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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,516

STATE OF KANSAS,

Appellee,

v.

JONATHAN D. BLEVINS,

Appellant.

SYLLABUS BY THE COURT

1.

A claim of judicial comment error is reviewable on appeal despite the lack of a 

contemporaneous objection at trial.

2.

A district court does not err by accurately informing potential jurors that the death 

penalty is not at issue in a given case in response to a potential juror's stated moral 

concerns regarding the death penalty.

3.

Prosecutors are entitled to wide latitude to draw reasonable inferences from the 

evidence in closing arguments. A prosecutor does not err when adequately buttressing 

their inferential arguments with the factual premises necessary to support their inferences, 

even in the absence of language such as "it is a reasonable inference that . . . ."
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4.

Prosecutors commit prosecutorial error by improperly describing their personal 

opinion to the jury.

5.

A district court's decision not to depart from a presumptive sentence is reviewed 

for abuse of discretion. 

6.

For purposes of evaluating a district court's decision not to depart from a 

presumptive sentence, the existence of a factor that is arguably mitigating does not 

necessarily mean that such a factor is substantial and compelling.

Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed May 7, 2021.

Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause, and Caroline M. 

Zuschek, of the same office, was on the brief for appellant. 

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney 

general, was with her on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Jonathan Blevins directly appeals his conviction for premeditated 

first-degree murder in the death of Taylor Sawyer, along with his "hard 50" sentence. 

Blevins raises six issues for our consideration. Finding no reversible error, we affirm.
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FACTS

Underlying Facts

On March 14, 2018, Sarah Hemmerling and her daughter Ashlyn Hemmerling 

contacted law enforcement to report a murder. Based on this information, police arrested 

Blevins at his place of work in Lawrence, Kansas, later that morning. Along with Blevins' 

cellphone, tablet, and bag, police confiscated Blevins' 9-millimeter semiautomatic 

handgun, which had an extended magazine. Blevins gave multiple videorecorded 

interviews to law enforcement, which we discuss in more detail below. During the third

and final interview, Blevins also produced a written statement documenting his then-final 

version of events.

Armed with the Hemmerlings' information, law enforcement quickly located and 

identified the body of Taylor Sawyer near Old Military Trail, a pathway close to Perry 

Lake in Jefferson County, Kansas. Near Sawyer's body—which had suffered multiple 

head wounds—investigators found a deformed bullet, along with a red bandanna, next to 

two fresh pools of blood less than 30 feet away from the body. From the markings on the 

ground, it appeared that the body had initially fallen near the two pools of blood, then 

been dragged away.

An autopsy of Sawyer's body identified two gunshot wounds to his head. The first 

was a "graze" wound across his forehead, which fractured his skull but did not penetrate 

into his brain; the second wound was left by a bullet that entered the back left of Sawyer's 

head and exited through his left temple, just in front of the ear, leaving a 4.5 cm 

hemorrhagic tract through his brain. The autopsy did not identify the chronological order 

of the two shots or which of the two shots killed Sawyer and did not indicate whether one 

would have been fatal independently of the other. 
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The Hemmerlings also informed law enforcement about a vehicle related to the 

murder, which officers subsequently located. On that vehicle, officers observed fresh 

blood spatter on the driver's side front bumper. The blood was determined to be 

consistent with Sawyer's DNA profile. Investigators also found a spent shell casing on 

the vehicle's passenger side windshield wiper. 

KBI digital forensic examiner Nicole Dekat examined Blevins' phone. Data from 

that phone was used to compile a timeline of messages sent and received by Blevins

between March 13 and March 15. The timeline showed significant activity leading up to 

11:30 p.m. on March 13 and more activity after 1:12 a.m. on March 14 but demonstrated 

a gap of activity between these two times. Dekat testified at trial that if messages sent via 

a third-party app were deleted from the phone, investigators may not be able to recover 

them. Dekat also opined that the absence of messages during this time frame would be 

consistent with the deletion of third-party app messages from Blevins' phone.

During a search of Blevins' residence, investigators found various articles of 

clothing worn by Blevins at the time of Sawyer's killing the night before, including a 

bandanna, a pair of shoes, and a hoodie. The right shoe had a spot of blood on it, which 

was found to be consistent with Sawyer's DNA profile. Investigators also found 9mm 

ammunition and two spent 9mm shell casings—one on the entertainment center, the other 

on the bedroom floor. Examination of Blevins' handgun, the fired bullet, and several 

empty cartridge casings recovered during the investigation revealed that the handgun was 

operable and had fired the recovered bullet and two of the recovered casings. 

Also while in Blevins' residence, investigators found a receipt from a McDonald's 

in Lawrence dated March 13, 2018, and bearing a timestamp of 10:35 p.m. in Blevins'
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residence. McDonald's security cameras recorded Blevins and Ashlyn together at the

restaurant for about two minutes. Sawyer did not go inside the McDonald's. 

A traffic counter device near Old Military Trail recorded one vehicle arriving and 

leaving, twice, during the midnight hour of March 14. This corresponded with Blevins'

statement that they had arrived, left the area and went to a gas station so that Ashlyn 

could use the restroom, then returned, then left again after Sawyer was killed. It also 

corresponded with Blevins' account of the timing of Sawyer's killing—between midnight 

and 1 a.m. on March 14. 

The First Interview

Blevins was first interviewed during the early afternoon of March 14, 2018. The 

overall theme of the story Blevins presented in this interview—which he abandoned 

later—was that he shot Sawyer in self-defense. 

According to Blevins, Ashlyn picked him up from work around 9 p.m.; shortly 

thereafter, Sarah dropped off Sawyer—Sarah's boyfriend—to hang out with them. 

Blevins, Ashlyn, and Sawyer then drove around Lawrence for several hours. Blevins 

noted that Sawyer appeared to be high on something. When the trio stopped at a 

McDonald's in Lawrence, Ashlyn eventually expressed a desire to "ditch" Sawyer 

because he was getting "really annoying." Because Ashlyn and Sawyer wanted to smoke 

marijuana, Blevins suggested they go to Lake Perry—an area with which he was very 

familiar—to avoid the police.

On Blevins' directions, Ashlyn drove the trio to Old Military Trail, where they all 

got out. Ashlyn and Sawyer smoked marijuana. When the discussion turned to money, 

Sawyer grew angry and began to rant about how Sarah owed him money. He then pulled 
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out a gun, saying he would make Blevins and Ashlyn "pay." Blevins expressed confusion 

as to why Sawyer grew angry at him, since Sarah—not Blevins—owed Sawyer money. 

When Sawyer swung up his gun as if to shoot, Blevins drew his gun and fired in 

self-defense. Claiming Sawyer was facing him, Blevins fired at least twice. Blevins

expressed uncertainty as to where his shots struck Sawyer, but he thought he hit him in 

the head. Blevins denied shooting Sawyer again while he was on the ground. He admitted 

that he dragged Sawyer's body out of the car's path. He denied picking up shell casings at 

the scene but admitted that he picked up Sawyer's gun. 

Afterward, Ashlyn suggested that they explain the incident as a drug deal gone 

bad. Ashlyn then called Sarah and asked Sarah to meet up in Lawrence. They left 

Ashlyn's car in Lawrence, and Sarah drove Blevins to his home in Topeka. On the way, 

Ashlyn gave Sarah the "drug deal gone bad" story, while Blevins was silent. 

The Second Interview

At the second interview, which took place later on the evening of March 14, 

Blevins altered his story significantly. In this interview, Blevins agreed that the story he

had given in the earlier interview was not the whole truth and apologized for lying earlier. 

Blevins summarized the key difference between this story and his first interview:

"Ashlyn wanted me to do it. . . . She wanted me to kill him." According to Blevins, 

Ashlyn wanted Sawyer dead because she was scared that he would hurt her and her 

mother in connection with their activities selling drugs. Ashlyn first communicated that 

she wanted Sawyer dead when they spoke at the McDonald's. Originally, the plan was 

just to "ditch" Sawyer, but Ashlyn then persisted, asking Blevins if he could "pull the 

trigger" if Sawyer attacked him. Blevins responded, "Well, I'd have to, but why?" 
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Claiming she was afraid of Sawyer, Ashlyn stated that she wanted Blevins to shoot 

Sawyer, and when Blevins said he did not think he could, Ashlyn said that she would 

have to do it. Blevins "figured it was going to get done either way because she made it 

clear she was going to do it"; he assumed she would try to take his firearm to accomplish 

the killing. 

After leaving the McDonald's and driving for another hour or so, Blevins 

suggested that they go to Lake Perry because Sawyer was becoming increasingly 

paranoid, and Blevins believed it would be peaceful out there. Blevins and Ashlyn texted 

back and forth once they arrived at Lake Perry. In the minutes before the shooting, 

Blevins considered the idea of killing Sawyer because he did not want Ashlyn to "screw 

her life up." Blevins elaborated that he knew Ashlyn was going to kill Sawyer—and that 

she would have to use his gun to do it— and he "didn't want it to be her life that she was 

throwing away." But Blevins also admitted that Ashlyn would not have been able to take 

his gun from him if he had resisted. And while Blevins admitted that he did not have to 

kill Sawyer, he claimed he was scared—scared of what Sawyer could have done to 

Ashlyn and Sarah, and of what Ashlyn would do to Sawyer. Ultimately, however, 

Blevins admitted that he shot Sawyer because Ashlyn asked him to.

After Blevins sent Ashlyn several text messages expressing fears about "the 

body," fears about being discovered, and concerns that he could not go through with it, 

Ashlyn texted Blevins, "Let's do this." Blevins was standing outside the car with Sawyer 

when Ashlyn sent this final message; Ashlyn was inside the car. Blevins kept bringing his 

firearm up, trying to work up the nerve to shoot Sawyer, but only fired after Ashlyn 

startled him by opening the door and yelling, "Let's do this!" Blevins estimated that he 

raised and lowered his firearm eight or nine times before finally pulling the trigger. 
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Sawyer fell after the first shot but drew his gun and waved it around while lying 

on the ground; Blevins then shot Sawyer again, after which Sawyer lay still. Blevins 

estimated that maybe a minute or two elapsed between the two shots. Blevins wanted to 

call an ambulance, but Ashlyn dissuaded him. Ultimately, both Ashlyn and Blevins 

dragged Sawyer's body away from the place where he fell. Blevins confirmed that he 

picked up one shell casing from the scene, but he could not find the second casing. 

Blevins then repeated his account of Ashlyn's desire to explain Sawyer's absence 

with a cover story about a drug deal gone bad, a story Ashlyn gave to Sarah on the phone. 

On the way back to Topeka, Blevins said that "[e]verybody kept blaming themselves, 

which I found extremely ironic, because it was all my fault." 

Blevins gave inconsistent statements during this interview about the point in time 

at which he knew Sawyer would die that night. Initially, he admitted that he knew, while 

taking Sawyer out to Lake Perry, that Sawyer would die there, and that he knew how it 

was going to happen. Later, Blevins claimed he did not know at the time he made the 

suggestion to go to the lake that they would kill Sawyer; instead, he knew about 15 

minutes before the killing, after they had already arrived at Old Military Trail. But he 

also knew, before they left Lawrence, that Ashlyn wanted Sawyer dead. 

Despite these apparent inconsistencies, Blevins assured the interviewing detective 

that everything he had said in his second interview was the truth. He also apologized to a 

second detective for "lying" earlier because "you didn't deserve that." Additionally, while 

breaking down sobbing again, at one point, Blevins expressed that he felt "dirty" and 

"like a very bad person" because "I know I can't take it back . . . I just want to." 

Blevins agreed to give a written statement, at the interviewer's request. Ultimately, 

however, the second interview was cut short when Blevins suffered an anxiety attack. 
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The Third Interview

Blevins was interviewed a third time on March 15 over the course of several 

hours, although Blevins spent a significant amount of this time writing out his statement

and then reading it aloud. This interview was depicted on two separate exhibits at trial, 

both of which were admitted into evidence: one exhibit containing only the portion in 

which Blevins read his statement aloud, and the other containing the full interview.

Blevins' written statement was presented at trial, along with portions of both exhibits.

Blevins confirmed that he and Ashlyn initially discussed the idea of killing Sawyer 

at the McDonald's in Lawrence, and, at that point, he knew Ashlyn wanted him to kill 

Sawyer. He denied that he knew they would kill Sawyer at the time he suggested the trip

to Lake Perry, however. 

Blevins' emotional distress was obvious throughout much of the third interview. 

Among other things, Blevins repeatedly emphasized that he kept replaying the events of 

the shooting in his head and frequently rocked back and forth, cried, held his head, or 

made reference to physical symptoms of distress. After reading his statement aloud, 

Blevins again broke down crying, shaking, rocking, and tapping his head against the table 

and verbally expressing regret over the shooting; this lasted for several minutes. At one 

point, he asked the interviewing detective for a hug, which was given.

Blevins' Trial Testimony

Blevins also testified at trial. According to this account, he got off work in 

Lawrence around 9 p.m. on the evening of March 13. Ashlyn picked him up from work in 

her car, and together they waited for Sarah to bring Sawyer. Once Sawyer joined them, 
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the trio drove around Lawrence listening to music. To appease Sawyer, they also listened 

to a police scanner, because Sawyer thought he had outstanding warrants and wanted to 

avoid law enforcement. 

After making a few stops, the trio went to a McDonald's in Lawrence, where 

Ashlyn and Blevins got out; Sawyer, who was "paranoid" of the people inside the store, 

stayed in the car. While inside and away from Sawyer, Ashlyn approached Blevins and 

asked if they could "ditch" Sawyer somewhere because she and her mom "had been 

getting really tired of him and really leery because of the way he had been acting."

During this conversation, Ashlyn asked if Blevins could shoot Sawyer if he attacked 

them; Blevins denied that he could, which prompted Ashlyn to say, "'Well, if it needs to 

come to that, I guess I will.'" Blevins "kind of dropped it at that because [he] didn't take 

her seriously." Blevins later admitted that Ashlyn had previously "mentioned displeasure" 

with Sawyer based on his prior violence against her and her mother. 

Eventually the trio decided, on Blevins' suggestion, to go to Lake Perry because 

Ashlyn and Sawyer wanted to smoke marijuana and Sawyer wanted to avoid the police. 

Although Ashlyn drove, Blevins provided directions to get there during the last portion of 

the trip. After they arrived, Sawyer and Blevins stayed outside awhile to look at the stars, 

while Ashlyn went back to the vehicle. In order to provide a restroom for Ashlyn, the 

three drove to a nearby Casey's—which was closed—then returned to Old Military Trail. 

Blevins admitted that the 9mm handgun was his. He had the handgun with him at 

work on March 13 and carried it with him after work. He left it in the car when he went 

to look at the stars with Sawyer. Once they returned to Old Military Trail after the 

excursion to Casey's, Blevins stepped out of the car to smoke, while Sawyer sat on the 

car's hood. He heard his gun go off and turned around to see that Ashlyn had shot Sawyer 
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in the back of the head. As he ran over, Ashlyn shot Sawyer a second time, and the gun 

went off again as Blevins wrestled it away from Ashlyn. 

After that, Ashlyn and Blevins "started freaking out." They attempted to collect 

the shell casings from the ground. Sawyer was already "obviously dead." According to 

Blevins, Ashlyn then dragged Sawyer's body away by herself. Blevins suggested that 

they call an ambulance, but Ashlyn told him not to, afraid they would get in trouble for 

having just killed someone. 

Ashlyn called Sarah and gave her the story she and Blevins agreed on: that 

Sawyer died during a drug deal that had gone badly. Back in Lawrence, Ashlyn stopped 

at a gas station, where Sarah came to pick them up. Sarah then drove Blevins back to his 

residence in Topeka, where he told his fiancée the same "drug deal gone bad" story. 

The next morning, Sarah picked up Blevins from his Topeka residence and drove 

him to work in Lawrence. He still had his gun with him. He decided he wanted to turn 

himself in, but before his shift ended, the police arrived at his place of work and arrested 

him. 

Blevins admitted telling the police initially that he killed Sawyer in self-defense. 

He acknowledged that this was not the version he had agreed on with Ashlyn. He further 

acknowledged his subsequent statement taking responsibility for Sawyer's killing as part 

of a plan he made with Ashlyn. He claimed he made this statement "because Ashlyn was 

like family to me" and he "wanted [to] try and protect her from the mistake that she had 

made." He denied the prior statement's veracity because he didn't "want to throw [his] life 

away for something that somebody else has done." 
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Blevins acknowledged that his trial testimony represented his fourth version of 

events. He also agreed that the core difference between his trial testimony and the 

previous versions he had given to police lay in the identity of the shooter. He agreed that 

Ashlyn had asked him to shoot Sawyer at the McDonald's a few hours before the 

shooting. He denied telling Ashlyn that he could shoot Sawyer, although he admitted 

telling investigators that he had said, '"I would if I needed to, but I don't think I could.'" 

Blevins also denied that he exchanged any messages with Ashlyn around the time of the 

shooting.

Criminal Proceedings

The State charged Blevins with one count of premeditated first-degree murder.

The case ultimately proceeded to jury trial. At the conclusion of Blevins' case-in-chief, 

the district court, with no objection, instructed the jury on first-degree premeditated 

murder and on aiding and abetting, among other instructions. 

In closing arguments, the prosecutor painted the version of the story Blevins gave 

in his second interview—and reduced to writing in his third interview—as the true 

recitation of the events surrounding Sawyer's demise. As the prosecutor's closing 

arguments are at the core of one of Blevins' issues on appeal, we will address them in 

more detail below.

The jury asked several questions during deliberations, including whether Blevins'

hoodie had been tested for gunshot residue, whether the gun had been tested for 

fingerprints, and what Blevins did with the gun "'at each stop in Lawrence[.]'" The jury 

also asked for a read back of Dekat's testimony, which was provided; the jury was 

"interested in hearing about the deleted messages from the night of." Finally, the jury also 

requested the "brown evidence folder" containing "all the documentary and videotape 
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evidence," which was provided. The jury ultimately returned a guilty verdict on 

premeditated first-degree murder. 

At a subsequent sentencing hearing, the prosecutor again offered several 

comments that are challenged in Blevins' fifth issue, which we will also discuss below.

The district court denied Blevins' request for a lesser sentence and instead imposed a 

"hard 50" sentence. Blevins then appealed.

ANALYSIS

Blevins raises six issues for our consideration. The first four present claims of 

error with the trial itself, while the final two challenge aspects of the sentencing process. 

As discussed below, although we find error in several aspects of the prosecutor's closing 

arguments, we find that the errors were not individually or cumulatively prejudicial to 

Blevins. Finding no other errors, we affirm.

The district court did not err by telling the venire that the trial was "not a capital 

punishment case."

Blevins first argues that the district court committed reversible error by informing 

the jury pool, or venire, that capital punishment was not at issue in the case. Specifically, 

during the jury selection phase of trial, the following exchange took place:

"[Defense counsel] MR. LAKE: Generic question. Does anybody have anything 

that comes into their minds that they—that they could not be a fair and impartial juror for 

these probable three, maybe four days to try this case?

"Yes, sir.
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"[Prospective juror J.W.]: Previously you said I should not go with results of 

what—my question is, does Kansas as a state still have capital punishment.

"MR. LAKE: Yes, they do.

"[J.W.]: I cannot put—

"MR. LAKE: I think I should direct that to the Court.

"THE COURT: As I understand it, this is not a capital punishment case.

"[The prosecutor] MR. NEY: Correct, Your Honor.

"[J.W.]: That's what I needed to know.

"MR. LAKE: State still has it, but this is not one of them. Fair enough?

"[J.W.]: That's what I needed to know." (Emphasis added.)

Blevins claims that this response diluted the State's burden of proof. Other than 

jury instructions or legal rulings, we review potentially erroneous judicial comments de 

novo. State v. Boothby, 310 Kan. 619, 624, 448 P.3d 416 (2019). Such errors are 

evaluated under the constitutional harmlessness test articulated in Chapman v. California, 

386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967): "the party benefitting from 

judicial comment error has the burden to 'prove[ ] 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., prove[ ] there is no reasonable possibility that the error affected the verdict,' 

as with prosecutorial error." Boothby, 310 Kan. at 625 (quoting State v. Ward, 292 Kan. 

541, 569, 256 P.3d 801 [2011]). 
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The State claims that Blevins failed to preserve this issue for review for a number 

of reasons, including the absence of a contemporaneous objection and insufficient 

briefing on judicial comment error or judicial misconduct. We reject these procedural 

arguments, however, because we believe Blevins adequately briefed the issue as one of 

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

contemporaneous objection at trial." Boothby, 310 Kan. at 629. Nor do we accept the 

State's invitation to revisit Boothby.

Turning to the merits, Blevins points to several Kansas authorities suggesting that 

the jury should not consider the penalty a defendant may be facing if convicted, but he 

fails to identify any Kansas source identifying a district court's disclosure that a case was 

not a capital case as error. See PIK Crim. 4th 50.080, 50.090; State v. Yardley, 267 Kan. 

37, 42, 978 P.2d 886 (1999) (approving a similar jury instruction). See also State v. 

Lowery, 308 Kan. 1183, 1229, 427 P.3d 865 (2018) (finding error in a district court's 

failure to redact a portion of an interview so that the jury would not hear an officer's 

speculation about a defendant's potential sentences). Additionally, Blevins points to 

several federal sources that suggest a jury's fixation on a defendant's ostensibly "light" 

sentence may make the jury more likely to convict based on punishment, rather than 

evidence. See, e.g., United States v. Meredith, 824 F.2d 1418, 1429 (4th Cir. 1987). 

However, we find these federal sources inapposite. In the present case, no one suggested 

that Blevins would be facing a lenient sentence.

In People v. Washington, 121 Ill. App. 3d 479, 488, 459 N.E.2d 1029 (1984), 

which the State cites, the court considered a district court's response to potential jurors' 

concern about the death penalty. As in the present case, the district court in Washington

cut through this moral Gordian knot by disclaiming the applicability of the death penalty 

altogether to the case at bar, thus alleviating the jurors' concerns and ensuring "that the 
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jury was composed of individuals who would base their verdict solely on the evidence." 

121 Ill. App. 3d at 489.

The Tenth Circuit considered a similar scenario in Fero v. Kerby, 39 F.3d 1462, 

1481 (10th Cir. 1994). There, "[d]uring voir dire, in response to a venireman's remark, the 

trial court informed the venire that the state was not seeking the death penalty." 39 F.3d 

at 1481. In response to the defendant's claim that the district court's actions violated his 

right to due process, the Tenth Circuit noted that "[i]t is constitutionally permissible to 

question the venire during voir dire about their attitudes concerning the death penalty in a 

case where the prosecution is seeking the death penalty" and that, based on the logic of 

the cases that had so held, "we feel it equally acceptable for constitutional purposes that a 

venire be informed by the trial judge that the state is not seeking the death penalty." 39 

F.3d at 1481-82 (citing United States v. Steel, 759 F.2d 706, 710‐11 [9th Cir. 1985], and 

State v. Hernandez, 115 N.M. 6, 22, 846 P.2d 312 [1993], as examples of cases where, it 

was held, a district court did not err by informing a jury that the prosecution was not 

seeking the death penalty).

We find the reasoning of these authorities persuasive. Instead of diluting the 

State's burden of proof, as Blevins suggests, the district court's answer kept the jury 

focused on the evidence, not on the potential for a punishment that at least one potential 

juror found morally objectionable. Moreover, as the State notes, the district court's 

answer was also factually correct—the State was not seeking the death penalty.

Considering the significant differences between the death penalty and all other forms of 

punishment authorized by Kansas law, we find no error in the district court's revelation to 

the jury that capital punishment was not at issue here. Likewise, the mere observation that 

the death penalty is inapplicable in a particular case does not imply that the defendant's 

potential sentence, if convicted, would be light. Consequently, the district court's answer 

did not lower the State's burden of proof.
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The jury instruction on aiding and abetting was both legally and factually appropriate, 

and thus the district court did not err in issuing this instruction.

Blevins next claims the district court committed clear error by instructing the 

jury on the theory of aiding and abetting. When presented with a claim that a 

district court has erred in issuing or refusing to issue a jury instruction: 

"(1) First, the appellate court should consider the reviewability of the issue from both 

jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) 

next, the court should use an unlimited review to determine whether the instruction was 

legally appropriate; (3) then, the court should determine whether there was sufficient 

evidence, viewed in the light most favorable to the defendant or the requesting party, that 

would have supported the instruction; and (4) finally, if the district court erred, the 

appellate court must determine whether the error was harmless, utilizing the test and 

degree of certainty set forth in [Ward, 292 Kan. at 565]." State v. Plummer, 295 Kan. 

156, 163, 283 P.3d 202 (2012).

"The first element of this analysis ultimately affects the last one 'in that whether a 

party has preserved an issue for review will have an impact on the standard by which we 

determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726 

(2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). If, as here, a 

defendant does not object to a district court's jury instructions, an appellate court

"appl[ies] the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under 

that standard, an appellate court assesses whether it is 'firmly convinced that the jury 

would have reached a different verdict had the instruction error not occurred.' [The 

defendant] has the burden to establish reversibility, and in examining whether he has met 

that burden we make a de novo determination based on the entire record. [Citations 

omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).
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The jury instruction given by the district court stated:

"A person is criminally responsible for a crime if the person, either before 

or during its commission, and with the mental culpability required to commit the 

crime, intentionally aids another to commit the crime.

"All participants in a crime are equally responsible without regard to the extent of 

their participation. However, mere association with another person who actually commits 

the crime or mere presence in the vicinity of the crime is insufficient to make a person 

criminally responsible for the crime."

Blevins concedes that he did not object to this instruction. He also concedes that 

the instruction was legally appropriate as an accurate recitation of Kansas' aiding and 

abetting law. See, e.g., State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014).

Instead, Blevins argues this instruction was factually inappropriate due to 

insufficient evidence.

As Blevins notes, the prosecutor's closing arguments focused on the notion that 

Blevins and Ashlyn began to plan Sawyer's killing at the McDonald's in Lawrence, hours 

before the shooting. Although the prosecutor's primary contention was that Blevins 

actually pulled the trigger, he stated during rebuttal that Blevins would also be guilty of 

murder via aiding and abetting if Ashlyn had pulled the trigger. Specifically, the 

prosecutor said:

"Even if these roles were reversed, even if Jonathan Blevins today was the 

emotional wreck that you saw on the video, even if he had had an anxiety attack today 
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saying, 'No, this is what happened. For the fourth time, this is what happened. Ashlyn 

shot him.' Even if that was the case, his participation in the crime, his contemplating the 

idea of the shooting, having someone ask him to shoot Taylor Sawyer hours before, his 

giving the idea of where to go in Jefferson County, his bringing the only gun that would 

work out to the location with him, his—even if he had left the gun in the car, these are all 

convenient facts where he put himself in the stream of inevitability to make him just as 

liable even if this is the true emotional wreck Jonathan Blevins story.

"We know that's not the case. We know this was the recitation of a different 

story. We know—and you can weigh the credibility of which Jonathan Blevins you 

believe, the one 24 hours after the murder or the one today that changes one fact about 

what happened.

"But even if that's the one, he is still liable for first-degree murder because he 

aided Ashlyn Hemmerling in her plan."

Blevins argues that his trial testimony did not support the prosecutor's proposed 

alternative version of events. Blevins testified that, while Ashlyn mentioned the idea of 

killing Sawyer at the McDonald's, he did not believe that she was serious. Additionally, 

he testified that, when Ashlyn asked if he could kill Sawyer, he responded, '"I would if I 

needed to, but I don't think I could.'" Furthermore, Blevins claimed he came up with the 

idea to visit Old Military Trail because Sawyer and Ashlyn wanted to smoke marijuana, 

but Sawyer was too paranoid to do so in town. 

However, taken in a light most favorable to the State, there is sufficient—albeit 

scant and somewhat contradictory—evidence that could support a jury's finding that 

Blevins aided and abetted Ashlyn in the killing. Among the different versions of events 

Blevins portrayed, the jury could have found:
20

• that Ashlyn had told Blevins at the McDonalds "[s]he was going to do it either 

way";

• that Blevins had a gun which he was carrying in a holster that evening;

• that Blevins knew Sawyer would have to be killed with Blevins' gun;

• that while still in Lawrence, Blevins suggested they go to Lake Perry, knowing it 

as a remote destination, when he already knew Ashlyn wanted Sawyer dead;

• that Blevins "figured it was going to get done either way because she made it clear 

she was going to do it" and believed that Ashlyn would try to take his firearm to 

accomplish the killing;

• that Blevins texted Ashlyn in the minutes before the shooting in an attempt to 

discuss his fears about the body, fears about being discovered, and concerns that 

he could not go through with the shooting; and

• that Ashlyn shot Sawyer with Blevins' gun, which he would have taken out of its 

holster and left in the car within her reach, despite Ashlyn's earlier remarks about 

wanting Sawyer dead.

If those findings were made, the jury could have inferred Blevins' intent to provide 

Ashlyn with the location and weapon to commit Sawyer's killing, even if the State's 

primary theory was that Blevins himself pulled the trigger. Consequently, we conclude 

that the aiding and abetting instruction was factually appropriate. The district court did 

not err in issuing this instruction.
21

Although the prosecutor committed error in several aspects of closing arguments, the 

errors do not require reversal either individually or cumulatively. Likewise, cumulative 

error does not require reversal.

Blevins next raises several claims of prosecutorial error arising out of the 

prosecutor's closing arguments previously referenced. Although we may consider the 

presence or absence of a contemporaneous objection in analyzing an instance of alleged 

prosecutorial error, no objection is needed to preserve the matter for review. State v. 

Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017). There are two steps to our prosecutorial 

error analysis:

"[T]he 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. 

In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a 

reasonable doubt that the error complained of will not or did not affect the outcome of the 

trial in light of the entire record, i.e., where there is no reasonable possibility that the 

error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 

(2016) (quoting Ward, 292 Kan. 541, Syl. ¶ 6).

This "wide latitude" extends to alleged errors made in closing arguments. State v. 

Tahah, 302 Kan. 783, 787, 358 P.3d 819 (2015). In determining whether a particular 

statement falls outside of the wide latitude given to prosecutors, the court considers the 

context in which the statement was made, rather than analyzing the statement in isolation. 

State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018). In crafting closing arguments, 

a prosecutor is permitted to discuss the evidence and draw "'reasonable inferences from 
22

that evidence.'" Tahah, 302 Kan. at 788 (quoting State v. Crawford, 300 Kan. 740, 749, 

334 P.3d 311 [2014]).

Blevins claims the prosecutor erred in several different instances and in at least 

four ways: by misstating the law of aiding and abetting, by making at least four 

misstatements of fact, by giving his personal opinion in two instances, and by 

commenting on Blevins' credibility in two instances. We address each category of alleged 

error in turn.

Misstatement of Law

Blevins first challenges the prosecutor's comments on the issue of aiding and 

abetting. Blevins correctly notes that, regardless of "convenient facts," the State still 

needed to prove that Blevins acted with the specific intent to bring about Sawyer's death 

with premeditation.

We agree that these remarks, overall, conveyed an incorrect formulation of the 

law. The prosecutor's statement, while hedged against his broader theory that Blevins was 

the shooter, erroneously suggested that mere "convenient facts" would be enough to lead 

to a conviction of premeditated first-degree murder for aiding and abetting. At no point 

during the prosecutor's discussion of these "convenient facts" did the prosecutor 

acknowledge the need for a showing of specific intent to commit murder with 

premeditation; instead, the prosecutor vaguely alluded to a "stream of inevitability" that 

veered dangerously close to ignoring intent altogether. This was improper.

However, we conclude that this error was harmless. Although the "stream of 

inevitability" argument was ill-advised, they were not given in a vacuum. The prosecutor 

prefaced these remarks with a correct recitation of the law of aiding and abetting—
23

including a recognition of the State's burden to establish that the defendant acted with 

"the mental culpability required to commit the crime." Moreover, the prosecutor undercut 

his own statement—which was only given in rebuttal—by repeatedly pointing out the 

strength of the evidence suggesting Blevins himself was the shooter, not merely an 

accomplice. As discussed earlier, the facts supporting an aiding and abetting theory

would have required the jury to embark on a narrow path of reasoning in order to arrive 

at a conviction. Given the strength of the video evidence to which the State presumably 

referred—particularly the numerous admissions of guilt Blevins made in the recorded 

interviews and his obvious emotional state while making them—we find beyond a 

reasonable doubt the jury would not have been led astray by the prosecutor's unfortunate 

references to "convenient facts" and a "stream of inevitability."

Misstatements of Fact 

Blevins next challenges three separate prosecutorial statements of fact. (Blevins 

has since conceded that a fourth challenged statement—that Sawyer's gun was 

nonfunctional—was not error.) Specifically, Blevins claims that the italicized portions of 

each of the following excerpts are factually unsupported:

• "We know, for example, that he shot [Sawyer] in the back of the head first. That's 

the first shot. That was the kill shot. That was the shot he made while standing 

behind [Sawyer] . . . ." 

• "[H]e had [the plan to kill Sawyer] in his mind when he told Ashlyn in McDonald's 

that he would shoot [Sawyer] if he had to." 
24

• "There's no question that there was a plan that was created, a conversation that 

was had at McDonald's, about what was going to happen with [Sawyer] that 

night." 

We do not view the first statement as erroneous, although it was imprecise. 

Blevins correctly notes that the autopsy report was silent as to which of the two shots 

killed Sawyer. Additionally, the autopsy report did not identify the chronological order of 

the shots. However, Blevins' own written statement admitted that he delivered his first 

shot while standing behind and to the left of Sawyer, which would correspond with the 

gunshot wound to the back left of Sawyer's head—which, the autopsy report noted, left a 

4.5 cm hemorrhagic tract through Sawyer's brain before exiting his left temple. Blevins

also admitted to shooting Sawyer in the forehead with his second shot, which corresponds 

with the graze wound mentioned in the autopsy report—a wound which fractured 

Sawyer's skull but did not apparently penetrate into his brain. From context, it is clear the 

prosecutor did not mean that the first shot instantly killed Sawyer; otherwise, he would 

not have referenced Sawyer "writhing on the ground" at the time of the second shot. 

Instead, it appears reasonable to infer that a gunshot wound that left a 4.5 cm pathway 

through Sawyer's brain would have been fatal, even if the autopsy report is silent on 

whether that wound would have been individually fatal. Consequently, the term "kill 

shot" was not prosecutorial error.

Nor was the second statement erroneous. Although Blevins gave inconsistent 

versions of his response to Ashlyn's query as to whether he could kill Sawyer, in at least 

one version of events, he told Ashlyn that he would shoot Sawyer, if he had to. At trial, 

for instance, Blevins both denied telling Ashlyn that he could shoot Sawyer, when she 

mentioned it at McDonald's, and also admitted telling investigators that he had said, "'I 

would if I needed to, but I don't think I could.'" Additionally, in at least one portion of his 

second interview, Blevins described Ashlyn asking him if he could "pull the trigger" if
25

Sawyer attacked him; Blevins responded, "Well, I'd have to, but why?" Consequently, 

while the prosecutor could have added the appropriate equivocations to clarify that 

Blevins admitted to saying several things in response to Ashlyn's overture, his statement 

was not, overall, factually unsupportable.

Finally, Blevins attacks the prosecutor's use of the phrase, "There's no question 

that there was a plan that was created," by pointing out that this very issue was "central to 

the trial." The State claims the disputed language—"[t]here's no question"—constitutes 

argument, not assertion of fact, but goes on to argue that, even if it was an erroneous 

statement of fact, it was harmless. 

In State v. Timley, 311 Kan. 944, 951, 469 P.3d 54 (2020), the court recognized 

the inaccuracy of the prosecutor's use of the word "exactly" to characterize a phone's 

location when the evidence, in fact, did not show the phone's "exact" location. However, 

a majority of the court agreed that the prosecutor appropriately buttressed the offending 

language with the factual premises necessary to communicate to the jury that this word 

represented the prosecutor's own inference, not a recitation of fact. Timley, 311 Kan. at 

951-52. Although the majority recognized that the prosecutor was not required to say "the 

unspoken, but implicit, disclaimer inherent in all . . . arguments, i.e., 'If you look at the 

evidence, a reasonable inference is that . . . ," it further noted that the prosecutor only 

"barely" avoided error "[b]y clearly establishing the evidentiary bases upon which their 

conclusion rested." 311 Kan. at 951-52.

Here, the prosecutor's statement was followed by additional explanation:

"There's no question that there was a plan that was created, a conversation that 

was had at McDonald's, about what was going to happen with [Sawyer] that night. 
26

[Sawyer], who was tweaking; [Sawyer], who was not in his right mind; [Sawyer], who 

had no place to go.

"They picked him up. They took him to a remote location. Jonathan Blevins 

provided the location, provided the gun, and he shot him.

"Ashlyn Hemmerling provided the idea. Ashlyn Hemmerling provided the 

encouragement. Ashlyn Hemmerling provided help after the fact. Ashlyn Hemmerling 

pointed at Jonathan Blevins after he shot Taylor Sawyer and said, 'You're going to go to 

prison,' and Ashlyn Hemmerling helped cover up the crime.

. . . .

"As Counsel said, the scientific evidence in this case is overwhelming regarding 

what happened: [Sawyer] shot execution style in the back of the head from an 

indeterminate range by a 9-millimeter handgun that the defendant had on his person when 

he was arrested. He literally had the defendant's [sic] blood, not on his hands, but on his 

shoes. He knew this, racked with guilt, the night he was confessing, not once, but twice, 

to Randy Carreno, and he knew and couldn't believe that he had entertained this idea for 

two hours and seriously planned to do it for 15 minutes before he shot him in the back of 

the head." 

We conclude the challenged statement veered over the line of fair comment. While 

the factual premises the prosecutor set forth after the comment support the inference that 

a plan existed, they do not support the assertion that there was no question on this point; 

indeed, mere moments later, the prosecutor noted that the evidence showed Blevins had 

only "seriously planned" the crime for 15 minutes before the shooting. Thus, the 

prosecutor's use of the phrase "[t]here's no question" more closely resembles his use of 

"we know" elsewhere in closing arguments—a phrase that is only "acceptable when it 

'does not indicate [the prosecutor's] personal opinion, but demonstrates that the evidence 

was uncontroverted.'" State v. King, 308 Kan. 16, 34, 417 P.3d 1073 (2018) (quoting 
27

State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 [2006]). In using the phrase "[t]here's 

no question," we conclude that "the prosecutor was drawing inferences for the jury, not 

stating uncontroverted evidence"—thus rendering the phrase erroneous, "even if the 

inferences being drawn were reasonable." Cf. King, 308 Kan. at 34 (applying this 

analysis to the phrase "we know").

However, we also view this error as harmless. Regardless of whether the plan was 

hatched at McDonald's or merely an idea communicated there, the prosecutor 

appropriately noted that the evidence suggested premeditated conduct beginning at least 

15 minutes before the shooting. And though the prosecutor incorrectly stated there was 

no question as to whether the plan originated at McDonald's, the jury had heard plenty of 

testimony—and argument—about that very point. Thus, while the prosecutor essentially 

overplayed his hand, we believe beyond a reasonable doubt that the verdict was not 

affected by it.

Giving Personal Opinion

Blevins next points to two instances in which the prosecutor improperly disclosed 

his opinion to the jury, again marked in italics:

• "So the sole question that I believe that you must answer, which I believe has a 

clear answer, is not whether he intentionally killed [Sawyer]—that much is clear 

from the evidence—but whether he did so with premeditation." 

• "I'll reserve the balance of my time for after Counsel speaks, but I believe that, 

beyond a reasonable doubt, the evidence has supported that Jonathan Blevins 

intentionally killed Taylor Dean Sawyer and did so with premeditation." 
28

The State concedes both statements were erroneous, in light of King, 308 Kan. at 

33, and State v. Pruitt, 310 Kan. 952, 966, 453 P.3d 313 (2019). Prosecutors commit 

error by giving their personal opinions to the jury. Prosecutors are not witnesses—

expert or otherwise. As the ubiquitous jury instruction advises, their statements are 

not evidence. But the State argues both errors were harmless based on overwhelming 

evidence and on the prosecutor's accompanying recitation of the factual basis for his

asserted beliefs. We agree.

The videos of Blevins' interviews and his accompanying handwritten statement 

provide strong, at times emotionally charged, evidence of his guilt in the premeditated 

killing of Sawyer. Blevins tearfully admitted his role in the murder numerous times over 

the course of several hours of interviews—admissions bolstered by the fact that the 

murder weapon was his, that he continued to carry the murder weapon with him after the 

shooting, that he had the victim's blood on his shoe, and that he was familiar with the area 

where the murder occurred—which the trio visited at his suggestion. Additionally, 

although no text messages were recovered from Blevins' phone, forensic testimony 

regarding the gap in the phone's activity beginning at 11:30 p.m. on the evening of the 

shooting corroborated Blevins' admission that he texted Ashlyn about the shooting 

beforehand, thus providing additional evidence of premeditation. 

While it is impossible to determine the emphasis placed on the challenged words 

from the cold record, we note that the prosecutor's errors of repeating "I believe" appear 

to resemble verbal tics of the sort more commonly employed as syntax filler—the brain 

shifting into neutral, so to speak—than an attempt to bolster weak evidence with a 

prosecutorial testimonial. We nevertheless admonish the prosecutor to refrain from such 

equivocations in the future—in a case with less overwhelming evidence, careless
29

prosecutorial reliance on such tics as a way of maintaining a sentence's cadence could 

undermine our confidence in a verdict's fairness.

Comments on Credibility

Finally, Blevins points to the following instances where, he claims, the prosecutor 

impermissibly commented on Blevins' credibility by telling the jury what was "true":

• "That's an important point to consider, that after he had needed medical attention, 

after he had been overcome with anxiety about the weight of what he had done, he 

came back after receiving medical attention, came back, requested to provide a 13-

page written statement, provided that statement, which completely corroborates 

what he had said the night before. This is not something that he could have 

rehearsed. This is the truth, and it was provided in verbal, written form, emotional 

form, and written form [sic] the next day." 

• "We know [Blevins' trial testimony was] not the case. We know this was the 

recitation of a different story." 

The State argues that, because Blevins himself said the statements he gave in the 

second and third interview were "the truth," the prosecutor was merely commenting on 

the evidence. Admittedly, Blevins not only told law enforcement that his statements 

during these two interviews were the truth, he even apologized to multiple detectives for 

"lying" in his first interview—even going so far as to tell one detective, "[Y]ou didn't 

deserve that." However, the prosecutor did not say that Blevins said his written statement 

was "the truth"—the prosecutor himself said as much. Consequently, his comment was in 

error. But, as Blevins himself repeatedly attested to the truth of the statement championed 
30

by the prosecutor as "the truth," we have little difficulty in further concluding that this 

error was harmless.

The same analysis applies to the second challenged statement. While we consider 

such bolstering to be error, the prosecutor also told the jury it could "weigh the credibility 

of which Jonathan Blevins you believe, the one 24 hours after the murder or the one 

today that changes one fact about what happened." Combined with the overwhelming 

evidence of Blevins' guilt produced by Blevins himself, we find that this clarification 

sufficiently nullified any harm that could have arisen from the prosecutor's insinuation.

Harmlessness

To recapitulate, we have determined that the prosecutor erred by misstating the 

law of aiding and abetting, by misstating the facts by claiming there was "no question" 

Blevins and Ashlyn hatched their plan at McDonald's, by twice inappropriately giving his 

personal opinion on the facts of the case with respect to the identity of Sawyer's killer, 

and by twice commenting on Blevins' credibility—a total of six individual errors. 

Although we have concluded that these errors were individually harmless, their 

cumulative impact must also be considered.

Blevins asserts that the combined effect of the errors undermined his defense that 

Ashlyn killed Sawyer and that Blevins only confessed in an effort to spare Ashlyn from 

prosecution. Indeed, we find the prosecutor's many errors troubling. However, the 

prosecutor's erroneous statement of law appears unrelated to the remaining errors, as the 

prosecutor overall attempted to discount the aiding and abetting theory even while 

maintaining it as a possibility. Additionally, the prosecutor's erroneous statement as to the 

absence of a question about the existence of a plan at the McDonald's appears irrelevant, 

as the evidence also showed evidence of a plan at least 15 minutes before the shooting
31

and Blevins himself described repeatedly raising and lowering his weapon as he prepared 

to shoot Sawyer from behind. Finally, the commentary on the identity of Sawyer's killer 

is largely supported by the recordings of Blevins' second and third interviews—as are the 

prosecutor's comments on which version was "the truth," since Blevins himself offered 

the same commentary in his interviews. 

Thus, ultimately, the powerful impact of the interviews, themselves, was the 

greatest enemy to Blevins' version of events at trial— which was his fourth version 

overall (and the third version given to authorities). The uncontroverted evidence places 

Blevins at the scene of Sawyer's death; the only questions raised by his defense lay in the 

identity of the shooter and in whether Blevins agreed to go along with a plan to shoot 

Sawyer. On these two questions, nothing the prosecutor said or did has undermined 

Blevins' credibility more than his own recorded words and demeanor. 

Additionally, the jury was also given the following instruction: "Statements, 

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." Between this instruction 

and the overwhelming evidence presented, we find the prosecutor's errors here to be

cumulatively harmless. See, e.g., State v. Killings, 301 Kan. 214, 239, 340 P.3d 1186 

(2015) (overwhelming evidence of guilt sufficient to establish harmlessness of 

prosecutorial error—then "misconduct"—in closing arguments); State v. Tully, 293 Kan. 

176, 206, 262 P.3d 314 (2011).

We note that Blevins has also raised a claim of cumulative error based on the two 

issues discussed above and his asserted claims of prosecutorial error. As we have already 

found the prosecutorial errors cumulatively harmless beyond a reasonable doubt and have 

found no errors with Blevins' other claims of trial error, we need not embark upon a 
32

separate cumulative error analysis here. Blevins is not entitled to a reversal on the basis 

of cumulative error.

The prosecutor did not commit error at the sentencing hearing.

Next, Blevins claims the prosecutor misstated the facts on no fewer than five 

different occasions during sentencing. Our standard of review of prosecutorial errors in 

non-trial hearings is identical to the one set forth above. See, e.g., State v. Wilson, 309 

Kan. 67, 77, 431 P.3d 841 (2018). Blevins challenges the italicized portions of the

following statements:

• "Ultimately, there was only one person that was responsible for—directly 

responsible for the killing and murder of [Sawyer], and that's [Blevins]."

• "[Blevins] not only pulled the trigger, shooting [Sawyer] in the back of the head 

and then shooting him again as he writhed on the ground, but he had discussed 

this plan of execution with Ashlyn Hemmerling at the McDonald's and then 

proceeded to discuss with her the concerns he had about getting rid of the body 

. . . ." 

• "The other thing that is senseless about this case is how [Blevins] could seem to be 

on the path to reconciling his own mind with what he had done by telling law 

enforcement . . . only later to a year later come [sic] up with a fourth story to try 

to minimize his actions and even disclaim pulling the trigger at all to try to pin it 

on Ashlyn Hemmerling. That is truly senseless, and it shows a man who has 

approached but has failed to appropriately reconcile in his own mind . . . the fact 
33

that [Sawyer] is dead because of his own act, the fact that he pulled the trigger 

and shot him in the back of the head a year ago." 

• "The defendant—[the] fourth [mitigating circumstance], the defendant was an 

accomplice in a crime committed by another person. The defendant's participation 

was relatively minor. Again, this was simply not credible. He pulled the trigger. 

[Blevins] pulled the trigger. He's the one that came up with the location. He's the 

one that told law enforcement that he was trying to prevent Ashlyn from throwing 

away her own life. He was the direct assailant." 

• "Admittedly, [Blevins] was 22, 23 at the time of the crime, a young adult man, but 

he also started his felony record when he was 15 years old. He participated in the 

drug culture, gun culture, since then." 

The first four challenged statements all center on one theme: the identity of 

Sawyer's killer. Blevins argues that this was merely the State's primary theory of the case 

and, thus, the prosecutor misstated the evidence. Blevins analogizes the case to Wilson, 

309 Kan. at 78, claiming that the State relied on unproven allegations. We disagree.

Unlike in Wilson, where the prosecutor's arguments were predicated largely on 

allegations outside the scope of the defendant's plea, the prosecutor's first four comments 

here were supported by some evidence presented at trial. Wilson, 309 Kan. at 78 ("What 

the prosecutor did was ask the district court to base its decision on allegations 

unsupported by evidence. When a prosecutor argues facts outside the evidence, the first 

prong of the prosecutorial error test is met."). While Blevins argues that these facts were 

not uncontroverted and that it cannot be known whether the jury convicted Blevins based 

on an aiding and abetting theory or based on the State's primary theory that he was the 
34

principal actor in Sawyer's killing, he cites nothing to demonstrate that a prosecutor errs 

by repeating the State's theory of the case at sentencing, so long as that theory is 

supported by sufficient evidence presented at trial—and reasonable inferences drawn

from that evidence. These comments did not extend beyond the "wide latitude" afforded 

to the prosecutor to comment on the evidence.

The final statement gives us more pause. There is little evidence in the record of 

Blevins' activities since he was 15 years old. On the other hand, the prosecutor's remark 

appears more akin to a comment on Blevins' general interests and environment, rather 

than an attempt to mislead the judge about facts not in evidence. We note that Blevins 

himself disclosed to his interviewers that he had dated another daughter of Sarah 

Hemmerling for roughly five years, viewed Ashlyn like a "little sister," that Ashlyn and 

Sawyer smoked weed, that Sawyer was "tweaking," and that both of the guns at the 

scene—including the one in Sawyer's possession—were Blevins' own. The prosecutor's 

remarks can be seen as reasonable inferences drawn from these facts.

But we need not read the tea leaves of what the prosecutor meant by "drug culture" 

and "gun culture" too closely, because in any event we find the comment harmless. The 

sentencing judge also presided over the trial and would have been well aware of the 

company—and arms—Blevins kept. The judge was also privy to the presentence 

investigation report documenting any criminal history that the State could show. 

Accordingly, we cannot conclude that the prosecutor's remark, even if overbroad, posed 

the risk of altering the district court's sentencing decision.
35

The district court did not abuse its discretion by refusing to depart from the presumptive 

"hard 50" sentence.

Finally, Blevins argues that the district court erred by refusing to depart from the

presumptive "hard 50" sentence otherwise applicable under K.S.A. 2020 Supp. 21-6623 

and K.S.A. 2020 Supp. 21-6620(c). Under these statutes, the district court was required to 

impose a presumptive "hard 50" sentence unless the district court found "substantial and 

compelling reasons, following a review of mitigating circumstances, to impose" a lesser 

sentence. We review the district court's decision not to depart from a presumed sentence 

for abuse of discretion. State v. Galloway, 311 Kan. 238, 252-53, 459 P.3d 195 (2020).

Blevins sets forth four mitigating factors which, he submits, constituted substantial 

and compelling reasons to depart: his relatively young age (22) at the time of the murder, 

his relatively limited criminal history, evidence that Ashlyn was the "'moving force'" 

behind the murder, and the support of his fiancée and children. He argues that these 

factors have been previously determined to be substantial and compelling reasons to 

depart and thus asserts that the district court abused its discretion in refusing to grant a 

departure sentence.

Although the district court did not explain its decision at length, it briefly noted 

that it found "no compelling reasons that exist or no mitigating circumstances that exist 

that the Court can reasonably construe to reduce the sentence in this case." Importantly, 

the existence of a factor that is arguably mitigating does not necessarily mean that such a 

factor is "substantial and compelling." See, e.g., State v. McLinn, 307 Kan. 307, 348-49, 

409 P.3d 1 (2018). We cannot conclude that no reasonable individual would have 

declined to find Blevins' proffered mitigating factors substantial and compelling reasons 

to depart from the presumptive sentence. Consequently, we affirm Blevins' sentence, as 

well as his convictions. 
36

CONCLUSION

Finding no reversible error, we affirm.

STEGALL, J., not participating.