1 No

. 1 21 , 160
IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

G EORGE L OWELL B ROWN II , Appell ant ,

v. S TATE OF K AN S AS , Appell ee .

SYLLABUS BY THE COUR T

1. When a district court considers a K.S.A. 60

- 1507 motion, it may: (a) determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (b) determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held af ter appointment of counsel. If the court then determines there is no substantial issue, the court may deny the motion; or (c) determine from the motion, files, records, or preliminary hearing that there is a substantial issue requiring an evidentiary heari ng.

2. When a district court held a full evidentiary hearing on an ineffective assistance of counsel claim under K.S.A. 60

- 1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The ap pellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether the court's factual findings support its conclusions of law. The appellate court then reviews the district court's conclusions of law de novo.2

3. A district court is not required to entertain successive K.S.A. 60

- 1507 motions on behalf of the same movant unless there are exceptional circumstances.

4. K.S.A. 60

- 1507(f) places a time limit on filing an action under that statute of one year from the date the movant's direct appeal becomes final, unless the time limitation is extended by the court to prevent a manifest injustice. A K.S.A. 60

- 1507 movant has the burden of establishing manifest injustice.

5. Appellate courts employ a two

- step analysis when evaluating claims of reversible prosecutorial error. These two steps are simply described as error and prejudice. To determine prosecutorial error, an appellate court decides whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial. If it finds error, the appellate court determines if that error prejudiced the defend ant's right to a fair trial.

6. In State v. Tosh , 278 Kan. 83, 93, 91 P.3d 1204 (2004), the Supreme Court set forth a three

- factor test to evaluate the prejudice step for reversible prosecutorial misconduct : (1) whether the misconduct was gross and flagrant , (2) whether it was motivated by prosecutorial ill will , and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.

7. In State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), the Supreme Court overruled portions of the Tosh analysis and adopted a new framework to evaluate the3

prejudice step for reversible prosecutorial error, which requires the court to determine whether the State has carried its burde n to 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.

8. Genera lly, an opinion changing the law acts prospectively, applying to all cases, state or federal, pending on direct review or not yet final.

9. Where both the alleged errors occurred and the direct appeals were finalized before Sherman , an appellate court ana lyzes a claim of prosecutorial error alleged in the context of a K.S.A. 60

- 1507 ineffective assistance of counsel claim using the reversibility framework in effect at the time of trial.

Appeal from Cowley D istrict Court; J OHN E. S ANDERS , judge

. Opinion f iled September 25 , 20 20

. Affirmed.

Kristen B. Patty , of Wichita , f or appellant.

Michael K. Henson , deputy county attorney , and Derek Schmidt , attorney general, for appellee.

Before W ARNER , P.J., S TANDRIDGE and G ARDNER , J J

.

S TANDRIDGE , J.: Fol lowing a jury trial, George Lowell Brown II was convicted of one count of aggravated indecent liberties with a child and one count of lewd and lascivious behavior. The district court sentenced Brown to life in prison with a mandatory minimum term of 25 yea rs. On appeal, the Kansas Supreme Court affirmed his convictions and his life sentence. Brown later filed a timely first K.S.A. 60

- 1507 motion4

a lleging various claims , including one of ineffective assistance of counsel

. The district court summarily denied Brown's first motion, a finding which this court affirmed on appeal. More than a year later, Brown filed a n untimely second 60

- 1507 motion, alleging that both his trial counsel and direct appeal counsel were ineffective for various reasons. The district co urt appointed counsel to represent Brown and held a n evidentiary h earing. Following the hearing, the district court denied Brown's second motion as successive and untimely and alternatively denied Brown's motion on the merits. Brown filed a motion to alter or amend the district court's ruling and , after another hearing, the district court denied that motion. Brown now appeal s the dismissal of his second 60

- 1507 motion , specifically alleging that he established exceptional circumstances for the district court to entertain his successive motion and that he established manifest injustice to warrant extension of the one

- year filing deadline. For the reasons stated below, we affirm the district court's ruling b ecause its findings were supported by substantial competent evidence and it correctly found that Brown's second 60

- 1507 motion was successive and untimely.

F ACTS The facts of the underlying criminal case are largely irrelevant in this appeal. Ho wever, any facts that are necessary to the analysis will be included where needed. Further details about the underlying criminal case are extensively summarized in State v. Brown , 295 Kan. 181, 185

- 87, 284 P.3d 977 (2012) ( Brown I ).

On October 7, 2009, a jury convicted Brown of one count of aggravated indecent liberties with a child and one count of lewd and lascivious behavior. In November 2009, the district court sentenced Brown to life in prison and ordered him to serve a mandatory minimum term of 25 y ears pursuant to Jessica's Law

— also known as the " hard 25. " On direct appeal, the Kansas Supreme Court affirmed Brown's conviction s and his life sentence, finding, among other things, that (1) there were no alternative means issues5

within the aggravated in decent liberties and lewd and lascivious behavior charges , (2) the district court did not abuse its discretion in allowing the State to reopen its case

- in

- chief to present limited testimony as to Brown's age , and (3) certain comments by the prosecutor duri ng jury selection and closing arguments constituted error but the error was harmless. See Brown I , 295 Kan. at 202

- 03, 210, 211

- 15. The Kansas Supreme Court issued its mandate on September 17, 2012.

Brown filed a timely first pro se motion under K.S.A. 60

- 1507 on June 28, 2013. In t his first 60

- 1507 motion, Brown argued that the district court deprived him of his right
to due process by allowing the State to reopen its case

- in

- chief at trial and that his trial counsel was ineffective for failing to preserv e his r ight to prepare an adequate defense. The district court summarily denied Brown's motion on July 16, 2013. Brown appealed the ruling and argued for the first time on appeal that his direct appeal counsel was deficient by only raising two of the seven factors courts must consider in deciding whether to allow a party to reopen its case

- in

- chief at trial. See Brown v. State , No. 110,644, 2014 WL 2871400, at *2

- 3 (Kan. App. 2014) (unpublished opinion) ( Brown II ). In June 2014, this court rejected Brown's new argument on appeal and affirmed the district court's summary dismissal. Brown II , 2014 WL 2871400, at *2

- 3.

On October 2, 2015

— over three years after the Kansas Supreme Court issued its mandate in Brown's direct appeal

— Brown filed a second pro se 60

- 1 507 motion. In his memorandum and affidavit in support of the motion , Brown alleged his trial counsel and his direct appeal counsel were ineffective. Brown argued that his trial counsel was ineffective for several different reasons: (1) counsel failed to seek a lesser included crime of aggravated indecent solicitation of a child , (2) counsel failed to object to the investigating deputy's testimony about using " f inding w ords" or RATAC interviewing techniques as improper expert testimony , (3) counsel failed to object to the introduction at trial of the victim's recorded police interview , (4) counsel failed to object to the prosecutor's alleged "consciousness of guilt" closing argument , (5) counsel failed to6

present an expert witness to tes tify about child interviewing techniques , (6) counsel failed to file and pursue a motion for judgment of acquittal as to the aggravated indecent liberties conviction , and (7) counsel failed to offer or request a limiting instruction on how prior consistent statements may only be used to corroborate a victim's testimony. Brown argued his direct appeal counsel was ineffective because counsel failed to include the State's consciousness of guilt closing argument in the prosecutorial error argument on direct app eal.

Apparently r ecognizing that his second K.S.A. 60

- 1507 motion was procedurally barred as untimely and successive, Brown provided several reasons why the district court should make an exception and consider his motion anyway. Specifically, he claimed ( 1) he did not have nor could he afford any legal assistance in drafting and filing his previous 60

- 1507 motion , (2) he was afraid of seeking help from other inmates at his previous prison due to the nature of his conviction , (3) he could not go into protec tive custody at his previous prison because he would have been denied access to legal materials , (4) the Appellate Defender Office failed to provide him with legal aid resources following his direct appeal after telling him he would receive that informatio n , and (5) he could only safely receive assistance from other inmates and did so once he was transferred to a different facility housing like offenders.

The district court appointed counsel (habeas counsel) to represent Brown and held

a full evidentiary h earing on January 21, 2016. Judge James T. Pringle , t he same judge who presided over Brown's underlying criminal matter , also presided over this evidentiary hearing. Brown's habeas counsel called him as a witness at the hearing , but Brown testified only ab out the alleged ineffective assistance of trial counsel in failing to object to the State's introduction at trial of the victim's recorded interview without also introducing the transcript from that interview as required by statute.7

After Brown's testimo ny, habeas counse l emphasized three issues in Brown's second K.S.A. 60

- 1507 motion as having particular merit. First, Brown's trial counsel failed to object to the introduction of a videotape of the alleged victim's testimony under K.S.A. 22

- 3433, in part because no written transcript was produced by the State. Habeas counsel argued that Brown was prejudiced by his trial counsel's performance because the lack of an objection prevented the issue from being raised on appeal and because the video contained add itional details not testified to by the victim at trial. Second, habeas counsel emphasized trial counsel 's failure to object to the State's consciousness of guilt statement in closing argument. Had trial counsel objected to the prosecutor's allegedly improper statement that Brown's demeanor during his interview with police showed that he was guilty of the crimes charged , the issue could have been raised on direct appeal to bolster his other claims of prosecutorial error. Third, habeas counsel emphasized Brown's trial counsel failed to object to the investigating deputy 's testimony a bout her use of the f inding w ords technique with the victim, which habeas counsel asserted is a scientific technique requiring expert testimony. After discussing th ese three issues, habeas counsel advised the court that Brown was not abandoning the other issues in his second 60

- 1507 motion ; rather , Brown would rely on the arguments presented in his written motion for the other issues not specifically discussed at the evidentiary hearing.

The State presented no additional evidence but rebutted Brown's claims and simultaneously argued that the district court should deny Brown's motion as successive. The State asserted that Brown's ineffective assistance of counsel clai ms amounted to mere trial errors that should have been raised o n direct appeal or in his first 60

- 1507 motion , and Brown failed to meet his burden to establish exceptional circumstances existed to overcome the successive filing hurdle. The district court t ook the matter under advisement and informed the parties it would issue a written order.

On March 7, 2016, Judge Pringle issued a lengthy order denying Brown's 60

- 1507 motion. At the outset, the district court denied Brown's motion as successive because8

Brown had previously alleged ineffective assistance of counsel in his first 60

- 1507 motion, and it denied Brown's motion as untimely because Brown failed to establish the requisite manifest injustice to extend the one

- year filing deadline. Alternatively, t he district court denied Brown's motion on the merits.

Brown's habeas counsel filed a notice of appeal on March 8, 2016. While the matter was pending in this court, Brown filed a pro se motion with the district court to alter or amend the court's order d enying his 60

- 1507 motion. He also filed a pro se motion to stay the appeal pending the district court's ruling on the motion to alter or amend the judgment. At some point, Brown was appointed new habeas counsel and he moved this court to dismiss his appea l. This court granted Brown's voluntary request and dismissed the appeal on February 13, 2017.

The matter proceeded in the district court before Senior Judge John E. Sanders. Judge Sanders held a pretrial conference on March 27, 2018. It is unclear what arguments the parties made at this hearing as there was no record created for it. However, it appears that Judge Sanders took the matter under advisement, requested the parties obtain reports from their respective experts on child interviewing techniques, and advised he would issue a written ruling as to whether any further hearings were necessary.

On February 5, 2019, Judge Sanders issued his order denying Brown's motion to alter or amend Judge Pringle's ruling and dismissing Brown's 60

- 1507 request for relief. The district court noted that Judge Pringle already found that having an expert witness to discuss child interviewing techniques would not have discredited the victim's testimony

or changed the outcome of the trial in this case. The court reasoned that Brown should not get "another bite of the apple" to argue why an expert is necessary, and it found nothing that would compel it to revers e Judge Pringle's ruling. The court noted that in addition to the incriminating evidence presen ted throughout trial, Brown himself at least partially confirmed some of the victim's allegations. Noting it had r eviewed the proffered9

expert reports, the court found that calling these witnesses would "change nothing" and "inject further confusion" into the proceedings.

Brown timely appealed the denial of his second 60

- 1507 motion.

A NALYSIS When considering a K.S.A. 60

- 1507 motion, a district court has three options:

" ' (1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then deter mines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing. ' [Citation omitted.] " Sola

- Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014).
The standard of review depends upon which approach the district court used to dispose of the motion. When, as here, the district court held a full evidentiary hearing on an ineffective assistance of counsel claim under K.S.A. 60

- 1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether the court's factual findings support its conclusions of law. The appellate court then reviews the district court's conclusions of law de novo. State v. Adams , 297 Kan. 665, 669, 304 P.3d 311 (2013).

The district court denied Brown's second 60

- 1507 motion for relief on grounds that it was successive and untimely. Although the court went on to discuss the underlying10

merits of Brown's ineffective assistance of counsel claims, it did so as an alternativ e reason for denying the mo tion and as a means to facilitate a decision about whether considering the merits would prevent a manifest injustice, which would excus e the untimely nature of the filing.

K.S.A. 2019 Supp. 60

- 1507 set s forth restrictions on c ourts' consideration of untimely and successive motions . In this case, neither analysis requires fact

- finding . So we first must find that Brown has cleared these two procedural hurdles before we can move on to address the underlying merits of his K.S.A. 60

- 1507 motion . This is Brown's second 60

- 1507 motion in which he alleges various ineffective assistance of counsel claims. To avoid dismissal of his motion as successive, Brown must establish that exceptional circumstances existed to prevent him from rais ing these issues in his first 60

- 1507 motion. See K.S.A. 60

- 1507(c); Thuko v. State , 310 Kan. 74, 81, 444 P.3d 927 (2019). And b ecause he filed his second motion over three years after the Kansas Supreme Court issued its mandate in Brown's direct appeal, B rown also must establish manifest injustice. See K.S.A. 60

- 1507(f)(1) and (2) (one

- year time limit to file motion may be extended by the court only to prevent a manifest injustice).

1. Successive m otion

K.S.A. 201 9 Supp. 60

- 1507(c) and Supreme Court Rul e 183(d) (2020 Kan. S. Ct. R. 223) provide that a district court is not required to entertain successive motions on behalf of the same prisoner. This rule prohibiting successive motions , however, is subject to limited exceptions. Thuko , 310 Kan. at 84. To avoid having a second or successive K.S.A. 60

- 1507 motion dismissed as an abuse of remedy, the movant must establish exceptional circumstances. "Exceptional circumstances" are defined as unusual events or intervening changes in the law that prevented the m ovant from raising the issues in the preceding 60

- 1507 motion. Beauclair v. State , 308 Kan. 284, 304, 419 P.3d 1180 (2018).11

In his brief, Brown alleges six distinct circumstances he contends are exceptional: (1) H e did not have nor could he afford any le gal assistance in drafting and filing his previous 60

- 1507 motio n, (2) he was afraid of seeking help from other inmates at his previous prison due to the nature of his conviction s , (3) he could not go into protective custody at his previous prison because he would have been denied access to legal materials , (4) the Appellate Defender Office failed to provide him with legal aid resources following his direct appeal after telling him he would receive that information , (5) he could only safely receive assistan ce from other inmates and did so once he was transferred to a different facility housing like offenders , and (6) his ineffective assistance of counsel claims constitute such a circumstance.

The first five reasons Brown provides can be lumped into two simi lar categories: Brown either lacked legal assistance in filing his motions or he lacked access to legal resources for various reasons. As Kansas appellate courts have long established, none of these reasons constitute valid exceptional circumstances that prevented Brown from raising his ineffective assistance of counsel claims in his first K.S.A. 60

- 1507 motion. See, e.g., Sherwood v. State , 310 Kan. 93, 101, 444 P.3d 966 (2019) (finding that movant's inability to obtain legal assistance is not valid basis for manifest injustice); Brown v. State , 278 Kan. 481, 483, 101 P.3d 1201 (2004) (" [ T ] here is no constitutional right to effective assistance of legal counsel on collateral attacks because they are civil, not criminal, actions ."); Harris v. State , No. 120,942, 2020 WL 1482424, at *3 (Kan. App. 2020) (unpublished opinion) (finding that movant's limited access to legal materials was insufficient to show manifest injustice) , petition for rev. filed April 24, 2020 ; Martinez v. State , No. 120,488, 2019 WL 67 98971, at *3 (Kan. App. 2019) (unpublished opinion) ("A prisoner ' s lack of legal knowledge, training, and familiarity with the rules of procedure fails to meet [the manifest injustice] standard.") , rev. denied 311 Kan. ___ (July 28, 2020) ; Kelly v. State , No. 114,158, 2016 WL 3031256, at *5 (Kan. App. 2016) (unpublished opinion) (finding that lack of access to legal resources due to time spent in administrative segregation is not persuasive circumstance for establishing manifest12

injustice); Conley v. State , No. 111,777, 2015 WL 7434746, at *3

- 4 (Kan. App. 2015) (unpublished opinion) (finding that movant's limited legal knowledge, lack of access to law library, and numerous prison transfers did not rise to level of exceptional circumstances or manifest injust ice).

While Brown is correct th at an ineffective assistance of counsel claim may constitute an exceptional circumstance, the claims that Brown allege s in this second K.S.A. 60

- 1507 motion occurred before he filed his first 60

- 1507 motion. See Thuko , 310 Kan. at 84; Rowland v. State , 289 Kan. 1076, 1087, 219 P.3d 1212 (2009) ("Ineffective assistance of counsel can qualify as an exceptional circumstance.")

. So Brown's current allegations of ineffective assistance by trial counsel and direct appeal counsel d o not constitute an unusual or intervening even t that would excuse omitting the issue in his first 60

- 1507 motion. See Thuko , 310 Kan. at 84. What is more, Brown's first motion alleged that he had been denied effective assistance of trial counsel

— a claim w hich the district court summarily denied and this court rejected. Additionally, his appeal of that denial also alleged he was denied effective assistance of direct appeal counsel

— a claim this court also rejected. See Brown II , 2014 WL 2871400, at *2

- 3. By alleging ineffective assistance of counsel claims in his second 60

- 1507 motion that he could have raised in his first motion , Brown seeks successive consideration of the same claim. The fact that the argument he now offers in support of the ineffective ass istance of counsel claim is different than the argument he previously offered in support of the claim is immaterial. The language in K.S.A. 60

- 1507(c) is clear: a sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. O ur Supreme Court held that " ' [a movant ] in a K.S.A. 60

- 1507 motion is presumed to have listed all grounds for relief and a subsequent motion need not be considered in the absence of [ a showing of ] circumstances justi fying the original failure to list a ground. ' " State v. Trotter , 296 Kan. 898, 90 4 , 295 P.3d 1039 (2013) ; s ee also Thuko , 310 Kan. at 84

- 85; Manco v. State , 51 Kan. App. 2d 733, 739, 354 P.3d 551 (2015) (" ' [S]uccessive post

- conviction motions alleging inef fective assistance of counsel are an abuse of remedy13

and should be denied even if based . . . upon distinct allegations of ineffectiveness. Absent assertion of exceptional circumstances , all claims of ineffective assistance of trial counsel must be asserte d together in order to avoid summary denial as successive, even though a later assertion alleges different or distinct factual bases for the purported ineffectiveness.").

Brown has failed to prove the requisite exceptional circumstances that would

excuse the filing of his successive 60

- 1507 motion. Because he failed to establish these circumstances, the district court did not err in denying Brown's second 60

- 1507 motion as successive

.

2. Manifest i njustice
Since 2003, K.S.A. 60

- 1507(f) has required individuals to bring their K.S.A. 60

- 1507 motions within one year of (1) the termination of state appellate jurisdiction over a direct appeal or (2) the United States Supreme Court's denial of a petition for writ of certiorari. See K.S.A. 2019 Supp. 60

- 1507(f); Noyce v. State , 310 Kan. 394, 399, 447 P.3d 355 (2019). Brown filed the present 60

- 1507 motion o n October 2, 2015 , over three years after the Kansas Supreme Court issued its mandate in Brown's direct appeal

. Therefore, the motion is untimely.

Although the one
- year time limitation may be extended by the district court , that extension can be granted only to prevent a manifest injustice

. K.S.A. 201 9 Supp. 60

- 1507(f)(2). In 2014, our Supreme Court decided Vontr ess v. State , 299 Kan. 607, 325 P.3d 1114 (2014), in which the court identified three bases for determining whether a movant has demonstrated manifest injustice in order to avoid the one

- year deadline for filing a K.S.A. 60

- 1507 motion. Those bases are as follows:14

" whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60

- 1507 motion within the 1

- year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deservin g of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e. , factual, not legal, innocence. " 299 Kan. at 616.
In response to Vontress , the Legislature amended K.S.A. 60

- 1507(f), effective July 1, 2016 , to provide:

" For purposes of finding manifest injustice under this section, the court's inquiry shall be limited to determining why the prisoner failed to file the motion within the one

year time limitation or whether the prisoner makes a colorable clai m of actual innocence. As used herein, the term actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence. " K.S.A. 201 6 Supp. 60

- 1507(f)(2)(A).
This legisl ative action effectively eliminated the second Vontress factor for determining manifest injustice when a K.S.A. 60

- 1507 motion is untimely filed. Notably, however, our Supreme Court has held this amended statute does not apply retroactively to K.S.A. 60

- 15 07 motions filed before July 1, 2016. White v. State , 308 Kan. 491, Syl. ¶ 1, 421 P.3d 718 (2018). Again, Brown's current motion was filed in October 2015, so the new manifest injustice standard is in applicable. Rather , the Vontress analysis controls. White , 308 Kan. at 503

.
As the person seeking an extension of the time limit, Brown "bears the 'burden to establish manifest injustice by a preponderance of the evidence.'" Noyce , 310 Kan. at 399 ( quot ing White , 308 Kan. at 496; citing Supreme Court Rule 183 [ g ] [2018 Kan. S. Ct. R. 223]). In conducting a manifest injustice inquiry, courts must consider the Vontress factors under the totality of the circumstances rather than balancing factors against each15

other. Given the required analysis for each of the Vontress factors, we will conduct our analysis of the first and third factors before addressing the second factor.

a. Manifest injustice under Vontress factor 1

As to the first factor

— reasons or circumstances explaining the failure to meet the

one
- year time limit

— Brown incorporates the same circumstances he alleged as bases for finding exceptional circumstances. For the reasons stated in our analysis above, we similarly find Brown has failed to prov ide valid reasons for failing to raise the ineffective assistance of counsel arguments within the one

- year time limit. Our analysis on that issue is incorporated and ap plied here. Because Brown fails to establish any valid reasons explaining his failure to file his second 60

- 1507 motion within the one

- year time limit, he is not entitled to relief under the first Vontress factor.

b. Manifest injustice under Vontress fact or 3

T he third Vontress factor requires this court to look at whether Brown asserted a colorable claim of actual innocence. Brown made no such assertion in his original motion. On appeal, Brown argues that he is serving a life sentence because he is "weir d" and that inadvertent or innocent acts

— i.e., sleeping naked with the victim in this case, rubbing lotion on the victim's body when she asked, and scratching victim's back

— were given criminal interpretations. See Brown I , 295 Kan. at 186

- 87. This is not a colorable claim of innocence, and in fact, it is counter to any such claim because it corroborates at least some of the victim's trial testimony in the underlying criminal case. Because Brown fails to assert a colorable claim of innocence, he is not entit led relief under the third Vontress factor.16

c. Manifest injustice under Vontress f actor 2
Under the second factor, this court must consider whether the merits of Brown's claims raise substantial issues of law or fact deserving of the district court's

c onsideration. It is only in this context that we now review the individual claims set forth in Brown's motion. To prevail on an ineffective assistance of counsel claim , a criminal defendant must establish (1) that the performance of defense counsel was def icient under the totality of the circumstances and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent counsel's deficient performance. Sola

- Morales , 300 Kan. at 882 (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

The benchmark for reviewing an ineffective assistance of counsel claim is whether the attorney's conduct so undermined the proper functioning of the adversarial process that the tri al cannot be relied on as having produced a fair and just result. Bledsoe v. State , 283 Kan. 81, 90, 150 P.3d 868 (2007). Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consider ation of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly , 298 Kan. 965, 970, 318 P.3d 987 (2014). " [A] fair

assess ment of attorney performance requires that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. " Cr owther v. State , 45 Kan. App. 2d 559, 564, 249 P.3d 1214 (2011).17 (1) Lesser included offense

Brown's first ineffective assistance of counsel claim is that his trial counsel failed to request a lesser included charge

. Brown was charged with aggravated indecent liberties with a child in violation of K.S.A. 21

- 3504(a)(3)(A) , which provides:

"(a) Aggravated indecent liberties with a child is:

. . . . (3) engaging in any of the following acts with a child who is under 14 years of age: (A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both."

Brown claims trial counsel was deficient for failing to request the jury be permitted to consider whether he committed the crime of aggravated indecent solicitation of a child in violation of K.S.A. 21

- 3511(a) , which he asserts is a lesser included charge of aggravated indecent liberties with a child

. "Aggrava ted indecent solicitation of a child is: (a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act

. " K.S.A. 21

- 3511(a) . An "unlawful sex act" is defined, among other things, as "any . . . aggravated indecent liberties with a child . . . [or] lewd and lascivious behavior . . . as defined in this code." K.S.A. 21

- 3501(4)

.
The controlling test for determining whether aggra vated indecent solicitation of a child is a lesser include offense in this case is found in K.S.A. 21

- 3107(2) , which provides in relevant part:

"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser inclu ded crime, but not both. A lesser included crime is:

. . . .18 (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged."
In comparing the statutes, we necessarily conclude that aggravated indecent sol icitation of a child charge is not a lesser included offense of aggravated indecent liberties with a child. Under K.S.A. 21

- 3107(2)(b) , all of a lesser included offense's elements must appear in some of the elements of the greater crime charged. To prove

a ggravated indecent solicitation of a child, the State must establish not only all of the elements of the crime of aggravated indecent liberties with a child or some other unlawful sex act but , in addition, must prove that a defendant enticed or solicited a child to commit or submit to an unlawful sex act. There are more elements in an aggravated indecent solicitation of a child charge than found in the aggravated indecent liberties with a child charge. As such, the record conclusively shows that Brown's tri al counsel was not deficient for failing to request the lesser included instruction.

(2) Interviewing protocol
In his second claim, Brown asserts trial counsel was deficient by failing to object to the investigating deputy's testimony about using the f i nding w ords protocol when interviewing the child victim in this case. In his motion, he summarily argued that the deputy was allowed to testify without objection about her training and knowledge of the f inding w ords or RATAC technique and that such testimo ny was improper expert opinion. But the record reflects that the deputy never testified as to any personal opinions about whether Brown molested the victim based on these interview techniques, nor did she testify as to the victim's credibility during the i nterview. She only testified as to her training and experience using the technique and how that guided her interview with the victim in this case. See Waddell v. State , No. 120,800, 2020 WL 2502200, at *9 (Kan. App. 2020) (unpublished opinion) (finding that detective investigating allegations of sexual abuse of child was not an expert when detective merely testified about his19

investigative process and made no opinions about whether abuse actually occurred or whether defend ant perpetrated said abuse). Brown provide s us with no authority to support his legal proposition that a law enforcement officer trained in using the f inding

w ords technique is not allowed to testify as to their training, experience using the technique, an d application of that technique. Accordingly, Brown fails to establish his trial counsel was deficient by failing to object to the investigating deputy's testimony.

(3) Lack of transcript
In his third argument, Brown claims trial counsel was ineffective by failing to object to the introduction of the victim's recorded interview . Specifically, he alleges that the recorded interview was inadmissible because the State failed to provide the defense with a transcript of the child's interview prior to trial as required by K.S.A. 22

- 3433(a)(8) . At the time of his trial, this statute provided:

" (a) In any criminal proceeding in which a child less than 13 years of age is alleged to be a victim of a crime, a recording of an oral statement of the child, made before the proceeding began is admissible in evidence if:

. . . . (8)

. . . a copy of a written transcript is provided to the parti es." K .S.A. 22

- 3433 (a)(8)

. Brown claims trial counsel was deficient for failing object to the introduction of the victim's recorded interview without first receiving the interview transcript. We will assume without deciding for purposes of our analysis that trial counsel's failure to object constitutes deficient performance . In suppor t of prejudice, Brown first argues the video recording that was played for the jury significantly strengthened the State's case against him at trial. In making this argument, Brown seems to suggest that if trial counsel had objected to the admissibility of the recorded interview based on a violation of K.S.A. 22

- 3433(a)(8), the court would have deemed the recording inadmissible. But there is no20

evidence in the record to suggest that the trial court would have prohibited the State from introducing the record ed interview into evidence based on the State's failure to adhere to the statutory requirements

. It seems just as likely that the trial court would have given the State an opportunity to provide Brown with a written transcript for review, which would have then rendered the recording admissible under the statute. Although B rown summarily cites to the State's violation of K.S.A. 22

- 3433(a)(8) , he fails to explain how he was prejudiced by the State's failure to provide a written transcript before it introduc ed the recorded interview into evidence. The transcript is a verbatim written transcription of every statement in the interview. Significant to our analysis, introduction of the written transcript at trial would not have prohibited the State from introducing th e video recording at trial. The rule requiring the State to provide a transcript is meant to supplement, not supplant, the introduction of a video recording at trial. Conspicuously missing from Brown's argument is an assertion that t he written transcrip t would have bolstered any part of his defense to the charges lodged against him.

In another attempt to show prejudice, Brown relie s on State v. Waddell , No. 100,517 , 2011 WL 767836 (Kan. App. 2011) (unpublished opinion)

. In Waddell , a panel of this cour t found that the overwhelming evidence of defendant's guilt centered on statements the child victim made in her recorded interview or in the presence of other interviewers and investigators

— not from what the victim testified to at trial. The panel determin ed that without the video evidence and the additional hearsay testimony about the victim's interview statements, it is likely there would not have been sufficient evidence presented at trial to convict the defendant. Based on these determinations, the

cour t found reversible error where the recorded interview was introduced into evidence without a transcript being provided to the defense. 2011 WL 767836, at *3

- 4

.

But the facts here are different than those in Waddell

. Here, t he victim was available to testify at the jury trial and largely recounted the information she provided to the deputy in her interview: how she and Brown slept naked together in Brown's bed,21

how Brown laid on top of her while they were naked, how Brown put his arms around her and s nuggled her, how he touched her privates, how he rubbed lotion all over her body, how Brown made her wear only an apron while cooking breakfast, and how Brown showed her his privates. Brown also corroborated some of this evidence in his own interview with police

— i.e., he admitted to sleeping naked with the victim in his bed, rubbing lotion on the victim, and scratching the victim's back. See Brown I , 295 Kan. at 186

- 87

. Police even found physical evidence to corroborate the victim's story, such as five bott les of lotion retrieved from the headboard of Brown's bed and the apron the victim wore at Brown's request.

Having considered the entire record , we find beyond a reasonable doubt that any alleged deficiency in trial counsel's failure to object to introdu ction of the recorded interview without first being provided a written transcript did not affect the outcome of the trial

.
(4) Consciousness of guilt

Brown's next claim is that his trial counsel was ineffective for fail ing to object during closing argume nt to the prosecutor's comment on Brown's demeanor in a video recording of his interview by police

. In its memorandum opinion, the habeas court set forth the relevant facts related to this claim:

" At the end of Deputy McDonald's interview of Brown, she le ft the room. At that point the video showed Brown tilt his head down onto his fists and then his open hands covering his face. There was no indication he was crying and he didn't say anything. During the prosecutor's closing argument, he stated the followi ng:

" ' Watch the defendant's video. And the reason we played that video all the way to the conclusion is when Deputy McDonald left, what did the defendant do? (Gesture.)

" ' I have a phrase for that, but I don't think I should use it in open court. I call it an Oh, shucks moment in open court. He knew what he did was wrong. He knew he had22

been caught. Watch the video. Watch his testimony. No, this never happened. No, this never happened. No, this never happened. Well, this part happened. Oh, well, that part happened. Oh, well, this part happened. Another 15 minutes, who knows what he would have said.

" ' Ladies and gentlemen, it's for you to decide what happened. Watch that video. Watch [ the victim ]

. ' "
Brown characterized the prosecutor's statement as a "con sciousness of guilt" argument because the prosecutor urged the jury to view Brown's demeanor at the end of questioning as an indication that Brown "knew what he did was wrong" and "knew he had been caught." Brown claims trial counsel was deficient for fail ing object to the prosecutor's "consciousness of guilt" argument. For purposes of our analysis, w e will assume without deciding that trial counsel's failure to object to the State's consciousness of guilt argument constitutes deficient performance. Brown c laims the prosecutor's argument rose to the level of prosecutorial misconduct , which necessarily supports a finding of prejudice in that he was deprived of a fair trial.

When Brown's case was tried in 2009 and when he filed t his habeas motion in 2015, Kansas courts referred to claims that a prosecutor's comments denied a defendant's due process rights to a fair trial as " prosecutorial misconduct. " See State v. Barber , 302 Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015). The applicable test for such a claim w as set out in State v. Tosh , 278 Kan. 83, Syl. ¶¶ 1

- 2 , 91 P.3d 1204 (2004). Under Tosh , an appellate court first decided whether the prosecutor's comment was outside the wide latitude allowed in discussing evidence. 278 Kan. at 85

. If so, the court was required to engage in a " particularized harmlessness inquiry " that assessed three factors: (1) whether the misconduct was gross and flagrant , (2) whether it showed ill will on the prosecutor's part , and (3) whether the evidence against the defendant was o f such a direct and overwhelming nature that the misconduct likely had little weight in the jurors' minds. 278 Kan. at 93

- 96

. No factor was individually controlling . B ut before the third could override the first two, an appellate court had to be able to sa y the harmlessness tests of both23

K.S.A. 60

- 261 and Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), were met. Tosh , 278 Kan. 83, Syl. ¶ 2.

The district court issued its memorandum opinion denying Brown habeas relief on March 7, 2016. The court applied the Tosh test to analyze Brown's claim alleging prosecutorial misconduct. About six months after the district court's memorandum opinion was issued, the Kansas Supreme Court modified the two

- step analytical framework for claims that a prosecutor's trial behavior requires reversal. See State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). Sherman changed the name of these claims to "' prosecutorial error '" and sav ed the pejorative "' prosecutorial misconduct '" designation for more severe wrongdoing. 305 Kan. at 107; see State v. Chandler , 307 Kan. 657, 695, 414 P.3d 713 (2018). Sherman held:

"Appellate courts will continue to employ a two

- step analysis to evaluate claims of reversible prosecutorial error. These two steps can and s hould be simply described as error and prejudice." "To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State 's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial." 305 Kan. 88, Syl. ¶¶ 6

- 7.

Sherman did not change the applicable standard for deciding whether the prosecutor 's actions were ou tside the wide latitude afforded prosecutors. 305 Kan. at 104 ( " The well

- developed body of caselaw defining the sc ope of a prosecutor's ' wide latitude '

. . . will continue to inform our review of future allegations of prosecutorial error ."). The Sherman court modified only the second Tosh step :

" If error is found, the appellate court must next determine whether the e rror prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt24

the traditional constitutional harmlessness inquiry demanded by Chapman [ v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. E d. 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 pos sibility that the error contributed to the verdict. ' We continue to acknowledge that the statutory harmlessness test also applies to prosecutorial error, but when ' analyzing both constitutional and nonconstitutional error, an appellate court need only addr ess the higher standard of constitutional error. ' [Citations omitted.] " 305 Kan. at 109

. Although the briefs in this matter were filed over three years after Sherman was decided, neither party addressed whether Sherman applies to Brown's claim alleging pr osecutorial misconduct at his trial

. So in order to properly analyze the issue presented, we first must decide whether the standards in effect at the time of trial should govern the court's review of a prosecutorial error alleged in a K.S.A. 60

- 1507 ineffe ctive assistance of counsel matter that was filed before the Sherman decision. Panels of our court presented with this issue appear to summarily

— a nd sometimes inconsistently

— d ecide the matter and no clear rule has emerged

. T o resolve the issue, we find it helpful to summarize the cases that have addressed Sherman 's retroactivity , both in the direct appeal context and the K.S.A. 60

- 1507 context.

(a) Sherman 's retroactivity in direct appeal context

" Generally, an opinion changing the l aw acts prospectively, applying '" to all cases, state or federal, pending on direct review or not yet final. "' " State v. Butler , 307 Kan. 831, 863, 416 P.3d 116 (2018). Butler was a case involving a prosecutorial misconduct claim from a jury trial held pre

- Sherman . However, Sherman was decided at some point while Butler was on direct appeal . T he Kansas Supreme Court did not decide whether there was a retroactive application issue as both parties agreed to analyze the prosecutorial error claim under the new Sherman standard. Butler , 307 Kan. at 863.25

In State v. Kleypas , 305 Kan. 224, 314

- 24, 382 P.3d 373 (2016) , the prosecutorial misconduct claim arose in a jury trial held pre

- Sherman . While the matter was on direct appeal, Sherman was decided. However, unlik e Butler , neither party addressed whether Sherman should apply. So the Kansas Supreme Court applied both the Tosh standard and the Sherman standard. The court found no error under either standard. Kleypas , 305 Kan. at 320, 323

- 24.

State v. Thurber , 308 Kan. 140, 160

- 71, 420 P.3d 389 (2018) , is another case

w here the misconduct claims arose in a jury trial held pre

- Sherman . While the matter was on direct appeal, Sherman was decided. The parties did not address Sherman in their briefs; however, they did ad dress the framework at oral argument. Unlike Kleypas , the Kansas Supreme Court decided to apply only the Sherman standard because it found that the direct appeal was not yet final. The court ultimately determined that while there were some instances of err or, any error was harmless both individually and cumulatively. Thurber , 308 Kan. at 169

- 71.

In State v. Thomas , 307 Kan. 733, 741

- 42, 415 P.3d 430 (2018) , the Kansas Supreme Court stated:

" Generally, an opinion changing the law acts prospectively, applying ' to all cases, state or federal, pending on direct review or not yet final. ' But because this case was fully briefed under Tosh , and the parties have not had the opportunity to fully argue this case under the Sherman rubric, we will apply both Sherman and Tosh . In the end, Thomas is not entitled to reversal under either standard. [Citations omitted.] "

In Chandler , the misconduct claims arose in a jury trial held pre

- Sherman . While the matt er was on direct appeal, Sherman was decided. The parties had a chance to address Sherman in their supplemental briefs and at oral argument. The Kansas Supreme Court decided to apply only the Sherman standard because it found that the direct appeal was not yet final. It ultimately found the prosecutor acted with "a level of culpability that26

exceeds mere negligence" that compelled the harsher prosecutorial misconduct label contemplated by Sherman

. Chan dler , 307 Kan. at 6 95.

State v. Kahler , 307 Kan. 374, 382, 410 P.3d 105 (2018), aff'd 589 U.S. __, 1 40 S. Ct. 1 021, 206 L. Ed. 2d 312 (2020) , is another case where the misconduct claims arose in a jury trial held pre

- Sherman . While the matter was on direc t appeal, Sherman was decided. The parties did not have a chance to brief the issue, but they did have the opportunity to address the Sherman framework at oral argument. Both parties conceded the Sherman framework applied, so the Kansas Supreme Court appli ed it. The court ultimately found no error. Kahler , 307 Kan. at 383.

In State v. McBride , 307 Kan. 60, 63

- 72, 405 P.3d 1196 (2017) , the misconduct claims arose in a jury trial held pre

- Sherman . While the matter was on direct appeal and after a panel of th is court issued its opinion applying the old standard, Sherman was decided. The Kansas Supreme Court, without any additional analysis, stated that Sherman overruled the old standard and it would proceed by applying Sherman to the prosecutorial error claims before it. In applying Sherman , the court found reversible error. McBride , 307 Kan. at 72.

(b) Sherman 's retroactivity in K.S.A. 60

- 1507 context Turning to the K.S.A. 60

- 1507 context, the following cases evaluate ineffective assistance of counsel claims for failure to object to or identify prosecutorial errors. Review of these cases reflect that application of the Tosh rule as opposed to the Sherman rule is all over the map when the claims and the d irect appeals occurred well before Sherman was decided

.

In Reed v. State , No. 119,484, 2020 WL 1070350 (Kan. App. 2020) (unpublished opinion) , petition for rev. filed April 1, 2020 , Reed claimed that his trial counsel was27

ineffective for failing to object to alleged prosecutorial misconduct and his appellate counsel was ineffective for failing to raise those alleged prosecutorial errors on direct appeal. These claims arose and his direct appeal was final before Sherman was decided. Without any additional a nalysis, a panel of this court applied Sherman to the error claims by appellate counsel. It found no error. Reed , 2020 WL 1070350, at *12.

In Watts v. State , No. 117,184, 2020 WL 741723 (Kan. App. 2020) (unpublished opinion) , petition for rev. filed March 16, 2020 , Watts claimed that his appellate counsel was ineffective for failing to raise alleged prosecutorial errors on direct appeal. These claims arose and his direct appeal was final before Sherman was decided. Without any additional analysis, this court applied Sherman to the error claims. It found no reversible

error. Watts , 2020 WL 741723 at *9

- 10.

In Sumpter v. State , No. 117,732, 2019 WL 257974 (Kan. App.) (unpublished opinion) , rev. denied 31 0 Kan. 1071 (2019) , a panel of our court applied the Tosh test to a K.S.A. 60

- 1507 claim of overlooked prosecutorial misconduct. Before finding no reversible error, the panel stated:

" We mention that the Supreme Court revamped the standards for assessing claims of prosecutorial error after Sumpter's trial and direct appeal. We suppose, however, that the standards in effect at the time of Sumpter's trial and appeal should govern our review of this collateral challenge to his convictions. The Kansas Supreme Court declined to apply Sherman in cases that were fully briefed on direct appeal when it was decided. And the issue here is the constitutional adequacy of Sumpter's legal representation when the earlier standards for prosecutorial error governed; so it fo llows the quality of the representation should be measured against the law as it was then. The choice, however, is not especially significant. Under either the pre

- Sherman standards or Sherman itself, the focus for our purposes rests on sufficiently substa ntial prejudice to Sumpter to compromise his right to a fair trial. " [Citations omitted.] Sumpter , 2019 WL 257974, at *11.28

In Phillips v. State , No. 118,066, 2018 WL 6071388 (Kan. App. 2018) (unpublished opinion) , Phillips raised several instances of alleged prosecutorial misconduct in his K.S.A. 60

- 1507 appeal but not i n the context of ineffective assistance of counsel claims. These claims arose , and his direct appeal was final before Sherman was decided. Like Watts and Re ed above, a panel of th is court applied the Sherman test to these claims without any additional analysis on whether the Tosh test should apply.

In Waller v. State , No. 116,706, 2017 WL 4847862 (Kan. App. 2017) (unpublished opinion) , Waller claimed that his appellate counsel was ineffective for failing to raise alleged prosecutorial errors on direct appeal. These claims arose and his direct appeal was final before Sherman was decided. Without any additional analysis, this court applied Sherm an to the error claims. It found no reversible error. Waller , 2017 WL 4847862, at *3, 6.

In Mitchell

- Pennington v. State , No. 115,407, 2017 WL 1104599 (Kan. App. 2017) (unpublished opinion) , Mitchell

- Pennington claimed that his appellate counsel was ineff ective for failing to raise alleged prosecutorial errors on direct appeal. His prosecutorial error claims arose , and his direct appeal was final before Sherman was decided. In evaluating the claims, th is court recognized that the first prong of the analysi s remained unchanged after Sherman . However, it noted that the prejudice analysis significantly changed. It ultimately found that there was error, but in analyzing the prejudice prong, it applied the Tosh test

— as a panel of this court did in Sumpter . The

c ourt found that appellant was not prejudiced under the Tosh prejudice prong. Mitchell

Pennington , 2017 WL 1104599, at *7

- 10.

Based on our review of the relevant caselaw, we can see that the Supreme Court applied Sherman only in situations where the parties agreed it applied and/or had a chance to address it on appeal. Those cases also consistently show that Sherman only applies prospectively in cases that are "pending on direct review or not yet final"

— many,29

if not all , of those cases were pending on direct appeal when Sherman was decided. This is why the Kansas Supreme Court decided to apply the Sherman test in those cases.

But the Kansas Supreme Court has not yet weighed in on th is issue in the K.S.A. 60

- 1507 context. And the summary of cases from panels of our court reflect an inconsistent application of the Sherman rule in cases where the alleged errors and the direct appeals occurred before Sherman

. But we agree with the panels' assessment in Sumpter and Mitchell

- Pen nington , which explain why it is proper to apply the Tosh prejudice test to collateral claims of prosecutorial error that occurred before the decision in Sherman . The rationales in those cases were based on the Supreme Court's reasoning in the direct appea l cases: Sherman only applies prospectively in cases that are "pending on direct review or not yet final." When an inmate files a collateral motion for relief under K.S.A. 60

- 1507, the direct appeal is over, not pending. Therefore, we hold the Tosh rule a pplies in K.S.A. 60

- 1507 cases where both the alleged errors occurred and the direct appeals were finalized before Sherman

.

Brown filed his ineffective assistance of counsel claim 11 months before Sherman was decided. His claim is grounded in trial couns el's failure to object to alleged prosecutorial misconduct occurring at his trial six years earlier. His direct appeal was final on September 17, 2012, which was four years before Sherman was decided. Based on this chronology and our holding above, we appl y the Tosh prejudice analysis to Brown's claim.

In denying Brown habeas relief on this issue, the district court applied the Tosh prejudice analysis to Brown's claim of prosecutorial misconduct because the Sherman case had not yet been decided. In its memorandum opinion, the district court concluded that the consciousness of guilt statement s likely w ere error but that they did not constitute gross and flagrant misconduct, that they were not motivated by ill will, and that they likely had little w eight in the minds of the juror s
. On appeal from the district court's30

decision, Brown's sole argument is that he was prejudiced because trial counsel's failure to object deprived him of an opportunity to raise the issue on direct appeal in conjunction with his other claims of prosecutorial error. Significantly, Brown does not allege that trial counsel's failure to object created a reasonable probability that the outcome of the trial would be different.

Like the district court, we find no evidence that the prosecutor's statements constitute d gross and flagrant misconduct, that they were not motivated by ill will, or that they likely weighed heavily in the minds of the juror s
. We also note that the prosecutor's improper statements occurred at the end of closi ng argument, they were not repeated or emphasized, and they were ameliorated when the prosecutor told the jury it was the jury's decision to determine what happened in the video. Having considered the record as a whole, we find nothing to support a finding that c ounsel's alleged deficiency created a reasonable probability that the outcome of the trial would be different

.

(5) Child witness expert
In his next claim, Brown argues counsel was deficient for failing to hire an expert in child witness interview ing techniques. In his motion, Brown relied on Mullins v. State , 30 Kan. App. 2d 711, 46 P.3d 1222 (2002) , to generally argue that a defense attorney's performance is deficient where the attorney fails to hire such an expert and that prejudice necessarily follows. In Mullins , a panel of this court upheld a defendant's habeas challenge when the trial attorney defending a child sex abuse charge did not hire an expert witness who could testify about child

- witness interview techniques. 30 Kan. App. 2d at 717

- 19. But at the habeas evidentiary hearing in Mullins , the defendant presented three witnesses to support that claim

.31

 A criminal defense attorney who had defended about 40 sexual abuse cases testified that having an expert on witness interview techniques wa s essential and that there was no valid defense strategy that could support failing to call one.

 A psychologist testified that the interviews of th e victim in Mullins' case were flawed, making the victim's testimony unreliable.

 The attorney who had defended Mullins at trial testified that he had n o t interviewed key witnesses before trial, had n o t investigated the possibility of hiring an expert in child interview techniques, and in hindsight now realized that with adequate resources he would have hired such an expert to help defend the

case.

The record before us is much different than the record our court considered in Mullins . In that case, eviden ce supported the claim that specific testimony should have been obtained by the trial defense counsel and that this additional evidence would have undercut key evidence supporting the criminal charge. Here, Brown presented no evidence at the evidentiary he aring to support his claim. We find no deficient performance on the part of trial counsel for failing to hire an expert in child witness interviewing techniques.

Similarly, Brown's contention that his trial counsel was ineffective for failing to adequatel y pursue a motion for acquittal also fails. In assessing a district court's decision to deny a motion for judgment of acquittal, an appellate court will consider all the evidence in a light most favorable to the State and determine if a rational fact

- finde r could have found the defendant guilty beyond a reasonable doubt. In doing so, the appellate court does not reweigh the evidence, assess witness credibility, or resolve conflicting evidence. State v. Llamas , 298 Kan. 246, 254, 311 P.3d 399 (2013) . Brown's argument assumes that if counsel had pursued the motion, Brown would have prevailed.32

But Brown provides no argument or evidence to persuade us that the trial court would have granted a motion for acquittal. Trial counsel was not deficient in failing to fi le a motion for acquittal.

(6) Limiting instruction
Brown's next claim is that his trial counsel was ineffective for failing to request a limiting instruction advising the jury that prior consistent statements by the victim could only be used to corroborate the victim's testimony

— not as substantive evidence of guilt. This argument is grounded in the fact that the video recording of the victim's interview was introduced into evide nce at trial. But we already have found beyond a reasonable doubt that any alleged deficiency in trial counsel's failure to object to introduction of the recorded interview without first being provided a written transcript did not affect the outcome of the trial

. B ased on this finding, we similarly find that there is not reasonable probability that providing a limiting instruction would have changed the outcome of the trial.

(7) Appellate counsel
Finally, Brown claims that his direct appeal counsel was i neffective for failing to raise the consciousness of guilt argument on appeal . But if counsel had raised it on direct appeal, it is likely the Kansas Supreme Court would have arrived at the same conclusion the district court did

— any error by the prosecutor was harmless. See Brown I , 295 Kan.
at 212

- 15 . Brown's claims to the contrary are speculative and unsupported by the record and the Kansas Supreme Court's decision in Brown I. We find no deficient performance on the part of appellate counsel.

Considering the totality of circumstances, we find Brown has failed to prove the requisite manifest injustice that would excuse the untimely filing of his K.S.A. 60

- 150733

motion. Because he failed to establish manifest injustice, the district court did not err in denying Brown's second 60

- 1507 motion as untimely.

Affirm ed

.