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NOT DESIGNATED FOR PUBLICATION

No. 121,060

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

BALTAZAR GUZMAN RUIZ,

Appellant.

MEMORANDUM OPINION

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed September 18, 

2020. Affirmed.

Kurt P. Kerns, of Ariagno, Kerns, Mank & White, of Wichita, for appellant. 

William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and 

Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN and BUSER, JJ.

PER CURIAM: A jury convicted Baltazar Guzman Ruiz of possessing cocaine and 

driving under the influence (DUI). Ruiz now appeals, asking this court to reverse his 

convictions for three reasons. First, he argues that this court should reverse his 

convictions because the trial judge committed judicial comment error by discussing his 

decision not to testify at trial before the jury and by implying that he carried the burden of 

proof. Second, he argues that this court should reverse his convictions because the trial 

court instructed the jury on the elements of cocaine possession in a way that allowed the 

jury to convict him of possessing cocaine under the wrong culpable mental state. Third, 
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he argues that this court should reverse his convictions because even if this court 

determines that the preceding errors do not individually require reversal of his 

convictions, the cumulative effect of those errors denied him a fair trial. We find these 

arguments unpersuasive. 

Although Ruiz asks this court to reverse both his cocaine possession and DUI 

convictions, he has only briefed arguments concerning his cocaine possession conviction. 

It is a well-known rule that an appellant abandons any argument that he or she raises 

incidentally without sufficient analysis. State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 

865 (2018). Here, by not explaining why the alleged trial errors require reversal of his 

DUI conviction, Ruiz has abandoned his ability to challenge his DUI conviction on 

appeal. Thus, we affirm Ruiz' DUI conviction without any additional discussion. 

As for Ruiz' cocaine possession conviction, the record establishes the following: 

(1) that any error stemming from the trial judge's inappropriate comment was harmless 

beyond a reasonable doubt and (2) that any error stemming from the disputed jury 

instruction on the elements of cocaine possession was of no consequence because Ruiz 

failed to show that the jury would have reached a different outcome if the instruction 

error had not occurred. So in addition to affirming Ruiz' DUI conviction, we also affirm 

Ruiz' cocaine possession conviction. 

In the early morning hours of July 1, 2017, a sheriff's deputy arrested Ruiz for 

DUI. The deputy had pulled Ruiz' car over after Ruiz made too wide of a left turn and 

crossed over the center line twice. During the traffic stop, the deputy noted that Ruiz' 

speech was slurred, eyes were bloodshot, and coordination was impaired. The deputy also 

noticed that Ruiz "fumbled through his wallet" when he attempted to retrieve his driver's 

license.
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Following his arrest, the deputy brought Ruiz to jail. There, Ruiz submitted to a 

breath alcohol test. That test showed that Ruiz' breath alcohol content was .123, which 

was well over the legal limit for driving. After Ruiz failed his breath alcohol test, the 

deputy started the process of booking Ruiz into jail.

Ultimately, however, another officer, Sergeant Brett Heckel, took over Ruiz' 

booking process. While completing an inspection of Ruiz' personal belongings in front of 

Ruiz, Sergeant Heckel searched Ruiz' wallet. During that search, Sergeant Heckel 

discovered a folded dollar bill wrapped around a baggie containing a white powder. Upon 

finding the baggie, Sergeant Heckel showed the baggie to Ruiz; he then asked Ruiz if the 

baggie contained drugs. Although Ruiz did not explicitly identify what drug was inside 

the baggie, Ruiz told Sergeant Heckel that the baggie contained "drugs." Forensic testing 

later established that the white powder contained within the baggie was cocaine.

Based on the preceding, the State charged Ruiz with cocaine possession and DUI. 

Ruiz' case eventually proceeded to trial, where a jury found Ruiz guilty on both counts. 

For both his cocaine possession and DUI convictions, the trial court sentenced Ruiz to 

concurrent 18-month probation terms. Ruiz' controlling underlying sentence was 11 

months' imprisonment followed by 12 months' postrelease supervision.

Ruiz timely appeals.

Did the Trial Judge Commit Reversible Judicial Comment Error?

After the defense rested without presenting any evidence, the trial judge told the 

jury the following: "The defense certainly had a right to testify or to bring witnesses in to 

present testimony. They have chosen not to, feeling that their case was strong without 

doing so."
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On appeal, Ruiz contends that the trial judge's comment implied that his failure to 

testify was evidence of his guilt. He thus argues that the trial judge violated his right not 

to testify under the Fifth Amendment of the United States Constitution by making the 

comment. To support his argument, Ruiz relies on Kansas Supreme Court and United 

States Supreme Court caselaw. Ruiz asserts that this caselaw establishes that a trial judge 

may never comment on a defendant's right to testify. Ruiz also argues that the trial 

judge's comment wrongly implied that he carried the burden of proof at trial.

The State counters by arguing that Ruiz has taken the trial judge's comment out of 

context. It argues that when the trial judge's comment is considered in context, it is 

abundantly clear that the trial judge was just explaining trial procedure to the jury. So the 

State asserts that the trial judge did not commit judicial comment error. Alternatively, the 

State argues that any error stemming from the trial judge's comment was harmless 

beyond a reasonable doubt because the comment was made in passing, mitigated by 

certain jury instructions, and mitigated by the overwhelming evidence establishing that 

Ruiz knowingly possessed cocaine.

Applicable Law

An appellate court reviews judicial comment error challenges in two steps. First, 

this court must determine whether a particular judicial comment was erroneous. State v. 

Boothby, 310 Kan. 619, 625, 448 P.3d 416 (2019). Second, if the disputed comment was 

erroneous, this court must consider whether the erroneous comment requires reversal of 

the defendant's conviction under the constitutional harmlessness test stated in Chapman 

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Boothby, 310 Kan. 

at 625. Under that test, "the State, as the party benefitting from judicial comment error, 

has the burden to prove beyond a reasonable doubt that the error 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.' [Citation omitted.]" 310 Kan. 619, Syl. ¶ 1. 
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Our Supreme Court's most recent case involving judicial comment error is 

Boothby. There, during voir dire, the trial judge told the jury that Boothby had been 

charged with aggravated battery, aggravated assault, and criminal threat. When the 

prosecutor immediately corrected the trial judge, explaining that the State had charged 

Boothby with aggravated burglary, not aggravated battery, the trial judge replied that he 

may have had Boothby's former aggravated battery case. The trial judge then stated that 

he needed to find the correct complaint. Once he had done this, the trial judge told the 

voir dire panel that he was "start[ing] over." Ultimately, the jury convicted Boothby of 

aggravated assault and criminal threat.

Boothby appealed to our Supreme Court, arguing that the trial judge committed 

prejudicial judicial comment error by making this statement in front of some voir dire 

panel members who ultimately served on his jury. Boothby. Our Supreme Court agreed 

with Boothby that the trial judge committed judicial comment error by telling the jury 

that he may have presided over Boothby's former aggravated battery case. Nevertheless, 

it affirmed Boothby's convictions because any error stemming from the errant judicial 

comment had no bearing on the jury's verdicts. 310 Kan. at 629. 

Specifically, our Supreme Court held that the State had established that the trial 

judge's erroneous comment was harmless beyond a reasonable doubt for the following 

reasons:

"In context, the judge's misstatements during voir dire were brief; made in passing; and 

quickly remedied by the diligent efforts of defense counsel and the State. The judge 

corrected his mistake and informed the venire panel that he was 'start[ing] over.' 

Moreover, the comments were attenuated by the rest of voir dire, the evidence at trial, 

and the jury instructions, which told the jury to 'decide this case only on the evidence 

admitted'; to 'disregard any testimony or exhibit which I did not admit into evidence'; and 
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to base the verdict 'entirely upon the evidence admitted and the law as given in these 

instructions.'" 310 Kan. at 629.

So the Boothby decision involved a significant judicial comment error as the trial 

judge discussed Boothby's criminal history before voir dire panel members who 

ultimately served on the jury. Undoubtedly, some jurors may have had a negative opinion 

about Boothby before the parties even made opening arguments given this criminal 

history revelation. Yet, because our Supreme Court still affirmed Boothby's convictions, 

the Boothby decision stands for the proposition that even significant judicial comment 

errors may be rendered harmless beyond a reasonable doubt. 

Next, in his brief, Ruiz primarily relies on State v. Davis, 255 Kan. 357, 361, 874 

P.2d 1156 (1994), and Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed.

2d 106 (1965), to support his arguments. Although the Davis case does not involve 

judicial comment error, it does involve a prosecutor's comment about a defendant's 

decision not to testify at trial. In Davis, the prosecutor pointed out during closing 

arguments that the defendant had not provided the jury with "one bit of evidence 

throughout the course of the trial." 255 Kan. at 360. Davis eventually appealed to our 

Supreme Court, arguing that "he [was] entitled to a new trial because the prosecuting 

attorney improperly commented on his failure to testify or present evidence." 255 Kan. at 

361. 

Our Supreme Court agreed with Davis that the prosecutor's comment was 

improper. And it held that any comment by a prosecutor about a defendant's failure to 

testify constitutes error. 255 Kan. at 361. In reaching this holding, our Supreme Court 

relied on Griffin and K.S.A. 60-439. In Griffin, the United States Supreme Court held that 

the Fifth Amendment to the United States Constitution forbade "either comment by the 

prosecution on the accused's silence or instructions by the court that such silence is 
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evidence of guilt." 380 U.S. at 615. K.S.A. 60-439, which has not been amended since 

the Davis decision, states:

"If a privilege is exercised not to testify or to prevent another from testifying, 

either in the action or with respect to particular matters, or to refuse to disclose or to 

prevent another from disclosing any matter, the judge and counsel may not comment 

thereon, no presumption shall arise with respect to the exercise of the privilege, and the 

trier of fact may not draw any adverse inference therefrom. In those jury cases wherein 

the right to exercise a privilege, as herein provided, may be misunderstood and 

unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular 

case, the court, at the request of the party exercising the privilege, may instruct the jury in 

support of such privilege."

Yet, the Davis court ultimately determined that the prosecutor's comment error 

was harmless beyond a reasonable doubt for the following reasons: (1) because the 

comment "amounted to two lines in an extended record of trial"; (2) because Davis 

immediately objected to the prosecutor's comment; (3) because the prosecutor apologized 

for making the comment; (4) because the evidence in Davis' case included direct 

evidence of his guilt; and (5) because the trial court provided the jury with instructions 

stating that the State had the burden of proof and that Davis had no duty to prove he was 

not guilty. 255 Kan. at 363.

As a result, the Davis decision, the Griffin decision, and K.S.A. 60-439 stand for 

the proposition that when speaking before a jury, a prosecutor should never discuss a 

defendant's decision not to testify. Also, although K.S.A. 60-439 establishes that the trial 

judge may address a defendant's decision not to testify, the trial judge may do so only 

when the defendant requests a jury instruction about his or her right not to testify. Even 

then, K.S.A. 60-439 establishes that the trial judge's comment must be limited to telling 

the jury (1) that such privilege exists and (2) that the jury should not make any inference 

of guilt based on the defendant's decision to exercise that privilege. Thus, the Davis
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decision, the Griffin decision, and K.S.A. 60-439 is a baseline proposition that judges 

should only discuss a defendant's decision not to testify in the context of a jury 

instruction informing the jury of the defendant's constitutional right. 

As for commenting on the State's burden of proof, K.S.A. 2019 Supp. 21-5108(a) 

explicitly provides that "the state has the burden to prove beyond a reasonable doubt that 

a defendant is guilty of a crime." A comment indicating that a defendant carries the 

burden of proof violates a defendant's rights under the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution. See State v. Johnson, 233 Kan. 

981, Syl. ¶ 1, 666 P.2d 706 (1983). 

Harmless Error

Having reviewed the applicable law, we now consider Ruiz' underlying argument 

that the trial judge both impermissibly commented on his right not to testify and shifted 

the State's burden of proof. 

Based on the Davis decision, the Griffin decision, and K.S.A. 60-439, it is readily 

apparent that the trial judge erred by commenting on Ruiz' decision not to testify at trial 

before the jury. Simply put, the trial judge's comment occurred outside the context of a 

jury instruction. Also, the judge's comment highlighted Ruiz' decision not to testify 

without informing the jury that Ruiz had a constitutional privilege not to testify under the 

Fifth Amendment.

Also, Ruiz correctly argues that the trial judge's comment implied that he carried 

the burden of proof. The comment "speculated that the defense" presented no evidence 

because the defense felt "'that their case was strong without doing so.'" In making this 

comment, however, the trial judge implied that Ruiz, not the State, carried the burden of 
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proof. As a result, the trial judge's comment also violated Ruiz' rights under the Due 

Process Clause of the Fourteenth Amendment. 

All the same, the State argues that the trial judge's comment error was harmless 

beyond a reasonable doubt for several reasons. For starters, the disputed comment 

occurred at the end of Ruiz' trial, when Ruiz' attorney stated that "if this is all the State 

has, the defense rests." Immediately following this statement, the trial judge explained to 

the jury what this meant in the context of trial procedure:

"Okay. What that means is you have heard all the testimony you're going to hear. 

The defense certainly had a right to testify or to bring witnesses in to present testimony. 

They have chosen not to, feeling that their case was strong without doing so. That also 

means that the State will not be presenting any rebuttal testimony, which would be 

potential. So[,] you've heard all the evidence. 

"We have a set of instructions. We have yet to argue whether or not they're the 

right ones or not. That should take us about ten minutes. And then we will be copying the 

instructions, a little booklet[,] probably eight to ten pages in length of what the law is in 

Kansas, what your instructions are as to when you retire to the jury room what to do. . . ." 

So although the trial judge discussed Ruiz' decision not to testify, he did so while 

attempting to explain trial procedure to the jury. That is, the underlying purpose of the 

trial judge's comment was not to highlight Ruiz' decision not to testify. Instead, the 

underlying purpose of the trial judge's comment was to explain to the jury what was 

going to happen next. The fact that the trial judge's comment about Ruiz' decision not to 

testify was a brief side note, made in passing, greatly lessens the error resulting from the 

trial judge's comment. 

Also, the fact that the trial judge made the comment in response to Ruiz' attorney's 

statement that "if this is all the State has, the defense rests" further attenuates any error. In 

stating "if this is all the State has," Ruiz' attorney seemingly indicated to the trial judge 
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that Ruiz did not want to present evidence because he believed that the State's case 

against him was weak. Stated another way, Ruiz' attorney told the trial judge that he 

believed the State had not met its burden of proof. As a result, when the trial judge told 

the jury that the defense was not going to present any evidence because the defense 

believed that "their case was strong without doing so," the trial judge was not actively 

seeking to shift the burden of proof onto Ruiz. Instead, he was simply trying to explain 

that Ruiz believed that the State's case against him was weak. 

Next, the trial judge instructed the jury on the State's burden of proof as follows: 

"The State has the burden to prove the defendant is guilty. The defendant is not 

required to prove that he is not guilty. You must presume that he is not guilty unless you 

are convinced from the evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not 

guilty is this: If you have a reasonable doubt as to the truth of any of the claims required 

to be proved by the State, you must find the defendant not guilty. If you have no 

reasonable doubt as to the truth of each of the claims required to be proved by the State, 

you should find the defendant guilty"

In addition, Ruiz requested a jury instruction on his constitutional right not to 

testify. The trial judge gave this instruction: "The defendant in a criminal trial has a 

constitutional right not to be compelled to testify. You must not draw any inference of 

guilt from the fact that the defendant did not testify, and you must not consider this fact in 

arriving at your verdict." 

The preceding jury instructions were the pattern jury instructions on the State's 

burden of proof and a defendant's constitutional right not to testify. See PIK Crim. 4th 

51.010 (2017 Supp.) and 51.080 (2012 Supp.). Furthermore, Ruiz has never alleged that 

the trial judge erred by providing the jury with the preceding instructions. As a result, it is 
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undisputed that the trial judge correctly instructed the jury on the State's burden of proof 

and a defendant's constitutional right not to testify. 

Absent evidence to the contrary, appellate courts presume that the jury follows the 

instructions as given. Lowery, 308 Kan. at 1231. Here, there is no evidence indicating 

that the jury disregarded the instructions on the State's burden of proof and a defendant's 

constitutional right not to testify. In turn, because the trial judge correctly instructed the 

jury on the State's burden of proof and Ruiz' constitutional right not to testify, we 

presume that the jury followed those instructions. 

Finally, at trial, Ruiz never contested that his wallet contained a dollar bill folded 

around a baggie of cocaine. Indeed, during closing arguments, Ruiz' attorney explicitly 

told the jury that Ruiz was not contesting this fact because the State had proven that there 

was cocaine inside his wallet. Instead, although Ruiz' attorney did not explain how Ruiz 

could have obtained a dollar bill folded around a baggie of cocaine inside his wallet 

without being aware of the cocaine's existence, Ruiz' attorney told the jury that Ruiz' 

defense hinged on whether the State had presented sufficient evidence that he knew of the

cocaine's existence.

But the evidence indicating that Ruiz knew about the cocaine's existence inside his 

wallet was overwhelming. Again, the deputy who initially stopped Ruiz believed that he 

was under the influence partly because Ruiz fumbled with his wallet when providing his 

driver's license. Ruiz' fumbling with his wallet creates an inference that Ruiz was nervous 

while handling his wallet in front of law enforcement. 

More significantly, Sergeant Heckel testified that after finding the baggie of white 

powder inside Ruiz' wallet, he showed the baggie to Ruiz and asked him if it contained 

drugs. According to Sergeant Heckel, although Ruiz did not explicitly tell him the baggie 

contained cocaine, Ruiz admitted that the baggie contained drugs. And, as stated earlier, 
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forensic testing established that the white powder contained within the baggie was 

cocaine. In short, given Ruiz' admission, there is no reasonable possibility that the trial 

judge's errant comment affected the jury's guilty verdict. 

Thus, to summarize, in Boothby and in Davis our Supreme Court determined that 

the context of the erroneous comment, the giving of certain jury instructions, and the 

strength of the evidence supporting a defendant's guilt may render a comment error 

harmless beyond a reasonable doubt. Boothby, 310 Kan. at 629; Davis, 255 Kan. at 361. 

Likewise, in this case, the context of the trial judge's erroneous comment, the jury 

instruction on the State's burden of proof, the jury instruction on Ruiz' constitutional right 

not to testify (which Ruiz requested), and the overwhelming evidence supporting Ruiz 

knowingly possessed cocaine establish that there was no reasonable possibility that the 

trial judge's errant comment affected the jury's guilty verdict. So although the trial judge 

committed judicial comment error, we hold that the comment error was harmless beyond 

a reasonable doubt. 

Did the Trial Court Commit Reversible Error When Instructing the Jury?

During the jury instruction conference, the trial court, Ruiz, and the prosecutor 

held an off-the-record discussion about the instructions because both parties had 

submitted proposed instructions with numerous errors. When the trial court, Ruiz, and the 

prosecutor returned to the record, the trial court noted that it believed the parties had 

"agreed upon a jury instruction set." Afterwards, the trial court asked Ruiz' attorney 

whether there were "[a]ny objections or requests as it relates to the instructions as 

proposed?" Ruiz' attorney responded, "No objection, Judge, and no additions." 

Ultimately, the trial judge instructed the jury that the elements of cocaine 

possession were as follows:
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"The defendant is charge[d] in count 1 with unlawfully possessing [c]ocaine. The 

defendant pleads not guilty. To establish this charge, each of the following claims must be 

proved:

1. The defendant possessed cocaine.

2. This act occurred on or about the 1st day of July 2017, in Finney County, 

Kansas.

"'Possession' means having joint or exclusive control over an item with knowledge 

of and the intent to have such control or knowingly keeping some item in a place where the 

person has some measure of access and right of control.

(PIK Crim. 4th 57.040)

"The State must prove that the defendant committed the crime intentionally, or 

knowingly, or recklessly. A defendant acts intentionally when it is the defendant's desire or 

conscious objective to do the act complained about by the State. A defendant acts

knowingly when the defendant is aware of the nature of his conduct that the State 

complains about. A defendant acts recklessly when the defendant consciously disregards a 

substantial and unjustifiable risk that certain circumstances exist. This act by the defendant 

disregarding the risk must be a gross deviation from the standard of care a reasonable 

person would use in the same situation.

(PIK Crim. 4th 52.010)

"If the State has proved that the defendant acted intentionally, then the State has 

proved as well that the defendant acted knowingly. If the State has proved that the 

defendant acted intentionally or knowingly, then the State has proved as well that the 

defendant acted recklessly.

(PIK Crim. 4th 52.020)."

On appeal, Ruiz argues that the trial court erred by providing the preceding 

instruction because under the possession of a controlled substance statute—K.S.A. 2017 

Supp. 21-5706(a)―it is impossible for someone to "recklessly" possess a controlled 

substance. In making this argument, Ruiz relies on an unpublished decision in State v. 

Hanks, No. 114,640, 2016 WL 4585620 (Kan. App. 2016) (unpublished opinion). Ruiz 

argues that the Hanks decision establishes that a defendant cannot recklessly possess a 

controlled substance. See also State v. Harris, No. 120,197, 2020 WL 1483669, at *7 
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(Kan. App. 2d 2020) (unpublished opinion), petition for rev. filed April 27, 2020 (The 

trial court erred by defining "recklessly" because the crimes for which Harris was charged 

and convicted require knowledge and intent.) Based on Hanks and Harris, Ruiz argues 

that this court must reverse his conviction because "there was a real possibility" that the 

jury convicted him under a theory of recklessly possessing cocaine.

The State responds that Ruiz has invited any error regarding the language included 

in the possession of cocaine elements instruction because Ruiz agreed to the wording of 

that instruction. We are not persuaded by the State's contention that the doctrine of 

invited error controls this issue. 

Nevertheless, even if the doctrine of invited error is inapplicable to this issue, Ruiz 

is not entitled to reversal of his conviction. Turning again to Ruiz' argument, we note he 

argues that the trial court erred by instructing the jury on "recklessly" as a culpable 

mental state within the possession of cocaine elements instruction. In making this 

argument, he concedes that he did not object to the possession of cocaine elements 

instruction. When defendants challenge a jury instruction for the first time on appeal, 

they cannot attain reversal of their convictions unless they establish clear error. State v. 

McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018). To establish clear error, defendants must 

′′′firmly convince [the appellate court] that the jury would have reached a different verdict 

had the instruction error not occurred.‵‵‵ 307 Kan. at 318. 

Here, Ruiz' clear error arguments are entirely unpersuasive. For starters, Ruiz' 

clear error argument hinges solely on his dicey contention that "there was a real 

possibility" that the jury convicted him under a theory of recklessly possessing cocaine. 

What does Ruiz mean when he states that "there was a real possibility"? When Ruiz 

states “there was a real possibility" that the jury convicted him under a theory of 

recklessly possessing cocaine, Ruiz has implicitly conceded that he has failed to meet the 
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higher firmly convinced standard―that [this court is firmly convinced] the jury would 

have reached a different outcome if the instruction error had not occurred. 

Ruiz' argument literally begs the question, which is the fallacy of finding a 

conclusion on a basis that is dependent on other proof that is implicitly assumed but not 

established in the argument. Ruiz' argument presupposes what it endeavors to prove, 

namely, that this court would have been firmly convinced "'the jury would have reached a 

different verdict had the instruction error not occurred.'" 307 Kan. at 318. This evidence 

or proof is just what is lacking in Ruiz’ question-begging argument. 

 

Besides, Ruiz' underlying clear error argument runs counter to reason. He 

contends in his brief that this court should reverse his conviction because of the 

following:

"Under the legally inappropriate instruction, even if a juror had a reasonable 

doubt that [he] knew that the folded dollar bill contained cocaine, [the juror] could have 

convicted [him] on the theory that [he] was aware of the risk that folded dollar bills 

sometimes contain controlled substances and that he consciously disregarded that risk. In 

this circumstance, the jury would have convicted Mr. Ruiz of recklessly possessing 

cocaine."

Yet, to commit a crime recklessly, a defendant must "consciously disregard[] a 

substantial and justifiable risk . . ." K.S.A. 2019 Supp. 21-5202(j). Thus, to accept Ruiz' 

argument, this court must accept that a substantial and justifiable risk existed that a 

defendant may have innocently obtained a folded dollar bill containing a baggie of 

cocaine and placed the folded dollar bill in his wallet. This argument is repugnant to 

reason because Ruiz admitted that the baggie contained drugs. So he would have known 

that the folded dollar bill in his wallet contained drugs. And, thus, no reasonable 

possibility existed that he innocently obtained a folded dollar bill containing a bag of 

cocaine. 
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Finally, as addressed in the preceding section on judicial comment error, the 

evidence establishing that Ruiz knew about the cocaine inside his wallet was 

overwhelming. Again, upon Sergeant Heckel's questioning, Ruiz admitted the baggie 

from his wallet contained drugs. Then, uncontested and direct evidence established that 

Ruiz knew he was in possession of drugs. This, in turn, entirely undermines Ruiz' 

contention that there was a real possibility that the jury convicted him of recklessly 

possessing cocaine. 

Thus, the absurdity of Ruiz' underlying argument as well as the overwhelming 

evidence establishing that Ruiz knew about the cocaine in his wallet proves that no 

possibility existed that the jury convicted Ruiz under a theory of recklessly possessing 

cocaine. As a result, Ruiz cannot firmly convince this court that the erroneous inclusion 

of "recklessly" as a culpable mental state in the possession of cocaine elements 

instruction affected the jury's verdict as required to establish clear error. 

Does Cumulative Error Require Reversal of Ruiz' Cocaine Possession Conviction?

Ruiz' final argument on appeal is that even if this court determines that the judicial 

comment error and jury instruction error do not individually require reversal of his 

cocaine possession conviction, the cumulative effect of those errors denied him a fair 

trial. Thus, Ruiz argues that the cumulative effect of those errors requires reversal of his 

cocaine possession conviction.

When reviewing cumulative error challenges, an appellate court considers whether 

under the totality of the circumstances, the cumulative effect of the trial errors prevented

the defendant from receiving a fair trial. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 

(2014). Yet, it is a well-known rule that an appellate court cannot reverse a defendant's 
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conviction based on cumulative error when the record establishes that only one trial error 

occurred. State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). 

Here, Ruiz established that the trial judge committed judicial comment error. 

Thus, Ruiz has established just a single trial error—the judicial comment error. Because 

Ruiz cannot establish cumulative error based on a single trial error, we reject Ruiz' 

cumulative error argument. 

Affirmed.