State of Kansas, Appellee, v. Nathaniel M. Keller, Appellant. (2026)

MEMORANDUM OPINION

A jury convicted Nathaniel M. Keller of several crimes, including criminal sodomy, aggravated indecent liberties with a child, and furnishing alcohol to a minor for illicit purposes. Keller appeals his conviction and sentence, raising four issues. Because we agree that the State erred in shifting the burden and defining reasonable doubt and has not shown that these errors are harmless, we reverse and remand for a new trial. As our decision on this issue is dispositive, we do not reach Keller's other three issues raised on appeal.

Factual and Procedural History

In September 2021, the State charged Keller with a variety of crimes, including criminal sodomy, multiple counts of aggravated indecent liberties with a child, furnishing alcohol to a minor for illicit purposes, and promoting obscenity to a minor. The crimes were alleged to have been committed against Jane (a pseudonym) between May 1, 2017, and December 31, 2017, at which time she was 14 years old. These charges stemmed from allegations first made by Jane in August 2018, with additional investigation occurring beginning in April 2021.

During trial, the State called several witnesses, beginning with Jane. Jane testified that Keller “sexually assaulted” her multiple times during the summer after her eighth-grade graduation. At the time, Keller was married to Jane's mother, and they all lived together. Jane described how Keller would give her alcohol while they were alone watching television late at night. Keller would also ask Jane about her sexuality, such as by asking if he could watch her perform oral sex on another woman when she went to college. Eventually, Keller asked Jane to touch his penis with her hands, so she complied. After that night, Jane said Keller's requests became “a more consistent thing” and escalated to her performing oral sex on him. She testified that she was drunk during these encounters. Keller also inserted his fingers into her vagina on one occasion, which made her “terrified” and “was the first time that [she] had physically said no” and “tried to force his arm away.” Jane said Keller also touched her breasts “quite a few times.”

Jane further testified that she told her best friend, B.S., about the sexual abuse a couple of months before telling anyone else. She later disclosed it to another friend, B.E. Ultimately, after a trip during the summer of 2018, Jane disclosed the sexual abuse to her father, S.C., who then called Jane's mother, and eventually that disclosure resulted in Jane being interviewed at a Children's Advocacy Center. All four of these individuals provided corroborating testimony about Jane's disclosures of the sexual abuse perpetrated upon her by Keller.

In addition to Jane's family and friends, the State presented testimony from the interviewer who performed Jane's forensic interview at the Children's Advocacy Center; Jane's therapist; and the Kansas Bureau of Investigation Special Agent who interviewed Keller. The State also played videos of the interviews at trial.

Keller testified in his own defense, claiming that he had gotten into an argument with Jane in the summer of 2018 just before she told her father about the sexual abuse allegations. According to Keller, he suggested Jane start going to therapy sometime in the summer of 2017 because of issues he noticed that she was having with depression and her sexual orientation. He also was present when S.C. called Jane's mother to discuss the sexual abuse allegations and immediately stated they needed to report it to law enforcement. Keller, who was employed by the Doniphan County Sheriff's Office, also reported the allegations to the undersheriff, who had called him about a work issue around the same time.

During closing argument, while addressing Keller's defense, the prosecutor said,

“The defendant has no obligation to prove his innocence, but if he's going to claim certain facts and want you to believe it, he has to prove certain facts. He can't just get up here and, through his attorney, just say it. If he wants to prove it, he can. He's entitled to do that. But he has—it has to come from here (indicating witness stand). He had—There are ways that he could have corroborated his version of events. He chose not to do that.”

Keller's lawyer objected that the State was shifting the burden of proof. The State responded that Keller was “essentially arguing an alibi” and “has a burden in an alibi.” The district court did not address the burden-shifting objection and instead advised the jury only to disregard statements of counsel not supported by the evidence. The State then reiterated that it was Keller's “job to prove his own case if he chooses to do that,” while acknowledging it was the State's burden to prove the elements of the crime.

Near the end of closing, the prosecutor then turned to the reasonable doubt standard. He said, “Real quick with beyond a reasonable doubt. You all decide what that is. It's—it's a case-by-case basis. What would be beyond a reasonable doubt in one circumstance may not be in the other circumstance. So it's for you to determine.” He continued, “Now, the United States Supreme Court, U.S. v. Dunbar, gave us a little guidance. I can tell you that it means not beyond any possible doubt. So it's not that. It's not a hundred percent certainty. We know that. Beyond that, it's for you to determine where you're comfortable.”

The jury found Keller guilty on all but one of the charges, convicting him of one count of criminal sodomy, three counts of aggravated indecent liberties with a child, and one count of furnishing alcohol to a minor for illicit purposes. The lone acquittal was for the charge of promoting obscenity to a minor.

At sentencing, Keller made an oral motion for a durational and dispositional departure, which the district court denied after finding no substantial and compelling reasons to depart. Thus, based on Keller's criminal history score of I, the court imposed a standard presumptive prison sentence on each count for a total controlling sentence of 118 months in prison. The court also ordered lifetime postrelease supervision on counts 1 through 4.

Keller timely appealed.

Analysis

The State committed prosecutorial error during closing arguments.

Keller argues the State committed reversible prosecutorial error by making statements during closing arguments that (1) shifted the burden of proof to the defense; and (2) defined “ ‘beyond a reasonable doubt’ ” using a subjective standard. The State disagrees on both accounts, arguing that the prosecutor's challenged statements merely discussed the available evidence and reminded the jury of its role in determining whether the State had met its burden of proof. Alternatively, the State contends any error resulting from the prosecutor's statements was harmless because of the jury instructions.

Standard of Review

When reviewing alleged prosecutorial errors during closing arguments, we apply a two-step process. First, we need to decide if the prosecutor overstepped their bounds and violated the defendant's constitutional right to a fair trial. State v. King, 308 Kan. 16, 30, 417 P.3d 1073 (2018). Second, if we determine that an error occurred, the State must then show beyond a reasonable doubt that “ ‘there is no reasonable possibility that the error contributed to the verdict.’ ” State v. Blevins, 313 Kan. 413, 428, 485 P.3d 1175 (2021).

Although a defendant need not raise a timely objection to preserve a prosecutorial error claim based on statements made during closing arguments, this court can incorporate the presence or absence of an objection into its analysis of the alleged error. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021).

Further, prosecutors are given wide latitude to present the State's case but not so wide as to “ ‘offend the defendant's constitutional right to a fair trial.’ ” State v. Mendez, 319 Kan. 718, 737, 559 P.3d 792 (2024). In considering whether a prosecutor's comments exceeded the scope of permissible argument, a reviewing court considers the context in which the comments were made, not in isolation. Bodine, 313 Kan. at 406-07.

The prosecutor shifted the burden of proof.

Keller focuses his first claim of prosecutorial error on the following statement made during closing argument, particularly the emphasized language:

“The defendant has no obligation to prove his innocence, but if he's going to claim certain facts and want you to believe it, he has to prove certain facts. He can't just get up here and, through his attorney, just say it. If he wants to prove it, he can. He's entitled to do that. But he has—it has to come from here (indicating witness stand). He had—There are ways that he could have corroborated his version of events. He chose not to do that.” (Emphases added.)

Keller's attorney objected, contending that the prosecutor was trying to shift the burden of proof. The prosecutor countered that the defense was “essentially arguing an alibi, and he has a burden in an alibi.” Without addressing the argument about burden shifting, the district court advised the jury to disregard statements of counsel that were not supported by the evidence. The prosecutor then argued the following:

“So if he wants to propose to you a certain version of the facts, he's entitled to do that. He's allowed to do that. But it's his job to prove his own case if he chooses to do that. He doesn't have to. But if he wants to, he can.

“It's my burden to prove the elements of the crimes. That's my burden. To prove the elements of the crimes. There's a difference. Now, you notice they try to keep putting it on me that I'm supposed to prove that part. But no, no, that's—you can do that if you like. I'm going to prove the elements of the case.”

A prosecutor has wide latitude to address the weakness of the defense and may point out a lack of evidence supporting the defendant's theory. See State v. Anderson, 318 Kan. 425, 437, 543 P.3d 1120 (2024). But “an argument attempting to shift the burden of proof is improper.” 318 Kan. at 437. A prosecutor “does not shift the burden of proof to the defendant by pointing out a lack of evidence to support a defense or to corroborate a defendant's argument regarding deficiencies in the State's case” nor “by posing a general question about the lack of evidence offered to rebut the State's witnesses.” State v. Watson, 313 Kan. 170, 176-77, 484 P.3d 877 (2021). But when the State suggests that “the defendant must disprove the State's case or offer evidence to support a finding of reasonable doubt,” the line is crossed. See Anderson, 318 Kan. at 437.

We find that the prosecutor crossed that line here. He did not merely point out the lack of corroboration with Keller's version of events. Instead, the prosecutor told the jury that Keller “has to prove certain facts,” and that Keller “can't just get up here and, through his attorney, just say it,” and that it was Keller's “job to prove his own case.” Those statements indicated to the jury that it was Keller's burden to prove his version of events. This is a burden that the law does not impose. Further, the prosecutor's claim in front of the jury that Keller carried a “burden” if claiming some sort of alibi did not cure the problem. In fact, it compounded it, because a defendant never bears the burden to prove his innocence. Characterizing Keller's testimony as an alibi that required proof only reinforced the prosecutor's initial misstatements of the law.

The Kansas Supreme Court has found similar comments to the ones in this case to be improper. In Anderson, 318 Kan. at 438, the prosecutor combined the defense's ability to present evidence with the reasonable doubt standard, suggesting that the defendant “had the burden to present evidence before the jury could find reasonable doubt as to his guilt” and faulting the defense for not producing evidence to show the State's witnesses were not credible. The Kansas Supreme Court held that argument “falls within the category of burden-shifting, which we have consistently deemed improper.” Anderson, 318 Kan. at 439. Similarly, telling the jury that Keller had to “prove” his account, and that he “chose not to do that,” suggested that Keller had to prove his innocence rather than the State having to prove his guilt.

The State's contention that the prosecutor was permissibly comparing Keller's testimony to Jane's and merely commenting on the absence of corroboration is not persuasive. Permissible comment identifies gaps in the defense's evidence. It does not tell the jury the defendant “has to prove” his case. The prosecutor's repeated use of the verb “prove,” directed at Keller, shifted the burden of proof to him. Thus, we find the prosecutor committed error.

The prosecutor improperly invited the jury to define reasonable doubt.

A prosecutor errs “by making arguments that dilute the State's burden of proof or attempt to define reasonable doubt.” State v. Thomas, 307 Kan. 733, 743, 415 P.3d 430 (2018). Prosecutors that embellish the definition of the burden of proof in a criminal case do so “ ‘at their peril.’ ” 307 Kan. at 743. “An effort to define reasonable doubt is error when it leads to misstating the law.” State v. Garcia-Garcia, 309 Kan. 801, 815, 441 P.3d 52 (2019). For example, defining reasonable doubt as “ ‘common sense’ ” is improper because it lowers the State's burden. See State v. Mitchell, 269 Kan. 349, 360-61, 7 P.3d 1135 (2000).

Here, the prosecutor's remarks show that he attempted to define reasonable doubt. He did not tell the jury that reasonable doubt eludes precise definition and must be applied as the jurors understand the words. Instead, he told the jury the opposite. It was conveyed that the jurors themselves would “decide what that is,” that the standard is “a case-by-case basis” that may not be the same “in one circumstance” as in the other, and that it was “for you to determine where you're comfortable.” That argument recast a fixed legal standard into a movable one, wherever a jury is “comfortable” within a given case.

Reasonable doubt is not a standard the jury sets for itself. As a panel of this court recently explained, jurors “are tasked with deciding whether the evidence in a case exceeds the fixed legal standard of ‘beyond a reasonable doubt,’ ” but they “do not get to decide ‘where that line is.’ ” State v. Kemp, 65 Kan. App. 2d 425, 444-45, 564 P.3d 827 (2025). Suggesting that the jury may locate that line for itself “impermissibly dilute[s] the State's burden.” 65 Kan. App. 2d 425, Syl. ¶ 6. Kansas appellate courts have repeatedly condemned comparable efforts to recharacterize the standard. For example, it is improper for a prosecutor to infer that reasonable doubt equates to the point in which a juror “ ‘believe[s]’ ” a defendant is guilty. See State v. Magallanez, 290 Kan. 906, 914-15, 235 P.3d 460 (2010). It is also improper for a prosecutor to suggest that reasonable doubt was satisfied when the jury “just knows” that a defendant is guilty. See State v. Brinklow, 288 Kan. 39, 49-50, 200 P.3d 1225 (2009). In line with these cases, we find that the prosecutor tying the reasonable doubt standard to where each juror feels “comfortable” is error.

The State claims that in State v. Wilson, 281 Kan. 277, 130 P.3d 48 (2006), the Kansas Supreme Court held that similar comments to the ones made by the prosecutor in this case have been determined not to be error. The State's reliance on the holding in Wilson is misplaced. There, the prosecutor told the jury that no one could define reasonable doubt in precise words and that jurors would “ ‘intuitively know’ ” it. 281 Kan. at 286-87. But this statement actually reinforces the standard rather than displacing it. The prosecutor in Keller's case did the reverse. He told the jury there was not a uniform standard at all, only what each jury decides “case-by-case” and where it feels “comfortable.” This is a misstatement of the law, and it is error.

The State has not shown the errors were harmless.

Because both errors implicate Keller's due process rights, the State must prove beyond a reasonable doubt that there is no reasonable possibility the errors contributed to the verdict. Blevins, 313 Kan. at 428. The focus of the inquiry “is on the impact of the error on the verdict.” State v. Sherman, 305 Kan. 88, 111, 378 P.3d 1060 (2016). While the strength of the evidence may secondarily bear on the analysis, “it must not become the primary focus,” as it is possible even in a strong case for prejudice to exist. 305 Kan. at 111. For several reasons, the State cannot carry its burden.

First, both the burden shifting and defining reasonable doubt errors struck at the foundation of the criminal trial in that they impacted the allocation of the burden of proof and the standard of proof itself. An error that tells the jury the defendant must prove his innocence, and an error that tells the jury it may set the reasonable-doubt standard wherever it is comfortable, do not go to a collateral matter. They instead go to the two propositions that most directly protect the presumption of innocence. Their combined effect on a jury's deliberations is not something the State can dismiss as inconsequential and harmless.

Second, the burden-shifting error undermined Keller's core defense. There was no physical evidence, and Keller's defense was that Jane fabricated the allegations and that his testimony should be believed. Telling the jury that Keller had “to prove” that account, and “chose not to” corroborate it, converted a defense the jury was free to credit into one that the jury could treat as legally deficient.

Third, the two errors compounded one another. Both concerned the State's burden of proof, and their prejudicial effect is magnified when the jury hears, in a single closing, that the defendant must prove his case and that the reasonable-doubt standard is whatever the jury is comfortable with. Together, they conveyed a diluted and improper standard of proof.

The State claims that if errors occurred then they were harmless. The State points out that the jury instructions correctly stated the burden of proof and the reasonable-doubt standards. Further, the State is correct that jurors are presumed to follow the instructions given to them by the court.

However, the presumption that jurors follow written instructions cannot, standing alone, render harmless a prosecutor's direct and repeated misstatements about the burden and standard of proof, particularly in a closing argument delivered immediately before deliberations on a credibility-driven case. Jury instructions that accurately state the required burden of proof and reasonable-doubt standard only serve to mitigate erroneous prosecutorial statements, not outright cure them. See Watson, 313 Kan. at 176-77. Thus, the question is not whether a correct instruction was given, but whether there is no reasonable possibility the errors contributed to the verdict. Based upon the record before us, the State cannot make this showing.

Considering the combined errors in light of the entire record, we cannot say there is no reasonable possibility that the prosecutor's burden shifting and his invitation to the jury to define reasonable doubt for itself contributed to the verdict. Simply put, the State has not shown that the errors are not harmless.

The prosecutor erred by shifting the burden of proof to Keller and by inviting the jury to define reasonable doubt according to its own comfort level. Further, the State has not shown beyond a reasonable doubt that there is no reasonable possibility those errors contributed to the verdict. Because this issue is dispositive, we do not reach Keller's remaining arguments concerning the admission of expert testimony, the imposition of lifetime postrelease supervision, or cumulative error.

Reversed and remanded.

Per Curiam: