1

NOT DESIGNATED FOR PUBLICATION

No. 125,156

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JASON M. GLEASON SR.,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Submitted without oral argument. Opinion 

filed February 2, 2024. Reversed and remanded.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. 

Andrew R. Davidson, deputy district attorney, Thomas Stanton, district attorney, and Kris W. 

Kobach, attorney general, for appellee.

Before ATCHESON, P.J., ISHERWOOD and HURST, JJ.

PER CURIAM: A jury convicted Jason M. Gleason Sr. of one count of battery of a 

state corrections officer and he brings this appeal to challenge the validity of that 

conviction. Gleason claims that insufficient evidence, as well as errors in the jury 

instructions and erroneous statements uttered by the prosecutor, warrant reversal of his 

conviction. We are not persuaded that the first two issues, viewed independently, 

necessitate that outcome, but find the same cannot be said concerning the prosecutor's 

conduct. Rather, the State's repeated efforts to focus the jury's attention on the traumatic 

injuries Officer Spencer sustained during the overall melee triggered by Gleason, rather 
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than confining its efforts to the singular instance of criminal conduct that occurred—the 

physical contact Gleason made with Spencer at the outset of the incident—is

considerably problematic. That approach created a very real risk that the foundational 

theory for the jury's guilty verdict was battery which resulted in bodily harm, rather than 

merely making physical contact in a rude, insulting, or angry manner. Given that a 

criminal conviction cannot be grounded in irrelevant evidence and a defendant may only 

be convicted of the crime charged or its lesser included offenses, the prosecutor's errors, 

standing alone, would warrant reversal of Gleason's conviction and remand for a new 

trial. But our analysis does not end there. Rather, the integrity of his conviction is further 

called into question when the instructional error is viewed in conjunction with the State's 

legal fallacies. Two sources are traditionally relied upon to ensure the jury has a proper 

understanding of its obligation. First, the purpose of the district court's instructions is to 

inform the jury concerning the elements of the crime charged in the complaint and to 

advise it regarding the possible verdicts in light of the evidence adduced. Next, the 

arguments and remarks of counsel are intended to aid the jury in understanding the 

evidence and how to apply the law. The deficiencies in Gleason's trial undermined those 

objectives and the result is a conviction of questionable validity. Accordingly, we reverse 

Gleason's battery conviction and remand his case for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Hutchinson Correctional Facility Officers Austin Spencer and Edwin Towers were 

on duty and chatting with one another as they monitored the dining hall when inmate 

Jason Gleason Sr. approached them with his fists clenched by his sides. Gleason reached 

Spencer first and swung a punch at him while Spencer was not looking in his direction. 

Spencer caught sight of the movement and threw his left arm up to block the impact as he 

ducked. Gleason nevertheless managed to land a blow to Spencer's head and knock his 

glasses to the floor.
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Gleason targeted Towers next giving rise to a brief scuffle between them. Other 

officers eventually arrived and attempted to subdue Gleason, but he managed to jump up, 

flee, and hurl a table at the pursuing officers in an effort to slow their advance. Towers 

succeeded in grabbing Gleason around the waist and bringing him back to the ground. 

Spencer launched himself in their direction to assist Towers, but flew over the two men 

and collided, headfirst, with a dining hall bench. He received a large indentation in his 

forehead for his efforts but promptly returned to his feet and supported his fellow officers 

in restraining Gleason.

Spencer sought medical treatment for the injuries he received when he collided 

with the bench and was diagnosed with a traumatic brain injury and skull fracture which 

required the insertion of plates and screws into his head. The injury also stripped him of 

any detailed memories concerning Gleason's initial attack and the punch he sustained to 

his head.

The State charged Gleason with three counts of battery against a state corrections 

officer, under the theory that he caused physical contact with Officers Spencer, Jack 

McLaurine, and Towers in a rude, insulting, or angry manner. It ultimately dismissed the 

latter two charges and opted to proceed solely with the count involving Spencer. 

Following a brief trial, the jury returned a guilty verdict, and the court sentenced him to 

serve 130 months' imprisonment.

Gleason now brings the matter to our court to analyze whether his trial was tainted 

by errors that require reversal of his conviction.
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LEGAL ANALYSIS

When the evidence adduced at trial is reviewed in a light most favorable to the State, as 

required by our standard of review, it is sufficient to sustain Gleason's conviction for 

battery of a corrections officer.

For his first claim of error, Gleason contends the State failed to bring forth 

sufficient evidence to demonstrate that he made physical contact with Spencer as required 

to support his battery conviction. The State asserts that it sustained its burden by 

introducing video and photographic evidence at trial which captured the incident as it 

occurred that day. 

When the sufficiency of the evidence supporting a criminal conviction is 

challenged, appellate courts review "'the evidence in a light most favorable to the State to 

determine whether a rational factfinder could have found the defendant guilty beyond a 

reasonable doubt.'" State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). While 

reviewing the evidence, we specifically will not "reweigh evidence, resolve conflicts in 

the evidence, or pass on the credibility of witnesses." State v. Potts, 304 Kan. 687, 694, 

374 P.3d 639 (2016). Overturning a conviction for insufficient evidence "is a high 

burden, and only when the testimony is so incredible that no reasonable fact-finder could 

find guilt beyond a reasonable doubt should we reverse a guilty verdict." State v. 

Meggerson, 312 Kan. 238, 247, 474 P.3d 761 (2020).

"'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.' [Citation omitted.]" Potts, 304 Kan. at 

694. It is not necessary that circumstantial evidence exclude every other reasonable 

conclusion to be considered sufficient. State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 

(2021).
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In order to sustain a conviction for battery of a state corrections officer in this 

case, the State was required to prove that Gleason knowingly caused physical contact 

with Spencer, a state corrections officer, in a rude, insulting, or angry manner, while 

Spencer was engaged in the performance of his duties as an officer. K.S.A. 2019 Supp.

21-5413(a)(2), (c)(3)(A). Again, Gleason's challenge targets the State's evidence as 

deficient with respect to its obligation to prove that he made "physical contact" with 

Spencer when he swung his fist at him. 

In conducting a thorough analysis of the evidence, we had the opportunity to 

review the video from the dining hall that the State played for the jury, which provided a 

view of the incident from various angles due to the existence of multiple security cameras 

in that area. The record also contains still images captured from that video. While the 

resolution of those photographs falls short of exceptional, they nevertheless arguably 

evidence that Gleason accomplished his goal to land a punch to Spencer's head. The 

question before us is simply whether a reasonable juror could conclude from the evidence 

that Gleason committed the act alleged, and we conclude the answer to that inquiry is an 

affirmative one. We are satisfied the evidence sufficiently demonstrates that Gleason 

made physical contact with Spencer's head and conceivably also made contact with him 

when Spencer raised his hand to block Gleason's attack. Finally, the conclusion we 

extrapolate from those images is buttressed by the existence of an injury Spencer 

sustained to the bridge of his nose, which a reasonable juror could find occurred when his 

glasses came off during that initial scuffle. 

In seeking to overturn his conviction, Gleason outlines the testimonial evidence 

from trial and asserts it amounts to a failure by the State to present any evidence of 

physical contact through the accounts provided by those witnesses. Essentially, this is a 

thinly veiled request for us to step into the shoes of the jurors and reweigh that testimony. 

This we cannot do. A thorough review of the entirety of the evidence submitted at trial 
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leaves us satisfied that it was sufficient to sustain Gleason's conviction for battery of a 

state corrections officer.

The district court erred in issuing a jury instruction that failed to require the jury to 

weigh whether the physical contact Gleason allegedly committed was carried out in a 

rude, insulting, or angry manner, but such error was harmless.

Gleason next contends the district court neglected to issue a jury instruction that 

included every element for the charged crime, resulting in a violation of his federal and 

state constitutional rights to a jury trial. The State responds that while the instruction was 

erroneous, Gleason fails to establish clear error occurred as required to overturn his 

conviction under the facts and circumstances of this case. 

We review claims of instructional error in multiple steps. First, we must consider 

jurisdiction and determine whether the issue is preserved. Then we move on to an 

analysis of whether the instruction was both legally and factually appropriate. The final 

step is to review any error we identify for harmlessness. The standard applied in this final 

step varies somewhat dependent upon its context and whether the claim was properly 

preserved. State v. Martinez, 317 Kan. 151, 162, 527 P.3d 531 (2023). It is without 

question that the trial court has the duty to inform the jury of every essential element of 

the crime that is charged. See State v. Crawford, 247 Kan. 223, 227, 795 P.2d 401 (1990). 

But even when the allegation charges that an element of a crime was omitted, our 

Supreme Court has turned to the harmless error analysis and analyzed whether the 

omitted element was uncontested and supported by such overwhelming evidence that the 

jury verdict would have been the same without the omission. State v. Richardson, 290 

Kan. 176, 182-83, 224 P.3d 553 (2010); see also State v. Daniels, 278 Kan. 53, 62, 91 

P.3d 1147 (2004) (citing Neder v. United States, 527 U.S. 1, 4, 119 S. Ct. 1827, 144 L. 

Ed. 2d 35 [1999], holding that the harmless error analysis of Chapman v. California, 386 

U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967], applies to a jury instruction that omits an 

element of an offense). 
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Gleason concedes that he did not object to the challenged instruction at trial except 

for an aspect of the instruction that was removed and is not at issue in this appeal. The 

State acknowledges that the instruction should have included the words "'in a rude, 

insulting, or angry manner'" and that its absence rendered the instruction legally 

inappropriate. Because of Gleason's failure to object, we will proceed with a 

harmlessness analysis through the lens provided by Richardson. That is, whether the 

emotion underlying Gleason's conduct "was uncontested and supported by such 

overwhelming evidence that the verdict would have been the same" had that element 

been included in the instruction. 290 Kan. at 182-83.

As discussed above, it was alleged that Gleason battered Spencer in violation of 

K.S.A. 2019 Supp. 21-5413(a)(2), (c)(3)(A). The court instructed the jury as follows: 

"In Count One, Jason Gleason is charged with the crime of battery against a state 

correctional officer. Jason Gleason pleads not guilty.

"To establish this charge, each of the following claims must be proved: 

"1. Jason Gleason knowingly caused physical contact with Austin Spencer.

"2. Jason Gleason was in the custody of the secretary of corrections.

"3. Austin Spencer was a state correctional officer.

"4. Austin Spencer was engaged in the performance of his duty.

"5. This act occurred on or about the 27th day of August 2019, in Reno County,

Kansas.

"The state must prove that the defendant committed the crime knowingly.

"A defendant acts knowingly when the defendant is aware that his conduct was 

reasonably certain to cause the result complained about by the state." 

The record before us reflects that the aggressive or belligerent nature of Gleason's 

contact was never a contested issue at trial. Rather, Gleason's defense focused solely on 

the absence of any physical contact at all. He argued to the jury that if he was "guilty of 

anything in this case it would be attempted battery of a law enforcement officer as you 

can see in the video." Counsel then elaborated: 
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"The biggest contention that is the Defense has in this matter is that Mr. Gleason did not 

make physical contact with, with the officers in this case. You heard from several 

officers, including Officer Towers, who testified that, that Mr. Gleason attempted to try 

to contact—have contact with them. He didn't know if it actually occurred." 

Turning to the video, we are satisfied it is evident that the punch Gleason threw at 

Spencer was borne of ill feelings and intended to be "rude, insulting or angry." See 

K.S.A. 2019 Supp. 21-5413(a)(2), (c)(3)(A). To be sure, the recording captured Gleason 

as he rapidly approached Spencer and Towers, from Spencer's blindside, with his fists 

clenched at his sides. He then turned directly toward the officers and lashed out at 

Spencer while Spencer's attention was focused elsewhere. Spencer threw his arm up to 

try and deflect the blow and his glasses landed on the ground as a product of his fracas 

with Gleason. Gleason swung at Towers next and then attempted to flee across the dining 

hall, throwing a table at one point to stymie the officers' efforts to apprehend him. In our 

view, it is clear from the video that this was an unprovoked, hostile act that is undeniably 

rude or angry in nature. That is, it does not lend itself to an interpretation that Gleason's 

conduct was innocuous or otherwise undertaken as participation in harmless, jovial

horseplay.

Gleason's jury had the opportunity to acquit him based on his allegation that there 

was no physical contact, but it chose not to, nor did it view his actions as merely an 

attempted battery. Rather, its verdict seemingly reflects a finding that Gleason made 

physical contact with Spencer. Accordingly, we are satisfied "the omitted element was 

uncontested and supported by such overwhelming evidence that the jury verdict would 

have been the same" had the court specifically instructed that the jury was required to 

assess whether the alleged physical contact was made in a rude, insulting, or angry

manner. Richardson, 290 Kan. at 182. 
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Gleason also urges us to find that this issue necessitates reversal because it 

amounts to a structural error that violated his state and federal constitutional rights. To 

support his claim, he directs our attention to the Mississippi Supreme Court's 

interpretation of its constitution as a guide because it contains language similar to that of 

the Kansas Constitution. See Harrell v. State of Mississippi, 134 So. 3d 266, 275 (Miss. 

2014). The Harrell court held that the omission of an element from an instruction is the 

functional equivalent of placing a decision regarding the sufficiency of the evidence 

against a defendant with the court, rather than a jury, in violation of their state 

constitution's "inviolate" right to a jury trial. 134 So. 3d at 274. But, as discussed above, 

that is not precisely on par with the standard the Kansas Supreme Court utilizes when the 

instructional error is that of a missing element. See Richardson, 290 Kan. at 182-83

(utilizing a harmless error type framework when jury instruction is missing an element). 

This court is duty bound to follow Kansas Supreme Court precedent unless there is some 

indication that court is departing from its previous position. State v. Patton, 315 Kan. 1, 

16, 503 P.3d 1022 (2022). Gleason has not identified any such indication.

We agree with the parties' assertion that the instruction was legally erroneous but 

conclude it was harmless under Richardson. This issue does not independently entitle 

Gleason to a reversal of his conviction for battering Officer Spencer. 

The prosecutor committed reversible error during closing arguments when he focused 

too heavily on the traumatic head injuries Spencer sustained, encouraged the jury to use 

that evidence for an irrelevant and unlawful purpose, and created a risk that it would 

convict Gleason of an offense with which he was not, and could not be, charged. 

Gleason's next contention of error consists of a claim that the prosecutor 

essentially misstated the law during his opening and closing remarks when he went 

beyond the scope of the complaint and focused the jury's attention on the extensive 

injuries Spencer suffered during his attempted apprehension of Gleason, rather than 

confine his statements to the actual physical contact Gleason perpetrated against Spencer.
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He asserts an additional error occurred when the prosecutor told the jury that Gleason 

was guilty of aggravated battery. The State responds that the comments fell within the 

wide latitude prosecutors are afforded during closing arguments and, in part, were only 

uttered for the purpose of countering Gleason's argument that there was "no evidence" of 

physical contact.

Prosecutorial error claims are fact specific, and outcomes depend on the 

particulars of each case. State v. Thomas, 311 Kan. 905, 911, 468 P.3d 323 (2020). We 

review such claims using a two-step process that requires an assessment of whether error 

occurred and, if so, whether the defendant suffered prejudice as a result. State v. Sieg, 315 

Kan. 526, 535, 509 P.3d 535 (2022). Under the first step we examine whether the 

challenged conduct or statements fell outside the wide latitude afforded prosecutors to 

pursue the State's case and sought to obtain a conviction through means that offended the 

defendant's right to a fair trial. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 

(2016). The wide latitude the State enjoys in arguing its case extends to opening and 

closing remarks alike and, in determining whether a particular comment exceeds proper 

boundaries, a reviewing court considers it in the context in which it was made, rather than 

analyzing it in isolation. State v. Timley, 311 Kan. 944, 949-50, 469 P.3d 54 (2020). 

Misstating the law falls well outside this latitude. State v. Becker, 311 Kan. 176, 182, 459 

P.3d 173 (2020). 

If we determine that error occurred, we next consider whether that error 

"prejudiced the defendant's due process rights to a fair trial." Sherman, 305 Kan. at 109. 

In evaluating potential prejudice, we apply the traditional constitutional harmlessness 

inquiry. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); 

State v. Fraire, 312 Kan. 786, 791-92, 481 P.3d 129 (2021). A prosecutorial error is 

harmless if we are ultimately convinced beyond a reasonable doubt, following a thorough 

review of the entire record, "that the error did not affect the outcome of the trial." 312 
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Kan. at 792. Or stated another way, that "there is no reasonable possibility that the error 

contributed to the verdict." 312 Kan. at 792.

Before delving into the analysis, a brief recap is important to establish the 

necessary context. The record reflects that Gleason was charged with battery in violation

of K.S.A. 2019 Supp. 21-5413(c)(3)(A), under the theory that he perpetrated offensive 

physical contact against Officer Spencer in a rude, insulting, or angry manner. The 

precise language of the complaint consisted of the following: 

"That on or about the 27th day of August, 2019, in Reno County, Kansas, JASON M 

GLEASON SR, while in the custody of the secretary of corrections, then and there being 

present did unlawfully, feloniously and knowingly cause physical contact in a rude, 

insulting or angry manner to Austin T Spencer, a state correctional officer or employee, 

while such officer or employee was engaged in the performance of such officer's or 

employee's duty." (Emphasis added.)

At trial, the court issued a largely corresponding instruction which stated that the 

jury could convict Gleason if it found the State proved each of the following claims: 

"1. Jason Gleason knowingly caused physical contact with Austin Spencer.

"2. Jason Gleason was in the custody of the secretary of corrections.

"3. Austin Spencer was a state correctional officer.

"4. Austin Spencer was engaged in the performance of his duty.

"5. This act occurred on or about the 27th day of August 2019, in Reno County,

Kansas.

"The state must prove that the defendant committed the crime knowingly.

"A defendant acts knowingly when the defendant is aware that his conduct was 

reasonably certain to cause the result complained about by the state." (Emphasis added.)

Additional preliminary information that is equally important is an overview of a 

few of the analytical tools that play a compulsory role in our analysis. We are mindful 

that opening statements are intended to afford prosecutors the opportunity to acquaint the 
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jury with the evidence it plans to introduce and the criminal offense it will endeavor to 

prove. See State v. Love, 305 Kan. 716, 728, 387 P.3d 820 (2017) (The opening statement 

has a narrow purpose and scope and is given only to assist the jury in understanding what 

each side expects its evidence to establish and to advise the jury what questions will be 

presented for its decision.). In a somewhat similar vein, closing arguments enable the 

prosecutor to provide the jury with a condensed, logically assembled summation of the 

evidence introduced which demonstrates how, when viewed in conjunction with the 

controlling law, the State established a defendant's guilt beyond a reasonable doubt. See 

State v. Whiters, 206 Kan. 770, 773, 481 P.2d 992 (1971) (The primary purpose of 

closing argument is to enlighten the jury so it may render a correct verdict.); State v. 

Genzel, No. 120,602, 2020 WL 3481499, at *4 (Kan. App. 2020) (unpublished opinion) 

(The proper purpose of a closing argument is to afford the lawyers the opportunity to 

discuss how the jurors should evaluate the evidence and how that evidence guides their 

application of the law in the district court's written instructions to reach a verdict.). 

With those principles as our backdrop, we turn to Gleason's contentions. The first 

question he asks us to resolve is whether statements made during the prosecutor's opening 

and closing remarks impermissibly focused the jury's attention on the bodily harm 

Spencer sustained after colliding with the bench. As support for his claim that the 

challenged remarks constitute error, Gleason first directs our attention to the following 

italicized portion of the prosecutor's opening statement: 

"This afternoon you're going [to] hear from several witnesses and what the State expects 

the evidence to show is that on August 27th, 2019, while Mr. Gleason was in the custody 

of the secretary of corrections he knowingly caused physical contact in a rude angry and

insulting manner with Austin Spencer, who was a corrections officer in the performance 

of his official duty during that time. What you will see and hear from the witnesses is 

during lunch in the chow hall in the Hutchinson Correctional Facility Mr. Gleason 

finished eating. He put his tray away. He marched up to Austin Spencer, who was 

standing with another corrections officer, Edwin Towers. While talking with Edwin 
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Towers, Mr. Gleason swung at Mr. Spencer striking him and then taking off running 

through the chow hall as officers attempted to gather Mr. Gleason up because of what he 

had just done. There will be a couple other officers who responded who helped take Mr. 

Gleason into custody at that time, but you will hear from officers who were directly 

involved. You will hear from some officers that investigate the incident and there's 

surveillance video that shows what happened. Austin Spencer, when he was trying to take 

Mr. Gleason to the ground, collided with a metal table in the chow hall which caused 

great damage to his forehead, and you will hear the injuries he sustained from that, and 

at the conclusion of this case the State will ask you to find Mr. Gleason guilty of battery 

on a state's corrections officer with regard to Austin Spencer. Thank you." (Emphasis 

added.)

Gleason buttresses his claim of error with a segment of the State's rebuttal closing 

that he asserts is indicative of another instance where the prosecutor erroneously assigned 

legal significance to Spencer's head injuries: 

"The injuries were the proximate cause of Jason Gleason's actions. He is the one 

who you watched swing at Austin Spencer. They go around the table because he won't 

listen to what their commands are. Mr. Gleason did attack Austin Spencer. You can 

watch it. It happened. You have to determine whether or not he caused physical contact 

with Austin Spencer. The State would leave you with this one statement that when Austin 

Spencer received this injury, did you hear Edwin Towers talk about how it looked like a 

perfect impression of the seat he collided with in his head it made a dent line in his head. 

If you look at that and put his head right there, that's where that injury came from. This 

one is on the bridge of the nose where his glasses were. That injury happened probably 

when he got struck by Mr. Gleason. None of Austin Spencer's injuries would have 

happened had Jason Gleason not attacked him. It sounds like they're not arguing Jason 

Gleason is innocent, that he did attack him. Mr. Bravi said he attempted to strike Mr. 

Spencer. Mr. Gleason is guilty of aggravated battery of Officer Spencer. And you can 

take this video back and watch it from each one of the angles of that camera. You'll be 

able to watch it. Up here in the top corner you will be able to see his approach in the 

other corner. Ladies and Gentlemen, that's battery of a law enforcement or state 

corrections officer. Thank you." 
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It is Gleason's position that the remarks set out above amounted to a misstatement 

of the law because they paved the way for the jury to impermissibly convict him of

battery based on bodily harm, rather than physical contact, which was the only criminal 

conduct that occurred during the entire course of events. Following a thorough review of 

the parties' opening and closing statements, we agree and find that the State's multiple 

references to Spencer's traumatic head injuries gave rise to a dual pronged error. 

First, the prosecutor essentially informed the jury that it could look to the evidence 

concerning Spencer's head injuries to find that Gleason perpetrated unlawful physical 

contact against Spencer and encouraged them to do the same. Returning to the 

prosecutor's opening statement we note that he informed the jury that Spencer sustained 

"great damage to his forehead" as he attempted "to take Mr. Gleason to the ground" and 

that the jury would "hear" evidence about those injuries after which it would be asked "to 

find Mr. Gleason guilty of battery on a state's corrections officer." That is, the final 

portion of the trial roadmap the jury received informed them that they would hear 

evidence concerning the bodily harm Spencer suffered, which was evidence it could then 

use to determine whether Gleason was guilty beyond a reasonable doubt of making 

unlawful physical contact with Spencer. The punch or physical blow that gave rise to the 

charge received merely a passing reference in the overall summary of the incident while 

Spencer's collision with the table and his corresponding injuries were directly linked to 

the State's request for the jury to return a guilty verdict for battery. 

The State's rebuttal closing included a manifestation of the same misstep as 

reflected in the phrases that again intimated the physical contact and substantial head 

injuries were related. That is, immediately on the heels of the State's reminder to the jury 

of its obligation to determine whether Gleason was guilty of battery, the prosecutor "[left 

it] with this one statement that when Austin Spencer received this injury," it was the 

result of his collision with the bench as evidenced by the nature of the dent in his 

forehead. 
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Evidence is relevant if it has "any tendency in reason to prove any material fact." 

K.S.A. 60-401(b); State v. Srack, 49 Kan. App. 2d 761, 772, 314 P.3d 890 (2013). Both 

manners of presentation were misleading given that any evidence concerning the injuries 

Spencer suffered after colliding with the bench during the apprehension of Gleason, 

several moments after the initial punch giving rise to the criminal charge was thrown, is 

wholly irrelevant to establishing whether that hit constituted physical contact. We 

recognize that the opening blow Gleason delivered to Spencer's head set off a series of 

events which ultimately culminated in Spencer's collision with the bench and remarkable 

head injuries. But to sustain a conviction for unlawful physical contact, the jury needed to 

hear evidence that Gleason made physical contact with Spencer in some way, and that 

was not the State's focus when addressing the jury at the outset and conclusion of its case. 

The injuries that Spencer sustained when Gleason was finally apprehended have no 

bearing on the question of whether Gleason committed the initial act, and it was 

erroneous for the prosecutor to inform the jury it could apply the evidence in such a way 

to ultimately find Gleason guilty.

The prosecutor was seemingly attempting to persuade the jury that but-for the 

initial blow Gleason struck, Spencer's injuries would not have occurred. But the legal 

accuracy of that assertion is questionable. The State was simply required to prove beyond 

a reasonable doubt whether Gleason made physical contact with Spencer in a rude, 

insulting, or angry manner. The head injuries Spencer sustained did not provide the 

foundation for the physical contact alleged in the complaint and were wholly irrelevant to 

the resolution of that inquiry. Stated another way, the fact Spencer injured himself when 

he crashed into the table while attempting to assist with Gleason's apprehension does not 

make it any more or less true that Gleason had physical contact with Spencer when 

Gleason first attacked him. In short, the prosecutor fell short in his duty to accurately 

inform the jury how to analyze the facts under the controlling law.
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Additionally, and perhaps the greater cause for concern, is that the prosecutor's 

statements created the risk that Gleason was convicted of battery under a theory for 

which he was not charged and could not even be charged under the law. The charging 

document sets out the specific offense alleged so that a defendant is precisely informed of 

the nature of the accusation against him or her. That notice then allows for development 

of the best defense to meet that accusation and, ideally, insulate the defendant from the 

risk of a conviction based on facts not contemplated in the accusation. State v. Phillips, 

312 Kan. 643, 668, 479 P.3d 176 (2021). Accordingly, the State is bound by the wording 

it chooses to rely on in its complaint. State v. McClelland, 301 Kan. 815, Syl. ¶ 4, 347 

P.3d 211 (2015).

The State specifically charged Gleason with battery under the physical contact 

theory. But the statements it employed when acquainting the jury with its case and then 

summarizing the same at the conclusion of trial failed to protect Gleason from the risk the 

charging document is designed, in part, to eliminate. Again, the prosecutor's assertions 

during his opening statements indicated that Spencer sustained "great damage to his 

forehead" when he attempted "to take Mr. Gleason to the ground" and following receipt 

of the evidence concerning those injuries the jury would be asked "to find Mr. Gleason 

guilty of battery on a state's corrections officer." Such statements are more akin to those 

articulated when conviction for battery under the theory that bodily harm occurred is an 

available option, rather than mere physical contact.

The State's closing remarks are similarly problematic. After reminding the jurors 

that their role was to determine whether Gleason was guilty of battery, the prosecutor 

focused their attention on Spencer's injuries by "[leaving them] with this one statement," 

that the seat Spencer collided with left a corresponding indentation in his forehead, and 

that "[n]one of Austin Spencer's injuries would have happened had Jason Gleason not 

attacked him." Highlighting the evidence in that way arguably communicates to the jury 
17

that there is no stronger evidence of Gleason's culpability for physical contact than that 

which depicts Spencer's injuries.

Both sets of statements gave rise to legally flawed opening and closing remarks 

that failed to assist the jury in understanding how they are to properly analyze the facts in 

light of the law they were given. The wording of the State's complaint was limited to 

"physical contact." Thus, that is the theory it committed itself to for trial. See State v. 

Haberlein, 296 Kan. 195, 210, 290 P.3d 640 (2012) ("The State is bound by the wording 

of its complaint and limits itself to pursue only that 'version of the offense' or 'theory' of 

the case at trial."). The boundaries erected by virtue of that complaint were not honored 

here. 

In State v. O'Connor, No. 118,519, 2019 WL 1868327 (Kan. App. 2019) 

(unpublished opinion), a panel of this court addressed a similar situation in the context of 

lesser included offense instructions and their conclusion provides some measure of 

guidance when resolving the issue before us. In that case, O'Connor was charged with the 

aggravated battery of her boyfriend under the theory that she caused "physical contact 

with another person, to-wit [T.C.], when done in a rude, insulting or angry manner with a 

deadly weapon or in any manner whereby great bodily harm, disfigurement or death can 

be inflicted." 2019 WL 1868327, at *2. Over O'Connor's objection, the trial court 

instructed the jury that it could convict O'Connor under any of the four theories of 

aggravated battery, or the lesser offense of battery. The jury ultimately convicted 

O'Connor of aggravated battery upon finding that she "'recklessly caused bodily harm to 

[T.C.] in a manner whereby great bodily harm, disfigurement or death can be inflicted.'"

2019 WL 1868327, at *2.

O'Connor appealed and argued the lesser included instruction was legally 

inappropriate because it improperly expanded the possible actus reus to include the 

uncharged act of causing bodily harm when the complaint only alleged that she caused 
18 

physical contact with T.C. The reviewing panel found O'Connor's argument persuasive 

and concluded the district court committed reversible error in issuing the instruction 

because "'[a] jury instruction on the elements of a crime that is broader than the complaint 

charging the crime is erroneous.'" 2019 WL 1868327, at *5, 7 (quoting McClelland, 301 

Kan. at 828). In so finding it noted that the State "boxed itself into" proving O'Connor 

committed aggravated battery under the theory of physical contact "because it limited 

itself accordingly in the complaint." 2019 WL 1868327, at *5. 

Our Supreme Court reached a similar conclusion in State v. Charles, 304 Kan. 

158, 372 P.3d 1109 (2016), abrogated on other grounds by State v. Huey, 306 Kan. 1005, 

399 P.3d 211 (2017). In that case, the State charged Charles with aggravated battery 

under the theory that he "'intentionally cause[d] bodily harm to another person . . . with a 

deadly weapon, to-wit: 1995 Nissan Pathfinder.'" 304 Kan. at 162. The trial court opted 

to go one step further, however, and instructed the jury it could convict Charles of 

reckless aggravated battery if it found he "'recklessly caused bodily harm to another 

person with a deadly weapon, to-wit: a car, or in any manner whereby great bodily 

harm, disfigurement or death can be inflicted.'" 304 Kan. at 162. The jury returned a 

guilty verdict based on this additional theory. 

Charles appealed and argued the instruction was erroneous because it was broader 

than the specific allegations the State chose to rely on in its complaint. The Supreme 

Court agreed and found the district judge erred by issuing an instruction that was neither 

legally nor factually appropriate. Rather, it expanded the lesser included instruction to 

enable the jury to return a guilty verdict if it found that Charles inflicted bodily harm on 

the victim "in any manner whereby great bodily harm, disfigurement, or death can be 

inflicted," instead of confining its deliberations to the specific allegation charged, that 

bodily harm was inflicted with an SUV. (Emphasis added.) 304 Kan. at 168-69. 
19

It is for very similar reasons that we determine the State committed error here.

While the prosecutor serves a distinctly different role and is not vested with the duty of 

formally instructing the jury, he nevertheless carried the obligation to aid the jury in 

understanding how it should apply the law to the facts of the case. When he encouraged 

the jury to analyze the evidence through a lens that was not legally available to them, he 

failed to fulfill that obligation.

Notably, it is not simply that the State essentially argued a theory that was not 

charged; the error is compounded by the fact that the chosen theory is not one that is even

available under the facts of this case. As mentioned briefly in the analysis concerning the 

relevancy error, the evidence fails to establish a connection between Gleason striking 

Spencer and the injuries Spencer sustained several moments later as he attempted to 

assist his colleagues when they finally managed to restrain Gleason. State v. Hobbs, 301 

Kan. 203, 340 P.3d 1179 (2015), offers a helpful analog. In that case, Hobbs punched a 

man who was simply trying to help him calm down outside a bar. The man immediately 

lost consciousness and struck his head on the bumper of a car as he collapsed, which left 

him with a significant head injury. The State charged Hobbs with aggravated battery 

under the theory that he knowingly caused great bodily harm. On appeal, our Supreme 

Court found sufficient evidence to sustain the conviction and support the existence of 

knowing conduct because Hobbs knew that some type of great bodily injury "was 

reasonably certain to result from the punch, even if he did not anticipate [the victim's] 

precise injury." 301 Kan. at 212. Using Hobbs as a backdrop, if the State in this case were 

to charge Gleason with battery for the infliction of bodily injury, it would have the 

burden to prove that Spencer's traumatic head injuries resulted from the initial blow 

Gleason struck or that the punch he delivered created a substantial risk that the resulting 

particular head injury would occur. However, the strike and the injury are too attenuated 

here as it is not one where Spencer simply fell and struck his head in direct response to 

Gleason's initial blow.
20

Given that we have determined the statements at issue are erroneous, our next step 

is to ascertain whether that error prejudiced Gleason's due process rights to a fair trial. In 

evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry 

demanded by Chapman. That is, an instance of prosecutorial error is deemed harmless 

when the State demonstrates "'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.'" Sherman, 305 

Kan. at 109. The statutory harmlessness test also applies to prosecutorial error issues, but 

when "'analyzing both constitutional and nonconstitutional error, an appellate court need 

only address the higher standard of constitutional error.'" 305 Kan. at 109.

The State attempts to mitigate the effect of its remarks by asserting that they were 

made in response to defense counsel's closing arguments and, therefore, "both parties" are 

guilty of discussing Spencer's injuries. "[A] prosecutor commits [error] by making an 

improper argument, even if the improper argument is made in response to arguments or 

statements by defense counsel. The open-the-door rule does not insulate a prosecutor 

from a finding of [error]." State v. Marshall, 294 Kan. 850, 860, 281 P.3d 1112 (2012); 

see also State v. Stimec, 297 Kan. 126, 130, 298 P.3d 354 (2013). Again, it is not the 

mere utterance of the occurrence of Spencer's injuries that gives us cause for concern. It 

is the manner in which the State encouraged the jury to use that information—that those 

injuries established Gleason was guilty of physical contact.

The video and photographic evidence introduced by the State to establish physical 

contact was sufficient to sustain Gleason's conviction on evidentiary grounds, but it was

not overwhelming, or even necessarily strong enough to overcome a constitutional 

deficiency. The video depicts the incident to some degree but requires the viewer to 

surmise, based on body language, that the actual impact occurred. Spencer's later brain 

trauma robbed him of the ability to recall the specifics of the events, and the other 

officers present were likewise unable to affirmatively and unequivocally state that 
21

physical contact occurred. Thus, given the repetitive nature of the prosecutor's statements 

and the use of the evidence he advocated for, one cannot definitively say whether the jury 

concluded Gleason was guilty under the theory of physical contact or bodily harm. A 

questionable verdict cannot be permitted to stand.

Gleason also argues that prosecutorial error occurred when the prosecutor stated 

during its rebuttal closing argument that "Gleason is guilty of aggravated battery of 

Officer Spencer." The State tacitly concedes that his statement was an accidental 

misstatement of the crime charged, thereby resulting in an error. Because this statement 

was undeniably an error, we next consider whether it prejudiced Gleason's right to a fair 

trial. See Sieg, 315 Kan. at 535.

The statement must be analyzed in conjunction with the instructions given and in 

so doing, we find no room for prejudice on this particular claim. The jury was only 

instructed on battery of a state corrections officer and a corresponding instruction for 

merely attempting to commit the same offense. Thus, the jury was never placed in a 

position to afford the prosecutor's misstatement any weight. 

Cumulative error deprived Gleason of his right to a fair trial.

Finally, Gleason argues that cumulative error deprived him of a fair trial. 

"Cumulative error analysis aggregates all errors and assesses whether their cumulative 

effect is such that they cannot be determined to be harmless, even though individually 

those errors are harmless." State v. Carr, 314 Kan. 615, 721, 502 P.3d 546 (2022). 

Cumulative errors may require reversal when the totality of the circumstances establishes

that the defendant was substantially prejudiced by the errors and denied a fair trial. In 

assessing the cumulative effect of errors during trial, appellate courts examine the errors 

in context, consider how they were dealt with, the nature and number of errors and 

whether they were interrelated, and the strength of the evidence. If any of the errors being 
22

aggregated are constitutional, the party benefiting from the error must establish beyond a 

reasonable doubt that the cumulative effect did not affect the outcome. State v. AlfaroValleda, 314 Kan. 526, 551-52, 502 P.3d 66 (2022).

We have identified two errors in Gleason's trial and considering those errors in the 

aggregate we find Gleason was denied a fair trial. To explain our conclusion, we return to 

the evidence elicited at trial. Unfortunately, the nature of Spencer's traumatic injuries left 

him with no memory of the incident. Officer Towers, the colleague with whom Spencer 

was chatting when Gleason initiated his attack, also could not testify with certainty 

whether Gleason succeeded in making physical contact with Spencer. The video and still 

photos that captured the incident, however, reveal that Spencer raised his arm and ducked 

as Gleason swung his fist at his head and allows for the interpretation by a reasonable 

juror that contact was made. Finally, evidence was admitted that Spencer suffered a 

minor laceration to his nose and his glasses ended up on the floor, both of which arguably 

indicate Gleason landed the initial punch he intended to deliver. While we concluded that 

Gleason's instructional challenge could not meet the clearly erroneous standard given the 

sufficiency of this collective evidence, we find the instruction strains the bounds of 

fairness when considered in conjunction with the prosecutor's legally infirm statements

concerning the significance of the bodily harm Spencer ultimately suffered. 

Had the elements for the battery instruction properly informed the jurors that the 

physical contact must be committed in a rude, insulting, or angry manner, they would 

have focused on the punch Gleason threw at Spencer, thereby lessening the likelihood 

they would afford the prosecutor's discussion of Spencer's head injury any consideration 

when arriving at a verdict. Without that safeguard, however, the instructional error 

intensified the impact of the prosecutor's improper statements. The combined effect of 

those errors substantially exceeded the adverse effect of either alone. See State v. 

Conaway, No. 121,848, 2021 WL 4704029, at *7 (Kan. App. 2021) (unpublished 

opinion) (instructional error on culpable mental state combined with prosecutor's
23

misstatements about criminal intent had "synergistic effect" depriving defendant of fair 

trial).

A defendant is entitled to a fair trial, and where Gleason's jury was not accurately 

instructed or appropriately advised as to the law controlling the case they were called 

upon to analyze, we cannot confidently state that fairness ideal was achieved.

Reversed and remanded.