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NOT DESIGNATED FOR PUBLICATION

No. 119,680

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ZACHARY LAMONT GARDNER,

Appellant.

MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed May 1, 2020.

Affirmed.

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

Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., HILL and STANDRIDGE, JJ.

PER CURIAM: A jury convicted Zachary Lamont Gardner of one count of reckless 

second-degree murder, a severity level 2 person felony. The district court sentenced 

Gardner to 123 months in prison. Gardner appeals, citing numerous trial errors. Finding 

no error, we affirm Gardner's conviction.

FACTS

The State charged Gardner with one count of intentional second-degree murder 

after his wife, Melissa Gardner, was found fatally shot in their home. The State's first 
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witness at trial was Amy Moore, Melissa's sister. Moore testified that on January 15, 

2017, at approximately 1:30 in the afternoon, she stopped by the Gardners' house to pick 

up money so she could take the Gardners' two kids and a friend skating. Gardner took a 

while to answer the door, and when he did, he asked them to come back in 30 minutes 

because he thought Melissa had taken his wallet and needed time to find some money. 

Moore agreed. When she returned, Gardner gave his son and the son's friend each a $20

bill. Moore asked to speak with Melissa, but Gardner told her that Melissa was sleeping.

Moore did not believe Gardner was in a good state of mind, but he appeared to 

understand what she was saying and answered all of her questions appropriately.

At around 6:30 that evening, Moore passed the Gardners' house while she was 

taking the friend home from skating and noticed that the hood of Melissa's car was up. 

This concerned Moore because it was raining. After dropping the child off at his house, 

Moore returned to the Gardners' to investigate and check on Melissa. When Moore pulled 

into the driveway, the screen door was closed, but the front door was open. She 

proceeded into the house and was yelling for Melissa when she came across a blanket 

covering something on the floor in the hallway. When she pulled back the blanket, Moore 

discovered Melissa lying stiff and motionless beneath it. Melissa's eyes and mouth were 

open, and her stomach was distended. Moore said she could tell that Melissa was dead,

and she ran out of the house as fast as she could and called 911. Soon after the police 

arrived, Moore saw Gardner run up from the side of the house. As he was being subdued 

by police, Moore began to kick him and hit him to the point where she physically had to 

be picked up and separated from him.

The State's second witness was Winfield Police Officer David Dougherty. Officer 

Dougherty initially was called to the Gardners' house but then returned to the police 

department in order to interview Gardner. Officer Dougherty advised Gardner of his 

rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), 

and then went over each of those rights individually to ensure that Gardner understood 
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them. Gardner ultimately waived his Miranda rights and agreed to make a statement to 

police. Relevant to this appeal, Gardner told Officer Dougherty that he retrieved a gun 

from his father early in the day on Saturday, January 14, 2017. After performing a 

complete functions check of the weapon, Gardner claimed he cleared it and placed it, 

unloaded, on top of the dresser in his bedroom. Officer Dougherty testified that he and 

Gardner were able to understand each other and converse without difficulty throughout 

the entire interview.

The State also called—over Gardner's objection—Rhett Whitley, Martin Moon, 

and Cory Johnson to testify as witnesses. All three of these individuals were correction 

officers who were working in the Cowley County Jail on the night of December 6, 2016, 

which would have been about six weeks before Melissa was found dead. Whitley testified 

that he heard a commotion in a holding cell near the booking desk and when he went to 

investigate, he heard Gardner say "that he was, [g]oing to kill that bitch. That's not a 

threat. That's a promise." Whitley was wearing a body camera at the time, but it was not 

activated so Gardner's statement was not recorded. Moon testified that he was in the 

process of booking Gardner—who he described as appearing angry, upset, and

intoxicated—into the jail when he heard him say "I'm going to kill that bitch." He was 

wearing a body camera and, unlike Whitley, it was activated; but it did not pick up the 

specific threat that Moon testified to. It did, however, record Gardner using the word 

"bitch" in various other contexts. Finally, Johnson testified that he was with Moon in the 

booking area when he came into contact with Gardner and heard him say "that he was 

going to kill his wife as soon as he got out." Johnson's body camera was recording but, 

again, the video did not show Gardner making the specific threat that Johnson testified to. 

All three correction officers prepared reports about the incident, but the reports were not 

written until after Gardner was charged in this case. 

Just before resting its case-in-chief, the State read the following stipulations into 

the record:
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"The first stipulation says: The following facts have been agreed to by the 

parties and are to be considered by you as true. One, the following items were taken by 

law enforcement from the residence of [address omitted] Winfield, Kansas, the evening 

that Melissa's [sic] Cathleen Gardner was fatally shot, and were sent to the KBI forensic 

laboratory for ballistic analysis. One, A-1, fired Smith and Wesson 40 cal cartridge case. 

B-1, 40 cal Smith and Wesson semi-automatic pistol, model SD 40 DE, with magazine 

for the same. Two, the following item was taken from the body of Melissa Cathleen 

Gardner during autopsy by Ronald Disterfano—and that's D-I-S-T-E-R-F-A-N-O—of the 

Sedgwick County Regional Forensics Center and sent by law enforcement to ballistic 

analysis to the KBI laboratory, one fired bullet. The results of the analysis were as 

follows: A, the 40 caliber pistol was tested and found to be in working order. The 40 

caliber cartridge was found to have been fired from the 40 caliber pistol. The bullet or the 

fired bullet was found to have been fired from the 40 caliber pistol.

"Second stipulation, the following facts have been agreed to by the parties and 

are to be considered by you as true: On January 17th of 2017, Dr. Ronald Disterfano, a 

duly qualified forensic medical examiner, performed an autopsy on the body of Melissa 

Cathleen Gardner. Two, there were two gunshot wounds found on the body, one of the 

left forearm and the other of the abdomen. Three, the gunshot wounds were considered to 

have resulted from a single projectile. Four, there was no evidence of close range gunfire. 

Five, blood analysis showed the presence of methamphetamine and amphetamine. Six, 

Dr. [Disterfano's] opinion regarding cause of death is that Melissa Cathleen Gardner died 

as a result of a gunshot wound to the abdomen. The gunshot wound first perforated her 

left forearm, fracturing her left mid radius. It then entered the abdomen, perforating the 

skin and the 9th rib cartilage antero-laterally, bowel mesentery, the aorta and the right 

kidney coming to rest in the subcutaneous tissues of the right lower back, where it was 

recovered. A large-caliber, jacketed, hollow-point projective was recovered from her 

lower back."

After the State rested, Gardner took the stand to testify in his own defense. He told 

the jury about his military experience and the mental and physical health conditions he

has suffered as a result of his service. Gardner enlisted in the United States Army, on 

October 27, 2004, the day after he and Melissa got married. A little over a year later, 

Gardner was sent to Iraq. While in Iraq, Gardner was the lead driver of a scout platoon,
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leading convoys of military vehicles past the front line in order to obtain information on 

the enemy. Gardner came into close contact with enemy combatants and witnessed death 

first-hand. During the approximately four months he was there, he was the victim of three 

separate improvised explosive device attacks. The third attack caused an injury that 

required amputation of his right foot, which rendered Gardner "non-deployable." For this 

reason, Gardner was discharged from the military in November 2006 with a 100 percent 

disability rating. Breaking down that rating, Gardner testified that 50 percent was based 

on his posttraumatic stress disorder (PTSD), 30 percent was the result of a traumatic 

brain injury, and the remaining 20 percent was based on the loss of his right foot.

After leaving the military, Gardner said his PTSD made him paranoid and 

"hypervigilant," which he described as being constantly alert as if he could get hurt at any 

time. Gardner also said that his PTSD made him startle easy and experience vivid 

nightmares, which disrupted his sleep. He recounted an incident that occurred about 

seven or eight years before the trial, when he began to involuntarily choke his son while 

they were both sleeping. Melissa had to strike Gardner in the head to make him come to 

his senses and realize what was going on. After that incident, Gardner kept a 5-foot-long 

body pillow between himself and Melissa when they went to sleep so that there would be 

some level of protection for her if he had another nightmare. 

Gardner tried to treat his mental health issues with medication and counseling but 

eventually began self-medicating with illegal substances. On the weekend that Melissa 

was shot and killed, Gardner testified that they were both using methamphetamine and 

other drugs. He and the State agreed that the following facts would be presented to the 

jury in the form of a stipulation:

"The following facts have been agreed to by the parties and are to be considered 

by you as true: One, on January 17 of 2017, the Winfield Police Department sent a vial 

of blood taken by medical personnel from Zachary Gardner to the Kansas Bureau of 
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Investigation forensics laboratory for analysis. Two, results of the analysis were as 

follows: A, Zachary Gardner's blood tested positive for methamphetamine. B, Zachary 

Gardner's blood tested positive for amphetamine. C, Zachary Gardner's blood tested 

positive for benzodiazepines."

Gardner testified that, at some point in the evening on Saturday, January 14, 2017, 

two men came over to their house and began doing drugs with Melissa. Gardner said he 

did not like being around other people when he was high so he "took a handful of 

Clonopin" as a sedative. But before he lay down, Gardner collected some valuables and a 

handgun and placed them under his pillow. He said he did this because of his paranoia 

and hypervigilance and because he was uncomfortable with the two men being around his 

wife. 

Gardner testified the handgun was a tactical weapon with a standard ejection port 

and that, other than a mechanism on the trigger, it did not have a safety that could be 

turned on and off. Gardner cleared the gun, put a gun lock on it, and placed it in a top 

drawer. But after getting high on Saturday, January 14, 2017, he got the gun back out, 

cleaned it, and loaded it with a magazine that contained one bullet. The gun was unlocked 

and loaded when he took it to bed with him.

Gardner heard a loud noise and/or a scream while he was sleeping, which he said 

triggered an exaggerated startle response. Without thinking or even fully coming awake, 

Gardner pointed his gun down the hallway and fired a shot. According to Gardner, it was 

only after firing the gun that he fully came to his senses and realized that he had shot 

Melissa. Gardner said he ran down the hallway, knelt down beside Melissa, and grabbed 

her head to try to make her look at him. When she did not respond, he tried to render aid 

by propping up her legs, fashioning a make-shift tourniquet, and administering a sternum 

rub. He then tried to administer CPR but "lost it" when his attempt at rescue breathing 

caused Melissa's wound to gurgle blood. Gardner said he began to experience flashbacks 
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to his time in the military. Over the next few hours, Gardner walked around the house as 

if he were numb. He said that he tried several times to find a working cell phone or keys 

to a vehicle so that he could get help but quickly gave up on those tasks and reverted back 

to not knowing what to do. Gardner admitted that he did not handle the situation 

properly.

After the defense rested, the district court held a jury instructions conference. 

Relevant here, Gardner requested a voluntary intoxication instruction. The district court 

took the matter under advisement but ultimately denied the request on grounds that it was 

factually inappropriate. The jury returned a guilty verdict on the lesser included offense 

of unintentional but reckless second-degree murder with extreme indifference. Gardner 

filed a number of posttrial motions, which the court denied.

ANALYSIS

On appeal, Gardner raises five points of error: (1) There was insufficient evidence 

to support his conviction, (2) the prosecutor committed reversible error during his closing 

argument, (3) the district court erred when it refused to give a voluntary intoxication 

instruction after finding that it was factually inappropriate, (4) the district court erred 

when it allowed three jailers to testify regarding comments Gardner made in jail, and (5) 

cumulative error deprived him of a fair trial. 

1. Sufficiency of the evidence

"'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.' [Citation 

omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
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It is only in rare cases, where the testimony is so incredible that no reasonable 

fact-finder could find guilt beyond a reasonable doubt, that a guilty verdict will be 

reversed. State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018). In addition, a verdict 

for even the gravest offense can be based entirely on circumstantial evidence if such

evidence provides a basis for a reasonable inference by the fact-finder regarding the fact 

in issue. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). There is no legal 

distinction between direct and circumstantial in terms of their probative value; and 

circumstantial evidence need not exclude every other reasonable conclusion in order to be 

sufficient. 304 Kan. at 25; see also State v. Lowery, 308 Kan. 1183, 1236, 427 P.3d 865 

(2018).

To obtain a conviction for reckless second-degree murder, the burden was on the 

State to prove beyond a reasonable doubt that Gardner: (1) killed Melissa and (2) acted 

recklessly under circumstances manifesting an extreme indifference to the value of 

human life. See K.S.A. 2019 Supp. 21-5403(a). Gardner does not dispute that he shot and 

killed Melissa. As such, we need only determine whether there is sufficient evidence to 

support the jury's finding that Gardner acted recklessly, with extreme indifference to the 

value of human life. See K.S.A. 2019 Supp. 21-5403(a)(2). "A person acts 'recklessly' or 

is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk 

that circumstances exist or that a result will follow, and such disregard constitutes a gross 

deviation from the standard of care which a reasonable person would exercise in the 

situation." K.S.A. 2019 Supp. 21-5202(j).

Gardner argues there was no evidence presented at trial to show that he was 

"horsing around" with the gun, that he intended to display force, or that he intended to 

injure or kill Melissa. But while those factual characteristics have been present in 

previous reckless second-degree murder cases, they are not elements that are required by 

statute. See K.S.A. 2019 Supp. 21-5403(a); see also State v. Gonzalez, 307 Kan. 575, 

587-88, 412 P.3d 968 (2018); State v. Cordray, 277 Kan. 43, 55-56, 82 P.3d 503 (2004). 
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Instead, K.S.A. 2019 Supp. 21-5403(a)(2) requires the State to prove only that Gardner 

acted recklessly, with extreme indifference to the value of human life. When viewed in a 

light most favorable to the prosecution, the evidence presented at trial establishes that (1) 

Gardner knew that he had mental health issues that caused him to experience an 

exaggerated response when startled, (2) Gardner knew that he had hurt people in the past 

while sleeping and because of that generally took precautions to prevent similar incidents 

from occurring, and (3) despite knowing these things about himself, Gardner took a 

loaded gun without a true safety mechanism to bed with him while there were other 

people in the house. This evidence is sufficient to support the jury's conclusion that 

Gardner acted recklessly, with extreme indifference to the value of human life. 

2. Prosecutorial error

Gardner next argues that the prosecutor committed reversible error during his 

closing argument. Appellate courts use a two-step process to evaluate claims of 

prosecutorial error: error and prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 

1060 (2016). 

"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 prejudice, we simply adopt the traditional 

constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if 

the State can demonstrate 'beyond a reasonable doubt that the error complained of will 

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

is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" 

305 Kan. at 109.
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a. Error

Kolter makes four claims of prosecutorial error, all of which arise from the 

prosecutor's closing argument. We address each claim in turn. 

(1) Appealing to passions and prejudices of jury

Gardner claims that the prosecutor committed reversible error by improperly 

appealing to the passions and prejudices of the jury. A prosecutor has a duty to ensure 

that the State's case is presented with the proper amount of earnestness and vigor and 

therefore, as noted above, is granted wide latitude to use every legitimate means to argue 

the case and bring about a conviction. State v. King, 288 Kan. 333, 351, 204 P.3d 585 

(2009); see also Sherman, 305 Kan. at 109. But a prosecutor also serves as an officer of 

the court, occupying a quasi-judicial role with its own traditions and responsibilities.

State v. Martinez, 290 Kan. 992, 1014, 236 P.3d 481 (2010). A "prosecutor crosses the 

line of appropriate argument when that argument is intended to inflame the jury's 

passions or prejudices or when the argument diverts the jury's attention from its duty to 

decide the case on the evidence and controlling law." 290 Kan. at 1014-15; see also State 

v. Holt, 300 Kan. 985, 999, 336 P.3d 312 (2014) (A prosecutor steps over the bounds of 

permissible argument when he or she asks for justice for a specific victim as opposed to 

justice in general.). 

Here, Gardner complains that the prosecutor improperly sought to inflame the 

passions and prejudices of the jury when, as he opened his closing argument, he stated:

"On the day that the defendant testifies, as you were told earlier, he did not have 

to testify. If you chose to—we spent a lot of time talking with that person, and I just want 

to bring you back to your thoughts this morning, back this afternoon, to Melissa Cathleen 

Gardner. She's the victim in this case. She's the one that made paid the ultimate price. 

She's the one, why you are here. I want to remind you of that."
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Gardner also complains of the prosecutor's comment at the conclusion of his initial 

closing argument, where he stated: "I stand on behalf of Melissa and what I believe 

justice is in this case and ask you to be strong through your deliberations and to come 

back with a guilty verdict, murder in the second degree, intentional." The State concedes, 

and we find, that both of these comments constituted error because each sought to divert 

the jury from the evidence so as to obtain a conviction based upon sympathy for Melissa. 

See Holt, 300 Kan. at 999; see also Chandler, 307 Kan. at 678-79.

(2) Facts not in evidence

Gardner claims the prosecutor committed reversible error by commenting on facts 

not in evidence. Kansas courts repeatedly have held "that in closing argument, a 

prosecutor may draw reasonable inferences from the evidence but may not comment 

upon facts outside the evidence." State v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011); 

see also State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008) ("A prosecutor 'is 

given wide latitude in language and in manner [of] presentation of closing argument as 

long as the argument is consistent with the evidence.'"). As such, when a prosecutor 

argues facts not in evidence, he or she exceeds the wide bounds of acceptable argument 

and the first prong of the prosecutorial error test is met. See Chandler, 307 Kan. at 678-

79; Hall, 292 Kan. at 848.

Here, Gardner complains that the prosecutor misstated the evidence twice during 

closing argument. Gardner alleges the first instance occurred when the prosecutor 

misrepresented Officer Dougherty's testimony: 

"So the first account is going to be, Well, the gun was unloaded. So this must be some 

kind of accident. Well, then somewhere in the course of talking to Officer Dougherty, 

that changed. It became, Well, I put one bullet in the magazine. Well, in that, he was 

pressed on that a little bit, and it wasn't the magazine. It was actually the chamber itself. 

Like I said, the third story."
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Gardner alleges the second instance occurred when the prosecutor misrepresented 

Gardner's own testimony: "[Gardner] said he was standing." The State concedes, and we 

find, that neither of these comments were supported by the evidence introduced at trial. 

Therefore, the prosecutor's statements constituted error, i.e., were outside the wide 

latitude afforded to prosecutors. See Chandler, 307 Kan. at 678-79; Hall, 292 Kan. at 

848.

(3) Inference stacking

Gardner claims the prosecutor committed error by inviting the jury to make 

unreasonable and impermissible inferences. He complains that the following statement 

constituted improper inference stacking on the part of the prosecutor:

"I want you to consider all these things. I want you to think about it. I want you 

to come to the conclusion that his state of mind certainly was the state of mind of the 

defendant when you come back to Exhibit 23 and take a look at that. You ask yourself, 

Why did Melissa have an arm up? He said he was standing. What's the difference? If I 

were [to] toss you a softball, you'd react. You'd have time to bring your hands up. Your 

common sense tells you, once the gun goes off, you've got . . . no time to react. What 

does that tell you? That tells you that arm was already up. That arm was up. That tells 

you Melissa saw in advance what was coming, and that arm was up. Nobody walks 

around like this for no reason at all. Take a look at it. Nobody does that. So why did 

Melissa do it? She saw the gun. She saw a gun. That means there was time. It means the 

defendant raised that gun, and he raised that gun on purpose. Fired that gun on purpose. 

And left the marks that you will see here."

Inference stacking occurs when a case relies "upon the theory that presumption A leads to 

presumption B leads to presumption C leads to fact D." State v. Banks, 306 Kan. 854, 

861, 397 P.3d 1195 (2017). But that is not what happened here. Instead, given that the 

bullet went through Melissa's raised arm and into her torso, the prosecutor's argument is 

grounded in the theory that presumption A (Melissa saw what was coming/saw the gun) 
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and presumption B (Gardner raised and then fired the gun), both separately point to fact 

C (Gardner acted intentionally). See 306 Kan. at 861 ("[I]t is perfectly proper for the 

State's case to be grounded upon a theory that presumption A, presumption B, and 

presumption C all separately point to fact D."). We find the prosecutor's comments were 

based on direct evidence and a request that the jury draw reasonable inferences from that 

direct evidence; accordingly, the statements did not constitute error. See 306 Kan. at 863.

(4) Witness credibility

Gardner claims the prosecutor erred by impermissibly commenting on the 

credibility of witnesses. In Kansas, it is well established that a prosecutor may not offer 

his or her personal opinion about the credibility of witnesses. State v. Sean, 306 Kan. 963, 

979, 399 P.3d 168 (2017). This rule applies to defendants as well, meaning that a 

prosecutor commits error if he or she—either directly or indirectly—describes the 

defendant as liar. State v. Williams, 303 Kan. 585, 602, 363 P.3d 1101 (2016). Similarly, 

a prosecutor is prohibited from making comments intended to bolster the credibility of 

his or her own witnesses. State v. Sprague, 303 Kan. 418, 428, 362 P.3d 828 (2015). 

What a prosecutor can do, however, is craft an argument that draws reasonable inferences 

from the evidence and explains to jurors what they should look for when assessing 

witness credibility. This is particularly true when the defense has attacked the credibility 

of the State's witnesses. Sean, 306 Kan. at 979.

Gardner complains that the prosecutor improperly commented on his credibility 

and also sought to bolster the credibility of Officer Dougherty when he stated:

"Now, I know that the defendant presented to you today his honorable service. I 

think that would great, his service. There's nothing wrong with saying that. Nothing 

wrong with saying that. We ought to – when somebody receives – especially injured – we 

say, Thank you. It's okay to have sympathy for some of the things. We have to come back 

and say, That was then. Some of those effects probably are still today. But what happened 
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last year? What really happened? What was his state of mind at that time? Everyone that 

came in contact with him, I specifically asked them, you remember, they said he 

understood them, they understood him. He had communication. He was given Miranda

warnings. He said he understood. He marked them all off. He signed for them. The only 

time his memory failed today is whenever it came right up to a point something very 

important. Then, all of a sudden, I don't remember if I told Officer Dougherty that or not. 

Did you notice that? I don't know if I said that wrong. There was a lot of, I don't knows. I 

had to ask him. His memory, he admitted it, wasn't as good today as it was when he 

talked to Officer Dougherty. So you ought to give what Officer Dougherty said that the 

defendant told him more weight than what the defendant said today, because Officer 

Dougherty took it down shortly after this. Defendant gives detail after detail after detail 

what happens. He gives accounts what happened. There's nothing wrong with his mind at 

that time."

By highlighting his "limited recollection of events" and encouraging the jury to 

give "more weight" to Officer Dougherty's testimony, Gardner argues the prosecutor 

simultaneously bolstered Officer Dougherty's testimony and indirectly called Gardner a 

liar. But when read in context, the prosecutor's statements do not, as Gardner suggests, 

improperly comment on witness credibility. Rather, they simply ask the jury to draw 

reasonable inferences from the evidence presented at trial. See Sean, 306 Kan. at 979.

The prosecutor invites the jury to look at Gardner's own admission that his memory was 

better on the day of the shooting and draw an inference from that admission that (1) 

Officer Dougherty's testimony regarding what Gardner said on the day of the shooting is 

more credible than Gardner's testimony at trial and (2) Gardner was in a lucid and 

coherent state of mind when he shot and killed Melissa. See State v. Duong, 292 Kan. 

824, 831-32, 257 P.3d 309 (2011) (A prosecutor's explicit comments about witness 

credibility were not improper because they were reasonable inference based on the 

evidence at trial and the prosecutor direct the jury to that evidence.); State v. Davis, 275 

Kan. 107, 122-23, 61 P.3d 701 (2003) (A prosecutor's statement that a witness should be 

believed and was more likely to tell the truth in an earlier police interview was a 

reasonable inference based on the evidence.). We find the prosecutor's comments did not 
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fall outside the wide latitude afforded to the State to conduct its case and obtain a 

conviction. See Sherman, 305 Kan. at 109.

b. Harmlessness

Having established that the State committed prosecutorial error by improperly 

appealing to the passions and prejudices of the jury and commenting on facts not in 

evidence, we now must determine whether those errors denied Gardner his right to a fair 

trial. As noted above, appellate courts adopt the traditional constitutional harmlessness 

inquiry when evaluating prejudice. See Sherman, 305 Kan. 109. "[P]rosecutorial error is 

harmless if the State can demonstrate 'beyond a reasonable doubt that the error 

complained of will not or did not affect the outcome of the trial in light of the entire 

record, i.e., where there is no reasonable possibility that the error contributed to the 

verdict.'" 305 Kan. at 109.

The State asserts that, although the prosecutor did err during his closing argument, 

it was harmless. Specifically, the State argues that the jury was properly instructed: (1) to 

disregard any statements that were not supported by the evidence and (2) that the 

statements, arguments, and remarks of counsel, while intended to help it understand the 

evidence and apply the law, were not themselves evidence. As the State notes, we must 

presume that the jury followed the instructions provided by the court. In this particular 

case, that presumption serves to mitigate any damage caused by the prosecutor's 

comments. See State v. Kettler, 299 Kan. 448, 478, 325 P.3d 1075 (2014). And as it 

pertains to the statements that may have inflamed the passions and prejudices of the jury, 

the statements at issue were brief and followed by reminders that the State bears the 

burden of proving that Gardner was guilty beyond a reasonable doubt. Similarly, as it 

pertains to the comments on facts not in evidence, the complained of statements were 

again brief, were made in passing, and were not emphasized by the State. And finally, 

when compared with the overwhelming evidence in the record against Gardner, including 
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his own admission that he went to bed with a loaded gun, which created the dangerous 

situation that result in Melissa's death, there is no reasonable possibility that the errors 

complained of contributed to the verdict. See Sherman, 305 Kan. at 111 ("[T]he strength 

of the evidence against the defendant may secondarily impact [the] analysis one way or 

the other."). As a result, we conclude that, although errors did occur, they were harmless 

and did not prejudice Gardner's due process rights to a fair trial. See 305 Kan. at 109.

3. Voluntary intoxication instruction

Gardner argues the district court erred when it refused to give the following 

voluntary intoxication jury instruction that he requested:

"Voluntary intoxication may be a defense to the charge of Murder in the Second 

Degree (intentional), when such intoxication impaired the defendant's mental faculties to 

the extent that he was incapable of forming the necessary intent to kill Melissa Cathleen 

Gardner."

That instruction is a modified version of PIK Crim. 4th 52.060 (2012) which is, in turn, 

based on the language of K.S.A. 2019 Supp. 21-5205(b).

When analyzing jury instruction issues, appellate courts follow a four-step 

progression:

"First, it considers the reviewability of the issue from both jurisdiction and preservation 

viewpoints, exercising an unlimited standard of review; next, it applies unlimited review 

to determine whether the instruction was legally appropriate; then, it determines 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 finally, if the district 

court erred, this court determines 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. 
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denied 565 U.S. 1221 (2012). [Citation omitted.]" State v. Claerhout, 310 Kan. 924, 935-

36, 453 P.3d 855 (2019).

Because it is dispositive of the issue, we limit our analysis to the third step of the inquiry: 

whether the requested instruction was factually appropriate. See Claerhout, 310 Kan. at 

936-37. 

Generally, a defendant is entitled to instructions on the law applicable to his or her 

theory of defense "if the evidence suffices for a rational factfinder to find for the 

defendant on that theory." 310 Kan. at 936. But simply showing that a defendant 

consumed an intoxicant around the time that he or she committed a crime does not 

automatically mean that a voluntary intoxication instruction is necessary. State v. Reed, 

302 Kan. 390, 400, 352 P.3d 1043 (2015). Instead, a voluntary intoxication instruction is 

only required when either "the State or the defendant presents sufficient evidence 

showing intoxication to the extent of impairing the ability to form the requisite intent." 

State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). Appellate courts "'will not 

infer impairment based on evidence of consumption alone.'" State v. Hilt, 299 Kan. 176, 

193, 322 P.3d 367 (2014). But if a defendant can demonstrate an inability to recall events 

before or during the offense, or intoxication to the point that he or she lost the ability to 

reason, to plan, or to exercise basic motor skills, that may be enough to compel a 

voluntary intoxication jury instruction. State v. Becker, 311 Kan. __, 459 P.3d 173, 184

(2020); Reed, 302 Kan. at 400; Betancourt, 299 Kan. at 141.

Here, Gardner argues "there was some evidence on the record that [he] was 

effected by his intoxication to the point of being unable to form a specific intent." He 

asserts the following facts establish that his voluntary intoxication impaired his ability to

form the requisite intent: he was unaware that he had fired the gun until after the act 

occurred, he reacted to seeing the blood gurgling from Melissa's wounds by walking 

around the house numb, and he was unable to remember what he was doing outside when
18

law enforcement arrived. But at trial, Gardner attributed each of these behaviors to his 

PTSD and the military flashbacks he was experiencing, not his drug use. While it is true 

that Gardner consumed methamphetamine and took a "handful of Clonopin" in the hours 

before he shot and killed Melissa, there is almost no evidence that he was intoxicated at 

the time of the shooting. By contrast, the record is replete with evidence demonstrating 

that Gardner could recall the shooting in great detail and had not lost the ability to reason 

or exercise basic motor skills. See State v. Davis, 306 Kan. 400, 414-15, 394 P.3d 817 

(2017) ("A defendant's ability to recall the circumstances surrounding the charged crime 

and provide a coherent narrative of his or her conduct undercuts a claim of intoxication 

sufficient to warrant a jury instruction."). This included Gardner's own testimony as well 

as the testimony of many other witnesses who all indicated that Gardner was coherent 

and understood what was going on and what he was doing on the day of the shooting. 

When viewed in a light most favorable to Gardner, the evidence established Gardner 

ingested an intoxicant but was not intoxicated to the point that he lacked the ability to 

form the requisite intent. See Hilt, 299 Kan. at 193 (Appellate courts "will not infer 

impairment based on evidence of consumption alone."). Therefore a voluntary 

intoxication instruction was not factually appropriate, and the district court did not err 

when it refused to give Gardner's requested instruction. See State v. Plummer, 295 Kan. 

156, 162, 283 P.3d 202 (2012).

4. Other crimes or wrongs

Gardner argues the district court erred when it allowed three jailers to testify about 

a threat he allegedly made against Melissa less than two months before he shot and killed 

her. The admissibility of evidence regarding other crimes and civil wrongs is governed by 

K.S.A. 2019 Supp. 60-455. That statute provides, in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person 

committed a crime or civil wrong on a specified occasion, is inadmissible to prove such 
19

person's disposition to commit crime or civil wrong as the basis for an inference that the 

person committed another crime or civil wrong on another specified occasion.

"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such 

evidence is admissible when relevant to prove some other material fact including motive, 

opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or 

accident." K.S.A. 2019 Supp. 60-455.

When determining whether to admit evidence under K.S.A. 2019 Supp. 60-455, 

district courts must use the following three-part test with corresponding appellate 

standards of review:

• "'First, the district court must determine whether the fact to be proven is material, 

meaning that this fact has some real bearing on the decision in the case. The appellate 

court reviews this determination independently, without any required deference to the 

district court.

• 'Second, the district court must determine whether the material fact is disputed and, if 

so, whether the evidence is relevant to prove the disputed material fact. In making 

this determination, the district court considers whether the evidence has any tendency 

in reason to prove the disputed material fact. The appellate court reviews this 

determination only for abuse of discretion.

• 'Third, if the fact to be proven was material and the evidence was relevant to prove a 

disputed material fact, then the district court must determine whether the probative 

value of the evidence outweighs the potential for undue prejudice against the 

defendant. The appellate court also reviews this determination only for abuse of 

discretion.'" State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014).

Here, Gardner only takes issue with the district court's determination at the third 

step: that the probative value outweighed the potential for undue prejudice. He argues 

the testimony of the jailers was wholly inconsistent, and as a result, was not probative. 

"Evidence is probative if it has any tendency in reason to prove the fact." State v. Lloyd, 

299 Kan. 620, 639, 325 P.3d 1122 (2014). This court reviews for abuse of discretion a 

district court's determination regarding the probative value of evidence. Richard, 300 
20

Kan. at 721; Lloyd, 299 Kan. at 639. A judicial action constitutes an abuse of discretion if 

(1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is 

based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). 

We are not persuaded by Gardner's argument that the testimony of the three 

different jailers was so inconsistent it resulted in the evidence having little to no probative 

value. While it is true that none of the jailers documented the incident until six weeks 

after it occurred and that each gave a different version of the exact phrase that Gardner 

used, all three accounts were factually consistent with one another and the wording 

discrepancies were simply slight variations on the phrase "I'm going to kill that bitch."

And contrary to Gardner's claim, the threat that Gardner purportedly made less than two 

months before he shot and killed Melissa is highly probative because it tends to prove his 

intent to do so. See Lloyd, 299 Kan. at 639. The district court did not abuse its discretion 

when it determined that the probative value of the jailers' testimony outweighed the 

prejudicial effect and allowed it to be introduced into evidence under K.S.A. 2019 Supp. 

60-455(b). See Richard, 300 Kan. at 721.

5. Cumulative error

Gardner asserts his conviction must be vacated and his case remanded for a new 

trial because cumulative error deprived him of a fair trial. "The test for cumulative error 

is '"whether the totality of circumstances substantially prejudiced the defendant and 

denied the defendant a fair trial. No prejudicial error may be found upon this cumulative 

effect rule, however, if the evidence is overwhelming against the defendant."'" State v. 

Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). Here, Gardner has shown that the 

prosecutor committed two errors during his closing argument when he improperly 

appealed to the passions and prejudices of the jury and commented on facts not in 

evidence. But we have concluded that both of these errors were harmless because there is 

no reasonable possibility that either contributed to the verdict. See Sherman, 305 Kan. at 
21

109. Given the nature and relationship of the errors, the context in which they occurred, 

and the overwhelming nature of the evidence against Gardner, we find that cumulative 

error did not deny Gardner a fair trial. See Walker, 304 Kan. at 458; see also State v. 

Williams, 308 Kan. 1439, 1462-63, 430 P.3d 448 (2018).

Affirmed.