1

NOT DESIGNATED FOR PUBLICATION

No. 122,654

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

REAGAN KWAMBANDO BOOTO,

Appellant.

MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed January 21, 2022. 

Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant. 

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.

PER CURIAM: Reagan Booto appeals his convictions and sentence for two counts 

of aggravated sexual battery based on separate incidents involving students from Fort 

Hays State University. He claims several trial errors including: (1) judicial comment 

error, (2) error in admission of evidence under K.S.A. 2019 Supp. 60-455(d), (3) error in 

allowing testimony related to a witness' credibility, (4) prosecutorial error, (5) cumulative 

error, and (6) the use of his criminal history to determine his sentence violated his right to 

a jury trial under section 5 of the Kansas Constitution Bill of Rights. 
2

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Booto with one count of aggravated sexual battery of H.D. and 

one count of aggravated sexual battery of A.C. 

H.D. describes her assault by a stranger behind a bar

In October 2017, H.D. went to a bar in Hays, Kansas with her boyfriend and other 

friends. Because H.D. was under 21 years old, she could not go inside the bar. Instead, 

she stayed outside and talked to some acquaintances. H.D. consumed alcohol earlier that 

evening, between four and six shots, but "not to a point to in any way interact with [her] 

ability to make decisions." At some point, she had to use the restroom and decided to go 

back behind the bar. 

Alone, H.D. went to a dark area next to the alley and unbuckled her belt. A man 

with a slight accent, whom she did not recognize approached her, told her she was 

attractive and "started to get physical" with her. She told the man to "stop" and that her 

boyfriend was in the vicinity. The man ignored H.D.'s directive and forcefully pushed his 

lips against hers. She tried to push him away, but he restrained her by holding his arm on 

her neck. The man used his other hand to touch H.D. on her vagina and her buttocks and 

inquired "'Don't you want to be with a football player?'" H.D. ordered the man to stop 

"[a]lmost continuously" throughout the encounter. As she fought to get away, the man 

took out his phone and attempted to take a photograph. H.D. finally succeeded in pushing 

the man away and ran back to the front of the bar. Sobbing and distraught, H.D. located 

her friend, Rohlf, who went inside the bar to find her boyfriend, Tomanek. H.D. told the 

two men about the assault. 

Tomanek and Rohlf searched the area in an effort to find the man. H.D. quickly 

spotted him and pointed him out. Rohlf recognized the man as Reagan Booto, a classmate 
3

of his at Fort Hays State University. Tomanek and Rohlf confronted Booto and asked him 

to confess but Booto remained silent. A few days later, H.D. reported the assault to law 

enforcement. 

A.C. describes Booto assaulting her

A.C. met Booto while bowling with some friends in August 2015. Booto flirted 

"pretty heavily" with A.C. and said things that made her uncomfortable. She had never 

dated anyone before. Booto put his hand on her leg, and she removed it. He put his hand 

back where it was, then ran it up her leg, into her shorts, and touched her vagina. A.C. 

quickly left with a friend to get away from Booto. 

A.C. later encountered Booto two other times while out at bars. On one occasion, 

Booto asked her to dance, and she agreed because she was with her friends. But Booto 

"instantly" grabbed her hips and started "grinding" on her. A.C. was uncomfortable so 

she retreated to the ladies' room, waited for a few minutes, and then returned to the dance 

floor where Booto resumed dancing "on" her. A.C. returned to the ladies' room and back 

to the dance floor two more times. When she emerged the third time, Booto was standing 

right outside the bathroom door, which scared her. On a separate occasion, A.C. thought 

she saw Booto taking a picture of her and her boyfriend at a bar, which made A.C. 

uncomfortable. 

Following a symphony rehearsal in April 2018, A.C. and her friend, Walters, 

celebrated. After "a couple too many drinks" the two decided to head to a bar. At closing 

time, they ran into Booto and his friend outside and the four decided to walk to a house 

party together. Booto put his arm around A.C. en route. They set out as a group but A.C. 

and Booto got separated from the others along the way. A.C. expressed a desire to go 

back and find Walters but Booto insisted there was no need. He put his hands on A.C.'s 

shoulders and kissed her. She "didn't know how to respond to that," so she "kind of shut 
4

down." Booto put his arms around her then slid his hand down the top of her shirt and 

unbuttoned her pants to touch her vagina on the outside of her underwear. A.C. told him 

"I [don't] want this," that she wanted to go back to Walters and then attempted to walk 

away. Scared, mad, and confused, A.C. started yelling for a friend who lived nearby then 

took off running and fell three or four times. Eventually, she found a hiding spot behind 

her nearby friend's house. She sent several text messages to her friend letting her know 

she was outside and pleading for her help because a "Guy won't let me go." A.C.'s friend 

eventually found her and allowed her to stay the night.

The next morning, A.C. contacted law enforcement. An officer found a shirt that 

A.C. had been wearing around her waist on the ground where the incident occurred. 

Corporal David Vilaysing spoke with Booto that day. Booto told the officer that he and 

A.C. "made out" by the parking lot after the bars closed and that she "surrendered herself 

to him" along their walk to the party. Booto admitted that A.C. repeatedly insisted that 

she needed to leave, but he pulled her in closer to him instead. When asked about 

reaching down her pants, Booto said, "I wouldn't have [gone] there, if she didn't allow me 

to go there." Booto admitted that A.C. ran away to her friend's house and that he touched 

her previously at the bowling alley. He denied following A.C. to the bathroom at the bar 

or taking photographs of her.

A.P.'s recounts an assault by Booto 

In October 2013, A.P. and Booto were both students at Fort Hays University. They 

had jobs in the same department and lived in the same dorm building. She had given him 

her phone number in hopes that he would then leave her alone and stop "bugging [her] 

for it." Booto ultimately contacted A.P., and she agreed to meet him at the entrance to 

their dorm building "to be nice." The two took a walk around campus during which 

Booto pried into her sexual experiences. A.P. told him she was a virgin and was not ready 

for that to change. Booto told A.P. that he was also a virgin. The two returned to the dorm 
5

and Booto followed A.P. up to her room. When she unlocked the door, Booto went inside 

and sat down on the bed. A.P. sat down next to him. 

Booto kissed and touched A.P. But she had never been kissed before so her "brain 

shut down" and she froze. Booto removed A.P.'s shirt and bra, touched her breasts and 

then removed her pants and underwear. A.P. did not verbalize her opposition to his 

touches. Booto briefly inserted his penis inside her vagina, but she pushed him off and 

ordered him to "stop and leave." Booto repeatedly told A.P. not to call the police. She 

assured him she would not, but that he still needed to leave. Booto eventually left and 

A.P. reported the incident to her residence assistant followed by law enforcement. 

A.P. went to the hospital and underwent a sexual assault exam. The examining 

nurse detected a tear in A.P.'s vagina that was consistent with a sexual assault. 

Meanwhile, Officer Tom Meiers spoke with Booto and Booto expressed his desire to be 

in a relationship with A.P. because he believed he loved her. Booto recounted how they 

went to A.P.'s dorm room where he kissed and touched her, removed her clothing, and 

had sexual intercourse with her. 

Booto's late arrival to trial

At the time of trial, Booto lived several hours away from Hays. A snowstorm and 

a series of automobile accidents caused the closure of a portion of I-70 highway which, in 

turn, delayed Booto's arrival at the courthouse on the first day of trial. The judge advised 

the jury pool that, because of Booto's tardiness, the start of the proceedings must be 

delayed.

After the jury pool left the courtroom, Booto's attorney moved for a continuance 

and a new pool of jurors on the grounds that the judge's statements to the pool that 
6

Booto's delay caused them an inconvenience would deprive Booto of a fair trial. The 

court denied counsel's request.

The case proceeded to trial, and the jury ultimately found Booto guilty of both 

counts of aggravated sexual battery with which he was charged.

Booto timely appealed and asks us to resolve whether several alleged trial errors 

compromised his right to a fair trial. 

ANALYSIS

WAS BOOTO DENIED A FAIR TRIAL BECAUSE OF JUDICIAL COMMENT ERROR?

Judicial comment error occurs when erroneous judicial comments, which are not 

jury instructions or legal rulings, are uttered in front of a jury. State v. Boothby, 310 Kan. 

619, 626, 448 P.3d 416 (2019). Appellate courts have unlimited review over judicial 

misconduct claims and review them in light of the particular facts and circumstances 

surrounding the allegation. When a defendant's right to a fair trial is alleged to have been 

violated, judicial comment error is reviewable on appeal despite the lack of a

contemporaneous objection at trial. Judicial comment error is reviewed under the 

constitutional harmlessness test. Thus, the party benefitting from the error carries the 

burden to show the lack of prejudice. Boothby, 310 Kan. at 624-29 (applying 

Chapman/Ward constitutional harmlessness test to judicial comment error). 

A judge should endeavor to conduct the trial in an atmosphere of impartiality and, 

in accordance therewith, must refrain from remarks or conduct that may adversely impact 

a litigant. He or she should be the exemplar of dignity and impartiality, should exercise 

restraint over personal conduct and statements, avoid personal predilections, and control

their personal emotions. The judge should not permit any person in the courtroom to 
7

embroil him or her in conflict and should avoid behavior that tends to demean the 

proceedings or undermines his or her authority. When it becomes necessary during the 

trial to comment upon the conduct of witnesses, spectators, counsel, or others, or upon 

the testimony, those comments should be made in a firm, dignified, and restrained 

manner, avoiding repartee. Finally, the judge's comments and rulings should be limited to 

what is reasonably required for the orderly progress of the trial and should be free of 

disparagement of persons or issues. State v. Hayden, 281 Kan. 112, 125, 130 P.3d 24 

(2006).

An appellate court will look for conduct that manifests bias, prejudice, or 

partiality, or otherwise significantly undermines the fairness or reliability of the 

proceedings. See State v. Kahler, 307 Kan. 374, 384, 410 P.3d 105 (2018), cert. granted

139 S. Ct. 1318 (2019); Canon 2, Rule 2.2 Comment [3] (2021 Kan. S. Ct. R. 487) (goodfaith errors of fact or law do not violate Kansas Code of Judicial Conduct); and Canon 2, 

Rule 2.3 Comment [1] (2021 Kan. S. Ct. R. 488) ("judge who manifests bias or prejudice 

in a proceeding impairs the fairness of the proceeding and brings the judiciary into 

disrepute"). If a proper and reasonable interpretation will render the judge's remark 

unobjectionable, the remark cannot be found to be prejudicial. State v. Miller, 308 Kan. 

1119, 1154, 427 P.3d 907 (2018).

Booto claims that three specific comments by the trial judge constitute error: (1) 

the comment to the jury that the trial's late start was Booto's fault; (2) an order for defense 

counsel to refer to A.P.'s sexual assault examination as a "rape kit"; and (3) questions the 

judge personally posed to A.C. about her musical interest. Each will be addressed in turn.

The trial's late start

On the morning of the first day of trial, prior to voir dire, the trial judge made the 

following remarks to the jury pool:
8

"We were going to start this morning promptly. As you can see counsel are 

present, as is the court, the court reporter, other court staff. Unfortunately, we're missing 

a rather important person that's supposed to be part of this trial, and that's the defendant. 

The defendant called this morning, he's on his way here from the eastern part of the state.

"As some of you may be aware, there was a snowstorm last night and this 

morning. There have been several accidents on I-70. I checked the Topeka Capital 

Journal this morning, because I subscribe, and at 7:30 they had a report that there was no 

traffic westbound because of a series of automobile accidents. Apparently, the defendant 

is trapped in that storm and those accidents.

"He's on his way, but we can't start and we can't have a jury trial without his 

presence. So we're going to have to delay the commencement of the trial.

"That's a tremendous inconvenience to you, and the court understands that jury 

service in and of itself is a sacrifice of your time and an inconvenience. So I would 

apologize, except I'm here on time, but I will apologize for the defendant who is not here 

and is going to require you to come back here later this morning or right around noon. 

We'll talk about that, how we are going to conduct this. We have witnesses subpoenaed, 

and the case is ready except for the presence of the defendant.

. . . .

"Ladies and gentlemen, I need to tell you this: You are not to hold any animosity 

against the defendant because quite frankly he didn't plan well. Even I knew this was 

going to be a snowstorm in the eastern part of the state last night, because I check the 

weather pretty regular and force of habit. Maybe some of you are the same way. So I 

knew there was that possibility, and I don't think he planned very well.

"But don't hold that against him. Don't let that in any way affect your judgment 

or how you participate in the case. 

"I will remind you of this—this is also a Constitutional right—every defendant in 

a criminal case is presumed innocent.—And the presumption of innocence remains with 
9

the defendant throughout the trial. It never shifts. The defendant never has a burden. The 

defendant doesn’t have to present any evidence. The burden is always with the State. The 

State must prove the defendant guilty beyond a reasonable doubt, and the burden always 

remains with the State.

"So don't shift that burden. Don't say, 'Well, the defendant's running us late 

already, and I'm going to hold that against him.' Believe you me, I will deal with the 

defendant, and there will be a consequence for the fact that he was late this morning. 

That's my job, not yours as a potential juror." 

Booto contends the judge's remarks that Booto's lack of planning delayed the start 

of the trial caused the presentation of inadmissible facts to the jury. He asserts that no 

amount of planning would have altered the condition of I-70 and, to the extent his 

decision making fell short of ideal, the judge should not have made disparaging 

comments to the jury concerning the same. It is Booto's position that the reason for the 

delay was wholly irrelevant to the charges against him and the judge's comments on the 

matter resulted in prejudice to him.

The State counters that while it was not incumbent upon the judge to provide the 

jury with an explanation for the delay, any error that occurred was harmless. As support 

for this assertion, the State highlights the court's admonishment of the jury to not allow 

this incident to deter it from its obligation to consider Booto's case in a fair and impartial 

manner.

The judge's comments were improper and constitute error. As stated above, a trial 

judge "should endeavor to conduct the trial in an atmosphere of impartiality and, 

therefore, should refrain from remarks or conduct that may injure a party. . . . The judge's 

comments and rulings should be limited to what is reasonably required for the orderly 

progress of the trial and should refrain from unnecessary disparagement of persons or 

issues." Miller, 308 Kan. at 1154-55. Here, the judge took the rather unconventional,
10

unnecessary, and disparaging step of informing the jury pool that Booto caused them a 

"tremendous inconvenience" because "he didn't plan well" and there would be "a 

consequence for the fact that he was late this morning." The remarks were unnecessary. 

The jury pool simply needed to know that the trial would be delayed or that Booto was 

delayed because of the snowstorm. 

Yet we are persuaded that the error was harmless beyond a reasonable doubt. The 

comments about Booto's poor planning were isolated and uttered at the very beginning of 

the proceedings before jury selection even occurred. Additionally, the judge immediately 

informed the prospective jurors that they were not to "hold that against him. Don't let that 

in any way affect your judgement or how you participate in the case. . . . Don't say, 'Well, 

the defendant's running us late already, and I'm going to hold that against him.'" He also

instructed them that the "State must prove the defendant guilty beyond a reasonable 

doubt, and the burden always remains with the State." Finally, at the close of trial, the 

judge properly instructed the jurors to decide the case only on the evidence admitted. We 

presume the jury followed the instructions given. See Boothby, 310 Kan. at 629. Thus, we 

find that while the challenged remarks were improper, they were attenuated by the 

immediate admonishment, voir dire, and the jury instructions. 

Comments regarding the "rape kit"

During her testimony, A.P. referred to her sexual assault examination as a "rape 

kit." On cross-examination, defense counsel sought to ask A.P. about her "SANE/SART"

exam, but she did not know what that was. She replied, "They just told me it was a rape 

kit test." The court told defense counsel, "She didn't know it as SANE/SART, just refer to 

it as the rape kit as she's familiar with it."

Booto contends it is unclear why the judge told defense counsel to refer to the 

examination as a "rape kit." He asserts there was no legal justification for the judge's 
11

order, and that the use of such a term was highly prejudicial to Booto's defense against 

charges for aggravated sexual battery. 

Again, a judge's comments and rulings should be limited to what is reasonably 

required for the orderly progress of the trial. Hayden, 281 Kan. at 125. If a proper and 

reasonable interpretation will render the judge's remark unobjectionable, the remark 

cannot be found to be prejudicial. Miller, 308 Kan. at 1154. Only in those cases in which

the judge's comments are overtly biased or pervasive, will a reviewing court find 

prejudicial error. Hayden, 281 Kan. at 124-26; State v. Mayes, 33 Kan. App. 2d 9, 14, 98 

P.3d 294 (2004). 

Error did not occur here. The record is clear why the judge instructed defense 

counsel to refer to the exam as a "rape kit." A.P. was unfamiliar with the phrase 

"SANE/SART" exam and responded that she only knew the medical procedure 

performed upon her as a "rape kit." Thus, the witness offered the term, not the judge. The 

judge issued a directive to "just refer to it as the rape kit" to avoid further confusion for 

the witness. The comment did not disparage or result in prejudice to the defense. 

The judge's questions to A.C. 

After both parties questioned A.C., she was excused, and began to exit the witness 

stand. At that point, the judge inquired which instrument she played and whether she still 

played regularly: 

"THE COURT: Thank you, Ms. []. What instrument do you play?

"THE WITNESS: I am percussion. I like mallet instruments. I really like the marimba.

"THE COURT: Still play?

"THE WITNESS: No, I don't have a marimba where I'm at now. I wish I did." 
12

Booto argues the judge questioned A.C. about her musical interest merely "as an 

attempt to elicit sympathy" for her. He contends the questions were irrelevant and 

demonstrated a bias toward A.C. 

A trial judge should not question witnesses with "the slightest suggestion of 

partiality or bias" and should "not assume the role of an advocate." Kahler, 307 Kan. at 

391. Further, a judge should not give any indication how he or she regards the testimony 

or credibility of witnesses. State v. Kemble, 291 Kan. 109, 114, 238 P.3d 251 (2010). But

"[a]cts of common courtesy should be encouraged, not discouraged." State v. Richard, 

252 Kan. 872, 878, 850 P.2d 844 (1993) (judge handing a tissue to a crying witness was 

not error).

We believe the judge's questions were unnecessary, but also find there is no 

indication the judge displayed partiality or bias. Rather, the judge simply engaged in 

casual conversation with the witness. We caution that such casual conversation should be 

avoided, however, because at times it may give jurors the mistaken impression that the 

judge found the witness to be credible. Such a risk is not at issue here. That A.C. is a 

musician and had been preparing for an upcoming symphony performance the day of the 

assault were issues addressed during direct and cross-examination by both parties. A.C. 

and her friend, Walters, likewise both testified about the matter. Thus, it cannot be said 

the judge assumed the role of an advocate. The questions did not advance or otherwise 

bolster the State's theory of the case. We decline to find that these brief and innocuous 

questions amounted to judicial comment error. 

DID THE TRIAL COURT ERR BY ADMITTING A.P.'S TESTIMONY THROUGH K.S.A. 2019

SUPP. 60-455(D), AS EVIDENCE OF BOOTO'S PRIOR ACTS OF SEXUAL MISCONDUCT?

The State filed a pretrial motion seeking admission of A.P.'s testimony under 

K.S.A. 2019 Supp. 60-455(d) as evidence of Booto's prior acts of sexual misconduct. 
13

Counsel for Booto objected on the grounds that the facts were irrelevant to this case. The 

court conducted an evidentiary hearing and ultimately granted the State's motion. 

Specifically, it found: 

"There was some initial concern with regard to some of the evidence with regard to her 

not saying 'Stop'; however, the other evidence was that he asked the cops not to be called, 

which I think—and based upon the pursuit, plus those comments, I think that the factors 

that I have to follow in State v. Bowen[, 299 Kan. 339, 350, 323 P.3d 853 (2014)] that are 

set forth in—they are cited in [United] States v. Benally[, 500 F.3d 1085, 1090-91 (10th 

Cir. 2007)]—how clear the prior act has been proved, and how probative the evidence is 

of the material fact is admitted to prove, and how seriously disputed the material fact is, 

and whether there's any less prejudicial evidence and then the other factors for potential 

prejudice; I've considered all of those.

"I'm going to find that from the evidence that's been presented, in accordance 

with the law that's set forth in the motion, in my own review of the law, and in particular 

State v. Prine, [297 Kan. 460, Syl. ¶ 3, 303 P.3d 662 (2013)] I'm going to grant the State's 

motion to use the prior bad acts in this matter." 

At trial, Booto renewed his objection "for relevance. This has to do with the 

incident covered under 60-455. I'm renewing my objection at this time for relevance."

Booto argues that the trial court should not have admitted A.P.'s testimony under 

K.S.A. 2019 Supp. 60-455(d) because A.P. described an occurrence of consensual sex, 

not "sexual misconduct." He contends evidence that he and A.P. engaged in consensual 

sex once was not relevant to prove any material fact during his trial for aggravated sexual 

battery.

When a defendant is accused of a sex offense, "evidence of the defendant's 

commission of another act or offense of sexual misconduct is admissible and may be 

considered for its bearing on any matter to which it is relevant and probative" including 
14

propensity. K.S.A. 2020 Supp. 60-455(d). See State v. Gray, 311 Kan. 164, 171, 459 P.3d 

165 (2020). Sexual misconduct includes sexual contact without consent. K.S.A. 2020 

Supp. 60-455(g)(6),(7). Before admitting propensity evidence, however, the district court 

must still consider whether the potential prejudice outweighs the probative value of the 

evidence. See State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019).

Contrary to Booto's assertions, A.P. did not testify that she and Booto engaged in 

consensual sex. Rather, she described the incident as an "attempted rape" during the 

pretrial motion hearing. Notably, the State filed charges against Booto in 2014 as a result 

of the incident with A.P., and Booto pleaded no contest to three misdemeanor batteries 

for his conduct. At trial, A.P. testified she told Booto she was not ready to lose her 

virginity and described herself as "frozen" throughout the acts. She also testified she 

never consented to sexual intercourse with Booto. Tellingly, Booto repeatedly asked A.P. 

not to call the polic(e prior to leaving her dorm room that day. She ignored his pleas and 

immediately reported the incident to her residence assistant and then to law enforcement. 

She also went to the hospital and underwent a sexual assault exam. Booto's contention 

that A.P. described a voluntary sexual encounter between them lacks merit. 

DID THE TRIAL COURT ERR IN ALLOWING OFFICER HEIMAN TO TESTIFY AS TO WHY HE 

PRESENTED BOOTO'S CASE FOR CHARGES?

During direct examination, the prosecutor asked Officer Heiman why he felt it 

necessary to recommend charges in A.C.'s case. The officer testified as follows, over the 

defense's "relevance" and "hearsay" objections: 

"I believed that based on what I was told by other law enforcement officers in reference 

to their interviews with Mr. Booto, as well as the report I took from A.C., added to the 

evidence we were able to collect, that there was validity to her story and that she . . . I 

believe that the events of that night occurred in a way that were conducive of what A.C.
15

had told me, that the contact of sexual nature between her and Mr. Booto was 

nonconsensual, and she had been overcome by force by him holding her to the ground." 

Booto argues the trial court erred in allowing Officer Heiman to testify in this 

fashion because it amounted to him vouching for A.C.'s credibility. He directs us to State 

v. Elnicki, 279 Kan. 47, Syl. ¶ 3, 105 P.3d 1222 (2005) as support for his position. Booto 

also contends the error cannot be classified as harmless because substantial evidence 

showed that A.C. consented to sexual activity with Booto. 

In Kansas, a witness may not express an opinion on the credibility of another

witness. Any determination of the truthfulness or veracity of a witness lies solely with the

jury. The trial court has no discretion whether to allow a witness to express such an

opinion, the testimony must be disallowed as a matter of law. We exercise de novo 

review over a trial court's alleged erroneous admission of evidence when that purported

error turns on a question of law. Elnicki, 279 Kan. 47, Syl. ¶¶ 1-3. 

The State argues Booto failed to properly preserve this issue for appeal because he 

objected on different grounds at trial.

K.S.A. 60-404 generally precludes an appellate court from reviewing an 

evidentiary challenge absent a timely and specific objection made on the record. State v. 

Dupree, 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016). A party may 

not object at trial to the admission of evidence on one ground and then advance a 

different objection on appeal. State v. Robinson, 306 Kan. 1012, 1028-29, 399 P.3d 194 

(2017).

Given those restrictions, we find this issue is not properly before us. At trial Booto 

objected on the grounds of relevance and hearsay, neither of which provides the 

foundation for his argument on appeal. His attempt to lay blame at the feet of the trial 
16

judge for having instructed the parties to make only brief objections is unavailing. Such a 

requirement does not relieve the defense attorney from their obligation to tailor their 

objection to the specific ground on which they are relying for relief. We decline to 

undertake an analysis of this issue.

DID THE STATE COMMIT PROSECUTORIAL ERROR DURING CLOSING ARGUMENT?

The State adopted a theme here that Booto selected victims who were "young,"

"beautiful," and "vulnerable." The prosecutor first mentioned the theory during opening 

statements and revisited it during closing arguments.

Booto contends that adopting the theme amounted to prosecutorial error because it 

encouraged the jury to return an emotion-based verdict. 

Appellate courts use a two-step process to evaluate claims of prosecutorial error: 

error nd prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). To 

determine whether prosecutorial error has occurred, a reviewing court must decide 

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

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

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

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

rights to a fair trial. In evaluating prejudice, the court applies the constitutional 

harmlessness inquiry articulated in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 

824, 17 L. Ed. 2d 705 (1967). In other words, prosecutorial error is harmless if the State 

can demonstrate "beyond a reasonable doubt that the error complained of will not or did 

not affect the outcome of the trial in light of the entire record, i.e., where there is no 

reasonable possibility that the error contributed to the verdict." Sherman, 305 Kan. at 

109. 
17

A prosecutor has wide latitude in crafting arguments and drawing reasonable

inferences from the evidence but is prohibited from commenting on facts outside the

evidence. The State's argument must accurately reflect the evidence and cannot be uttered

with the express purpose of inflaming the passions or prejudices of the jury or to divert

the jury from its duty to decide the case based on the evidence and the controlling law.

State v. Stimec, 297 Kan. 126, 128-29, 298 P.3d 354 (2013). For example, a prosecutor's 

reference to a victim as a family "treasure" was improper when it had no purpose other 

than to inflame the passions of the jurors in State v. Nesbitt, 308 Kan. 45, 56, 417 P.3d 

1058 (2018). But in State v. Duong, 292 Kan. 824, 833-34, 257 P.3d 309 (2011), a 

prosecutor merely stated the obvious by arguing that a "little boy" who was taken

"advantage of" in a bathroom was "vulnerable" when the prosecutor's comments were 

closely tied to the admitted evidence and specifically designed to address opportunity and 

motive.

Here, the prosecutor relied on the evidence presented at trial to explain his 

theme—young, beautiful, and vulnerable. In his opening statement, the prosecutor stated,

"You will hear from [H.D.] that she was young when this incident occurred. . . . You will 

hear from her that she was told by the defendant that she's pretty." "You will . . . hear 

from [A.P.] . . . She'll tell you that he . . . made comments about how pretty she was. She 

will tell you that she was young and not sexually active at the time of this incident, and 

she had no idea what to do when thrust into a sexually-charged situation." "You will get 

to hear from [A.C.] as well who will tell you . . . that she was young, she was told that 

she was beautiful, and she was vulnerable after an evening of celebration."

The prosecutor repeated much of the same when reviewing the evidence during 

closing arguments. "First we heard from Detective Bunger. . . . He told us that she was 

under the age of 21. She was young. He told us [H.D.] remembered being told she was a 

pretty blond by the defendant. She was beautiful. And Detective Bunger told us he 

believed the position [H.D.] was in was a position which made her vulnerable." "We then 
18

heard from [A.P.] herself. She told us that she was a college student at the time, she was 

young. . . . You will recall how [A.P.] told us she was not sexually active and had never 

been in a sexual situation before and didn't know what to do. She was vulnerable.

The prosecutor's description of the complaining witnesses as young, beautiful, and 

vulnerable is not objectionable standing alone, as a simple rhetorical tool. But its 

repetitive and pervasive use gives us pause as it ventures precariously close to the 

inflammatory conduct that prosecutors are expressly directed to avoid. The repetition of 

the phrase was not incidental and highlighted those factors in a way that intimated that 

the other evidence adduced at trial was less significant. However, because the theme 

stemmed from the evidence presented at trial, and because there was substantial evidence 

elicited to sustain Booto's convictions for aggravated sexual battery, we decline to find 

that the prosecutor's erroneous conduct fell outside the wide latitude afforded the State in 

presenting its case.

DID CUMULATIVE ERROR OCCUR IN BOOTO'S CASE?

Cumulative trial errors, when considered together, may require reversal of a

defendant's conviction when the totality of the circumstances establish that he or she 

suffered substantial prejudice as a result of those errors and so their right to a fair trial 

was not honored. In assessing their cumulative effect, appellate courts examine alleged

errors in the context of the entire record, considering also how the trial judge dealt with 

the errors as they arose; the nature and number of errors and their interrelationship, if 

any; and the overall strength of the evidence. State v. Hirsh, 310 Kan. 321, 345-46, 446 

P.3d 472 (2019). A single error cannot support reversal under the cumulative error 

doctrine. State v. Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019).

Booto's case contained but one error. Thus, he cannot prevail on a claim of 

cumulative error. 
19

DID THE USE OF BOOTO'S CRIMINAL HISTORY TO DETERMINE HIS SENTENCE VIOLATE 

HIS JURY TRIAL RIGHT UNDER SECTION 5 OF THE KANSAS CONSTITUTION BILL OF

RIGHTS?

Booto next contends that the use of his prior convictions to increase his sentence 

without proving the convictions to a jury beyond a reasonable doubt violated his rights 

under section 5 of the Kansas Constitution Bill of Rights. 

Our Supreme Court recently rejected a similar challenge in State v. Albano, 313

Kan. 638, Syl. ¶ 4, 487 P.3d 750 (2021). The court held "Section 5 of the Kansas 

Constitution Bill of Rights does not guarantee defendants the right to have a jury 

detemine the existence of sentence-enhancing prior convictions under the revised Kansas 

Sentencing Guidelines Act." With no indication our Supreme Court is departing from its 

position, we are duty-bound to follow this precedent. See State v. Rodriguez, 305 Kan. 

1139, 1144, 390 P.3d 903 (2017). Booto's sentence does not violate section 5 of the 

Kansas Constitution Bill of Rights. 

Affirmed.