No. 111,407

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JERAMIE N. BERNEY,

Appellant.

SYLLABUS BY THE COURT

1.

Under K.S.A. 2014 Supp. 60-455(a), evidence that a person committed a crime on 

some other occasion is inadmissible to prove that the person has a criminal disposition 

and has committed another crime. If evidence of a prior crime is admitted for a different 

purpose, the trial court must give a limiting instruction informing the jury of the specific 

reason that evidence was admitted.

2.

Where evidence of other crimes is admitted without a limiting instruction but the 

defendant does not object, an appellate court reviews only for clear error. We first 

determine whether the jury instruction was legally and factually appropriate. Even if we 

find error, we may reverse only if we are firmly convinced that the jury would have 

reached a different verdict had the error not occurred. The party claiming error has the 

burden of establishing prejudice.

3.

In this case, the State presented evidence that the defendant had previously been 

arrested, and the court did not give a limiting instruction. The evidence presented to the 
2

jury presented a credibility contest between the testimony of the defendant and that of the

alleged victim, with no strong evidence other than the victim's testimony that undermined 

the defendant's version of events. On these facts, we find clear error in the district court's 

failure to give a limiting instruction.

4.

When a defendant asks for his court-appointed attorney to be replaced, the district 

court must make an appropriate inquiry if the defendant provides an articulated statement 

of dissatisfaction. That may be done by showing a conflict of interest, an irreconcilable 

disagreement, or a complete breakdown in communication. The failure to make an 

appropriate inquiry in that situation is an abuse of discretion.

5.

The district court in this case made an appropriate inquiry into the defendant's 

request for a new attorney by holding a hearing and addressing the defendant's concerns.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed July 10, 2015. 

Reversed and remanded with directions.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.

Per Curiam: Jeramie Berney was convicted of theft. On appeal, he challenges the 

district court's failure to give the jury a limiting instruction after a detective testified that 

he had found Berney's photo in the "mug system" when creating a lineup—suggesting to 

jurors that Berney had prior arrests or convictions. The district court's failure to give a 
3

limiting instruction that evidence of where the detective got Berney's photo could not be 

considered in deciding guilt in this case was clear error because no strong evidence was 

offered at trial. After carefully reviewing the full trial transcript, we conclude that a new 

trial must be ordered because the jury would have reached a different verdict had the 

instruction error not occurred. 

FACTUAL AND PROCEDURAL BACKGROUND

The theft charge stemmed from allegations that Berney took a tip jar from 

El Matador Lounge belonging to Jo Ann Standifer, the bartender, on January 28, 2013. 

Berney had prior theft convictions, so he was charged with a more serious crime than 

simple theft—theft after two or more prior convictions. See K.S.A. 2014 Supp. 21-

5801(b)(6). 

At trial, Berney and Standifer disagreed about the details surrounding Berney's 

actions on January 28, 2013. Standifer testified that Berney came into the El Matador 

Lounge where she was working and began to play pool with her. After the pool games 

ended, Standifer claims she went back behind the bar and heard a patron yell that 

someone had stolen her tip jar. Standifer said she then witnessed Berney run out the front 

door and away from the bar. 

Berney testified that he had seen Standifer outside of a QuikTrip that day and that 

she had invited him to El Matador for a few games of pool, free drinks, and crack 

cocaine. Berney claimed that when he had arrived at the bar, he gave Standifer $40 for 

crack cocaine. Berney testified that when Standifer reported to him she could no longer 

get the drugs, he and Standifer got into an argument about how she would repay him. 

Berney claimed it had been her idea for him to take the tip jar and that Standifer had 

instructed him to do it when she was not looking so that her boss and the other customers 

would not ask her to explain. 
4

The only other witness to testify was Detective Joseph Kennedy, the lead 

investigator on the case. Kennedy testified that Berney's name was listed in the police 

report as a potential suspect. He said that after talking with Standifer, he had created a 

photo lineup that included Berney. When asked to describe how he created the photo 

lineup, Kennedy testified that he had searched a database of Sedgwick County mug shots 

for photos to use. Kennedy also specifically testified that he had found Berney's photo 

through the mug-shot system and that when he had presented the photo lineup to 

Standifer, she had identified Berney immediately. Berney did not object to the admission 

of Kennedy's testimony on these points or request that a limiting instruction be given to 

the jury. 

The parties separately agreed at trial—outside the jury's presence—that the jury 

would not be told about Berney's prior theft convictions. Thus, the jury would only 

determine whether he had committed the theft at the El Matador Lounge, not whether he 

also had two or more prior theft convictions. Even so, the parties agreed that he would be 

sentenced for theft with prior convictions. The jury found Berney guilty of theft. Because 

he had two or more prior theft convictions, this offense became a Level 9 felony offense 

(while a first-time theft of the same money jar would have been a misdemeanor). See 

K.S.A. 2014 Supp. 21-5801(b)(4), (b)(6). Based on Berney's criminal-history score of 

"A," the most serious category, the district court imposed a 15-month prison sentence. 

Berney has appealed to this court. 

ANALYSIS

Berney argues on appeal that the district court committed clear error when it failed 

to give a limiting instruction after the State introduced evidence that Berney had 

committed prior crimes. Berney argues that the State could not use this evidence—the 

fact that his photo was in the mug system—to prove that Berney was more likely to 
5

commit a theft. Indeed, under K.S.A. 2014 Supp. 60-455(a), evidence that a person 

committed a crime on some other occasion is inadmissible to prove that the person has a 

criminal disposition and has committed another crime. If evidence of a prior crime is 

admitted for a different purpose, the trial court must give a limiting instruction informing 

the jury of the specific reason that evidence was admitted. State v. Gunby, 282 Kan. 39, 

48, 144 P.3d 647 (2006). 

Berney argues that the district court should have instructed the jury it could not 

consider the prior-crime evidence as evidence of his propensity to commit theft. Berney 

did not request such a limiting instruction at trial, but he claims that the district court's 

failure to give one was clearly erroneous because his case "amounted to a credibility 

contest" between him and Standifer and because evidence of his prior crimes was a 

significant factor in his case. 

The Kansas appellate courts have consistently applied a "clearly erroneous"

standard of review where, as here, a defendant neither requests a limiting instruction for 

evidence of prior crimes nor objects to its omission. State v. Vasquez, 287 Kan. 40, 51, 

194 P.3d 563 (2008); Gunby, 282 Kan. at 58-59; State v. Pitchford, No. 101,904, 2010 

WL 5139873, at *2 (Kan. App. 2010) (unpublished opinion) (citing State v. 

Magallanez, 290 Kan. 906, 918-19, 235 P.3d 460 [2010]). On appeal, we must first 

determine whether the jury instruction was legally and factually appropriate. State v. 

Brown, 300 Kan. 542, 555, 331 P.3d 781 (2014). If we find error, we then must decide 

whether we are firmly convinced the jury would have reached a different verdict had the 

error not occurred. The party claiming error has the burden of establishing prejudice. 300 

Kan. at 555. We make this determination based on our independent review of the trial 

record, without any required deference to the district court. See State v. Plummer, 295 

Kan. 156, 161, 283 P.3d 202 (2012).
6

In cases where a law-enforcement officer referred to a mug shot during trial 

testimony, our Supreme Court has decided evidentiary and mistrial questions by 

determining that even if the reference to mug shots constituted an error, there was not 

sufficient prejudice to require reversal. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 

1271 (1989); State v. Childs, 198 Kan. 4, 11-12, 422 P.2d 898 (1967). More recently, in 

State v. Hill, No. 110,849, 2014 WL 7653862, at *3 (Kan. App. 2014) (unpublished 

opinion), our court looked at a district court's failure to give a limiting instruction 

following a witness' reference to a mug shot. This court assumed the trial court erred in 

not giving the limiting instruction but found that the defendant was not prejudiced by the 

error. 

In this case, Kennedy referenced the mug-shot system five times during his 

testimony. First, when the prosecutor asked about the procedure for preparing the photo 

lineup, Kennedy testified that he had started by going to the Sedgwick County mug-shot 

site. Then, when asked about how he chooses photos for the lineup, Kennedy associated 

the mug-shot system with a person having been arrested—saying that "[w]ith [the] mug 

system, you're not always getting a newer picture. You're getting their last picture from 

the time they were arrested." Finally, when Kennedy was asked a yes or no question 

about whether he had been able to locate Berney's photo from a combination of the mugshot system and driver's-license photos, Kennedy said yes but then added that he had 

specifically gotten it from the mug-shot system:

"Q: Now, using this data base of photographs and DMV records and such, were 

you able to locate a photo of Jeramie Berney?

"A: Yes, I did. Through the mug system."

Together, these references at least suggest that Berney had previously been arrested. 
7

In Hill, our court simply assumed that the district court erred by not giving a 

limiting instruction and then moved on to consider whether the defendant had been 

prejudiced. Here, we must first determine whether error occurred because we cannot so 

easily determine the prejudice issue in the State's favor. 

K.S.A. 2014 Supp. 60-455 provides that "evidence that a person committed a 

crime or civil wrong on a specified occasion . . . is inadmissible to prove such person's 

disposition to commit crime or civil wrong as the basis for an inference that the person 

committed another crime or civil wrong on another specified occasion." Thus, evidence 

that Berney had prior arrests couldn't be used as evidence to prove that he had a 

disposition to steal. In Gunby, our Supreme Court held that when a district court admits 

evidence that a person committed a prior crime or civil wrong on a specified occasion to 

prove a material fact other than propensity, it "must give a limiting instruction informing 

the jury of the specific purpose for admission." 282 Kan. 39, Syl. ¶ 3. 

Evidence that Berney had previously been arrested strongly suggested to the jury 

that he had committed a crime on a prior occasion. While an arrest is most assuredly not 

the same as a conviction, it is at least some evidence that the defendant had committed a 

prior wrong on the occasion of his prior arrest. Even though there was no objection to the 

admission of the evidence, our Supreme Court has held that the Gunby requirement for 

the district court to give a limiting instruction still applies. State v. Breeden, 297 Kan. 

567, 581, 304 P.3d 660 (2013). The district court erred in failing to give a limiting 

instruction in Berney's case. See Breeden, 297 Kan. at 583-84. 

We now must review the full trial record to determine whether the error is 

reversible. To reverse the jury's verdict and order a new trial, we must be "firmly 

convinced the jury would have reached a different verdict had a limiting instruction been 

given." 297 Kan. at 584. 
8

In this case, three witnesses testified: Berney, Standifer, and Kennedy. Berney's 

defense at trial was that he took the tip jar with Standifer's permission. Standifer 

generally denied Berney's story. She testified that she had never agreed to secure drugs 

for him or told him to steal her tip jar. During Standifer's testimony, the State played a 

video of the incident, and Standifer identified Berney as the man in the video who 

grabbed her tip jar and left the bar. This video proves only that Berney was the man who 

took her tip jar, a fact that Berney doesn't deny. It does not prove whether Berney and 

Standifer had an agreement about taking the jar. 

Other Kansas appellate decisions suggest that a reference to a mug shot does not 

meet the clearly erroneous standard when there is strong evidence to support the jury's 

verdict. See Trotter, 245 Kan. at 662; State v. Childs, 198 Kan. 4, 11-12, 422 P.2d 898 

(1967); Hill, 2014 WL 7653862, at *3. For example, in Hill, although a detective's 

testimony clearly suggested that the defendant had previously been arrested, this court 

found no prejudice because there was other strong evidence that the defendant had 

committed the crime: An undercover informant identified Hill as the person who 

committed the crime, and two video recordings of the crime allowed the jury to compare 

the person who committed the crime with Hill. 

In Childs, our Supreme Court also held that a witness' reference to mug shots did 

not result in prejudicial error under the circumstances in that case. Childs, 198 Kan. at 12. 

Finally, in Trotter, a witness explained that he could "obtain mug shots in pictures from 

our . . . identification bureau" but gave no more testimony concerning the photo lineup. 

When deciding whether the detective's reference warranted a mistrial, the Trotter court 

concluded that, while it did not condone such testimony, the reference to mug shots was 

brief and not sufficiently prejudicial to warrant a mistrial. Trotter, 245 Kan. at 662. 

In this case, however, the jury did not hear any strong evidence to suggest that 

Berney had stolen the tip jar as opposed to taking it with permission. And, unlike the 
9

testimony in Trotter, Kennedy's references to the mug system were not brief. Instead, the 

line of questioning allowed Detective Kennedy to testify that photos in the mug system 

are from the last time a person was arrested and that Berney's photo, specifically, was 

pulled from that mug system. As Berney points out, the evidence at trial amounted to a 

"credibility contest" between his testimony and Standifer's, and the surveillance video did 

nothing to disprove Berney's defense. Without other strong evidence of Berney's guilt, 

Kennedy's obvious suggestion that Berney had previously been arrested looms large. 

Berney's point that this was a credibility contest is well taken, and the jury had to 

conclude beyond a reasonable doubt that Standifer's testimony was true to convict 

Berney. Based on our careful review of the full trial record, we are firmly convinced that 

the jury would have reached a different verdict had it been given the limiting instruction 

the district court was required to give it.

We recognize that this issue arose in the trial court in a bit of an odd manner. After 

Kennedy first mentioned the mug-shot system as a source of photographs, the prosecutor 

tried to eliminate any problem by getting Kennedy to agree that he also had other stateheld photos available to him, such as driver's-license records. The prosecutor then used a 

question seeking a yes or no response as to whether Kennedy had found a photo of 

Berney in the combination of mug shots and other photos. Had Kennedy followed the 

prosecutor's lead, we might have had no problem—but he added immediately that 

Berney's photo had come from the mug-shot system. 

At that point, the defense attorney could have objected—but the information was 

not responsive to the question asked, so he had no reason to object until the extra 

information was volunteered. At that point, a defense attorney may conclude strategically 

that objecting—or requesting a limiting instruction—would further emphasize Berney's 

prior arrest. Even so, the district court had a duty under Gunby to give such an 

instruction. And in this case, the failure to do so was not harmless. We therefore must 

reverse the defendant's conviction.
10

Before concluding our opinion, we must address one additional issue. Berney 

separately raised on appeal a claim that the district court should have appointed new 

counsel for him shortly before trial. Although we are ordering a new trial, we still will 

address the issue since, in the absence of some other order, we presume that the same 

defense counsel would remain assigned to represent Berney on remand.

Two weeks before trial, Berney filed a motion for new counsel, arguing that his 

appointed attorney had been ineffective and that they no longer communicated 

effectively. The district court held a hearing on the motion at which it asked questions of 

both Berney and his appointed attorney. The court ultimately denied the motion.

Once a defendant seeking substitution for court-appointed counsel provides an 

articulated statement of attorney dissatisfaction, which may be demonstrated by showing 

a conflict of interest, an irreconcilable disagreement, or a complete breakdown in 

communication, the district court must make an appropriate inquiry to ensure that the 

defendant's Sixth Amendment right to counsel is protected. State v. Brown, 300 Kan. 565, 

575, 331 P.3d 797 (2014). Failure to make that inquiry constitutes an abuse of discretion. 

300 Kan. at 576. 

The district court made the appropriate inquiry into Berney's pro se motion. The 

district court held a hearing on the motion and addressed each of Berney's concerns, as 

evidenced in 28 pages of the record on appeal. 

In his motion for reappointment of counsel, Berney alleged defense counsel was 

ineffective for (1) failing to discuss a defense strategy, (2) using coercive plea tactics, 

(3) failing to communicate, and (4) failing to have Berney's best interests in mind. At the 

hearing on the motion, the district court inquired about each of these allegations and even 
11

asked the prosecutor about the visit log from the jail where Berney was incarcerated to 

determine how often defense counsel had actually met with Berney before trial. 

Ultimately, Berney told the court that he did not feel his appointed counsel was 

representing him well because she was unable to get the charge amended to a 

misdemeanor. At the end of the hearing, the district court noted that Berney seemed 

disappointed and frustrated with the plea negotiations, but it found nothing to support a 

finding that counsel was ineffective; it then denied Berney's motion. We conclude that 

the district court made the appropriate inquiry into Berney's motion for reappointment of 

counsel. 

Berney also contends on appeal that his appointed counsel "advocated against his 

motion" for new counsel; Berney contends that this separately created a conflict of 

interest that required the appointment of new counsel. The Sixth Amendment guarantees 

an indigent criminal defendant the right to the assistance of counsel in his or her criminal 

defense, but a defendant cannot compel the district court to appoint the attorney of his or 

her choice. State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013). If the trial court has a 

reasonable basis for believing that appointed counsel can still effectively and fairly 

defend the client, the court may refuse to appoint new counsel. 297 Kan. at 754. To 

warrant substitute counsel, a defendant must show "justifiable dissatisfaction" with his or 

her appointed counsel. 297 Kan. at 754. Justifiable dissatisfaction may be demonstrated 

by showing a conflict of interest, an irreconcilable disagreement, or a complete 

breakdown in communication between counsel and the defendant. 297 Kan. at 754. 

Berney's argument on appeal seems to be limited to a conflict of interest. 

Berney cites to State v. Prado, 299 Kan. 1251, 329 P.3d 473 (2014), to support his 

argument. In Prado, the district court denied the defendant's motion to withdraw his plea 

after hearing arguments on it at the sentencing hearing. Prado expressed confusion 

regarding his plea agreement, and his defense counsel continued to interject and rebut his 
12

arguments. The Kansas Supreme Court reversed the district court's denial, holding that 

the district court had been required to inquire about the conflict of interest between the 

defendant and his counsel. Prado, 299 Kan. at 1258-59. The Prado court found that the 

record demonstrated an actual conflict of interest when defense counsel advocated 

against the defendant's position at the sentencing hearing. Prado, 299 Kan. at 1260.

But Berney's case is more similar to State v. McGee, 280 Kan. 890, 126 P.3d 1110 

(2006), than to Prado. In that case, McGee filed a motion for reappointment of counsel. 

In his motion, McGee stated that defense counsel had only met with him once and that 

they were having a "communications problem." McGee further claimed that defense 

counsel had never discussed his "side of the case" with him. At the hearing on McGee's 

motion, his defense counsel stated that the factual allegations in McGee's motion were 

untrue. On appeal, McGee claimed that he had had an "obvious" conflict of interest with 

his appointed counsel because "his trial counsel contradicted McGee's version of the 

facts." The McGee court found that contradicting facts did not compromise any 

confidential information, concede McGee's guilt, or establish that McGee's counsel had 

any interest that limited his representation of McGee. McGee, 280 Kan. at 896. 

Ultimately, the McGee court held that the disputed facts indicated a disagreement 

between McGee and his trial counsel but that the disagreement did not rise to the level of 

a conflict of interest. McGee, 280 Kan. at 896. 

Like McGee's counsel, Berney's counsel contradicted Berney's versions of the 

facts of their relationship. Berney claimed that he had never met with defense counsel for 

longer than 15 minutes, but his counsel reported that they had never met for fewer than 

15 minutes. Berney also claimed defense counsel had only met with him three times 

before trial. His counsel responded that she had met with him six times. The district 

court led the inquiry, and Berney's defense counsel simply responded to its questions. She 

never compromised any confidential information, conceded Berney's guilt, or established 
13

that she had any interest that limited her representation of Berney. Instead, she told the 

district court she was prepared for trial that afternoon. 

In sum, the district court had a reasonable basis for believing the relationship 

between Berney and his defense counsel had not deteriorated to a point where she could 

no longer defend Berney. See State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013). 

The district court was justified in refusing to appoint new counsel and did not abuse its 

discretion in denying Berney's motion. 

We reverse the district court's judgment and remand for a new trial.

* * *

LEBEN, J., concurring: I fully join the court's opinion, but I wish to add a few 

comments to explain my understanding of the standard now applied in Kansas to 

determine whether a jury instruction was clearly erroneous. The clearly erroneous test 

applies when the defendant does not object to the instructions given by the trial court.

In our opinion, we have applied the standard our Supreme Court announced in 

State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012). The Williams court said that we 

may reverse for clear error only when we are "firmly convinced that the jury would have 

reached a different verdict had the instruction error not occurred." 295 Kan. at 516. Our 

Supreme Court continues to state the standard in that language. See In re Care &

Treatment of Thomas, 301 Kan. 841, 348 P.3d 576, 580 (2015); State v. Brammer, 301 

Kan. 333, 341, 343 P.3d 75 (2015). But for a long time before Williams, the court had 

consistently stated the standard in a different way—that we may reverse for clear error 

where we are "firmly convinced there is a real possibility the jury would have rendered a 

different verdict if the trial error had not occurred." State v. Warrior, 294 Kan. 484, 514, 

277 P.3d 1111 (2012); accord State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 
14

(2012); State v. Miller, 293 Kan. 46, 50, 259 P.3d 701 (2011); State v. Morningstar, 289 

Kan. 488, 494, 213 P.3d 1045 (2009); State v. Anderson, 287 Kan. 325, 342, 197 P.3d 

409 (2008); State v. Torres, 280 Kan. 309, 321-22, 121 P.3d 429 (2005); State v. Miller, 

268 Kan. 517, 524-25, 997 P.2d 90 (2000); State v. DeHerrera, 251 Kan. 143, 148, 834 

P.2d 918 (1992).

While the language changed in Williams, there was no statement in that opinion 

that the court was changing or tightening the standard for determining whether a clear 

error had occurred. From the language itself, however, one might think that the standard 

had changed. Under the pre-Williams standard, one needed only to conclude (albeit 

firmly) that there was a "real possibility" that the jury would have reached a different 

verdict. After Williams, one must be "firmly convinced that the jury would have reached 

a different verdict." (Emphasis added.) Indeed, one of my colleagues concluded in 2013 

that the language change "seem[ed] to ratchet up the defendant's burden in showing a jury 

instruction to [be] clearly erroneous." State v. Adams, No. 106,935, 2013 WL 4046396, at 

*13 (Kan. App. 2013) (unpublished opinion) (Atcheson, J., dissenting).

But our Supreme Court has signaled that no change was intended. In State v. 

Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013), after noting both the pre-Williams and 

Williams statements of the test, the court said that it did "not discern a practical difference 

between the stated tests." Accordingly, the court said that it had "opt[ed] to omit the 'real 

possibility' language to avoid any confusion with the constitutional harmless error test,"

which provides that an error is harmless "where there is no reasonable possibility that the 

error contributed to the verdict." 296 Kan. at 631.

I add this concurrence to note my understanding that, as Trujillo suggests, the test 

we apply in practice did not change under Williams and later cases. And Jeremie Berney's 

case is a good example of the significance of this understanding.
15

In truth, I have no idea how this case would have been decided by the jury had the 

instruction error not occurred. This case came down to a credibility contest between two 

witnesses. Berney admitted taking the money but said Standifer had told him to—while 

wanting to have it look like she didn't (since she had not wanted to explain why she might 

be giving him money if someone saw her do so). Standifer claimed that Berney simply 

stole the tip jar. That's hard to sort out, especially for an appellate judge who can only 

read a transcript. But in the context of this case, there is a very real possibility that the 

jury would have come to a different conclusion had it been told it could not consider 

Berney's past record in determining guilt. 

Federal courts perform a similar analysis; their practice also suggests that 

accepting the Trujillo statement that the Kansas test has not changed in any practical way 

would keep Kansas well in line with how other courts approach similar cases. 

In federal courts, what we call "clear error" is called "plain error" (error requiring 

reversal even though there was no timely objection to the error). Many federal courts say 

that there is plain error when, among other things, there is a "reasonable probability" that 

the error affected the trial's outcome. E.g., United States v. Fast Horse, 747 F.3d 1040, 

1043 (8th Cir. 2014); United States v. Thornburgh, 645 F.3d 1197, 1210-12 (10th Cir. 

2011); United States v. Mazza, 594 Fed. Appx. 705, 708 (2d Cir. 2014) (unpublished 

opinion); United States v. Perez, 514 Fed. Appx. 263, 263-64 (3d Cir. 2013) (unpublished 

opinion); United States v. Cuenca-Vega, 544 Fed. Appx. 688, 692 (9th Cir. 2013)

(unpublished opinion). Were I applying that test, I would find plain error: there is a 

reasonable probability here that the error affected the trial's outcome. 

Of course, our job is not to apply these federal cases; we must apply the 

precedents of the Kansas Supreme Court. While Williams' language requires that we now 

find that the jury "would have reached a different verdict" had the error not occurred, the 

use of the term "would" does not require that we have something approaching certainty to 
16

find clear error. In no case has our Supreme Court indicated that it intended to change 

how the clearly erroneous test is applied, and in Trujillo it told us that it saw "no practical 

difference" between the two versions of the test. Based upon the understanding that our

Supreme Court did not intend a substantial difference in the test's application, I find clear 

error in this case.