1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 112,277

S TATE OF K ANSAS , Appell ee ,

v

.
O SI B ISA M C B RIDE , Appell ant

.

SYLLABUS BY THE COUR T

1. When reviewing a Court of Appeals decision, i f the Supreme Court does not limit the questions on review, th os e questions will include all those properly before the Court of Appeals that the petition for review or cross

- petition allege were decided erroneously.
If the State does not cross

- petition for review of a Court of Appeals holding that prosecutorial error occurred in a criminal case, the Supreme Cou rt will not consider
whether that holding was err oneous when reviewing the appeal

.

2. Appellate courts employ a two

- step analysis to evaluate claims of reversible prosecutorial error. These two steps are simply described as error and prejudice

.

3. To determine whether prosecutorial error occurred, an appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded to prosecutors to conduct the State's case and at tempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the2

appellate court next must determine if the error prejudiced the defendant's due process rights to a fair trial.

4. In evaluating the prejudice step in the two

- step analysis for reversible prosecutorial error, an appellate court will exclusively apply the traditional constitutional harmlessness inquiry from Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967). Under that inquiry, prosecutorial error was harmless if the State proves beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 15,
2016

. Appeal from Shawnee District C ourt; R ICHARD D. A NDERSON , judge. Opinion filed December 1
, 2017

. Jud gment of the Court of Appeals affirming the district court is reversed on the issue subject to
review

. Judgment of the district c ourt is reversed
, and case is remanded

.

Carol Longenecker Schmidt , of Kansas Appellate Defender Office , argued the cause
, and Kimberly Streit Vogelsberg , of the same office, was on the brief for appellant.

Jodi E. Litfin
, deputy district attorney, argued the cause
, and Chadwick J. Taylor , district attorney, and Derek Schmidt , attorney general, were with her on the brief for app ellee.

The opinion of the court was delivered by

B ILES , J.: Osi Bisa McBride appeals his kidnapping conviction , claiming the prosecutor violated his right s to a fair trial by making improper remarks to the jury during closing arguments. A Court of Appeals panel agreed prosecutoria l error occurred when the prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants , but
determined th is error was h armless and affirmed the conviction . See State v. McBride
,3

No. 112,277, 2016 WL 199062 (Kan. App. 2016) (unpublished opinion). On review, we disagree with the harmless ness determination and reverse the kidnapping conviction . We
remand the case to the district court for further proceedings

.

F ACTUAL AND P ROCEDURAL B ACKGROUND

The State charged McBride with one count of rape, one count of aggravated kidnapping, and two counts of criminal sodomy. The se charges stemmed from a November 7, 2011 , incident wit h a woman , C.C. , with whom McBride had an intermittent romantic relationship dating back to early 2010. C.C. reported McBride raped and sodomized her at his mother's house, where he lived

. McBride stood trial on these charges twice.

The first trial occur red in August 2013

. The jury could not reach a unanimous decision on any counts, so the district court declared a mistrial. At the second trial in November 2013, a jury convicted McBride only on a lesser included charge of kidnapping under K.S.A. 2016 Supp. 21

- 5408(a)(3). The court sentenced him to 216 months in prison, f

ollowed by 36 months of post release supervision

.

On appeal, McBride made two arguments. First, he asserted the prosecutor
violated his right s to a fair trial during closing argument s b y : (1) improperly c omment ing

on C.C. 's credibility; (2) impl ying McBride had a burden of proof to attack the State's story and pr esent a defense; (3) misstat ing the case's fact s ; and (4) disparag ing defense counsel. Second, he contended the trial court vi olated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by relying on his criminal history at sentencing without asking a jury to find it beyond a reasonable doubt.4

A Court of Appeals panel affirmed the conviction and sentence. McBride , 2016 WL 199062, at * 1. It agreed the prosecutor improperly commented on C.C. 's credibility
when he referred to C.C. and then asked the jury, " ' [D]oesn't she deserve a certain presumption as well? ' " 2016 WL 199062, at * 2

. But the panel con cluded this error was not gross and flagrant, not motivated by the prosecutor's ill will, and harmless because there was overwhelming evidence against McBride . 2016 WL 199062, at * 7

- 8. T he panel
determined th e remaining prosecutorial statements in dispute were within the wide
latitude afforded prosecutors in criminal cases and not error

. 2016 WL 199062, at *3

- 7.

T he panel also rejected the Apprendi claim, relying on State v. Ivory , 273 Kan. 44, 41 P.3d 781 (2 002) (use of prior convictions to determine sentence does not trigger Apprendi protections ). McBride , 2016 WL 199062, at * 9.

McBride petitioned this court for review only on the prosecutori al error issue
, which we granted. Jurisdiction is proper. K.S.A. 20

- 3 018(b) (petition for review of Court
of A ppeals decision); K.S.A. 60

- 2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20

- 3018).

The State did not cross

- petition for review of the panel's determination that the

pr osecutor misstat ed the law about C.C. 's deserving consideration similar to the defendant's presumption of innocence , so that much is settled in McBride's favor

. See
State v. Rosa , 304 Kan. 429, 437, 371 P.3d 915 (2016) ( only issue on review is whether

erro r was harmless when State did not cross

- petition from prosecutorial error determination by Court of Appeals ); see, e.g., State v. Keenan , 304 Kan. 986, 992

- 93, 377 P.3d 439 (2016) (State cannot challenge a preservation issue on review because it did

not cr oss

- petition for review of that determination by Court of Appeals) ; State v. Corey , 304 Kan. 721, 7 41

- 42, 374 P.3d 654 (2016) ( Supreme Court did not question panel's determination about defendant's absence during a critical stage of trial, noting State did5

not cross

- petition for review on that question ) ; State v. Williams , 303 Kan. 750, 754, 368 P.3d 1065 (2016) (State did not cross

- petition for review on Court of Appeals
determination that there was in sufficient evidence to establish the crime of criminal threat, so that finding was not before Supreme Court on review) ; State v. Allen , 293 Kan. 793, Syl. ¶ 2, 268 P.3d 1198 (2012) ("Under Supreme Court Rule 8.03[ g ][1] , a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review."). At oral argument, the State agreed the single issue on review was whether the prosecutorial error was
harmless.

Because we hold that the established prosecutorial error is reversible standing
alone , we make no ruling s as to the remaining prosecutorial error claims. Additional facts
will be detailed as necessary to complete our analysis

.

S TANDARD OF R EVIEW

The panel released its unpublished decision in January 2016. At that time, when a
criminal defendant claim ed a prosecutor 's act denied the defendant's due process rights to a fair trial, Kansas courts routinely referred to this as a "prosecutorial misconduct " claim.
See , e. g ., State v. Barber , 302 Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015). T he then

effective standard of review was a two

- step analysis set out in State v. Tosh , 278 Kan. 83, 91 P.3d 1204 (2004)

.

Under Tosh , an appellate court first decided whether the prosecutor's comments were outside the wide latitude allowed in discussing evidence. 278 Kan. at 85. If they

were , the court next made what was described as a "particularized harmless inquiry
, " assessing : (1) whether the misconduct was gross a nd flagrant; (2) whether the
misconduct showed ill will on the prosecutor's part; and (3) whether the evidence against6

the defendant was of such a direct and overwhelming nature that the misconduct likely
ha d little weight in the jurors' minds. 278 Kan. at 93. None of these individually
controll ed, but b efore the third factor could ever override the first two, the appellate court
had to be able to say the harmlessness tests of both K.S.A. 60

- 261 and Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. E d. 2d 705 (1967), were met. 278 Kan. at
96

.

But State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016)
, which was released in September 2016
, abandoned Tosh 's particularized harmless ness inquiry and adopted a new analytical framework for determining whether prosecutorial errors require reversal

. See 305 Kan. at 107. In doing so, Sherman renamed these claims " ' prosecutorial error
, ' " saving the " ' prosecutorial misconduct ' " label for more egregious actions

. 305 Kan. at 90, 114 ("Prosecut orial acts properly categorized as 'prosecutorial misconduct' are erroneous acts done with a level of culpability that exceeds mere negligence."). Sherman did not
disturb the preexisting standard for whether the complained of prosecutorial action was impro per , i.e., the action was outside the wide latitude afforded prosecutors. 305 Kan. at
104 ( "The well

- developed body of caselaw defining the scope of a prosecutor's 'wide latitude' . . . will continue to inform our review of future allegations of prosecutor ial
error." ).

Under Sherman :

"If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman . I n 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 possib ility that the error contributed to the verdict.' [Citation omitted.] We continue to acknowledge that the7

statutory harmlessness test also applies to prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, an appellate cou rt need only address the higher standard of constitutional error.' [Citation omitted.]" 305 Kan. at 109.

The Sherman court further noted,

"Multiple and varied individualized factors can and likely will affect the Chapman analysis in future cases. Every i nstance of prosecutorial error will be fact specific, and any appellate test for prejudice must likewise allow the parties the greatest possible leeway to argue the particulars of each individual case. Thus, appellate courts should resist the temptation to articulate categorical pigeonholed factors that purportedly impact whether the State has met its Chapman burden. Appellate courts must simply consider any and all alleged indicators of prejudice, as argued by the parties, and then
determine whether the St ate has met its burden

— i.e. , shown that there is no reasonable possibility that the error contributed to the verdict. The focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may second arily impact this analysis one way or the other, it must not become the primary focus of the inquiry. As has often been repeated, prejudice can exist even 'in a strong case.' United States v. Socony

- Vacuum Oil Co., 310 U.S. 150, 240, 60 S. Ct. 811,
84 L. E d. 1129 (1940). " 305 Kan. at 110

- 11.

Finally, the same standard of review applies to a prosecutorial error claim concerning closing argument s regardless of whether a defendant raised a contemporaneous objection. State v. Pribble , 304 Kan. 824, 83 1 , 375 P.3d 966 (2016)

.

A NALYSIS

In closing argument, the prosecutor , Assistant District Attorney Todd Hiatt,
commented on C.C. 's credibility, by saying:8 "Based on all the evidence. Right? Based on the way she reacted that afternoon, and the consistency from person to person to person, based upon her emotional state
when she met with [the investigating law enforcement officer] , based on her emotional

state when she met with [the SANE nurse] , based on her emotional state as she sat here and talked to you, the way I see it, there's two options. Right? She's either a heck of an actress and been doing it for a long time or she was raped and criminally sodomized on November 7th, 2011."

In the State's rebuttal argument, the prosecutor responded to defense counsel's closing by stating :

"The defendant sits there presumed innocent. I would submit to you that

. . . [ C.C. ] , who comes in here, deserves a little bit of consideration, too. She gets up there under oath. Right? She swore under penalty of perjury to tell you folks the truth. And as she tells you what happened, did you find anything in her story that made you think she was lying to you all? As she sat there u nder oath, on that stand and related to you in intimate detail that day, doesn't she deserve a certain presumption as well?"

The prosecutor went on to say,

"They got no burden. He doesn ' t have to prove anything to you. I mean, she can say they've prov en things wrong, but that's not their burden. They don ' t have that. But when they try to poke holes in [ C.C. 's ] story, don ' t you want to see something that's going to back up that? I mean, if you're going to poke holes in what she has to say, then
substant iate it, let's see it. You think that she's going to talk to this guy, or talk to all these people about t his guy raping her for 60 bucks? Are you serious?"

The panel determined the prosecutor misstated the law by asserting C.C. 's credibility deserved consideration similar to McBride's presumption of innocence
because she testified under oath. McBride , 2016 WL 199062, at * 4 ("The presumption enjoyed by McBride was different

— not a presumption regarding the truthfulness or9

credibility of witness es, but of his personal innocence until proven guilty beyond a
reasonable doubt

. ")

. But the panel held this error did not deny McBride a fair trial. 2016 WL 199062, at *9.

Using the Tosh paradigm
, the panel concluded the error was not gross and flagrant, not motivated by the prosecutor's ill will, and there was overwhelming evidence against the defendant . 2016 WL 199062, at * 7

- 8. The panel characterized the presumption comment as vague concerning what consideration or presumption the jury should give C.C. and said this ambiguity mitigated the impropriety. 2016 WL 199062, at

* 7.

In discussing the evidence against McBride
, the panel noted the jury acquitted him of several more serious felonies and only convicted him of the lesser included crime of kidnapping, which the panel said suggested the " improper argument did not result in the jury wholly embracing the truthfulness of [ C.C. 's] testimony." 2016 WL 199062, at * 8. Importantly, it concluded:

"[T]he only issue wit h respect to kidnapping was whether [ C.C. ] was at the house by force or threat. Given that [ C.C. ] had dressed for work and was being driven to work [by McBride], there was no explanation for [ C.C. 's] presence with McBride at the house other than, as [ C.C. ] testified, she was forced into the residence." 2016 WL 199062, at

* 8.

Finally, the panel addressed McBride's argument that because his first trial ended in a mistrial on all charges it meant the prosecutor's " ' misconduct in this trial swayed the jury fr om a mistrial on all counts to a conviction of kidnapping. ' " 2016 WL 199062, at

* 8. The panel labeled this argument speculative, noting the improper comment was brief,

vague , and merely a fleeting aspect of the entire trial. It also concluded the jury10

instructions, which stated that counsel's statements were not evidence, would have mitigated the error's impact. And t he panel observed there was additional evidence admitted in the second trial, including photographs and law enforcement testimon y that
matched C.C. 's descriptions about the house where the assault was alleged to have occurred. The panel then concluded, "Given the difference in the presentation of evidence during both trials, McBride's claim that [the prosecutor's] errant comment ca used his conviction is not convincing." 2016 WL 199062, at * 9.

As noted, because the State did not cross

- petition for review of the panel's holding
that the prosecutor strayed outside the wide latitude afforded to prosecutor s by misstating
the law to bolster C.C.'s credibility , we accept that holding in McBride's favor. Accordingly, we move to the harmless ness inquiry. To do so, we must first review the
trial testimony and other evidence relevant to the kidnapping charge

.

Statement of Additional F acts

On November 6, 2011, the day before the reported kidnapping, McBride brought
some food for C.C. and her children and grandchildren

. They ate dinner and watched a movie at her residence in Topeka. He gave her $60 to pay a water bill. They spent the
ni ght together and had consensual sex.

The next morning, C .C. was to attend a job training

. Normally, she took a bus , but on this day McBride offered to give her a ride.

As C .C. was getting dressed, she saw a "hickey on [her] neck," which she
described as "not big and huge, but ve ry noticeable." Since it could not be covered with makeup, she changed into a turtleneck

. At that moment, she testified
, McBride became11

angry, accusing her of planning to meet somebody. As they left the house, McBride was
still "ra nting and raving" about the change of clothes.

C .C. had her book bag containing various personal items including the $60 and her cell phone. When the couple got in to the car, he demanded the money back. C.C. told
him her daughter
, who was asleep in the house, had th e money. C .C. said she did not

want to wake her up. Both continued to argue inside the car for about 20 to 25 minutes

. When C.C. tried to leave with her bag, McBride stopped her by pulling it toward him self

.

Eventually, McBride began driving and C.C thought he was taking her to the training , but instead he drove to his mother's house where he and his sister liv ed. C.C had never been there, did not know who lived there, and had no idea why McBride took her
there. He pulled into the garage at th e bac k of the house. C .C. was upset and refused to get o ut.

C .C. testified McBride o pened her door and then "snatched [her] by [her] arm . . . and pulled her out of the car ." He then "walked" her to the house and took her through the
front door. While doing so, he did not hit or shove her, but C .C. said she did not feel free

to leave. Once inside, McBride pushed her onto a couch and "sa id, 'stay here.'" She
described his behavior toward her as "extreme" and said he had never act ed that
forceful ly w ith h er. She said she was looking around to find a way to get ou t of the house. While there, C.C. went to the bathroom twice . E ach time
, McBride watched her

. He also
walked with her to the kitchen sink when she went to get water.

She testified McBride said, "' What the hell is in this bag that's so important to you?'" He snatched the bag and dumped everyt hing out until h e discovered the money. McBride said, "'You lying bitch.'"12

At that time, McBride also went through the text messages and call history on C.C.'s phone

. He called C .C. a "liar," a "cheater," a "bitch," and a "whore." McBride
called the numbers of males listed in her phone. He called Trevin James, Clifton Steward, Curtis Pitts, and " Willie. " According to C .C. , McBride was "very angry . . . and yell[ ed] at them on the phone. " He asked each man, "Are you fucking my girl?" and said, "Stay

away from my girl."

But Steward testified McBride's voice on the phone was calm and fine although McBride might have used the word "fucking ." And J ames testified he did not feel McBride was a threat to him and felt McBride was "just really trying to figure ou t why [his] number was in [C.C. ]'s cell phone."

Later , McBride gave C .C. her phone back but she never tr ied to call 9

- 1

- 1 or

anyone else. She said, "I wasn' t rea l for sure where I was and I couldn't tell them ho w to get to me." Either before or after the phone calls, McBride hit her in the head or face with
his hand. S he testified a t that point she was not "in particular fear f or [her] life." McBrid e said, "I'm ju st done with you. " S he retrieve d her personal items. She also testified, once
he said he was done, she was thinking he was going to take her home or to the training.
C .C. testified McBride then raped and sodomized her in a bedroom.

Later that morning, McB ride's sister came home and took C .C. back to her house.
McBride rode with the m. McBride's sister testified C .C. did not talk to her but said "she jus t looked normal." Around noon, C .C. reported the crimes to law enforcement. Officer
Chris Hamilton came to her home

. Officer Hamilton testified she was visibly upset, crying, and shaking as she recounted the events.

Officer Hamilton took C.C. to the hospital where Joy Thomas, a sexual assa ult nurse examiner, interviewed her and conducted a head

- t o

- toe exam. Thomas testified she13

did not find any external or internal injury or bruise on C .C.' s body. But Thomas added
that absence of injury was not unusual and did not indicate anything

. Thomas did not note
that C .C

. had a hickey on her neck and found no evidence of injury despite C .C.'s
statement that McBride hit her head

. After C .C. left the hospital, McBride tried calling
her at lea st 25 times.

Two years after the incident
, and shortly before the second trial, C.C. contacted
McBride asking for money to pay an el ectric bill. He said he would do that if she did not testify against him. She refused " because [ she ] had been subpoenaed and . . . could go to jail."

The State Fails to Meet Its Harmless Error Burden

"The right to a fair trial is a fundamental liberty secured by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution." Sherman , 305 Kan. 88, Syl. ¶ 1. We must decide whether the prosecutorial error prejudiced McBride's due pr ocess rights to a fair trial. As discussed, i n evaluating prejudice the court uses the Chapman harmless error test. 305 Kan. at 109. Under that test, the State 's burden is to demonstrate beyond a reasonable doubt that the error did not affect the trial's o utcome in light of the entire record, i.e., "there is no reasonable possibility that the error contributed to the verdict." 305 Kan. 88, Syl. ¶ 8.

When conducting the Chapman analysis, an appellate court must consider " any and all alleged indicators of prejudice , as argued by the parties, and then determine
whether the State has met its burden. " 305 Kan. at 110. Sherman advises that the evidence's strength against the defendant "may secondarily impact" this analysis, and the
court must focus on the error 's impact on the verdict as the primary inquiry because

" prejudice can exist even 'in a strong case.' " 305 Kan. at 11 1.14

We must keep in mind that t he jury convicted McBride only on the lesser included kidnapping charge under K.S.A. 2016 Supp. 21

- 5408(a)(3 ). And i ts elements are central

to the harmless ness analysis. The statute provides, "(a) Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person

. . . (3) to inflict bodily injury or to terrorize the victim or another."
K.S.A. 2016 Supp. 21

- 5408(a)(3).

The State argue s the overwhelming evidence at trial presents no like lihood the
verdict would have been different absent the prosecutor 's error

. The "overwhelming
evidence" it refer s to was C.C. 's testimony that (1) McBride did not let her get out of the car without leaving her book bag behind; (2) when she asked him when they could leave
for her training , he answered "'as soon as I get my money, I'll take you'"; (3) he took her
to hi s mother's house instead of the training ; (4) she did not feel free to leave; (5) inside the house, he pushed her onto the couch and said "'stay here'"; (6) he yelled at her when he found his money in her bag; (7) he yelled at her friends on the phone; and (8) when he gave her phone back she did not call the police because she did not know where she was. This underscores how the State's case hinged on C.C.'s credibility for each point.

Although the panel properly stated the constitutional harmless error te st, we disagree with its analysis and conclusions. We note first we are not persuaded the additional evidence at the second trial strengthened the State's case as much as the panel
believe d

. Based on our review, t his additional evidence did not add anythin g to support the kidnapping charge's critical element that C.C.'s presence in the house was attributable

to force , threat
, or deception by McBride.

In the second trial, there were two additional State witnesses: a YMCA program director and a Topeka Public School District employee in h uman resources. T here was15

one defense witness: McBride 's sister. The first trial's witnesses testified essentially the same as they did in the second , except C.C. said in the second trial that " [w] hen we left my house, I didn't kn ow where I was being taken." But at the first trial, she testified after they left her house, while driving, "at some point" she heard they were going to
McBride's mother's house, so she knew where he was taking her. The YMCA program director testified she did not personally receive C.C. 's telephone call
, but YMCA record s indicated C.C. contacted the agency on November 7, 2011. The YMCA hot line did not
record her call
, and there were no written note s. The school district employee testified she gave the police C.C. 's attendance record for November 7, 2011, which showed her absen t that day.

Exhibits at the second trial were: (1) a city map; (2) a picture showing Washburn
Tech where C. C. was to have ha d the training; (3) a picture of the door going into the house and the couch; (4) a picture of the door and plants in the background in front of the window; (5) another door picture; (6) several bedroom pictures ; (7) a printout showing
C .C. 's absence; (8) several house pictures from different angles; (9) black shirts seized by the police; (10) a bed comforter and another shirt seized by the police; and (11) a property receipt for the sexual assault kit taken from the hospital. None of th ese add to the force, threat, or deception element.

After careful review, although it is quantit at ively obvious the State introduced more evidence at the second trial, none can be described as direct and overwhelming concerning the critical element for M cBride's kidnapping charge : McBride 's alleged use of force or threat when taking or confining C .C. in the house. See K.S.A. 2016 Supp. 21

- 5408(a)(3). In other words, at both trials C .C.'s uncorroborated testimony was the only
evidence about this , so the j ury's credibility determination about what she was saying was key

— and that is what the prosecutor improperly tried to bolster by claiming C.C. deserved a credibility presumption akin to McBride's presumption of innocence.16

We are also unpersuaded by t he Court of Appeals ' rationale that "there was no explanation for [C.C.'s] presence with McBride at the house other than, as [she] testified,
she was forced into the residence

. " Having reviewed the record, it is equally plausible , for example, she remained th ere because she wanted or needed someone to give her a ride.

As noted in Sherman , "prejudice can exist even 'in a strong case.'" Sherman
, 305
Kan. at 111. But this was not a strong case due to the lack of evidence corrobora t ing
C.C.'s testimony

. And the prosecutor's "presumption" comment reasonably could have
caused the jury to accept her testimony in the absence of anything else to support it

. We
are also unconvinced the jury would have understood the instructions , which emphasized the impact of the defendant's constitutional presumption of innocence, to preclude the evidentiary presumption for which the prosecutor advocated , i.e., " doesn't she deserve a certain presumption as well? " Finally, we note the jury in the first trial did not reach a
unanimo us verdict on any of the counts after hearing th e same evidence as to force
, threat , or deception , as the second jury

.

Under these circumstances
, we hold t he State did not meet its burden of showing there is no reasonable possibility the prosecutor's e rror contributed to the guilty verdict

. See State v. Akins , 298 Kan. 592 , 613 , 315 P.3d 868 (2014) (holding no physical evidence made witnesses' credibility of paramount importance, and concluding the prosecutor's comments were reversible error); State v. Pabst , 268 Kan. 501, 511

- 12, 996 P.2d 321 (2000) (noting "the jury . . . might have decided Pabst was guilty because the prosecutor told it Pabst was lying" and holding, because there was no overwhelming evidence, it required reversal). But see State v. Kn ox , 301 Kan. 671, 687, 347 P.3d 656 (2015) (holding prosecutorial error was harmless since significant evidence, including testimony by several independent witnesses and physical evidence, supported jury's verdict).17

To be sure, it is rare for this court to reverse a criminal conviction due to a prosecutor's improper comment ary during closing argument s . But as we noted in
Sherman , these cases obligate the judiciary to " focus on and vindicate the dual interests of justice that are present in a criminal case

— viz ., the rights of the defendant to receive a fair trial and society's need to punish and deter crime." Sherman , 305 Kan. at 93. I n this
instance , we are obligated to vindicate McBride's right to a fair trial.

W e reverse McBrid e's kidnapping conviction and remand to the district court for further proceedings.