1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,269

STATE OF KANSAS,

Appellee,

v.

THOMAS EARL BROWN JR.,

Appellant.

SYLLABUS BY THE COURT

1.

Under K.S.A. 2021 Supp. 60-261 and K.S.A. 60-2105, a trial error is reversible 

only if it prejudices a defendant's substantial rights. The party benefitting from an error 

violating a statutory right has the burden to show there is not a reasonable probability that 

the error will or did affect the outcome of the trial in light of the entire record.

2.

Appellate courts use a two-step framework to analyze claims of prosecutorial 

error. First, the appellate court considers whether the prosecutor stepped outside the wide 

latitude prosecutors are given to conduct the State's case in a manner that does not offend 

a defendant's constitutional right to a fair trial. Second, if error is found, the appellate 

court must next determine whether the error prejudiced the defendant's due process rights 

to a fair trial, using the traditional constitutional harmlessness inquiry demanded by 

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

this test, prosecutorial error is harmless if the State can show beyond a reasonable doubt 

that the error complained of will not or did not affect the outcome of the trial given the 

entire record, that is, where there is no reasonable possibility that the error contributed to 

the verdict.
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3.

The test for cumulative error is whether the errors substantially prejudiced the 

defendant and denied the defendant a fair trial given the totality of the circumstances. In 

making the assessment, an appellate court examines the errors in context, considers how 

the district court judge addressed the errors, reviews the nature and number of errors and 

whether they are connected, and weighs the strength of the evidence. If any of the errors 

being aggregated are constitutional, the constitutional harmless error test of Chapman

applies, and the party benefitting from the errors must establish beyond a reasonable 

doubt that the cumulative effect of the errors did not affect the outcome. 

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed July 29, 2022.

Affirmed.

Nicholas David, of The David Law Office LLC, of Lawrence, argued the cause and was on the 

brief for appellant. 

Jodi Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was 

with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: After a jury convicted Thomas Brown Jr. of first-degree murder 

and other crimes, he directly appeals, raising three questions: 

(1) Did the district court err in admitting a map depicting cell phone tower 

location data over his hearsay objection?
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(2) Did the prosecutor engage in reversible error by making certain statements, 

including "we know" statements, during closing argument? and 

(3) Did cumulative error deprive him of his right to a fair trial? 

We presume error on the first issue and find prosecutorial error after analysis of 

the second issue. We also consider whether those errors individually or cumulatively 

require us to reverse Brown's conviction and conclude beyond a reasonable doubt the 

errors would not have affected the jury's verdict. We thus affirm Brown's convictions.

FACTS AND PROCEDURAL BACKGROUND

Hours after her marriage to Melvin Ray, Tiffany Davenport-Ray died from 

gunshot wounds. The shooting happened in the early morning hours as the couple left a 

postwedding party that they had hosted at the Topeka Elks Club. Ray drove DavenportRay's Dodge Charger. While waiting at a stop light, Ray noticed a white SUV behind 

them. The SUV followed the Charger and later pulled alongside it. Someone in the SUV 

fired shots into the Charger. Ray hit the brakes and returned fire. The SUV lost control 

and crashed. Ray then realized Davenport-Ray had been shot and drove to the hospital. 

An autopsy revealed Davenport-Ray died of a gunshot wound to the head. 

Residents near the shooting and police officers patrolling nearby heard several

gunshots. Officers immediately drove toward the sound. En route, they learned of an 

injury accident in the direction they were heading. Nearby residents heard the collision 

and went outside after the shots stopped. They reported observing two vehicles—one that 

looked like a Charger and another that was a white SUV. One witness told the officers 

she saw two people exit and flee the SUV, running toward a nearby auto shop. Her 

husband also saw two people run toward the auto shop and an adjacent fence and a short 
4

time later saw the driver exit the vehicle and run. Another resident realized a bullet hit 

her home where she lived with her mother and sisters. 

One officer who arrived on the scene saw a black male running from the scene. 

One of the residents identified the man as the driver of the SUV. An officer apprehended 

the SUV driver, later identified as Awnterio Lowery. Officers searched Lowery and took 

him to the Law Enforcement Center. 

Other officers followed the trail of the two SUV passengers who ran toward the 

auto body shop. Along the way, they found fresh-looking latex gloves matching gloves 

found in the SUV. But they did not apprehend the two men. Over time, they developed 

leads that suggested Brown and Jermel Robbins were the two passengers. 

Some leads were developed from forensic testing of evidence found at the scene. 

The police investigation of the scene revealed bullet holes in the passenger side of the 

SUV. Officers found a gun, latex gloves, and two cell phones in the SUV—an iPhone and 

a Samsung. Eventually the police tied Brown and Lowery to the phones, in part through 

DNA testing and through data stored on the phones.

The DNA testing did not exclude Brown as a contributor to DNA found on the 

Samsung phone. It also revealed he was a contributor to DNA found on other pieces of 

evidence, including the latex glove fragments found near the auto shop. The testing of the 

gloves revealed a major contributor whose profile was consistent with Brown's. Testing 

of DNA found on parts of the car revealed major contributors whose profiles were 

consistent with Robbins and Lowery. Brown's DNA was consistent with a minor 

contribution of DNA on the vehicle's airbag. The forensic scientist who performed the 

DNA testing testified that her laboratory does not provide identity statements. In other 

words, she would not say whether the DNA sample is a match but would instead state 
5

whether test results excluded a particular individual and then provide a probability for 

those individuals not excluded. The probability figures associated with evidence tend to 

reveal a low probability that anyone other than Lowery, Robbins, or Brown could have 

been the source of DNA found on one or more items of evidence. In other words, each 

was identified as a major contributor to DNA found on evidence.

The police also obtained the phone records of the iPhone and Samsung found in 

the SUV. Investigators determined the iPhone belonged to Lowery and Brown had used 

the Samsung. They learned that Dina Sanchez bought a phone for Brown to use, but it 

was not a Samsung. But the phone number assigned to the phone Sanchez gave Brown 

was later assigned to the Samsung found in the SUV. Sanchez testified Brown paid the 

bills and had exclusive use of the phone. Investigators found two sources of DNA on the 

Samsung phone: Lowery and Brown. The phone also stored pictures of Brown and his 

family and friends. Phone company records showed about 2,000 contacts between Brown 

and people known to Brown in the time Brown used the phone and 762 contacts between 

Brown and friends or family members in the week before Davenport-Ray's homicide. 

At trial, the State presented evidence obtained from the cell phones found in the 

SUV and from carrier records, including call records, text messages, and location data. 

Several witnesses presented cell tower location data that the State used to establish where 

Brown's and Lowery's phones were at various times. Those records include a call from 

Brown to Lowery in the evening before the shooting. Lowery did not answer the call, and 

Brown then texted Lowery, "Man cuz, don't spin me, NEED you right now." Lowery 

replied, "Was good." Brown asked, "Where you at?" Lowery answered, "30 minutes."

Evidence of the carrier's records and the location of cell towers revealed communications 

between the iPhone and Samsung and that the phones were near each other for about an 

hour before Davenport-Ray's homicide. Both phones were also near the Elks Club and 

the scene of Davenport-Ray's death. 
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That same night Brown and his former long-time girlfriend texted. The former 

girlfriend said, "Good luck tonight, we'll always have some things in common." She 

rejected the State's contention she was talking about the murder and said she was talking 

about her stepchildren with Brown. She also texted Brown, "Let me know if I need to do 

anything," although she did not recall sending the text. Brown replied, "Yeah, I'm on it. I 

see those MFs don't/didn't give a fuck about my nigga because a lot of MFs knew about 

the shit. I swear I'll be on some different type of time from now on."

Other evidence also connected Brown, Robbins, and Lowery to the shooting. 

Weeks after Davenport-Ray's death, Robbins was shot and killed. At the time of his 

death, Robbins had an old bullet wound on his right outer thigh that would point to a 

bullet striking him if he had been sitting in the back passenger seat of a vehicle. Robbins

had told his sister he incurred the leg wound while sitting in the back of an SUV. 

Acting on a tip, officers questioned Tashara Yeargin, who lived near the scene of 

Davenport-Ray's shooting. Yeargin's statements to officers about events the night 

Davenport-Ray died varied. At first, she denied any knowledge. She told investigators 

she had stayed at her aunt's home that night. Later, she said that she was out with friends 

on a party bus. Eventually, when officers suggested Robbins and Brown had been in her 

home, she confirmed they arrived at her house out of breath and asked to use her phone. 

Later analysis revealed calls originated from Yeargin's phone around the time of 

Davenport-Ray's death to Brown's longtime former girlfriend and to Robbins' wife. 

Yeargin acknowledged knowing both women, but she denied calling them while Robbins 

and Brown were at her house. Shortly after making the calls, the two men left by car. 

Before leaving, Brown told Yeargin, "[D]on't tell anybody that we were here." Robbins 

gave her $40. 
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Yeargin's identification of Brown and Robbins at trial was not always clear. She 

identified one man who arrived the morning of the shooting as "Jermel," last name 

unknown, who used the nickname BG. She later responded to questions that identified 

Jermel as Jermel Robbins. She identified a second man who came in with Robbins as TJ 

and identified him as Brown. 

Yeargin stated she did not want to be involved, was afraid of participating, and 

even moved from her home because she was scared. She specifically sought a new home 

with cameras to discourage anyone from "mess[ing] with [her]." Defense counsel on 

cross elicited testimony that Yeargin was mad at the police and believed she was being 

held on charges as a pretext when the police really wanted her to testify against Brown. 

Yeargin testified that police introduced Robbins' and Brown's names into their 

conversations. But she later testified that their use of Robbins' and Brown's names 

prompted her to tell the truth. Defense counsel tried to introduce doubt about her 

identification of Brown by noting Yeargin's prior testimony that she knew other members 

of Brown's family and they all looked alike. Yet Yeargin testified that she recognized 

Brown as the person at her house. Yeargin acknowledged she testified differently in a 

prior proceeding and that she was under the influence of drugs when Brown and Robbins 

came to her house.

Brown's former girlfriend testified she spoke with Brown the weekend of the 

wedding. She said she had to call Brown on someone else's phone on the Saturday before 

Davenport-Ray's death because he lost his. She testified she did not recall talking to 

Brown during the time he allegedly used Yeargin's phone. 

Robbins' wife recalled talking by phone with her husband in the early morning 

hours, but she denied picking him up at Yeargin's house. On cross, she testified she could 

not recall the specific day she received the middle-of-the-night call from Robbins. 
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Evidence at trial covered Brown's activities after the shooting. The prosecutor used 

this evidence to show he fled and to otherwise suggest the circumstances evidenced his 

guilt. One theme related to him abandoning a job he had held for years. He reported to 

work hours after the shooting and again the next day. After that, he never returned. 

Brown's employer eventually terminated him for job abandonment. Law enforcement 

located and arrested Brown in Missouri. At the time of his arrest, police seized a phone 

from Brown. That phone showed Brown had forwarded to his former girlfriend a 

newspaper article reporting on Davenport-Ray's murder. The two discussed Ray's 

handling of his wife's murder. The phone also included an exchange with Brown's uncle 

in which Brown said things looked bad and he needed a good attorney. 

The jury found Brown guilty of murder in the first degree, attempted murder in the 

first degree, conspiracy to commit murder in the first degree, criminal solicitation to 

commit murder in the first degree, aggravated assault, criminal possession of a weapon, 

and criminal discharge of a firearm. At sentencing, Brown received a hard 25 life 

sentence for first-degree murder, another 653-month sentence for the attempted firstdegree murder to run consecutive to the life sentence, and concurrent terms for the 

remaining counts. 

Brown appeals, and this court has jurisdiction to consider his arguments. See 

K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 

2021 Supp. 22-3601); K.S.A. 2021 Supp. 22-3601(b)(3) (direct appeals to Supreme Court 

allowed for life sentence crimes).
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ANALYSIS

1. No reversible error was committed in admitting the map of cell phone transmissions.

Brown complains of the admission of State's Exhibits 397 and 398 over his 

hearsay objection. These exhibits are maps created by a police detective that show cell 

towers and the locations of the cell phones found in the SUV at certain times the night of 

the shooting. State's Exhibit 397 reflected data associated with Lowery's iPhone, and 

Exhibit 398 related to the Samsung phone. Brown's trial attorney conducted a voir dire of 

the detective regarding these exhibits. The detective explained he made the maps from 

data he pulled "from the National Domestic Communications Assistance Center 

[NDCAC] that's run by the United States Department of Justice from their secure 

website. I download their stored data that's provided to them from the cell phone 

providers." He also explained the providers were required by law to report the data to the 

Department of Justice, and the secure website was available to law enforcement to assist 

in investigations. The detective stated he then imported the data into software to create 

the maps. The maps show locations of various cell towers in Topeka and the radius each 

tower covers. He added pins to the maps to show where phones associated with Brown or 

Lowery pinged a tower's sector near the Rays' travels.

Following the voir dire, Brown's attorney objected: "These are hearsay, Your 

Honor. We don't have any foundation for how these were created[,] and they were not 

created by him." In the ensuing discussion, neither the attorneys nor the judge discussed 

whether the evidence was hearsay and, if so, whether a hearsay exception applied. Given 

that record, the State argues Brown thus failed to preserve an objection based on hearsay 

and that he mainly argued foundation at trial and now attempts to focus on hearsay. See 

State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) ("[A] defendant may not object 

to the introduction of evidence on one ground at trial, and then assert a different objection 
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on appeal."). But Brown's counsel did make a hearsay objection during trial, and thus 

preserved the objection. See K.S.A. 60-404 (prohibiting setting aside a verdict when a 

party fails to timely object to evidence).

Even so, we do not reach the merits of Brown's arguments for two reasons.

First, only State's Exhibit 398 appears in the record on appeal. Brown's failure to 

include Exhibit 397 in the record places any error based on its admission beyond this 

court's review. See Supreme Court Rule 3.01(b) (2022 Kan. S. Ct. R. at 20); see also 

State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (concluding this court could not 

determine whether trial court erred when appellant failed to include photograph 

complained of in the record on appeal). We therefore limit our consideration to Exhibit 

398. 

Second, as to State's Exhibit 398, we elect to presume error and consider whether 

the error demands reversing Brown's convictions. We do so because the trial record 

related to Brown's objection is less than clear, making it difficult for us or the parties to 

analyze. The lack of discussion about the hearsay objection provides no clue as to 

whether the district court judge determined no hearsay was presented or whether the 

evidence contained hearsay subject to one of the hearsay exceptions provided in K.S.A. 

2021 Supp. 60-460. In an apparent attempt to overcome this lack of clarity, Brown's 

appellate counsel suggests "it appears to Brown the district court ruled the exhibits fell 

within the business records exception contained in K.S.A. 60-460(m)." The State argues 

the evidence was not hearsay, and it contends that Brown is really talking about a lack of 

foundation.

In addition to little discussion about whether the evidence was hearsay, the parties 

have only briefly talked about hearsay exceptions. It may be the judge did rely on K.S.A. 
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2021 Supp. 60-460(m). We decline to engage in that speculation, however, especially

because other exceptions might apply, and each would require a different analysis that the 

parties do not address. E.g., K.S.A. 2021 Supp. 60-460(o) (content of official record) or 

(bb) (commercial lists and the like).

While the State argues we should not consider the arguments because Brown did 

not develop the record, we cannot ignore that the State was the proponent of the evidence 

and had the burden at trial of explaining the basis for admission. The lack of record here 

falls on everyone—prosecution, defense, and the court. Given the record and the narrow 

briefing of the issue, we decide not to fully explore the basis for the objection but will 

instead assume a hearsay error—that is, a statutory violation. 

Assuming error does not end our analysis. We also need to consider whether the 

error is reversible. Under K.S.A. 2021 Supp. 60-261 and K.S.A. 60-2105 a trial error is 

reversible only if it prejudices a defendant's substantial rights. Here, because Brown 

contends the court violated his statutory right to the exclusion of certain hearsay 

evidence, the so-called statutory harmless error test applies. Under that test, the State, as 

the party benefitting from the assumed error, has the burden to show there is not "a 

reasonable probability that the error will or did affect the outcome of the trial in light of 

the entire record." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). The State 

easily meets that burden by pointing us to the large volume of cumulative evidence that 

came into the record of this case without objection. 

The cumulative evidence most analogous to the information on State's Exhibit 398

is the Samsung phone's cell provider's records found in State's Exhibit 321. The State

introduced Exhibit 321 through the testimony of a Senior Trial Specialist in the Law 

Enforcement Relations Group at T-Mobile Metro. Exhibit 321 included records revealing

the date, time, and duration of phone calls from the Samsung phone, whether each call 
was incoming or outgoing, and the cell site location at the beginning and end of each call. 

The witness explained the information, telling the jury that cell towers are usually divided 

into three sectors. Location information includes which sector the phone used with the 

historical information providing a general range from the tower within the sector, but not 

a specific location for the phone. Typically, a phone looks for the strongest, closest 

signal. He also explained that the range of a tower varies from 1 to 3 miles in an area like 

Topeka. 

Exhibit 321 includes a video file containing maps showing the location of towers 

and the times certain phone calls pinged those towers. These maps differ from Exhibit 

398 to the extent that they do not include cell tower numbers. But jurors could determine 

those numbers by comparing the call information on the maps to an Excel file in Exhibit 

321, which includes call information and towers pinged. Our review of the maps and 

Excel files confirms the tower numbers shown on Exhibit 398 track the towers' addresses, 

latitudes, and longitudes reflected in Exhibit 321. 

Several witnesses orally explained the data and drew conclusions about the 

locations of the cell phones at various times that night. Again, Brown made no objection 

to this testimony, which duplicates aspects of the map he now objects to on appeal. 

In sum, State's Exhibit 398 and related testimony are cumulative of other 

testimony and exhibits found elsewhere in the record—testimony and exhibits admitted 

without objection and not challenged in this appeal. We, therefore, conclude there is no 

reasonable probability the admission of Exhibit 398 affected the outcome of Brown's trial 

given the entire record. See K.S.A. 2021 Supp 60-261; Ward, 292 Kan. at 569. Any error

in the admission of Exhibit 398 was thus harmless. 

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2. Prosecutor's errors during closing argument were harmless.

Brown next points to the prosecutor's statements during closing argument as 

prosecutorial error. Brown calls out the prosecutor's use of the phrase "we know" as she 

argued seven points supporting Brown's guilt. Brown also argues the State erred in 

asserting, "He [Brown] is responsible." We will first discuss the legal framework for 

appellate review of prosecutorial error claims, then the caselaw discussing prosecutors'

use of "we know" and similar phrases, and finally the specific arguments on which 

Brown focuses. 

2.1. We follow a two-step legal framework for prosecutorial error claims.

We use a two-step framework to analyze claims of prosecutorial error. 

First, we consider whether the prosecutor stepped outside the wide latitude 

prosecutors are given to conduct the State's case in a manner that does not offend a 

defendant's constitutional right to a fair trial. State v. Sherman, 305 Kan. 88, 109, 

378 P.3d 1060 (2016); State v. King, 308 Kan. 16, 30, 417 P.3d 1073 (2018). This wide 

latitude extends to statements made during the prosecutor's opening statement and closing 

argument. We do not consider any statement in isolation but look to the statement's 

context to determine whether error occurred. State v. Timley, 311 Kan. 944, 949-50, 469 

P.3d 54 (2020). 

Second, "[i]f 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, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]."

Sherman, 305 Kan. at 109. Under this test, "prosecutorial error is harmless if the State can 

demonstrate 'beyond a reasonable doubt that the error complained of will not or did not 
14

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 (quoting 

Ward, 292 Kan. 541, Syl. ¶ 6).

2.2. Use of "we know" is often outside the prosecutor's wide latitude.

Turning to the first step, our caselaw often recognizes a prosecutor has the latitude 

during closing argument to highlight the evidence presented and to draw reasonable 

inferences from that evidence. Timley, 311 Kan. at 950. In doing so, a prosecutor may 

argue the evidence proves a defendant's guilt. But our caselaw does not give a prosecutor 

latitude to state the prosecutor's opinion about the ultimate issue of the defendant's guilt. 

King, 308 Kan. at 31. 

In keeping with this limitation, we have warned prosecutors to not use words that 

suggest an argument reflects the prosecutor's view. A review of our recent cases reveals 

phrases such as "I think," "I believe," and "we know" often reflect the prosecutor's views 

and thus may constitute error. The use of those phrases is not always error, however. 

Context matters. See State v. Charles, 304 Kan. 158, 173-75, 372 P.3d 1109 (2016). 

Timing also matters to the extent that we have refrained from labeling an impermissible 

statement an error if we had never given notice to prosecutors that they should not use a 

particular phrase. See King, 308 Kan. at 33-34. This approach reflects the rule that 

prosecutors "must be evaluated based on the state of the law at the time of" the trial. 

Sherman, 305 Kan. at 117. Despite these considerations, in King, we held the prosecutor 

committed error by repeatedly using the phrase "we know" during closing arguments. 

308 Kan. at 34. 

Brown cites King, 308 Kan. at 33-36, to support his argument the prosecutor 

committed error. In King, we relied on State v. Corbett, 281 Kan. 294, 315-16, 130 P.3d 

1179 (2006), in holding the prosecutor erred by repeatedly using the phrase "we know."
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We acknowledged in King that Corbett recognized a prosecutor discussing 

uncontroverted evidence could appropriately use "we know." But Corbett also gave 

notice that a prosecutor commits error by using "we know" when discussing controverted 

evidence because doing so improperly expresses the prosecutor's opinion. See King, 308 

Kan. at 34-35. We recently reaffirmed use of "we know" statements is prosecutorial error 

when the phrase precedes a discussion of controverted evidence in State v. AlfaroValleda, 314 Kan. 526, 538-39, 502 P.3d 66 (2022) (discussing King and State v. 

Douglas, 313 Kan. 704, 490 P.3d 34 [2021]). In sum, these cases hold that, "[i]f a 

prosecutor uses the words 'we know' when drawing inferences for the jury rather than 

recounting uncontroverted evidence, the prosecutor errs even if drawing a reasonable 

inference." 314 Kan. 526, Syl. ¶ 2.

In King, three "we know" statements arose in the context of the prosecutor 

discussing controverted evidence and asking the jury to draw inferences from that 

evidence. In the first statement, the prosecutor said, "[W]e know based on what you can 

see in all the videos and the still photos that have been taken that those Easton batting 

gloves [referencing gloves found in a car on the defendant's driveway] are used in every 

robbery." 308 Kan. at 34. This statement required inferring the gloves found in the car 

were the same batting gloves described by witnesses or shown in security surveillance 

videos from various locations where robberies had occurred. In the second statement, the 

prosecutor said "we know" that the defendant was at a particular robbery scene because a 

victim's blood was found on the defendant's boot recovered from the defendant's 

bedroom. This statement drew inferences that the defendant wore the boot while 

committing a crime and that it was during the commission of that crime that a victim's 

blood transferred to the defendant's shoe. And in the final "we know" statement, the 

prosecutor asked the jury to infer the defendant's involvement in the alleged crimes 

because "[w]e know that they shared in money" based on coin wrappers found in each 

coconspirator's house and evidence that robbers took coins from various locations. 
16

We held each of these "we know" statements constituted error. 308 Kan. at 34. In 

conclusion, we held that "drawing inferences for the jury, not stating uncontroverted 

evidence . . . [was] error, even if the inferences being drawn were reasonable." King, 308 

Kan. at 34.

Comparing the prosecutor's arguments about Brown's guilt to those in King, 

Brown argues the prosecutor committed multiple errors. 

2.3. Here, the prosecutor erred by repeatedly saying, "We know."

Before we discuss each of the prosecutor's "we know" statements, we address the 

State's argument about timing and lack of notice. It argues we should not find error 

because we decided King after this case went to trial and the prosecutor thus did not have 

notice that use of "we know" constituted error. We reject this argument because, while 

Brown's trial was before our decision in King, in King we held that Corbett had given 

prosecutor's notice not to use the words "we know." King, 308 Kan. at 34. This holding 

contrasts with our discussion in King about the prosecutor's lack of notice not to use the

phrase "I think." 308 Kan. at 33-34 (holding "I think" comments "are impermissible 

conveyances of the prosecutor's opinion to the jury. . . [but] we decline to find the 

comments were error in this case because when the prosecutor made these statements at 

King's trial, we had not yet placed prosecutors on notice that such comments were 

improper").

Here, the prosecutor had notice. Corbett predates Brown's trial by 10 years, and it 

made clear "we know" was properly used only if it "does not indicate [the prosecutor's]

personal opinion[] but demonstrates that the evidence was uncontroverted." Corbett, 281 

Kan. at 315. And we applied the holding from Corbett to find prosecutorial error in King,

and that trial was before Brown's. 308 Kan. at 34. The State does not provide any reason 
17

for a different result here. And we see none. We reaffirm our holding in Corbett and the 

holding in King, that prosecutors had notice not to use the phrase "we know" to discuss 

contested evidence. We now apply that rule. 

Here, each of the "we know" statements about which Brown complains related to 

controverted matters and required the jury draw one or more inferences from the 

evidence. These statements included: 

(1) "The first reason we know that the defendant is guilty is the phone evidence in 

this case" and "we know that the Samsung was in the area of the Elks Club, just like the 

iPhone was in the area of the Elks Club." 

(2) "[R]eason No. 2 that we know the defendant is guilty is the DNA evidence."

(3) "What we know is common sense. The defendant is in the front passenger seat 

beginning his firing and keeping his firing as the SUV passes the Dodge Charger. Reason 

No. 4 that the defendant is guilty is simply common sense." 

(4) "[T]he defendant, as you know is charged with a murder," and "[t]he reason we 

know that those guys acted together is because Awnterio Lowery, Jermal Robbins, both 

of their DNA was in the SUV," and the "defendant's [DNA] is close by."

(5) "Reason No. 6 . . . to show that the defendant is guilty, is simply that we know 

the defendant left. He ran." 

(6) "[W]e know the defendant acted intentionally because he reeled off enough 

rounds."

We agree with Brown's contention that the prosecutor erred in each instance. Each 

statement related to a contested point, and each required the jury to draw inferences. For 

example, the first point about the phone evidence required inferring: (1) the Samsung 
18

phone was Brown's despite being linked to another person's account, (2) Brown 

physically possessed the phone the night of Davenport-Ray's death, (3) the Samsung's 

location within the cell tower's sector was near the Elks Club rather that somewhere else

within the sector, and (4) the iPhone associated with Lowery was also located near the 

Elks Club rather than somewhere else within the sector covered by the tower. 

Similarly, when considering the other statements, the jury had to rely on 

controverted evidence to make inferences from the evidence to conclude Brown fired 

shots from the front passenger seat, he repeatedly fired shots and that action demonstrated 

his intent, he conspired with Lowery and Robbins, and he left his job and relocated out of 

guilt.

Given the controverted nature of each reason listed by the prosecutor and the

inferences the jury needed to make to reach the conclusions the prosecutor promoted, her 

repeated use of "we know" was prosecutorial error. See Alfaro-Valleda, 314 Kan. at 539 

(reiterating the general rule that an inference, even a reasonable one, captures the 

prosecutor's thought process or opinion and is not an uncontroverted fact).

2.4. The prosecutor erred in another argument.

Brown also argues the prosecutor erred in the final sentences of her closing 

argument and in making similar statements throughout the argument. At the end of her 

argument, she said: "[T]hese crimes took place because the defendant fired into a vehicle 

that contained three people. He is responsible. Those seven reasons show that he is 

responsible for every single charge pending against him." Brown makes two arguments. 

He first contends the evidence does not support the contention that Brown fired 

into the Charger because DNA testing excluded him as a contributor to the DNA mixture 
19

found on the gun. While it is true no DNA tied Brown to the gun, the evidence left room 

for the jury to draw a reasonable inference he shot the gun. Circumstantial evidence 

suggested Brown was in the car, and injuries suffered by Lowery and Robbins suggest 

Lowery drove and Robbins sat in the rear seat. Ray's testimony and other evidence 

suggested shots were fired from the front passenger seat. And evidence supports an 

inference Brown wore gloves the night of the shooting, which could explain why he did 

not transfer DNA to the gun. Considering the entire record, the prosecutor's comments 

were a fair inference drawn from the evidence presented at trial. 

In his second argument, Brown contends the prosecutor's "[h]e is responsible"

statement violates this court's holding in State v. Peppers, 294 Kan. 377, 399-400, 276 

P.3d 148 (2012). There, while acknowledging a prosecutor may argue evidence shows an 

accused's guilt, we held the prosecutor should avoid saying things like the defendant is 

guilty "[b]ecause he did it" without directing the jury back to the evidence. Otherwise, the 

failure to include directional language, such as "the evidence shows the defendant's 

guilt," renders the statements an impermissible expression of the prosecutor's opinion. 

294 Kan. at 400. The prosecutor's statements at the end of closing argument that "he is 

responsible" did not use directional language to point the jury back to the evidence. As

Brown argues, the prosecutor thus offered improper expressions of her opinion that 

constitute error under Peppers.

2.5. Prosecutorial error was individually and cumulatively harmless.

Brown argues the prosecutor's errors are individually prejudicial to the point they 

require a new trial and cumulatively they do even more harm to his right to a fair trial. 

We agree that the prosecutor's repeated use of the prohibited "we know" phrase is 

troubling. But the repetition is just one aspect of our consideration. When determining if 

prosecutorial error causes prejudice, "[a]ppellate courts must simply consider any and all 
20

alleged indicators of prejudice, as argued by the parties, and then determine whether the 

State has met its burden—i.e., shown that there is no reasonable possibility that the error 

contributed to the verdict." Sherman, 305 Kan. at 111. The strength of the evidence may 

inform this inquiry, but it is not our primary focus, for prejudice may be found even in 

strong cases. 305 Kan. at 111 (citing United State v. Socony-Vacuum Oil Co., 310 U.S. 

150, 240, 60 S. Ct. 811, 84 L. Ed. 129 [1940]).

Here, the State relies on the jury instructions; the context of the statements and, 

more specifically, that the prosecutor surrounded the statements with a discussion of the 

evidence; the reasonableness of the inferences the prosecutor asked the jury to draw; and 

the overall strength of the evidence. Before we discuss the evidence and the record, we 

will address the argument about the district court's instructions to the jury before closing 

argument. 

Appellate courts often weigh these instructions when considering whether any 

prosecutorial error is harmless. In doing so, we presume the jurors follow the instructions. 

See, e.g., Alfaro-Valleda, 314 Kan. at 545-46. District courts commonly instruct the jury 

that "[s]tatements, arguments, and remarks of counsel are intended to help you in 

understanding the evidence and in applying the law, but they are not evidence. If any 

statements are made that are not supported by evidence, they should be disregarded."

Through these words, jurors know prosecutors are advocates, and appellate courts can 

weigh that in determining whether a prosecutor's error is harmless. See Timley, 311 Kan. 

at 951. Here, the district court gave that instruction. It also reminded the jury that it was 

for the jurors "to determine the weight and credit to be given the testimony of each 

witness." We weigh these instructions in considering whether the prosecutor's errors 

affected the verdict. 
21

We next turn to the State's argument about context. We agree that each time the 

prosecutor used the words "we know" she did so in the context of discussing evidence 

that supported the conclusion. For example, after commenting that one reason "we know 

that the defendant is guilty is the phone evidence in this case" and "we know that the 

Samsung was in the area of the Elks Club, just like the iPhone was in the area of the Elks 

Club," the prosecutor thoroughly reviewed the cell phone evidence. In doing so, she first 

detailed the evidence supporting the inferences that Brown used the Samsung phone 

found in the SUV in the weeks and hours before Davenport-Ray's death. This was mostly

evidence of the many texts, calls, and pictures found on the Samsung to and about 

Brown's friends and family. The prosecutor also highlighted evidence supporting the 

second inference that the Samsung had been near the Elks Club and the location of the 

shooting. In doing so, she acknowledged differences in testimony of the State's witnesses. 

For example, she referred to the testimony of the Senior Trial Specialist from T-Mobile 

Metro describing the sector covered by each tower as ranging from 1 to 3 miles, not just 

the 1-mile radius the police detective had drawn on his maps. She explained reasons the 

jury could still infer that both the Samsung and the iPhone had been near where the 

newlyweds celebrated and the scene of Davenport-Ray's shooting.

Likewise, the prosecutor followed the "we know" statement relating to DNA 

evidence by explaining the places investigators found the evidence and reviewing the 

scientific evidence supporting the inference that Brown contributed to the DNA samples. 

And, again, the prosecutor was candid, commenting, "There was some question as to why 

we didn't have any of the defendant's DNA in the car. The defendant could not be 

excluded from the front driver's air bag. The numbers are not big, the numbers are small."

This context informed the jury it had to weigh the evidence. 

In each other instance of a "we know" argument, the prosecutor discussed the 

evidence that supported the inference, which often built on the inferences related to the 
22

phone and DNA evidence. In general, the inferences were reasonable, and most were 

compelling. And each time, the prosecutor discussed evidence that weighed against the 

State's case, such as the lack of DNA evidence definitively putting Brown in the SUV. 

The context of this discussion underscored for the jury that it needed to consider how, 

and if, the evidence supported each of the seven reasons the prosecutor listed. 

As to the reasonableness of the inferences and the strength of the evidence factors 

argued by the State, the inferences were reasonable and the evidence was sufficient to 

show beyond a reasonable doubt that Brown was in contact with Lowery before the 

homicide in this case (both through text messages and phone calls made before the 

homicide as well as cell phone location data showing that their phones were near each 

other just before and at the time of the shooting). Lowery's on-scene apprehension, the 

eyewitness' identification of him as the SUV's driver, and the discovery of Brown's phone 

in the SUV made the cell phone evidence connecting him and Brown that evening 

compelling. And Robbins' DNA taken from the interior of the SUV strongly supports a 

conclusion that Robbins was present. Yeargin's testimony and phone calls made from her 

phone to Brown's former girlfriend and Robbins' wife on Yeargin's phone provide 

evidence connecting Brown to Robbins at the time of the shooting. And Brown's DNA on 

the latex gloves found on the path of the two occupants who fled from the car also

provides convincing evidence of Brown's presence. Circumstantial evidence establishes

that Robbins sat in the backseat of the SUV, allowing for reasonable inferences that 

Brown was in the passenger seat of the car when the multiple shots were fired. Finally, as 

to the last inference, the prosecutor reviewed the evidence establishing that Brown 

abandoned a job he held for years within days of the shooting without notifying his 

employer. From the totality of the evidence a jury could reasonably infer he had fled out 

of guilt. 
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Nothing suggests to us that the jurors would have reached a different verdict had 

the prosecutor more appropriately couched the seven reasons for finding Brown guilty in 

terms of statements like "the evidence shows." In summary, we have considered the 

strength of the evidence against Brown, the context of each "we know" statement as part 

of the discussion of the evidence the jury should weigh, and the court's instruction 

charging the jurors with the duty to weigh the evidence and consider counsel's arguments 

as just that, not as evidence. Those factors considered in context of the entire record

convince us the State met its burden of establishing beyond a reasonable doubt there is no 

reasonable possibility the errors individually or cumulatively contributed to the verdict. 

3. Cumulative error does not require reversal of Brown's convictions.

Finally, Brown argues cumulative error requires us to reverse his convictions.

We have assumed error in the admission of Exhibit 398 and identified error in the 

prosecutor's closing argument. Our standard when considering cumulative error 

arguments is well settled: 

"The test for cumulative error is whether the errors substantially prejudiced the 

defendant and denied the defendant a fair trial given the totality of the circumstances. In 

making the assessment, an appellate court examines the errors in context, considers how 

the district court judge addressed the errors, reviews the nature and number of errors and 

whether they are connected, and weighs the strength of the evidence. . . . If any of the 

errors being aggregated are constitutional, the constitutional harmless error test of 

Chapman applies, and the party benefitting from the errors must establish beyond a 

reasonable doubt that the cumulative effect of the errors did not affect the outcome. . . . 

Where, as here, the State benefitted from the errors, it has the burden of establishing the 

errors were harmless." State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020).

In applying this standard, we note that State's Exhibit 398 and the first asserted 

"we know" error during closing argument both relate to evidence from phone records. 
24

There is thus some interrelationship among the errors. But the errors occurred on separate 

days of the trial, with enough time between them that the jury was unlikely to associate 

one with the other. We also discount for the cumulative error analysis any error in the 

admission of exhibit 398 because the data underlying the exhibit was also found in other 

exhibits not challenged in this appeal. While the prosecutor erred in saying "we know,"

the evidence allowed a reasonable and convincing inference that Brown possessed the 

phone at certain locations significant to this case. And, given the jury instructions, the 

jurors knew it was their role to consider that evidence to see if it supported the inferences

and if the inferences supported convicting Brown. So, while there is an interrelation 

among these two errors, they do not accumulate to cause substantial prejudice or an 

unfair trial. 

As we have discussed, we do not find the prosecutor's errors to be cumulatively 

prejudicial. We see no other basis for concluding cumulative error supports reversal here.

We thus hold that cumulative error doctrine does not require reversing Brown's 

convictions.

CONCLUSION

While we find error, we have concluded the State met its burden of establishing 

beyond a reasonable doubt the errors did not affect the jury's verdict. We therefore affirm 

Brown's convictions and his sentences. 

Affirmed.

WILSON, J., not participating.