1 IN THE SUPREME COURT OF THE STATE OF KANS AS

N o . 114,417

S TATE OF K ANSAS , Appellee
,

v

.
D ANG S EAN , Appellant.

SYLLABUS BY THE COUR T

1. When a pretrial motion to suppress has been denied, K.S.A. 60

- 404 requires that the moving party still object to the introduction of the evidence at trial in order to preserve the issue for appeal. This is known as the contemporaneous

- objection rule. Specifically, the statute requires a timely
, on

- the

- rec ord objection to the admission of the evidence that clearly states the specific ground of objection

.

2. In this case, w e decline to use exceptions to the contemporaneous

- objection rule to bypass the clear statutory guidelines provided in K.S.A. 60

- 404.

3

. When analyzing a claim of prosecutorial error, an appellate court employs a two

step process. First, the appellate court determines whether error occurred. If there was error, the second step is to determine whether prejudice resulted. Under the first st ep, the appellate court analyzes whether the prosecutor's acts fell outside the wide latitude afforded prosecutors. At the second stage of the analysis, the appellate court focuses on whether the error prejudiced the defendant's due process rights to a fai r trial. If a due2

process violation occurred, the appellate court assesses prejudice by applying the
constitutional harmless error standard.

4. Under the constitutional harmless error standard, prosecutorial error is harmless if the State proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where ther e is no reasonable possibility that the error contributed to the verdict.

5. Generally appellate courts do not require a contemporaneous objection to preserve issues of prosecutorial error for appellate review. However, in accordance with the plain langua ge of K.S.A. 60

- 404, evidentiary claims

— including questions posed by a prosecutor and responses to those questions during trial

— must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal. But a ppellate
courts will rev iew a prosecutor's comments made during voir dire, opening statement, or closing argument on the basis of prosecutorial error even without a timely objection, although the presence or absence of an objection may figure into the analysis of the alleged erro r.

6. The Fourteenth Amendment affords a criminal defendant the right to employ
counsel as an extension of h is or her right to a fair trial. Accordingly, it is improper for the prosecutor, by questions or comments, to draw incriminating inferences from a defendant's exercise of this right.3

7. When the State asks a witness questions regarding the defendant's retention of an attorney, those questions contravene the protections explicitly enumerated in State v.
Dixon , 279 Kan. 563, 112 P.3d 883 (20 10 )

.

8. In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes

ex plaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.

9. A prosecutor acts outside of that wide latitude afforded when the prosecutor refers
to the defendant as a "liar" and states in closing argument that the truth shows beyond a reasonable doubt the defendant is guilty.

10. A prosecutor does not act outside of the wide latitude afforded if he or she merely
observes that some reasonable inference about witness credibility may be drawn from
evidence introduced at trial

.

11. Arguments not briefed on appeal are deemed waived and abandoned.

12. Unlike a failure to object to evidence, a failure to object to an instruction does not bar appellate review of the instruction. It does, however, raise the persuasive bar the4

complaining party must hurdle on appeal; the appellate court must be convinced the instruction is clearly erroneous.

13. When a party's appellate arguments regarding a limiting instructio n are actually
veiled attempts to reach un preserved evidentiary issues, court s do not consider the arguments.

14. Appellate courts review a trial court's determination that hearsay is admissible under a statutory exception for an abuse of discretion. Judi cial action constitutes an abuse of discretion if it is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; is based on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or is based on an error of fact,
i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

15.
K.S.A. 2016 Supp. 60

- 460 bars admission of evidence of a statement that is made other than by a witness while testifying at the hearing, offered to prove the truth of the
matter stated
, unless it falls into one of the exceptions outlined in the statute. One of these exceptions is the declarations against interest exception, which provides that a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so f

ar rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule
, or social disapproval in the community that a reasonable person in the declarant's position would not have made the

sta tement unless the person believed it to be true.5

16. When statements are not offered to prove the truth of the matter stated, they are not hearsay.

17. When determining whether an alleged violation of statutory evidentiary limitations was error, an appellate court applies the standards set out in K.S.A. 2016 Supp. 60

- 261
and K.S.A. 60

- 2105. These standards provide that the court will consider whether a

re asonable probability exists that the error affected the outcome of the trial in light of the record as a whole. The burden of persuasion lies with the party benefitting from the
introduction of the evidence.

18.
Under K.S.A. 22

- 3423(1)(c), a trial court m ay declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution.

19.
K.S.A. 22

- 3423(1)(c) creates a two

- step proce ss. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must de cide if the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial

.6

20. An appellate court reviews a trial court's decision regarding a motion for mistrial in two parts: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?

21. When a party argues that the cumulative impact of alleged errors is so great th at they result in an unfair trial, an appellate court aggregates all the errors and, even if those errors individually would be considered harmless, analyzes whether their cumulative effect is so great that they collectively cannot be determined to be harm less. In undertaking such an analysis, an appellate court reviews the entire record and exercises unlimited review. One error is insufficient to support reversal under the cumulative error
doctrine.

Appeal from Sedgwick District C ourt; B ENJAMIN L. B URGESS , judge . Opinion filed August 4 , 20 17. Affirmed.

Richard Ney , of Ney & Adams, of Wichita, argued the cause and w as on the briefs for appellant.

Lance J. Gillett , assistant district attorney, argued the cause, and Marc Benne t t , district attorney,
and Derek Schmidt , attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

M ALONE , J.: Dang Sean appeals his convictions of first

- degree premeditated murder and kidnapping. This is a companion case to State v. J ones , No. 113,409, an appeal from convictions arising out of the same series of events presented in this case.7

Sean raises eight issues in his appeal, alleging (1) a denial of his F ifth A mendment right to counsel; (2) multiple claims of prosecutorial error ; (3) error in the admission of bad

act s evidence; (4) error in the admission of certain hearsay statements; (5) error in the denial of his motion for mistrial; (6) a violation of his Confrontation Clause rights; (7) error in the admission of sympathy evid ence; and (8) cumulative error compelling reversal. We reject Sean's claims and affirm his convictions and sentence.

F ACTS AND P ROCEDURAL B ACKGROUND

On January 16, 2013, Shawn Lindsey's body was discovered by a passerby off a
road near the H umane S ociety in Wichita, Kansas. The body had ligature marks on the wrist, and there was evidence someone had dragged the body to the spot. The forensic pathologist who performed an autopsy testified that the cause of death was methamphetamine toxicity and the manner of death was homicide.

Sean was charged with first

- degree premeditated murder, felony murder
, and aggravated kidnapping of Lindsey. Justin Jones (Justin) and Jason Jones (Jason) were also charged in connection with Lindsey's murder, and Phomphikak Phoutha laksa (Air), Aaron Stricker, and Anthony Garza were charged in connection with his kidnapping. The
de fendants were tried separately.

The State's case against Sean was based largely on the eyewitness testimony of Garza, an acquaintance of both Sean and Lin dsey. The State secured Garza's testimony by agreeing to amend his charges down from murder and aggravated kidnapping to a single count of kidnapping. Will Coleman, an employee of Sean, corroborated much of Garza's testimony. Through these witnesses and ot hers, the State presented evidence to establish the following facts.8

Sean and Lindsey opened an auto shop together in 2012 but cut business ties by the end of the year. In January 2013, Lindsey was in debt to Sean for using the company
credit card and acc ount without permission and for stealing parts from the shop. The State introduced evidence that the debt had been accruing for some time, and that by the end of 2012, Sean had grown impatient with Lindsey, demanding repayment and threatening via text mess age to "repo" and "crack sum fuckn heads" if Lindsey did not comply. In November 2012, Sean texted Lindsey and demanded Lindsey turn over his truck and come to the shop. He also texted Lindsey to "get zip tie ready."

On Friday, January 11, 2013, Garza cal led Sean to tell him he was coming to the shop. Sean asked Garza to pick up Lindsey on his way there. Garza went to Lindsey's house around 4:30 p.m., accompanied by his girlfriend's 17

- year

- old nephew Reuben
Carrion
, Jr. , and his friend
, Stricker. The men arrived at Lindsey's house right as Lindsey and his girlfriend, Chelsea Bernhard, were returning from an errand. The men talked inside the house while Bernhard took a phone call in the other room. When Bernhard finished her phone call, L indsey and Garza said they were going to the shop and that she should come by, too. The men left for the sh op and Bernhard followed later.

Carrion dropped Garza, Lindsey, and Stricker off at the shop and left. Sean and his employees, Air, Justin, Jason, a nd Coleman, were inside. Lindsey and Sean talked about Lindsey's debt until the conversation became heated. Sean began beating Lindsey, knocking him to the ground. Sean then demanded that Lindsey get his truck. At 6:18

p

. m

. , Coleman texted Lindsey's ex

- gir lfriend that Lindsey had just been "beat down."

After the beating, Lindsey, Stricker, and Jason left to look for Lindsey's truck. The State posited that Sean wanted the truck as satisfaction or collateral for the debt. While they were looking for the truc k, Garza received a phone call from Justin's phone and was9

tol d that Sean had gone home for aw hile but wanted Lindsey zip

- tied by the time he got back to the shop. The men did not find Lindsey's truck and returned to the shop.

Bernhard arrived at the shop but could not get inside. Lindsey met her at the door and told her through the glass that he could not leave and that s he should go get his friend Neeley . Bernhard left to find Neeley.

Sean, carrying a duffel bag, returned to the shop. Shortly thereafter, Sean instructed Garza to zip

- tie Lindsey. Garza zip

- tied Lindsey's arms to a chair behind his back and zip

- tied his feet. At this point, Coleman left the shop after asking Sean for permission to do so.

Sometime after Coleman left, Sean handed Jason a bag of methamphetamine and Justin looked for a heat source. Sean slapped Lindsey's arm and injected him with a large syringe full of the methamphetamine while Justin held the arm in place. Sean asked Lindsey if it burned
, and Lindsey replied
, "Yea h, it does burn. Please stop, please stop, please stop. You don't have to do this, I'm going to pay you."

Once Sean finished injecting Lindsey, Air brought in an electric fence
, which Jason and Justin wrapped around Lindsey and then hooked up to a car bat tery starter

. Sean pulled an airsoft pellet gun and a firearm from his bag and began shooting Lindsey's shins with the airsoft gun. Sean then loaded the firearm and pointed it at Lindsey, taunting him. Sean also shot at the battery starter with the airsoft gun in an effort to turn on the electric fence. During this time, Lindsey started shaking and bouncing his feet up and down, which Garza took to be a sign that the methamphetamine was affecting him

.

After Sean failed to turn the battery charger on with t he airsoft gun pellets, someone removed the electric fence from around Lindsey. Lindsey was shaking violently10

by that point and going stiff, and Garza heard someone say that "he ' s about to go." Lindsey asked Garza to cut the zip ties because they were hurt ing him. Sean told Garza to leave the wrist ties but to cut the ties from Lindsey's ankles so they could take him to the hospital. Jason and Sean then loaded Lindsey into a black Chevy Silverado. Garza left the shop shortly thereafter at Sean's direction.

A security camera in the H umane S ociety parking lot showed the driveway to the area where Lindsey's body was discovered days later. Just after 10:47 p.m., the camera recorded headlights in the area. A dark

- colored vehicle with a bed left shortly thereafte r. The State posited that this was the same black Silverado that left the auto shop with Jason, Sean, and Lindsey and that it was traveling in that area to dump Lindsey's body.

Noal Reynolds, an employee of the Pleasures nightclub, testified for the defen se. He stated that Sean and Air were at Pleasures on January 11, 2013, from 11:30 p.m. until
about 2 a.m. Pleasures is located at 4849 South West Street in Wichita, Kansas.

Around 1:30 a.m. on January 12, 2013, Jason texted Garza not to say anything to
hi s girlfriend. Jason then called Garza to say they were coming to pick him up. Coleman returned to the shop around 2 a.m. Soon thereafter Jason and Justin showed up with Garza and were met by Sean and Coleman. The five men smoked methamphetamine together
, a nd Sean pressed Garza for Stricker's "information." Sean told Garza that if
Garza or Stricker "said anything" they were dead.

Bernhard spent the next few days trying to track down Lindsey. She texted Sean to ask about Lindsey. Sean replied that "he might be working it off in Mexico" and that "it [ was ] out of [ his ] hands." On January 13, 2013, Bernhard and Lindsey's father reported
Li ndsey missing.11

Lindsey's body was recovered on January 16, 2013, near the area where the security camera recorded headlights and a dark

- colored vehicle with a bed on the night of January 11. Detectives interviewed Sean later that evening. Sean told detectives that on January 11, 2013, Lindsey arrived at his shop around 6 p.m. with two "Mexicans" named
Paloen and Fernando. Sean claimed that the two "Mexicans" looked around for Lindsey's truck. According to Sean, the three men left after about 15 minutes, and he went to his sister's house around 6:15 or 6:20. Sean said that he also went to Pleasures nightclub that night.

Search w arrants were executed at the shop on January 16, January 18, and January 20. From these searches, the police recovered methamphetamine and paraphernalia, a duffel bag, two airsoft pistols, two airsoft BBs, a bag of additional BBs, a needleless syringe, z ip ties, and an electric fence.

During trial, defense counsel focused heavily on the fact that Garza's initial statement to the police was different from his second and third interviews conducted after reaching an agreement with the State. In that first statement, Garza claimed to have much less involvement than he later admitted. Defense counsel's theory of the case appeared to be that Garza was one of the "Mexicans" who arrived at the shop with Lindsey, that Garza killed Lindsey because of a debt Lindse y owed Garza, and that Garza was pinning
the murder on Sean in e xchange for a lighter sentence.

A jury convicted Sean of premeditated first

- degree murder and kidnapping but acquitted Sean of felony murder. The jury did not unanimously agree on a hard 50

s entence ; so the district court imposed a hard 25 sentence for the murder conviction and a
consecutive 77

- month sentence for the kidnapping conviction.12

Sean timely appealed. This court has jurisdiction under K.S.A. 2016 Supp. 22

- 3601(b)(3) and (4) (off

- gri d crime; maximum sentence of life imprisonment imposed).

A NALYSIS

Sean presents a number of issues. We address each in turn.

Suppression of Interrogation Statements

Sean first argues the trial court should have suppressed statements he made during a police interrogation because they were given in violation of his Fifth Amendment right to counsel. We do not reach the merits of this argument because we conclude that Sea n failed to preserve this issue for appeal.

When a pretrial motion to suppress has been denied, K.S.A. 60

- 404 requires that
the moving party still object to the introduction of the evidence at trial in order to preserve the issue for appeal. State v. Hous ton , 289 Kan. 252, 270, 213 P.3d 728 (2009)

. This is known as " the contemporaneous

- objection rule and is codified in K.S.A. 60

- 404

. [Citation omitted.] Specifically, the statute requires a n on

- the

- record ' objection to the
evidence timely interposed and so stated as to make clear the specific ground of objection. '" 289 Kan. at 270.

In State v. Dukes , 290 Kan. 485, 488, 231 P.3d 558 (2010), we noted our recent and consistent refusal to review evidentiary issues that were not preserved even when
those issues involved fundamental rights. In that discussion, we expressed our concern that, otherwise, " [t] he contemporaneous objection rule ' case

- law exceptions would soon swallow the general statutory rule. ' " 290 Kan. at 488 (citing State v. Richmond , 289 Kan. 419, 429

- 30, 212 P.3d 585 [2009]).13

Here, in a pretrial motion, defense counsel argued that the trial court should suppress all statements Sean made during a police interrogation because the statements were involuntary and were not made pursuant to a knowing a nd intentional waiver of rights. After an evidentiary hearing, the trial court denied the motion, finding that Sean had voluntarily reinitiated contact with the police after requesting an attorney and thereby waived his right to counsel.

At trial, Sean's statements were introduced via the testimony of investigating Detective Timothy Relph. Defense counsel did not object to Relph's testimony.

However, Sean argues that this issue was preserved for appeal because an objection made earlier in the trial served to give the trial court notice that defense counsel meant to renew his challenge to the admission of Sean's statements. However, the record
makes it clear that this was a State v. Elnicki , 279 Kan. 47, 105 P.3d 1222 (2005), objection to the State's desire to play a videotape of the interrogation, not an objection to the admission of the statements made during the interrogation. During a break in the trial, the prosecutor informed the judge and defense counsel that the State intended to play a
redacted vide o of Sean's interrogation for the jury. In response, defense counsel said:

"I object to the transcript ever being shown to the jury. I object to this tape being called or played, where they pull out what they want to pull out, put in what's clearly inadmi ssible
under Elnicki , and expect me over the lunch hour to review all of their exhibits to make sure they are admissible or not. I have better things to prepare for than exhibits being dumped on me in the middle of the trial."

The prosecutor responded tha t it would "just put Detective Relph on" and would

not " even bother with the video." The judge replied "if the proposal now is to just call Detective Relph, have him testify as to the interview, that's fine. The tape

- recorded14

conversation will not be allow ed at this point. Anything further we need to take up before we bring the jury in?" To this, defense counsel replied
, "No, Your Honor." Later that afternoon, the prosecutor called Relph who testified about Sean's statements during the interrogation. Defens e counsel did not object to this testimony.

Defense counsel's statements at trial were clearly in reference to the admission of the videotape without his having had an opportunity to review the tape for Elnicki violations. That the objection was in reference to Elnicki and nothing else was underscored by defense counsel's failure to object to the State's offer to instead introduce Sean's statement's via Detective Relph's testimony. Because Sean did not renew his objection to the admission of these statements during trial, he did not pres erve this issue
for our review.

We find it concerning that appellate defense counsel argued so strongly that the objection at trial amounted to a specific objection to the admissi on of Detective Relph's testimony. Whether this argument evolved from a misunderstanding of the record or an unclear assessment of the law, we do not know. In case appellate counsel's arguments stem from some obscurity surrounding the contemporaneous objec tion rule, we take this opportunity to reiterate an important principle. When a party moves to suppress evidence and the court denies the motion, the party must timely and specifically renew this objection when the opposing party moves to admit the evidence during trial. Failure to do so results in a failure to preserve the issue for appeal.

Sean contends that, even if this issue was not preserved for appeal, review is necessary to serve the ends of justice and prevent deni al of a fundamental right. See State

v. Barnes , 293 Kan. 240, 255 , 262 P.3d 297 (2011) (explaining that e xceptions may be granted if the argument presents a question of law arising from proved or admitted facts that is determinative of the case; considerat ion of the issue is necessary to serve the ends15

of justice or prevent the denial of fundamental rights; or the trial court is correct for the

wrong reason )

. We decline to use this exception to bypass the clear statutory guidelines provided in K.S.A. 60

- 404

.

Prosecutorial Error

Sean argues that the prosecutor committed error in four different ways: (1) by repeatedly introducing drug evidence in violation of an order in limine; (2) by asking questions regarding Sean's retention of an attorney; (3) by viola ting a court order when it procured certain testimony regarding an alibi; and (4) by commenting on the credibility of a witness. We address each argument separately.

When analyzing a claim of prosecutorial error, we employ a two

- step process. First, we d etermine whether error occurred. If there was error, the second step is to
determine whether prejudice resulted. Under the first step, we analyze whether the prosecutor's acts f

e ll outside the wide latitude afforded prosecutors. At the second stage
of the analysis, we focus on whether the error prejudiced the defendant's due p rocess rights to a fair trial. If a due process violation occurred , we assess prejudice by applying
the Chapman constitutional error standard

. Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) . Under Chapman
, " ' prosecutorial error is harmless if the State proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , whe re there is no reasonable possibility that the error contributed to the verdict

. ' " State v. Kleypas , 305 Kan. 224, 316, 382 P.3d 373 (2016).

Generally we do not require a contemporaneous objection to preserve issues of prosecutorial error for appellate re view. State v. King , 288 Kan. 333, 344, 204 P.3d 585 (2009). However, "in accordance with the plain language of K.S.A. 60

- 404, evidentiary16

claims

— including questions posed by a prosecutor and responses to those questions during trial

— must be preserved by w ay of a contemporaneous objection for those claims to be reviewed on appeal." 288 Kan. at 349. But we will review a prosecutor's comments made during voir dire, opening statement, or closing argument on the basis of prosecutorial error even without a timel y objection, "although the presence or absence of an objection may figure into our analysis of the alleged misconduct." 288 Kan. at 349.

1. Violation of the order in limine

Sean ar gues the prosecutor violated the order in limine by introducing drug
evidenc e on 14 different occasions, including once in the opening statement and once during closing arguments. After review of the record, it is clear that Sean only objected

on one o f those occasions and that the trial court sustained that objection.

Because Sean did not object to the 13 other alleged violations, the only instances of alleged error that we review are those that occurred during the opening statement and closing argument. While Sean argues that this court should review all instances in t he interest of justice, we again decline to use this exception to bypass clear statutory guidelines.

We begin by assess ing whether the State's actions fell outside of t he wide latitude afforded prosecutors.

The State filed a pretrial motion to admit evidence that would establ ish the following three points:

"1. Evidence that Shawn Lindsey was killed to settle a debt that may have been incurred through illegal drug transactions. "17 " 2. Evidence that [Sean] (as well as co

- defendants) possessed illegal dr ugs and drug paraphernalia. "

" 3. Evidence that on August 4, 2012, police searched and located a 2001 black Chevy Silverado truck belonging to Dang Sean on the premises of Automotive Bullies."

Sean had no objection to paragraph 2 of the motion and thus t he court granted paragraph 2. The court granted paragraph 3 over Sean's objection. Sean also objected to paragraph 1, arguing that "there has to be some evidence to back it up [that the victim owed a drug debt to Lindsey] and they don't have any." In a sub sequent pretrial hearing, the State entered a stipulation with regard to paragraph 1 that read "Sean Lindsey had a debt to Dang Sean," eliminating the reference to a drug debt. Sean accepted that stipulation
, and the court entered an order acknowledging th e stipulation.

Sean argues that prosecutorial error occurred because " [ d ] espite the parties' stipulation, and the district court's in limine order, the State repeatedly introduced drug
evidence at trial in violation of the order."

Sean's argument is pe rplexing because the order in limine d id not prohibit drug
evidence. Indeed , it was an unopposed order that allowed such evidence.

Sean contests this point by directing this court to the State's comments regarding the stipulation. During a pretrial hearing, the prosecutor said
, "I suggest that maybe we need to table this Paragraph 1, is that we craft a stipulation that meets both parties' goal
and limits evid ence of other crimes evidence."18

This statement fails to offer support for Sean's argument be cause, even if it did function to limit the admissibility of "other crimes evidence," paragraph 2, to which Sean had no objection, specifically allowed drug evidence.

It may be that when Sean says the prosecutor offered drug evidence in violation of
the o rder, he means that the prosecutor offered drug debt evidence in violation of the order. Even if we accept this as his argument, there was no error because the prosecution never introduced evidence of a drug debt.

During the opening statement, the prosecu tor told the jury:

"You're going to hear from Will Coleman. Will is an interesting character. Will is going to tell you that this shop is a place where people went to use methamphetamine. He said they used it all the time. In fact, Will is even going to s ay that for a time period his primary wages at the shop was just basically the ability to smoke free methamphetamine."

During closing arguments, the prosecutor said the following:

"I want to pause for a moment, and in case anybody says, ' Well, why Garza? I mean, why would you choose Garza? ' Look at th at cast of characters. The evidence is [ that ] this man [ Sean ] is owed a debt. This man is the man who's dealing the drugs to the people in the shop and this man is the one who wants Shawn Lindsey's truck, and injected his arm with methamphetamine to get even, to take his revenge. This man. Are we going to make a
deal w ith him to get the other guys?"

Neither of these passages describe a drug debt. While they describe drug evidence
, they do not imply that the d ebt owed to Sean is connected to this drug evidence. Furthermore, we reiterate that Sean had no objection to paragraph 2 of the motion in
limine , which requested that the court allow the admission of evidence that Sean and the19

codefendants possessed illega l drugs and drug paraphernalia. Thus, "drug evidence" is specifical ly admissible under the motion.

As a final note, we point out that none of the alleged errors, even tho se that were unpreserved, violated the order in limine. We have reviewed the unprese rved statements and not one of them mentions drugs as the source of Lindsey's debt to Sean. Thus, even if we were to review Sean's unpreserv ed arguments, they would fail.

We conclude that there was no violation of the order in limine. Because there was

n o violation, th ere was no prosecutorial error.

2. Questions regarding retention of an attorney

Next, Sean argues that the prosecutor erred by asking questions about his retention of an attorney.

The Fourteenth Amendment affords a criminal defendant the right to employ counsel as an extension of his or her right to a fair trial. Accordingly, it is improper for the prosecutor, by questions or comments, to draw incriminating inferences from a
defenda nt's exercise of this right. State v. Dixon , 279 K an. 563, 591, 112 P.3d 883 (2005), disapproved of on other grounds by State v. Wright , 290 Kan. 194, 224 P.3d 1159 (2010).

During the testimony of Ana Garcia, Sean's fiancé e , the prosecutor asked her
, "Is
it fair [ to say ] between the 16th and the 18th, before your fiancé had even been arrested you went and had a meeting with Kurt Kerns to talk about your representation, right?" Later, the prosecutor asked Garcia whether Sean had asked her to contact someone to get $30,000 or $40,000. Garcia answered yes
, and the prosecutor asked
, "And he's somebody who would have access to 30 or 40 grand to help pay for an attorney to get Dang Sean20

out of jail, right?" Then, the prosecutor asked Garcia if she was supposed to try to help get codefendant Jason Jones an attorney and whether Sean was going to help pay for that attorney. Finally, the prosecutor asked
, "So Dang Sean felt responsible enough that he was going to help Jason Jo nes also pay for the attorney?"

Sean argu es that these questions were constitutionally impermissible under Dixon

.

We agree that t he prosecutor's questions regarding Sean's retention of an attorney contravene the protections we explicitly enumerated in Dixon. Because Dixon clearly holds that a pr osecutor should not comment on or question a criminal defendant's right to employ counsel, we conclude that the comments regarding Sean's retention of an attorney
fell outside of the wide latitude afforded to prosecutors . We caution that the remaining

ques tions came very close to doing the same.

This moves the analysis to the second question in a prosecutorial error analysis.
We now consider whether the question s prejudice d Sean's right to a fair trial.

As we noted in Dixon , a prosecutor's questions about the defendant's retention of counsel endangers that defendant's right to a fair trial

. 279 Kan. at 591. However, under a prosecutorial error analysis, these questions only prejudiced Sean's right to a fair trial if they do not survive a constitutional har mless error test. While we find error, we conclude
that it was harmless.

The error here came in the form of only two questions to the defendant 's fiancé e

. Furthermore, defense counsel had already introduced evidence that Sean sought the
services of an att orney before the jury heard it from the prosecutor . For these reasons, and in light of the great weight of evidence that otherwise implicates Sean in the charged21

crimes, we conclude beyond a reasonable doubt that the error did not affect the outcome of thi s trial.

3. Questions regarding alibi

Sean's next prosecutorial error argument is that the prosecutor violated a court order when it asked Detective Harty if he was aware that Hernandez "talked about the need for Anthony Garza and Aaron Stricker to develop an alibi for the night that this all went down on January 11th?"

The "order" Sean references came about during the State's direct examination of
Marcus Hernandez. The prosecutor asked Hernandez, "[W]hat did [Stricker] tell you that
the Asians told him re garding an alibi?" Defense counsel objected on double hearsay grounds. The court responded
, "We ll, the question was what did [Stricker] tell you that the Asians told him regarding an alibi. I think it needs to be established what Asians we're talking about , specifically how many Asians were there, who were they, and
establish that if it can be established." The prosecutor then resumed his questioning but
was unable to establish who the "Asians" were. At that point, the judge sen t the jury out
and told couns el

" [ t ] he thing that is troubling is the use of the plural word 'Asians' without any
attribution.

. . .[I]f [Hernandez] has something that he wants to say about the Asians told him this, the Asians told him that, the Asians said get an alibi, that is not going to be
allowed."

When the jury returned, the prosecution resumed its questioning but abandoned any
references to the alibi and thus never established which "Asian" was talking about an
alibi or what was ac tually said regarding an alibi.22

Stated more clearly, the order Sean refers to here is a directive from the trial court that the State could not procure any testimony that " the Asians" told Stricker and Garza to get an alibi unless at least one particular "Asian" could be identified. Consequently, i f
the prosecutor attempted to elicit the alibi statement without first identifying the person who said it, the State woul d have been in violation of the court's directive.

Even if we assume the prosecutor violated this directive, and the violation resulte d in an action outside the wide latitude afforded prosecutors, we conclude that his actions did not prejudice Sean's right to a fair trial.

The prosecutor's statement was : "You're aware that he [Hernandez] talked about how Anthony Garza and Aaron Stricke r talked about . . . the need for Anthony Garza and
Aaron Stricker to develop an alibi for the night that this all went down on January 11th?" (Emphasis added.) Thus, this statement fails to suggest that Sean had anything to do with the crime on January 11 th. Instead, it suggests that Garza and Stricker were the ones who needed an alibi. While it does reinforce the theory that a crime was committed on January
11th and suggests that Garza and Stricker were involved, it does nothing to suggest that
Sean was a part of that crime. In fact, it tends to buttress the defense theory that Garza is the guilty party, not Sean. While it may speak to Garza's credibility, the other evidence and witnesses that corroborated his testimony outweighed any e ffect this could hav e had on a credibility determination. For this reason, the prosecutor's comment did not result i n prejudice to Sean's trial, and therefore any assumed error was harmless.

4. C redibility of a witness

Finally, Sean argues that the prosecutor erred by commenting on the credibility of witness Anthony Garza during closing argument.23

In State v. Stone , 291 Kan. 13, 19, 237 P.3d 122 9 (2010), we explained the rules governing when prosecutors may offer their opinions on a witness' credibility:

" ' In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes explaining to juries what they should look for in assessing witness credibility, especially
when the defense has attacked the credibi lity of the State's witnesses. [Citations omitted.] ' "

An example of a prosecutor who acted outside of that wide latitude comes from
Sta te v. Elnicki , 279 Kan. 47, 64, 105 P.3d 1222 (2005)
, where the prosecutor referred to the defendant as a "liar" and stated in her closing argument that " ' the truth shows you beyond a reasonable doubt the defendant is guilty . . . . ' " See also State v. Pab st , 268 Kan. 501, 507, 996 P.2d 321 (2000) (prosecutorial misconduct when the prosecutor told the jury that the defendant and defense counsel lied); State v. Akins , 298 Kan. 592, 607, 315 P.3d 868 (2014) (misconduct when the prosecutor explicitly stated th at the witness es and their statements were or were not "credible").

On the other hand, a prosecutor does not act outside the wide latitude afforded if he or she merely observes that some reasonable inference about witness credibility may
be drawn from evi dence introduced at trial

. See State v. Duong , 292 Kan. 824, 831

- 32, 257 P.3d 309 (2011) (prosecutor's explicit comments about witnesses' credibility not improper because they were reasonable inferences based on the evidence at trial and prosecutor directed jury to that evidence); see also State v. Davis , 275 Kan. 107, 122

- 23,
61 P.3d 701 (2003) ( prosecutor made reasonable inferences based on evidence in stating
witness should b e believed and that witness was more likely to tell truth in first police
interview than second )

.24

Here, t he prosecutor's statem ent with which Sean takes issue is:

"One of the agreements here is defendant will be required to testify truthfully at any and all proceedings in which he is subpoenaed. . . . This requirement shall apply when the defendant is called to the stand by the State or by any other party in the matter. Any question regarding the truthfulness of the testimony given by the defendant will b e resolved by an independent magistrate."

Notably, both Sean and the State seem to consider this a reference to Garza's requirement to tell the truth, even though the prosecutor says "defendant," which would mean Sean, not Garza. To their credit, it does appear that the prosecutor meant Garza,
b ased on his previous statement:

" [ STATE: ] Anthony Garza came forward when he was arrested on the 20th and said, 'Look, guys, this is what I know.' . . . Well, think about his plea agreement. The part that
wasn't re ad to you in Court the other day is this

— Judge, can I ask if Mr. Peeler

— okay. Sorry, I saw his eyes closed. I wanted to make sure you were awake.

" JUROR PEELER: Yeah.

" [ STATE: ] One of the agreements here is defendant will be required to testify truthfull y at any and all proceedings in which he is subpoenaed ."

It appears from the transcript that the prosecutor was referring to Garza and his plea agreement but lost his train of thought when he observed a juror with closed eyes and then started calling Garz a the "defendant." Consequently, it is unclear exactly what the jury took from the prosecutor's statements.25

If the jurors understood this to be a reference to Garza's plea agreement and his obligation to tell the truth, the prosecutor committed no error. The prosecutor never mentioned his own opinion about Garza's credibility, but simply stated a fact that was easily confirmed by Garza's own testimony and his oath to tell the truth. Garza confirmed, on the stand, that he had entered a plea agreement in exc hange to testify. In Duong and Davis , the prosecutor went one step further by not only pointing to facts but then explicitly stating that the facts made the witness credible. 292 Kan. at 831

- 32; 275
Kan. at 122

- 23. Because here, the prosecutor simply state d a fact based on something already in evidence, the prosecutor was not improperly offering an opinion on Garza's credibility and was thus acting within the wide latitude afforded prosecutors.

I f the jurors took the prosecutor's statement to mean that Sea n had a plea agreement that required him to tell the truth, it is more likely that the comment amounted
to error because such a statement is false . However, neither party considered this scenario or provided any argument on the issue. Thus this argument is not properly before this
court. See State v. Boleyn
, 297 Kan. 610, 633, 303 P.3d 680 (2013) (arguments not briefed on appeal are deemed waived an d abandoned).

W e conclude that the prosecutor did not act outside of the wide latitude afforded prosecutors when the prosecutor stated that Garza would be required to tell the truth at any proceedings because of the plea agreement. Thus, there was no pros ecutorial error.

In sum of this four

- part issue, prosecutorial error occurred when the prosecutor
made comments regarding S ean's retention of an attorney and we assume error in the prosecution's comments regarding the alibi. However, because both errors w ere harmless,
there is no reversible error.26

Erroneous Admission of Bad Act s Evidence

Sean presents four arguments in this issue: (1) the trial court failed to make findings on the record that it was required to make before admitting prior bad act s evidence under K.S.A. 2016 Supp. 60

- 455; (2) the prior bad act s evidence was either irrelevant or the probative value of the evidence was outweighed by its prejudicial effect; (3) the limiting instruction given by the t rial court in regard to the prior ba d act s evidence was erroneous; and (4) the limiting instruction did not cure the lack of findings on the
record

.

Because we conclude that Sean did not preserve this issue for appeal, we do not reverse on these grounds.

"K.S.A. 60

- 404 dictates that evide ntiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial." King , 288 Kan. at 349.

"[U]nlike a failure to object to evidence, a failure to object to an instruction does not bar ap pellate review of the instruction. It does, however, raise the persuasive bar the complaining party must hurdle on appeal; the appellate court must be convinced the instruction is clearly erroneous." State v. Breeden , 297 Kan. 567, 581, 304 P.3d 660 (2013)

.

First, Sean argues that the court was required to make certain findings under
K.S.A. 2016 Supp. 60

- 455 and State v. Gunby
, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006) , before it could admit the following evidence: certain testimony from Bernhard, a statement made during the State's closing argument, numerous text messages, and a27

detective's testimony that Sean allegedly had possession of a firearm that had been reported stolen.

Sean did not object to the introduct ion of the text messages or the statement in the closing argument. Sean did object to some of Bernhard's testimony, but he did so on grounds of hearsay, cumulative evidence, and that some of her testimony was not in dispute. At no point did Sean challenge the lack of Gunby findings. Because Sean either failed to object or objected on different grounds than he raises on appeal, this argument is not properly before this court.

Sean's second argument that the evidence was more prejudicial than it was probativ e was likewise not preserved by a timely objection on this ground. Accordingly, this argument cannot be raised for the first time on appeal.

Sean's third and fourth arguments purport to take issue with the limiting
instruction. He contends that the instru ction did not cure the trial court's error in failing to
make Gunby findings . Additionally, he contends the instruction itself was erroneous because it allowed the jury to consider prior crimes evidence for motive and the relationship of the parties withou t the district court having made the required Gunby findings.

The trial court provided the following limiting instruction with regard to K.S.A.
60

- 455 evidence: "In this case, ladies and gentlemen, evidence has been admitted tending to prove the defendan t committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant's motive and the relationship of the parties."28

While this court can address challenges to jury instructions not raise d below, we
observe that n either of Sean's contentions actually concern the instruction itself . Rather, they are veiled continuations of his arguments that the admission of the evidence was
erroneous and that the court failed to make Gunby findings. Accord ingly, Sean cannot make these arguments on appeal. See Breeden , 297 Kan. at 580 (explaining this court
would not " allow [a party] to merely disguise an evidentiary argument as an instructional issue" in order to present an unpreserved argument on appeal); State v. Rojas

- Marceleno
, 295 Kan. 525, 538, 285 P.3d 361 (2012) (refusing to review an unpreserved issue that was framed as an instructional error).

We are unable to reach the merits of Sean's prior bad acts arguments because he failed to properly preserve them for review and sought to reframe unpreserved issues as
instructional error.

Erroneous Admission of Hearsay Statements

Next, Sean argues the trial court erred by admitting certain hearsay statements under the declarations against interest ex ception.

"This court reviews a trial court's determination that hearsay is admissible under a statutory exception . . . for an abuse of discretion. " State v. Summers , 293 Kan. 819, 827, 272 P.3d 1 (2012). Judicial action constitutes an abuse of discretion if it

" ' (1) is arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based. [ Citation s omitted.] '" State v.
Shank , 304 Kan. 89, 92, 369 P.3d 322 (2016)

.29

K.S.A. 2016 Supp. 60

- 460 bars admission of " [ e ] vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated" unless it falls into one of the exceptions outlined in the statute

. One of these exceptions is the declarations against interest exception, which is defined as

"a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the d eclarant's position would not have made the statement unless the person believed it to be true." K.S.A. 2016 Supp.
60

- 460 (j).

Marcus Hernandez testified for the State and described a conversation that he
overheard between Stricker and Garza. The trial cou rt ruled that many of the statements that Hernandez recounted were admissible under the declarations against interest exception. Sean argues that Stricker and Garza were coparticipant s in this crime, and
under State v. Myers , 229 Kan. 168, 174, 625 P.2d 11 11 (1981) , hearsay statements by coparticipants may not come into evidence under the declarations against interest exception. Specifically, Sean takes issue with the admission of the following testimony:

 Hernandez' testimony that, upon hearing that a body was found, Stricker said: "I hope they didn't kill that fool."

 Hernandez' testimony that Stricker said he went over to Lindsey's house, picked him up, and took him to Sean's shop.30

 Hernandez' testimony that Stricker said there were Asians at the shop and a particular Asian was the "supposed boss."

 Hernandez' testimony that Stricker said he and Garza took Lindsey to Sean's shop because of money.

 Hernandez' testimony that Garza said he had zip

- tied Lindsey to a chair.

 Hernandez' testimony that, after get ting a phone call, Stricker said: "We got to go. The weakest link has been caught."

 Hernandez' testimony that, after Stricker said his mother had informed him that a body was found, Stricker was not surprised at the news, but skeptical.

 The prosecutor's question to Hernandez "what did SB [Stricker] tell you that the Asians told him regarding an alibi?"

 Hernandez' testimony that "there was talk about, you know, just

. . . a certain Asian guy out at the Asian group that's just . . . was just a bad

- ass"
in response to the court's question regarding whether Stricker had ever told Hernandez the names of any of the Asians.31

Before addressing whether the testimony was erroneously admitted as hearsay
declarations against interest, we first rule out the testimony that did not actually describe hearsay statements.

First, we conclude that Stricker's statements "I hope they didn't kill that fool
, "

" [w] e got to go , " and " [ t ] he weakest link has been caught
, " were not admitted to prove Stricker's hopes, his need to leav e a place, or that someone had been caught. Rather, they appear to be an attempt to show that Stricker had knowledge of the crime and a guilty
conscience. As the statements were not admitted to prove the truth of the matter asserted, they do not constitute hearsay.

Second, Hernandez' testimony that Stricker was not surprised but skeptical appears
to be Hernandez' own perception of Stricker's emotions on the day in question. Under these circumstances, w e do not regard Hernandez' description of Stricker's apparent emotional state as an out

- of

- court statement. See Markgraf v. State , 12 P.3d 197, 198 (Alaska App. 2000) (citing John W. Strong et al
., McCormick on Evidence [5 th ed. 1999], § 250, Vol. 2, pp. 108

- 109) (explaining that " [ c ] ourts routinely hold tha t testimony concerning a person's apparent mental state

- testimony that the person appeared angry, fearful, agitated, happy, or excited

- is not hearsay" because the person does not intend the "demeanor to be an assertion about his mental state").

Finally, w e observe that the State's question to Hernandez regarding an alibi was not a statement, but a question posed by counsel . As t he prosecutor abandoned the question without receiving an answer, no hearsay statement was admitted.

T hese five excerpts of testi mony were not hearsay statements and were thus admissible without falling into any exception. This leaves the following testimon ies for
this court's review:32

 Garza's statement that he zip

- tied Lindsey to a chair.

 Stricker's statement that he went over to Lindsey's house, picked him up, and took him to Sean's shop.

 Stricker's statement that he and Garza took Lindsey to Sean's shop because of money.

 Stricker's statement that there were Asians at the shop and a particular Asian was the "supposed boss."

 Hernandez' testimony that "there was talk about, you know, just

. . . a certain Asian guy out at the Asian group that's just . . . was just a bad

- ass" in response to the court's question regarding whether Stricker had ever told Hernandez the names of any o f the Asians.

We decline to address the admission of each statement in turn as it will have no effect on our ultimate conclusion. Even if we assume all of the testimony was erroneously admitted, our analysis below demonstrates its admission amounted to
h armless error.

When determining whether an alleged violation of statutory evidentiary limitations was error, we apply the harmless error standards set out in K.S.A. 2016 Supp. 60

- 261 and
K.S.A. 60

- 2105. This standard provides that we must consider "wheth er a reasonable33

probability exists that the error affected the outcome of the trial in light of the record as a
whole." State v. Betancourt , 299 Kan. 131, 144, 322 P.3d 353 (2014). The burden of persuasion lies with the party benefitting from the introduct ion of the evidence. 299 Kan.
at 144.

Review of the record demonstrates that the substance of the majority of the challenged testimony w as cumulative and established through other evidence. First, Bernhard, Coleman, and Garza testified that Lindsey owed Sean money. Second, t he State offered a series of text messages in which Sean repeatedly told Lindsey to get him
h is money and threaten ed to take his truck and "crack

. . . heads." Third, Garza testified that he and Stricker picked up Lindsey and took him to the shop. Sean's text messages confirm that he sent men to collect from Lindsey. Fourth, Garza and Coleman both

te stified that Sean and Air, who both appear to be of Asian descent and were depicted in photos given to the jury , were at the shop on Januar y 11. Fifth, Coleman testified that Sean was the owner of the shop

— thus implying that he was the boss. Finally, Garza testified that he zip

- tied Lindsey to the chair.

The only noncumulative evidence in the challenged testimony was the reference to one of the "Asians" as a "bad

- ass

. " However, this one passing comment, when coupled with the other challenged cumulative evidence, could not have reasonably affected the
outcome of the trial i n light of the great weight of evidence implicating Sean in the crime

. Any error in the admission of this challenged evidence amounts to harmless error.

The statements that Sean challenges as inadmissible hearsay were either not hearsay statements or their admission was harmless. This argument fails.34

Motion for Mistrial

Se an argues the trial court should have granted his motion for mistrial because the prosecutor introduced inadmissible gang evidence in violation of an agreement between the parties. The State acknowledges that it agreed not to introduce evidence of gang
aff iliation but responds that the gang reference that entered evidence did not amount to
reversible error.

This court recently articulated the law and standard of review appli cable to a
motion for mistrial:

"'Under K.S.A. 22

- 3423(1)(c), a trial court may d eclare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute

creates a two

- step process. First, the tr ial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must decide if the preju dicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. State v. Ward
, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see State v. Race , 293 Kan. 69, 80, 259 P.3d 707 (2011).

" ' In Ward , our court articulated this standard by dividing the appellate court's abuse of discretion inquiry into two pa rts, asking: (1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice? 292 Kan. at 551. ' Waller , 299 Kan. at 725

- 26." State v

. Moyer , 302 Kan. 892, 906, 360 P.3d 384 (2015).35

In the present case, Garza provided the following testimony during the State's
direct examination:

" [ PROSECUTOR : ] Mr. Kerns also mentioned something in his opening about chatter going on over at the jail between you and some guy named Caesar?

" [ GARZA: ] Caesar Reyes.

" Q. Caesar Reyes?

" A. Yes.

" Q. What have you told Caesar Reyes about this case?

" A. I actually never told that man nothing about this case. I was sitting in chapel

— he was actually in the same pod, in the same section as Dang Sean. He asked me what I was here on, I said aggravated kidnapping. And then he was actually to the left of me in chapel, and he was like, oh, man, I'm

— I know this guy, this Asian dude, he has a big A on his back saying he's a shock collar for the Asian Boy Crips. And that he's in here on agg kidnapping, first

- degree murder, and a gun charge. I was like

— I said Dang Sean? And said he yeah. And I was like I'm on the same case. He was like, oh, oh."

Defense counsel moved for a mistrial after the prosecutor concluded the direct
examination of Garza , arguing that the parties' agreement t hat there would be no discussion of gang affiliation had been violated.

The trial court denied the motion for mistrial reasoning there was no deliberate violation of the parties' agreement. The judge admonished the parties not to make any references to g angs , but Sean declined his offer to give a limiting instruction or admonishment to the jury

.36

Step 1: Did the trial court abuse its discretion in deciding whether there was a fundamental failure?
Under the first step of the mistrial analysis, i t is not clear whether the trial court considered the admission of the gang reference a fundamental failure in the proceeding. The court did note that gang references can be very prejudicial, depending on the context, but then commented that in this instance, the comment was made in pass ing by a witness "in the middle of a bunch of other things that he said" and was not a deliberate violation of the parties' agreement. From these comments , it seems the court may have been implying that th ere was no fundamental failure.

However, the trial judge went on to address the second step in considering a
motion for mistrial when he offered to give a jury admonishment or limiting instruction. Because this step is necessary only when there was a fundamental failure in the trial, we

assume the trial court determined the gang reference constituted a fundamental failure in the proceedings

.

Sean presents a number of arguments to support the trial court's conclusion that there was a fundamental failure in the proceeding: the prosecution violated an agreement that it would not introduce evidence of gang affiliation; any references to gangs were not relevant and thus inadmissible under State v. Goodson , 281 Kan. 913, 135 P.3d 1116 (2006); and the statements were inadmissible hearsay. The

m ost compelling, however, is that the prosecution violated the parties' agreement that no evidence of gang affiliation would be admitted at trial

. The State acknowledges this agreement but argues that it is "a stretch" to consider the admission of Reyes' st atements a fundamental failure because, but for the agreement, gang evidence may have been admissible. Furthermore, the State argues, the prosecutor did not desire the admission of this evidence. Rather, the reference was "blurted out" by a witness. Becaus e the State's witness testified to37

Sean's gang affiliation nonetheless, we conclude that the t rial court did not abuse
its discretion in apparently concluding this was a fundamental failure in the proceedings.

Step 2: Did the trial court abuse its discret ion in deciding any potential prejudice could be mitigated?
In the second step of the mistrial analysis, we decide whether the t rial court abused its discretion in concluding that any potential prejudice from the fundamental failure could be mitigated. Mo yer , 302 Kan. at 907

- 08.

Here, the judge admonished the parties not to mention any more gang affiliations and asked Sean if he would like a limiting instruction or jury admonishment to negate any potential prejudice. Sean denied a jury admonishment or lim iting instruction.

We conclude that the trial court did not abuse its discretion in deciding that any prejudice could be mitigated. This testimony amounted to one passing gang reference made by one witness and was never highlighted or dwelled upon by the prosecution . The court mitigated any potential prejudice with an admonishment to the parties and an offer to provide a limiting instruction or jury admonishment . Consequently, the trial court acted within its discretion when it denied the motion for mistri al.

Limitation on Cross

- examination

Sean argues that the trial judge's decision to limit cross

- examination of a State's
witness precluded him from asking pertinent questions that went to the witness' credibility . Sean contends this limitation resulted in a violation of his rights under the
Confrontation Clause.38

Even if we assume the limitation was erroneous, our analysis below demonstrates that reversal is not required.

When an error infringes upon a party's federal constitutional right, a court will
declare a con stitutional error harmless w hen the party benefiting from the error persuades the court "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." Ward , 292 Kan. at 569

.

In the present case, Coleman testified for the State. Du ring cross

- examination,
defense counsel asked about a statement Coleman made to a detective regarding an episode of 20/20 that Coleman had watched. The prosecutor objected to this question
ba sed on relevance. The trial judge sustained the objection and explained that the testimony would tend to confuse the issues or mislead the jury.

After redirect, the jury was dismissed for the day and the judge allowed defense counsel to explain what test imony he was trying to elicit from the witness. Referencing
Detect ive Robert Reichenberger's report of an interview with Col eman, defense counsel explained :

" T he sentence I wanted to ask him about was whether this person advised the Detective Reichenberger that the

— this is how he felt, that he was being made to say something he didn't know anything about

. That's what I wanted to get out on cross. That Will advised Reichenberger that he felt like he was being made to say something he didn't know anything about."

The prosecutor responded by reading aloud this portion of the interview. In that portion of the interview, the Detective explained that Coleman told him39

"'he had seen a shown [ sic ] on 20/20 called Confessions , that he had learned of fiv e young men who had been implicated in being involved in a criminal investigation and who had been convinced by the detectives to plead guilty to something they hadn't actually done but did so because they had been influenced by detectives to say that

some thing happened when, in fact, it hadn't.

" [Coleman] advised me that this is how he felt, that he was being made to say something that he did not know anything about. I asked Will if he said anything that is untrue, and he advised me that, no, he did not. I advised Will if he hadn't said anything that wasn't true, that he wasn't, in fact, guilty of the same behavior as the five males. And
about that time [Coleman] made the stateme nt, quote, 'I'm going to die, [Sean] 's going to kill me. I'm frightened for m y life because I'm jeop ardizing [Sean]'s freedom,' end quote."

After the prosecutor read this report, the trial judge reiterated his earlier decision to sustain the objection, noting that the 20/20 reference was "vague, ambiguous . . . [and] misleading."

We disagree with the trial judge's characterization of the 20/20 reference because the credibility of a participant in the crime was potentially important to the defense. The reliability of a witness is an essential jury consideration, one upon which guil t or innocence may ultimately rest. See State v. Francis , 282 Kan. 120, 149

- 50, 145 P.3d 48 (2006) (credibility evidence may be considered as exculpatory evidence). However , despite its relevance to credibility, we observe that the 20/20 reference offered no substantive or exculpatory evidence. Thus, g iven the overwhelming evidence in this case, including evidence which corroborated Coleman's test imony, we conclude that, beyond a reasonable doubt, the exclusion of the 20/20 reference did not affect the outcome of this
trial. The admission of this testimony does not constitute reversible error.40

Improper Sympathy Evidence

Sean next argues that during direct examination, the prosecutor elicited improper sympathy evidence from Lindsey's mother, Anita Lindsey ( Anita ) . However, Sean has failed to preserve this issue for review.

"K.S.A. 60

- 404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged e rror at trial." King , 288 Kan. at 349.

Defense counsel lodged no objections during any of Anita 's testimony.

Sean argues that this court should review this issue even though he made no contemporaneous objection because this court reviewed similar issues in State v.
Kunellis , 276 Kan. 461, 477

- 49, 78 P.3d 776 (2003)
, and State v. Carter , 270 Kan. 426,
441

- 42 , 14 P.3d 1138 (2000), even though there w as no contemporaneous objection in
either case.

However, in Kunellis and Carter , we reversed and remanded bo th cases on issues other than sympathy evidence and addressed the sympathy evidence only to guide the
trial court on remand. Kunellis , 276 Kan. at 478

- 79, 489; Carter , 270 Kan. at 441

- 42

. These cases do not stand for the proposition that this court should review unpreserved sympathy evidence as the basis for rev ersible error, as Sean implies.

Alternatively, Sean argues that this court should review this issue "to prevent the
denial of [ his ] fundamental right to a fair trial free from irrelevant and prejudicial sympathy evidence, meant only to arouse the passions of the jury." In support of this assertion, Sean cites one Kansas Court of Appeals case in which the court held that even41

if it wer e to consider the party's unpreserved constitutional argument, it would fail on the
merits. State v. Stevens , 36 Kan. App. 2d 323, 338, 138 P.3d 1262 (2006). Thus, Sean provides no support for why the court must review this issue to prevent the denial of a fundamental right.

Finally, Sean argues that review is necessary to serve the ends of justice because he was "actually harmed by the introduction of this inadmissible evidence, in combination with the other errors of the trial court and the prosecutorial misconduct that saturated this trial." In support, Sean cites State v. Holt , 285 Kan. 76 0, 769

- 70, 175 P.3d 239 (2008).

Sean's reliance on Holt is misplaced. In Holt , this court declined to conclude that an unpreserved argument fell into the "ends of jus tice" exception to the contemporaneous objection rule because the party failed to show that the alleged error actually caused
harm. 285 Kan. at 7 7 0. Sean urges this court to conclude that Holt also stands for the
inverse: that this court will review an un preserved argument when the party can show that an alleged error did cause harm. But Holt does not stand for this proposition and we decline to adopt Sean's interpretation. Thus, Sean presents no support for his assertion
that this court must review the is su e to serve the ends of justice.

Because defense counsel failed to object to this testimony at trial
, and Sean offers

no persuasive support for his arguments that this court should nonetheless review this argument , Sean fails to present grounds for rever sal.

Cumulative Error

Sean finally argues that cumulative err or resulted in an unfair trial.42

When a party argues that the cumulative impact of alleged errors is so great that they result in an unfair trial, this court aggregates all the errors and, even if those errors individually would be considered harmless, analyzes whether their cumulative effect is so great that they collectively cannot be determined to be harmless. State v. King , 297 Kan. 955, 986, 305 P.3d 641 (2013). In undertaking such an a nalysis, this court reviews the
entire record and exercises unlimited review. State v. Cruz , 297 Kan. 1048, 1073

- 74, 307 P.3d 199 (2013). One error is insufficient to support reversal under the cumulative error
doctrine. State v. Novotny , 297 Kan. 11 74, 11 91, 307 P.3d 1278 (2013).

As discussed above, the prosecutor erred in asking questions about Sean's retention of an attorney, and we have assumed error in the prosecution's questions regarding an alibi and the trial court's admission of certain hearsay te stimony and
limitation of cross

- examination of one State's witness. None of these errors were independently harmful in nature. Furthermore, o verwhelming evidence implicated Sean in these crimes, including eyewitness testimony , physical evidence, and Sean's own text messages. The harmless nature of the error and assumed errors, coupled with the strength of the State's case, compels our conclusion tha t the cumulative effect of the errors is not

s o great as to warrant reversal.

The district court is affirmed

.

R OSEN , J ., not participating.

M ICHAEL J. M ALONE , Senior Judge, assigned. 1

1 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 114,417 vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20

- 2616.43