federal speedy trial, due process, and equal protection violations. We find no violations on the present showing and deny Snyder's petition for habeas relief. FACTUAL AND PROCEDURAL BACKGROUND On December 27, 2012, Snyder was charged with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child in Saline County. A few days before the preliminary hearing was scheduled to occur, defense counsel filed a motion to determine Snyder's competency to stand trial. The district court granted the motion and ordered Snyder to undergo multiple competency evaluations. Each evaluation yielded the same conclusion-that Snyder was incompetent to stand trial. The examining psychologists opined that Snyder suffers from a severe intellectual disability arising from microcephaly. They described Snyder as: "extremely impaired and in the lower end of the Mild Mental Retardation range"; "suffering from a Pervasive Developmental Disorder that is directly related to microcephaly"; and having short-term memory that is "significantly below average." On May 23, 2013, the district court found Snyder not competent to stand trial and ordered him committed to Larned State Hospital (Larned) for evaluation and treatment for a period not to exceed 90 days. Because it is relevant to this factual summary, we pause now to address Snyder's motion under K.S.A. 60-409 for judicial notice of the nature of microcephaly. Snyder has recited medical facts about microcephaly and its attending disabilities. The State does not oppose the motion and does not contest the common definition of microcephaly as a medical condition in which a baby's head is smaller than normal, often present at birth and accompanied by lifelong intellectual disability. Further, the evidence in the record is clear that Snyder suffers from the condition of microcephaly and his intellectual disabilities all stem from this condition. None of the parties contest this evidence. As such, sufficient facts are before us in the record as to render Snyder's motion moot, and it is denied for that reason. In August 2013, a Larned psychologist reported to the district court that Snyder was competent to stand trial. The record is unclear about what transpired next, but it appears the proceedings were delayed for a few months to accommodate a competency evaluation by a different psychologist. This psychologist concluded Snyder was not competent to stand trial. On November 13, 2013, the court held an evidentiary hearing where the parties presented the psychologists' testimony and other medical evidence. On December 3, 2013, the court found Snyder was not yet competent to stand trial and ordered him committed to Larned for competency restoration for a period not to exceed six months. In March 2014, Larned again reported that Snyder was competent to stand trial. This report precipitated more competency evaluations, which culminated in another evidentiary hearing on April 18, 2014. At the hearing, Snyder presented two psychologists who testified that he was not competent to stand trial and had a poor prognosis of becoming competent in the future. The State called no witnesses. A month later, the State conceded Snyder's incompetence and the district court found Snyder was not competent to stand trial. At this point, the record becomes blurry. It appears the district court ordered the Kansas Department for Aging and Disability Services (KDADS) to commence involuntary commitment proceedings against Snyder in the fall of 2014, but the order is missing from the record. At oral argument, the parties clarified that sometime in 2014 Snyder was civilly committed under the Kansas Care and Treatment Act for Mentally Ill Persons, K.S.A. 2017 Supp. 59-2945 et seq., in Pawnee County. But the record does not reveal-and the parties could not recall at oral argument-the precise duration of this commitment. As far as we can tell, Snyder remained confined at Larned, and the Saline County District Court held regular status hearings regarding his progress toward competency. During this time, a series of Larned reports indicated that Snyder's progress toward competency was minimal and slow. At the status hearings, Snyder consistently objected to continuances of the criminal case on the grounds that he suffered a speedy trial violation under Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972), and a due process violation under Jackson v. Indiana , 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed. 2d 435 (1972). The district court overruled each objection. In early June 2016, Snyder also moved to dismiss the charges with prejudice, again alleging constitutional violations under Barker and Jackson . The court subsequently denied the motion. In late June 2016, Larned sent a report to the court stating Snyder was competent to stand trial. This triggered four more competency evaluations, which all concluded that Snyder was not competent to stand trial. One psychologist reported that Snyder's "condition can't be effectively eliminated or remedied with any medical or other treatment procedure," and "the competency restoration process has been completely ineffective." Another stated, "Congenital microcephaly and resultant intellectual disability suggests that any further treatment, education or habilitation would be futile. Given his current incompetence to stand trial despite three years of treatment and the assumption that the competency treatment program the defendant undertook met a standard of care ... the defendant lacks the capacity to become competent in the foreseeable future." In the wake of these reports, the State again conceded that Snyder was not competent to stand trial. On November 23, 2016, the Saline County District Court found Snyder was not competent to stand trial with no substantial probability that he would attain competency in the foreseeable future. Consequently, as directed by Kansas statute, the court again ordered KDADS to commence involuntary commitment proceedings against Snyder. See K.S.A. 2017 Supp. 22-3303(1). On February 2, 2017, Snyder filed the instant action directly with this court, seeking release from confinement and dismissal of the charges with prejudice based on federal due process, equal protection, and speedy trial violations. See K.S.A. 2017 Supp. 60-1501. Later that month, in tardy compliance with the Saline County District Court's November 23, 2016 order, KDADS filed a petition for determination of mental illness in Pawnee County, again alleging Snyder was a mentally ill person subject to involuntary commitment for care and treatment at Larned. On March 21, 2017, the Pawnee County District Court held a bench trial, found Snyder was a mentally ill person subject to involuntary commitment for care and treatment, and ordered him to be civilly committed at Larned. Snyder's resulting civil commitment is the subject of a separate case, this day decided. See In re Care & Treatment of Snyder , --- Kan. ----, 422 P.3d 85, 2018 WL 3599273 (2018) (No. 117,512, this day decided). Subsequently, this court entered an order staying Snyder's habeas case until Snyder was released from involuntary commitment and requiring the parties to submit periodic status updates. On December 18, 2017, Snyder moved this court to lift the stay and schedule oral argument, claiming he was to be discharged from civil commitment at Larned. A few days later, we ordered the parties to show cause why the case should not be scheduled for oral argument. The parties indicated that Snyder remained in custody at Larned and a dispute had arisen in Pawnee County District Court about the status of Snyder's civil commitment. On January 2, 2018, the district court held a hearing to resolve the matter and took it under advisement. On January 5, 2018, we entered an order lifting the stay and setting oral argument for January 26, 2018. After argument but while this case was pending, the Pawnee County District Court issued its ruling from the January 2, 2018, hearing. The court found that Snyder continues to qualify as a mentally ill person subject to involuntary commitment for care and treatment. We exercise original jurisdiction in this action. Kan. Const. art. 3, § 3 ("The supreme court shall have original jurisdiction in proceedings in ... habeas corpus."). ANALYSIS 1. Snyder was not denied a speedy trial. Snyder argues his lengthy detainment for competency restoration has violated his federal speedy trial rights under Barker and asks this court to dismiss his criminal charges with prejudice. In Barker , the Supreme Court set forth a four-factor balancing test to determine whether a defendant's Sixth Amendment right to a speedy trial has been violated: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. 2182. Assuming three factors-length of delay, assertion of the right, and prejudice to the defendant-weigh in Snyder's favor, his speedy trial claim is still foreclosed by the sole reason for the delay-his incompetency to stand trial. On January 7, 2013, the Saline County District Court granted Snyder's motion to determine his competency to stand trial. At that time, Snyder's criminal case was suspended by statute. See K.S.A. 2017 Supp. 22-3302(1) ("If, upon the request of either party ... the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant."). It remains suspended to this day because no court has found Snyder competent to stand trial. See K.S.A. 2017 Supp. 22-3302(4) ("If the defendant is found to be competent, the proceedings which have been suspended shall be resumed."). The mandatory suspension of criminal proceedings during a period of incompetency is "[c]onsistent with due process protections imposed by the United States Supreme Court." State v. Ford , 302 Kan. 455, 457, 353 P.3d 1143 (2015). Indeed, "[i]t is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial." Medina v. California , 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed. 2d 353 (1992). Though the Sixth Amendment guarantees an accused the right to a speedy a trial, the stubborn fact remains-Snyder cannot be constitutionally tried while incompetent. Shortly after Barker was published, we held: "Where the state makes a proper record on delays occasioned by a determination of the accused's competency to stand trial, the state is not charged with such delay in determining whether the accused was afforded a speedy trial" under Barker . State v. Fink , 217 Kan. 671, 679, 538 P.2d 1390 (1975) ; see State v. Smith , 215 Kan. 34, 40, 523 P.2d 691 (1974) (finding no speedy trial violation under Barker where delay was "due in large part to appellant's own request to have his competency determined"). Likewise, other jurisdictions follow the same rule. See United States v. Mills , 434 F.2d 266, 271 (8th Cir. 1970) ("The courts ... hold that delays encountered in bringing a defendant to trial who claims to be incompetent or who is temporarily incompetent ordinarily do not infringe upon his Sixth Amendment right to a speedy trial."); Langworthy v. State , 46 Md. App. 116, 128, 416 A.2d 1287 (1980) ("The cases are legion in holding that once an accused has been determined to be incompetent, the deferral of his trial pending a return to competency does not offend any right to a speedy trial under the Sixth Amendment."); State v. Mendoza , 108 N.M. 446, 449, 774 P.2d 440 (1989) ("The law is clear that conviction of a legally incompetent accused violates due process. ... Regardless of who initiates the proceeding a competency examination is clearly on behalf of the accused and in no way infringes on that person's speedy trial rights."); State v. Woodland , 945 P.2d 665, 670 (Utah 1997) ("That delays caused by questions of competency do not impinge on an accused's right to a speedy trial is well established."). The bottom line is, Snyder cannot be tried in a condition of incompetency without running afoul of due process. Snyder contested his competency a few weeks after arraignment. Since then, he has remained legally incompetent to stand trial. Under these circumstances, the long delay caused by Snyder's incompetency cannot be attributed to the State. Therefore, we hold Snyder's federal speedy trial rights have not been violated, and his criminal charges remain suspended. 2. Snyder was not denied due process. Next, Snyder claims his lengthy detainment-from his first motion contesting competency until now-violates due process under Jackson . He argues the State has effectively subjected him to indefinite commitment "simply on account of his incompetency to stand trial on the charges filed against him," as Jackson forbids. 406 U.S. at 720, 92 S.Ct. 1845. However, we find no Jackson violation in this case on the specific facts as presented to us. In Jackson , the state of Indiana was indefinitely detaining a "mentally defective" defendant-whose chances of becoming competent were "minimal, if not nonexistent"-without convicting him of a crime or subjecting him to the civil commitment procedures applicable to other citizens. 406 U.S. at 717, 727, 92 S.Ct. 1845. The Supreme Court determined that "Indiana's indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial" violated the Fourteenth Amendment's due process guarantee. 406 U.S. at 731, 92 S.Ct. 1845. As the Court explained, "It is clear that Jackson's commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any of the articulated bases for exercise of Indiana's power of indefinite commitment. ... At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." 406 U.S. at 737-38, 92 S.Ct. 1845. Furthermore, the Court erected due process boundaries to prevent the indefinite commitment of defendants on competency grounds alone: "[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal." 406 U.S. at 738, 92 S.Ct. 1845. Thus, Jackson dictates that a defendant held solely on account of his or her incompetency to stand trial may remain in limbo only for "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competency] in the foreseeable future" and "continued commitment must be justified by progress toward that goal." 406 U.S. at 738, 92 S.Ct. 1845. However, the Jackson court declined to "prescribe arbitrary time limits," leaving the states to wrestle with the nebulous reasonable time standard. 406 U.S. at 738, 92 S.Ct. 1845 ; see also State v. Rotherham , 122 N.M. 246, 264, 923 P.2d 1131 (1996) ("Significantly, the Supreme Court in Jackson did not articulate a hard and fast time limitation on commitment to attain competency, requiring only that commitment be for a 'reasonable period of time.' "). Alternatively, Jackson instructs that a state may continue to detain an incompetent defendant without offending due process if it affords the defendant the protections of a lawful "civil commitment proceeding." 406 U.S. at 738, 92 S.Ct. 1845. In 1970, the Kansas Legislature first codified the competency statutes, K.S.A. 1970 Supp. 22-3301 et seq., which required a district court to suspend criminal proceedings when it had reason to believe a defendant was not competent to stand trial. L. 1970, ch. 129, § 22-3302. At that time, the competency statutes did not prohibit the State from indefinitely holding an incompetent defendant outside the bounds of civil commitment. But soon after Jackson , the Legislature revamped the competency statutes in an apparent effort to comply with that decision. See L. 1977, ch. 121, § 2. To this end, the Legislature imposed statutory deadlines that serve as benchmarks to determine whether a reasonable time to restore a defendant's competency under Jackson has expired. See K.S.A. 22-3303 (Ensley 1981); State v. Ray , 429 Md. 566, 570, 57 A.3d 444 (2012) (statutory deadlines "provide yardsticks for determining the reasonable amount of time necessary to determine if a defendant is restorable" under Jackson ). If, after the expiration of these deadlines, the defendant has no "substantial probability of attaining competency to stand trial in the foreseeable future," then the district court must order the commencement of involuntary commitment proceedings under the Care and Treatment Act. K.S.A. 2017 Supp. 22-3303. Importantly, Snyder does not argue the Kansas competency statutes are facially unconstitutional under Jackson . Instead, he argues the State has run afoul of Jackson by holding him indefinitely only on account of his incompetency to stand trial. But in Jackson , the defendant's due process rights were violated because the state of Indiana did not subject him to the same civil commitment procedures as other citizens. Here, Snyder has been lawfully civilly committed. See In re Care & Treatment of Snyder , --- Kan. ----, Syl. ¶ 3, 422 P.3d 85, 2018 WL 3599273. And he points us to no statutory violation that amounts to a due process violation. Our analysis is limited to the arguments presented and the spotty record before us. Because we see no Jackson violation-indeed, our statutory scheme complies with Jackson -we find no due process violation on the present showing. But we take this opportunity to voice our grave concern that the State has not given this case the careful attention it deserves. We remind the State that civil commitment is a "significant deprivation of liberty that requires due process protection." Addington v. Texas , 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed. 2d 323 (1979) ; see In re Care and Treatment of Sykes , 303 Kan. 820, 824, 367 P.3d 1244 (2016). Yet, when the Saline County District Court ordered the State to initiate civil commitment proceedings against Snyder in November 2016, the State waited for three months to do so-until after Snyder filed a habeas action in this court. This lackadaisical response to a court order-while Snyder's liberty hung in the balance-is unacceptable. Because Snyder does not cite this delay as a basis for his constitutional claims, we are not prepared today to say it violated due process. But given the serious liberty interests at stake, we expect the State to handle cases such as this one with the utmost expediency. In the words of the New Mexico Supreme Court: "[A]n incompetent defendant cannot be committed for more than a 'reasonable period of time' than necessary to determine whether he will be rendered competent to stand trial in the foreseeable future. Jackson, 406 U.S. at 733, 92 S.Ct. at 1855-56. Our Legislature adopted a system of hearings, complete with time limitations, to ensure that a defendant's commitment is no longer than a 'reasonable period of time.' Thus, it would be contrary to the statute's objective, and indeed the constitution, to allow these time limitations to be ignored. The inevitable result would be commitment for a period longer than what the Legislature has deemed reasonable. Hence, the State has the responsibility to ensure that a defendant's commitment is no longer than 'reasonable' and that all statutory procedures are timely effectuated." Rotherham , 122 N.M. at 264, 923 P.2d 1131. We also emphasize that Snyder has now been ping-ponged between competency detainment and civil commitment at least twice, though the record strongly suggests that Snyder's chances of becoming competent are "minimal, if not nonexistent." Jackson , 406 U.S. at 727, 92 S.Ct. 1845. The competency statutes were designed to protect against Jackson violations. But due process cannot tolerate our statutory scheme being used as a mere façade to conceal the very problem Jackson sought to correct. Though today's case has not yet reached that point, the State cannot deliver the due process guaranteed our citizens by indefinitely alternating the detainment of an individual between criminal competency restoration and civil commitment. 3. Snyder's equal protection claim is abandoned. Finally, Snyder argues that indefinite detainment on account of his incompetency to stand trial denies him equal protection by penalizing him for his intellectual disability. However, Snyder simply presses the point "without pertinent authority, or without showing why it is sound despite a lack of supporting authority" which is "akin to failing to brief an issue." McCain Foods USA, Inc. v. Central Processors, Inc. , 275 Kan. 1, 15, 61 P.3d 68 (2002). Snyder's failure to adequately brief his equal protection claim renders it abandoned. See State v. Angelo , 306 Kan. 232, 236, 392 P.3d 556 (2017) ; State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015) (finding "sparse" briefing rendered issue abandoned). Snyder's petition for habeas relief is denied.