State of Kansas, Appellee, v. III (2026)

MEMORANDUM OPINION

Robert Hagar challenges his convictions after a jury trial for aggravated indecent liberties with a child and possession of marijuana. He alleges that comments by the prosecutor and an error in the jury instructions warrant a new trial. After carefully reviewing the evidence and the parties’ arguments, we conclude that most of Hagar's claims are without merit. And though the prosecutor made one inappropriate and reactionary comment during closing argument, we are convinced beyond a reasonable doubt that this comment did not affect the jury's verdict. We thus affirm Hagar's convictions, though we remand the case to correct an error in the sentencing journal entry.

Factual and Procedural Background

Eleven-year-old Jane (a pseudonym) lived with her parents (Mother and Father) in a third-floor apartment. In June 2023, Jane swam with family and friends, including her neighbor (who we call Cassandra) and Cassandra's young sons. Later in the evening, Jane went to Cassandra's apartment on the first floor, planning to spend the night at the apartment to help watch Cassandra's kids. When they got to the apartment, Cassandra went to her room and listened to music while Jane and two of the boys were in the living room on the couch. The boys slept, and Jane watched TV and used her phone.

Sometime that evening, Jane heard a knock at the door. When she opened the door, she saw Hagar—an apartment complex resident she knew as “Robert.” Hagar entered the apartment, pushing past Jane. He began pacing between the kitchen and living room, stumbling once. Jane, who was wearing swimsuit bottoms and an oversized T-shirt, returned to the couch and resumed using her phone. While Jane was lying on the couch, Hagar approached, bent over, and kissed her on the lips. Jane smelled alcohol on his breath. She reached for a blanket to cover herself, but Hagar pulled it back.

During testimony at trial, the prosecutor asked Jane if Hagar “touched” her, and Jane initially said that he did not. The prosecutor asked to take a break, and when questioning resumed, the following exchange occurred regarding what happened at the apartment that evening:

“Q [Jane], do you wanna be here today?

“A No. No.

“Q You have to speak up, honey, I'm sorry.

“A No.

“Q Okay. Are you scared?

“A Yes.

“Q Is it easy for you to talk about these things?

“A No.

“Q Have I ever told you what to say?

“A No.

“Q Did I tell you that you just need to tell the truth?

“A Yes.

․

“Q Now, do you remember when we were talking about what happened when the defendant was in the living room with you?

“A Yes.

“Q Okay. Was there something that you said that wasn't the truth before?

“A Yes.

“Q What was that?

“A He touched me.

“Q The defendant did touch you.

“A Yes.

“Q Was that before or after he kissed you?

“A After.

“Q Where did he touch you?

“A On my private area.

“Q Was that on your vagina?

“A Yes.

“Q When he touched you there, did—did he just briefly touch you or did he rub it?

“A He briefly touched me.”

Jane explained that Hagar then pulled her swimsuit bottoms to the side, exposing her, and looked at her before walking away. Jane ran to the bathroom and tried to call 911 but did not have cell service. She then ran to Cassandra's room and knocked on the door, but there was no answer. Hagar came around the corner, pulled out a pocketknife, and told Jane to “[m]ove out the way.” Jane ran out of the apartment and upstairs to her apartment, crying and pounding on the door until Father let her in. Jane told Mother that “[t]he neighbor next door broke in and ․ tried to touch me.” Mother called 911.

While Hagar was in the apartment, Cassandra was in her room cleaning and listening to music. She explained at trial that at one point, she heard a “slight knock” at the door and turned her music down to ask if anyone was there. Cassandra said she may have heard “a whimper” in response, but “nobody answered” and so she turned her music back on. Then 30 seconds later, she heard multiple loud “bangs” at the door. She grabbed a baseball bat, walked out, and saw that the front door was open and that Hagar was near the sliding glass door. Cassandra asked Hagar why he was in her apartment, and he said that he wasn't supposed to be. Hagar was “stumbling through his words,” was “not making much sense,” and was “clearly drunk.” Cassandra opened the sliding glass door and pushed Hagar outside.

The police arrived at the apartment, and Cassandra showed them a knife on a shelf in the hallway by the bedrooms. The police then went to Hagar's apartment, and after a roommate let them in, they found Hagar asleep on the floor of his bedroom. The officers asked the roommate if the pocketknife from Cassandra's apartment belonged to Hagar, and the roommate confirmed that it did. The police arrested Hagar and, during the search incident to that arrest, found a small baggie of marijuana in his pocket.

The State charged Hagar with aggravated indecent liberties with a child, aggravated burglary, and unlawful possession of marijuana. The case then proceeded to trial, where the jury found Hagar guilty of all three charges.

Hagar moved for a new trial, arguing (among other things) that his right to a unanimous jury verdict was violated because the jury was presented with multiple factual situations that could have supported his conviction of aggravated indecent liberties with a child. After a hearing, the district court denied the motion concerning his aggravated-indecent-liberties conviction but vacated the burglary conviction on grounds unrelated to this appeal.

The district court sentenced Hagar to life in prison without the possibility of parole for 25 years for aggravated indecent liberties with a child and 6 months in jail for possession of marijuana, to be served concurrently. In the journal entry of sentencing, the district court indicated that Hagar would be subject to both lifetime postrelease supervision and parole when his prison sentence was complete.

Discussion

On appeal, Hagar challenges three aspects of his trial and sentencing. He argues that the prosecutor committed multiple errors during closing argument that deprived him of a fair trial. He also renews his claim from his posttrial motion concerning the need for a unanimity instruction. And he asserts that the district court erred when it imposed both lifetime postrelease supervision and parole. After reviewing these claims, we find that Hagar has not demonstrated any reversible error at trial and thus affirm his convictions. But we agree that the sentencing journal entry contained a legal error requiring correction.

1. The State did not commit reversible prosecutorial error.

Hagar first contends that several statements by the prosecutor during closing argument exceeded the bounds of permissible argument by commenting on facts not supported by the evidence and thus deprived him of a fair trial.

Appellate courts evaluating claims of prosecutorial error first assess whether the prosecutor acted “outside the wide latitude afforded” to prosecutors presenting their case at trial. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). When a prosecutor's comments or actions exceed the realm of permissible conduct, the burden shifts to the State to convince us beyond a reasonable doubt that the error did not affect the outcome of the trial. See 305 Kan. at 109.

A prosecutor's comments must be evaluated in context. Like any attorney arguing at trial, a prosecutor has wide latitude when commenting on the evidence that has been presented to the jury. See State v. Anderson, 318 Kan. 425, 437, 439, 543 P.3d 1120 (2024). But a prosecutor may not comment on facts outside the evidence. State v. Johnson, 321 Kan. 357, 367, 580 P.3d 20 (2025). And prosecutors may not seek to persuade jurors with direct or indirect appeals to deeply emotional human instincts, “such as the desire to protect a vulnerable child,” because those arguments invite responses that are not connected to evidence and the law. State v. Kittle, No. 125,883, 2024 WL 4579008, at *2 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 865 (2025). Instead, prosecutors must make arguments that are relevant to and reasonably inferred from the evidence admitted at trial. State v. Tahah, 302 Kan. 783, 788, 358 P.3d 819 (2015).

1.1. The prosecutor's description of Jane as “terrified” was a reasonable comment based on the evidence.

Hagar first argues that the prosecutor erred by embellishing the language used by Jane at trial to describe her feelings on the day of the crime. He singles out the following comments as error:

• “Ladies and gentlemen, June 24th, 2023, is a day that [Jane] will never forget. It should've been a day that she remembered as a ․ day of fun․ But as you've heard, ladies and gentlemen, that day ended in terror.”

• “You heard [Jane] come in and testify. How do you judge her credibility? Well, look at her demeanor in the courtroom. She was terrified. She was terrified. Her body language. She wouldn't look at the defendant. Remember when I asked her to look around the courtroom and see if Robert was in the courtroom? What did she do? She looked from here over. She kept looking at you, then she looked back. It's because she knew her attacker was sitting over there on the right. Even when I told her, ‘Look at the whole courtroom,’ she would only go that far. Even with everybody in this courtroom, she's still terrified of him, and that tells you what he did to her.

“What's her motive for testifying the way she did? She has no motive to make that up. Why would she do that and subject herself to what she had to go through in this courtroom?”

• “Now, his argument when it comes to [Jane] is, well, she's a little liar. She's a little liar. You can't trust anything she says. She came in here and she told you one thing and then she told you something else. Well, does that make her not credible or does that make her more credible? You saw her, ladies and gentlemen. You saw that little girl sitting up here in this big courtroom, facing 12 strangers and the man who had violated her. That wasn't easy for her. That wouldn't be easy for an adult. And here she is, a 12-year-old girl. She was terrified. You could see that. She said she was scared. She wouldn't look over there. Does that make her more credible or less?

“․ Based on her demeanor here in the courtroom, can you have any doubt whatsoever about what this defendant did to her?”

Hagar argues that the prosecutor's description and use of the word “terrified” was error because Jane never said she was “terrified.” Instead, Hagar argues that the language was an inflammatory embellishment rooted in the prosecutor's opinion, not the evidence presented.

We disagree. Jane testified to being scared at the time of Hagar's assault. She explained that after the incident, she ran out of the apartment crying to her parents. Mother also said she heard Jane “screaming, running up the stairs saying, ‘Let me in. Let me in.’ ” Jane told Mother, “I don't feel safe down there.” Jane explained that she was scared during her testimony; she did not want to be there and was scared to talk about the events and see Hagar. The prosecutor used different words that were more colorful and evocative than those Jane used. But those arguments were reasonable inferences based on the evidence presented at trial.

Nor are we persuaded by Hagar's argument that the prosecutor's comments were impermissible inferences about Jane's credibility. While prosecutors should not comment on or seek to bolster the credibility of their witnesses, they may nevertheless “ ‘explain[ ] to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ ” State v. Lowery, 308 Kan. 1183, 1207, 427 P.3d 865 (2018). A prosecutor may thus “offer ‘comments during closing argument regarding the witness’ motivations [or lack thereof] to be untruthful.’ ” State v. Ortega, 300 Kan. 761, 776, 335 P.3d 93 (2014).

Here, the prosecutor sought to point out the factors the jury might consider when assessing Jane's credibility—a matter Hagar challenged throughout the trial. The prosecutor's comments regarding Jane's demeanor and actions were directly tied to the evidence and testimony at trial. Thus, the prosecutor's comments were reasonable inferences within the wide latitude allowed in closing arguments.

1.2. Other comments by the prosecutor were erroneous but did not affect the outcome of Hagar's trial.

Hagar also argues that the prosecutor erred by assuming defense counsel's knowledge in an attempt to persuade the jury that the defense was trying to deceive them. This argument requires some brief context.

During trial, defense counsel questioned one of the responding officers on cross-examination, asking him about whether he made efforts to swab the knife and Jane's clothing for DNA. During closing argument, the prosecutor asserted that defense counsel knew the facts in the case proved his client's guilt and that defense counsel knew certain things about DNA and how it works. As the State recognizes, these comments related to the defense attorney's knowledge about DNA evidence and testing—matters never introduced into evidence—and thus exceeded the bounds of appropriate argument:

“Ladies and gentlemen, [the defense attorney] doesn't want you to focus on the evidence that's been presented. He wants you to focus on DNA and fingerprints. He wants you to focus on things that weren't done. Now, why does he want you to do that? Why does he wanna send you down that rabbit hole? Because he knows that the evidence in this case proves beyond a reasonable doubt that the defendant, his client, is guilty of the crimes that are charged.

“What would've been the point of fingerprinting or ․ checking for DNA on the knife? It was identified as the defendant's by his roommate, impartial witness. What would've been the point of taking [Jane's] clothing? There was no allegation that the defendant spit on that clothing or ejaculated on that clothing. [The defense attorney] says, ‘Well, there would've been DNA.’ He knows that there's no guarantee there would've been any DNA. He knows that's not how DNA works.”

The State concedes that these comments were in error, and we agree. We thus shift our analysis to whether the State has demonstrated “ ‘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.’ ” Sherman, 305 Kan. at 109. We find that the State has met this burden here.

The prosecutor's erroneous statements about the defense attorney's knowledge of DNA evidence and testing were only peripherally related to Hagar's case. But the evidence of Hagar's guilt at trial was strong. Jane testified to Hagar kissing and touching her. Although her testimony was initially inconsistent, after a break she testified that she had been scared to talk about the incident and continued with her description of the events. Jane's testimony was corroborated by Cassandra, who said she heard knocking and then saw Hagar and the knife in the apartment. Hagar's roommate confirmed that the knife belonged to Hagar. Mother also testified to Jane crying at their apartment door, saying that she did not feel safe downstairs.

The district court instructed the jury that the statements and arguments of counsel were to assist in “understanding the evidence and in applying the law” but were not evidence, and any statements outside the evidence should be disregarded. The prosecutor's comments here were erroneous and likely unnecessary, but the State has shown that they had no bearing on the jury's verdict.

In sum, the prosecutor's description of Jane as “terrified” was not error because there were reasonable inferences from the evidence presented through witness testimony. The prosecutor erred in commenting on the defense attorney's knowledge of DNA, but we are convinced beyond a reasonable doubt that those comments did not affect the outcome of Hagar's trial.

2. A unanimity instruction was not warranted because Hagar's actions were part of one continuous course of conduct.

Hagar next argues that the State provided evidence of three actions that might be considered lewd touching—kissing Jane, touching her vagina over her swimsuit bottoms, and pushing her swimsuit bottoms aside to expose her. In particular, Hagar notes that Jane attempted to pull a blanket over herself after he kissed her, and Hagar stopped her and pulled the blanket down before touching her. He asserts that the actions involving a blanket marked a separation in his conduct. He argues that the district court should have instructed the jury on the need for unanimity as to which act led to his conviction.

Hagar did not request a unanimity instruction during the trial but rather raised the issue during a posttrial motion for a new trial. The district court denied the motion, finding a unanimity instruction was not appropriate here since the defendant engaged in a continuous course of conduct.

Because Hagar did not present this argument during his trial, we must determine whether a unanimity instruction was legally and factually appropriate and, if so, whether we are firmly convinced that the jury would have reached a different verdict if the instruction had been given. See State v. Gleason, 320 Kan. 726, 738-39, 571 P.3d 522 (2025).

A unanimity instruction is appropriate when there are multiple acts by the defendant that could have constituted the crime charged. See State v. Sprague, 303 Kan. 418, 422-23, 362 P.3d 828 (2015). Multiple acts are “ ‘legally and factually separate incidents that independently satisfy the elements of the charged offense.’ ” 303 Kan. at 423. Incidents are factually and legally distinct when the criminal acts occurred at different times or different locations or when a criminal act was motivated by a fresh impulse. 303 Kan. at 423. Stated another way, courts review the existence of “unitary conduct” by evaluating

“ ‘(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.’ ” State v. Colston, 290 Kan. 952, 962, 235 P.3d 1234 (2010), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016).

For example, criminal conduct occurring over several months at different locations constitutes multiple acts. State v. King, 299 Kan. 372, 380, 323 P.3d 1277 (2014). The Kansas Supreme Court has also found that criminal sexual conduct was broken up into two distinct acts when the perpetrator left the room for 30-90 seconds, though the court found that distinction to be a “close call.” State v. Sellers, 292 Kan. 346, 359-60, 253 P.3d 20 (2011), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). The “threshold question” of whether a defendant's actions constituted multiple acts or a continuous course of conduct is a legal determination over which appellate courts exercise unlimited review. Sprague, 303 Kan. at 422-23.

We have no difficulty concluding that Hagar's actions consisted of a continuous course of conduct and did not involve multiple acts. Hagar's interactions with Jane occurred at or near the same time, in the same location, with no meaningful break. Jane testified that Hagar kissed her on the lips while she was on the couch. She then attempted to cover herself with the blanket, but he pulled the blanket back and touched her and moved her swimsuit bottoms to the side.

Hagar argues that the lewd kissing was factually and legally separated from the lewd touching when Jane covered herself with a blanket. But Jane's attempt to cover herself with the blanket did not halt Hagar's actions or break the chain of events into factually and legally distinct criminal acts of lewd touching or fondling. And contrary to Hagar's assertions, nothing shows that Hagar's act of pulling back the blanket initiated a fresh impulse to touch Jane in a different way. The actions were part of a continuous course of conduct.

The district court applied these factors and found that there were not multiple acts in this case because “[t]here was no break, so the timing was almost instantaneous. It was at the same location, of course. There was no intervening events ․, [and] it was all a part of the same impulse or motivating behavior.” We agree. This was not a multiple-acts case that required a unanimity instruction.

3. Upon completion of his prison sentence, Hagar will be subject to parole, not lifetime postrelease supervision.

In his final argument on appeal, Hagar argues that the journal entry of judgment incorrectly reports that his sentence includes both lifetime parole and lifetime postrelease supervision. The State agrees and asks this court to vacate the lifetime postrelease and remand to correct the journal entry to include only lifetime parole.

Parole and postrelease supervision are different modes of supervision with different requirements. See State v. Harsh, 293 Kan. 585, 589-90, 265 P.3d 1161 (2011). A district court errs by imposing lifetime postrelease supervision after lifetime imprisonment for Jessica's Law offenses, including aggravated indecent liberties with a child. State v. Smith, 299 Kan. 962, 986, 327 P.3d 441 (2014).

Here, Hagar was convicted of aggravated indecent liberties with a child under K.S.A. 21-5506. The district court sentenced him to life imprisonment without the opportunity for parole for 25 years according to K.S.A. 21-6627(a)(1)(C). But the court also stated that “[t]here will be lifetime postrelease in this matter ․ if and when you are paroled.” In the journal entry of sentencing, the district court indicated that Hagar was subject to both parole and lifetime postrelease supervision for this offense. As the parties note, this was error. See Smith, 299 Kan. at 986. We thus vacate the lifetime postrelease requirement and remand for a corrected journal entry to reflect Hagar's correct sentence. See 299 Kan. at 986.

Affirmed in part, vacated in part, and remanded with directions.

Per Curiam: