State of Kansas, Appellee, v. Yahne Brown, Appellant. (2026)

MEMORANDUM OPINION

Yahne Brown appeals her conviction in Johnson County District Court for distribution of a controlled substance causing death. She claims the prosecution and the trial court committed a variety of trial errors and that, even if these errors were not individually egregious enough to require reversal, the cumulative effect of them deprived her of a fair trial. The State independently appealed the district court's downward sentencing departure, claiming that the district court's reasons for granting the departure did not constitute substantial and compelling reasons to depart from the presumptive sentence. On our close review of the record, we affirm Brown's conviction but vacate her sentence and remand for resentencing for reasons thoroughly explained below.

Background

Events Underlying Brown's Criminal Charges

Steven Nicholas Cantrell's untimely death in 2020 eventually led to Brown's criminal charges. Witness testimony at Brown's trial established Cantrell's background, including that he had moved to the Kansas City area from South Carolina several years prior. Cantrell worked in the service industry, often at restaurants, and reportedly struggled with addiction to opiates.

After Cantrell suffered a romantic breakup just before the COVID pandemic of 2020, he became socially isolated, experienced depression, and turned to opiates for comfort. Cantrell reached out to Evan Sharp, a friend he had met at work and with whom he formerly did drugs. Sharp had been trying to remain sober and tried to get Cantrell to quit using drugs. Because Sharp did not want to be around drugs, he did not connect with Cantrell in person frequently. During his text conversations with Sharp, Cantrell mentioned going to a place near the Legends shopping area to pick up drugs but never provided Sharp with a name of his supplier. Sharp, however, claimed Cantrell obtained all his drugs from a single supplier, whom Sharp described at trial as an older black lady who lived near I-635 and Parallel.

Cantrell likewise reportedly told his stepbrother, Evan Campbell, similar information about his dealer. Campbell testified that Cantrell said that his dealer was on disability for Lupus and had a teenaged daughter. Because the supplier received disability, Cantrell claimed she would allow him to purchase drugs on credit. Cantrell also allegedly told Campbell that he considered his dealer his friend.

On December 25, Sharp and Cantrell exchanged Christmas greetings. When Sharp sent Cantrell messages on December 27 and 28 but received no response, he grew concerned. Sharp then contacted some of Cantrell's coworkers, who reported that Cantrell had not been showing up for his shifts at the restaurant and some coworkers had called the police for a welfare check. Law enforcement's welfare check was unsuccessful as no one answered the door at Cantrell's apartment, but his stepmother advised the officers that Cantrell worked two jobs and may be sleeping. Sharp ultimately went to Cantrell's apartment himself, where he discovered Cantrell was deceased and notified the police.

Officers observed no signs of a struggle at the scene but found drug paraphernalia and drug residue inside Cantrell's apartment. Cantrell's body was delivered to the medical examiner for an autopsy. The medical examiner testified that Cantrell's blood tested positive for marijuana metabolites, fentanyl metabolites, and caffeine. The level of fentanyl in his blood was 9.5 ng/mL—more than three times the therapeutic limit of fentanyl a hospital would administer for pain relief. The medical examiner opined that the mechanism of Cantrell's death was respiratory and central nervous system depression caused by fentanyl intoxication.

During the law enforcement investigation into Cantrell's death, Detective Jordan Rew discovered three cellphones in Cantrell's apartment but only collected and submitted one for data extraction because the other two cellphones were not powered. From the data extraction, Detective Rew noted a text conversation on December 26, 2020, between Cantrell and a cellphone later identified as belonging to Brown. Cantrell asked Brown if she was awake and at home. When Brown replied that she was at home, Cantrell asked for “30s,” a slang term for oxycodone, fentanyl, or some other opiate tablet. The cellphone data also recorded some phone calls between Cantrell and Brown on the same date. Detective Rew discovered data showing Zelle payments from Cantrell to Brown, but no payments from Brown to Cantrell. Detective Rew determined that Brown's residence was at the southwest corner of I-635 and Parallel. The detective found no data on Cantrell's cellphone suggesting a connection with another drug dealer.

Local police enlisted the help of the FBI to analyze the data related to Cantrell's and Brown's cellphone records to determine proximity during the period of 12 a.m. to 1:30 p.m. on December 26. The FBI agent determined that, based on the record of towers used to transmit Cantrell's cellphone messages to Brown during that time, the cellphones of Brown and Cantrell were in close proximity to one another at about 1:30 p.m. on December 26.

When Detective Rew spoke with Brown at her home, Brown mentioned that she suffered from Lupus and received income from disability payments. She claimed that Cantrell helped her with home maintenance tasks, like kitchen renovations and yard work, and errands, like taking her daughter to school. Brown claimed to pay Cantrell for this work and, additionally, she occasionally loaned Cantrell money to pay rent and buy groceries, which he would pay back as he could in cash or through Zelle. Brown initially contended that she knew nothing about Cantrell's drug addiction. When pressed, she admitted that she felt that he might be addicted to drugs. She denied that she ever sold anyone pills. When Detective Rew confronted Brown with the text messages about “30s,” Brown claimed that Cantrell was asking to borrow money, and Brown told him she only had $30. Detective Rew did not observe any drugs at Brown's house. He did not attempt to obtain a search warrant for her home or attempt a controlled buy from Brown.

Procedural History

The State charged Brown with distribution of a controlled substance that caused the death of Cantrell. The State later amended the complaint to add a count of using a communication facility during a drug felony. After a preliminary hearing, the district court found probable cause to bind Brown over for trial.

The case proceeded to a three-day jury trial. Brown exercised her constitutional right not to testify and offered no other evidence. The interview between Detective Rew and Brown, however, was played for the jury. With the stipulation of defense counsel, the State filed an amended complaint, charging a more specific circumstance as the basis for Count 2—the unlawful use of a communications facility. The jury convicted Brown of Count 1—distribution of a controlled substance causing death—but acquitted Brown of Count 2. Neither party requested polling of the jury.

Before sentencing, Brown filed a motion for new trial, challenging the admission of text messages and other evidence for violation of the best evidence rule, a lack of foundation, and hearsay. Brown also sought a dispositional and durational sentencing departure.

At sentencing, the district court assigned Brown a criminal history score of E. Neither party objected to that classification. After entertaining argument on Brown's motion for new trial, the court denied the motion. The court, however, granted Brown's departure motion in part, reducing the duration of prison time from a presumptive sentence of 246-234-221 months to 144 months. The court also imposed 36 months of postrelease supervision.

Both parties filed timely appeals.

Examination of Issues on Appeal

Brown raises four issues on appeal alleging various errors occurring during her trial, while the State appeals her sentence. We address each challenge in turn.

I. Prosecutorial Error

Brown first challenges certain statements of the prosecutor during closing. Although Brown concedes she did not object to the statements during trial, challenges to prosecutorial error during closing argument need not be preserved by a contemporaneous objection at trial, although the court may consider whether an objection was raised in its analysis of any alleged misconduct. State v. Arroyo, 321 Kan. 663, 668, 583 P.3d 909 (2026).

When considering a claim of prosecutorial error, an appellate court first determines whether an error occurred. Prosecutorial error in closing arguments occurs when the prosecutor's actions or statements fall outside the wide latitude afforded prosecutors to conduct the State's case and obtain a conviction without offending the defendant's constitutional right to a fair trial. State v. Wright, 321 Kan. 634, 650, 583 P.3d 174 (2026).

The wide latitude afforded prosecutors to present the State's case encompasses argument and reasonable inferences drawn from the evidence admitted at trial as long as the argument and inferences accurately reflect the evidence as applied to the governing law. See Wright, 321 Kan. at 650 (citing State v. Alvarado-Meraz, 321 Kan. 51, Syl. ¶ 3, 573 P.3d 266 [2025]). As such, argument may not be designed to inflame the passions of the jury or to otherwise divert the jury from its duty to decide the case on the controlling law as applied to the evidence admitted at trial. State v. Johnson, 321 Kan. 357, 367, 580 P.3d 20 (2025). When considering whether the comments exceeded the scope of permissible argument, the court considers the context in which the challenged comments were made; we do not consider challenged comments in isolation. Wright, 321 Kan. at 650.

If the appellate court discovers error, then it considers whether the error deprived the defendant of his or her due process right to a fair trial. Because prosecutorial error implicates a defendant's constitutional due process right, a reviewing court applies the harmless error test articulated by Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Such error is harmless if the State can persuade the court beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. In other words, the error is harmless only where there is no reasonable possibility that the error contributed to the verdict. Wright, 321 Kan. at 650.

I.A. Challenged Comments

In her appellate brief, Brown points to select comments made during the State's closing arguments. To consider the comments fairly, we must place the select comments in context.

“Ladies and gentlemen of the jury, Nick Cantrell died in a world of isolation, of loneliness and of despair. The year was 2020. COVID lockdowns were still enforced. Restaurants were shut down. Ordinary activities, things that people had held important up to that point, faith, family, friends, all of that fell by the wayside.

“Nick Cantrell was isolated. He was lonely. And in his despair he turned to the one thing that gave him any happiness, and the one person with whom, here in Kansas, he felt was his friend. He turned, in short, to drugs and to his drug dealer.” (Emphases added.)

The prosecutor then addressed some of the text messages that established Cantrell's emotional state and supported the idea that Cantrell was depressed and feeling isolated. The argument then discussed the text messages describing his drug dealer.

“He gave descriptions of his drug dealer. An older African American woman. She had lupus. She received her money from the government. She lived off 635 and Parallel Parkway. She had a daughter that he helped with. He considered her his only friend.

“The evidence shows that at least three people knew that Nick had an addiction. Evan Sharp knew Nick had an addiction. Evan Campbell knew Nick had an addiction. And this defendant, Nick's drug dealer, knew he had an addiction, and she exploited it for his money.“ (Emphasis added.)

The prosecutor's argument then turned to a discussion of the evidence that supported each of the elements of the charged crimes. Brown does not challenge any of this discussion as improper. Then the prosecutor wrapped up the argument by returning to the State's theory of the crime: that Brown profited from Cantrell's drug addiction.

“Ladies and gentlemen, listen to that interview. With each new piece of evidence you heard new changes just like Detective Rew said. And it eventually gets to the point where she can't really deny what is in front of her. Nick's addiction killed him; it's true. But there is one person who profited from his addiction. That was his only friend. That older African American lady, with the daughter, who Nick helped, who Nick hung out with, who she helped Nick one time, she went over to his apartment. You heard that from Evan Campbell, too, the one who lived on 635 and Parallel, the one who had the phone number ending in 4166, the one he visited on December 26th, 2020, and the one with the rather unique name of Yahne.

“Ladies and gentlemen of the jury, Yahne Brown was Nick's drug dealer. She sold him the drugs that killed him, and Nick is now dead as a result of that. Ladies and gentlemen of the jury, she profited from Nick's death. Find her guilty.” (Emphases added.)

In closing statements, the prosecutor initially responded to some of defense counsel's argument before returning to the evidence pointing to Brown as the person who provided the drugs that killed Cantrell. The prosecutor ended with its theory that Brown profited from Cantrell's drug addiction.

“[T]he State's evidence shows you beyond a reasonable doubt that the defendant was Nick's drug dealer, that the defendant took Nick's money because he had an addiction that she could profit from. That Nick died from that fake, that counterfeit hydro or oxycodone pill that she sold him that he used that he couldn't quit.

․

“Nick was killed by someone he considered his only friend. He was lonely. He was isolated, and he turned to drugs. She knew of his addiction. She profited from it. And she—yes, ladies and gentlemen, she killed Nick Cantrell. Find her guilty.” (Emphasis added.)

On appeal, Brown challenges the emphasized portions of these arguments as improper emotional appeals—statements not based on the evidence but ones intended to create sympathy for Cantrell and hostility toward Brown.

Kansas caselaw prohibits the State from seeking to elicit a conviction out of sympathy for the victim. State v. Simmons, 292 Kan. 406, 419, 254 P.3d 97 (2011). A prosecutor, however, provides permissible argument when attempting to mitigate the unfavorable characteristics of a victim. See State v. Gallegos, 313 Kan. 262, 274-75, 485 P.3d 622 (2021).

Brown relies on State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000), to support her claim. In Maybin, the prosecutor referred to the defendant as a predator. A panel of this court conducted a survey of jurisdictions dealing with this characterization of a defendant. Most jurisdictions found the term did not exceed the scope of permissible argument, but Kansas followed the minority view posited by the Washington Court of Appeals, concluding that the intent of the term was to inflame the passion and prejudices of the factfinder. 27 Kan. App. 2d at 198-99.

Here the State did not characterize Brown as a predator or refer to her in any similar derogatory fashion. While the State described what Brown did—profited from the sale of drugs to Cantrell—the prosecutor did not label her. A useful parallel may be drawn from the manner in which Kansas courts have permitted prosecutors to address lies by the defendant. See State v. Elnicki, 279 Kan. 47, 53-54, 105 P.3d 1222 (2005) (finding a prosecutor may properly point to inconsistencies in a defendant's version of events and argue that the defendant's version lacks credibility as long as the prosecutor does not inject his or her personal belief regarding the defendant's credibility); State v. Boatwright, 320 Kan. 385, 394, 568 P.3d 865 (2025).

Even without such a label, the prosecutor's repeated reference to Brown “profiting” from Cantrell's depression and addiction goes beyond permissible argument. To prove distribution of the drugs which caused Cantrell's death, the State only needed to prove Brown sold the drugs which caused his death. K.S.A. 21-5430. Brown's motive to do so was entirely irrelevant.

Likewise, the characterization of Cantrell as isolated, lonely, and depressed is not material to the act of Brown selling Cantrell the drugs. The characterization was clearly supported by the evidence, but its purpose to further a legitimate objective is weak. Brown relies on an unpublished decision of this court. See State v. McGee-Darby, No. 118,776, 2019 WL 1868323 (Kan. App. 2019) (unpublished opinion). There, the prosecutor commented about the appearance of the victim in court, noting that she was dressed in the best dress she owned and had applied makeup but underneath was “ ‘broken.’ ” 2019 WL 1868323, at *8. Our court found that the prosecutor discussed an inference drawn from the victim's appearance at trial that was otherwise unsupported by evidence and immaterial to the charged crimes, solely for the purpose of an emotional appeal.

Unlike in McGee-Darby, here the characterization of Cantrell as isolated, lonely, and depressed did not refer to his emotional state at the time of trial but his emotional state leading up to the drug overdose. The State contends that Cantrell's isolation is relevant to establish the context of the crime—Cantrell's motive in seeking drugs. But the characterization of Cantrell was not necessary to establish the elements of this crime. Cantrell's isolation, lack of friends, and depression may have explained his behavior in seeking comfort from drugs, but his motive for seeking drugs is simply not relevant beyond the fact that he routinely purchased drugs to feed his addiction. Nor was it relevant to repeatedly reference Brown's claimed friendship with Cantrell. See State v. Olsman, 58 Kan. App. 2d 638, 658-59, 473 P.3d 937 (2020) (noting the prosecutorial comments demeaning the victim were supported by reasonable inferences drawn from the evidence but still holding the comments were improper because the inferences had little relevance to the charged offenses).

So, while the State was required to establish that Brown provided Cantrell with the drugs that killed him, it was not necessary for the State to depict Cantrell as a sympathetic victim who turned to drugs and to the friendship of his drug dealer because of feelings of isolation, friendlessness, and depression. Accordingly, the closing arguments characterizing Cantrell's emotional condition before he overdosed crossed the line of fair argument into an emotional appeal and we caution prosecutors to avoid such pleas.

I.B. Prejudice

Even finding error by the prosecution, the comments—while emotionally charged—were supported by evidence in the record or reasonable inferences drawn therefrom. Brown did not object to testimony from Campbell or Sharp about Cantrell's emotional condition during the months before his death as being irrelevant. Her counsel objected to the testimony about Cantrell's statements as inadmissible hearsay, as discussed in greater detail below, but Sharp's and Campbell's own impressions about Cantrell's mental state were admissible non-hearsay. See State v. Lowrance, 298 Kan. 274, 294, 312 P.3d 328 (2013) (recognizing that Kansas courts have liberally permitted lay witnesses to testify about another person's state of mind if the witnesses had sufficient opportunity to observe the other person to draw a rational conclusion). Consequently, even if the State had not highlighted Cantrell's emotional condition before his death in closing argument, the jury would have heard a significant amount of testimony regarding that condition.

Similarly, characterizing Brown's conduct as profiting from Cantrell's addiction was impermissible, emotionally charged rhetoric. But, to establish the crime, the State was required to prove that Brown distributed the drugs that killed Cantrell. Given the Zelle transactions from Cantrell to Brown, a financial motive was a reasonable inference to draw. So, even if the prosecution erred in its characterization of Brown's motive, the jury would have likely drawn the same conclusion from less emotionally charged evidence.

In addition, the jury returned a split verdict, acquitting Brown of unlawful use of a communications facility. While not conclusive, this split verdict demonstrates that the jury dispassionately analyzed the elements of each charged crime with the evidence presented at trial. If the jury had been governed entirely by passion, it likely would have convicted Brown of both counts, even if the State's evidence did not support the convictions.

In conclusion, the prosecutor's characterizations of Brown's motive for providing Cantrell drugs and of Cantrell's emotional state inappropriately appealed to the emotions of the jury, but despite this error, because the evidence established the same inferences and conclusions, there is no real possibility that the jury's verdict would have been different had the State couched its argument in less emotionally charged language.

II. Evan Sharp's Testimony

In her next appellate claim, Brown challenges the district court's admission of Sharp as a prosecution witness after Sharp had previously remained in the courtroom following his testimony at the preliminary hearing.

At Brown's preliminary hearing, the district court asked whether the State had advised their witnesses to remain outside the courtroom until they were called to testify. The State represented that Cantrell's mother had been endorsed as a witness but that the State did not intend to call her. Brown then requested the sequestration of witnesses. But based on the State's representation, the district court allowed Cantrell's mother to stay.

Sharp and Campbell, among others, provided testimony at the hearing. Although the record does not reflect it, Sharp and Campbell apparently both stayed in the courtroom after testifying. Brown ostensibly did not object at the time; otherwise, the record would reflect these witnesses’ continued presence in the courtroom.

Ten months later, Brown filed a motion in limine, seeking—among other things—to exclude Cantrell's mother and “all other witnesses that remained in the courtroom after testifying” during the preliminary hearing from testifying at trial. Contrary to the argument raised in Brown's appellate brief, the motion in limine does not identify Sharp or Campbell as witnesses who remained in the courtroom after testifying at the preliminary hearing.

Brown argued the issue again on the first day of trial. Again, Brown's counsel identified the witnesses he sought to exclude generically as “the mother and ․ two of the lay witnesses.” Defense counsel suggested that, rather than drawing attention in front of the jury, he could object on vague grounds in front of the jury or make it a continuing objection to preserve his objection. The district court did not address this comment, wanting clarification of Brown's objection. When defense counsel explained his position further, the court overruled the objection without further comment.

II.A. Preservation

Brown cites Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36)—which requires that a party pinpoint the location in the record on appeal where the issue was raised and ruled on by the district court—to support his argument that he properly raised the issue before the district court. Kansas caselaw, however, is clear that, when a district court makes an adverse pretrial ruling on a motion in limine, K.S.A. 60-404 requires a contemporaneous objection to the admission of evidence when it is offered at trial unless a party has requested and the court has granted a continuing or standing objection. See State v. Crudo, 318 Kan. 32, 38, 541 P.3d 67 (2024). But Brown does not point us to a location in the record where a contemporaneous objection based on the sequestration rule was entered prior to the testimony of any witness. Independent review of the appellate record reveals no specific objection on this basis.

Even so, Kansas courts have refused to apply the contemporaneous objection rule in some contexts where the underlying purpose has been satisfied. State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013) (refusing to apply rule when State offered to stipulate to preservation in order to obtain appellate review of defendant's claim); State v. Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012) (refusing to apply rule strictly when defendant's objections in the motion for acquittal in a bench trial were sufficient to satisfy the purpose of the rule).

Although Brown's pretrial motion in limine did not identify the specific witnesses she sought to bar from testifying, she did reference the “two lay witnesses” at trial. And, Brown's motion in limine and argument before trial sufficiently apprised the court of the basis for the request to exclude some testimony. The purpose of the contemporaneous objection is to allow the court to reconsider pretrial evidentiary rulings after learning how the evidence unfolds at trial. State v. Martin, 318 Kan. 538, 563, 544 P.3d 820 (2024). In the context of sequestration, this purpose is not furthered by requiring an objection before an unsequestered witness testifies because the district court has no better idea of the content of that testimony than it had when the issue was raised before trial. So, this would appear to be a situation where the appellate court could permit an exception to the rule, and we address Brown's challenge on its merits.

II.B. Standard of Review

The parties disagree on what standard our court should apply in our review. Brown contends that the court should apply a de novo review. But Brown's argument conflates the amount of discretion a district court possesses to impose sequestration with the amount of discretion a court has to allow a witness to testify despite a sequestration violation.

Neither party disputes that K.S.A. 22-2903 requires sequestration of witnesses at a preliminary hearing when requested by the criminal defendant. As a result, the district court necessarily lacks discretion to permit witnesses to violate sequestration when requested by the defendant. But the district court's exercise of discretion is not really the issue framed by Brown. While she contends that the district court erroneously allowed witnesses to violate the sequestration order imposed by operation of K.S.A. 22-2903, she goes a step further to suggest that the sanction against the witnesses who violated sequestration at the preliminary hearing should be exclusion from testifying at trial.

The State acknowledges that sequestration of witnesses at the request of a criminal defendant is mandatory at a preliminary hearing. Even so, the State contends that sequestration at trial is committed to the sound discretion of the trial court. We find the State's presentation of the applicable standard of review better supported by case authority.

A court may limit or exclude a witness’ testimony after a violation of a sequestration order. See State v. Carney, 216 Kan. 704, 710, 533 P.2d 1268 (1975). Kansas cases, however, strongly caution against the exclusion of a witness’ entire testimony because of a sequestration order absent misconduct by the witness or the party calling the witness. Instead, the admission or exclusion of testimony following the witness’ violation of a sequestration order rests within the sound discretion of the district court. See State v. Ransom, 239 Kan. 594, 600, 722 P.2d 540 (1986); State v. Johns, 237 Kan. 402, 406-07, 699 P.2d 538 (1985); State v. Handley, 234 Kan. 454, 458, 673 P.2d 1155 (1983) (“For over one hundred years, it has been the law of this state that violation of a court order separating witnesses does not ordinarily disqualify a witness from testifying and the trial court, in its discretion, may admit the testimony.”); State v. Cantrell, 234 Kan. 426, 430-31, 673 P.2d 1147 (1983) (noting alternative sanctions a court might implement).

While these cases involve a violation of a court-imposed sequestration order at trial rather than statutorily imposed sequestration at a preliminary hearing, Brown fails to offer a meaningful distinction. In both cases, a witness has violated sequestration. While a judge possesses discretion in determining whether to impose sequestration at trial, once the judge imposes sequestration a party may not lawfully violate the court's order. A violation of mandatory sequestration under K.S.A. 22-2903 and a violation of discretionary court-ordered sequestration appear to be roughly equivalent conduct. As such, Brown provides no compelling reason that the imposition of sanctions for the violation would be different. Because the sanction imposed for a violation of court-ordered sequestration is left to the sound discretion of the district court, no compelling argument is offered for applying a different standard for a violation of K.S.A. 22-2903.

Accordingly, the proper standard of appellate review is an examination of the circumstances to determine whether the district court abused its discretion. See also State v. Sampson, 297 Kan. 288, 297, 301 P.3d 276 (2013) (applying an abuse-of-discretion standard to a court's decision to lift a sequestration order for a law enforcement officer to remain in the court throughout the trial). Judicial discretion is abused when a decision is based on an error of law or fact or is otherwise arbitrary, fanciful, or unreasonable. 297 Kan. at 292.

II.C. Abuse of Discretion

Brown does not provide any analysis regarding the district court's abuse of discretion in allowing Sharp and Campbell to testify at trial after violating the sequestration order of the preliminary hearing. She jumps from the violation of the preliminary hearing sequestration to a violation of her constitutional right to a fair trial.

When a claim of a violation of a sequestration order is raised, a district court should consider certain factors, holding a closed hearing if necessary to establish the facts necessary to resolve them. See Cantrell, 234 Kan. at 430. First, the court should consider whether the violation was the result of misconduct by the party or the witness. See Johns, 237 Kan. at 407 (“[I]t is only where the evidence shows that the party who desires to call the witness knew and participated in the violation of the separation order that the court should exclude the witness’ testimony.”). Second, the court should consider the extent to which the witness’ testimony is or may have been tainted by hearing other witnesses’ evidence. See Cantrell, 234 Kan. at 430. Finally, the court should consider whether sanctions, other than excluding the witness’ testimony, would preserve the defendant's right to a fair trial. See 234 Kan. at 430-31 (permitting defense counsel wide latitude to explore potential influence over the witness’ testimony and noting the court can sanction individuals and parties for contempt of court).

Here, the district court simply failed to engage in this analysis. Instead, the district court summarily denied Brown's motion in limine without conducting a hearing to determine the extent to which the witnesses might have been influenced, if at all. The court's failure to investigate Brown's concerns likely constituted an abuse of judicial discretion because the court's failure to inquire led to the inability to make a decision based on the specific circumstances of the case.

To be clear, we do not find that the district court abused its discretion by allowing Sharp to testify. Although exclusion of testimony was the sanction advocated by Brown, the record conclusively fails to establish misconduct by Sharp or the State in violating sequestration during the preliminary hearing. Sharp and Campbell remained in the courtroom without objection by Brown, and in fact the district court told Sharp he was “free to go or stay as [he] please[d].” Because exclusion of a witness’ entire testimony is appropriate only when the witness or the party has committed misconduct, the sanction requested by Brown would have been improper. Instead, the district court only abused its discretion by failing to consider the factors discussed above.

II.D. Harmless Error

Still, even when a district court abuses its discretion when handling a violation of a sequestration order, an appellate court must then determine whether the error requires reversal. See K.S.A. 60-261; Sampson, 297 Kan. at 299. In Sampson, the Kansas Supreme Court applied a constitutional harmless error analysis to an error arising from an abuse of judicial discretion related to a sequestration order. 297 Kan. at 299. Neither of the parties here cite different authority, though the State disputes that the constitutional harmless error standards should apply.

The State tries to distinguish Sampson on the basis that Sampson dealt with a violation of a sequestration order at trial, not with a violation of K.S.A. 22-2903. This basis for distinguishing Sampson is not persuasive. In Sampson, the court first considered whether the court erred, using the applicable standard of review. Whether this court applies a de novo standard of review, as urged by Brown, or an abuse-of-discretion standard of review, as suggested by the weight of authority, a conclusion that the district court erred establishes a procedural posture indistinguishable from the procedural posture in Sampson. The individual circumstances of the respective cases undoubtedly could cause different applications of the proper harmless error standard, but the procedural postures of the cases do not suggest the application of a different harmless error standard.

Notably, though, the Sampson court did not establish that the constitutional harmless error standard was the correct standard. The court merely noted that the State did not dispute the defendant's articulation of the applicable standard. 297 Kan. at 299. The parties cite no other cases for the applicable standard, and independent research has found no Kansas case discussing the standard.

Assuming that the constitutional harmless error standard applies, the burden is on the State to persuade the appellate court that the error had no impact on the trial's outcome. In other words, the State must show that there is no reasonable possibility that the error contributed to the verdict. Sampson, 297 Kan. at 299-300.

Brown only argues that Sharp's identification of Cantrell's drug dealer at trial as “an older black lady” was influenced by Campbell's preliminary hearing testimony. Brown does not identify any other testimony of a witness influenced by other witnesses because of the violation of the sequestration order.

The information that Cantrell's dealer was “an older black lady” in Sharp's trial testimony was new information. But Brown ignores that the State never questioned Sharp about his ability to identify Cantrell's dealer at the preliminary hearing. Sharp's testimony about the location of Cantrell's dealer remained consistent across the preliminary hearing and trial. Notably, Sharp's addition in his trial testimony that Cantrell's dealer was “an older black lady” did not constitute a change in his testimony, it only amounted to additional, previously undisclosed information resulting from different questioning by counsel.

Brown's trial attorney then cross-examined Sharp about this additional information by challenging his failure to identify an “older black lady” when speaking with Detective Rew. The ability to cross-examine a witness about changes in or additions to trial testimony is one of the sanctions appropriate for a sequestration violation. See Cantrell, 234 Kan. at 430. In response to Sharp's explanation that he had a lot on his mind when he spoke to Detective Rew, defense counsel did not attempt to cross-examine Sharp further with information that Sharp did not provide this additional identifying information at the preliminary hearing, even though counsel challenged Sharp with other inconsistencies between his preliminary hearing testimony and his trial testimony. Defense counsel would have provided a stronger impeachment of Sharp by highlighting Sharp's omission of this description of Cantrell's dealer when he testified at the preliminary hearing, but regardless, the jury still heard that Sharp's identification of Cantrell's dealer was new information at trial.

Moreover, while the weight of the identification of Cantrell's drug dealer is undoubtedly more significant with two witnesses rather than one, Campbell's identification of Cantrell's drug dealer as an older, disabled African-American female with a daughter remained consistent between his preliminary hearing testimony and his testimony at trial. And, both Sharp's identification of the location of the dealer's home and Campbell's identification of her physical appearance were corroborated to a significant degree by evidence admitted at trial, including the text messages between Brown and Cantrell, cellphone tower information, and Brown's Zelle transactions from Cantrell. Campbell, who provided significantly greater identifying details of the identity of Cantrell's dealer, was not subject to extensive cross-examination at trial.

Consequently, even if Sharp's trial testimony regarding the physical description of Cantrell's dealer had been excluded, the jury's assessment of the evidence would have remained the same. We find no real possibility that the district court's error in allowing Sharp to testify without inquiring into the potentially improper influence of other testimony had any impact on the jury's deliberations or the ultimate verdict; thus any error was harmless.

III. Admission of Hearsay Evidence

In her next appellate issue, Brown challenges the admission of Cantrell's statements through other witnesses and text messages as inadmissible hearsay.

When the State sought to introduce text messages between Cantrell and Sharp, Brown objected to their admission as hearsay. The court overruled the objection and admitted the messages without requiring the State to identify hearsay exceptions. Just before the State asked Sharp to read select text messages into the record, Brown requested and received a continuing objection.

Similarly, at the beginning of Campbell's testimony, defense counsel again objected to some of Campbell's testimony based on information provided by Cantrell as hearsay and requested a continuing objection. The district court did not comment on the request for a continuing objection at the time but later indicated that it had granted the request when Brown's counsel lodged a new hearsay objection. Brown preserved her challenges to the admission of the evidence—but barely, as we discuss below.

An appellate court reviews a district court's decision to admit hearsay statements under a statutory exception for an abuse of discretion. State v. Horton, 322 Kan. 175, 178, 587 P.3d 754 (2026). Judicial discretion is abused when the decision is based on an error of law or fact or is otherwise arbitrary, fanciful, or unreasonable. 322 Kan. at 178.

“ ‘Hearsay’ ” is statutorily defined as “a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 60-460. If a statement meets this definition, it is inadmissible unless it fits one or more statutory exceptions provided within K.S.A. 60-460. 322 Kan. at 178.

The procedural posture and briefing of this issue complicates our review. The court's issuance of a continuing objection applied indiscriminately to all Cantrell's statements to Sharp or Campbell, by text message or otherwise. Academically, each statement should be considered separately, both to determine its use by the party offering it and for the application of an exception. Brown, however, does not identify select statements made by Cantrell for hearsay analysis but instead lists multiple statements from Cantrell to either Sharp or Campbell and then conducts a broad hearsay analysis based on the exceptions raised by the State. As a result, we are limited to the same broad review.

This review categorizes the statements Brown challenges into two camps: (1) statements about Cantrell's drug addiction, depression, and interest in treatment and (2) statements incriminating Brown as Cantrell's dealer.

III.A. Cantrell's Statements About Himself

Brown challenges the admission of Cantrell's statements through Sharp and Campbell regarding Cantrell's illegal use of drugs, his position on treatment, and his mood, i.e., feelings of loneliness, isolation, and depression. Specifically, Brown challenges the following statements:

• Cantrell told Sharp in a text message that he “just had a few hydros.”

• Cantrell told Sharp in a text message that he typically gets five or six pills, takes them, and drives on the highway.

• Cantrell asked Sharp multiple questions about Sharp's treatment.

• Cantrell told Campbell that he did not keep a supply of extra pills; he only kept on hand the amount he would use in a day.

• Cantrell shared with Campbell his desire to become a drug dealer because they made money but bemoaned the lack of friends and acquaintances to establish buyer connections.

• Cantrell told Campbell that he only purchased one pill “the other day when I used.”

The State contends that the statements by Cantrell expressing a desire to deal drugs is not hearsay because they were not offered to establish that Cantrell engaged in drug dealing but to demonstrate the extent of Cantrell's financial issues. The State argues that these statements are all admissible under the exceptions found in K.S.A. 60-460(j)—declarations against interest—and K.S.A. 60-460(l)—statements of the declarant's existing state of mind. In short, on review Brown has not demonstrated a genuine question about the trustworthiness of Cantrell's statements to prompt this court to remand the case for further findings by the district court on the question of whether K.S.A. 60-460(j) applies. And Cantrell's statements about his addiction and his depression likely qualify as a record of Cantrell's existing state of mind at the time he made the statements under K.S.A. 60-460(l). Again, had each statement been challenged and analyzed separately at trial, our review could be more specific.

But even if the district court erred in admitting this first category of statements or erred in failing to instruct the jury to limit its use of these statements, Brown does not, and cannot, demonstrate prejudice from the admission of Cantrell's statements indicating a desire to deal drugs. The statements make it no more or less likely that Brown supplied the drugs to Cantrell that caused his death.

Even if some of Cantrell's statements about himself constituted inadmissible hearsay, Brown does not establish prejudice arising from the statements’ improper admission. Her appellate argument focuses exclusively on the statements incriminating Brown, discussed below. She does not cite a single statement Cantrell made about himself that prejudiced her ability to obtain a fair trial.

The absence of argument related to these statements is understandable. Cantrell's drug use was not a contested issue. Cantrell died of a drug overdose and had needle marks on his arms. Brown did not dispute any facts related to Cantrell's drug use at trial. Cantrell's statements about his feelings of loneliness and depression might have prejudiced Brown to the extent that the evidence evoked some sympathy for Cantrell's position, but, again, those are circumstances that could not be disputed. Brown acknowledged that Cantrell had money problems and claimed that she often loaned him money.

Consequently, the admission of Cantrell's statements about himself, if improper, had no reasonable probability of affecting the verdict in this case. See State v. Lowery, 308 Kan. 1183, 1235-36, 427 P.3d 865 (2018) (applying lesser harmless-error standard when admission of evidence violated statutory right but did not affect constitutional right). Brown does not argue that the admission of Cantrell's statements violated any of her constitutional rights.

III.B. Cantrell's Statements Incriminating Brown

The statements incriminating Brown fall into another category of hearsay and encompass Cantrell's statements about the location of his dealer, description of his dealer, and his ability to obtain drugs on credit. The statements Brown challenges include:

• Cantrell told Sharp that he obtains his “hydros” near Legends and on credit.

• Cantrell told Sharp that the place he gets his drugs is right off the highway near Parallel Parkway and I-635.

• Cantrell told Sharp that his dealer was “an older black lady.”

• Cantrell told Sharp that his dealer was receiving disability payments for Lupus in connection with his ability to obtain drugs on credit.

• Cantrell related how his dealer was a friend and came to his apartment to help him through a bad response to some drugs.

• Cantrell told Campbell that his dealer allows him to get drugs on credit.

• Cantrell told Campbell that his dealer allows him to buy on credit because she receives “a ton in Social Security.”

• Cantrell described his dealer as a friend to Campbell and mentioned that he enjoyed spending time with her and her daughter.

• Cantrell told Campbell that his dealer received government benefits for Lupus.

• Cantrell told Campbell of an incident involving a bad reaction from drugs where his dealer and her daughter came and spent the night at his apartment to help him through it.

• Cantrell told Campbell that his dealer lived in Kansas City, Kansas.

The State relies almost exclusively on K.S.A. 60-460(d)(3)—contemporaneous statements—for the admission of these statements. Brown hardly addresses this exception in her appellate brief, merely citing the requirements of the exception and providing a conclusory statement that the statements were not recently perceived by Cantrell when he made them. Brown cites no authority for her position; as a result, we may deem the argument waived or abandoned. State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020). But even if the argument were not waived, we find it unpersuasive.

The hearsay exception found in K.S.A. 60-460(d)(3) outlines:

“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made: (1) While the declarant was perceiving the event or condition which the statement narrates, describes or explains ․ (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”

Again, Brown only argues against application of K.S.A. 60-460(d)(3) to Cantrell's incriminating statements because the statements did not relate to recently perceived events. We find her argument unconvincing for two reasons. First, the individual statements were not challenged or analyzed before the district court, nor were they discussed individually on appeal, which gives us little to review. Second, Kansas cases refute Brown's position.

“For the necessity exception to apply, the district court must find that the declarant made the statement ‘at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear.’ K.S.A. 60-460(d)(3). But the recently perceived requirement is not a rigid temporal limit. It can ‘allow for considerable passage of time, so long as the statement was made at a time when the event could still be reasonably classified as “recent” and the declarant's memory was still unclouded.’ ” State v. Bey, 322 Kan. 32, 39, 585 P.3d 911 (2026) (quoting Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 [1974]).

In Bey, the hearsay statements of a murder victim involved allegations of acts of violence by the defendant. The evidence did not reveal the exact timing of the acts relative to the victim's statements about the acts, but the court concluded that the intervening period could have been no more than six months. The court also relied on the nature of the acts as impressing details on the victim's memory, as opposed to routine, daily activities. Finally, the court noted that the context suggested that many of the statements created an inference of a very recently perceived event. 322 Kan. at 41-42, 45.

The nature of Cantrell's statements about Brown are different and therefore distinguishable from Bey and the cases cited for support in Bey. Even so, the context of Cantrell's statements strongly supports the idea that Cantrell's memory of the events was unclouded. Cantrell had an ongoing addiction to drugs. His purchase of drugs was not a one-time event at some point in the distant past. He was actively buying opiates. The record is not clear about how frequently Cantrell purchased drugs, but there is evidence from which the court can draw a reasonable inference that the drug purchases occurred daily or at least with regularity. Cantrell said that he never retained any pills he purchased but consumed them the day he purchased them.

Moreover, Brown told Detective Rew that she had known Cantrell only about a year and a half. So, if Cantrell identified Brown as the person from whom he obtained any drugs, it must have been relatively recent. Circumstantial evidence from the cellphone records of Cantrell and Brown suggest that the pill or pills that killed Cantrell were provided by Brown on December 26. Even if Cantrell identified Brown as his dealer months earlier, it demonstrates an ongoing relationship that supports a conclusion that his statements about Brown were based on recently perceived events relative to the time he made the statements rather than reporting some former dealer with whom Cantrell had not had contact in years.

As we have explained, Brown has failed to establish an abuse of discretion in admitting Cantrell's hearsay statements incriminating Brown under K.S.A. 60-460(d)(3).

IV. Did cumulative trial error undermine Brown's ability to obtain a fair trial?

Brown's final issue of her appeal raises cumulative trial error. Cumulative trial errors may require reversal of a judgment when the errors, under the totality of the circumstances, substantially prejudiced a criminal defendant's ability to obtain a fair trial. When reviewing a claim of cumulative trial error, the appellate court examines the errors in context, considering the district court's manner of addressing the errors, the nature and number of errors, the relationship between the errors, and the strength of the evidence of guilt. State v. Alfaro-Valleda, 314 Kan. 526, 551, 502 P.3d 66 (2022). The State bears the burden of persuading the court that the combined effect of the errors was harmless. The State must carry this burden beyond a reasonable doubt if any of the errors impinge on constitutional rights. 314 Kan. at 552.

In her appeal, Brown has identified two potential errors: (1) the admission of Sharp's testimony identifying Brown as Cantrell's dealer after he remained in the courtroom during the preliminary hearing; and (2) the use of potentially inflammatory rhetoric during the State's closing argument. We found both errors harmless.

None of the factors cited above weigh in favor of finding cumulative trial error in this case. The district court was not provided with an opportunity to address the alleged prosecutorial error because Brown did not object at trial. While the court did not provide Brown with an explanation for overruling Brown's motion in limine based on the sequestration violation, case authority does not substantially support the remedy Brown sought. Brown did not seek an alternative remedy such as striking Sharp's testimony regarding the identification of Brown that was added at trial. Furthermore, Brown had the opportunity to cross-examine Sharp about the additional information in his trial testimony.

The nature of the prosecutorial error, if any, was an improper emotional appeal. But the argument reflected evidence properly admitted at trial and was not an egregious example of inflammatory rhetoric. The nature of the sequestration error was essentially procedural. The district court should have inquired into the potential influence on Sharp's testimony, but the substantive prejudice to Brown was insignificant as discussed.

The two errors do not interact to create a greater prejudice to Brown than the errors caused individually. The prosecutorial error, if any, involved an emotional appeal designed to invoke the jurors’ sympathy for Cantrell, while the sequestration error potentially allowed two witnesses, rather than one, to provide a physical description of Cantrell's dealer. These errors do not relate such that they combine to exponentially prejudice Brown's trial.

Finally, the strength of the State's case was strong, if not overwhelming. The State introduced cellphone records and text messages between Brown and Cantrell, which interpreted by the detective, established the sale of drugs. Cantrell's statements to Sharp or Cantrell that he had only one dealer are unaffected by either of the potential errors identified by Brown on appeal. The autopsy conclusively established that Cantrell died from respiratory and central nervous system depression caused by an overdose of fentanyl. Neither of the identified errors raise questions about this conclusion. The pivotal issue in the case was whether Brown provided the drugs that contained the fentanyl to Cantrell. Neither of the identified errors undermined the State's evidence to any significant degree. Consequently, we find that beyond a reasonable doubt the two errors identified did not create a reasonable possibility of a different verdict had the errors not occurred.

V. Did the district court err in awarding Brown a durational sentencing departure?

In the State's appeal, it raises a single challenge to the district court's decision to award Brown a downward durational sentencing departure.

A district court must impose the applicable presumptive sentence established by the sentencing grid of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-6801 et seq., unless the court finds substantial and compelling reasons to depart from that presumptive sentence. K.S.A. 21-6815(a). K.S.A. 21-6815(c) recites potential statutory mitigating factors, but that list is nonexclusive. The sentencing court may rely on other factors to depart as long as the nonstatutory factor is consistent with the KSGA's principles. State v. Morley, 312 Kan. 702, 706, 479 P.3d 928 (2021). The court must state on the record the reasons supporting a departure. K.S.A. 21-6815(a). See State v. Montgomery, 314 Kan. 33, 35-36, 494 P.3d 147 (2021).

An appellate court reviews the decision by a district court to grant a sentencing departure for an abuse of discretion. Morley, 312 Kan. at 711. A judicial action constitutes an abuse of discretion if it is based on an error of fact or law or is otherwise arbitrary, fanciful, or unreasonable. Horton, 322 Kan. at 178.

Accordingly, when considering whether a district court abused its discretion in granting a departure from a presumptive sentence under the KSGA, an appellate court first considers whether the district court committed an error of law. In this context, a district court commits legal error when the reasons justifying the departure do not constitute substantial and compelling reasons to depart from the presumptive sentence. Next, the reviewing court determines whether the record contains substantial and compelling evidence to support the departure reasons cited by the court. Third, and finally, the court considers whether a reasonable person in the position of the district court would have granted the departure based on the established departure factors. Morley, 312 Kan. at 711.

When considering the departure, the district court must consider the overall circumstances of the case. Any single factor or combination of factors may support a decision to depart. State v. Bird, 298 Kan. 393, 397-98, 312 P.3d 1265 (2013).

V.A. Departure Factors

A substantial and compelling reason to depart from a presumptive sentence is the existence of a real fact, not imagined—of substance, not ephemeral—that compels the court to abandon the status quo to impose a sentence different than it would ordinarily impose. Montgomery, 314 Kan. at 36 (citing State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 [2008]).

As stated, the sentencing court may consider a departure for a nonstatutory basis as long as the basis is consistent with the principles and purposes of the KSGA. Montgomery, 314 Kan. at 38. Legislative goals of the KSGA are the reduction of prison overcrowding by reserving incarceration for serious offenders; the promotion of public safety by locking away serious or violent offenders; the standardization of sentences so that similarly situated offenders receive similar punishment unrelated to the offender's socioeconomic, racial, or geographic characteristics; the establishment of clear, understandable penalties; and the prevention of the use of prison to gain education or job skills. See Montgomery, 314 Kan. at 38.

Before sentencing, Brown filed a motion seeking a dispositional or durational sentencing departure. The motion cited Brown's age and medical condition as a basis for a dispositional departure, placing her on probation instead of imposing a prison sanction. Alternatively, the motion requested a durational departure based on Cantrell's active participation in the crime.

At sentencing, the court found no basis to grant a dispositional departure but granted a durational departure based on Brown's age, her medical condition, “the facts of this case,” and the lack of malice in committing the offense. The factor, “the facts of this case,” is not specific enough to adhere to the spirit of the recording requirement of K.S.A. 21-6815(a). Moreover, “the facts of this case” are a consideration the court must make when assessing any specific mitigating factor. Bird, 298 Kan. at 397-98. Accordingly, as the State argues in its appellate brief, the district court relied on three specific mitigating factors to justify its departure: Brown's age, Brown's health, and Brown's lack of malice.

V.A.1. Brown's Age as a Mitigating Factor

The State contends that age is not a substantial and compelling factor to depart. Moreover, to the extent age is relevant, it argues the factor would only relate to a defendant's youth and immaturity as a substantial and compelling basis to depart. Here, Brown was 54 years old at sentencing, making her 50 at the time of the crime. This age appears neither to invoke a perception of immaturity—as with young offenders—or infirmity, as with elderly offenders.

In State v. Favela, 259 Kan. 215, 235, 911 P.2d 792 (1996), the Kansas Supreme Court held: “The fact the defendant was only 17 years old at the time of the offense is not a substantial and compelling reason justifying departure as a matter of law, but it may be considered as part of the entire package.” Later, however, the Favela court considered age as it related to the criminal defendant's emotional and mental maturity to be a substantial and compelling departure factor, comparing it to K.S.A. 1994 Supp. 21-4716(b)(1)(C) [now K.S.A. 21-6815 (c)(1)(C)] (lack of substantial capacity for judgment). 259 Kan. at 237-38.

While Brown's mature yet middle age does not support a conclusion that she lacked the capacity to exercise sound judgment under K.S.A. 21-6815(c)(1)(C)—and would, in fact, suggest the opposite—age has been used to support a departure in other contexts. See State v. Michael, No. 128,549, 2026 WL 72305, at *3 (Kan. App. 2026) (unpublished opinion) (“Relevant here was not just that Michael had no criminal history, but also she was over 40 years old at the time of sentencing and had been on bond with no violations for 30 months.”).

But because the district court did not elaborate on its reasons for relying on age in granting Brown's request for a departure, we cannot know why the court believed Brown's age was a substantial and compelling reason to depart. Even if the district court meant to invoke Michael’s reasoning for adopting age as part of the basis for a sentencing departure, Brown's circumstances are distinguishable. Michael had gone 40 years without committing any substantial criminal offense. While Brown is older, her criminal record is not clean. Brown had several prior criminal convictions between 1991 and 2017.

Brown's age, without more, is not a substantial and compelling reason to depart from her presumptive KSGA sentence. We continue to consider the other factors announced by the district court, as a single substantial and compelling reason can support departure. See State v. Hines, 296 Kan. 608, 619, 294 P.3d 270 (2013) (citing Blackmon, 285 Kan. at 725 [“If any of the factors articulated by the sentencing court would justify the departure, the decision will be upheld on appeal.”]).

V.A.2. Brown's Health as a Mitigating Factor

The State also challenges the district court's reliance on Brown's Lupus diagnosis as a basis for departure, contending that a medical condition alone is insufficient to support a departure.

In State v. Theurer, 50 Kan. App. 2d 1203, 1225-26, 337 P.3d 725 (2014), a panel of this court expressly declined to decide whether a criminal defendant's medical condition can constitute a substantial and compelling reason to depart from a presumptive sentence, concluding that, even if the medical condition is a reason to depart, the court's reliance on the factor was unsupported by substantial competent evidence.

Theurer suffered from Type 1 diabetes. His condition as well as his use of an insulin pump were undisputed. Still, the Theurer court recognized that many inmates suffer from very serious health conditions while serving prison sentences. This court relied heavily on testimony offered by the State that the Kansas Department of Corrections (KDOC) was required to provide healthcare to the inmates in its custody and that inmates received essentially the same care as nonincarcerated citizens. Based on uncontroverted evidence that KDOC could adequately manage Theurer's diabetes in prison, our court concluded that—even if a medical condition was a valid reason to depart—the district court's reliance on the factor was not supported by the evidence.

Drawing inferences from the unstated premises of the Theurer court's conclusion, a criminal defendant's medical condition, if it supports a departure at all, constitutes a substantial and compelling reason to depart from a presumptive sentence only when the medical condition distinguishes the criminal defendant from other, similarly situated defendants because the severity of the medical condition would make prison more difficult than for other prisoners with severe medical conditions or because the prison cannot adequately treat the condition. 50 Kan. App. 2d at 1226.

The parties do not dispute Brown's Lupus diagnosis. The question before us is whether her medical condition distinguishes her in some material manner from other prisoners with medical conditions.

In her departure motion, Brown argued that her Lupus condition requires frequent hospital intervention when it flares, and the attention needed for this condition “is better served with a non-prison sanction.” At sentencing, defense counsel alleged that Brown's medical records showed that she also suffered from Sjogren's disease and fibromyalgia. But because no medical records were admitted, the court could not rely on them to support its departure factor. See State v. Cole, 37 Kan. App. 2d 633, 637, 155 P.3d 739 (2007) (“Statements of counsel are not evidence.”). Although Brown's sister opined that patients do not always receive the care that they need while incarcerated, she offered no evidence regarding KDOC's ability to care for Brown, nor was she qualified as a medical expert to support this opinion.

Unlike in Theurer, although it was not necessarily required to, the State likewise presented no evidence to counter Brown's arguments. It offered no witness from KDOC to testify about KDOC's ability to care for a Lupus patient. Under these circumstances, a reasonable person in the position of the district court might well question whether Brown's medical condition would constitute an unusual hardship or perhaps become life-threatening without proper treatment. But, given that uncertainty, the district court's decision lacks clarity. If KDOC cannot properly treat Brown's medical conditions and her imprisonment would potentially aggravate her conditions, then the court's decision to send Brown to prison for 12 years rather than the presumptive 20-year sentence appears rather arbitrary.

Given the lack of evidence both supporting and disputing the applicability of this factor, the district court's reliance on Brown's medical condition to grant a durational rather than a dispositional departure, or any departure at all, was an abuse of discretion.

V.A.3. Brown's Lack of Malice as a Mitigating Factor

Having found that neither Brown's age nor medical conditions supported the departure sentence, we address the final factor relied upon by the district court—whether the district court erred in relying on Brown's lack of malice as a substantial and compelling factor to depart. The district judge found, in pertinent part:

“I don't believe that anyone from the evidence—and the jury certainly did not believe that you intended to kill [Cantrell]. Unfortunately, that intent is not necessary for this crime․

“․ I don't believe that you knew that fentanyl was contained with the narcotics that you provided to [Cantrell]. Once again, that knowledge is not required.”

Neither party cites any caselaw addressing the absence of malice as a substantial and compelling factor to depart. But K.S.A. 21-6815(c)(3) outlines that where a “factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect ․ may be used as [a departure] factor only if the criminal conduct ․ is significantly different from the usual criminal conduct captured by [that element].” In State v. Grady, the Kansas Supreme Court addressed an analog to malice which lends additional context. 258 Kan. 72, 900 P.2d 227 (1995). There, a jury convicted Grady of voluntary manslaughter, and the sentencing court cited as a reason for departure that the objective evidence did not suggest a cold-blooded, execution-style killing—that is, no finding of premeditation. The Kansas Supreme Court rejected this as a valid departure factor, holding that by finding a defendant guilty of voluntary manslaughter and so acquitting the defendant of first-degree murder, the jury necessarily found that the crime was not premeditated. 258 Kan. at 87. Because any conviction for voluntary manslaughter will lack the element of premeditation, “[t]hat fact [was] already taken into consideration in establishing the presumptive sentence” for voluntary manslaughter. 258 Kan. at 87.

The court found the factor could not be used again as justification for a dispositional departure—that is, “double-counting” was not permitted. 258 Kan. at 87.

Later, in Blackmon, our Supreme Court rejected the sentencing court's reasoning that the level of recklessness required for unintentional second-degree murder was not met—that is, the defendant lacked the malicious or reckless mental state, even though the jury necessarily found he did not. 285 Kan. at 728. The Supreme Court found this factor inappropriate. The fact that the trial court weighs the evidence differently than the jury is not a substantial and compelling reason for departure, and to hold otherwise would allow the judge to become a “ ‘super juror.’ ” 285 Kan. at 728.

Here, Brown was convicted of unlawfully distributing a controlled substance causing death under K.S.A. 21-5430(b). As part of this charge, the State was required to prove she possessed a controlled substance—fentanyl—with the intent to distribute it. The culpable mental state required, then, arguably applied only to the distribution element of the crime, not to the “causing death” element. See K.S.A. 21-5202(a) (“Except as otherwise provided, a culpable mental state is an essential element of every crime defined by” the criminal code.); PIK Crim. 4th 52.010, Notes on Use (discussing where it plainly appears the specified culpable mental state is required only for a specified element of the crime); PIK Crim. 4th 54.201, Notes on Use (“the required culpable mental state is the one stated in the charging document”).

In this case, the jury found Brown guilty of the crime so, necessarily, found she intended to distribute the controlled substance to Cantrell. What is not required in the jury's findings, though, is a conclusion that Brown also intended Cantrell's death. Unlike in Blackmon or Grady, the jury here made no findings as to Brown's state of mind regarding the death because intent was necessary only to the distribution element of the crime. Even so, because any conviction under K.S.A. 21-5430(b) will lack intent to cause death, “[t]hat fact [was] already taken into consideration in establishing the presumptive sentence” for distribution of a controlled substance causing death. This is the “double-counting” our Supreme Court found impermissible in Grady. 258 Kan. at 87.

It is unclear whether the district court's belief that Brown did not “intend to kill” Cantrell would encompass Brown's absence of intent to distribute a lethal dose of fentanyl within the drugs she sold him. If the district court did contemplate as much, the parties did not brief the topic and, as a result, the issue is waived and we do not consider it. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (An issue not briefed is deemed waived or abandoned.).

Under these circumstances, the purported absence of malice in this case did not constitute a substantial and compelling reason to depart from the guidelines sentence, and we find the district court's reliance on a general “lack of malice” erroneous.

V.A.4. Conclusion

Although a single substantial and compelling reason can support departure, we have found none of the three factors relied upon by the court to be mitigating given the evidence before the court at that time and the articulation of the mitigating factors. See Hines, 296 Kan. at 619. As a result, we vacate Brown's sentence and remand for resentencing.

On remand, the district court may be presented with mitigating factors both statutory and nonstatutory. See, e.g., Morley, 312 Kan. at 711-12 (acceptance of responsibility); Bird, 298 Kan. at 398-401 (acceptance of responsibility and evidence defendant is not a threat to society); Hines, 296 Kan. at 617-19 (victim's request for lenience); State v. Spencer, 291 Kan. 796, 814, 818, 248 P.3d 256 (2011) (support of family and friends); Favela, 259 Kan. at 236 (relying on prior convictions in a way in which the defendant's criminal history score did not take into account); Theurer, 50 Kan. App. 2d at 1203 (lack of general danger to the public); State v. Bolden, 35 Kan. App. 2d 576, 132 P.3d 981 (2006) (effects on dependent family and proactive efforts to receive treatment); State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 5, 901 P.2d 1 (1995) (passage of time since last felony committed); State v. Heath, 21 Kan. App. 2d 410, 415, 901 P.2d 29 (1995) (time elapsed since and relatedness of prior felonies, relying on Richardson); State v. Crawford, 21 Kan. App. 2d 859, 861, 908 P.2d 638 (1995) (defendant's age and substantial efforts at rehabilitation). Our appellate courts have also identified factors that cannot be considered substantial and compelling reasons to depart from prison to probation—including the defendant's lack of criminal history already considered in the sentencing statute. See Montgomery, 314 Kan. at 40; Richardson, 20 Kan. App. 2d at 941 (cannot use defendant's criminal history).

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

Per Curiam: