State of Kansas, Appellee, v. Timothy J. L. Blanton, Appellant. (2026)

MEMORANDUM OPINION

Timothy Blanton appeals his conviction for aggravated indecent liberties with a child claiming that prosecutorial error denied him a fair trial, and that the district court erroneously allowed a prosecution witness to comment on the credibility of the victim. We agree and for the reasons stated, reverse his conviction, vacate his sentence, and remand with instructions.

Factual and Procedural History

Sometime in February 2023, K.E. (Mother) received a call from her 11-year-old daughter's school. The school informed Mother that her daughter, Amy (a pseudonym) had expressed suicidal thoughts. Amy's parents took her to a mental health facility for an evaluation. After that evaluation, her parents questioned Amy about what was wrong and she reported that her relative, Timothy Blanton, had touched her inappropriately.

The Ottawa Police Department investigated after the Department for Children and Families reported the allegations. Detective Dustin Van Leiden was assigned as the lead investigator but lacked training as a child forensic interviewer. Van Leiden asked Sergeant Paola Alarcon, who was trained as a child forensic interviewer, to interview Amy. Alarcon interviewed Amy at the Ottawa Police Station.

During the interview, Amy told Alarcon that she did not feel comfortable being around Blanton. When Alarcon inquired into why she felt uncomfortable with Blanton, Amy wrote on a piece of paper that he “ ‘touches’ ” her. In the interview, Amy labeled anatomically correct drawings, identifying the buttocks as bottom and the vagina as private parts. After further questioning, Amy told Alarcon that Blanton touched her bottom and private part. Amy described three types of incidents in which Blanton had sexually abused her.

The first incident was several years earlier at Blanton's “ ‘old house’ ” (on 11th St.) in Blanton's bedroom. Amy claimed that Blanton pulled down her underwear and licked her vagina. Amy described a second string of incidents that occurred in a basement room at her grandfather's home, which contained bunk beds. When Amy and other children were in this room, Blanton would pick them up and throw them onto the top of the bunk bed and catch them when they jumped off. Amy said that when Blanton did this, he would pick up or catch the other children by their waist, but when he did that with Amy, he grabbed her private area. The last incident was on New Year's Eve at his “ ‘new house’ ” (on 9th St.). Amy claimed that on that evening, she was going down the stairs and Blanton smacked her butt three to four times. Amy explained to Alarcon that she waited to disclose because she did not want her parents to judge her, and she did not want to start a big family fight.

Detective Van Leiden interviewed Blanton. Blanton claimed he had only met Amy four or five times at family gatherings. Blanton generally denied ever touching Amy inappropriately. He recalled playing with Amy and other children at family events, where they would climb a stack of railroad ties and jump off while he would catch them. During a second interview he recalled catching various family children when they jumped off a rock ledge. He admitted to accidentally touching Amy's vagina over her clothing by catching her with one hand under her armpit and the other between her legs. As to the alleged incident on New Year's Eve, Blanton did not recall patting Amy on the butt, possibly because he was intoxicated that evening, but he acknowledged it was possible.

Van Leiden also interviewed Blanton's wife, Jennifer. She detailed their residential history, including when she and Blanton lived at what Amy described as the old house from 2016 to 2019. Jennifer said she provided childcare for Amy several times a week while she lived at that house. She also claimed that because of Blanton's work schedule, he was never present when Amy was there.

In May 2023, the State charged Blanton with one count of aggravated indecent liberties with a child for conduct occurring on or between December 24, 2020, through January 1, 2023.

Jury Selection

In August 2024, the district court began jury selection. The jury was notified that the case involved child sex abuse, and one juror stated that she was a victim of child abuse and she would have a problem remaining impartial. She was excused for cause. The court also excused another juror because he stated he was in a situation of assault but did not provide more explanation. Several other jurors stated they would not be impartial and were also excused for cause.

Trial

At trial, Amy identified Blanton and testified that he touched her inappropriately. She testified that the first time occurred at his “old house” in Ottawa. In that incident, Blanton led her to his bedroom to look at her cousin's GloFish. Amy recalled seeing four different colored fish: pink, purple, blue, and orange. Amy stated that after looking at the fish, Blanton picked her up and put her on the bed, pulled her underwear and jeans down, and licked her private part. Amy said that this lasted a couple of minutes, and that she felt scared.

Amy described other incidents at her grandfather's house in the basement room with the bunk bed. Amy stated that on multiple occasions, she and other children jumped off a bunk bed and Blanton picked them up and caught them. Amy testified that when Blanton picked up or caught the other children, he used both of his hands under their armpits. She said that when Blanton did that for her, he used one hand to grab under her armpit, and with the other hand, he reached between her legs and grabbed her private part. Amy clarified that Blanton's hand under her private part came from behind and that Blanton's hand did not just slip there. At the time, she had clothing on, but this conduct made her feel scared and nervous.

Amy testified that the last time Blanton touched her was during a New Year's Eve party at his new house. In that incident, she and Blanton were going down the stairs and on the third step closest to the ground, Blanton pretended to spank her. He then started “grabbing” her butt. Amy stated that no one else was present and the incident made her feel scared.

On cross-examination, Amy stated that Blanton's wife would babysit her at Blanton's old house. Before work, Mother would drop Amy off and then Father would pick her up after he got off work. Amy also detailed the circumstances around the first incident of abuse, including the fish tank, the bedroom door being shut, other people being in the house, and that it occurred hours after she was dropped off.

Blanton testified in his own defense and stated that he met Amy for the first time in 2020. Blanton testified that he had only met Amy a total of six times. As to the first allegation that happened in a bedroom in his old house, he denied that it happened and stated that he did not live at that house during the dates in question. The defense presented a rental agreement showing a rental period beginning in November 2019 for a different house. Blanton's former landlord confirmed this. Blanton also explained his work schedule and that he worked seven days a week, Saturday through Monday. He testified that he worked 12-hour shifts starting at 4:30 a.m. at a distribution center, and from Tuesday through Friday, he worked for a truck service.

Blanton stated that he was very intoxicated on New Year's Eve and had no recollection of ever patting Amy on the butt, but also acknowledged he was drunk and stated, “[a]nything is possible.” Blanton recalled Amy and her family leaving for the night and that he and Amy hugged. He admitted having picked up or caught Amy by grabbing her torso and her crotch area while playing on the rocks at her grandfather's house but did not recall the bunk bed incidents. The defense presented an apology letter Blanton had written, at the request of law enforcement, to Amy about the incident in her grandfather's yard and he read it to the court.

“ ‘I am sorry for touching you when you jumped off the platform and I caught with you with my hand under you. I did not mean to touch you. I am so very. I am so sorry for any hard feelings that you have had to go through. I know it was a hard experience to go through. And I apologize for that. I hope you can forgive me. It was not my intention to do that. I hope you can move on and I signed it.’ ”

Other Testimony

Mother testified that Blanton's wife used to babysit Amy and her sibling at Blanton's old house and she would drop off her children around 7:30 a.m. every weekday morning. She recalled dropping the children off before school started and having her husband pick both the kids up around 4 p.m., after he got off work at 3:30 p.m. Mother also testified that she had seen Blanton sitting in a chair in the living room at that house during drop-offs. Mother stated that Blanton does not drive Monday through Sunday, and when he is not on the road he is at home. Mother added that Amy had seen Blanton many times because his family had been to every family function over the years including almost every Christmas.

Blanton's wife Jennifer testified for the defense, and confirmed that, when Amy was seven or eight, Jennifer would babysit Amy at the old house. Jennifer stated she provided childcare for two months during the school year. According to Jennifer, Mother never dropped off Amy at the old house, instead Jennifer would pick Amy up from school every day. Jennifer testified that Amy was only at the old house for about an hour each school day until her father picked her up after his workday ended. She claimed that Blanton never saw Amy when they lived at that location. Jennifer explained that Blanton worked until 4:30 p.m., Saturday through Monday, so Amy would already be gone before he got home. Yet Jennifer acknowledged that it was possible that Blanton took a day off from work.

Like Blanton, Jennifer testified that she and Blanton moved from the old house to another residence before the timeframe identified in the complaint, and that Amy had never visited that residence. Jennifer confirmed that Amy was at their new house (on 9th St.) on New Year's Eve. She testified that several family members and friends were present for the occasion, and that Blanton got drunk. Jennifer stated that at the end of the night when Amy's family was leaving Amy and Blanton hugged. She claimed that Amy had asked if she could stay the night. Jennifer also testified that Amy and her family did not come to her home on Christmas in 2020 because Amy's family was at home quarantined with COVID.

Amy's grandparents also testified for the defense. They both stated they never saw Blanton do anything inappropriate with Amy and that Amy never acted scared or uncomfortable around Blanton. Amy's grandmother confirmed that they had a bunk bed in their basement bedroom. She explained that Amy's family was quarantined on Christmas day in 2020 because she delivered gifts for the family that day. The defense also presented a copy of a Facebook post confirming this.

Amy's grandfather recalled a day when Blanton played with a group of children in his yard. The children climbed and jumped into Blanton's arms. He said Amy jumped before Blanton finished setting down another child, so Blanton reacted quickly and caught her. He testified that several people were present and that nothing about the incident was sexually inappropriate.

Detective Van Leiden, Sergeant Alarcon, and Officer Kevin Virosteck also testified about their involvement in the case. During cross-examination of Alarcon, the defense asked: “How do children act when they're lying?” Alarcon responded, “I don't know” and that “[t]hey all look different.” On redirect, the prosecution conducted further questioning and eventually asked: “And last, you were asked how a child acts when they're lying by the defense, correct?” Alarcon answered, “Yes,” and the prosecutor asked, “Did you have any indication that she [was] lying to you” at which point defense counsel objected. The district court ruled that Blanton had “opened the door” to the inquiry and allowed Alarcon to respond. Alarcon replied, “No. No. And when children disclose, from my experience, they tend to start acting differently. A lot [of] times, they do look at the ground. They don't make eye contact. Especially when they're saying the details.”

Before jury deliberation began, the district court read instructions aloud to the jury, including that the State claimed distinct multiple acts, any of which could separately constitute the one crime charged. And to find Blanton guilty, the jurors had to unanimously agree on the same underlying act.

During closing arguments, the prosecutor recapped the incidents, arguing that Blanton committed all the acts alleged, and explained that it is the jury's responsibility to determine the weight and credit of the witnesses. The defense argued that Blanton did not live at the old house during the time alleged in the complaint, so the first incident did not happen. Defense claimed the other incidents were done in a playful manner, and that the bunk bed incident may not have happened at all. Defense also argued the letter Blanton wrote was done to make Amy feel better and not an admission of guilt. Defense explained that Blanton was not attempting to flee before he was arrested. The prosecutor made an argument in rebuttal and reminded the jury that it determines credibility.

The jury convicted Blanton on the sole count of aggravated indecent liberties with a child, and the district court sentenced him to a term of life imprisonment without the possibility of parole for 25 years.

Blanton now appeals his conviction.

Analysis

On appeal Blanton makes two claims that he was denied a fair trial: First, prosecutorial error in closing arguments, and second, the district court erred by allowing a State witness to comment on the credibility of the victim.

Prosecutorial Error

An appellate court uses a two-step process to evaluate claims of prosecutorial error. The court first determines whether there was error and, if so, then decides whether the error was harmless. State v. Mendez, 319 Kan. 718, 737, 559 P.3d 792 (2024).

Blanton makes three arguments to support his claim of prosecutorial error. Each is addressed in turn.

1. Appealing to the passions and prejudices of the jury

Blanton's first claim of prosecutorial error is that during closing arguments, the prosecutor improperly appealed to the passions and prejudices of the jury by inviting them to consider the widespread social harm caused by sexual abuse when making the following remarks to the jury:

“I don't want to take too much of your time because I want you all to have a chance to go back there and discuss this case and reach a verdict that the evidence presented and law you've been instructed in demands.

“But I want to give you a few more things to think about before you do. No one wants to think that children get sexual assaulted, molested, touched inappropriately, lewd and fondled or whatever term, word, phrase, or however you want to describe it. These horrible acts. But the sad truth is that they do. You know that. Maybe you were lucky enough to not know that, before yesterday today, but you know it now.

“How do you know it? You heard two of your fellow jurors out of less than a hundred have to be excused. Could it have happened to them[?] You heard Paola Alarcon talked to you about since 2020, four years, she's done a hundred of these interviews. Over a hundred of these interviews with children who have gone over this same thing.”

Blanton argues that in making these statements the prosecutor urged consideration of facts outside the evidence, framed the conviction as protecting the community and helping past victims, emphasized prevalence of child sexual abuse and jurors’ personal communities, and encouraged speculation about excused jurors being abuse survivors, all of which improperly appealed to emotion, sympathy, and prejudice. Blanton also argues the statements implied that jurors should overlook weak evidence to take a stand against abuse.

The State counters that the prosecutor's statements were rhetorical argument grounded on facts that occurred throughout the case. The State also argues that the prosecutor did not invite the jury to consider outside factors or urge them to use their verdict to protect the community. According to the State, the aim of the prosecutor's argument was to persuade the jury to find Amy credible, nothing more.

The wide latitude afforded to prosecutors permits them to comment on the evidence and draw reasonable inferences, but it does not extend to misstating the law, to urging conviction on an improper legal theory, or to “ ‘inflam[ing] the passions or prejudices of the jury.’ ” State v. Thomas, 311 Kan. 905, 910, 468 P.3d 323 (2020). Appellate courts do not “consider any statement in isolation but look to the statement's context to determine whether error occurred.” State v. Brown, 316 Kan. 154, 164, 513 P.3d 1207 (2022). Prosecutors are well aware of the long-standing rule that a prosecutor can only ask the jury to make determinations based on evidence. State v. Cunningham, 321 Kan. 384, 397, 580 P.3d 672 (2025).

In Thomas, the prosecutor showed a picture of the bruised victim to the jury and stated, “ ‘Do you think that's okay to do to your child?’ ” 311 Kan. at 911. The Thomas court explained that “the prosecutor shifted the jurors’ attention away from the case to how they felt about whether ‘that's okay to do to your child.’ (Emphasis added.)” 311 Kan. at 912. The Thomas court clarified that “the prosecutor's arguments clearly encouraged the jury to convict based on an assessment of whether the jury thought [the defendant's] actions were okay, not on whether the State had met its burden of proving the elements.” 311 Kan. at 912. The Thomas court concluded that “[t]he last two words invited jurors to consider the crime in the context of families or community, either of which is error.” 311 Kan. at 912.

Here, the prosecutor's statements were also error. When addressing the jury, the prosecutor prefaced his remarks by stating that, before the jurors “reach a verdict that the evidence presented and law you've been instructed [on] demands,” there were additional things they should consider—implying the jury should rely on more than just the evidence and the law.

The additional things mentioned in the prosecutor's statement did not concern whether the State had met its burden of proving the elements; rather, it was appealing to the jurors’ passions and prejudices: “No one wants to think that children get sexually assaulted ․ These horrible acts. But the sad truth is that they do. You know that.” (Emphasis added.) Those few words, “[y]ou know that,” was directly asking jurors to reflect on the “sad truth” that the “horrible acts” of child sexual abuse occurs in society.

The prosecutor also referred to potential jury members that were released from duty, suggesting that they were sexual abuse victims: “You heard two of your fellow jurors out of less than a hundred have to be excused. Could it have happened to them?” This statement likewise had nothing to do with the evidence or the law and was error.

Lastly, the prosecutor's statement regarding Sergeant Alarcon's testimony was not directly addressing the State's burden: “she's done a hundred of these interviews. Over a hundred of these interviews with children who have gone over this same thing.” This statement was an accurate statement on Alarcon's testimony and her experience. But in context, it suggests that the jury should conclude sexual abuse occurs and did occur as alleged here because Alarcon has handled lots of cases where the same claims were made as made here. This was just another way of saying the jury should believe Amy because Amy described things Sergeant Alarcon had heard before. This too was error.

2. Credibility and expertise of law enforcement officials

Next, Blanton argues that the prosecutor improperly vouched for the credibility and expertise of law enforcement when, during the rebuttal portion of his closing argument, he stated:

“No investigation was done at the school about why her behavior was the way it was. They didn't need to. They knew why her behavior was what it was. She disclosed this to the officer. An officer who seen this time and time again.”

According to Blanton, this argument asked the jury to overlook law enforcement's investigative failures by framing them as justified by the officer's expertise, not incompetence. Blanton also argues that this statement suggested officers “knew” Amy was truthful, making further investigation unnecessary, and implied that Blanton's guilt explained Amy's behavior, all of which unfairly weakened the State's burden of proof by relying on officers’ personal beliefs rather than evidence.

The State argues that this statement was in direct response to the following argument made by defense counsel during his closing: “There was no investigation at the schools to find out a little bit more about what the heck is going on there.” The State also asserts that the prosecutor's statement was only to remind the jury of Alarcon's testimony by explaining her conclusions about why the victim acted out at school, what those conclusions were based on, and her training and experience. We disagree.

Although the prosecutor was directly responding to the defense argument suggesting that the police investigation was somehow deficient, it did so by claiming that no additional investigation was necessary because the officer, who has investigated lots of these cases, believed Amy, and that is enough.

In State v. Waldschmidt, 318 Kan. 633, 651, 546 P.3d 716 (2024), the Supreme Court found that the prosecutor erred by complimenting law enforcement. 318 Kan. at 651 (“ ‘Before I get too caught up in responding to the arguments of [defense counsel], I want to take just a moment to also compliment law enforcement on their efforts in this case to investigate this case.’ ”). The court concluded this was an improper attempt to bolster the credibility of the State's witnesses. The prosecutor's statement here was more egregious than that. It urged the jury to believe Amy and find Blanton guilty because they (referring to more than one officer) believed Amy was telling the truth.

We find the prosecutor's remarks were outside the wide latitude given to prosecutors when discussing the evidence and as such were error.

3. Propensity evidence

Next, Blanton claims that the prosecutor improperly encouraged the jury to use unproven allegations as propensity evidence of intent for the remaining allegations during the following portion of his closing argument:

“The State myself has done the best that we can to be accurate and try to get the date ranges when the conduct occurred. But it's hard with children.

“Please note that in the jury instructions it says ‘on or about’ it gives you some leeway when trying to decide this. But I'm sure it's going to be argued that the incident that happened at the old house, the first incident, occurred outside the date range. And to be quite perfectly frank, it appears that might be a possibility. The date ranges might be off on that.

“But it's on or about, one. Number 2, if for whatever reason you don't think that conduct was proven to be in that date range, we'd ask that you certainly at least consider that conduct, the initial abuse, the first time he did something to her and how that colored all the future abuse that he perpetrated on her. How maybe that something picking someone off a bed and grabbing child by the vagina, certainly doesn't seem offensible. But how maybe if you hadn't done what you did before, that might not be so offensive or maybe patting her on the butt and squeezing it, again, while you're extremely intoxicated, maybe you can try to say that's no[t] offensible, but not in light of what you have already put her through.”

The State argues that although the evidence was not admitted under K.S.A. 60-455(d), but as substantive evidence to support the State's charge, its reframing as potential propensity evidence in closing argument was not prosecutorial error. The State also argues it was admitted evidence, Blanton was not surprised by its admission, and it was not improper for the prosecutor to comment on admitted evidence in a way entirely consistent with the law. According to the State, Blanton was prepared for it because it was his own evidence that undermined its strength as substantive evidence.

A prosecutor has a wide latitude to explain evidentiary problems and to draw reasonable inferences from the evidence. See State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). At the same time, a deduction may be based only upon evidence which was actually introduced. State v. Herrera, 41 Kan. App. 2d 215, 226, 202 P.3d 68 (2009). Otherwise, stating facts not in evidence is improper. Pabst, 268 Kan. at 507.

Key to our analysis here is that the prosecutor maintained that the first incident happened. As the State points out, the evidence did not conclusively exonerate Blanton of the first incident; the conduct could have occurred within the date range, but Amy was confused about the exact location. The jury could have concluded that on their own. Especially considering that at the beginning of the charged period—2020—Amy was a young child, just seven years old. And as Sergeant Alarcon explained, a child's memory differs from an adult's memory and a child's memories are not good with specific dates and times. By the time of trial, Amy was over 11 and a half years old, further affecting the ability to accurately recall details from that earlier age. Ultimately, this raises a credibility issue, which is outside this court's review. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. Even so, the ultimate conclusion as to any witness’ veracity rests solely with the jury. Pabst, 268 Kan. at 507.

The prosecutor addressed this evidentiary issue by identifying a general timeframe for the alleged acts. But even if the incident occurred as described, the evidence presented by Blanton suggested it would have taken place in 2019—when Blanton lived at the “old house”—about a year before the timeframe charged in the complaint. That timing would fall outside any reasonable application of “on or about.” The prosecutor therefore relied on an alternative theory, using the initial incident to suggest a pattern of abuse that lent credibility to the other allegations. This was not the unlawful admission of propensity evidence. The prosecutor was commenting on evidence that was properly before the jury. It did not bring in evidence of dates outside the evidence to show propensity. The State continued to assert that the crime took place “on or about” the date charged even if the victim may have been mistaken about the exact date or the exact location. We see no error as long as the prosecutor was referring to properly admitted evidence in the case.

Allowing the State's Witness to Comment on the Credibility of the Victim

We choose to address Blanton's second argument next, which we view as closely related to the prosecutorial error argument, that the district court denied Blanton a fair trial by allowing the State's witness to directly comment on Amy's credibility. On redirect examination, the prosecutor asked Sergeant Alarcon, “And last, you were asked how a child acts when they're lying by the defense, correct?” Alarcon answered, “Yes,” and the prosecutor asked, “Did you have ․ any indication that she [was] lying to you” at which point defense counsel objected. The State contends that Blanton opened the door for this question when he asked Alarcon on cross-examination, “How do children act when they're lying?” Alarcon responded, “I don't know” and that “[t]hey all look different.”

But as Blanton correctly notes, general impeachment questions do not open the door to questions permitting a witness to pass upon the credibility of another witness. State v. Giles, 27 Kan. App. 2d 340, 347, 4 P.3d 630 (2000). The State's assertion that Blanton opened the door for the State's line of questioning is not persuasive.

Appellate courts review the district court's performance of its gatekeeper role in its decision to admit or exclude the testimony for abuse of discretion. See State v. Aguirre, 313 Kan. 189, 197, 485 P.3d 576 (2021). An appellate court reviews the admission or exclusion of opinion testimony under K.S.A. 60-456 for an abuse of discretion. See State v. Crudo, 318 Kan. 32, 37, 541 P.3d 67 (2024). Under this standard, the district court abuses its discretion when its action is arbitrary, fanciful or unreasonable; is based on an error of law; or is based on an error of fact. 318 Kan. at 37. Yet, “[w]hen faced with the specific question of whether one witness may testify about another's credibility, arguably the district judge has little, if any, discretion.” State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005).

We look no further than State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999), for guidance. Mullins argued that a question posed by the prosecution was improper. The court characterized the question—whether the victim had been “coached”—as another way of asking whether the victim was telling the truth. The Mullins court noted that the issue presented a close question but ultimately concluded that the line of inquiry was improper and that the trial court erred in permitting the question to be answered. 267 Kan. at 97.

Here, the prosecution asked Alarcon, “Did you have ․ any indication that she [was] lying to you” at which point defense counsel objected. The trial court then allowed the prosecutor to restate the question as: “Did you have any concern that she was lying to you during this interview?” Alarcon answered: “No. No. And when children disclose, from my experience, they tend to start acting differently. A lot [of] times, they do look at the ground. They don't make eye contact. Especially when they're saying the details.”

We agree with Blanton that the district court erred in failing to sustain Blanton's objection. Like Mullins, this was essentially another way to ask whether the witness thought Amy was telling the truth. Thus, the line of inquiry was improper, and the district court erred in permitting the question to be answered.

Harmless Error

We have identified four errors which Blanton contends denied his right to a fair trial. Three were made by the prosecutor during closing argument: referring to the prevalence of sexual abuse in the world and suggesting that even some prospective jurors may have been victims of such abuse; suggesting that Amy must be telling the truth because she was alleging things Sergeant Alarcon had heard related to sexual abuse before; and closely related, arguing that further investigation was not necessary because the officer, who has investigated lots of these cases, believed Amy, and that is enough. A fourth closely related error occurred by the trial judge in allowing a witness to testify as to the credibility of the victim. All four are subject to a harmless error analysis.

As to the prosecutorial error claim, Kansas courts apply the constitutional harmless error test. Mendez, 319 Kan. at 737. The court must determine whether that error was harmless. Blanton argues that the Kansas Constitution's Bill of Rights is different from the federal Constitution conceptually and structurally and those distinctions demand a different remedy for constitutional transgressions—automatic reversal. He contends that there is no off ramp of harmlessness for a violation of the State Constitution.

In State v. Carr, 314 Kan. 615, 629-45, 502 P.3d 546 (2022), a capital case involving extensive constitutional claims under the Kansas Bill of Rights, the court addressed whether the death penalty violated section 1 of the Kansas Constitution's protection of “inalienable” rights to life. Despite this detailed state constitutional analysis on other issues, when the court turned to prosecutorial error, although it found no prosecutorial error, it noted that even if there were error, it would apply the federal Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), standard, stating that “when analyzing both constitutional and nonconstitutional error we need only address the more demanding federal constitutional error standard.” 314 Kan. at 691. The court did not refer to any distinct Kansas constitutional harmless error test for prosecutorial error. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication that it is departing from its previous position. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022).

When applying the constitutional harmless error test, the State bears 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., where there is no reasonable possibility the error contributed to the verdict.’ ” State v. Z.M., 319 Kan. 297, 317, 555 P.3d 190 (2024) (quoting State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). “This is a difficult burden for the State in any appeal.” State v. Wash, 320 Kan. 646, 662, 571 P.3d 568 (2025).

When a witness is improperly allowed to comment on another witness’ credibility during trial, the remedy also depends on whether the error was harmless. Mullins, 267 Kan. at 97. Kansas courts apply harmless error analysis under K.S.A. 60-261, examining whether the improper testimony was inconsistent with the “ ‘substantial right[s] of the defendant.’ ” Giles, 27 Kan. App. 2d at 347 (quoting State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 [1995]).

Blanton argues that the prosecutor's statements encouraged the jury to be sympathetic and conscious of the prevalence of sexual abuse within our society, which contributed to undermining confidence that the verdict was fairly based on the facts and the law. Likewise, the suggestions that Amy was telling the truth because law enforcement believed her helped bolster the credibility of the victim, based on opinion rather than evidence. Finally, Blanton argues that by allowing the officer to comment during direct testimony on Amy's credibility, the State unfairly weakened the State's burden of proof by relying on officers’ personal beliefs rather than evidence.

The State's proffer regarding harmlessness is the same for all four incidents. It contends that the jurors could view Amy's testimony, which was consistent throughout, and independently judge her credibility. Nor did Blanton contest the latter two incidents. He simply argued one was accidental touching and the other could have happened when he was intoxicated. Therefore, all these errors were harmless. We disagree.

First, contrary to the State's assertion, we do not know which of the three incidents the jurors relied on in reaching their decision. By pointing to Blanton's admissions, the State concedes that the evidence was weakest regarding the first incident. It relied entirely on Amy's testimony. And, in closing arguments, the State recognized the problem with the timing of the first incident and whether it was properly charged. Instead, the prosecutor asked the jury to find the first act happened, but only to use it to establish and bolster the State's claim that Blanton likely committed the latter two acts and those acts met the definition of sexual abuse. We cannot draw any conclusions related to the harmlessness of the errors from Blanton's admissions.

Next, our Supreme Court has long held that multiple trial errors, each individually harmless, may combine to substantially prejudice a defendant and deny the defendant a fair trial. See State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992).

“[A]n appellate court examines the errors in the context of the record as a whole considering how the trial judge dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.” State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).

Here, the trial judge contributed to one of the errors by allowing the prosecutor to elicit testimony from Sergeant Alarcon that she did not believe Amy was lying. The admission of this testimony was inconsistent with Blanton's substantial rights.

Second, the prosecutorial errors during closing were inextricably connected to the trial court error and each other. Two of the errors dealt directly with the prosecutor's attempts to bolster Amy's credibility through the opinions of law enforcement officers. One dealt with asking the jury to consider additional things that were not in evidence. And these errors were contrary to well-established rules related to fair and proper closing arguments.

And finally, the evidence presented in this case was not overwhelming. It came down to whether the jury believed Amy. Yet during closing argument the prosecutor asked the jurors to consider the widespread abuse of children, the actions of prospective jurors, and to accept that Amy was telling the truth because the investigating officers believed she was telling the truth. The district court further tilted the scale by allowing the prosecutor to elicit testimony from law enforcement bolstering the credibility of the victim.

In light of the entire record and examining the errors under the more stringent constitutional harmless error standard, we have no hesitation finding that the State has failed to meet its burden to show that there is no reasonable possibility that the cumulative errors contributed to the verdict.

As a result, we reverse Blanton's conviction, vacate his sentence, and remand the case for Blanton to be provided a fair trial. We express no opinion on Blanton's guilt or innocence of this charge. Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one. Sherman, 305 Kan. at 105.

Conviction reversed, sentence vacated, and case remanded with directions.

Per Curiam: