State of Kansas, Appellee, v. Troy Allen Vsetecka, Appellant. (2026)

MEMORANDUM OPINION

A jury convicted Troy Allen Vsetecka of several crimes after he crashed his SUV into a sedan carrying a grandmother, her two children, and her eight-month-old grandson. On appeal, Vsetecka contends he was denied a fair trial because the district court admitted photographs and a video of the crash aftermath, which Vsetecka says were prejudicial and cumulative, along with testimony from an officer describing Vsetecka's demeanor during a police interview, which he characterizes as improper expert opinion testimony. He also claims there was insufficient evidence to support his burglary conviction, and that the court improperly sentenced him for second-degree murder instead of involuntary manslaughter. On review, we are unpersuaded and affirm his convictions.

Factual and Procedural Background

Around 6 p.m. on a Tuesday evening, a patrol officer with the Topeka Police Department saw Vsetecka's SUV speed by while the officer was en route to address a domestic disturbance call. Vsetecka was driving the wrong way on a one-way street, and the officer estimated he was traveling about 80 miles per hour. The officer notified dispatch and went to the area where he believed Vsetecka was headed, arriving at the site soon after the crash.

A man who had been driving behind the family's sedan witnessed the crash and pulled over to help. He saw Vsetecka crawl or fall out of the driver's side window of the SUV, and yelled to Vsetecka, “[S]top man. You could be hurt.” Vsetecka was on the ground when the man got to him, so the man grabbed Vsetecka and asked if he was all right. Vsetecka said, “ ‘Get your fucking hands off me, mother-fucker,’ ” and started walking away. The man then went to the sedan to help its occupants, who were screaming.

When the police arrived, the man began walking back to his car. As he was walking, he heard a woman yelling that Vsetecka had tried to get into a nearby house, so he relayed to the officers what he had heard. Meanwhile, a nearby homeowner's dogs began barking and ran into one of his bedrooms, where the homeowner then found Vsetecka. The homeowner went to tell the police and Vsetecka ran out the back door, where he was taken into custody.

Vsetecka tested positive for methamphetamine, amphetamine, marijuana, and cocaine. But he tested negative for alcohol.

Sadly, the grandson died from injuries he suffered in the crash. The son was in a medically induced coma for a month and a half, and he underwent rehab to get to the point where he could walk again. The daughter (the grandson's mother) was also injured. She received stitches on her face and required surgery and physical therapy to regain movement of her thumb. The grandmother suffered fractured ribs, a torn aortic valve in her heart, and a traumatic brain injury.

The State charged Vsetecka with reckless second-degree murder; reckless involuntary manslaughter; three counts of reckless aggravated battery; aggravated endangering a child; burglary of a dwelling; leaving the scene of an accident resulting in injury, death, or damage to property; driving the wrong direction on a one-way street; transporting an alcoholic beverage in an open container; possession of drug paraphernalia; and reckless driving. After a jury convicted him of all charges except possession of drug paraphernalia, the district court sentenced Vsetecka to 540 months in prison.

Review of Vsetecka’s Appellate Challenges

I. The district court did not err in admitting video footage and photographs of the crash scene and victims.

Before trial, Vsetecka unsuccessfully moved in limine seeking to exclude several categories of evidence, including:

• Axon video of the crash site and first responders rendering medical aid to the grandson,

• 2 photographs depicting different views of the grandson's car seat,

• 5 photographs of various views of Vsetecka's SUV after the crash, two of which depict a bottle of beer in the SUV,

• 13 photographs from the grandson's autopsy,

• 12 photographs of the other victims, depicting their injuries, and

• 5 additional photographs of the grandson, depicting his injuries.

On appeal, Vsetecka contends the district court erred in admitting these items at trial because he maintains their probative value was greatly outweighed by their prejudicial effect. He also claims that the photographs were cumulative and the State introduced them to inflame the passions of the jury.

A. Standard of Review and Relevant Legal Framework

“The admission of evidence involves several legal considerations: determining relevance; identifying and applying legal principles including rules of evidence; and weighing prejudice against probative value.” State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).

All relevant evidence is admissible unless excluded by statute, constitutional provision, or controlling caselaw. State v. Reid, 286 Kan. 494, Syl. ¶ 1, 186 P.3d 713 (2008). Our Legislature has decreed that evidence is relevant if it has “any tendency in reason to prove any material fact.” See K.S.A. 60-401(b). Courts have interpreted this definition to require that evidence be both material and probative. Evidence is material when it has some real bearing on the decision in the case, and it is probative if it has any tendency to prove any material fact. See State v. Alfaro-Valleda, 314 Kan. 526, 533, 502 P.3d 66 (2022).

Kansas appellate courts review whether evidence is material using a de novo standard and whether it is probative using an abuse of discretion standard. See 314 Kan. at 533. A court abuses its discretion when its decision is arbitrary, fanciful, or unreasonable, meaning no reasonable person would take the position adopted by the district court, or when it bases its decision on a legal or factual error. State v. Bilbrey, 317 Kan. 57, 63, 523 P.3d 1078 (2023).

As mentioned, even when evidence is relevant, the court must still determine whether it should be excluded based on other reasons. For example, the district court in its discretion may exclude relevant evidence if the court finds its probative value is substantially outweighed by its prejudicial effect. K.S.A. 60-445. District courts also have the discretion to admit or exclude cumulative evidence. State v. Meggerson, 312 Kan. 238, 257, 474 P.3d 761 (2020). “ ‘Cumulative evidence is evidence of the same kind to the same point, and whether it is cumulative is to be determined from its kind and character, rather than its effect.’ ” 312 Kan. at 257.

If an appellate court determines that evidence was admitted or excluded in error, then the party benefiting from the error must persuade the court that there is no reasonable probability that the error affected the outcome of the trial given the entire record. State v. Lowery, 308 Kan. 1183, 1235-36, 427 P.3d 865 (2018) (applying statutory harmless error standard from K.S.A. 60-261, which disregards errors that do not affect the substantial rights of the parties).

B. The district court did not abuse its discretion.

1. Relevance

Vsetecka disputes the relevance of the video and photographs by attacking their materiality. He says the State used them to describe the crash scene, victims’ injuries, and grandson's cause of death. Yet he alleges none of these facts were material since he never disputed that his actions caused the injuries and death in this case.

That said, Vsetecka admits the State can generally present its case in the manner it chooses—subject to the rules of evidence. And the State points out that not only does it have “an interest in presenting its case in its own way by telling the story as the State wishes” but it also has “the right and, in fact the duty, to establish the elements of the crime charged.” State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999). While Vsetecka offered to stipulate that his actions caused the grandson's death and other victims’ injuries, he did not offer to stipulate that his actions were reckless, which was an element of several of the charges.

Our Supreme Court faced a similar situation in State v. Backus, 295 Kan. 1003, 287 P.3d 894 (2012). A jury convicted Backus of murder and other crimes. 295 Kan. at 1006. Backus appealed the district court's decision to admit eight photographs of the crime scene and the victim's autopsy at trial on the grounds that the photographs were unduly gruesome, repetitive, and prejudicial. Like Vsetecka, Backus claimed the manner of his victim's death was not disputed at trial, so he claimed the photographs were irrelevant. 295 Kan. at 1012.

Our Supreme Court noted this argument has been rejected before, explaining, “ ‘[e]ven where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged ․, including the fact and manner of death and the violent nature of the crime․’ ” 295 Kan. at 1012-13 (quoting State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 [1997], and also citing State v. Kirby, 272 Kan. 1170, 1188, 39 P.3d 1 [2002]). As for the relevance of such photographs in homicide cases, it said:

“ ‘Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. Photographs which are relevant and material in assisting the jury's understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.’

“ ‘Additionally, because the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if the cause of death is not contested. Finally, while we have stated that the “ ‘ “wholesale admission of similar grotesque and bloody photographs which add nothing new to the state's case” is improper,’ a photograph need not be excluded simply because it is gruesome. [Citations omitted.]” ’ ” 295 Kan. at 1013.

Here, the State had the burden to prove the grandson's death and the great bodily harm to the three other victims in the sedan resulted from Vsetecka's reckless conduct. And it argues the photographs and video are relevant to this point because they show portions of the crime scene, evidence found in Vsetecka's SUV, and the nature of the victims’ injuries. Additionally, the State argues the photographs of the cut seat belt strap used to secure the grandson into the car seat demonstrate his injuries did not result from being improperly secured in the car seat but instead resulted from Vsetecka's reckless conduct. Last, like in Backus, the State claims the autopsy photographs helped a medical expert witness explain the grandson's injuries and how that witness came to his conclusion as to the grandson's cause of death.

Vsetecka fails to explain why the photographs and video were not related to the State's burden to prove all the elements of the charges he faced. The district court found the video footage relevant to show the scene immediately after the crash. And it cited State v. Parker, 277 Kan. 838, 848, 89 P.3d 622 (2004), and State v. Groschang, 272 Kan. 652, 667-68, 36 P.3d 231 (2001), as instances where the Kansas Supreme Court found a district court did not err in admitting video evidence in a murder case when the videos helped depict the victim or the crime scene. The district court also found photographs of the crash scene were material because they depicted the scene, injuries, grandson's cause of death, and Vsetecka's reckless conduct. We see no error in the district court's relevancy analysis.

As for the photographs of the bottle of beer in the SUV, Vsetecka does not directly address their relevance on appeal. And the State persuasively argues they were relevant to its burden to prove the charge of transporting an alcoholic beverage in an open container. We therefore also find no error in the district court's determination that these photographs were relevant.

2. Prejudicial and Cumulative Effect

Next, Vsetecka submits that the district court abused its discretion in admitting the video and photographs at trial because he claims this evidence only served to inflame the jury. He contends the prejudicial nature of this evidence substantially outweighed its probative value, and the exhibits were unduly cumulative.

3. Video of Crash Site and First Responders

As for the video, the district court found it was not cumulative because it showed interactions with witnesses, emergency personnel, victims, and the crime scene. The court also found the video was not more prejudicial than probative because it was relevant to showing the scene immediately after the crash. In making this finding, the district court cited State v. Randle, 311 Kan. 468, 480-81, 462 P.3d 624 (2020), where the Kansas Supreme Court found no abuse of discretion in the admission of a six-minute body camera video depicting emergency medical personnel arriving at the murder scene. Likewise, the State contends the video showed a different perspective of the victims’ injuries and the general state of the crime scene. And since the video was only about seven minutes long, the State contends this further limited its prejudicial effect.

We agree the video is a graphic depiction of what happened. But given the elements of the crimes the State had to prove, we cannot say no reasonable person would agree with how the district court weighed its prejudicial effect against its probative value. Nor do we find it unnecessarily cumulative since it depicts a different perspective of the scene and injuries than the photographs. We therefore find no error in the district court's decision to admit the video.

Since the photographs depict different subjects and relate to different facts, we will address their admission according to their subject matter.

4. Exhibits 79-83: Photographs of the SUV

Vsetecka claims the photographs of his SUV were repetitive of a fact only necessary for the open container charge and “served only for the [S]tate to argue [Vsetecka] was intoxicated—despite the test showing he had no alcohol in his bloodstream.”

To begin, Exhibits 79 and 80 show the outside of the SUV. These photographs demonstrate the violence of the crash by depicting the resulting damage to the SUV. They are clearly relevant and Vsetecka does not explain how this view relates to an intoxication argument. Thus, we do not find them unduly prejudicial.

Next, Exhibits 81-83 are photographs that depict different angles of an Olde English beer bottle and its location on a seat in the SUV. As mentioned, the State persuasively argues these photographs were relevant to its burden to prove the charge of transporting an alcoholic beverage in an open container. While Vsetecka's blood test revealed no evidence of alcohol in his system after the accident, the State also presented evidence that Vsetecka drank Olde English beer and smoked crack cocaine earlier that day, before the accident, with one of his friends. His friend was so worried about Vsetecka driving that she tried to stop him before he left, to no avail. We thus do not find the district court's determination—that the relevance of the photographs of the beer bottle was not substantially outweighed by their prejudicial effect—unreasonable.

5. Exhibits 34 and 36: Photographs of the Car Seat at the Crash Site

Vsetecka claims these two photographs were cumulative because they provided different views of cut seat belts, which he claims were not probative of any fact in the case. He claims they were also prejudicial because he alleges the State offered them to focus on the fact that a baby was involved in the crash. The district court reasoned these photographs, while similar, depict two different images, and were relevant to the grandson's injuries and cause of death. To support its finding, the district court cited State v. Dupree, 304 Kan. 43, 65, 371 P.3d 862 (2016), and State v. Rojas, 288 Kan. 379, 387-88, 204 P.3d 578 (2009), both for the proposition that depicting evidence from different angles does not mean it is cumulative or repetitious.

Again, the State argues these photographs were relevant to show the grandson's injuries did not result from being improperly secured in the car seat but instead were due to Vsetecka's reckless conduct. And since the photographs offer two different views of the car seat (one of the entire car seat, and one a close-up of a cut seat belt strap), we do not find them unduly cumulative. We thus also find no error in the district court's admission of these photographs.

6. Exhibits 67-78: Photographs of the Three Other Victims’ Injuries

Vsetecka generically claims these photographs were cumulative “as they were repetitive of the same injuries.” But the district court disagreed, finding they showed different wounds from different angles, citing State v. Love, 305 Kan. 716, 722, 387 P.3d 820 (2017). In Love, the Kansas Supreme Court found the district court did not abuse its discretion in admitting graphic autopsy photographs because they helped the medical examiner explain the child victim's cause of death and injuries. 305 Kan. at 720-22. Vsetecka fails to address the district court's reasoning behind its admission of these photographs, which we find reasonable. We therefore also find no error in their admission.

7. Exhibits 62-66 and 84-96: Photographs of the Grandson

Vsetecka contends the photographs of the grandson's injuries in Exhibits 62-66 and his autopsy photographs in Exhibits 84-96 were unduly prejudicial and cumulative. He contends they were inflammatory and irrelevant, as there was no dispute over the nature of the grandson's injuries.

On appeal, the State argues none of these photographs were presented to inflame the jury, but rather to show the grandson's external injuries and how these injuries contributed to his death. For example, it points out that Exhibits 62-64 each depict a different angle and Exhibits 65-66 show measurements of the injuries. And it contends the autopsy photographs helped a doctor explain the grandson's injuries and how he came to his conclusion on the grandson's cause of death. See State v. Showalter, 318 Kan. 338, 351, 543 P.3d 508 (2024) (“We have long recognized photographs can depict injuries in a way that a coroner's testimony cannot.”); see also State v. Rodriguez, 295 Kan. 1146, 1156-57, 289 P.3d 85 (2012) (gruesome photographs of deceased five-month-old victim were probative and not unduly prejudicial in that they showed extent of injuries). And as for whether the photographs were cumulative, the State points out that it used only 5 of the 26 photographs of the grandson's injuries and 13 of the 50 autopsy photographs.

As for Exhibits 62 through 66, the district court found these 5 photographs were admissible and not cumulative because they showed different angles of the grandson's injuries, again citing Dupree and Rojas as well as State v. Meggerson, 312 Kan. at 257. The court also found these photographs were not substantially outweighed by danger of undue prejudice, as all five photographs were relevant to the type of injuries, cause of death, and the potential reckless conduct by Vsetecka, citing State v. Lowry, 317 Kan. 89, 98, 524 P.3d 416 (2023). The district court also cited Alfaro-Valleda, 314 Kan. at 533, for the proposition that these photographs helped depict the extent of the injuries; and while gruesome crimes result in gruesome photographs, they do not automatically serve to inflame the jury.

Similarly, the district court found that Exhibits 84 through 96, the grandson's autopsy photographs, depicted different angles and were not unduly prejudicial because they helped explain the cause of death. It again cited Alfaro-Valleda, 314 Kan. at 533, as well as State v. Rodriguez, 295 Kan. at 1157-58, where the Kansas Supreme Court reiterated the point that where there were differing angles of injury, the photographs were not repetitious.

The photographs of the grandson are graphic. But given the nature of the collision in this case, the resulting evidence was likely going to be graphic. Again, just because the photographs accurately depicted what happened does not mean they are automatically unduly prejudicial. Given the district court's reasoning as to the probative value of these photographs, we cannot say that no reasonable judge would have agreed with the district court's decision to admit the photographs.

C. The error, if any, was harmless.

While we do not find the district court erred in admitting the video or photographs, we acknowledge that the decision was a close call, given the graphic nature of the evidence at issue. But even assuming the district court erred in admitting these exhibits, we find the error was harmless because, as the State persuasively argues, there was substantial evidence presented at trial to find Vsetecka guilty beyond a reasonable doubt.

The trial evidence showed Vsetecka drank beer and smoked crack cocaine earlier in the day before the crash. One of his friends was so concerned about Vsetecka's condition, she tried to stop Vsetecka from driving. The patrol officer spotted Vsetecka driving the wrong way on a one-way street going approximately 80 miles per hour shortly before the crash. And other witnesses who saw Vsetecka driving before the crash testified that Vsetecka's air bags were deployed before the crash, and he nearly hit someone else head on when he was speeding.

The testimony from the victims and nearby witnesses about the crash also demonstrated its violent nature, as well as Vsetecka's reckless conduct. One witness said, “Me and my daughter were inside playing around and we heard a loud boom that shook my walls and frightened us.” When they went outside, they saw “a white SUV ․ on the corner sidewalk and a green car smashed to a tree.” One of the victims said they were “going down Polk Street, and the vehicle came and hit the passenger side of our vehicle, and we rolled, and we ended up on our side next to a tree.” Vsetecka also yelled at the man who tried to help him after the crash, fled the scene, hid in a house nearby, and then tried to flee again before he was apprehended.

Given the nature of the evidence, the State has shown there is no reasonable probability that the outcome of the trial would have been different, even without admission of the evidence at issue. We therefore find that even if the district court abused its discretion in admitting the video and photographs, this assumed error was harmless.

II. The district court did not err in allowing Detective Iams to testify about her observations of Vsetecka's behavior in a police interview room.

Next, Vsetecka argues the district court erred by allowing Detective Kerrie Iams to testify that she had observed people who were under the influence of drugs or alcohol slump like Vsetecka. He claims this testimony was an expert opinion because he says it was based on specialized knowledge or training. He thus contends it was inadmissible because the State did not qualify Detective Iams as an expert. He also claims this testimony was improperly speculative since Detective Iams had no specific information about Vsetecka's state on which to base her opinion.

A. Standard of Review and Relevant Legal Framework

The admission of evidence lies within the sound discretion of the district court. This includes the discretion to determine whether a witness is qualified to offer an opinion and whether that opinion is an expert or lay opinion or improper speculation. See State v. Crudo, 318 Kan. 32, 37, 541 P.3d 67 (2024) (discussing court's discretion to determine admissibility of expert and lay opinion testimony); see also State v. Seacat, 303 Kan. 622, 643, 366 P.3d 208 (2016) (finding exclusion of speculative evidence was not an abuse of discretion).

As for the line between expert and lay opinion, the statute governing opinion testimony, K.S.A. 60-456, provides in part:

“(a) If the witness is not testifying as an expert, testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds: (1) Are rationally based on the perception of the witness; (2) are helpful to a clearer understanding of the testimony of the witness; and (3) are not based on scientific, technical or other specialized knowledge within the scope of subsection (b).

“(b) If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case.”

The erroneous admission of evidence is reviewed for harmless error under K.S.A. 60-261. Under this standard, we only reverse if a review of the entire record shows there is a reasonable probability that the error affected the outcome of trial. See Lowery, 308 Kan. at 1235. And where objected-to evidence “was cumulative of evidence that was otherwise admitted without objection,” an argument that the objected-to evidence was so prejudicial that it requires reversal must fail. See State v. Jones, 306 Kan. 948, 955, 398 P.3d 856 (2017).

B. Detective Iams’ Testimony at Trial

Detective Iams testified on the third day of Vsetecka's trial. She described watching Vsetecka while he was alone in the interview room at the law enforcement center. At one point, Detective Iams entered the room to assist him because Vsetecka, who had been seated, fell out of his chair and onto his head. As she was helping him up and back into his chair, Vsetecka volunteered that he only had one beer.

Portions of the video footage of Vsetecka in the interview room were played for the jury at trial, and both sides questioned Detective Iams about his behavior. During her direct examination, the prosecutor and Detective Iams discussed how Vsetecka almost immediately fell asleep after being brought into the room and how he was eventually transported to the hospital. On cross-examination, defense counsel asked Detective Iams what she thought was happening with Vsetecka in the interview room. She responded that she thought he was sleeping or, since she knew there had been a car accident, she “thought probably there could be a medical incident or it could be alcohol or drugs.”

Defense counsel then asked Detective Iams how many times Vsetecka fell over in the first six and a half minutes while he was in the interview room. Detective Iams confirmed it was at least twice. Defense counsel also established that Detective Iams was unaware of whether any alcohol testing had been conducted.

On redirect examination, the prosecutor asked Detective Iams when she had seen someone slumped over like Vsetecka was in the video footage. She responded that she had seen people slumped over when they were “extremely tired and fall[ing] asleep.” When the prosecutor asked if Detective Iams had seen people slumped over “just because they are tired or something else,” defense counsel objected, claiming the prosecutor's question called for Detective Iams to speculate. The prosecutor offered to lay foundation for Detective Iams’ testimony and then asked about her training at the police academy in narcotics and in identifying signs of intoxication. Detective Iams was also asked about her experience as a patrol officer and how many times she had been around someone under the influence of drugs or alcohol, to which Detective Iams replied, “Hundreds of times.”

Defense counsel objected again to this line of questioning, and the district court addressed the matter in a bench conference outside the jury's presence. Defense counsel objected that the prosecutor was improperly asking Detective Iams to speculate and offer expert opinion. The court overruled the objections.

After the questioning resumed, the following colloquy occurred between the prosecutor and Detective Iams:

“Q. (By [the prosecutor]) How many cases have you worked where you've interacted as a detective—so we already talked about patrol officer. So now as a detective, how many cases have you worked or people have you interacted with that you believed was under the influence of drugs or alcohol?

“A. Many.

“Q. Now back to my original question. I asked you, you've seen people slumped over like this before, and I believe your answer was, yes, if they are tired and falling asleep. Is that a correct recitation?

“A. Yes.

“Q. Have you ever seen people slumped over like this from not being tired based on sleep?

․

“A. Yes.

“Q․ When in those scenarios, tell me.

“A. A lot of times, alcohol and/or drugs.”

The only portion of Detective Iams’ testimony which Vsetecka is challenging on appeal is this last exchange, during her redirect examination.

C. The district court did not abuse its discretion in admitting Detective Iams’ testimony.

Vsetecka argues on appeal that Detective Iams’ observation about the cause of others’ slumping posture was inadmissible because he contends it was based on specialized or technical knowledge within the scope of K.S.A. 60-456(b).

To begin, Detective Iams did not testify that she believed Vsetecka was under the influence of alcohol or drugs. Instead, she was asked about her experience in observing similar behavior in others and then commented on the cause of that behavior in those individuals—not the cause of Vsetecka's behavior. We fail to see how her testimony amounted to opinion testimony at all, much less expert opinion testimony. Yet even if we consider it opinion testimony, we do not find it inadmissible.

Vsetecka argues that Detective Iams’ testimony was based on her training and experience as a law enforcement officer. This is not the first time an appellate court has grappled with drawing the line between expert and lay opinion when it comes to law enforcement testimony. For instance, in Crudo, 318 Kan. at 37, our Supreme Court examined whether law enforcement testimony about the packaging, quantity, and pricing of marijuana and behavior of marijuana traffickers indicated an intent to distribute. In that case, the court noted that drawing this line is difficult, but, ultimately, the rule is the same regardless of whether the witness at issue is a law enforcement officer. It explained:

“ ‘The determination of whether testimony is properly admitted as lay opinion is based upon the nature of the testimony, not whether the witness could be qualified as an expert.’ ‘Experience-derived police testimony concerning criminals’ typical modi operandi during a drug transaction does not automatically constitute expert testimony.’ Stated another way, the bare use of the terms ‘training’ and ‘experience’ does not automatically make someone an expert. At the most basic level, ‘ “opinions are formed by evaluating facts based on life experiences including education, background, training, occupation, etc.‘[Citations omitted.]” Crudo, 318 Kan. at 39.

Likewise, just because Detective Iams has received specialized training does not mean she relied on that training when recounting the cause of others’ slumping posture as being under the influence of alcohol or drugs.

In finding that the district court did not abuse its discretion in admitting testimony in Crudo, the Supreme Court noted the officer's observations were within the purview of an ordinary person's common understanding. It also pointed out that comprehending and interpreting information about marijuana pricing did not require special training or complex analysis. 318 Kan. at 40-41. Similarly, it is generally understood that people under the influence of alcohol or drugs often have trouble with coordination and balance, including slumping or falling over. See State v. Slater, 267 Kan. 694, 705, 986 P.2d 1038 (1999) (“ ‘The objective signs of intoxication are matters of common knowledge and experience.’ ”); State v. Humbolt, 1 Kan. App. 2d 137, 139, 562 P.2d 123 (1977) (finding officer's statement that defendant appeared to be under the influence of alcohol based on the defendant's behavior was lay opinion testimony rationally based on the officer's perception of the defendant). Detective Iams’ observation about others whom she had seen exhibiting a slumping posture like Vsetecka's seems based on common knowledge rather than specialized knowledge as well as her life experiences rather than technical training. We fail to see how the district court erred in admitting it.

We find Vsetecka's contention that Detective Iams’ testimony was speculative to be equally unpersuasive. Vsetecka says the State's motivation behind this line of questioning was to get Detective Iams to testify about whether Vsetecka “may have been [sic] behaved a certain way because he was under the influence.” First, any motivation that Vsetecka attributes to the State's questions is irrelevant because the issue is whether the testimony itself was inadmissible—not whether the State was wrong to ask the questions it did. And regardless of the reasoning behind the questions, Detective Iams was not asked to speculate whether Vsetecka was under the influence of alcohol or drugs based on his behavior and she did not opine that he was. She merely observed that she had seen other people slumped over like Vsetecka when they were “extremely tired” or under the influence of alcohol and/or drugs. We thus fail to see how the district court erred in admitting the testimony over Vsetecka's speculation objection as well.

In any event, even assuming the district court erred in admitting Detective Iams’ observations, we find the assumed error harmless.

Vsetecka says the State used this evidence to support its argument that Vsetecka acted recklessly and that he was intoxicated during the crash. But even without Detective Iams’ testimony, the jury could have inferred these facts. The jury saw the interview room video and could make its own observations about Vsetecka's behavior. It heard evidence that Vsetecka had drugs in his system but not alcohol after the crash, and how he had smoked crack cocaine earlier in the day before the crash.

Also, Detective Iams was asked during direct examination—without objection—about her thoughts on how Vsetecka was acting in the interview room. She testified she thought he was sleeping, there had been a medical incident, or alcohol or drugs were involved. So, the jury could have relied on this testimony instead of her later observations to support its findings as well. In short, we fail to see how the admission of the testimony at issue, even if in error, affected the outcome of the trial.

III. Because there were no errors, the cumulative error doctrine does not apply.

Vsetecka next submits that the district court's errors in admitting the photographs, video, and Detective Iams’ testimony combined to prejudice his right to a fair trial. Cumulative trial errors, when considered together, may require reversal of the defendant's convictions when the totality of the circumstances establish that the defendant was substantially prejudiced by the errors and denied a fair trial. Alfaro-Valleda, 314 Kan. at 551. But “[i]f none or only a single error exists, the cumulative error doctrine is inapplicable.” State v. Johnson, 321 Kan. 357, 371, 580 P.3d 20 (2025).

As explained, we do not find the district court erred, so Vsetecka's cumulative error claim fails.

IV. The State presented sufficient evidence to prove Vsetecka committed burglary.

Vsetecka was charged with burglary of a dwelling based on K.S.A. 2020 Supp. 21-5807(a)(1), which states: “Burglary is, without authority, entering into or remaining within any: ․ [d]welling, with intent to commit a felony, theft or sexually motivated crime therein.” The felony the State charged Vsetecka with intending to commit was either the crime of leaving the scene of an accident in violation of K.S.A. 8-1602(a), (b)(4) and/or interference with law enforcement as defined in K.S.A. 21-5904(a)(2) and/or (a)(3). Vsetecka argues the evidence was insufficient to support his burglary conviction because he contends the State failed to prove he intended to commit either of these felonies at the time he committed the burglary.

A. Standard of Review and Relevant Legal Framework

In criminal cases, “[w]hen a defendant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). When applying this standard, appellate courts “do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.” 319 Kan. at 723. Generally, appellants do not have to challenge the sufficiency of the evidence at the district court to preserve that issue for appeal. State v. Hilyard, 316 Kan. 326, 330, 515 P.3d 267 (2022).

The appellant bears a high burden to succeed on a sufficiency of the evidence claim, and “only when the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a guilty verdict.” Meggerson, 312 Kan. at 247. And appellate courts have said, “a conviction of even the gravest offense can be based entirely on circumstantial evidence.” State v. Banks, 306 Kan. 854, 858, 397 P.3d 1195 (2017).

B. The State presented sufficient evidence to support Vsetecka's burglary conviction.

The State had to prove the following elements of the crime of leaving the scene of the accident:

(1) The defendant was the driver of a vehicle involved in an accident;

(2) The accident resulted in injury to, great bodily harm to or death of any person or damage to any attended vehicle;

(3) The defendant failed to remain at the scene until information required by K.S.A. 8-1604 was provided (which includes the defendant's name, address, registration number for the vehicle the defendant was driving, insurance information and, if requested, the defendant's drivers’ license) or report the accident to law enforcement; and

(4) This act occurred on or about the 30th day of March 2021, in Shawnee County, Kansas. K.S.A. 8-1602(a); K.S.A. 8-1604(a), (b).

Vsetecka does not directly challenge whether the State established each of these elements of this crime. Instead, he challenges the timing of his commission of this crime and the alleged burglary. That is, he says he had already completed this crime by the time he entered the nearby home without permission. For support, he relies on the proposition from our Supreme Court that “ ‘[t]o support a conviction for aggravated burglary, the intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist,’ ” (quoting State v. Daws, 303 Kan. 785, 793, 368 P.3d 1074 [2016]).

But just because Vsetecka technically committed the crime of leaving the scene of an accident when he walked away, that does not mean he completed it. When viewed in the light most favorable to the State, the evidence was adequate to support a finding that Vsetecka's intent to commit burglary and his intent to leave the scene of the accident coexisted. As the State points out, Vsetecka only walked a few houses away from the scene before entering the neighbor's home. And, when the neighbor discovered him, Vsetecka asked for help but then fled when the neighbor went to alert the police. This evidence supports an inference that Vsetecka entered and hid in the nearby house to avoid detection and the obligations imposed by K.S.A. 8-1602(a) and K.S.A. 8-1604(a), (b), and Vsetecka was continuing to do so when he fled after detection.

Based on these facts, we find a sufficient nexus between Vsetecka's intent to commit the crimes of leaving the scene of the accident and burglary of a dwelling to satisfy the elements of the burglary conviction. As such we need not decide whether there was sufficient evidence for the elements of the crime of interference with law enforcement. We therefore affirm Vsetecka's burglary conviction.

V. The district court did not err in sentencing Vsetecka for reckless second-degree murder.

Vsetecka was charged with and convicted of two homicide counts—reckless involuntary manslaughter under K.S.A. 21-5405(a)(1), (b)(1)(B) and reckless second-degree murder under K.S.A. 21-5403(a)(2)—based on the same conduct. The district court merged the convictions and sentenced him to the greater crime of reckless second-degree murder. Vsetecka claims the reckless involuntary manslaughter charge was more specific and therefore, under the general/specific rule recognized in State v. Ruiz, 317 Kan. 669, 681, 538 P.3d 828 (2023), we should vacate his sentence for reckless second-degree murder and remand for resentencing under the reckless involuntary manslaughter charge.

A. Preservation

To begin, the State contends that Vsetecka failed to preserve this challenge because he did not object to his sentence below, and he specifically agreed the two counts merged. Typically, issues not raised before the district court cannot be raised on appeal. See State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022).

But “certain issues, such as subject matter jurisdiction or an illegal sentence, can be raised at any time regardless of whether the issue was presented to the district court.” State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019); see also K.S.A. 22-3504(a) (“The court may correct an illegal sentence at any time while the defendant is serving such sentence.”). And a defendant cannot agree to an illegal sentence. See State v. Hankins, 304 Kan. 226, 231, 372 P.3d 1124 (2016); see also State v. Lehman, 308 Kan. 1089, 1093, 427 P.3d 840 (2018) (holding an illegal sentence may be corrected regardless of whether one or more parties may have had a hand in arriving at the illegality). Since K.S.A. 22-3504(a) empowers the court to fix an illegal sentence at any time, we find an exception to the preservation requirement.

B. Standard of Review and Relevant Legal Framework

Under K.S.A. 21-5109, a defendant may be prosecuted for two crimes based on the same conduct. But when the crimes alleged differ “only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct,” the defendant can only be convicted of one and must be sentenced on the more specific crime. K.S.A. 21-5109(d). Vsetecka contends reckless involuntary manslaughter is a more specific crime than reckless second-degree murder, so he should have been sentenced for that crime. His argument requires that we interpret K.S.A. 21-5109, as well as K.S.A. 21-5405 and K.S.A. 21-5403. Statutory interpretation presents a question of law over which appellate courts exercise unlimited review. State v. Gomez, 320 Kan. 3, 13, 561 P.3d 908 (2025).

C. The district court did not err in sentencing Vsetecka.

K.S.A. 21-5403(a)(2) defines reckless second-degree murder. It provides: “Murder in the second degree is the killing of a human being committed ․ unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-5403(a)(2). And K.S.A. 21-5405(a)(1) defines involuntary manslaughter as “the killing of a human being ․ [r]ecklessly.” K.S.A. 21-5202(j) defines recklessly as: “A person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Reckless involuntary manslaughter is a severity level 3 person felony under certain circumstances, including if the victim is under the age of six years. It is a severity level 4 or 5 person felony under other circumstances. K.S.A. 21-5405(b)(1).

Vsetecka acknowledges that reckless involuntary manslaughter is a lesser included offense of reckless second-degree murder and, generally, if a person is convicted of the greater and the lesser, they must be sentenced only to the greater. See State v. Hernandez, 294 Kan. 200, 205, 273 P.3d 774 (2012). But he maintains that since he was charged with reckless involuntary manslaughter based on his killing of a child under six years old, this makes the reckless involuntary manslaughter charge more specific than the reckless second-degree murder charge. And, under K.S.A. 21-5109(d), he contends he can only be sentenced for the more specific charge.

In State v. Johnson, 321 Kan. at 373, our Supreme Court observed that K.S.A. 21-5109(d) applies “when crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” And it held that “a statute describes a crime that is more specific than another only if it prohibits identical conduct plus an additional, specifying element.” 321 Kan. at 373.

Our Supreme Court has said that the “difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind.” State v. Gonzalez, 307 Kan. 575, 583, 412 P.3d 968 (2018). That is, both crimes involve reckless conduct, but the amount of recklessness differs. Involuntary manslaughter is a killing committed recklessly. K.S.A. 21-5405(a)(1). Second-degree murder can be committed by killing a human being unintentionally and recklessly but only under circumstances manifesting extreme indifference to the value of human life. K.S.A. 21-5403(a)(2).

The State maintains reckless second-degree murder is the more specific crime to involuntary manslaughter, relying on Gonzalez, 307 Kan. at 583, where our Supreme Court said:

“ ‘To convict a defendant charged with unintentional second-degree murder, the State is required to prove not only that the defendant consciously disregarded a substantial and unjustifiable risk that death will result from existing circumstances but also that the defendant did so under “circumstances manifesting extreme indifference to the value of human life.” [Citation omitted.] Although recklessness is an essential element to prove the offense in both statutes, the unintentional second-degree murder statute still requires an additional element.’ ”

Even though Gonzalez was decided in a constitutional vagueness context, the State contends these principles apply here too.

We agree. While the jury had to find the age of the victim because that fact impacts the severity level of the reckless involuntary manslaughter crime, the two statutes do not prohibit identical conduct. Second-degree murder requires the killing to be under circumstances manifesting extreme indifference to the value of human life, which requires proving a more specific culpability than the lesser offense of involuntary manslaughter.

We therefore affirm the district court's sentencing of Vsetecka under his second-degree murder conviction.

Affirmed.

Cline, J.: