1

NOT DESIGNATED FOR PUBLICATION

No. 119,428

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

RONALD E. THRONE,

Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed June 5, 2020. 

Affirmed.

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

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN and WARNER, JJ.

PER CURIAM: In May 2016, Ronald Throne spent several hours with T.C., a 15-

year-old girl. Several days later, T.C. told police Throne had exposed himself, 

inappropriately touched her, and sent her sexual text messages and a video. The State 

charged Throne with multiple crimes, and a jury found him guilty of all charges. Throne 

was sentenced to 322 months in prison, followed by lifetime postrelease supervision. 

Having carefully reviewed Throne's multiple arguments on appeal, we affirm his 

convictions.
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FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2016, a storm rolled through Lawrence, snapping branches and 

downing a tree across Arkansas Street. That afternoon, about 20 residents of a trailer park

worked together to clear the debris. Among those who came were T.C., a 15-year-old 

girl, and Throne, a maintenance worker at the park. During that day, T.C. and Throne 

spent time in a white truck, Throne's brown truck, and Throne's trailer. Their activities 

formed the basis of Throne's six criminal charges: two counts of aggravated indecent 

liberties with a child; one count of electronic solicitation; one count of indecent liberties 

with a child; one count of lewd and lascivious behavior; and one count of promoting 

obscenity to minors. Although the parties contest what occurred, they agree on the

sequence of events.

Because it was raining, Throne let T.C. sit in a white truck owned by the trailer 

park. Although the truck was not parked in the center of the clean-up effort—it was four 

or five trailers away—a few people were near the truck. In the truck, Throne entered his 

phone number into T.C.'s cell phone, which she saved under the name "My New Friend."

According to T.C., Throne asked her age when she entered the white truck; she replied 

she was 15. Throne then pulled down his pants and boxers and began masturbating and 

kissing T.C. Throne stopped when the trailer park's owner walked to his car, which was 

parked nearby. Despite her requests, Throne would not let T.C. leave.

Throne and T.C. sat in the white truck for 45 minutes to an hour until another 

maintenance worker, whose truck was stuck in the mud, asked Throne to help pull the 

truck free. T.C. and Throne drove to Throne's trailer to retrieve his brown truck, which 

they drove back to the clean-up effort. After driving to retrieve his brown truck, Throne 

told T.C. not to tell anyone what had happened.
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Once inside Throne's truck, Throne asked T.C. to kiss him. When she refused, he 

forced her to kiss him and grabbed her breast by reaching down her shirt. While driving 

back to the clean-up effort, Throne stopped the truck, lifted T.C.'s dress, and inserted his 

fingers into her vagina. They eventually reached the clean-up effort, and Throne helped 

pull the maintenance worker's truck free.

Later that evening, T.C., her sister, and a friend went over to Throne's trailer to 

play video games. While T.C.'s sister and friend played in the front room, Throne 

digitally penetrated T.C. again in the kitchen. He stopped when a dog began barking, and 

they returned to the front room. Throne also sent several text messages to T.C. that 

evening, including "Where is my naked pictures go to my bathroom and take some,"

"Suck me," "I want to take your virginity," and a 39-second video of a man masturbating. 

After spending several hours at Throne's trailer, T.C. returned home.

Several days later, T.C.'s mother called the police after T.C. told her about the 

video and text messages. When the responding officer asked if anything else had 

occurred, T.C. told him about the other instances. Police subsequently interviewed 

Throne. During the interview, Throne stated the touching was consensual, but he denied 

digitally penetrating T.C. He also stated he inadvertently sent the messages and video to 

her. Finally, Throne believed T.C. was 18 years old; he learned her real age the next day.

The State charged Throne with five felonies—two counts of aggravated indecent 

liberties with a child for the two instances of digital penetration; one count of electronic 

solicitation associated with his text messages; one count of indecent liberties with a child; 

one count of lewd and lascivious behavior for masturbating in the white truck—and one 

misdemeanor for promoting obscenity to minors (sending T.C. the video). At trial,

Throne reiterated he did not digitally penetrate T.C., but he also recanted his interview 

statements, denying ever touching her. 
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The jury convicted Throne on all charges. Because Throne had two previous 

convictions for aggravated indecent solicitation of a child, the court found him to be a 

persistent sex offender under K.S.A. 2015 Supp. 21-6804(j). The court therefore entered 

a controlling sentence of 322 months in prison (determined by his two convictions for 

aggravated indecent liberties with a child), followed by lifetime postrelease supervision. 

DISCUSSION

1. Indecent liberties with a child, as defined by K.S.A. 2015 Supp. 21-5506(a)(1), 

is not a lesser included offense of aggravated indecent liberties with a child under 

K.S.A. 2015 Supp. 21-5506(b).

Throne first claims he should be granted a new trial because the district court did 

not properly instruct the jury concerning the law on aggravated indecent liberties with a 

child. He asserts the court should have instructed the jury that indecent liberties with a 

child under K.S.A. 2015 Supp. 21-5506(a)(1) is a lesser included offense of aggravated 

indecent liberties with a child under K.S.A. 2015 Supp. 21-5506(b). At first glance, 

Throne's argument has some rhetorical appeal—aggravated indecent liberties with a child 

sounds like it is a more serious version of indecent liberties with a child. But Throne's 

proposed instruction would have been legally inappropriate; offenses under K.S.A. 2015

Supp. 21-5506(a)(1) are not lesser included offenses of aggravated indecent liberties with 

a child under K.S.A. 2015 Supp. 21-5506(b). 

As a preliminary matter, Throne did not ask the district court to provide the lesser

included offense instruction he now advocates. In such circumstances, appellate courts 

will only remand for a new trial if the absence of the instruction in question was clearly 

erroneous. K.S.A. 2019 Supp. 22-3414(3). "Clearly erroneous" is not a standard of 

review; instead, "it supplies a basis for determining if an error requires reversal." State v. 

Lewis, 299 Kan. 828, Syl. ¶ 11, 326 P.3d 387 (2014). We apply a two-step process in 

determining whether the omission of a jury instruction was clearly erroneous. State v. 

Cruz, 297 Kan. 1048, Syl. ¶ 5, 307 P.3d 199 (2013). When the issue is properly before us, 
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we consider first whether the instruction in question is legally and factually appropriate. 

See State v. Soto, 301 Kan. 969, Syl. ¶ 9, 349 P.3d 1256 (2015). If the instruction was 

appropriate, then we consider whether the failure to provide that instruction was 

reversible—that is, whether this court is firmly convinced that the instruction would have 

made a difference in the verdict. State v. Haberlein, 296 Kan. 195, Syl. ¶ 1, 290 P.3d 640 

(2012), cert. denied 571 U.S. 860 (2013).

The State argues that we need not reach the merits of Throne's request, claiming 

Throne invited the error he now claims is reversible. The State points to an exchange 

between the district court and Throne's counsel at trial. Before providing the instructions

to the jury, the court noted Throne had previously "talked about lesser[]" included 

offenses and confirmed that he was not requesting a lesser included offense instruction. 

Throne's counsel responded, "Yeah."

It is true that appellate courts generally decline to review challenges by a party 

when he or she requested—or invited—the action now claimed to be error. The invitederror rule only applies, however, when a defendant "actively pursues what is later argued 

to be an error." State v. Sasser, 305 Kan. 1231, 1236, 391 P.3d 698 (2017). It does not 

apply when a party fails to request an instruction or acquiesces to a ruling, as Throne did 

here. See 305 Kan. at 1235-36. 

We thus proceed to consider whether it would have been legally appropriate to 

provide the instruction Throne proposes—a question of law over which our review is 

unlimited. Soto, 301 Kan. 969, Syl. ¶ 9. At the outset, we note that another panel of our 

court has previously held indecent liberties with a minor is not a lesser included offense 

of aggravated indecent liberties with a minor. State v. Glover, No. 117,140, 2018 WL 

3400762 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. 1351 (2019). 

While we are not bound by that panel's decision, we reach the same conclusion.
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Under Kansas law, a lesser included offense is a "lesser degree of the same crime"

(K.S.A. 2019 Supp. 21-5109[b][1]) or "a crime where all elements of the lesser crime are 

identical to some of the elements of the crime charged" (K.S.A. 2019 Supp. 21-

5109[b][2]). This statute thus provides alternative avenues for analyzing whether a 

particular crime is a lesser included offense:

• Subsection (b)(1) requires courts to consider whether an offense is a "lesser 

degree" of the "same crime." K.S.A. 2019 Supp. 21-5109(b)(1). "Lesser degree"

requires an examination of whether the grade of the offense is "'more or less 

culpable than another grade.'" State v. Ramirez, 299 Kan. 224, 230, 328 P.3d 1075 

(2014) (quoting 21 Am. Jur. 2d, Criminal Law § 19, p. 132). "Same crime"

incorporates various factors such as the gravamen of the two crimes, how the 

crimes were treated at common law, and statutory history and structure. See 299 

Kan. at 231-32.

• Subsection (b)(2) codifies the strict elements test, where courts compare the 

statutory elements of each crime without looking to the underlying facts. State v. 

Alderete, 285 Kan. 359, Syl. ¶ 2, 172 P.3d 27 (2007). 

Neither of these sections applies here. K.S.A. 2019 Supp. 21-5506 criminalizes 

indecent liberties with a child, providing in relevant part:

"(a) Indecent liberties with a child is engaging in any of the following acts with a 

child who is 14 or more years of age but less than 16 years of age:

(1) Any lewd fondling or touching of the person of either the child or the 

offender, done or submitted to with the intent to arouse or to satisfy the sexual 

desires of either the child or the offender, or both; or

. . . .

"(b) Aggravated indecent liberties with a child is:
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(1) Sexual intercourse with a child who is 14 or more years of age but less than 

16 years of age."

"Sexual intercourse" encompasses "any penetration of the female sex organ by a finger, 

the male sex organ or any object. Any penetration, however slight, is sufficient to 

constitute sexual intercourse." K.S.A. 2019 Supp. 21-5501(a).

A review of this statute reveals indecent liberties with a child under K.S.A. 2019 

Supp. 21-5506(a) does not contain all the elements of aggravated indecent liberties with a 

child under K.S.A. 2019 Supp. 21-5506(b)(2). Subsection (a) contains a mens rea 

requirement—the intent to arouse or to satisfy the sexual desires—not contained in the 

aggravated version. Our Supreme Court has come to an analogous conclusion when 

comparing two similar statutes applied to children younger than 14 years old. State v. 

Belcher, 269 Kan. 2, 7-8, 4 P.3d 1137 (2000) (aggravated indecent liberties is not a lesser

included offense of rape; indecent liberties contains additional elements that rape does 

not). Thus, indecent liberties with a child is not a lesser included offense under the strictelements test. See K.S.A. 2019 Supp. 21-5109(b)(2).

Nor is indecent liberties with a child a lesser degree of the same crime as 

aggravated indecent liberties with a child. See K.S.A. 2019 Supp. 21-5109(b)(1). First, 

the gravamen of the two offenses are different. Indecent liberties with a child under 

K.S.A. 2019 Supp. 21-5506(a)(1) prohibits touching while the aggravated version under 

K.S.A. 2019 Supp. 21-5506(b)(1) criminalizes vaginal penetration. These are markedly 

different acts.

And the organization of sex crimes in Article 55 of the Kansas Statutes does not 

indicate that indecent liberties is a lesser included offense of its aggravated counterpart. 

Sex offenses are classified based on the sexual act and the victim's age. There are three 

types of acts: touching; sexual intercourse; and sodomy. See K.S.A. 2019 Supp. 21-
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5501(a)-(b). Similarly, victims are divided into three groups by age: victims less than 14 

years old; 14- or 15-year-old victims; and victims 16 years old or older.

Touching and sexual intercourse with a 14- or 15-year-old victim are criminalized

in the same statute as non-aggravated and aggravated indecent liberties with a child, 

respectively. K.S.A. 2019 Supp. 21-5506(a)(1), (b)(1). But other age groups are 

addressed in different statutes. When the victim is younger than 14 years old, touching 

and sexual intercourse are criminalized as aggravated indecent liberties and rape, 

respectively. K.S.A. 2019 Supp. 21-5506(b)(3)(A); K.S.A. 2019 Supp. 21-5503(a)(3). 

When the victim is 16 years old or older, touching and sexual intercourse are 

criminalized as sexual battery and rape, respectively. K.S.A. 2019 Supp. 21-5505(a)-(b); 

K.S.A. 2019 Supp. 21-5503(a)(1)-(2) (describing when a victim succumbs under certain 

circumstances). And sodomy, regardless of the victim's age, is classified in its own 

statute. K.S.A. 2019 Supp. 21-5504 (a)(3), (b)(1), (b)(3) (14- or 15-year-old victims, 

victim less than 14 years old, and when victims succumb under certain circumstances).

As this discussion indicates, a non-aggravated crime is not always a lesser degree 

of the aggravated version, even when both are placed in the same statute. Rather, these 

crimes are classified in a number of ways, including the victim's age and the type of 

sexual activity. In such circumstances, it makes more sense to determine whether one 

crime is a lesser included offense of another by comparing the elements of each crime 

under K.S.A. 2019 Supp. 21-5109(b)(1). 

Because indecent liberties with a child is not a lesser included offense of 

aggravated indecent liberties with a child, it would have been legally inappropriate to 

provide a jury instruction for indecent liberties with a child. The district court did not err 

when it did not provide that instruction to the jury.
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2. The evidence is sufficient to support Throne's conviction for lewd and lascivious 

behavior.

Throne next challenges his conviction for lewd and lascivious behavior, claiming 

the State did not present sufficient evidence to convict him of that offense. 

Courts entrust juries with the important work of hearing the evidence and 

determining whether, in a criminal case, the State has met its burden of proving beyond a 

reasonable doubt that the defendant committed the charged offense. To carry out this 

critical role, jurors—who have heard the witnesses' testimony and observed their 

demeanor—assess witnesses' credibility and weigh the evidence presented. Appellate 

judges, who were not present at trial, give deference to these observations. For this 

reason, when reviewing sufficiency of the evidence, we will uphold a conviction if we are 

convinced, after reviewing the evidence in a light most favorable to the State, "a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt." State v. 

Chandler, 307 Kan. 657, Syl. ¶ 2, 414 P.3d 713 (2018). We do "not reweigh evidence, 

resolve evidentiary conflicts, or reassess witness credibility." 307 Kan. 657, Syl. ¶ 2.

The State charged Throne with lewd and lascivious behavior under K.S.A. 2015

Supp. 21-5513(a)(2), associated with his conduct of exposing himself and masturbating 

while in the white maintenance truck. To prove Throne engaged in this conduct, the State 

was required to show he "publicly expos[ed] a sex organ . . . with intent to arouse or 

gratify the sexual desires of the offender or another." K.S.A. 2015 Supp. 21-5513(a)(2).

Throne claims the State failed to prove he "publicly" exposed himself, relying on 

dictionary definitions defining "publicly" as "[i]n a public or open manner or place" and 

"public" as "[o]f, relating to, or affecting a population or a community as a whole." Since 

he exposed himself only to T.C. and the truck was removed from those engaged in the 

clean-up effort, he claims his exposure did not involve the community as a whole or 

contemplate a broader audience than T.C.
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The State first argues the mere fact that Throne exposed himself to T.C. was 

sufficient to support a lewd and lascivious behavior conviction. That might be true if 

Throne were charged with an alternate avenue of defining lewd and lascivious behavior 

under K.S.A. 2015 Supp. 21-5513(a)(2)—exposure in the presence of a nonconsenting 

person other than a spouse. See State v. Sawyer, No. 101,062, 2009 WL 4639488, at *1 

(Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1102 (2010). But Throne 

correctly points out that the district court did not instruct the jury on that crime; it only 

instructed on public exposure. We must therefore consider whether the evidence 

presented at trial was sufficient to demonstrate Throne "publicly expos[ed]" himself 

while he was in the maintenance truck. 

In addressing this question, both parties rely heavily on this court's interpretation 

of "publicly" in State v. Albin, No. 114,712, 2016 WL 6651871 (Kan. App. 2016) 

(unpublished opinion). In Albin, the defendant, a truck driver, pulled his commercial 

truck into an office parking lot; there were no pedestrians in the parking lot, and the 

defendant parked at least 40 feet from the nearest car. While the defendant masturbated in 

the truck, a security guard, using one of the office's security cameras, zoomed in on the 

truck's windshield. Although the footage showed nothing obscene, the guard informed the 

police, and the defendant was arrested. He was later found guilty of lewd and lascivious 

behavior at a bench trial. 

This court reversed. Relying on the definition of "public" in Black's Law

Dictionary, which reads "'[t]he people of a country or community as a whole,'" the court 

rejected the argument that "publicly" means "in a public place"; the legislature had 

previously removed "in a public place" language from the statute. 2016 WL 6651871, at 

*3 (quoting Black's Law Dictionary 1422 [10th ed. 2014]). Rather, the statute "requires 

foreseeability that one's acts may be seen by another." 2016 WL 6651871, at *4. This 

analysis is fact-dependent; it turns on the time, place, and manner of the act. 2016 WL 
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6651871, at *5. Because the defendant was parked away from other cars (and in a 

heightened truck), no pedestrians were in the parking lot at the time, and even the 

security guard could not see clearly into the truck, the Albin court found the defendant did 

not publicly expose himself. 2016 WL 6651871, at *4-5.

We find Albin's discussion of the fact-specific nature of "public exposure"

persuasive. When jurors are instructed that an offense requires a public act, they are 

called on to listen to the evidence, consider the facts, and determine whether, in their 

practical experience, the State proved public conduct. Here, the State presented evidence 

from which the jury could draw that conclusion. Throne masturbated in a maintenance 

truck in the midst of a clean-up effort when multiple people were nearby. The truck was 

parked near other cars, requiring others—including another maintenance worker—to pass 

by the truck; Throne covered himself only after the trailer park's owner went to his 

nearby car. It was reasonably foreseeable that a person could have seen Throne while he 

was masturbating in the truck. Under these facts, there was sufficient evidence presented 

to support Throne's conviction for lewd and lascivious behavior.

3. Sufficient evidence supports Throne's conviction for promoting obscenity.

In addition to his five felony convictions, the jury found Throne guilty of 

promoting obscenity to minors, a misdemeanor. K.S.A. 2015 Supp. 21-6401 defines 

promoting obscenity as recklessly "[m]anufacturing, mailing, transmitting, publishing, 

distributing, presenting, exhibiting or advertising any obscene material or obscene 

device." K.S.A. 2015 Supp. 21-6401(a)(1). The statute defines promoting obscenity to 

minors as "promoting obscenity, as defined in subsection (a), where a recipient of the 

obscene material or obscene device . . . is a child under the age of 18 years." K.S.A. 2015 

Supp. 21-6401(b). The statute indicates "'material' means any tangible thing which is 

capable of being used or adapted to arouse interest, whether through the medium of 

reading, observation, sound or other manner." K.S.A. 2015 Supp. 21-6401(f)(2).
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The State asserted Throne had transmitted obscene material within the meaning of 

K.S.A. 2015 Supp. 21-6401(a)(1) and (b) when he sent T.C. the video of a person 

masturbating. On appeal, Throne brings two challenges to the sufficiency of the evidence 

for this conviction: Throne first contends the statute's prohibition of transmitting "any 

obscene material or obscene device" creates alternative means of promoting obscenity. 

Alternatively, he argues that the statute only prohibits sending "tangible thing[s]," and the 

video he sent T.C. was not "tangible," but digital. 

3.1. K.S.A. 2015 Supp. 21-6401(a)(1) does not create alternative means of 

promoting obscenity to minors.

The court instructed the jury that, to find Throne guilty of promoting obscenity to 

a minor, it must find "[t]he defendant recklessly transmitted obscene material or an 

obscene device." Throne argues that this language, which substantially mirrors K.S.A. 

2015 Supp. 21-6401(a)(1), creates alternative means of promoting obscenity to minors. 

According to Throne, this language required the State to submit evidence that he 

transmitted both obscene material and an obscene device; otherwise, we have no way of 

knowing whether a jury unanimously convicted him of the crime charged. We do not find 

Throne's argument persuasive.

A jury must unanimously agree the defendant committed the charged crime before 

it can find a defendant guilty of that offense. See K.S.A. 22-3421; State v. Wright, 290 

Kan. 194, Syl. ¶ 1, 224 P.3d 1159 (2010) ("Jury unanimity on guilt in a criminal case is 

statutorily required in Kansas."). This is straightforward when a crime can only be 

committed one way. Some crimes, however, can be committed in multiple ways—that is, 

there are alternative means of committing the crime. See State v. Brown, 295 Kan. 181, 

192, 284 P.3d 977 (2012). For alternative-means crimes, "[u]nanimity is not required . . . 

as to the means by which the crime was committed so long as substantial evidence 

supports each alternative means." 295 Kan. 181, Syl. ¶ 1. 
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Yet not every statute that contains different methods of committing an offense 

gives rise to an alternative-means crime. While statutes usually create alternative means 

by using "or," courts must examine why the legislature used the disjunctive to determine 

whether alternative means exist. 295 Kan. 181, Syl. ¶¶ 4, 7. Language creating alternative 

means generally addresses "essential, distinct elements" of mens rea, the act requirement, 

or causation. 295 Kan. at 194. Language "describing a material element or a factual 

circumstance that would prove the crime," however, does not create alternative means of 

committing that crime; instead, it provides options for committing a crime within a 

means, which do not require jury unanimity. 295 Kan. at 194, 196-97.

Courts consider a number of other indicators to help differentiate alternative 

means from options within a means. For example, courts have observed that the 

legislature generally places alternative-means provisions in different subsections of the 

same statute. 295 Kan. at 196. But definitional provisions that describe a material element 

of the crime (not the crime itself) generally do not create alternative means. 295 Kan. at 

198. Likewise, provisions describing "factual circumstances that may prove the crime" 

generally create options within a means of committing the crime. 295 Kan. at 199.

Whether a statute creates alternative means is a question of statutory interpretation 

reviewed de novo; since it involves the sufficiency of the evidence, an alternative-means 

challenge may be raised for the first time on appeal. State v. Eddy, 299 Kan. 29, 32-33, 

321 P.3d 12 (2014).

Applying these principles here, we conclude K.S.A. 2015 Supp. 21-6401(a)(1)'s 

"obscene material or obscene device" language creates options within a means, not an 

alternative means of committing that crime. The language does not describe an essential, 

distinct element of the offense. The statute requires a reckless intent; the requisite act is 

any of the eight verbs listed in K.S.A. 2015 Supp. 21-6401(a)(1). The statute's reference 

to "any obscene material or obscene device" describes a factual circumstance that would 
14

result in criminal liability. Thus, obscene "material" and "device" are options within a 

means of committing that crime.

3.2. The State presented sufficient evidence that Throne transmitted a tangible 

thing to T.C., as required by K.S.A. 2015 Supp. 21-6401(a)(1) and (f)(2). 

Throne also argues the State failed to present any evidence that he transmitted 

"any obscene material or obscene device" to T.C. The State acknowledges it did not 

present evidence that Throne sent T.C. an obscene device. But it argues the digital video 

Throne sent to T.C.'s phone was obscene material within the meaning of K.S.A. 2015 

Supp. 21-6401. Our resolution of this question turns on our interpretation of this statute—

we must determine what the legislature intended to encompass when it defined "material"

as "any tangible thing" in K.S.A. 2015 Supp. 21-6401(f)(2). 

In general, this court will reverse a conviction for insufficient evidence only when 

we conclude, viewing the evidence in the light most favorable to the State, that a rational 

jury could not have found the defendant guilty beyond a reasonable doubt. See Chandler, 

307 Kan. 657, Syl. ¶ 2. But our review takes on a different dimension when, as here, a 

defendant's claim turns on a question of statutory interpretation. Interpretation of a statute 

is a question of law over which appellate courts have unlimited review. State v. Keel, 302 

Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015). 

The aim of statutory interpretation is to determine the legislature's intent based on 

the language it employed. 302 Kan. 560, Syl. ¶ 5. When a statute's text is plain and 

unambiguous, courts apply the language as written and do not look to canons of 

construction or legislative history. We give common words their common meanings and 

neither add language nor read out statutory requirements. 302 Kan. 560, Syl. ¶ 6.

When a statute's language is ambiguous, courts employ various tools of 

construction to ascertain the legislature's intent. For example, courts consider the 
15

uncertain language within the greater context of the entire statute's text, or the text of an 

entire act, as a whole, with an eye toward reading provisions in workable harmony, if 

possible. 302 Kan. 560, Syl. ¶ 7. We also presume the legislature does not enact 

meaningless legislation or employ meaningless language. State v. Frierson, 298 Kan. 

1005, 1013, 319 P.3d 515 (2014). As a corollary of this principle, courts presume that by 

choosing to include certain language in statutes, the legislature necessarily decided not to 

include other alternative text. See State v. Martin, 285 Kan. 735, 741-42, 175 P.3d 832 

(2008) (discussing expressio unius est exclusio alterius: the inclusion of one thing implies 

the exclusion of another). 

These principles guide our interpretation of K.S.A. 2015 Supp. 21-6401. The 

legislature, in enacting this statute, decided to define "material" as "any tangible thing." 

K.S.A. 2015 Supp. 21-6401(f)(2). The question before us is whether this definition 

includes digital information, such as the video transmitted by Throne. 

As the parties note, "tangible" has several meanings. Black's Law Dictionary 

defines "tangible" as (1) "Having or possessing physical form; CORPOREAL"; 

(2) "Capable of being touched and seen; perceptible to the touch; capable of being 

possessed or realized"; or (3) "Capable of being understood by the mind." Black's Law 

Dictionary 1757 (11th ed. 2019). Each of these definitions emphasizes a different aspect 

of what it could mean to be "tangible." The first addresses an item's physicality; the 

second its perceivability; and the third its comprehensibility. See also People v. 

Aleynikov, 31 N.Y.3d 383, 398, 104 N.E.3d 687 (2018) (discussing various definitions of 

tangible as meaning "real," "substantial," or "objective").

K.S.A. 2015 Supp. 21-6401(f)(2) does not expressly indicate whether the 

legislature intended for any or all of these definitions of tangible to apply, but our canons 

of construction help discern that legislative intent. The Kansas Legislature first included 

"tangible" in its definition of material 50 years ago when K.S.A. 21-6401's predecessor 
16

statute was enacted. L. 1969, ch. 180, § 21-4301(2)(b). At that time, long before the 

explosion of digital information and technologies we are accustomed to today, people 

encountered obscene materials through different forms of media. But when the legislature 

re-codified the Kansas criminal code in 2010—in the age of wireless Internet, streaming 

videos, and smartphones—it continued to include "tangible" in defining material subject 

to the statute. See L. 2010, ch. 136, § 212. In light of this history, we reject the notion that 

"tangible" is merely a holdover descriptor from an era predating modern technology.

Instead, the language surrounding "tangible" within K.S.A. 2015 Supp. 21-

6401(f)(2) demonstrates the legislature intended the statute to be read broadly. The 

statute encompasses "any tangible thing" that arouses interest "through the medium of 

reading, observation, sound or other manner." (Emphases added.) K.S.A. 2015 Supp. 21-

6401(f)(2). Its predecessor, K.S.A. 1961 Supp. 21-1102(a), applied to "any book, 

magazine, newspaper, writing, pamphlet, ballad, printed paper, print, picture, drawing, 

photograph, publication or other thing" containing "lewd or lascivious language, . . . 

prints, pictures, figures or descriptions." While this list is extensive, K.S.A 2015 Supp. 

21-6401(f)(2) further expanded its reach by defining material in terms of how it may be 

perceived rather than through an inventory of covered items. 

A panel of this court recently concluded that digital photographs and videos sent 

via Snapchat fell within the definition of obscene "material" under K.S.A. 2015 Supp. 21-

6401(f)(2). See State v. Johnson, 56 Kan. App. 2d 1293, 1316, 447 P.3d 1010 (2019),

rev. denied 311 Kan. __ (February 27, 2020). In Johnson, the court rejected the argument 

that "tangible" refers only to "three-dimensional physicality or touchability." 56 Kan. 

App. 2d at 1314. Instead, the court similarly reasoned that, reading K.S.A. 2015 Supp. 

21-6401 as a whole, the legislature intended to criminalize the sending of digital 

information because it included "transmit[ting]" obscene material as a means of 

promoting obscenity under K.S.A. 2015 Supp. 21-6401(a)(1). 56 Kan. App. 2d at 1316.
17

Other courts across the country have similarly held in multiple contexts that 

"tangible" items include digital media. See, e.g., Aleynikov, 31 N.Y.3d at 386 (concluding 

that tangible information can include digital material and contrasting this information 

with intangible ideas); State v. Stone, 137 S.W.3d 167, 176 (Tex. App. 2004) (concluding 

digital photos were "tangible" because they could be viewed, i.e. sensed visually); 

Dynamic Digital Design, Inc. v. Commissioner of Revenue, No. 7380-R, 2004 WL 97645, 

at *3 (Minn. Tax 2004) (unpublished opinion) (concluding digital files fell within the 

definition of "tangible personal property"); see also American Multi-Cinema, Inc. v. City 

of Aurora, No. 18CA2165, 2020 WL 34677, at *1 (Colo. App. 2020) (unpublished 

opinion) (noting AMC acknowledged on appeal that digital movie files "are tangible 

personal property").

While we are not bound by Johnson's reasoning, we come to a similar conclusion. 

The breadth of the legislature's definition of "material" in K.S.A. 2015 Supp. 21-

6401(f)(2), its inclusion of various methods of perception beyond touch (such as 

"observation" and "sound"), and its recognition and inclusion of transmission as a method 

of sending obscene material all demonstrate it did not intend "tangible" to be read 

narrowly—as capable of being physically touched—but broadly. We conclude the 

statute's "tangible" language encompasses not only physical objects but something 

substantial or real—capable of being perceived—as opposed to an intangible idea or 

thought. Digital media fall into this definition; though digital files cannot be "touched" in 

a tactile sense, they can certainly be perceived through sight and sound. Thus, digital 

media are "tangible" things within the meaning of K.S.A. 2015 Supp. 21-6401(f)(2).

Based on this discussion, there can be no question the video Throne sent to T.C. 

falls within the reach of K.S.A. 2015 Supp. 21-6401. And Throne does not contend the 

evidence was in any other way deficient to support his conviction. Sufficient evidence 

was presented at trial to support Throne's conviction for promoting obscenity to a minor.
18

4. The prosecutor did not commit reversible error during closing argument. 

Throne claims the State committed prosecutorial error during its closing argument 

by impermissibly shifting the burden of proof to him when the prosecutor commented on 

Throne's lack of corroborating witnesses. But even if we were to find that the State 

exceeded its permissible latitude, this error would not be reversible. 

During his closing argument, Throne noted the State did not call several people—

T.C.'s sister, friend, Throne's girlfriend, and a friend of his girlfriend—who were present 

at Throne's trailer around the time when T.C. claimed the second digital penetration 

occurred. Throne asserted that without these other witnesses' testimony, the jury was left 

with only T.C.'s explanation of the event—an account Throne argued was unreliable in 

light of various inconstancies in T.C.'s conduct and statements. In its rebuttal, the State 

made the following argument:

"[The State]: Now, the defense wants you to look at why didn't you hear from all 

these other people? Ladies and gentlemen, what would those other people have told you?

"The State has subpoena power, but so does the defense, and the defense called 

witnesses. The defense called the defendant. If those individuals had something to say 

that those acts didn't occur, would the defense have called them?"

Throne objected to this line of argument, asserting it was the State—not Throne—

who bore the burden of proof. After the court sustained Throne's objection, the prosecutor 

continued with the State's rebuttal:

"[The State]: Ladies and gentlemen, those witnesses would have told you one of 

two things, if they testified: They would have told you what was consistent with what—

[T.C.'s] statement, and the defendant's statement, that no one saw any of this that went 

on. Or they could have told you that they saw it occurred.

"So looking at the evidence, the evidence presented, did the State, using that 

evidence, prove its case beyond a reasonable doubt? That is your job, and that is what 

you are to do in this case."
19

On appeal, Throne claims this argument was improper in two respects. First, he 

again asserts that the prosecutor attempted to shift the burden of proof to Throne by 

implying he had an obligation to present his own evidence. Second, he argues the State 

impermissibly argued facts not in evidence by surmising the uncalled witnesses could

only have testified about two issues—whether they did or did not see the digital 

penetration in Throne's trailer. Rather, Throne reasons, they could have offered other 

explanations such as T.C. never went into the kitchen. Accord State v. Stimec, 297 Kan. 

126, 128, 298 P.3d 354 (2013) (prosecutor cannot comment on facts not in evidence).

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution guarantees a right to a fair trial. State v. Sherman, 305 Kan. 88, 98, 378 P.3d 

1060 (2016). To protect that right, the Fourteenth Amendment imposes certain 

restrictions on prosecutors. See 305 Kan. at 98. A prosecutor commits prosecutorial error 

by exceeding those limitations. 305 Kan. at 109. When sufficiently severe, these errors

render a trial unfair, depriving a criminal defendant of his or her right, and warrant 

reversal of the defendant's convictions. See 305 Kan. at 99.

An appellate court's review of a claim of prosecutorial error involves a two-step 

process: consideration of error and consideration of prejudice. 305 Kan. at 109. In 

considering whether error has occurred, "the appellate court must decide whether the 

prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to 

conduct the State's case and attempt to obtain a conviction in a manner that does not 

offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. If the appellate 

court finds error, then "the appellate court must next determine whether the error 

prejudiced the defendant's due process rights to a fair trial" using the constitutional 

harmless error inquiry. 305 Kan. at 109.
20

A prosecutor may not shift the burden of proof to the defendant. State v. Pribble, 

304 Kan. 824, Syl. ¶ 6, 375 P.3d 966 (2016). But when a defendant attacks the credibility 

of the State's witnesses by highlighting the State's failure to call corroborating witnesses, 

the State may respond by noting the defendant's ability to also call witnesses. State v. 

Williams, 299 Kan. 911, 939, 329 P.3d 400 (2014); State v. Peppers, 294 Kan. 377, 397, 

276 P.3d 148 (2012). "'Such a comment, refuting a purported inference, is not an 

impermissible shifting of the burden of proof.'" Williams, 299 Kan. at 940 (quoting State 

v. Naputi, 293 Kan. 55, 64, 260 P.3d 86 [2011]); see also Pribble, 304 Kan. at 838 (no 

improper burden shifting by commenting on the defendant's failure to call witnesses 

corroborating his alibi). To determine whether a shift occurs, courts may note whether the 

State was responding to the defense counsel's argument. Peppers, 294 Kan. at 397. 

This case is similar to Williams. During closing arguments in Williams, defense 

counsel argued the State failed to provide witnesses corroborating the victim's statement; 

in response, the State noted the defendant could also subpoena witnesses. The Supreme 

Court held the State's response did not shift the burden of proof; the State responded to 

explain steps law enforcement had taken to identify those witnesses, not to invoke the 

defense to disprove the crime's occurrence. 299 Kan. at 941. As in Williams, Throne 

highlighted the absence of corroborating witnesses to attack T.C.'s credibility. Under 

Williams, the State could respond to this argument by noting Throne also had the power 

to subpoena witnesses. 

The State's further comments, however, are on less solid ground. To rebut 

Throne's argument, the State only needed to highlight his subpoena power. But the State 

went further, implying Throne would have called witnesses had they been beneficial. 

This implication, compounded by the State's speculative account as to what information 

the witnesses may have provided had they been called, gives us pause. While it is true 

that courts permit the State wide latitude in crafting closing arguments, the State's 

arguments at least muddied the question as to the burden of proof. At the same time, the 
21

prosecutor immediately sought to clarify this issue, telling the jury that its role was to 

"look[] at the evidence, the evidence presented" and ask, "did the State, using that 

evidence, prove its case beyond a reasonable doubt?"

This is a close case. But even if we were to decide that the prosecutor's comments

exceeded the bounds of permissible argument, we would not find that error to require 

reversal of Throne's convictions. We note that both the State and the district court 

tempered any jury misunderstanding about the burden of proof. The State reiterated that 

standard multiple times, before and after making the challenged comments. And the court 

instructed the jury that the State must prove guilt beyond a reasonable doubt. These steps, 

viewed in light of the evidence submitted at trial—including independent corroborating 

evidence of T.C.'s account through Throne's multiple explicit communications and 

Throne's own admissions to the police around the time of the incident in question—lead 

us to conclude the State has sufficiently demonstrated that there is no reasonable 

possibility that the alleged prosecutorial error contributed to the jury's verdict in this case. 

See Sherman, 305 Kan. at 109.

5. Throne has not demonstrated cumulative error.

In his final argument on appeal, Throne argues that even if his alleged errors do 

not individually require reversal of his convictions, the accumulation of any deficiencies 

deprived him of a fair trial. We disagree. Rather, the only potential error Throne has 

identified concerns the prosecutor's statements during closing argument. But even if those 

comments crossed the bounds of permissible argument, they were not reversible. Kansas 

courts have long recognized that a defendant is not entitled to a perfect trial, but to a fair 

one. Cruz, 297 Kan. at 1075. Throne has not shown he was deprived of this right. 

Affirmed.