1

NOT DESIGNATED FOR PUBLICATION

No. 120,945

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JESSE LEHANE,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed April 2, 2021. 

Affirmed .

James M. Latta, of Kansas Appellate Defender Office, for appellant. 

Daniel G. Obermeier, assistant district attorney, Mark D. Dupree Sr., district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before BRUNS, P.J., GREEN and ATCHESON, JJ.

PER CURIAM: A jury sitting in Wyandotte County District Court convicted Jesse 

Lehane of two counts of aggravated indecent liberties with a child for unlawful physical 

contact with his daughter and younger son. On appeal, Lehane raises numerous claims of 

error in the district court. We find no reversible error and affirm the convictions and 

resulting sentences.
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FACTUAL AND PROCEDURAL HISTORY

After Lehane and his wife divorced in 2013, he had visitation with their three 

children every other weekend. The children stayed with Lehane in an apartment he shared 

with his father. The children slept on air mattresses, but the younger children typically 

would take turns sleeping with Lehane in his bed. In early April 2017, an acquaintance of 

Lehane contacted the children's mother to report seeing naked photos of the girl on 

Lehane's smartphone.

Mother immediately went to her daughter's school and spoke to the child in an 

office with the school counselor. The child, who was then about nine years old, said that 

her father regularly took photos of her backside when she was getting dressed or bathing 

and that he would caress her buttocks. Mother then contacted the Kansas City, Kansas, 

police. As part of the law enforcement investigation, a trained forensic examiner 

conducted a videotaped interview with the daughter about what happened. She again said 

that Lehane regularly photographed her bare behind and regularly touched her buttocks 

through her clothing, typically while they were together on the bed watching television. 

She told the interviewer Lehane did not otherwise inappropriately touch her. 

After the forensic interview, mother explained to the children that they would not 

be able to visit their father. During the discussion, the younger son, who was then about 

eight years old, said that Lehane had photographed and touched his "pee-pee," meaning 

his penis, during the weekend visits. Mother reported the child's statement to law 

enforcement officers. During an expanded investigation, the boy gave a forensic 

interview and repeated what he had described to his mother. He, too, said Lehane 

regularly touched him during the weekend visits. 
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Although the children said Lehane inappropriately touched them during many of 

their visits to the apartment, they were unable to identify dates or even approximate times 

the wrongful acts happened. They were only able to say the conduct was frequent. 

As the investigation progressed, a detective interviewed Lehane. He admitted 

taking what he said he now recognized to be inappropriate photographs of his daughter's 

bare behind and posting them on a questionable social media website. But Lehane denied 

photographing his son or inappropriately touching either child. He told the detective he 

believed his ex-wife had coached them to accuse him of doing so. Investigators obtained 

a search warrant for any smartphones in Lehane's possession. They seized four phones; 

an examination of their content revealed no inappropriate photographs of the children.

In mid-April 2017, the State filed an information charging Lehane with one count 

of aggravated indecent liberties with a child for lewdly touching his daughter's buttocks 

and one count of aggravated indecent liberties with a child for lewdly touching his 

younger son's penis. Those are off-grid felony violations of K.S.A. 2016 Supp. 21-5506 

carrying life sentences with parole eligibility only after serving 25 years in prison. The 

information alleged the crimes occurred between January 1, 2015, and April 20, 2017. 

Lehane was arrested shortly after the charges were filed. 

Investigators cautioned the children's mother against talking to them about what 

their father allegedly had done. She did not, however, refrain. Mother told investigators 

the daughter reported to her that Lehane had digitally penetrated her rectum. That 

prompted another forensic interview in which the child denied Lehane sexually assaulted 

her in such a manner and explained she had misunderstood what her mother had been 

asking her. The younger son also later reported that Lehane used cigarette butts to 

penetrate his rectum. The State did not amend the charges against Lehane based on those 

allegations.
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The jury heard the case in late October 2018. All three children and their mother 

testified. So did various law enforcement officers. The videotaped forensic interviews of 

the children were admitted as evidence. Although the core accusations against Lehane 

were consistent, each child's successive account differed in some details. Likewise, the 

accounts from the daughter were, in some respects, difficult to reconcile with the 

accounts from the younger son, especially about the frequency of the improper touching. 

At trial, the older son, who was then about 12 years old, testified Lehane never touched 

or photographed him in inappropriate ways. And he told the jurors he never saw Lehane 

treat his brother and sister inappropriately. Lehane's father described the cramped 

confines of the apartment and similarly testified he never saw Lehane act untowardly 

with any of the children. Lehane did not testify in his own defense, but the jury heard his 

out-of-court statement to the detective and its blanket denial of sexual contact with the 

children.

The jury convicted Lehane as charged. Six weeks later, the district court sentenced 

Lehane to serve two concurrent life sentences with parole eligibility after 25 years. 

Lehane has appealed.

LEGAL ANALYSIS

Lehane has raised four distinct points on appeal that we take up serially, and, as 

we have indicated, we find no reversible error. We also find no grounds for relief based 

on Lehane's argument for cumulative error or the district court's denial of his motion for a 

new trial. In our discussion of each point, we augment our general statement of the facts 

as necessary.
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Failure to Give Multiple Acts or Unanimity Instruction

The State's evidence showed Lehane touched his daughter and his son 

inappropriately many times when they visited him on the weekends. His daughter 

described repeated instances in which Lehane caressed her buttocks, and his younger son 

described repeated instances in which Lehane touched his penis. Each contact constituted 

an independent and distinct criminal act. So the jury heard about multiple instances of 

unlawful conduct that would support the single charge in which each child had been 

identified as the victim. The circumstances create what is commonly referred to as a 

"multiple acts" issue or problem. Lehane has a right to a unanimous verdict on each 

charge of aggravated indecent liberties with a child, requiring the jurors to agree on the 

specific wrongful act supporting that charge.

Historically, the appellate courts have treated this as a statutory right under K.S.A. 

22-3421 because neither the Kansas Constitution nor the United States Constitution 

required a unanimous jury verdict to convict in noncapital cases tried in state court. See

State v. Brown, 298 Kan. 1040, 1055, 318 P.3d 1005 (2014); State v. Schreiner, 46 Kan. 

App. 2d 778, 791, 264 P.3d 1033 (2011). With the United States Supreme Court's 

decision in Ramos v. Louisiana, 590 U.S. __, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 

583 (2020), that analysis is no longer applicable. The Court held the right to jury trial 

guaranteed in the Sixth Amendment to the United States Constitution should be fully 

incorporated and applied to the states through the Due Process Clause of the Fourteenth 

Amendment. The Ramos decision extended the Sixth Amendment requirement for 

unanimous verdicts to defendants charged with serious crimes, including felonies, under 

state law. Lehane, therefore, enjoys such a constitutional right in addition to the statutory 

right in K.S.A. 22-3421. 

The Kansas appellate courts have held that in a multiple acts case, a criminal 

defendant's right to a unanimous verdict requires the jurors be instructed that to convict, 
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they must agree that one particular wrongful act has been proved beyond a reasonable 

doubt. See State v. Cottrell, 310 Kan. 150, 154-55, 445 P.3d 1132 (2019) (recognizing 

rule but finding no multiple acts); State v. Colston, 290 Kan. 952, 961, 235 P.3d 1234 

(2010) (use of jury instruction); PIK Crim. 4th 68.100 (2018 Supp.) (instruction on 

multiple acts and need for unanimity as to particular act). District courts typically give 

either a freestanding unanimity instruction or incorporate unanimity language drawn from 

PIK Crim. 4th 68.100 into another pertinent instruction. When a defendant has been 

charged with more than one count, the jury must ascribe a single distinct act to each 

count. The Kansas Supreme Court has held that a unanimity instruction may be omitted if 

the prosecutor in closing argument to the jurors specifically identifies or elects one 

criminal act shown in the evidence and informs the jurors they should consider that act in 

finding the defendant guilty or not guilty of the charge. Colston, 290 Kan. at 968-69.

On appeal, Lehane complains the district court's failure to give a unanimity 

instruction deprived him of a fair trial. We examine claims of instructional error, such as 

this, through a set of sequential legal considerations: (1) reviewability considering 

preservation of the issue at trial; (2) legal appropriateness of the instruction; (3) factual 

support in the evidence for the instruction; and (4) harmlessness of any actual error. State 

v. Broxton, 311 Kan. 357, 360, 461 P.3d 54 (2020); State v. Plummer, 295 Kan. 156, Syl. 

¶ 1, 283 P.3d 202 (2012). A defendant's failure to raise or preserve a challenge to the jury 

instructions in the district court does not prevent appellate review but triggers a more 

demanding burden of showing "clear error" in the final analytical step. K.S.A. 2016

Supp. 22-3414(3); State v. Mattox, 305 Kan. 1015, 1025-26, 390 P.3d 514 (2017).

The State suggests we need not evaluate the omission of a unanimity instruction 

because the prosecutor effectively made an appropriate election in both opening 

statement and closing argument. We disagree. Rather than identifying the specific 

criminal act the jurors should consider as corresponding to each charge of aggravated 

indecent liberties with a child, the prosecutor essentially told the jurors in opening 
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statement the State would prove each and every allegation made against Lehane. And in 

closing argument, the prosecutor submitted the evidence had, indeed, proved all of the 

children's allegations on which the criminal charges rested. 

The prosecutor's statements to the jurors really seems to be the antithesis of an 

election of a particular criminal act designed to insure a constitutionally sufficient 

unanimous verdict of guilty. On appeal, the State cites no authority for its proposition that 

an election of all is legally equivalent to electing one. The law is otherwise. See Colston, 

290 Kan. at 969 (discussing contours of adequate election as requiring identification of 

particular act and direction that jurors must agree on that act or must disregard evidence 

of other acts). We, therefore, turn to our review of the district court's failure to give a 

unanimity instruction.

At the outset, the State contends Lehane not only failed to preserve the point in the 

district court but prompted the omission of a unanimity instruction, thereby rendering any 

error invited and unreviewable on appeal. Again, we disagree. Lehane neither requested a 

unanimity instruction nor objected to the district court's failure to give one to the jurors. 

That sort of inaction does not amount to invited error. See Cottrell, 310 Kan. at 162. To 

invite an instructional error, a party must "actively pursue" the course the district court 

ultimately takes in either giving or declining to give a particular jury instruction. 310 

Kan. at 162. 

The State attempts to bolster its otherwise faltering argument for invited error by 

pointing to comments Lehane's lawyer made supporting his pretrial request for a bill of 

particulars. The district court's refusal to order a bill of particulars is a separate issue we 

later address. But the lawyer's pitch for a bill of particulars did not entail active 

opposition to the use of a unanimity instruction. In seeking a bill of particulars, the 

lawyer wanted the long timeframe identified in the information shortened. The lawyer 

told the district court that without a more confined interval, a unanimity instruction would 
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be ineffective. Whatever the merits of the argument in the context of a bill of particulars, 

it doesn't migrate to the jury instruction conference or create some implicit objection on 

Lehane's part to the district court giving a unanimity instruction. Moreover, believing an 

instruction may be of little practical effect is not the same as opposing its use. We find no 

invited-error bar to our review of the instructional issue.

This is a multiple acts case; we do not understand the parties to be suggesting 

otherwise. A unanimity instruction, therefore, would be both factually and legally 

appropriate. The district court's failure to give the instruction coupled with the 

prosecutor's failure to elect specific acts for the jury's consideration amounts to error.

But because Lehane voiced no objection in the district court, we review the 

omission of a unanimity instruction for clear error. Under that standard, we must be 

firmly convinced the jury would have reached a different verdict if the error had not 

occurred. See State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016); State v. 

Williams, 295 Kan. 506, 516-17, 286 P.3d 195 (2012). And the standard applies to 

instructional errors implicating constitutional rights. Kleypas, 305 Kan. at 302; State v. 

Purdy, No. 119,872, 2020 WL 1897370, at *18 (Kan. App. 2020) (unpublished opinion). 

Lehane bears the burden of persuasion.

Considering the trial evidence filtered through the heightened standard for clear 

error, we cannot say the verdicts would have been different had the district court included 

a unanimity instruction among those it provided the jurors. Here, two of Lehane's 

children said he repeatedly touched them in sexually provocative and unlawful ways. 

Lehane directly denied any such conduct. The competing versions are fundamentally 

inconsistent and, therefore, presented the jurors with a clear credibility contest pitting the 

children against Lehane. Each side offered some circumstantial evidence bearing on 

credibility. For example, the inconsistencies in the accounts from the children arguably 

detract from their veracity. But Lehane's admission he took photographs of his daughter 
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while she was naked confirms a substantial part of her testimony describing her father's 

actions toward her. The jurors, of course, had the opportunity to observe the children and 

the other witnesses as they testified and particularly how they responded to crossexamination. The law treats a person's appearance on the witness stand as a powerful tool 

for fact-finders in assessing credibility. See State v. Franco, 49 Kan. App. 2d 924, 936, 

319 P.3d 551 (2014); State v. Bateast, No. 120,120, 2020 WL 1969437, at *4 (Kan. App. 

2020) (unpublished opinion). Although the jurors did not have the same chance with 

respect to Lehane, they heard his own version of the events through the statement he 

made to the detective during the investigation.

We may fairly conclude the jurors found Lehane's blanket declaration he never 

inappropriately touched either child to be wholly unworthy of belief. If the jurors had 

entertained even some considered possibility the denial might be true—thereby creating a 

reasonable doubt—they would have returned not guilty verdicts. But they did not, so they 

must have found the children's accounts, along with the other evidence, to be sufficiently 

convincing to erase any reasonable doubt of Lehane's culpability. In that situation, we 

cannot say the inclusion of a unanimity instruction would have had any discernable effect 

on the outcome. See Colston, 290 Kan. at 970; State v. Kemp, No. 115,812, 2018 WL 

671182, at *18 (Kan. App. 2018) (unpublished opinion).

Denial of Bill of Particulars

On appeal, Lehane contends the district court impermissibly denied his motion for 

a bill of particulars. Under K.S.A. 22-3201(f), a defendant may request a bill of 

particulars if the charging instrument, here the information, "fails to specify the 

particulars of the crime sufficiently to enable [him or her] to prepare a defense." If the 

district court orders a bill of particulars, the State is then bound by the representations it 

contains. The decision to order a bill of particulars rests in the district court's sound 

judicial discretion. State v. Rojas-Marceleno, 295 Kan. 525, 534, 285 P.3d 361 (2012). A 
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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 relies on unproven 

factual representations, or if it acts outside the legal framework appropriate to the issue. 

State v. Darrah, 309 Kan. 1222, 1227, 442 P.3d 1049 (2019); State v. Ward, 292 Kan. 

541, Syl. ¶ 3, 256 P.3d 801 (2011).

Lehane wanted the district court to order the State to more precisely define the 

time period in which the charged sexual abuse of the children took place. As we have 

outlined, the children described multiple acts of inappropriate touching over an extended 

period. Given Lehane's general denial of any wrongful conduct, we do not readily discern 

how a narrower window would advance his defense. This is not a case involving a single 

wrongful act that if fixed in time might support a defense, like an alibi, based on a 

demonstrable lack of opportunity to commit the crime at the identified time. 

The appellate courts have typically afforded the State considerable latitude in 

charging the time periods during which child victims have been sexually abused, 

especially when the abuse has been recurrent. Rojas-Marceleno, 295 Kan. at 536-37. 

Moreover, a precise time is not an element of the vast majority of statutory crimes. The 

purpose of including a time in the charging instrument is to show the alleged criminal 

conduct occurred within the governing statute of limitations. K.S.A. 22-3201(b); RojasMarceleno, 295 Kan. at 533-34. Here, none of the alleged acts occurred on the cusp of 

the limitations period. See K.S.A. 2016 Supp. 21-5107(c)(2). Those considerations place 

the district court's denial of Lehane's motion for a bill of particulars comfortably within 

the broad realm of judicial discretion.

In addition, however, Lehane filed his motion four days before the jury trial was 

scheduled to start. By any measure, that's late in the game, especially when the purpose 

of a bill of particulars is to assist a defendant in assessing potential defenses. We fail to 

see how a narrowing of the time period in the information would advance that objective 
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several days before trial. The timing of the motion at least suggests a collateral purpose in 

delaying the trial. The district court probably would not have abused its discretion in 

denying the motion based on the late filing alone. We find no abuse of discretion on this 

issue.

Admission of Evidence under K.S.A. 2016 Supp. 60-455

Lehane contends the district court impermissibly admitted testimony and his own 

out-of-court statements regarding his taking nude photographs of his daughter and 

younger son. To recap, the children said Lehane photographed them unclothed. 

Investigators never found those photographs. But Lehane told the detective he had 

photographed his daughter from behind while she was dressing or bathing and had posted 

the photographs on a website. 

In the district court, Lehane filed a general motion in limine to keep out prejudicial 

evidence. The State filed a motion asking the district court to find Lehane's statements to 

be voluntary and admissible. In ruling on those competing motions, the district court 

turned aside various objections Lehane raised to the evidence. 

During the trial, Lehane's lawyer did not lodge contemporaneous objections to 

testimony about the photographs of the younger son and intermittently objected to 

testimony about the photographs of the daughter. We do not, however, rest our decision 

on that aspect of the trial record. 

On appeal, Lehane has focused on K.S.A. 2016 Supp. 60-455 and contends the 

district court improperly applied the statute to admit the information about the 

photographs as other crimes evidence. We are unpersuaded. Pertinent here, K.S.A. 2016 

Supp. 60-455 provides: 
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"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action 

in which the defendant is accused of a sex offense . . . evidence of the defendant's 

commission of another act or offense of sexual misconduct is admissible, and may be 

considered for its bearing on any matter to which it is relevant and probative."

Given the charges, the evidence about Lehane photographing his children falls 

within subsection (d) and, therefore, could be admitted to show his propensities and, in 

turn, to prove he acted on those propensities in sexually abusing his daughter and 

younger son. State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 (2014). The evidence also 

would be admissible to prove intent, consistent with K.S.A. 2016 Supp. 60-455(b). 

But a district court may exclude evidence otherwise admissible under K.S.A. 2016 

Supp. 60-455 if its probative value is substantially outweighed by its undue prejudice to 

the defendant. State v. Huddleston, 298 Kan. 941, 961-62, 318 P.3d 140 (2014). A district 

court's ruling weighing probative value against undue prejudice will be reviewed on 

appeal for abuse of judicial discretion. State v. Wilson, 295 Kan. 605, Syl. ¶ 1, 289 P.3d 

1082 (2012). We have already outlined that standard of appellate review. See Darrah, 

309 Kan. at 1227.

Here, Lehane admitted photographing his daughter's naked buttocks, so the 

conduct is not disputed. That's a factor favoring the admissibility of otherwise relevant 

evidence under K.S.A. 2016 Supp. 60-455(d). See State v. Boysaw, 309 Kan. 526, 541, 

439 P.3d 909 (2019) (court may consider "how clearly the prior an act was proved," the 

lapse of time, and the frequency of such acts, among other factors, in weighing 

admissibility of propensity evidence under K.S.A. 2016 Supp. 60-455[d]); State v. 

Bowen, 299 Kan. 339, 350, 323 P.3d 853 (2014) (clarity of proof of bad acts offered as 

propensity evidence under K.S.A. 60-455[d] factor in weighing probative value versus 

undue prejudice). The circumstances seem to suggest Lehane had an unusual, if not 

fetishistic, interest in his daughter's behind. He told the detective he took pictures of his 
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daughter that he should not have. That admission indicates Lehane considered the 

photographs to be prurient rather than innocent. 

As charged, the State had to prove Lehane lewdly touched each child to arouse or 

satisfy his or the child's sexual desires. So Lehane's conduct and admissions about 

photographing his daughter were probative of that intent or propensity as to her. And the 

evidence was not unduly prejudicial for that purpose. We see no abuse of discretion in the 

district court's ruling in that respect. 

The evidence that Lehane photographed his younger son necessarily presents a 

closer question, especially since he denied doing so. But the evidence is of a kind with his 

admission that he photographed his daughter. Assuming the evidence regarding his 

younger son had been improperly admitted and objection to it had been preserved in the 

district court, we do not see reversible error. The improper admission of evidence 

typically entails an error that does not implicate a defendant's constitutional rights. See 

State v. Broxton, 311 Kan. 357, 366, 461 P.3d 54 (2020) (erroneous exclusion of 

evidence); State v. Torres, 294 Kan. 135, 143-44, 273 P.3d 729 (2012) (erroneous 

admission of evidence). The disputed evidence here is of that character. See Torres, 294 

Kan. at 143-44. The error may be considered harmless if the State, as the benefited party, 

can show there was no reasonable probability the wrongfully admitted evidence affected 

the verdicts considering the trial record as a whole. Broxton, 311 Kan. at 366; Ward, 292 

Kan. 541, Syl. ¶ 6. Taken as a component of the State's overall case against Lehane, the 

evidence about him photographing his younger son would not have played a significant 

part in the jury's decision to convict. We find the effect of that evidence to be marginal, 

especially given the plainly admissible evidence Lehane took nude photographs of his 

daughter.
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Prosecutor's Closing Argument

Lehane contends two of the prosecutor's remarks in closing argument to the jurors 

were error and of sufficient gravity to deprive him of a fair trial. He says the comments 

were a deliberate and improper attempt to kindle sympathy for the victims and their 

mother. 

We examine prosecutorial error with a revamped standard the Kansas Supreme 

Court initially outlined in State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). The 

analytical model first considers whether an error has occurred and then weighs any 

prejudice to the defendant resulting from the error. Comments made during closing 

arguments will be considered error if they fall outside the wide latitude afforded a 

prosecutor in discussing the evidence and the law. 305 Kan. at 109. This simply 

transplanted the initial step in the former process, though substituting the term "error" for 

"misconduct," a more pejorative label at least connoting a deliberate violation of the rules 

even when there might be only an inadvertent mistake. 305 Kan. at 106-07. 

If an appellate court finds the challenged argument to be prosecutorial error, it 

must then consider prejudice measured by the test set out in Ward, 292 Kan. 541, 

Syl. ¶ 6, for a constitutional wrong. The State, as the party benefiting from the error, must 

demonstrate "'beyond a reasonable doubt'" that the mistake "'did not affect the outcome 

of the trial'" taking account of the full trial record. Sherman, 305 Kan. at 109 (quoting 

Ward, 292 Kan. 541, Syl. ¶ 6). That is, the appellate court must determine if the error 

deprived the defendant of a fair trial—a constitutional protection rooted both in due 

process and in the right to trial itself. 305 Kan. at 98-99, 109. The prejudice analysis in 

Sherman replaced a multifactor standard that also considered the prosecutor's bad intent 

or ill will—breaches of professional conduct the court concluded could be more 

appropriately addressed in ways other than reversing a conviction in the absence of 

material prejudice. 305 Kan. at 114-15.
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Lawyers, of course, may be expected to use closing argument to their respective 

clients' advantage with rhetorically striking arguments grounded in the law and evidence. 

State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009); State v. Rodriguez, 269 Kan. 633, 

643, 8 P.3d 712 (2000) (closing argument not improper simply because of 

"impassioned . . . oratory" or "picturesque speech"). But prosecutors may not move 

beyond the boundaries of the law and evidence to invite verdicts based on compassion for 

a victim or on fearmongering aimed at a defendant. State v. Thurber, 308 Kan. 140, 162, 

420 P.3d 389 (2018) (argument may not "'inflame the passions or prejudices of the jury'" 

diverting from facts and law); State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012) 

(argument improper when designed to "obtain a conviction based on sympathy"). They

have an overarching responsibility to see that criminal defendants receive fundamentally 

fair trials. Sherman, 305 Kan. at 105, 109; State v. Pabst, 268 Kan. 501, Syl. ¶ 6, 996 

P.2d 321 (2000) (overarching "interest" of the State, and its legal representative, in 

criminal prosecution "is not that it shall win a case, but that justice shall be done"). 

Lehane's defense necessarily rested on discrediting the children and their accounts 

of his sexual misconduct. In the first part of her closing argument, the prosecutor talked 

about credibility and borrowed the phrase "flip the switch" that Lehane used with the 

detective in describing his ability to control his behavior around his children. The 

prosecutor told the jurors:

"Flip on the switch? Great dad. Taking them to Worlds of Fun, take them to Coco 

Keys, taking them to the parks, buying them toys, giving them a house to live in, doing 

fun stuff. You heard the kids talk about it. They had fun times with their dad. They liked 

being around this man, he's their dad. They enjoy it.

"What they don't enjoy is when he's in the room with them when they're trying to 

put their clothes on in the morning taking pictures of their naked bodies.

"They don't hate their dad. This isn't about whether they liked or didn't like their 

dad. They enjoyed him, wanted to be around him. Fought to get in bed with him, fought 
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to hang out with him, wanted to be with their father. They just don't want him touching 

them when they're laying down cuddling with their dad as five, six, seven year old kids. 

They want to just be cuddling with their dad. They don't want their butts rubbed. They 

don't want their pee pee touched, they just want to lay and interact with their father 

appropriately." 

The thrust of that portion of the closing argument drew on the children's 

statements about fun activities they shared with Lehane and how much they enjoyed 

those interactions and contrasted those circumstances with the inappropriate touching. 

The argument highlights evidence indicating the children did not hate Lehane and had no 

ulterior motive to make false accusations against him. What they did not like and did not 

want was the sexually driven conduct Lehane directed at them. 

The remarks are fair comment on the evidence and the key issue in the case. They 

do not invoke some special sympathy for the children or sound a purely emotional chord 

divorced from the law and the evidence. Nor do they impermissibly call on the jurors to

convict Lehane to shelter or vindicate either the children as victims or the community as 

the place all of them inhabit. Cf. State v. Genzel, No. 120,602, 2020 WL 3481499, at *7

(Kan. App. 2020) (unpublished opinion), rev. denied 312 Kan. __ (November 24, 2020)

(The court finds prosecutorial error contributing to the reversal of a conviction when 

"[t]he prosecutor constructed a theme . . . advancing an impermissible emotional appeal 

to the jurors as guardian angels of victimized children rather than as objective finders of 

fact determining whether to convict a defendant."). 

Lehane similarly complains about a briefer comment the prosecutor used in the 

rebuttal portion of her argument designed to defuse the defense suggestion the children's 

mother coached them to make false accusations. The comment, tied to a longer 

description of the mother's discussions with the children, was this: "[The mother] didn't 

know how to talk to her kids, okay? She describe[d] to you, devastated, trying to be 

strong for them, all the emotions, that she was told not to ask the kids about stuff, but she 
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does. She asked them. What's going on?" During the trial, mother testified, over Lehane's 

objection, that she wanted to help her children but understood the investigators' request 

she not ask about inappropriate touching. She also told the jurors she knew she had no 

forensic training to conduct sexual abuse interviews. Nonetheless, mother did on 

occasion speak to the children about what happened. 

The prosecutor's comment was anchored in the trial evidence and properly 

addressed a defense argument. We find it to be fair comment.

In sum, the prosecutor's arguments Lehane cites on appeal came within the "wide 

latitude" afforded lawyers in making closing comments to jurors on the evidence and 

integrating that evidence with the governing legal principles in the jury instructions. They 

did not amount to prosecutorial error. We, therefore, need not and do not consider the 

second part of the Sherman test examining prejudice.

Cumulative Error

Lehane submits that if the trial errors he has identified do not individually require 

reversal of his convictions, their combined effect deprived him of a fair trial. Appellate 

courts will weigh the overall impact of multiple trial deficiencies and may grant relief if 

the "cumulative error" undercuts a defendant's fundamental right to a fair hearing. State v. 

Harris, 310 Kan. 1026, 1041, 453 P.3d 1172 (2019); State v. Smith-Parker, 301 Kan. 

132, 167-68, 340 P.3d 485 (2014). An appellate court examines the entire trial record to 

assess the aggregate effect of serial trial errors. 301 Kan. at 167-68. The assessment takes 

into account "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. Miller, 308 Kan. 1119, 1176, 427 P.3d 907 (2018).
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Here, we have identified one trial error—the district court's failure to give a 

unanimity instruction. And we have assumed a second error—the admission of testimony 

that Lehane took nude photographs of his younger son. For purposes of assessing 

cumulative error, we consider both of them. Without rehashing our earlier discussion, 

neither error materially degraded the fairness of Lehane's trial. This is not a situation in 

which each error caused demonstrable prejudice but not enough prejudice to warrant a 

reversal. The exceptionally limited effect of each error did not add up to reversible error

considered together. Moreover, the errors were not such that they had a catalytic effect in 

which one exacerbated the impact of the other to generate a cumulative prejudice in 

which the whole exceed the sum of the parts. See Smith-Parker, 301 Kan. at 168 (noting 

multiple errors infecting jury deliberations). Lehane's argument for cumulative error is 

unavailing.

In closing, we mention Lehane has raised the denial of his motion for a new trial 

as a distinct point on appeal. But he identifies and briefs no additional issues the district 

court considered and rejected in ruling on the motion. So we consider this merely 

repetitive of the other points Lehane has argued to us.

Affirmed.