1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 125,449

STATE OF KANSAS,

Appellee,

v.

ADRIAN N. ZONGKER,

Appellant.

SYLLABUS BY THE COURT

1.

While the PIK instruction defining premeditation is generally sufficient, in cases 

involving a temporal question—and where the temporal intricacies embedded in the legal 

concept of premeditation may confuse the jury—additional instructional language 

defining premeditation is appropriate so long as it properly and fairly states the law and is

not reasonably likely to mislead the jury.

2.

A defendant meets the first prong of establishing prosecutorial error by showing 

that the prosecutor misstated the facts in evidence, even if the misstatement was 

accidental or inadvertent.

3.

Generally, we do not address the merits of an ineffective assistance of counsel 

claim for the first time on appeal. Instead, the usual course is a remand to the district 

court for an evidentiary hearing on the ineffective assistance claim. We will only address 

the merits of an ineffective assistance claim for the first time on appeal on the rare 
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occasions when the evidentiary record is well-established and the merits of the claim are 

obvious. If a defendant does not request a remand, this court need not order one sua 

sponte. 

4. 

The defendant bears the burden to persuade a sentencing court that a mental 

examination, evaluation, and report under K.S.A. 22-3429 serves the interests of justice. 

K.S.A. 22-3429 does not require courts to raise this issue sua sponte; a district court does 

not abuse its discretion in failing to order an evaluation if a defendant does not request 

one. 

5.

K.S.A. 21-6620(c)(2)(A) does not require a district court to state on the record its 

reasons for denying a departure motion and imposing a presumptive sentence.

Appeal from Sedgwick District Court; SETH RUNDLE, judge. Oral argument held January 31, 

2024. Opinion filed September 13, 2024. Conviction affirmed, sentence vacated in part, and case 

remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the 

brief for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Kris W. Kobach, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by 

STEGALL, J.: Adrian N. Zongker was a customer at a restaurant owned by Oscar 

and Amelia Acosta in Wichita. He had with him a diaper bag and a zebra striped clutch.
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Zongker's appearance and demeanor immediately made Amelia uncomfortable, but she 

took his order while Oscar observed on their security cameras. 

After he finished his food, Zongker placed a second order. When it was ready 

Amelia brought it out to the booth where Zongker was seated, and Amelia picked up the 

empty tray in front of Zongker as she sat down the second tray of food. She noticed that 

there was a Wal-Mart receipt on the tray as she took it to the trash. 

At this point a family entered the restaurant and Amelia went to take their order. 

Zongker finished up his meal, took his second tray to the trash, and exited the restaurant. 

Amelia felt relieved, but remained apprehensive because she could see Zongker standing 

outside digging through his diaper bag. 

Shortly after, Zongker came back into the restaurant and went to the booth where 

he had been sitting, where he appeared to frantically search for something. Amelia asked 

him what he was looking for, but Zongker did not reply. Zongker then went to the trash 

can, still clearly searching for something. Amelia again asked Zongker what he was 

looking for and he indicated that he was looking for a receipt. Amelia told him that a 

Wal-Mart receipt had been on the tray she had emptied into the trash can. She retrieved it 

from the trash and handed it to him. But Zongker then said he was looking for a little bag

containing coins. Zongker continued his search around the trash, eventually returning to 

the booth and dumping everything out of his diaper bag, only to return to the trash can. 

While Zongker was continuing his search between the booth and the trash can, 

Oscar came out of the kitchen and carried the trash outside to the front of the restaurant

so Zongker could continue his search there. Amelia could see them from the window and 

said Oscar appeared relaxed and was just standing and watching Zongker dump all the 

trash on the ground. 
4

Amelia returned her attention to the customers inside, and suddenly she heard a 

gunshot. She looked up and immediately saw Oscar running into the restaurant and 

yelling, "[E]verybody to the floor. Get down to the floor." Amelia dropped to the floor, 

crawled over to Oscar, and saw the gunshot wound on his chest. She called 911 and 

grabbed the key to lock the restaurant door. Oscar later died at the scene. Immediately 

after shooting Oscar, Zongker returned to digging through the trash for several moments, 

before fleeing in the direction of a nearby QuikTrip. 

Law enforcement quickly located Zongker a short distance away. When police 

approached Zongker, he dropped his bag onto the ground, put his hands in the air, and 

said, unprompted: "I did it. I did it. The gun's in the bag." Officers arrested Zongker, 

during which he asked the officers: "Is he going to live?" Upon search of Zongker's 

zebra clutch and diaper bag, police found a gun, ammunition, and some silver collector 

coins.

The State charged Zongker with premeditated first-degree murder and criminal 

possession of a weapon. After the charges were filed, Zongker was evaluated and found 

competent to stand trial. Defense counsel did not object to that finding. Zongker rejected 

a deal to plead guilty to intentional second-degree murder. Instead, he pled no contest to 

criminal possession of a weapon and proceeded to trial on the murder charge. 

While in jail, Zongker had telephone conversations with his parents, which were

recorded by jail officials and played for the jury. During the calls, Zongker explained that 

he was justified in the killing because he believed the people in the restaurant had stolen 

several hundred dollars' worth of gold and silver from him. 
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In one call, Zongker's mom said: "It's a family of five . . . they had four kids and a 

wife, you took that man away from his family." Zongker responded: "You know what, 

they took $700 from me . . . I set two gold coins down . . . okay, but that's $700, okay, 

they did me like that, they took a lot of money from me."

A few days later, on another call, this exchange occurred: 

Family member: "A human life isn't worth . . . $600." 

Zongker: "If you add it all up, this whole shit cost me $1,500 when you 

add it all up."

Family member: "I just don't approve of, you know, taking people's life 

over stuff like that."

Zongker: "$1,500? What if I stole $1,500 . . . from you?"

Family member: "You don't kill somebody over $1,500, okay? You just 

don't."

Zongker: "If your property is being stolen, that's stand your ground right 

there."

In another clip, Zongker again emphasized: "Okay, $802 in gold, okay? $802 in 

gold, okay? They may have paid for their business, but $802 in gold." 

And another:

Family member: "Nobody's life is worth a dollar, nobody's life is worth a 

billion dollars." 
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Zongker: "How about $800 in gold, . . . and $120 silver, . . . about $900 

bucks. How 'bout that? . . . What if I took your wedding ring,

your mom's wedding ring and sold it, how would you feel 

about that?"

Family member: "Well I'd be really pissed off, but I'm not gonna kill you 

over it."

Zongker: "That's exactly what happened . . . the same ole, the Mexicans, 

they did that to me. Okay? They been doing it just to piss me 

off. They think I'm stupid or something. I was drunk!" 

And finally:

Zongker: "Let them try to get to me, I'll kill another one of them if they 

try to get to me—"

Family member: "No, no, no, no. No, no, no! You don't understand—"

Zongker: "I ain't scared of no fuckin [unintelligible] them . . . Okay, we 

have this man, who lost his life, get over it?"

Family member: "Nobody gets over shit like that, that man had a family! 

He was supporting, getting your damn check, man—"

Zongker: "Nine hundred dollars—"

Family member: "The man owned the fucking business—"

Zongker: "Well that's my $900, that's my money that he stole from me." 

The jury also heard from Dr. Bradley Grinage, a psychiatrist, who interviewed 

Zongker before trial. Dr. Grinage testified that Zongker has an average IQ and he had 

seen no evidence of "cognitive disability, learning disability, or intelligence problem." He 
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testified that Zongker has a personality disorder, bipolar disorder, and autism spectrum 

disorder, but that Zongker did not have schizophrenia. After reviewing all available 

evidence, Dr. Grinage found with a reasonable degree of medical certainty that though 

Zongker did suffer from mental disease, at the time of the shooting, his mental disease 

was not "sufficient to interfere with his ability or capacity to formulate intent," and that 

there were "no significant cognitive psychotic symptoms that would suggest that he was

unable" to form the requisite intent.

During their sessions, Zongker provided Dr. Grinage with "rational, nonpsychotic" 

reasons for killing Oscar. Much like in the phone calls, Zongker expressed that he knew 

that someone had taken his coins and so he was acting in self-defense. The justifications 

he offered to Dr. Grinage for why he shot Oscar were: (1) "he would freeze to death" 

without his coins; (2) when Oscar was helping him go through the trash he "called him a 

name" and threatened "to call the police"; (3) "'[i]t was [his] money'"; and (4) "he's been a 

victim all of his life, and he had to stand his ground." 

The jury was given instructions for premeditated first-degree murder as well as a 

lesser included instruction for second-degree murder. The jury was also instructed:

"You may find the defendant guilty of murder in the first degree, guilty of 

murder in the second degree, not guilty solely because the defendant, at the time of the 

alleged crime, was suffering from a mental disease or defect which rendered the 

defendant incapable of possessing the required culpable mental state, or not guilty.

"When there is a reasonable doubt as to which of two or more offenses defendant 

is guilty, he may be convicted of the lesser offense only, provided the lesser offense has 

been proven beyond a reasonable doubt."

The jury convicted Zongker of premeditated first-degree murder. 
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At sentencing, Zongker provided a summary of his lengthy written allocution as 

follows:

"[T]his is not the only time me, Adrian Zongker, has been attacked, mugged, 

bullied, extorted for my money. These group of people exploit and extort me any chance 

they get. This is one of many times that's been in front of you, . . . that I've been attacked 

and mugged for my money. These people set me up that day knowing that I got my 

disability and my back pay; set me up to take my stuff, and . . . they set me up to rob 

me—mug me—and . . . that's it.

"I want—I want—I want justice against these groups of people who have 

embezzled me, allegedly, over phone calls. I just found out about this. I was talking to 

them on the phone after the fact—months after the fact. Got $40,000 out of me. They're 

stacking my disability when I was locked up. I didn't know this until now. I want justice. 

I want them brought down too."

Just after Zongker provided this summary, the court, after looking over Zongker's 

written allocution, asked Zongker: "I just got to the part where you said, 'I probably 

deserve a life sentence.' . . . Is that a part of your statement?" Zongker responded: "Yeah. 

I was drunk and I probably lost my own stuff. But, I do have evidence that it's part of a 

larger conspiracy. So . . . yeah." 

Zongker moved for a downward durational departure, offering as mitigating 

factors the fact that he "suffers from a mental disease and has a long history of mental 

impairment and was lacking in substantial capacity for judgment at the time of the 

offense," and that despite the jury's verdict, there was "relatively little evidence to support 

premeditation and the killing more likely appears to have been done on sudden impulse." 

The district court denied the motion and imposed a hard 50 life sentence.

Zongker directly appealed.
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DISCUSSION

Sufficient evidence supports Zongker's conviction for premeditated murder. 

Zongker first claims that the "killing in this case appears to be a textbook example 

of what a killing without premeditation looks like." He asserts that in contrast to this 

court's other cases evaluating the sufficiency of premeditation, the record here contains 

no "evidence of any sort of fight, quarrel, or struggle, or multiple wounds or strangulation 

over a period of time." Instead, Zongker compares the killing in this case to an "'impulse'

decision," one made "'without a second thought,'" or an "internal, snap decision." State v. 

Stanley, 312 Kan. 557, 572, 478 P.3d 324 (2020). And Zongker states that "[r]eview of 

the video in this case shows exactly this . . . type of act." 

When a defendant challenges the sufficiency of the evidence, we review the 

evidence in a light most favorable to the State to determine whether a rational fact-finder 

could have found the defendant guilty beyond a reasonable doubt. We do not reweigh 

evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. 

Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). "[E]ven the gravest offense can be 

based entirely on circumstantial evidence. Sufficient circumstantial evidence does not 

need to exclude every other reasonable conclusion to support a conviction. [Citations 

omitted.]" State v. Zeiner, 316 Kan. 346, 350, 515 P.3d 736 (2022); see also State v. 

Phillips, 299 Kan. 479, 498, 325 P.3d 1095 (2014) ("[I]t is not necessary that there be 

direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and 

intent may be inferred from the established circumstances of a case, provided the 

inferences are reasonable."). 

We have identified nonexclusive factors to consider in determining whether 

circumstantial evidence gives rise to an inference of premeditation. These factors include

the: (1) nature of the weapon used; (2) lack of provocation; (3) defendant's conduct 
10

before and after the killing; (4) threats and declarations of the defendant before and 

during the occurrence; and (5) dealing of lethal blows after the victim was rendered 

helpless. The number of factors present does not affect the analysis of what inferences 

can be reasonably drawn, because in some cases one factor alone may be compelling 

evidence of premeditation. However, use of a deadly weapon by itself is insufficient to 

establish premeditation. State v. Killings, 301 Kan. 214, Syl. ¶ 3, 340 P.3d 1186 (2015).

This killing was committed with a firearm, a deadly weapon. Oscar did not 

provoke Zongker; rather, the killing was committed during an encounter where both

shooter and victim had been "engaged in a relatively calm confrontation" during which 

neither party yelled or displayed aggression toward one another. State v. Schumacher, 

298 Kan. 1059, 1068, 322 P.3d 1016 (2014); see also State v. Pabst, 268 Kan. 501, 513, 

996 P.2d 321 (2000) (finding sufficient evidence of premeditation in part because 

although defendant and victim were engaged in a "mild, nonviolent argument," defendant 

was not provoked). Zongker, without warning, shot Oscar at point blank range in the 

chest. And as soon as he had done so, he resumed looking through the trash without even 

a glance at Oscar, even though he knew his shot had hit Oscar as evidenced by his asking 

the police: "Is he going to live?" Zongker did not seek medical aid for Oscar or attempt 

to call for help after shooting him. See State v. Carter, 305 Kan. 139, 153, 380 P.3d 189 

(2016) ("[A] defendant's conduct after a killing indicative of earlier premeditation has 

included failure to seek medical attention for the victim."); State v. Hill, 290 Kan. 339, 

363, 228 P.3d 1027 (2010) ("[T]he evidence that Hill did not seek medical attention for 

Yanofsky circumstantially supports premeditation and intent to kill.").

Zongker immediately confessed to the police, and no evidence was presented that 

he ever expressed remorse. See Carter, 305 Kan. at 153 (Statements that "show lack of 

remorse are in the same category as the defendant's post-killing conduct in our previous 

cases and could be considered by the jury for whatever weight they would bear. . . . The 

fact that lack of remorse may not always give rise to an inference of premeditation does 
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not mean it never can."). Rather, he continuously doubled down on justifying his actions 

in both the series of phone calls and in his interviews with Dr. Grinage. His insistence 

that he was entitled to stand his ground because "the Mexicans" had stolen money from 

him—even asserting that he would "kill another one of them" if they tried it again—all 

may give rise to a reasonable inference of a premeditated act.

Zongker was "free to argue to the jury that the circumstantial nature of much of 

the evidence created reasonable doubt, but on appeal we accept the circumstantial 

evidence in the light most favorable to the State when assessing sufficiency." State v. 

Ward, 292 Kan. 541, 581-82, 256 P.3d 801 (2011). Zongker's jury was given options for 

either premeditated first-degree or intentional second-degree murder. It was also 

specifically instructed that if there was a "reasonable doubt as to which of two or more 

offenses defendant is guilty, he may be convicted of the lesser offense only, provided the 

lesser offense has been proven beyond a reasonable doubt." To reach the result Zongker 

requests, we would have to make our own credibility determinations and reweigh the 

evidence. But these are not tasks an appellate court performs when conducting a 

sufficiency review. Instead, we consider all evidence—even if there is conflicting 

evidence or reasons to question its credibility—and do so in the light most favorable to 

the State. Phillips, 299 Kan. at 500-01. In so doing, we conclude the circumstantial 

evidence establishing premeditation is sufficient.

The district court did not err in declining to give an instruction for voluntary 

manslaughter. 

To analyze Zongker's second claim of error, we begin with our familiar multi-step 

process for analyzing jury instruction issues, determining (1) whether the issue is 

preserved for appeal, (2) whether the instruction was legally appropriate, (3) whether the 

instruction was factually appropriate, and (4) if any identified error was harmless. State v. 

Wimbley, 313 Kan. 1029, 1033, 493 P.3d 951 (2021). 
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Here, the first and second steps of the analysis are satisfied: Zongker preserved 

the voluntary manslaughter instruction issue for appellate review by requesting it at trial, 

and voluntary manslaughter is a lesser included offense of premeditated first-degree 

murder, meaning the instruction was legally appropriate. State v. Uk, 311 Kan. 393, 397, 

461 P.3d 32 (2020). In determining whether a lesser included instruction was factually 

appropriate, we ask whether there was sufficient evidence in the record, viewed in the 

light most favorable to the requesting party, to have supported a conviction for the lesser 

included offense. State v. Couch, 317 Kan. 566, 591, 533 P.3d 630 (2023).

Here, Zongker's claim fails. K.S.A. 21-5404(a)(2) provides: "Voluntary 

manslaughter is knowingly killing a human being committed . . . upon an unreasonable 

but honest belief that circumstances existed that justified use of deadly force under . . . 

K.S.A. 21-5225." K.S.A. 21-5225 provides: 

"A person who is lawfully in possession of property other than a dwelling, place 

of work or occupied vehicle is justified in the use of force against another for the purpose 

of preventing or terminating an unlawful interference with such property. Only such use 

of force as a reasonable person would deem necessary to prevent or terminate the 

interference may intentionally be used."

Zongker relies on State v. Qualls, 297 Kan. 61, 70, 298 P.3d 311 (2013), to assert 

that "there is no objective requirement" under the voluntary manslaughter theory of 

imperfect self-defense. In other words, Zongker argues that if one looks only at the words 

"unreasonable but honest belief" in K.S.A. 21-5404(a)(2), the evidence when viewed in 

the light most favorable to him would support a conviction for voluntary manslaughter. 

And if this is where the analysis both began and ended, we would agree with him.
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There is, however, more to it than that. We considered precisely this question 

when we clarified the meaning of Qualls in State v. Roeder, 300 Kan. 901, 921-24, 336 

P.3d 831 (2014). There we explained that a "purely subjective interpretation does not 

comport with the statutory language," because had

"the legislature had intended to allow a defendant to make up his or her own version of 

the law based upon the defendant's declaration of an honest belief, the statute could have 

simply defined the crime as an intentional killing of a human being committed upon an 

unreasonable but honest belief that circumstances existed that justified deadly force. But 

the statute adds something; it requires that the honest belief has to be 'that circumstances 

existed that justified deadly force under [K.S.A. 21-5222, 21-5223 or 21-5225], and 

amendments thereto.'" 300 Kan. at 923.

Here, under K.S.A. 21-5225, the scope of a defendant's "unreasonable but honest 

belief" that deadly force was justified is limited to only such "force as a reasonable 

person would deem necessary to prevent or terminate" an unlawful interference with 

property. Zongker insists he "honestly believed that he needed to protect his property." 

But even assuming Zongker honestly believed he needed to protect against an unlawful 

interference with his coins, this circumstance would not have justified killing Oscar 

because no reasonable person in these circumstances could have deemed the killing of 

Oscar as necessary to prevent or terminate the unlawful interference of Zongker's 

possession of his coins. This is especially true when considering, as noted above, 

Zongker did not even claim Oscar was the individual who stole his coins. And in fact, 

Oscar was not even present when Zongker's coins allegedly went missing. Instead, 

Zongker maintained that he had "been a victim all of his life" and that he had to "stand 

his ground." On these facts, a conviction for voluntary manslaughter would not have been 

supported. It was not error for the district judge to decline to give the instruction. 
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The district court did not err in giving additional instructions regarding premeditation.

At trial the State requested that additional language defining premeditation from 

State v. Bernhardt, 304 Kan. 460, 472, 372 P.3d 1161 (2016), be included in the jury 

instructions. The district court gave the instruction over defense counsel's objection. 

Therefore, the issue is preserved for our review. 304 Kan. at 469.

Jury Instruction No. 4 contained the standard PIK premeditation instruction, 

followed by four additional paragraphs drawn directly from our decisions in Stanley, 312 

Kan. at 562-63, State v. Stafford, 312 Kan. 577, 580, 477 P.3d 1027 (2020), and 

Bernhardt, 304 Kan. at 464. The instruction as given stated:

"Premeditation means to have thought the matter over beforehand, in other 

words, to have formed the design or intent to kill before the act. Although there is no 

specific time period required for premeditation, the concept of premeditation requires 

more than the instantaneous, intentional act of taking another's life.

"Premeditation is the process of thinking about a proposed killing before 

engaging in homicidal conduct.

"Premeditation does not have to be present before a fight, quarrel, or struggle 

begins. Premeditation is the time of reflection or deliberation. Premeditation does not 

necessarily mean that an act is planned, contrived or schemed beforehand.

. . . .

"Premeditation can be inferred from other circumstances including: (1) the 

nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before 

and after the killing, (4) threats and declarations of the defendant before and during the 

occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered 

helpless.
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"Premeditation can occur during the middle of a violent episode, struggle or 

fight." 

The State, in requesting the additional paragraphs, explained that it felt "the before 

and after conduct language is helpful, as is the process of thinking about a proposed 

killing before engaging in the contact. It doesn't have to be present before." The district 

court agreed, explaining: 

"I'm going to give the State's requested premeditation definition, and the reason 

why is, even the last sentence, it says premeditation can occur during the middle of a 

violent episode, struggle, or fight. That—they might think there was some sort of fight of 

some degree going on. I think the evidence of that is pretty thin. But I think what the 

State's definition does is, it provides some more parameters. So, even if the jury does not 

believe that there was a violent episode, struggle, or fight going on, this definition lets 

them know that that's where one of the, you know—that even if there is a serious violent 

episode going on, that that does not exclude premeditation from occurring during the 

middle of that. And I think that is helpful for them to understand what—what 

premeditation means, and that it can occur even in the middle of something that they may 

believe didn't rise to the level of a violent episode, but if it had premeditation, they could 

still find that it occurred." 

Zongker contends that though this additional instruction was legally appropriate—

as it is a correct statement of the law—it was not factually appropriate because in his case 

there was no fight, quarrel, or struggle. The State asserts that evidence of a fight, quarrel, 

or struggle is not necessary in order to use the additional language. Rather, the instruction 

can be used whenever a temporal question exists. And the State asserts there was a 

temporal question in Zongker's case, because several minutes had elapsed from the time 

Zongker reentered the restaurant to the moment that he fired the gunshot. 
16

We agree. While we maintain that generally, the PIK alone is sufficient, see State 

v. Hilyard, 316 Kan. 326, 336, 515 P.3d 267 (2022), the additional language is 

appropriate in any case where jurors could be confused "over the temporal intricacies 

embedded in the legal concept of premeditation." Stanley, 312 Kan. at 565. In Zongker's 

case, he could have formed premeditation after he had begun searching through the trash, 

but before he went outside and killed Oscar. In that sense, the temporal clarification in 

the instruction was helpful. And despite the instruction's reference to a fight, quarrel, or 

struggle, we do not find that that reference would mislead the jury. See Hilyard, 316 Kan. 

at 334 (When the given instructions "were sufficient, meaning that they properly and 

fairly stated the law and were not reasonably likely to mislead the jury, there is no error 

for an appellate court to correct." [Emphasis added.]).

The State did not commit reversible prosecutorial error.

Zongker next alleges that several instances of prosecutorial error during closing 

arguments require reversal of his conviction. He points to three instances where the 

prosecutor misstated the facts, and one instance where he alleges the prosecutor misstated 

the law. 

We employ a two-step process to evaluate claims of prosecutorial error: error and 

prejudice. State v. Sieg, 315 Kan. 526, 535, 509 P.3d 535 (2022). 

"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. In evaluating prejudice, we simply adopt the traditional 

constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if 
17

the State can demonstrate 'beyond a reasonable doubt that the error complained of will 

not or did not affect the outcome of the trial in light of the entire record, i.e., where there 

is no reasonable possibility that the error contributed to the verdict.'" State v. Sherman, 

305 Kan. 88, 109, 378 P.3d 1060 (2016). 

A defendant meets the first prong by establishing the prosecutor misstated the law 

or argued a fact or factual inferences outside of what the evidence showed. State v. 

Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018) ("When a prosecutor argues facts outside 

the evidence, the first prong of the prosecutorial error test is met."). In determining 

whether a particular statement falls outside of the wide latitude given to prosecutors, we

consider the context in which the statement was made, rather than analyzing the 

statement in isolation. State v. Becker, 311 Kan. 176, 182, 459 P.3d 173 (2020).

During closing arguments, the prosecutor claimed Zongker murdered Oscar "by 

shooting him in the head [sic] just because he didn't get what he wanted." Zongker admits 

this was just an "unintentional oversight," though our caselaw suggests it is error 

nonetheless. See State v. Sturgis, 307 Kan. 565, 570, 412 P.3d 997 (2018) ("[A] 

prosecutor commits error by misstating the evidence, even when the misstatement is 

accidental or inadvertent."); State v. Blansett, 309 Kan. 401, 416-17, 435 P.3d 1136 

(2019) (prosecutor stated "I recall that in [defendant's] testimony," even though defendant 

had not testified; prosecutor quickly corrected himself that he was referring to testimony 

of others who repeated what defendant said; though the "misstatement was repaired 

quickly," it was still prosecutorial error); State v. Bodine, 313 Kan. 378, 411, 486 P.3d 

551 (2021) (assumed error when prosecutor claimed victim's body had no eyes when 

evidence only had shown victim had no "eye fluid").
18

But even considering this misstatement as error, we easily conclude it was

harmless, as there is no reasonable probability it contributed to the verdict. There was no 

dispute that Oscar was shot in the chest. The error was clearly a result of a slip of the 

tongue and had no effect on the outcome of the trial. 

Next, Zongker claims the prosecutor erred by mischaracterizing Dr. Grinage's 

testimony. As noted above, Dr. Grinage was careful not to opine on whether Zongker 

possessed the intent to kill; rather, he precisely articulated that his conclusion was only 

that Zongker's mental disease was not "sufficient to interfere with his ability or capacity 

to formulate intent," and that there were "no significant cognitive psychotic symptoms 

that would suggest that he was unable" to form the requisite intent. But in closing, the 

prosecutor stated:

"[Dr. Grinage] told you in no uncertain terms: In spite of that, the defendant still 

possessed the necessary intent to kill. That evidence can only be determined whether or 

not he has the culpable mental state. You'll see a definition for that later in the 

instructions, that culpable mental state. That's one of the elements that the State has to 

prove as it pertains to the offenses of premeditated first-degree murder and second-degree 

murder. Dr. Grinage told you that he's capable of forming that intent. 

"At the time of the murder, he was bipolar. He did not suffer from a mental 

disease or defect sufficient to render the defendant incapable of possessing the intent 

required to commit first-degree murder. Is he odd? Did he have odd behavior? Sure. 

Eccentric? Yes. Motivations that we cannot relate to or perhaps we don't understand? 

Yes. He can still form intent." (Emphases added.)

Zongker alleges the bolded statement is error, despite the italicized portions that 

came soon after which correctly described Dr. Grinage's testimony. The State agrees the 

first statement was incorrect, but asserts that because the prosecutor immediately 

followed up with correct statements the jurors would not have been misled. 
19

Again, our precedent indicates that the first step in a prosecutorial error analysis is 

satisfied when the prosecutor misstates facts, even if they are quickly corrected. See 

Sturgis, 307 Kan. at 570; Blansett, 309 Kan. at 417. Thus the prosecutor's statement that 

"[Dr. Grinage] told you . . . the defendant still possessed the necessary intent to kill" was 

error.

Turning to the second step of our analysis, prosecutorial error is harmless if the 

State can show that there is no reasonable possibility that the error contributed to the 

verdict. Sherman, 305 Kan. at 109. Zongker asserts the error cannot be harmless given 

the very strong language that prefaced the misstatement—"[h]e told you in no uncertain 

terms"—and that the corrections that followed could not mitigate the strength of the 

initial misstatement. 

We disagree. We find the error was harmless because (1) the State corrected itself 

immediately after making the misstatement; (2) Dr. Grinage was very careful to speak 

precisely during his testimony and repeatedly corrected the attorneys if they started to ask 

questions that blurred the line of what he could testify to; (3) the misstatement went to 

whether Zongker formed the requisite intent to kill (as opposed to premeditation) which 

was not a contested element at trial; and (4) the jury was instructed that it should 

disregard any statement not supported by the evidence. See State v. Thomas, 307 Kan. 

733, 744-45, 415 P.3d 430 (2018).

Dr. Grinage was careful in how he presented his findings. For example:

"Q. Was he able to form the intent to kill? 

"A. My—my request, how I address those who would have asked the question is: My 

expertise is not specifically on intent, but on mental disease or defect.

. . . .
20

". . . I drew an opinion that he did not have mental disease or defect sufficient to 

interfere with his ability or capacity to formulate intent as to the charges that were 

presented that I saw, which was first-degree murder."

And later:

"I don't—you know, at this particular point, I don't know if it's been stipulated that 

he did kill him. My job is to evaluate and look at mental disease or defect. And so, 

you know, what I can say is that he understood when he—when the police were 

interviewing him—someone did die—and he had an awareness that a person had 

died. And so, I didn't specifically ask him, you know, did you do this specifically?

That's not my job." (Emphases added.) 

Throughout his testimony Dr. Grinage remained consistent in how he characterized 

his findings and was careful to speak precisely. Considering how cautious Dr. Grinage 

was to be clear about what exactly he was testifying to, the prosecutor's error—that again, 

was quickly corrected—did not affect the outcome of the trial in light of the entire record. 

This is particularly true considering that the error did not relate to premeditation, but 

rather, went to whether Zongker had the intent to kill. Indeed, the simple "intent to kill"

was conceded by Zongker's counsel both at trial and on appeal. In closing argument 

counsel stated: 

"I'm not suggesting that you find Adrian Zongker not guilty of everything. I'm not for a 

minute suggesting that. I'm not suggesting that you not find that he had the inability to 

form intent. I'm not suggesting that either. . . . The big thing here, ladies and gentlemen, 

is not the culpable mental state. They've proven that. That's not what this is about. This is 

about the other element about premeditation."
21

Appellant's brief stated that "[b]ased on the evidence presented and appointed counsel's 

admissions, the jury could have reasonably found that Mr. Zongker intentionally killed 

Oscar." 

Zongker next claims the prosecutor misstated the location of the gun at key 

moments during the events in question. The prosecutor claimed that when Zongker 

entered the restaurant, 

"the gun is in the clutch, and the clutch is in the bag. If you watch the video carefully, 

you're going to see that he's retrieved the gun. He's got the clutch in his hand. And so, as 

he searches and becomes more and more frustrated, he begins to look for: Who can I 

blame for this frustration?" . . . [H]e's getting more frustrated. . . . The gun is now out of 

the bigger bag, and it's in his hand. By the time he gets outside, he wields and uses the 

gun." (Emphases added.) 

Zongker's counsel moved for a new trial because of these misstatements. He 

correctly argued that contrary to the State's assertions, the undisputed video evidence 

showed the clutch was initially outside of the diaper bag, and that Zongker only put the 

clutch into the bag as he was getting ready to go outside with Oscar. Thus, according to 

Zongker, the State's misstatements misled the jury into thinking Zongker "had removed 

the clutch from the bag so that he could shoot the guy, and that was his premeditation." 

But in reality, it was "the opposite. It's that the clutch is always outside of the bag. It goes 

into the bag for the first time right before he exits" the restaurant. Zongker's counsel also 

criticized the timing of the State's statements, because it was brought up in the second 

half of the State's closing argument, so defense counsel was left with no "opportunity to 

try to clean up that mistake." 

The district court denied the motion, stating: "I'm not aware of the prohibition on 

counsel arguing facts in evidence at any particular point during their closing argument," 

and also noting that the jurors had the video available to them during their deliberations. 
22

The State now admits in its brief that the prosecutor "misspoke" when discussing 

the location of the zebra clutch. But the State contends that "the broader point that the 

prosecutor was making was valid," because the video did show that Zongker retrieved 

and held the clutch before the shooting. In fact, Zongker had initially left both his bags at 

the booth while he searched the trash, but went back and retrieved only the clutch when 

Oscar first came to help him. The State asserts that it is reasonable to infer that Zongker 

viewed Oscar as a threat to his property and decided to retrieve the clutch at the time 

Oscar got involved, because Zongker was preparing to use the gun against him. As such, 

the "prosecutor did not err in making this observation and arguing that it was evidence 

that defendant was planning to use the weapon." 

But even if this was fair commentary on the evidence broadly speaking, it is not 

what the prosecutor said when specifically discussing the evidence. The prosecutor told 

the jury that the gun was in the clutch and that the clutch was in the diaper bag the whole 

time and that Zongker only took it out as he was getting agitated during his search. The 

video shows that this simply is not true. As such, the prosecutor erred in making these 

statements. Sturgis, 307 Kan. at 570.

Again, once an error is established, the court turns to determining whether the 

State has demonstrated beyond a reasonable doubt that the error did not affect the 

outcome of the trial in light of the entire record. Sherman, 305 Kan. at 109. As noted 

above, the district court instructed the jury that "[s]tatements, arguments, and remarks of 

counsel are intended to help you in understanding the evidence and in applying the law, 

but they are not evidence. If any statements are made that are not supported by evidence, 

they should be disregarded." See Thomas, 307 Kan. at 744-45 (this instruction can 

mitigate a prosecutor's misstatement of fact and can support a finding of harmlessness). 

Though the prosecutor's statement that the "gun is in the clutch, and the clutch is in the 

bag" was not correct at the time Zongker entered the restaurant, the overall point that the 
23

prosecutor was making—that Zongker kept his clutch close at hand during his search for 

his coins and while his frustration was building, including when Oscar first approaches 

him, and that he eventually removes the clutch and then removes, wields, and uses the 

gun—is supported by the video evidence. And the jury was instructed to disregard any 

statement not supported by the evidence. For these reasons we do not find that the 

prosecutor's error in misstating the location of the gun when Zongker entered the 

restaurant affected the outcome of the trial. 

Finally, Zongker argues the prosecutor committed an error of law by stating: "He 

decides to carry a gun. He decides to pull the gun. He decides to aim. And he decides to 

pull the trigger." Zongker claims this argument is error because it suggests premeditation 

is always present when a person intentionally kills another person with a gun. We do not 

analyze statements in isolation. Becker, 311 Kan. at 182. Rather, we must also consider 

the surrounding context, which is as follows in this instance: 

"Premeditation means to have thought it over beforehand. The defendant is in the 

restaurant. He eats. He leaves. And then, he comes back. As he's coming back, he's 

digging through the trash. He's getting frustrated. He's getting angry. He believes either 

something has been lost or taken from him. He believes that he's been wronged. He 

believes that he's the victim. He follows the—he follows Mr. Acosta outside, and as he's 

helping him, the defendant kills him. 

"No specific time period required, but it requires more than that instantaneous, 

intentional act. It does require you to think about it beforehand. And, again, we have 

examples of the defendant returning to the restaurant, digging through the trash. He 

decides to carry a gun. He decides to pull the gun. He decides to aim. And he decides to 

pull the trigger. Those are intentional decisions that he's making over and over and over 

again. Does not have to be present before the interaction began. It can form at any time. It 

doesn't mean that an act is planned, contrived, or schemed beforehand. 
24

"Okay. Back to these inferences. The nature of the weapon used. It was a gun. 

Can you think of a more lethal weapon than a gun? What are guns used for? Guns are 

used to kill. Semiautomatic handgun: He carried it on his person. He shot center mass at 

close range. There's only one reason you shoot someone center mass at close range, and 

that's to kill him. It penetrated his heart and his lungs; went through a ventricle and his 

aorta, two lobes of his lungs. Ladies and gentlemen, it was a kill shot. 

"The lack of provocation: The defendant left the restaurant and came back. He 

comes back. You can decide for yourselves, but I would submit perhaps agitated because, 

at this point in time, he thinks that someone has stolen from him or he's lost something. 

He's digging through the trash and he's digging through the trash, and they ask him to 

stop. But, he continues to dig through the trash because he wants his own way. 

"The victim helps him. The victim facilitates him in this attempt to find these 

coins. He takes the trash can outside. You can see it on the video. He's standing there 

much like this: Trash can, defendant, and the defendant continues to dig. And in 

response to that, the defendant shoots him center mass—aims to kill. 

"Use your common sense, ladies and gentlemen. What inferences can you draw 

from that behavior? Defendant's conduct before the killing: He walks away. He comes 

back. He carries this handgun. It's with him all the time. He pulled it out, he aims, lifts the 

gun, aims, and fires. 

"After the killing, he does continue to look for his coins, but then he leaves the 

area. You heard from Officer, I believe it was Seachris, that they had received 

information from a civilian that they saw the defendant digging around in some leaves 

looking like he was trying to hide the murder weapon. 

"'I did it. I did it. The gun's in the bag.' His conduct afterwards—you saw Officer 

Jensen. You saw how big he was. He told you, six-six, 240. He was with-it enough to 

know not to tangle with a cop that big, and so the minute he saw Jensen draw down, 'I did 

it. The gun's in the bag.'
25

"'Is he going to live?' He asked, I believe it was Officer Howard: 'Is he going to 

live?' He knows, ladies and gentlemen. He knows he's killed a man. He chose to kill that 

man. He thought about it beforehand. He premeditated it. The State has proven this to 

you beyond a reasonable doubt. 

"And this is one of those unique cases where we get to know. We have insight 

into what he was thinking at the time, because he later tells his parents on a jail phone 

call. He later tells them what he was thinking in that moment; why he did what he did. 

We don't often get to do that. We don't get to take pictures of the insides of peoples' 

heads. Sometimes, individuals tell us why they did what they did. But in this case, you 

have that information. He killed Oscar Acosta because he thought he was wronged, 

period. This defendant killed him with premeditation, because he believed, erroneously 

so, but he still believed that he was the victim. He's not a victim. He's not a victim. 

"Again, as he's discussing this, his parents are telling him that what he did was 

wrong. His focus is on why he killed the victim, the fact that he believed that the victim 

stole from him. 'They took $900 from me. They took 120 in silver. That's 900 bucks. 

How about that? What if I took Mom's wedding ring and stole it? How would you feel 

about that?' 'Well, I would be really pissed off, but I wouldn't kill someone.' That's not 

what the defendant chose to do. The defendant chose to make himself—the defendant

believed that he was the victim of a crime, and he chose to make himself judge, jury, and 

executioner of Oscar Acosta." (Emphasis added.) 

When viewing the statement in context, it is apparent the prosecutor was giving 

the jury a list of all the evidence the prosecutor felt could contribute to a finding of 

premeditation. As this court has said in response to similar challenges: "The prosecutor 

here did not say that premeditation could be instantaneous. Rather, he pointed to the 

nature of the weapon used—a gun—and how it was used." State v. Moore, 311 Kan. 

1019, 1041, 469 P.3d 648 (2020). "[T]he prosecutor's comments were within the bounds 

of the law because they described the totality of the evidence regarding premeditation 
26

. . . . After properly stating the definition of premeditation, the prosecutor pointed out key 

factual intervals supported by the evidence that established premeditation." State v. 

Brownlee, 302 Kan. 491, 516-18, 354 P.3d 525 (2015).

The same is true here—the challenged statement was made in the midst of the 

prosecutor discussing each of the other factors supporting premeditation: the lack of 

provocation, as demonstrated by Oscar merely helping Zongker in his search; Zongker's 

conduct in retrieving the gun when Oscar got involved; and his conduct immediately after 

the killing in his interactions with the police, as well as the later phone calls where he 

explicitly and repeatedly asserts that he killed Oscar because he believed someone stole 

money from him. As in Brownlee, the prosecutor prefaced his comments with a correct 

definition of premeditation, telling the jury there is "[n]o specific time period required, 

but it requires more than that instantaneous, intentional act. It does require you to think 

about it beforehand." See also State v. Jones, 298 Kan. 324, 336-37, 311 P.3d 1125 

(2013) (prosecutor's reference to defendant's "'five-pound pressure on [the] trigger'" was 

not error when considered in context, because it was part of the prosecutor's identification 

of key factual intervals at which the defendant had an opportunity to premeditate the 

killings well before firing the gun).

Considering the full statement in light of our precedent, we find the prosecutor's 

comments were not outside the wide latitude allowed in discussing the law governing the 

jury's evaluation of the evidence of premeditation. There was no error. 

Zongker's ineffective assistance of counsel argument is not preserved for review.

Zongker next argues that because trial counsel pursued a guilt-based defense at 

trial, his Sixth Amendment right to counsel and his right to a jury trial were violated. He 

argues the proper remedy is for us to reverse his conviction and remand for a new trial. 
27

We do not ordinarily address the merits of an ineffective assistance of counsel 

claim for the first time on appeal. "The usual course is a request by appellate counsel for 

remand to the district court for an evidentiary hearing on the ineffective assistance claim, 

commonly called a 'Van Cleave hearing.'" Hilyard, 316 Kan. at 338 (citing State v. Van 

Cleave, 239 Kan. 117, 120, 716 P.2d 580 [1986]). "Although 'there are circumstances 

when no evidentiary record need be established, when the merit or lack of merit of an 

ineffectiveness claim about trial counsel is obvious,' and an ineffectiveness claim can 

therefore be resolved when raised for the first time on appeal, these circumstances are 

'extremely rare.'" State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014).

Here, Zongker did not request a remand for a Van Cleave hearing on his

ineffectiveness claim. When no Van Cleave hearing is requested, we need not order one

sua sponte. Hilyard, 316 Kan. at 338.

Zongker asserts that because he rejected an offer to plead guilty to the charge of 

second-degree intentional murder, a clear record is established that defense counsel 

overrode his wishes by pursuing a guilt-based defense. Zongker contends a new trial is 

the proper remedy, appearing to believe that his case is one of the "extremely rare" times 

that an ineffectiveness claim can be resolved essentially as a matter of law when raised 

for the first time on appeal. 

Zongker contrasts his case with Hilyard. Hilyard asked for a new trial on appeal 

based on ineffective assistance of counsel simply because the record lacked any evidence 

that she explicitly consented to the guilt-based defense. This court held that though a

defendant must consent to the use of a guilt-based defense, "that consent need not be on 

the record." 316 Kan. 326, Syl. ¶ 3. Zongker asserts that Hilyard is distinguishable 

because Hilyard actively participated in the guilt-based defense by testifying that she 
28

killed the victim. Zongker, on the other hand, did not testify at his trial, and had rejected 

an offer to plead guilty to second-degree murder before trial. This fact, he now argues, is 

proof that he did not consent to the guilt-based defense.

The State counters that there may be other reasons Zongker rejected the plea deal, 

and the factual record is insufficient for the court to review the issue on Zongker's direct 

appeal. Under the proposed deal, Zongker would have pled guilty to intentional seconddegree murder and the parties would agree to an "upward durational departure, essentially 

to twice the aggravated number in the appropriate grid box, for the maximum penalty 

allowed by law"; Zongker would also "agree to waive notice for the upward durational 

departure and his right to a jury trial," and the parties would agree on the aggravating 

circumstances for the departure. The State therefore asserts that the record is not 

sufficient for this court, on direct appeal, to conclude that trial counsel went against 

Zongker's wishes in pursuing the guilt-based defense, because the plea offer would have 

required Zongker to agree to an upward departure to twice the aggravated number in the 

grid box for a severity level 1 offense, and, according to the State, would have been 

agreeing to a sentence of nearly 38 years in prison. Notably, after Zongker was convicted 

for first-degree murder, defense counsel sought a downward departure to a hard 25 

sentence, which the State points to as indicating that Zongker's rejection of the plea offer 

could have been based on the length of the sentence he would have been forced to accept 

as a part of the plea deal. 

The State's argument is supported by the record. When counsel was discussing the 

rejected plea deal with the court, the court asked: "Was—that was an agreed State and 

defense upward durational to twice the high number, not defense free to argue?" The 

State confirmed that "[d]efense would not have been free to argue, yes. It would have 

been an agreed upward durational departure." The court followed up by asking if the 
29

issue was "with just the free to argue, or was it something else?" The State said that it

"didn't ask," but did note that Zongker "came back and he countered with a separate 

number," which the State rejected.

Given these facts, we conclude the mere rejection of the plea deal is not sufficient 

by itself for this court to bypass a Van Cleave remand because the record is not "obvious" 

about the "merit or lack of merit" of Zongker's ineffectiveness claim. Dull, 298 Kan. at 

839. We decline review because the issue is unpreserved. See Hilyard, 316 Kan. at 339 

("Quite simply, a claim of ineffective assistance of counsel for failure to obtain consent 

for a guilt-based defense must be proved below. It has not been.").

Cumulative error did not deprive Zongker of a fair trial.

Cumulative trial errors, when considered together, may require the defendant's 

conviction to be reversed when the totality of the circumstances establishes that the 

defendant was substantially prejudiced by the errors and denied a fair trial. In assessing 

the cumulative effect of errors during the trial, appellate courts examine the errors in 

context and consider how the trial judge dealt with the errors as they arose; the nature and 

number of errors and whether they are interrelated; and the overall strength of the 

evidence. If any of the errors being aggregated are constitutional in nature, the party 

benefitting from the error must establish beyond a reasonable doubt that the cumulative 

effect did not affect the outcome. State v. Alfaro-Valleda, 314 Kan. 526, 551-52, 502 

P.3d 66 (2022). 

We have identified three errors where the prosecutor misstated facts: the 

misstatement of the location of the kill shot, the mischaracterization of Dr. Grinage's 

testimony, and the erroneous description of the location of the gun. We already 

concluded that individually, these errors were harmless. We now find that even 
30

considering these errors together, the cumulative effect did not affect the outcome of the 

trial. The errors were brief and the State presented strong evidence of Zongker's guilt. 

Cumulative error did not deprive Zongker of a fair trial.

The district court did not abuse its discretion in declining to impose a departure 

sentence. 

In Kansas, a sentencing court must order a defendant convicted of first-degree 

premeditated murder to a hard 50 life sentence unless the judge finds substantial and 

compelling reasons that support departing to a hard 25. K.S.A. 21-6620(c)(1)(A); K.S.A. 

21-6623. We have interpreted the term "substantial" as used in this context to mean 

"'"something that is real, not imagined, and of substance, not ephemeral."' And a 

compelling reason '"is one that forces a court—by the case's facts—to abandon the status 

quo and venture beyond the presumptive sentence."' [Citations omitted.]" State v. 

Galloway, 316 Kan. 471, 476, 518 P.3d 399 (2022).

K.S.A. 21-6625(a) establishes a nonexclusive list of mitigating circumstances the 

court may consider. A defendant's psychological state can be a mitigating factor under 

subsections (a)(2) ("The crime was committed while the defendant was under the 

influence of extreme mental or emotional disturbances.") and (a)(6) ("The capacity of the 

defendant to appreciate the criminality of the defendant's conduct or to conform the 

defendant's conduct to the requirements of law was substantially impaired.").

We review a district court's denial of a departure motion for an abuse of discretion. 

A district court abuses its discretion when its decision turns on an error of law or fact, its 

decision is not supported by substantial competent evidence, or its decision is one with 

which no reasonable person would agree. Galloway, 316 Kan. at 476-77.
31

Zongker argues the district court abused its discretion in failing to impose a 

downward departure because of his mental illness. He did not present any expert 

testimony at trial or sentencing to address his mental health issues; rather he simply refers 

to the pretrial competency evaluation and Dr. Grinage's trial testimony. But as discussed 

above, Zongker was found competent to stand trial, and Dr. Grinage testified that despite 

Zongker's mental illness, he was capable of forming an intent to kill. 

Zongker also complains that the sentencing court did not make specific findings 

about why it denied the motion to depart, instead only "perfunctorily not[ing] that 'the 

motion for departure is denied.'" Zongker seems to suggest that because we do not know 

why the district court denied the motion, we have to assume the court abused its 

discretion because the denial was either based on an error of fact (i.e., did not believe 

Zongker had a mental illness), or an error of law (i.e., did not believe mental illness could 

be a mitigating factor). And Zongker claims that since he clearly suffers from significant 

mental illness and because mental illness "can and should be a basis for a mitigated 

sentence," the district court abused its discretion. 

Zongker ignores a third, and much more likely, reason for the court's denial; that it 

simply did not find substantial and compelling reasons to depart after a review of the 

mitigating circumstances Zongker offered. The statute does not require the district court 

to state its reasons for denial; it only requires the district court to state its reasons on the 

record if it does not impose the hard 50. K.S.A. 21-6620(c)(2)(A) ("If the sentencing 

judge does not impose the mandatory minimum term of imprisonment required by K.S.A. 

21-6623 . . . the judge shall state on the record at the time of sentencing the substantial 

and compelling reasons therefor . . . ." [Emphases added.]). 

And in any event, a review of the district court's full statement reveals that the 

court did preface its denial with the following: 
32

"Having regard for the nature and the circumstances of the crime, the history, 

character, and condition of the defendant, the lowest minimum term, which in the opinion 

of the Court, is consistent with the public safety, the needs of the defendant, and the 

seriousness of the crimes, the Court makes the following orders: . . . ." 

We have generally upheld denial of departure motions in similar cases. See State 

v. Boswell, 314 Kan. 408, 417, 499 P.3d 1122 (2021); State v. Grable, 314 Kan. 337, 

342-46, 498 P.3d 737 (2021); State v. McLinn, 307 Kan. 307, 347-49, 409 P.3d 1 (2018).

We conclude Zongker has failed to establish that the district court abused its discretion by 

committing a factual or legal error or by making an objectively unreasonable decision, 

and therefore affirm his hard 50 sentence.

The district court did not abuse its discretion in failing to sua sponte order a mental 

evaluation before sentencing.

K.S.A. 22-3429 provides that "the trial judge may order the defendant committed 

to the state security hospital for mental examination, evaluation and report." Then, if the 

report of the examination authorized by K.S.A. 22-3429 shows

"the defendant is in need of psychiatric care and treatment, that such treatment may 

materially aid in the defendant's rehabilitation and that the defendant and society are not 

likely to be endangered by permitting the defendant to receive such psychiatric care and 

treatment, in lieu of confinement or imprisonment, the trial judge shall have power to 

commit such defendant to: (1) The state security hospital or any county institution 

provided for the reception, care, treatment and maintenance of mentally ill persons, if the 

defendant is convicted of a felony." K.S.A. 22-3430.

Zongker did not request an evaluation under K.S.A. 22-3429. Nevertheless, 

Zongker now asserts that because he moved for a departure based on his mental illness, 

the district court was "on notice" and thus abused its discretion by failing to sua sponte 

order an evaluation. Zongker argues we can reach this issue for the first time on appeal to 
33

prevent the denial of his right to due process. See Hilyard, 316 Kan. at 343. We review a 

district court's decision whether to order an evaluation under K.S.A. 22-3429 for abuse of 

discretion. State v. Evans, 313 Kan. 972, 992, 492 P.3d 418 (2021).

Evans and Hilyard foreclose Zongker's arguments. In Evans, the sentencing court 

denied Evans' requested mental evaluation under K.S.A. 22-3429 without explanation. 

Evans asserted the court abused its discretion in doing so, but we disagreed, explaining

that:

"The statutory evaluation scheme is clearly permissive, and it is the defendant's 

burden to persuade a sentencing court that a mental examination serves the interests of 

justice. When a party presents no facts and makes no argument to support its request for 

relief, an issue may be deemed abandoned. . . . 

"Simply asserting that the trial court denied a request does not elevate an issue to 

the status of preserved for appeal." 313 Kan. at 993. 

In other words, though Evans did move for a mental evaluation, because she did not 

create any further factual record in support of her motion, her motion was not preserved 

for appeal. 

We built on this in Hilyard; Hilyard did not request a mental examination, so we 

concluded she certainly did not "meet her burden to persuade the sentencing court to 

order [one]. The statute imposes no affirmative duty for courts to raise this issue sua 

sponte and whether to do so is clearly discretionary. There is no indication the sentencing 

judge was unaware of this discretion. There is no error." 316 Kan. at 345.

Zongker did not meet his burden of persuading the sentencing court that a mental 

examination "serves the interests of justice." Evans, 313 Kan. at 993. The district court 

did not abuse its discretion by failing to sua sponte order a discretionary evaluation. 
34

Zongker received an illegal sentence on Count 2.

A sentence is illegal when it is imposed by a court without jurisdiction, fails to 

"conform to the applicable statutory provision, either in character or punishment," or "is 

ambiguous with respect to the time and manner in which it is to be served at the time it is 

pronounced." K.S.A. 22-3504(c)(1). Whether a sentence is illegal is a question of law 

subject to unlimited review. State v. Johnson, 309 Kan. 992, 997, 441 P.3d 1036 (2019). 

An illegal sentence may be corrected at any time, and we have the authority to correct an 

illegal sentence sua sponte. K.S.A. 22-3504(a); 309 Kan. at 997.

At the sentencing hearing, the parties verbally agreed Zongker had a criminal 

history score of E. Accordingly, the court sentenced Zongker as follows: 

"I find the primary crime that controls the base sentence to be Count 2, criminal 

possession of a weapon. It is a severity level 8 nonperson felony, placing the defendant in 

grid box 8-E. Upon those findings, I sentence the defendant to a term of 15 months in the 

custody of the Secretary of Corrections. The defendant is entitled to earn up to a 

maximum of 20 percent good-time credit, and is subject to 12 months of post-release 

supervision. 

. . . .

"On Count 1, murder in the first degree, I'll impose the sentence of life 

imprisonment with no parole eligibility until 50 years. Counts 1 and 2 are consecutive to 

each other. Parole supervision in the event of release, is lifetime, and the motion for 

departure is denied." (Emphasis added.) 

The State points out that the journal entry of judgment says that Zongker's 

criminal history classification is an F. And the presentence investigation report prepared 

likewise indicates Zongker's criminal history is an F. The criminal history worksheet 
35

appears to support this calculation, as it lists two adult nonperson felonies. See K.S.A. 

2022 Supp. 21-6804. Accordingly, the journal entry reflects the legal sentence that should 

have been given; the 15 months orally pronounced at sentencing does not conform to the 

applicable statutory provision. K.S.A. 2022 Supp. 21-6804. It is well established that "a 

journal entry is not the controlling pronouncement of a sentence," but rather that a 

"'criminal sentence is effective upon pronouncement from the bench.'" State v. Redick, 

317 Kan. 146, 147, 526 P.3d 672 (2023); see also State v. Juiliano, 315 Kan. 76, Syl. ¶ 4, 

504 P.3d 399 (2022) ("Where the sentence announced from the bench differs from the 

sentence described in the journal entry, the orally pronounced sentence controls."). 

Because the oral pronouncement for 15 months on Count 2 is the controlling 

sentence—Zongker should have been sentenced in accordance with grid box 8-F, which 

would have permitted a maximum sentence of 13 months—Zongker received an illegal 

sentence. Accordingly, we remand for resentencing on Count 2 only. See State v. 

Jamerson, 309 Kan. 211, 216, 433 P.3d 698 (2019).

Conviction affirmed, sentence vacated in part, and case remanded with directions.