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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,550

STATE OF KANSAS,

Appellee,

v.

KASEY L. NESBITT,

Appellant.

SYLLABUS BY THE COURT

1.

The res gestae of a crime includes the acts committed before, during, or 

after the happening of the principal occurrence, when those acts are so closely 

connected with the principal occurrence as to form, in reality, a part of the 

occurrence. Deaths caused within the time and circumstances of an underlying 

felony's res gestae qualify as felony murders. The focus is on whether the act 

causing the death occurred during the res gestae of the underlying felony; the 

death resulting from that act need not have occurred immediately.

2.

Evidence of felony murder is sufficient when testimony supports the State's 

theory that a victim's death 21 days after a rape was caused by blood clots that 

formed because of the victim's immobility, which, in turn, was precipitated by her 

pain from injuries suffered in the attack.
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3. 

A direct causal connection exists between the crime underlying felony 

murder and the death that follows from it unless an extraordinary intervening 

event supersedes the defendant's act and becomes the sole legal cause of death. An 

intervening event does not qualify as extraordinary if it was foreseeable.

4.

Sufficient evidence supports a defendant's conviction on felony murder, 

including the foreseeability of a rape victim's death 21 days after the attack, when 

injuries the victim suffered caused pain that immobilized her, giving rise to 

development of fatal blood clots.

5. 

Sufficient evidence supports a defendant's conviction of aggravated burglary on 

the theory that he or she entered a dwelling, in which there was a human being, with 

intent to commit a sexually motivated crime therein when the jury heard testimony that, 

with the exception of a mutilated back door through which the attacker entered and a 

disorganized master bedroom where the rape occurred, the house was tidy and orderly; 

there were no signs of someone entering the house to commit theft, e.g., drawers and 

cabinets left open or their contents disturbed; neither responding officers nor crime scene 

investigators noticed anything missing or moved, and valuable items in open view were 

left behind by the attacker; and the victim was raped during the burglary. 
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6. 

Comments from a prosecutor in closing arguments that inflame the passions or 

prejudices of a jury are prohibited. Such comments distract the jury from its mission to 

decide the case on the evidence and controlling law. A prosecutor's description of a 100-

year-old victim as a "treasure" to her family is erroneous, but, in the context of this case, 

harmless.

7.

A race-switching exercise jury instruction, worded as suggested by the defendant 

in this case, is not legally appropriate in Kansas. Such an instruction tells jurors to deviate 

from their legal responsibility to disregard anything but the facts and the controlling law 

when arriving at their verdict in a case.

8.

Cumulative error may require reversal of a defendant's conviction if—under the 

totality of the circumstances—more than one error substantially prejudiced the defendant 

and denied the defendant the right to a fair trial. The doctrine of cumulative error does 

not apply when only one error has been detected.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed June 1, 

2018. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Samuel

Schirer, of Kansas Appellate Defender Office, was on the brief for appellant. 

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district 

attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
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The opinion of the court was delivered by

BEIER, J.: Defendant Kasey L. Nesbitt appeals his convictions for felony murder, 

rape, and aggravated burglary, arising from a violent and ultimately fatal attack on 100-

year-old M.S. in her home. 

Nesbitt raises five issues on appeal: (1) insufficient evidence to support felony 

murder; (2) insufficient evidence to support aggravated burglary; (3) prosecutorial error; 

(4) error in refusal to give a requested jury instruction on a race-switching exercise; and 

(5) cumulative error.

We reject these challenges and affirm Nesbitt's convictions. 

FACTUAL AND PROCEDURAL HISTORY

The attack on M.S. came to light in the early morning hours of September 30,

2014, when she knocked on her neighbor's door. The neighbor's son answered the knock, 

finding a visibly "distressed" and "shaking" M.S. wrapped only in a bathrobe. M.S. said 

someone was breaking into her house. After letting M.S. inside and checking M.S.'s 

house for intruders, the son called police.

On arrival, officers of the Wichita Police Department also checked M.S.'s house 

for intruders. They found none but noted that the lock on the back door had been 

damaged and glass broken out. Although the master bedroom appeared disorganized, the 

officers did not notice anything obvious that had been disturbed or taken from the rest of 

the house. The officers interviewed M.S., noting that her right wrist was bruised and 

swollen. M.S. gave the officers her name, consented to a search of her home, and was 

taken to the hospital.
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Crime scene investigators took photos of the back door of M.S.'s house, observing 

that the frame was lying on the ground in two pieces, surrounded by glass and sheetrock 

dust. Both of the door's strike plates had been knocked out, and one of them was lying on 

the floor. Like the officers before them, the investigators observed that the house was tidy 

and orderly, with the exception of the damage to the back door and some disarray in the 

master bedroom, where the attack had taken place.

The bedding in the master bedroom had been pulled back, and a pillow was lying 

on the floor next to the bed. As the crime scene investigators collected evidence, they saw 

jewelry; car keys; and a purse containing a wallet, medications, and cash in open view.

They also did not detect "evidence that anything was moved" or missing in the rest of the 

house. Three items from outside M.S.'s house were collected and photographed: a Dr. 

Pepper can in the alley behind it, a cigarette butt on its west side near the back door, and 

a switchblade in its backyard. Although the can and switchblade were tested for 

identifiable fingerprints, none were found. 

A sexual assault nurse examiner (SANE) saw M.S. at the hospital and collected 

evidence. During the nurse's examination, M.S. could not be moved without causing her 

great pain. She also complained of severe pain while lying still. M.S. particularly cited 

great pain in her right arm, bottom, and back. The nurse made note of several injuries, 

including "extensive bruising beginning at [M.S.'s] head to her toes," indicating recent

blunt force trauma. The nurse would later testify that M.S. had a fracture of her lower 

right arm that caused swelling. 

The nurse also discovered substantial injuries to M.S.'s genital area. M.S. had a 5 

millimeter by 5 millimeter abrasion on her labia minora, which, the nurse later testified,

was associated with trauma. In addition, M.S. had bleeding under the tissue in the area 
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where she urinated. M.S. also had "a large hole" just below her vaginal opening. M.S.'s 

vagina was swabbed for evidence, and the swabs were turned over to police.

After the SANE exam was finished, M.S. was admitted to the hospital, where she 

told her attending physician that she had "generalized pain all over" and had an especially 

hard time walking because her "bottom [was] hurting all the time." Hospital caregivers 

also discovered M.S. had compression fractures in her lower spine, which were likely to 

be attributable to her attack and considered the likely source of her lower back pain. M.S.

required a significant amount of help to move; pain from her injuries limited her ability to 

move herself. Doctors did not see improvement in M.S.'s mobility during her two-week 

hospital stay. Rather, they observed M.S. become weaker and suffer increasing trouble 

with mobility. 

At the end of the two weeks, M.S. was transferred to a skilled nursing facility for 

physical therapy. She died 6 days later—approximately 21 days after the attack.

The coroner, Dr. Jamie Oeberst, would eventually confirm M.S.'s extensive 

bruising and the fractures noted by the hospital staff and the substantial reduction in her 

mobility that followed from the pain these injuries produced. According to Oeberst, 

M.S.'s reduced mobility ultimately contributed to the formation of blood clots in her legs, 

which traveled to M.S.'s lungs, killing her. Oeberst estimated that the clots had formed 

three to seven days before M.S.'s death. "[T]he clots in her legs that then went to her 

lungs is her cause of death. And the reason she developed those clots in her legs was 

because—was a result of the immobilization after the assault." Oeberst certified M.S.'s 

death as a homicide, with the attack, obesity, dementia, and advanced age contributing to 

her death. Oeberst acknowledged that it was possible, however, that the blood clots could 

have formed even if the attack on M.S. had not occurred.
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M.S. was never able to give a complete description of the person who attacked 

her. She was able to say only that the attacker was a man. She told her daughter-in-law 

and a nurse, "I guess you could say I was raped," and, "[W]ell, I guess you could call it a 

rape." When a hospital psychiatrist asked M.S. if she knew why she was in the hospital, 

he testified, M.S. told him she was raped. But, at other times, M.S. said she did not know 

why she had been hospitalized. The psychiatrist diagnosed M.S. with dementia, primarily 

due to her advanced age.

Police did not have a suspect until DNA testing of M.S.'s SANE examination

swabs revealed a local-and state-database match to a 2002 sample taken from Nesbitt

because of another incident. Before M.S. died, the State charged Nesbitt with rape and 

aggravated burglary. It added a charge of felony murder after her death. 

At trial, the State relied exclusively on its DNA match evidence to link Nesbitt to 

the crimes. Forensic scientist Sarah Geering testified that a major contributor and a minor 

contributor of DNA were found on the swab taken from M.S. The minor contributor's 

DNA profile was consistent with M.S.'s, leaving only the major contributor in the form of 

seminal fluid. Geering testified the lab was able to generate a "full profile at all of the 

markers that we test for." The major contributor's profile matched Nesbitt's. Given that 

match, the State did not arrange for DNA testing of the Dr. Pepper can, cigarette butt, and 

switchblade, or of a Walgreens receipt also found on M.S.'s property.

At the conclusion of the evidence at trial, Nesbitt requested that the district judge 

give the following "race switching" instruction to the jury:

"It is natural for human beings to make assumptions about the parties and 

witnesses in any case based on stereotypes. Often we may rely on stereotypes without 

even being aware that we are doing so. As a juror you must not make assumptions about 
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the parties and witnesses based on their membership in a particular racial group. You 

must not assume that a particular interpretation of a person's behavior is more or less 

likely because the individual belongs to a particular racial group. Reliance on stereotypes 

in deciding real causes is prohibited because every accused is entitled to equal protection 

of the law, and because racial stereotypes are historically, and notoriously, inaccurate 

when applied to any particular member of a race. 

"To ensure that you have not made any unfair assessments based on racial stereo 

types, you should apply a race-switching instruction exercise to test whether stereotypes 

have affected your evaluation of the case. 'Race Switching,' involves imagining the same 

events, the same circumstances, the same people, but switching the races of the particular 

witnesses. For example if the accused is African-American and the accuser/victim is 

white, you should imagine a White accused and a black accuser/victim.

"If your evaluation of the case is different after engaging in race-switching, this 

suggests a subconscious reliance on stereotypes. You must then reevaluate the case from 

a neutral, unbiased perspective."

The State objected because the case against Nesbitt was primarily built upon DNA 

evidence, and the court denied Nesbitt's request. 

During closing arguments, the prosecutor detailed the decline in M.S.'s quality of 

life after the attack. He then stated: 

"The aggravated burglary, there are two counts. The first one set forth in 

instruction six. I believe the second one is instruction seven . . . . The bottom line is what 

we'd have to prove, you can read it for yourself . . . he entered the home without authority 

with the intent to—and there's two different ways to look at this, two alternative, either 

theft or a rape therein. And it happened on or about the date alleged." (Emphasis added.)

During the State's rebuttal, the prosecutor commented on M.S.'s 

relationship with other members of her family: 
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"Mr. Bennett described to you kind of this picture of [M.S.] in her house before 

the attack. A hundred-year-old family member appeared to be a gift to this family. They 

kind of treasured this kind of thing that they had. They had this older family member. She 

was happy. She was at home. And look at the change that occurs from that attack. Look 

how different that life became.

"The only mistake I would ask you to consider in this case is that [M.S.] did not 

get to live out her final days on her terms. The defendant took that away from her." 

Defense counsel objected to this argument, asserting that these statements impermissibly

asked the jury to "decide this case based on the sympathy for [M.S.'s] family." The 

district judged overruled the objection, not stating a rationale. The judge told the jury, 

both contemporaneously with the objection and as part of the instructions generally, that 

the statements made by counsel during closing arguments did not constitute evidence.

The jury found Nesbitt guilty of all three crimes. His aggravated burglary 

conviction was based on the alternative charge of entry into M.S.'s home with intent to 

commit rape. Nesbitt was sentenced to life without the possibility of parole for 25 years 

for the felony murder and consecutive imprisonment of 285 months for the rape and 34 

months for the aggravated burglary. 

DISCUSSION

Sufficiency of the Evidence 

Our standard of review for a sufficiency of the evidence claim is a familiar one, 

often repeated:
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"When sufficiency of the evidence is challenged in a criminal case, the standard 

of review is whether, after reviewing all the evidence in a light most favorable to the 

prosecution, the appellate court is convinced a rational factfinder could have found the 

defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, 

resolve evidentiary conflicts, or make witness credibility determinations." State v. Lloyd, 

299 Kan. 620, 632, 325 P.3d 1122 (2014). 

Nesbitt challenges the sufficiency of the evidence supporting two of his three

convictions, felony murder and aggravated burglary.

Felony Murder

Nesbitt asserts two infirmities in the State's evidence of felony murder. First, he

argues that M.S.'s death 21 days after the attack did not occur within the res gestae of the 

underlying felony of rape. Second, he argues there was no direct causal connection 

between the rape and M.S.'s death.

Felony murder is statutorily defined as the killing of a human being "in the 

commission of, attempt to commit, or flight from any inherently dangerous felony." 

K.S.A. 2014 Supp. 21-5402(a)(2). Rape is an inherently dangerous felony. See K.S.A. 

2014 Supp. 21-5402(c)(1)(E). 

The res gestae of a crime includes the "acts committed before, during, or 

after the happening of the principal occurrence, when those acts are so closely 

connected with the principal occurrence as to form, in reality, a part of the 

occurrence." State v. Cameron, 300 Kan. 384, 396, 329 P.3d 1158 (2014). Deaths 

"caused within the time and circumstances" of an underlying felony's res gestae 

qualify as felony murders. State v. Brown, 303 Kan. 995, Syl. ¶ 2, 368 P.3d 1101 

(2016). "Generally, whether the underlying felony was abandoned or completed 
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before the murder is a question of fact for the jury to decide." State v. Jackson, 280 

Kan. 541, 544, 124 P.3d 460 (2005). 

"Under the felony-murder rule, the killing may precede, coincide with, or follow the 

felony and still be considered as occurring in the perpetration of the felony offense, as 

long as there is a connection in time, place, and continuity of action. As long as the 

underlying felony and the killing are part of one continuous transaction, it is irrelevant for 

purposes of felony murder whether the felony took place before, after, or during the 

killing. In a felony murder, the killing need not occur in the midst of the commission of 

the felony, as long as that felony is not merely incidental to, or an afterthought to, the 

killing." 40 Am. Jur. 2d, Homicide § 68. 

On similar challenges to the sufficiency of evidence to support felony murder in 

previous appeals, this court has focused on whether the act causing death occurred during 

the res gestae of the underlying felony; the death resulting from that act need not have 

occurred immediately. See Brown, 303 Kan. at 1003 (felony-murder conviction upheld 

when victim died at hospital, not during commission of underlying felony); Cameron, 

300 Kan. at 386, 397 (felony-murder conviction upheld when victim died six hours after 

attack); State v. Griffin, 279 Kan. 634, 641, 654, 112 P.3d 862 (2005) (statute requires

killing to occur during felony; victims died two and a half to three hours after underlying

felony completed); see also Matter of Anthony M., 63 N.Y.2d 270, 276, 284, 471 N.E.2d 

447 (1984) (felony-murder conviction affirmed when victim died 10 days after 

underlying felony completed). Nesbitt's focus on whether M.S.'s death occurred during 

the res gestae reflects a misunderstanding of Kansas precedent and the concept of felony 

murder generally. He has directed us to no law supporting his interpretation, and we have 

found none.

The record contains abundant evidence conforming to the correct legal paradigm

we have identified. It supports the jury's decision that the act causing M.S.'s death 
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occurred within the res gestae of the underlying felony of rape. The SANE testified that 

the attack severely injured M.S., including inflicting a "large hole" in her genital area. 

Other medical personnel told the jury about how M.S.'s health deteriorated significantly 

after the attack and continued to do so until her death. The coroner testified that the 

severe injuries sustained by M.S. led to the immobility that ultimately produced the clots 

that killed her. Nesbitt's res gestae-based argument is without merit. 

Nesbitt also argues that evidence of "a direct causal connection between the felony 

and the homicide" is lacking. See State v. Phillips, 295 Kan. 929, 940, 287 P.3d 245 

(2012). "[T]ime, distance, and the causal relationship between the underlying felony and 

the killing" are three factors used in determining whether there is a direct causal 

connection. 295 Kan. at 941. "A direct causal connection exists unless an extraordinary 

intervening event supersedes the defendant's act and becomes the sole legal cause of 

death." 295 Kan. at 941; see State v. Beltz, 305 Kan. 773, 778, 388 P.3d 93 (2017) ("Once 

it has been determined that the death lies within the res gestae of the underlying crime, 

. . . the direct causal connection can only be severed by an extraordinary intervening 

event.").

To determine if an intervening event is extraordinary, we consider whether it was 

foreseeable. See 305 Kan. at 774-75, 778-79 (upholding felony-murder conviction 

stemming from drug shootout; victim not intended target of robbery, shooting); State v. 

Beach, 275 Kan. 603, 613-14, 67 P.3d 121 (2003) (victim's death during drug transaction 

of third person foreseeable, supporting causal connection to convict defendant). 

Nesbitt primarily argues on this point that seven logical "steps" were required to

support conviction of Nesbitt on felony murder and, apparently, that their number 

exceeds the limit on an intervening event that can avoid the label of "extraordinary." He

contends, "Since the State needed to prove direct causation—not simply 'but for' 
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causation—insufficient evidence supports Mr. Nesbitt's felony murder conviction." The 

asserted steps are: 

"(1) that Mr. Nesbitt raped M.S.; (2) that the rape caused injuries; (3) that the injuries 

caused pain; (4) that the pain caused immobility; (5) that immobility and injuries caused 

blood clots to form in M.S.'s legs; (6) that the blood clots in M.S.'s legs caused blood 

clots to form in her lungs; and (7) that pulmonary blood clotting caused M.S.'s death." 

Again, this argument by Nesbitt confuses the question. We must decide whether 

any event qualifies as an "extraordinary intervening" event that cuts off foreseeability of 

M.S.'s death. We are looking for something that supersedes the rape as the sole legal 

cause of M.S.'s death, not merely counting the foreseeable links in the causal chain.

Nesbitt's jury heard plenty of evidence supporting the continuing structural 

integrity of that chain. The coroner testified about the extensive injuries caused by the 

attack and said that resulting pain forced restriction of M.S.'s mobility, which was at the 

root of the fatal blood clots. The jury also heard ample testimony about M.S.'s steadily 

deteriorating health in the days leading up to her death. She never rallied and then 

backslid because of a new, unexpected development. Rather, her demise followed 

directly and inexorably from the violence inflicted upon her in the attack. This evidence 

was entirely sufficient to support causation.

To the extent Nesbitt advances a secondary causation challenge based on an 

inference that M.S.'s lack of mobility was a product of her personal choice rather than the 

dictate of excruciating pain, we have been directed to no evidence in the record before us 

to support that inference. However, even if such evidence existed, we would be 

compelled by our standard of review to mimic the jury in discounting it. On a criminal 

defendant's sufficiency challenge, we examine all of the evidence in the light most 

favorable to the State. See Lloyd, 299 Kan. at 632. If a rational factfinder could have 
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found the defendant guilty beyond a reasonable doubt, we affirm, without reweighing 

evidence or resolving evidentiary conflicts. 299 Kan. at 632.

Aggravated Battery

We move next to Nesbitt's challenge to the sufficiency of the evidence supporting 

his aggravated burglary conviction.

Aggravated burglary is defined under K.S.A. 2013 Supp. 21-5807(b)(1) as: 

"without authority, entering into or remaining within any building . . . in which there is a 

human being with intent to commit a felony, theft or sexually motivated crime therein." 

In the context of aggravated burglary, "entering into" means the "defendant crossed the 

plane of a building's exterior wall." State v. Daws, 303 Kan. 785, Syl. ¶ 1, 368 P.3d 1074 

(2016). The necessary intent for conviction can be shown by circumstantial evidence. 

State v. Killings, 301 Kan. 214, Syl. ¶ 2, 340 P.3d 1186 (2015). "A conviction of even the 

gravest offense can be based entirely on circumstantial evidence and the inferences fairly 

deducible therefrom. If an inference is a reasonable one, the jury has the right to make the 

inference." State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011), overruled 

on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014); see State v. 

Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (circumstantial evidence adequate to 

support existence of necessary intent). 

Nesbitt argues there was sufficient evidence to show the attacker remained within 

M.S.'s house with the intent to commit rape but insufficient evidence to show he entered

the house with intent to commit rape. In Nesbitt's view, the evidence shows only that the 

intent to commit rape was present during the time the attacker was inside; the evidence 

supports a crime of opportunity but not one of design.
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We reject Nesbitt's arguments. Nesbitt was charged with alternative counts of 

aggravated burglary: one based on entering the house with the intent to commit theft and 

one based on entering with the intent to commit a sexually motivated crime. The jury 

found Nesbitt not guilty on the burglary charge based on theft and guilty on the burglary 

charge based on a sexually motivated crime. These conclusions were consistent with the 

trial evidence that, with the exception of the mutilated back door and disorganized master 

bedroom, the house was tidy and orderly. There were no signs of someone entering the 

house to commit theft, e.g., drawers and cabinets left open or their contents disturbed. 

Neither the responding officers nor crime scene investigators noticed anything missing or 

moved. In fact, valuable items in open view were left behind by the attacker. There was 

nearly irrefutable evidence that M.S. was raped. All of this evidence was sufficient to 

support the jury's logical inference that rape was the attacker's goal on entering M.S.'s 

home.

Prosecutorial Error

Our review of a claim of prosecutorial error in closing arguments requires a twostep process:

"To determine whether prosecutorial 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. If error is 

found, the appellate court must next determine whether the error prejudiced the 

defendant's due process rights to a fair trial. 

"In evaluating the prejudice step of our two-step analysis for reversible 

prosecutorial error, appellate courts shall look no further than, and shall exclusively 

apply, the traditional constitutional harmlessness inquiry demanded by Chapman v. 

California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Prosecutorial error is 
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harmless if the State proves beyond a reasonable doubt that the error complained of will 

not or did not affect the outcome of the trial in light of the entire record, i.e., where there 

is no reasonable possibility that the error contributed to the verdict." State v. Sherman, 

305 Kan. 88, Syl. ¶¶ 7-8, 378 P.3d 1060 (2016).

Comments from a prosecutor in closing arguments that inflame the passions or 

prejudices of a jury are prohibited. State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011). 

Arguments that move "the jury's attention from its duty to decide the case on the evidence 

and controlling law" also are barred. 292 Kan. at 67.

Nesbitt contends that the State's rebuttal closing argument quoted in the factual 

and procedural background section above constituted prosecutorial error. He argues the 

reference to M.S. as a family "treasure" amounted to an improper attempt to inflame the 

passions of the jury. 

Under this court's analysis of what was then termed "prosecutorial misconduct," 

which predated our decision in Sherman, 305 Kan. at 88, we consistently reprimanded 

prosecutors for making similar comments appealing to emotions of jurors. See State v. 

Holt, 300 Kan. 985, 992, 336 P.3d 312 (2014) (comment on victim's children no longer 

having a father improper appeal for sympathy); Adams, 292 Kan. at 67 (invoking 

sympathy for family of victim impermissible); State v. Tosh, 278 Kan. 83, 92, 91 P.3d 

1204 (2004) (telling jurors to protect child victim from father by finding father guilty 

improper appeal to emotions), overruled on other grounds by Sherman, 305 Kan. 88;

State v. Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (prosecutorial error in closing 

argument: "[T]hink about Mother's Day yesterday, [how the victim's mother] must have 

felt. Now [the victim] will never have a chance to be a mother, this young professional 

sharp, security conscious woman.").
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In keeping with our decisions in Henry, Holt, and Adams, we hold that the 

prosecutor's challenged remarks were error. They had no purpose other than inflaming 

the passions of jurors, distracting them from their task.

The next question is whether the error is reversible. Nesbitt asserts the 

prosecution's commentary in closing arguments had a reasonable possibility of affecting 

the outcome to his prejudice because the State relied so heavily on the DNA match to link 

him to the crimes. That evidence was not, he argues, overwhelming.

In deciding if a prosecutor's erroneous statement was harmless, this court looks 

primarily to "the impact of the error on the verdict," and "the strength of the evidence 

against the defendant" is only secondarily considered. Sherman, 305 Kan. at 111. 

The State's rebuttal closing argument was, with this one exception, entirely 

appropriate. The prosecutor reviewed the evidence from multiple police officers, crime 

scene investigators, the coroner, hospital staff, and DNA lab staff. The prosecutor 

correctly summarized controlling law and how the jury should treat the evidence. We also 

note that the district judge, both contemporaneously with the objection and as part of the 

instructions generally, reminded the jury that the statements made by counsel in closing 

arguments were not evidence in themselves. Given the limited nature of the prosecutor's 

mistake, it would be unreasonable to believe that the comment caused reversible 

prejudice.

Race-Switching Instruction

Nesbitt argues that the district judge erred when he refused to give a novel 

proposed jury instruction.
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This court uses a four-step analysis in reviewing jury instruction issues:

"(1) First, the appellate court should consider the reviewability of the issue from both 

jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) 

next, the court should use an unlimited review to determine whether the instruction was 

legally appropriate; (3) then, the court should determine whether there was sufficient 

evidence, viewed in the light most favorable to the defendant or the requesting party, that 

would have supported the instruction; and (4) finally, if the district court erred, the 

appellate court must determine whether the error was harmless, utilizing the test and 

degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. 

denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202

(2012).

A race-switching exercise instruction of the type sought tells jurors in a case in 

which the defendant and the victim are members of the same race to imagine the parties 

as members of a different race. If, by doing this exercise, jurors find that they would 

reach a different conclusion, then the instruction tells them that subconscious or implicit 

racial bias may be influencing their decision. It next tells the jurors to reevaluate the case 

from a neutral perspective. See Lee, Race and Self-Defense: Toward A Normative 

Conception of Reasonableness, 81 Minn. L. Rev. 367, 482 (1996).

Nesbitt points to no Kansas case in which the requested instruction has been given, 

and we have not found one. But several federal and state courts have addressed the issue 

of using specific jury instructions to address racial bias. 

Under United States Supreme Court precedent, "[t]here is no constitutional 

presumption of juror bias for or against members of any particular racial or ethnic 

groups." See Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S. Ct. 1629, 68 L. 

Ed. 2d 22 (1981) (plurality opinion) (discussing juror prejudice in context of voir dire).

Yet federal statutory law requires an instruction admonishing a jury not to consider race 
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in the sentencing phase of a capital murder case. See 18 U.S.C. § 3593(f) (2014). The 

federal instruction tells jurors not to take race, color, or religious beliefs into account in 

arriving at a recommendation on a death sentence. See 18 U.S.C. § 3593(f). Jurors must 

also sign a certificate affirming that they followed the instruction. See 18 U.S.C. § 

3593(f). Again, this statute applies only during the sentencing phase of death penalty 

cases. See United States v. Sampson, 486 F.3d 13, 25 n.4 (1st Cir. 2007) (discussing 

district court's compliance with the required instruction, certificate process); United 

States v. Davis, 904 F. Supp. 554, 563 (E.D. La. 1995) (discussing statute's intent that 

instruction only to be used during sentencing phase, not guilt phase).

Outside the federal death penalty context, federal courts that have examined the 

issue of whether to give instructions that highlight possible racial prejudice have rejected 

them. See United State v. Diaz-Arias, 717 F.3d 1, 23-24 (1st Cir. 2013) (rejecting 

proposed instruction telling jury to disregard "any personal feelings you may have about 

the defendant's race or ethnicity, or national origin"; substantially covered in instruction 

given); Jahagirdar v. United States, 597 F. Supp. 2d 198, 204 (D. Mass. 2009) (requested 

racial bias instruction "might unnecessarily draw attention to the racial differences 

between the defendant and the alleged victim"); United States v. Graham, 680 Fed. Appx.

489, 492 (8th Cir. 2017) (unpublished opinion) (refusing to give instruction on implicit 

racial bias).

The majority of state courts addressing the issue have followed the same pattern. 

Some have reasoned that the instruction could inject racial bias into a proceeding where 

none existed before. State v. Roseboro, 351 N.C. 536, 555, 528 S.E.2d 1 (2000)

(expressing such fear). Others have rejected such instructions because there had been no 

indication a jury's verdict reflected racial bias or simply because the instructions were not 

required. See People v. Williams, 1 Cal. 5th 1166, 1202-03, 384 P.3d 1162 (2016), cert. 

denied 137 S. Ct. 2301 (2017) (rejecting proposed jury instruction; "no indication [a
20

juror's] brief and isolated comment improperly factored into the jury's deliberations"); 

People v. Smith, 30 Cal. 4th 581, 639, 68 P.3d 302 (2003) (rejecting instruction; courts 

should "not interject the issue of race itself and then tell the jury to disregard it" without 

reason to believe jury would employ racial bias); State v. Richardson, 342 N.C. 772, 791-

92, 467 S.E.2d 685 (1996) (rejecting proposed jury instruction because no requirement to 

give it).

It is notable that the Iowa Supreme Court came to a different conclusion in State v. 

Plain, 898 N.W.2d 801, 817 (Iowa 2017), holding that a failure to give a jury instruction 

to disregard race was error, albeit harmless. 

In that case, the defendant requested the following instruction:

"'Reach your verdict without discrimination. In reaching your verdict, you must not 

consider the defendant's race, color, religious beliefs, national origin, or sex. You are not 

to return a verdict for or against the defendant unless you would return the same verdict 

without regard to his race, color, religious belief, national origin, or sex.'" 898 N.W.2d at 

816.

The Iowa trial judge had rejected the proposed instruction because it was not in the state 

bar association's model instructions, and the judge did not know of any precedent 

approving the instruction or commanding that it be given. The Iowa Supreme Court 

decided that the judge's legal analysis was erroneous, i.e., an abuse of discretion, because 

Iowa law permits these types of cautionary instructions, provided they correctly state the 

law. 898 N.W.2d at 816-17.

We do not decide today whether subconscious or implicit racial bias is as 

pervasive as it is pernicious wherever and in whomever it exists. We instead reject the 

instruction suggested by Nesbitt because it cannot be squared with Kansas law, and thus 
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the district judge's refusal to give it was not error. While the elimination of subconscious 

or implicit racial bias is a laudable goal, Kansas juries have a singular function: Deciding

cases only on evidence actually and validly presented to them. They are not to imagine 

another set of facts and then allow that imagination to affect their deliberations.

We regularly chastise prosecutors for relying on facts not in evidence. See, e.g.,

State v. Akins, 298 Kan. 592, 601, 315 P.3d 868 (2014) (reprimanding prosecutor for 

referring to such facts); State v. De La Torre, 300 Kan. 591, 610, 331 P.3d 815 (2014)

(prosecutor cannot create "imaginary script"). We cannot approve of telling jurors to do 

the opposite. See PIK Crim. 4th 50.040, 68.010 (jurors to disregard all but facts, law). 

We also note, finally, that voir dire is available to both sides of a criminal jury 

case for ferreting out racial or other prejudice that should have no role in arrival at a 

verdict. Counsel may use their opportunity at that stage of the proceedings to encourage 

potential jurors to examine their consciences and their consciousnesses, including the 

possibility of the existence of implicit bias and its unjust effects.

Cumulative Error

Cumulative error may require reversal of a defendant's conviction if—under the 

totality of the circumstances—more than one error substantially prejudiced the defendant 

and denied the defendant the right to a fair trial. "Notably, cumulative error will not be 

found when the record fails to support the errors raised on appeal by the defendant. 

Furthermore, a single error cannot constitute cumulative error." State v. Waller, 299 Kan. 

707, Syl. ¶ 4, 328 P.3d 1111 (2014).

We have held that only one error occurred. The doctrine of cumulative error is 

thus inapplicable to this appeal.
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CONCLUSION

Defendant Nesbitt is not entitled to reversal of his convictions. The evidence 

supporting his felony murder and aggravated burglary convictions was sufficient. The 

prosecutor's single error during rebuttal closing argument was harmless. And the raceswitching exercise instruction sought by Nesbitt was not legally appropriate. The 

judgment of the district court is affirmed.