1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,881

STATE OF KANSAS,

Appellee,

v.

KENNETH CRAWFORD,

Appellant.

SYLLABUS BY THE COURT

1.

A claim of prosecutorial misconduct based on comments made during voir dire or 

closing arguments, neither of which is evidence, will be reviewed on appeal even absent a 

contemporaneous objection. 

2.

Under State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), appellate review of 

allegations of prosecutorial misconduct requires a two-step process. First, an appellate 

court determines whether there was misconduct, i.e., whether the prosecutor's comments 

were outside the wide latitude allowed in discussing the evidence. Second, if misconduct 

is found, the appellate court determines whether those comments compel reversal, i.e., 

whether the statements prejudiced the jury against the defendant and denied the defendant 

a fair trial.

3.

In analyzing whether a defendant was denied a fair trial because of prosecutorial 

misconduct, an appellate court considers three factors: (1) whether the misconduct was 

gross and flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether 
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the evidence was of such a direct and overwhelming nature that the misconduct would 

likely have had little weight in the minds of jurors. No one factor is controlling.

4.

The factor of whether the misconduct likely had little weight in the minds of the 

jurors encompasses a dual standard for determining harmlessness: the standards of 

K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 

705, reh. denied 386 U.S. 987 (1967). Under both standards, the test is whether the 

misconduct affected the outcome of the trial, but the levels of certainty required for this 

determination varies. Under the statutory standard of K.S.A. 60-261, an appellate court 

declares reversible error if there is a reasonable probability the error affected the outcome 

of the trial in light of the entire record. A federal constitutional error can be declared 

harmless under Chapman only if there is no reasonable possibility that the error 

contributed to the verdict.

5.

A prosecutor's statement during voir dire that he or she will probably talk to the 

jurors after the trial in order to learn the jurors' views on what they liked or disliked and 

on their suggestions for the prosecutor's improvement is not misconduct. 

6.

In arguing to a jury, a prosecutor is not limited to discussing direct evidence. 

Rather, a prosecutor is allowed considerable latitude in discussing the evidence and 

drawing reasonable inferences from that evidence.

7.

The prosecutor's misstatement of the law regarding the State's burden to prove the 

elements of charged crimes beyond a reasonable doubt, which occurred through the use 

of a jigsaw puzzle analogy, was gross and flagrant misconduct because it was contrary to 
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the consistent warnings in Kansas precedent against such explanations, was planned and 

calculated, was repeated, and had the effect of minimizing the State's burden of proof. 

8.

Under the facts of this case, there is no indication that the prosecutor's misconduct 

was motivated by ill will.

9.

Under the facts of this case, the State met its burden of establishing beyond a 

reasonable doubt that the misconduct did not affect the outcome of the trial, i.e., there is 

no reasonable possibility that the misconduct contributed to the jury's verdict.

Review of the judgment of the Court of Appeals in State v. Crawford, 46 Kan. App. 2d 401, 262 

P.3d 1070 (2011). Appeal from Barton District Court; RON L. SVATY, judge. Opinion filed September 19, 

2014. Judgment of the Court of Appeals affirming the district court on the issue subject to our grant of 

review is affirmed. Judgment of the district court on that issue is affirmed.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, argued the cause and was on the 

briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Steve Six, attorney general, 

was with him on the brief for appellee.

The opinion of the court was delivered by

Per Curiam: On petition for review from State v. Crawford, 46 Kan. App. 2d 401, 

262 P.3d 1070 (2011), Kenneth Crawford takes issue with the Court of Appeals' rejection 

of two of his contentions of prosecutorial misconduct and with the standard used by the 

Court of Appeals when determining if a third instance, which it found to be misconduct,

denied him a fair trial.
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A multi-prong test applies to the determination of whether a defendant's 

convictions should be reversed because of prosecutorial misconduct, one portion of 

which requires a court to determine whether the misconduct likely had little weight in the 

minds of the jurors. See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Crawford 

argues this traditional test is flawed because it leaves open the possibility the misconduct 

affected the verdict. 

After examining Tosh and subsequent caselaw, we conclude Crawford's criticism 

is unwarranted. We also conclude the Court of Appeals reached the correct conclusions in 

this case: There is no merit to two of Crawford's misconduct claims, and the prosecutor's 

misconduct in using a jigsaw puzzle analogy did not deprive Crawford of a fair trial. 

Therefore, we affirm the Court of Appeals and district court. 

FACTS AND PROCEDURAL BACKGROUND

Nina Dozier and her husband were driving on a country road when they saw 12-

year-old S.V. They stopped, offered S.V. assistance, and drove her to her mother's

workplace. S.V.'s mother called 911 after S.V. reported she had been sexually assaulted 

by Crawford. 

At trial, S.V. testified that Crawford had come to her house to see S.V.'s mother. 

When S.V. told Crawford her mother was not home, he persuaded S.V. to take a ride in 

his truck. He drove around for a while and then stopped in a rural area near the location 

where the Doziers found S.V. Crawford asked S.V. to show him her breasts. When she 

refused, he replied, "What do you think we came down here for?"

S.V. tried to get out of the truck and run away, but Crawford grabbed her and 

pulled her onto the ground. He straddled her, put his hand over her breast, and "smeared" 
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his face over hers. S.V. continually demanded that Crawford stop. She struggled with 

him, scratching him on his face and pinching his arm. During the struggle, S.V.'s lip 

became bloodied. Crawford told S.V. to shut up or he would kill her. After a period of 

time, estimated by S.V. to be about 5 minutes, she escaped and made her way to the place 

where the Doziers found her. 

Forensic tests determined that S.V. had Crawford's DNA under her fingernails, 

and law enforcement officers observed that Crawford had a scratch on his face and small 

injuries under his arm. Crawford explained that he had injured himself while shaving or 

working under his truck. 

When interviewed by law enforcement officers, S.V. described a location in "the 

country" where Crawford had taken her, indicating she saw trees, grass, a shack, and a 

metal cross. S.V. directed them to a location, where a detective observed a small metal 

cross and something that looked like an oil spot in the wheat stubble between some tire 

tracks. Upon examining Crawford's truck, law enforcement officers observed wheat grain 

and wheat stubble on the wheel rims and undercarriage and an oil leak under the front 

end. They did not test the spot in the stubble to verify if it was oil or if it matched fluids 

from Crawford's truck. 

Crawford, when interviewed by law enforcement officers, denied any wrongdoing 

or having S.V. inside his truck, and her fingerprints were not found in the truck. He also 

presented alibi evidence establishing he was at a garage with his mechanic at the time 

S.V. indicated he had come to her house and picked her up. Nevertheless, Crawford 

admitted he had stopped by S.V.'s house that evening to visit S.V.'s uncle, and he 

confirmed that he had driven around that evening and had turned around in a wheat 

stubble field.
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Crawford was convicted by a jury of aggravated kidnapping, aggravated indecent 

liberties with a child under the age of 14, and criminal threat. The district court imposed 

consecutive sentences, resulting in a controlling prison term of 337 months. 

On direct appeal to the Court of Appeals, Crawford argued there were four trial 

errors and two sentencing errors: (1) His statutory right to a speedy trial was violated; (2) 

the prosecutor committed three separate acts of prosecutorial misconduct; (3) the district 

court committed judicial misconduct; (4) he was denied a fair trial based on cumulative 

error; (5) the district court improperly aggregated three misdemeanors into one prior 

person felony when calculating his criminal history score; and (6) the district court 

violated his constitutional rights when it relied on his prior convictions to increase his 

sentence. The Court of Appeals affirmed Crawford's convictions and sentences.

Crawford, 46 Kan. App. 2d 401.

Crawford petitioned this court for review, which this court granted in part by 

accepting review of only the second issue—the three prosecutorial misconduct claims. 

K.S.A. 22-3602(e) (party may petition the Supreme Court for review as provided in 

K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of 

Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e) (2013 

Kan. Ct. R. Annot. 74) (discretion in granting review); Supreme Court Rule 8.03(g)(1) 

(order granting review may limit the issues on review).

Specifically, Crawford argues the prosecutor committed misconduct by (A) 

improperly intimidating or influencing the jury during voir dire, (B) arguing facts not in 

evidence during closing arguments, and (C) misstating the law regarding the State's 

burden of proof by using a jigsaw puzzle analogy during voir dire and closing arguments. 

He contends his convictions must be reversed because this misconduct denied him a fair 

trial.
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PROSECUTORIAL MISCONDUCT STANDARDS OF REVIEW

We begin with a discussion of the standards that govern our review of Crawford's 

prosecutorial misconduct claims. Preliminarily, we note that a claim of prosecutorial 

misconduct based on comments made during voir dire or closing arguments, neither of 

which is evidence, will be reviewed on appeal even absent a contemporaneous objection. 

See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014); State v. Dull, 298 Kan. 

832, 836, 317 P.3d 104 (2014); State v. Stevenson, 297 Kan. 49, 51, 298 P.3d 303 (2013); 

State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

As to the prosecutorial misconduct standard, as explained in Tosh, 278 Kan. at 93,

appellate review of allegations of prosecutorial misconduct requires a two-step process. 

First, an appellate court determines whether there was misconduct, i.e., whether the

prosecutor's comments were outside the wide latitude allowed in discussing the evidence. 

Second, if misconduct is found, the appellate court determines whether those comments 

compel reversal, i.e., whether the statements prejudiced the jury against the defendant and 

denied the defendant a fair trial. Armstrong, 299 Kan. at 416 (citing State v. Bridges, 297 

Kan. 989, 1012, 306 P.3d 244 [2013]; Tosh, 278 Kan. at 85). 

In applying the first step in this case, the Court of Appeals panel found no merit in 

two of Crawford's claims of misconduct. Specifically, it held the prosecutor did not (A) 

improperly intimidate or influence the jury during voir dire or (B) argue facts not in 

evidence. The Court of Appeals did find that the prosecutor committed misconduct by 

misstating the law regarding the State's burden of proof when the prosecutor used a 

jigsaw puzzle analogy during voir dire and closing arguments. 

Consequently, the Court of Appeals moved to the second step of the analysis to 

determine if the use of the jigsaw puzzle analogy deprived Crawford of a fair trial. In 

analyzing the second step of whether the defendant was denied a fair trial, an appellate 
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court considers three factors: (1) whether the misconduct was gross and flagrant, (2) 

whether it was motivated by prosecutorial ill will, and (3) whether the evidence was of 

such a direct and overwhelming nature that the misconduct would likely have had little 

weight in the minds of jurors. No one factor is controlling. Tosh, 278 Kan. at 93; see 

State v. Huddleston, 298 Kan. 941, 953-54, 318 P.3d 140 (2014); Bridges, 297 Kan. at 

1012.

The Court of Appeals panel cited and applied these factors. Crawford, 46 Kan. 

App. 2d at 414-15 (quoting State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 

[2009]). The panel did not explain the third factor, however. In Tosh, this court 

elaborated on the meaning of this factor, stating that before it can ever override the first 

two factors, an appellate court must be able to say that the State can meet the 

harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. 

Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Armstrong, 299 Kan. at 417

(citing Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 85). 

In Chapman, the United States Supreme Court directed that "before a federal 

constitutional error can be held harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt." 386 U.S. at 24. In Tosh, this court, in using the 

phrase "likely [had] little weight in the minds of the jurors," observed that the phrase

"echo[ed] the federal harmless error rule declared in Chapman" and also noted the 

language "sound[ed] most like the harmlessness examination now required by K.S.A. 60-

261." Tosh, 278 Kan. at 96. In essence, the Tosh court used the phrase "likely [had] little 

weight in the minds of the jurors" as descriptive shorthand for application of the "dual 

standard" for determining harmlessness. 278 Kan. at 97.

Subsequently, in State v. Ward, 292 Kan. 541, 566, 256 P.3d 801 (2011), cert. 

denied 132 S. Ct. 1594 (2012), we explained that "our frequent reference, primarily in 

prosecutorial misconduct cases, to satisfying both harmlessness standards—K.S.A. 2010 
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Supp. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 

705 (1967)—should not be read to imply there are two different tests. [Citations 

omitted.]" We explained that the two tests use the same benchmark—whether a trial error 

affected the outcome of the trial—but required different levels of certainty about this 

conclusion—either a reasonable probability or a reasonable possibility. Specifically, 

under the statutory standard, an appellate court declares reversible error if there is a 

reasonable probability the error affected the outcome of the trial in light of the entire 

record. A federal constitutional error can be declared harmless only if there is no 

reasonable possibility that the error contributed to the verdict. Ward, 292 Kan. at 566. 

More recently, we observed that, as a practical matter, the result of the harmless 

error evaluation depends on the outcome of the federal constitutional standard. "'[B]oth 

the constitutional and nonconstitutional errors clearly arise from the very same acts and 

omissions,' and the constitutional standard is more rigorous. Thus, the State necessarily 

meets the lower statutory standard under K.S.A. 60-261 if it meets the higher 

constitutional standard." Armstrong, 299 Kan. at 417 (citing Bridges, 297 Kan. at 1015;

State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).

Thus, as Crawford argues, ultimately an appellate court must determine whether 

there is a reasonable possibility that the verdict was affected by the prosecutor's 

misconduct. While we can assume that the Court of Appeals panel understood this and 

applied the correct test, its truncated discussion legitimately led to Crawford's doubts 

about what test was applied. We reiterate, however, that the phrase "likely [had] little 

weight in the minds of the jurors" incorporates the federal constitutional standard and is 

the test that applies under Tosh. 

We next apply the test to the alleged misconduct in this case. 
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A. Comments During Voir Dire

First, Crawford contends that during voir dire the prosecutor suggested to the 

prospective jurors they would have to answer to the State or justify their verdict if they 

were selected to serve as jurors. Crawford argues this was a tactic that improperly 

intimidated or influenced the jury.

Prosecutor's Statements

Crawford complains about the following statements:

"And in this case, I represent the State of Kansas, and I want to talk to you 

about—I'm going to ask you a number of questions, and as the judge indicated, I'm not 

trying to embarrass you. This is the last chance we'll have to talk until after the case, and 

if you're seated as a juror in this case, I can guarantee I'm probably going to want to talk 

to you when we're done regardless of the outcome, because I like to find out what did you 

like, what things did you dislike, what are things we can improve on, things like that. So 

we'll talk after the case is done."

The prosecutor next asked if any of the potential jurors was nervous and admitted that he, 

too, was nervous. 

No Misconduct

The analysis begins with the determination of whether the prosecutor committed 

misconduct. The Court of Appeals answered this question in the negative. Crawford, 46 

Kan. App. 2d at 411. We agree and conclude the prosecutor's comments were not 

improper. 
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It is well established that under Supreme Court Rule 169 (2013 Kan. Ct. R. Annot.

270), "attorneys may discuss a trial with willing jurors after their discharge from jury 

duty." Williams v. Lawton, 288 Kan. 768, Syl. ¶ 9, 207 P.3d 1027 (2009); see Crystal, 

Limitations on Zealous Representation in an Adversarial System, 32 Wake Forest L. Rev. 

671, 693 (1997) ("On balance, therefore, it seems proper for lawyers to be able to 

interview jurors after the case is over, so long as lawyers do not harass the jurors."). But 

Rule 169 also makes it clear that it is "inappropriate to harass or criticize jurors" and 

jurors are not required to speak with the attorneys. Williams, 288 Kan. at 794. 

Recognizing that posttrial discussions with jurors can occur, Crawford argues the

prosecutor's comments were improper because he failed to explain that the jurors would 

not be required to talk to him after the trial. And, according to Crawford, the prosecutor 

offered a "guarantee" that the jurors would be subjected to "some kind of post-verdict 

inquisition" in which they would have to defend an acquittal. 

We disagree because the prosecutor's comments, when read in context, are not 

intimidating and do not demand a defense of the verdict from the jurors. In fact, the 

prosecutor did not even guarantee that he would talk to the jurors. Rather, he indicated 

that he could "guarantee [he was] probably going to want to talk" to them after the trial 

"regardless of the outcome." And the prosecutor said that he would want to ask about 

"things we can improve on." The message was not one of intimidation but a road map of 

what to expect and an explanation that any discussion was to assist the prosecutor in

improving his trial skills. See Williams, 288 Kan. at 793 ("postverdict communication 

with jurors assists attorneys in improving their trial technique and is a valuable 

educational tool").

We conclude the prosecutor's statements were not improper; they did not stray 

outside the wide latitude afforded prosecutors. Having found no misconduct, there is no 

need to continue to the harmlessness inquiry. See State v. Hunt, 285 Kan. 855, 866, 176 
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P.3d 183 (2008) ("Obviously, if the comments do not exceed the bounds of fair argument, 

there is no need to proceed to the second step of assessing plain error.").

B. Argument Supported by Facts in Evidence

In addition, Crawford argues the prosecutor committed misconduct during closing 

arguments by improperly commenting on facts not in evidence. As Crawford correctly 

argues, it is well established that a prosecutor must limit his or her remarks in closing 

arguments to facts in evidence. State v. Baker, 281 Kan. 997, 1012, 135 P.3d 1098 

(2006); see State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009). Nevertheless, 

there does not have to be direct evidence of every point argued. Instead, "a prosecutor is 

allowed considerable latitude in discussing the evidence and drawing reasonable 

inferences from that evidence. [Citations omitted.]" State v. McCaslin, 291 Kan. 697, 

722, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 

395, 324 P.3d 1046 (2014). The prosecutor may even use "picturesque speech" as long as 

he or she does not refer to facts not disclosed by the evidence. McCaslin, 291 Kan. at 

722; State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000).

Here, Crawford complains that during closing arguments the prosecutor stated: 

"[The detective] said you could see tire marks, and when we got up closer, there was an 

oil spot where a truck had parked, oil spot right in the middle." The prosecutor also 

stated: "And the other thing [the detective] noticed, there was that oil drip out in the 

field. Guess what? Defendant's truck just happens to drip oil right between the two tires, 

fresh oil." 

According to Crawford, it was prosecutorial misconduct to argue that the evidence 

established that Crawford's truck was at the alleged crime scene because the detective did 

not collect or test any sample of the "dark spot" in order to identify the material as oil or 

to link the material to Crawford's truck. The State responds, correctly, that the 
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prosecutor's comments accurately reflected on the detective's trial testimony and, 

therefore, the prosecutor did not commit misconduct.

During the detective's testimony, there were numerous references to the detective's 

belief that the "dark spot" was oil and that it came from Crawford's truck. The detective 

testified on direct examination that he saw tire marks in the field: "You could see on the 

ground in the wheat stubble where a vehicle had driven. There were obviously two tire 

tracks that pushed the wheat stubble down." The detective saw "tire marks as they pulled 

in where a vehicle was stopped" and "it looked to be a dark spot in the grass or in the 

wheat stubble that looked to be oil or something." When identifying an exhibit, the 

detective said, "That's the photograph I took of the oil." Then, in describing the search of 

Crawford's truck, the detective said he "noticed two oil spots underneath of it from the 

front end of the motor." 

On cross-examination, the detective testified that a "dark spot in the field" drew 

his attention because it was located between the tire tracks where "two wheels [had been] 

parked." In other answers, he said the dark spot "looked to be oil" and, at least twice, 

referred to the spot as "an oil spot." Again, on redirect examination, the detective 

indicated that he verified that Crawford's truck leaked oil and that in the field he "found 

what appeared to be a spot of oil between two tire marks."

The prosecutor's comments were supported by evidence—including multiple 

references in the detective's testimony to an oil spot and an oil leak—and were based on 

reasonable inferences drawn from the detective's testimony. The prosecutor did not 

commit misconduct in commenting on the detective's testimony.
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C. Jigsaw Puzzle Analogy

The third instance of alleged prosecutorial misconduct occurred during voir dire 

and again during closing arguments when the prosecutor explained the State's burden of 

proof using a jigsaw puzzle analogy. Crawford argues the prosecutor misrepresented the 

definition of reasonable doubt and minimized the State's burden of proof; therefore, 

according to Crawford, the error justifies reversing his convictions. 

As mentioned, the Court of Appeals ruled partially in Crawford's favor on this 

argument, finding that the prosecutor committed misconduct. State v. Crawford, 46 Kan. 

App. 2d 401, 414, 262 P.3d 1070 (2011). Of course, Crawford did not petition this court 

for review of this misconduct ruling. Nor did the State file a cross-petition for review. 

Hence, the Court of Appeals' holding on misconduct stands, and the ruling is not before 

this court. See K.S.A. 2013 Supp. 60-2103(h) (to obtain appellate review of adverse 

rulings, appellee must file notice of cross-appeal); State v. Novotny, 297 Kan. 1174, 1180, 

307 P.3d 1278 (2013) (same); Cooke v. Gillespie, 285 Kan. 748, 754-55, 176 P.3d 144 

(2008) (same).

Rather, Crawford asks this court to review the Court of Appeals' determination 

that the prosecutor's use of the jigsaw puzzle analogy did not deny him a fair trial. See

Crawford, 46 Kan. App. 2d at 414-16. 

Prosecutor's Statements

In order to make a determination of whether the misconduct was harmless, we 

must consider the prosecutor's statements. The first misstatement was made during voir 

dire. The prosecutor first told the venire panel that "the burden is on the State of Kansas 

to prove [its case] beyond a reasonable doubt." Then, the following colloquy took place 

between the prosecutor and one of the prospective jurors:
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"[PROSECUTOR]: Okay. You have seen jigsaw puzzles. Have you seen jigsaw 

puzzles where maybe one or two pieces, a couple pieces are missing throughout the 

puzzle?

"[POTENTIAL JUROR]: I don't know. I suppose.

"[PROSECUTOR]: Okay. Go with me here then, just go with me for a second. 

We have got a big puzzle like this, the scene is a lighthouse and the ocean and the waves 

crashing against the rocks, a[nd] there's [a] couple gulls flying around. Got that?

"[POTENTIAL JUROR]: Got it.

"[PROSECUTOR]: Okay. If you're missing some of the pieces to the lighthouse 

and some of the pieces to the ocean, do you then say, well, that just can't be a lighthouse 

and an ocean because there's some pieces missing?

"[POTENTIAL JUROR]: No.

"[PROSECUTOR]: Are you—so even though there's some pieces missing, 

you're able to say that looks like a lighthouse and an ocean?

"[POTENTIAL JUROR]: Yeah, I'm sure.

"[PROSECUTOR]: That's kind of what I'm talking about is reasonable doubt. 

There's probably always going to be some question something that doesn't get answered. 

The question is, when you put the pieces together, even if there are some pieces missing, 

does that mean it didn't happen? No. So—and that's kind of why I bring that up. Thanks." 

(Emphasis added.) 

Additionally, during closing arguments, the prosecutor revisited the jigsaw puzzle 

analogy:

"You get to determine credibility of witnesses, and when I talked in voir dire 

about the jigsaw puzzle, and the scene with the lighthouse and the ocean, there are always 

going to be pieces of the puzzle missing because none of us were there. None of you were 

there. The question you got to ask yourself is just because a piece of the puzzle—pieces 

of the puzzle are missing, does that mean you can't see the whole picture? Are those 

questions reasonable in your mind?" (Emphasis added.) 
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Fair Trial Inquiry

In light of the Court of Appeals' holding that these comments were outside the 

wide latitude allowed a prosecutor in making arguments, i.e., prosecutorial misconduct, 

we must determine whether the prosecutor's conduct was harmless. 

1. Gross and Flagrant

The first factor in the harmlessness inquiry is whether the misconduct was gross 

and flagrant. Bridges, 297 Kan. 989, Syl. ¶ 15; State v. Tosh, 278 Kan. 83, 93, 91 P.3d 

1204 (2004). In determining whether prosecutorial misconduct was gross and flagrant, 

among the things an appellate court considers are whether the comments were repeated, 

emphasized improper points, were planned or calculated, violated well-established or 

unequivocal rules, or violated a rule designed to protect a constitutional right. State v. 

Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010); see Bridges, 297 Kan. 989, Syl. ¶ 18. 

Crawford argues that the prosecutor's statements fit within several of these factors: 

They were planned, repeated, violated longstanding warnings to prosecutors against 

trying to define reasonable doubt, and violated a fundamental principle of holding the 

State to its burden of proving guilt beyond a reasonable doubt. The Court of Appeals did 

not list these factors in its analysis. Nevertheless, the State attempts to explain reasons 

these factors do not apply. 

First, the State attempts to minimize the fact that the jigsaw puzzle analogy was 

repeated by arguing that the first instance—the one during voir dire—involved the 

prosecutor's attempt to explain reasonable doubt, but the second instance—the one during 

closing arguments—was "framed in the context of judging witness credibility." This 

argument is not persuasive because the prosecutor's use of the jigsaw puzzle analogy 
17

during closing arguments referred back to his earlier mention of the analogy and then 

referred to missing puzzle pieces and whether jurors were left with "reasonable" 

questions. Thus, at a minimum, a juror could have interpreted the statements to be 

referring to the State's burden of proof. 

Then, the State urges us to adopt the rationale of the Court of Appeals panel. The 

panel simply noted that although this court "has consistently held that it is prosecutorial 

misconduct when the State incorrectly defines its burden of proof, the court has also 

consistently found that the improper definitions did not constitute gross and flagrant 

misconduct." Crawford, 46 Kan. App. 2d at 415. The panel cited State v. Magallanez, 

290 Kan. 906, 235 P.3d 460 (2010), and State v. Sappington, 285 Kan. 176, 169 P.3d 

1107 (2007), in which this court concluded a prosecutor's attempt to elaborate on the 

meaning of reasonable doubt was not gross and flagrant. 

There are several distinctions between this case and either Magallanez or

Sappington. Most significant is the additional warning these cases gave to prosecutors. In 

Magallanez, this court emphasized the danger "when prosecutors embellish the burden of 

proof required in criminal cases, and the prosecutor committed this error by diluting the 

reasonable doubt standard in this case." Magallanez, 290 Kan. at 926-27. Acting on that 

warning, the court reversed the convictions. The Sappington court did not reverse 

convictions but discussed a long list of cases finding error based on similar statements, 

many of which resulted in reversal, before noting that the prosecutor had correctly stated 

the State's burden at several points, including immediately before the misstatement, and, 

therefore, the conduct was not gross and flagrant. Sappington, 285 Kan. at 186. 

As Crawford points out, these cases are among a long line of cases in which we 

have warned that efforts to define reasonable doubt often, perhaps inadvertently, lower 

the State's burden, lead the jurors into "'a hopeless thicket of redundant phrases and 

legalese,'" and "'obfuscate rather than assist the jury in the discharge of its duty.'" State v. 
18

Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003) (quoting State v. Acree, 22 Kan. App. 

2d 350, 356, 916 P.2d 61, rev. denied 260 Kan. 995 [1996]); see, e.g., State v. Wilson, 

281 Kan. 277, Syl. ¶ 4, 130 P.3d 48 (2006) ("No definition or explanation can make any 

clearer what is meant by the phrase 'reasonable doubt' than that which is imparted by the 

words themselves."); State v. Mitchell, 269 Kan. 349, 360, 7 P.3d 1135 (2000)

(prosecutor's remarks defining reasonable doubt "attempted to alter the State's burden"); 

State v. Banks, 260 Kan. 918, 927, 927 P.2d 456 (1996) (noting that this court "has long 

held that a jury instruction defining reasonable doubt is unnecessary"); State v. Douglas, 

230 Kan. 744, 745, 640 P.2d 1259 (1982) (stating that this court adheres "to the position 

long-established in Kansas jurisprudence that no definition could make the concept of 

'reasonable doubt' any clearer than the words themselves"). 

Furthermore, other courts have found trial error when a prosecutor used the puzzle 

analogy, giving warning to prosecutors to avoid its use. E.g., United States v. Pungitore, 

910 F.2d 1084, 1128 (3d Cir. 1990), cert. denied 500 U.S. 915 (1991); People v. 

Katzenberger, 178 Cal. App. 4th 1260, 1264-68, 101 Cal. Rptr. 3d 122 (2009), rev. 

denied (2010); Lord v. State, 107 Nev. 28, 35, 806 P.2d 548 (1991); People v. Wilds, 141 

App. Div. 2d 395, 398, 529 N.Y.S.2d 325 (1988); State v. Johnson, 158 Wash. App. 677,

685, 243 P.3d 936 (2010), rev. denied 171 Wash. 2d 1013 (2011).

In a letter of additional authority filed by Crawford pursuant to Supreme Court 

Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50), Crawford also asks us to consider State v. 

Stevenson, 297 Kan. 49, 54, 298 P.3d 303 (2013), as an additional authority issuing such 

a warning. The State counters that Stevenson undercuts Crawford's argument. 

In Stevenson, the prosecutor showed the jury a sign with the words "Wheel of 

Fortune" printed on it but with one letter missing and pointed out that, although there was 

a letter missing, there was no reasonable doubt about which letter was needed to 

complete the title. Stevenson, 297 Kan. at 52. The Stevenson court found no misconduct 
19

under the circumstances because the prosecutor used the analogy to explain that the State 

had to prove its case beyond a reasonable doubt, not beyond all doubt, and because the 

exhibit demonstrated the concept because only one letter was missing from a well-known 

title; in essence, the solution to the puzzle was so obvious there was no room for doubt. 

In addition, we warned: 

"The prosecutor's comments in this case scuffed the line of misconduct without actually 

crossing it. Nevertheless, only a slight difference in wording would have resulted in error, 

and use of this analogy seems fraught with possibilities for stepping over the line of error. 

Especially troubling is the potential for quantifying reasonable doubt by discussing the 

difference between missing one letter as compared to more. Consequently, we discourage 

use of the 'Wheel of Fortune' analogy." Stevenson, 297 Kan. at 55.

We reiterate and emphasize this warning. The prosecutor's argument in this case 

demonstrates how differences in wording can move us from a conclusion that a

prosecutor scuffed the line of misconduct to a conclusion that a prosecutor crossed the 

line. In this case the prosecutor did not attempt to distinguish between having no doubt 

and having a reasonable doubt, a distinction emphasized in the caselaw relied on in 

Stevenson. 297 Kan. at 53. Furthermore, based on the prosecutor's descriptions in this 

case, neither the jury nor an appellate court can determine how much of the puzzle is left 

unfinished and how much guessing a juror is being asked to perform. We do not know 

how abstract the remaining image might be. While both analogies are dangerous attempts 

to quantify reasonable doubt, the argument in this case is so vague and ambiguous it is 

misleading. Thus, contrary to the State's argument we do not see Stevenson as assisting 

its cause.

Granted, Crawford's trial took place more than 3 years before this court decided 

Stevenson. Nevertheless, the general tone of the warning in Stevenson is not new. Given 

the consistent warnings in Kansas precedent, the calculated and repeated use of the 
20

analogy that created a theme, and the effect of the argument of minimizing the State's 

burden of proof, we conclude the conduct was gross and flagrant. 

2. Ill Will

The next step requires this court to examine whether the prosecutor was motivated 

by ill will. In making this determination, among the things this court has considered are 

"whether the conduct was deliberate or in apparent indifference to a court's ruling.

[Citation omitted.]" State v. Bridges, 297 Kan. 989, 1016, 306 P.3d 244 (2013); see State 

v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). In finding the prosecutor did not act 

with ill will, the Court of Appeals noted that the prosecutor "did not persist in referring to 

the puzzle over sustained objections or admonitions" by the district court. Crawford, 46 

Kan. App. 2d at 415. Nevertheless, as we have noted, the prosecutor acted against the 

repeated admonishments of this court. 

While failing to avoid longstanding and repeated warnings is a sign of ill will, we 

do not perceive from the record any indication that the prosecutor in this case was 

motivated by ill will toward Crawford or the court. 

3. Harmlessness Inquiry

The final factor is whether the prosecutor's misconduct had little effect on the 

minds of the jurors. In this regard, Crawford argues because the evidence was not direct 

and overwhelming, this court could conclude the prosecutor's misconduct affected the 

verdict. The Court of Appeals declined to discuss the evidence and, instead, merely 

mentioned that Crawford did not challenge the sufficiency of the evidence on appeal. 

Crawford, 46 Kan. App. 2d at 416. Noting that the district court gave the correct 

instruction on the State's burden of proof, compliant with PIK Crim. 3d 52.02, the Court 

of Appeals found that the prosecutor's use of the jigsaw puzzle analogy "did not lead the 
21

jury into ignoring the [State's] proper standard of proof, and the misconduct likely had 

little weight in the minds of the jurors." Crawford, 46 Kan. App. 2d at 416.

Simply because evidence is sufficient does not mean the State is able to establish 

that the misconduct did not affect the verdict. Hence, we disagree with the Court of 

Appeals' analysis on that point. But we agree that the fact the district court properly 

advised the jury of the State's burden of proof significantly mitigates the potential impact 

of the prosecutor's misconduct. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 

(2014) ("Although these instructions do not give the prosecutor a free pass on 

misconduct, they are appropriate considerations when evaluating whether a jury was 

misled."); see also State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997) ("[W]e hold 

that the provisions of PIK Crim. 3d 52.02 accurately reflect the law of this State and 

properly advise the jury in a criminal case of the burden of proof, the presumption of 

innocence, and reasonable doubt."). And this court assumes the jury followed the district 

court's instructions. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010)

("Appellate courts presume that a jury follow[s] the jury instructions."), superceded by 

statute on other grounds as stated in State v. Todd, 299 Kan. 263, 323 P.3d 829 (2014).

Even so, we must evaluate the evidence. The State concedes that the evidence 

against Crawford was "perhaps not overwhelming," but it argues that the evidence was 

"strong and direct" and urges this court to consider the fact that the trial court gave the 

proper pattern instruction on burden of proof and reasonable doubt. Crawford counters 

that the case against him was weak and points to, among other things, his alibi for the 

time when S.V. says he arrived at her house and various discrepancies in S.V.'s and her 

mother's testimony and statements.

Overall, however, we agree with the State's assessment. While the evidence is not 

overwhelming, the evidence that S.V. had Crawford's DNA under her fingernails after 

she was found in the country with a bloodied lip is compelling—so compelling in fact 
22

that, despite the weaknesses in the State's case argued by Crawford, we conclude the 

prosecutor's misconduct would have had little weight in the minds of the jurors. More 

specifically, we conclude the State has met its burden of establishing beyond a reasonable 

doubt that the misconduct did not affect the outcome of the trial, i.e., there is no 

reasonable possibility that the misconduct contributed to the jury's verdict. Further, the 

strength of this evidence is sufficient to overcome our conclusion that the prosecutor's 

misconduct was gross and flagrant.

Hence, we conclude the Court of Appeals did not err in its determination that the 

misconduct does not require reversal of Crawford's convictions. 

Judgment of the Court of Appeals affirming the district court on the issue subject 

to our grant of review is affirmed. Judgment of the district court on that issue is affirmed. 

MORITZ, J., not participating.

* * *

LUCKERT, J., concurring: I write separately simply to state that I would take the 

opportunity presented by Kenneth Crawford's arguments to simplify the prosecutorial 

misconduct standard of review. The majority's explanation of the "little weight in the 

minds of the jurors" standard demanded four paragraphs in which it set out the dual 

standard for determining whether the misconduct affected the jury's verdict. But, as the 

majority noted, as a practical matter, we are ultimately called upon to apply the federal 

constitutional harmless error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 

824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), when assessing whether the 

misconduct was harmless. Given this practical reality, I would modify the standard by no 

longer using the "little weight in the minds of the jurors" standard or referring to the 

lower reasonable probability standard applied under K.S.A. 60-261. 
23

In State v. Tosh, 278 Kan. 83, 85, 97, 91 P.3d 1204 (2004), we held that 

misconduct implicates federal constitutional due process rights. Consequently, I perceive 

no reason to preserve any references to the lower, statutory standard. Retaining the dual 

standard and its umbrella description of "little weight in the minds of the jurors" is more

confusing than helpful. Either, as in the Court of Appeals opinion in this case, the 

appellate court omits the explanation or, as in the majority opinion, each opinion is 

burdened with the fairly lengthy discussion. If the explanation is omitted, confusion 

results, as evidenced by Crawford's arguments; it is entirely reasonable for parties to 

question whether the court has imposed the controlling test—the federal constitutional 

harmless error standard. The alternative of repeatedly including language about the 

standard of K.S.A. 60-261, which for practical reasons plays no role in the ultimate 

analysis, places form over substance and causes its own confusion about why we are 

discussing a statutory standard we are not applying.

To avoid future confusion, I would modify the final step of the Tosh fair trial 

inquiry to state that an appellate court may declare a prosecutor's misconduct harmless 

only if the State establishes beyond a reasonable doubt that the misconduct did not 

contribute to the verdict.

BILES, J., and GERALD T. ELLIOTT, District Judge, assigned1, join in the foregoing 

concurring opinion. 

1REPORTER'S NOTE: District Judge Elliott was appointed to hear case No. 

103,881 vice Justice Moritz pursuant to the authority vested in the Supreme Court by art. 

3, § 6(f) of the Kansas Constitution.