State of Kansas, Appellee, v. Felicia Ann Ayers, Appellant. (2026)

MEMORANDUM OPINION

Felicia Ann Ayers stands convicted of possessing fentanyl and drug paraphernalia following a jury trial. She brings this appeal requesting that we analyze whether her trial fell short of the fair and neutral proceeding that she was entitled to receive. Ayers contends that three errors in particular call the integrity of her trial into question—the propriety of the district court's response to a jury question, the district court's exclusion of evidence that purportedly demonstrated the investigating officers’ failure to provide Ayers a Miranda warning, and multiple instances of prosecutorial error during the rebuttal portion of the State's closing argument. Our thorough review of the record and evaluation of Ayers’ claims failed to substantiate her assertion that the trial was tainted by any errors. Accordingly, the decisions of the district court and Ayers’ convictions are affirmed.

Factual and Procedural Background

Detective Alvin Babcock and Lieutenant Dustin Murphy were on duty for the Junction City Police Department and operating an unmarked law enforcement vehicle when they observed Ayers alongside the street with a friend. The officers were aware that Ayers had an active municipal warrant, so they pulled over to speak with her. As they exited their vehicle, the officers witnessed Ayers handing her wallet and cell phone to her friend. Lieutenant Murphy directed Ayers to place the items on the ground.

Babcock made contact with Ayers and advised her of the active warrant. He explained that she was directed to put her belongings on the ground because, in the officers’ experience, drug users frequently attempted to distance themselves from illegal narcotics by handing them off to other people. Ayers acknowledged to Babcock that there was “foil” in her wallet, which Babcock understood to mean aluminum foil commonly used to smoke drugs. Ayers requested to speak with her probation officer, Mary Martinez, whose office was within walking distance. Martinez arrived a short time later and shared a conversation with Ayers within earshot of Babcock and Murphy.

The officers received confirmation of Ayers’ outstanding warrant a short time later and placed her under arrest. A search of her wallet incident to that arrest revealed the segment of a straw and a square of burnt aluminum foil bearing residue. The source for the residue on the foil square was not known at the time of Ayers’ arrest, so once she was booked into custody, Detective Babcock submitted the foil for testing.

Ayers was ultimately charged with unlawfully possessing a controlled substance (fentanyl) and drug paraphernalia. The case proceeded to trial, and the jury returned a guilty verdict for both charged offenses. The district court imposed a total prison term of 17 months and ordered that it be served consecutively to any sentence for which Ayers was on probation, parole, conditional release, or postrelease supervision.

The case now comes before this court for a determination of whether the alleged trial errors highlighted by Ayers compromised her right to a fair proceeding.

Additional facts will be included as necessary to resolve the issues presented for our consideration.

Legal Analysis

Did the district court accurately respond to the jury's request for clarification concerning what amount of a controlled substance was required to constitute possession?

During deliberations, Ayers’ jury submitted a question inquiring, “In the State of Kansas, what amount constitutes possession (of fentanyl), i.e., grains, grams, etc.[?]” Defense counsel's proposed response was “an amount that's observable to a human being” or “[a]ny amount that would have put a person on notice.” The district court declined those suggestions as contrary to the law. It went on to provide a response that “any amount constitutes possession” but also reminded the jurors that “there are other elements the State has to prove beyond a reasonable doubt,” and the quantity at issue simply is not included because the same elements instruction is used throughout the state when charges like Ayers’ are prosecuted.

Ayers’ first contention of error on appeal arises from the answer that the district court provided to the jury's inquiry. She asserts the response was inaccurate because if “any amount” is sufficient then the State is essentially absolved of its burden to prove that Ayers knowingly possessed the controlled substance. The State counters that the answer was legally correct and that to the extent any error is attributed to it, such error was harmless given the strength of the evidence that demonstrated Ayers knowingly possessed the drug.

Kansas appellate courts review a district court's response to a mid-deliberation jury question for abuse of discretion. State v. Martinez, 317 Kan. 151, 169, 527 P.3d 531 (2023); State v. Walker, 308 Kan. 409, 423, 421 P.3d 700 (2018). Such abuse occurs when the challenged response is objectively unreasonable or when it is legally or factually flawed. 308 Kan. at 423. To the extent it is necessary to determine whether the response was a correct statement of the law, we are presented with a legal question over which we exercise unlimited review. State v. Hirsh, 54 Kan. App. 2d 705, 712, 405 P.3d 41 (2017).

When the jury asks a question related to the district court's instructions, the judge must provide a meaningful response or seek additional clarification of the request. State v. Jones, 41 Kan. App. 2d 714, Syl. ¶ 3, 205 P.3d 779 (2009). Ayers argues that while the district court's answer was technically correct, it was misleading given the facts of her case and the defense theory that counsel pursued at trial. She contends that when the amount present is so miniscule that a person can no longer perceive or know of it, that person cannot be said to be in possession of the drug because the required mental state, knowingly, is effectively eliminated. Accordingly, the district court's response to the jury's question that any amount of fentanyl would suffice paved the way for a guilty verdict under circumstances where Ayers conceivably lacked knowledge of the fentanyl in her possession.

One of the earliest cases to address the quantity that is required to sustain a conviction for possession of a controlled substance was State v. Berry, 223 Kan. 102, 573 P.2d 584 (1977). In that case, Berry was convicted of possession of heroin after a state chemist testified that he found trace amounts of heroin on various items seized from a motel room—including a metal strainer and a metal measuring spoon. The chemist made no attempt to quantitatively measure those scant findings. Berry moved for judgment of acquittal and unsuccessfully argued that the State failed to prove the heroin that he allegedly possessed was of a measurable quantity. 223 Kan. at 103-05.

The argument was revisited and once again rejected on appeal. The Kansas Supreme Court first noted that this state had adopted the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., and that no provision within the Act required proof that an individual possessed a specific quantity of a controlled substance before it could be said that their conduct crossed the threshold into what was deemed unlawful. Berry, 223 Kan. at 104. The court surveyed the national landscape and observed that the great majority of federal and state jurisdictions that had resolved the question—whether that be under the Uniform Controlled Substances Act (1970) or the Uniform Narcotic Drug Act (1933)—had held that any amount of a controlled substance is sufficient. Accordingly, it chose to have Kansas follow suit. 223 Kan. at 104-05.

This court had the opportunity to address the issue in State v. Hankins, 19 Kan. App. 2d 1036, 880 P.2d 271 (1994). There, Hankins was convicted of possession of cocaine based on residue found inside a crack pipe. He explicitly acknowledged the rule set out in Berry but urged this court to overrule it because the amount at issue in his case was neither controllable nor usable. We declined to grant his request as this court is not at liberty to disregard controlling precedent from the Kansas Supreme Court unless that court has offered some indication that it is departing from its own precedent, and we were aware of no such signal. Hankins, 19 Kan. App. 2d at 1050. Accordingly, where the evidence established that the defendant intentionally “possessed a crack pipe and a small, albeit unusable, amount of cocaine,” it was sufficient to sustain his conviction for possession of a controlled substance. 19 Kan. App. 2d at 1051.

Ayers requests that we conduct our analysis specifically with an eye toward what she refers to as the unique context of her case. That is, that defense counsel inquired of the State's chemist whether a chemical analysis would test positive for even one molecule of fentanyl, and the chemist testified that she did not know the minimum amount which would result in a positive test. We do not find this exchange persuasive. A prosecution for possession of a controlled substance requires the State to prove whether Ayers was in possession of any amount of the drug at issue, not whether the amount she possessed was enough to be subjected to forensic testing. To that end, we see no distinction between the facts in Ayers’ case and those undergirding the analyses in Berry or Hankins. Thus, the rule relied upon in those cases, that any amount of a controlled substance is sufficient to establish possession, likewise dictates the resolution of Ayers’ claim.

The second layer to this issue that we must address is Ayers’ contention that the district court's response had the collateral consequence of impermissibly broadening the scope of the charging document. Specifically, when the judge informed the jury that “any amount constitutes possession,” whether his failure to clarify that the possession must be knowing created a risk that the jury could potentially find Ayers guilty without holding the State to its burden of establishing the requisite mental state. Ayers asserts that the possibility could easily have been avoided had the district court adopted the clarifying language proposed by defense counsel—that the amount in the person's possession must be sufficient to put them on notice.

The jury posed a very targeted question that only sought clarification concerning what amount of fentanyl, phrased in terms of its respective unit of measurement— “grains, grams, etc.”—was required for a person to fall within the reach of the offense. The district court expressly refused defense counsel's request to reiterate the mental state requirement because it was not part of the question asked and that element was adequately identified by the written instructions.

Again, we found in Ayers’ preceding claim that the offense of unlawful possession does not demand that a person be in possession of a specific quantity of the drug before they are subject to prosecution. Thus, Ayers advocates for an impermissible avenue, or one plagued with inaccuracies, when she contends that any potential confusion amongst the jurors concerning the required mental state could have been avoided if the district court had simply supplemented its answer with defense counsel's suggested response. That recommendation was properly declined.

Next, because inclusion of the mental state was not integral to the specific information the jury sought to obtain, we are not persuaded that the jurors identified and assigned any significance to the absence of such language from the district court's response. We are required to view the instructions as a whole to ensure they properly and fairly stated the law as applied to the facts of Ayers’ case and that they could not have reasonably misled the jury. State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014). Performing that exercise here, we are satisfied that Ayers’ jury was accurately and adequately instructed. Specifically, the district court informed the jury that it had an obligation to “consider and follow” each of the instructions issued by the court and that it must reach a verdict by applying those instructions to the facts of Ayers’ case. It was further instructed that the State had the burden to prove Ayers was guilty beyond a reasonable doubt by establishing each element of the charged offense, which included whether she knowingly possessed the fentanyl at issue. The elements instruction also clarified what it means to act in a knowing manner. Finally, from those instructions it was without question that the jury must find Ayers not guilty if the State failed to prove that she acted with the required mental state.

We presume that juries follow the instructions given, and notably, the parties do not dispute that the written instructions clearly identified that the State had the burden to prove that Ayers knowingly committed the charged offense. State v. Perez, 306 Kan. 655, 672, 396 P.3d 78 (2017).

The sole specific clarification the jury requested pertained to the amount of a controlled substance a person must be in possession of in order to be subject to prosecution under the statute. The district court's response that a person is prohibited from possessing “any amount” corresponds with the longstanding law of this state. Accordingly, we reject Ayers’ contention that the district court provided a legally infirm reply and therefore abused its discretion by virtue of the answer it offered in response to the jury's mid-deliberation question.

Did the district court err when it sustained the State's objection to the questions defense counsel posed during cross-examination concerning whether Ayers received Miranda warnings?

Detective Babcock, Lieutenant Murphy, and Ayers’ probation officer, Mary Martinez, were called as witnesses for the State. During cross-examination of Murphy and Martinez, defense counsel endeavored to ask whether Ayers received warnings consistent with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The State objected to both attempts as irrelevant given the district court's denial of Ayers’ pretrial motion to suppress her statements as involuntary. The district court sustained the State's objection on both occasions.

Ayers’ second argument on appeal consists of the claim that the district court erred in sustaining the State's objections because the admissibility of a person's statements to law enforcement officers does not render evidence of the circumstances surrounding the utterance of those statements equally inadmissible. The State counters that the line of questioning was properly excluded because Miranda warnings were not required under the particular facts and circumstances of Ayers’ case, rendering any discussion of the same irrelevant.

The first step of any inquiry concerning the admission or exclusion of evidence is a determination of its relevancy. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). Relevant evidence is defined as that which has “any tendency in reason to prove any material fact” and consists of two separate components: materiality and probativeness. K.S.A. 60-401(b); 313 Kan. at 237. Evidence is material when the fact it supports is disputed or at issue in the case, and evidence is probative if it tends to prove a material fact. State v. Shields, 315 Kan. 814, 831, 511 P.3d 931 (2022). We exercise de novo review over the former and analyze the latter for abuse of discretion. State v. Waldschmidt, 318 Kan. 633, 657, 546 P.3d 716 (2024). A court abuses its discretion when its decision is the product of a factual or legal error or is one with which no reasonable person could agree. State v. Butler, 315 Kan. 18, Syl. ¶ 1, 503 P.3d 239 (2022).

The facts underlying Ayers’ claim begin with her trial counsel's cross-examination of Martinez, Ayers’ probation officer. Counsel clarified the details of Ayers’ contact with law enforcement officers on the day in question and inquired whether Martinez was notified of the encounter that occurred merely a short distance from her office, by virtue of a phone call from Detective Babcock, and whether she observed Ayers in some measure of emotional distress as she spoke with the officers. Martinez responded in the affirmative to each question. Ayers’ counsel then asked whether Martinez heard either Babcock or Murphy read Ayers her Miranda rights. The question drew a prompt objection from the State on the grounds that the question was irrelevant given the district court's pretrial ruling that Ayers’ un-Mirandized statements were admissible. The district court sustained the objection.

The record reflects that a similar exchange played out later in the proceeding during defense counsel's cross-examination of Lieutenant Murphy. Counsel inquired whether the officers observed any of Ayers’ behavioral interactions with a friend prior to their encounter with her and whether Ayers was emotional during her exchange with the officers. Murphy provided a negative response to the former question and an affirmative one to the latter. Defense counsel then asked whether Murphy issued Miranda warnings to Ayers. The State immediately responded with the same relevancy objection it made during Martinez’ cross-examination, and the district court again sustained the objection.

Ayers asserts that sustaining the State's objections constituted a legal error and, therefore, an abuse of discretion, because a pretrial ruling on the voluntariness of a defendant's statements does not necessarily render the circumstances surrounding those statements irrelevant. She directs our attention to Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986), for the proposition that questions concerning the credibility of either a confession or the speaker thereof is a matter that falls within the province of the jury. Thus, a pretrial determination discerning voluntariness does not prohibit a defendant from introducing evidence that bears on credibility.

The United States Constitution ensures that criminal defendants are afforded procedural fairness, a key component of which is the meaningful opportunity to be heard and present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). If the State was granted the latitude to “exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence,” the assurance of an opportunity to be heard is reduced to an illusory right. Crane, 476 U.S. at 690-91.

As Ayers notes, the issue before us was analyzed by the United States Supreme Court in Crane, at which time the Court determined that the circumstances surrounding an individual's confession properly fall within the province of the jury as a tool to assess reliability and credibility:

“ ‘Nothing in Jackson [v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)], questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness.’ ” Crane, 476 U.S. at 688 (quoting Lego v. Twomey, 404 U.S. 477, 485-86, 92 S. Ct. 619, 30 L. Ed. 2d 618 [1972]).

The Court noted the congruity of its finding with its earlier decision in Jackson, that because “ ‘questions of credibility, whether of a witness or of a confession, are for the jury,’ ” a pretrial determination concerning the voluntariness of the statement at issue does not eliminate a defendant's right to challenge the reliability of the statement at trial. Crane, 476 U.S. at 688 (quoting Jackson, 378 U.S. at 386, n.13). Thus, as evidenced by Jackson and Twomey, the court's earlier rulings on the issue “reflect the common-sense understanding that the circumstances surrounding the taking of a confession can be highly relevant to two separate inquiries, one legal and one factual.” Crane, 476 U.S. at 688.

The same constitutional principles articulated in Crane are embodied by K.S.A. 22-3215(5). That provision states that the issue of admissibility of a confession shall not be submitted to the jury, but that the circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession. This foundational distinction between the admissibility of a confession and its reliability was discussed by the Kansas Supreme Court in Khalil-Alsalaami v. State, 313 Kan. 472, 510-11, 486 P.3d 1216 (2021). The case analyzed an ineffective assistance of counsel claim that arose from defense counsel's stipulation, during the criminal trial, to the voluntariness of Khalil-Alsalaami's confession as part of a Jackson v. Denno hearing. Yet, counsel then pursued a trial strategy that Khalil-Alsalaami gave a false confession so the jury could not assign it any measure of reliability. Khalil-Alsalaami argued that his trial counsel's stipulation that the confession was voluntary amounted to constitutionally deficient representation.

The Supreme Court cited Crane for the proposition that while it is the trial court's obligation to determine whether a confession is voluntary, a jury has the duty to assess its reliability. Khalil-Alsalaami, 313 Kan. at 510. It recognized that the defense strategy— challenging only the reliability of the confession while foregoing a suppression challenge—was a legitimate approach consistent with Crane’s framework. But trial counsel's formal stipulation to the confession as knowing and voluntary followed by the memorialization of it as such in a journal entry, created a logical inconsistency with his defense theory that it was the product of deceptive interrogation techniques. The court concluded that the stipulation, which the State then used in closing argument to undermine the false confession theory, constituted deficient performance. 313 Kan. at 510-11.

In State v. Benoit, 21 Kan. App. 2d 184, 898 P.2d 653 (1995), this court likewise confronted a Crane related issue. In that case, Benoit was charged with attempted aggravated escape and prior to trial, the district court found that the facts and circumstances of Benoit's case did not require that he receive a Miranda warning prior to undergoing questioning about his alleged escape attempt. On appeal, Benoit challenged that ruling, as well as the district court's order in limine that excluded any evidence of the lack of Miranda warnings. He claimed that ruling stymied his ability to present a complete defense. 21 Kan. App. 2d at 197.

This court found that the failure to issue a Miranda warning was erroneous and reversed for a new trial. Given the potential for a new proceeding, we found it was prudent to also address Benoit's claim concerning the order in limine. As Ayers does here, Benoit asserted that exclusion of the evidence undermined his ability to present his theory of defense and cited Crane as authority for his ability to “introduce evidence regarding the circumstances surrounding a confession.” Benoit, 21 Kan. App. 2d at 198.

The Benoit court turned first to K.S.A. 22-3215(5) and acknowledged that it allowed for a jury to receive evidence of “[t]he circumstances surrounding the making of the confession or admission” for purposes of conducting a credibility determination or assessing how much weight to give a confession or admission. 21 Kan. App. 2d at 198. But the court clarified that the “circumstances” referred to in the provision are context-sensitive and do not always fall within the realm of what is properly submitted to a jury for consideration. It found that if Benoit's theory of defense was that his conduct was innocent and not an attempt to escape, then he had sufficient opportunity to present that evidence when he testified; the trial court's order in limine excluding any evidence of the fact that Miranda warnings were not given did not frustrate his defense. On the other hand, if Benoit confessed only to get a second chance and he would not have confessed otherwise, the absence of a Miranda warning carries different implications and has a direct bearing on whether Benoit's confessions were voluntary. Because the voluntariness of a confession is a legal determination, it is solely a matter for consideration by the trial court. Thus, it would not constitute an abuse of discretion based on the commission of a legal error to exclude all evidence tending to indicate that Benoit never received a Miranda warning. 21 Kan. App. 2d at 199.

Returning to the matter before us, the theory of defense that counsel endeavored to persuade the jury to follow was that the case against Ayers was the product of a brief investigation wrought with deficiencies. The absence of Miranda warnings was undeniably a circumstance in that it occurred during the officers’ overall interaction with Ayers. But evidence is about use, and this particular aspect of the investigation that defense counsel sought to get before the jury was attached to a constitutional right. Circumstances of that nature carry an independent legal significance that other details such as the relative distance from Martinez’ office, the officers’ proximity to Ayers during their interaction, and Ayers’ heightened emotional state, do not. When a statement or confession is voluntary, the credibility of the speaker and the weight to be given to their statement are left to the province of the jury. State v. Morris, 255 Kan. 964, 983, 880 P.2d 1244 (1994). But the line of questioning defense counsel pursued here was intended to cast a pall over the voluntariness of the statements Ayers made to the officers. The deliberate implication was that Detective Babcock and Lieutenant Murphy failed to honor Ayers’ rights which directly attacks the voluntariness of her statements. “To assure that the fruits of such techniques are never used to secure a conviction, due process also requires ‘that a jury [not] hear a confession unless and until the trial judge [or some other independent decisionmaker] has determined that it was freely and voluntarily given.’ ” Crane, 476 U.S. at 687-88 (quoting Sims v. Georgia, 385 U.S. 538, 543-544, 87 S. Ct. 639, 17 L. Ed. 2d 593 [1967]). See also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Accordingly, we share the district court's conclusion that the issue was not a matter for the jury to consider and decline to find error in its exclusion of the evidence.

While we are satisfied the district court made the appropriate call in excluding the evidence, we will go the next step and clarify that any error attributed to that decision was harmless at best. Under K.S.A. 60-261, the erroneous admission or exclusion of evidence is subject to review for harmless error. See State v. Shields, 315 Kan. 814, 832, 511 P.3d 931 (2022). Where, as here, an error implicates a statutory right, as opposed to one guaranteed by the federal Constitution, we must determine whether there is a “ ‘reasonable probability that error will or did affect the outcome of the trial in light of the entire record.’ ” State v. Campbell, 317 Kan. 511, 518, 532 P.3d 425 (2023). As the party who benefits from the improper admission of evidence under the statute, the State bears the burden of proof. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012), disapproved of on other grounds by State v. Brown, 322 Kan. __, 595 P.3d 144 (2026).

As the State points out, the record before us reflects that Detective Babcock was the first witness called by the prosecution and, thus, offered the first testimonial evidence received by the jury. During cross-examination of the detective, defense counsel inquired whether Babcock ever read Ayers her Miranda rights and, without objection, the detective verified that he did not. Kansas appellate courts have consistently declined to find reversible error in the admission of evidence when the same or substantially similar evidence was already admitted through an earlier witness without objection. This principle operates through two related but distinct doctrines: (1) the contemporaneous objection rule under K.S.A. 60-404, which renders a later objection untimely when the evidence was first introduced without objection through a prior witness; and (2) the harmless error doctrine. In State v. Brown, 316 Kan. 154, 162-63, 513 P.3d 1207 (2022), the court declined to find that reversible error occurred when the district court allowed a police-created map of cell phone transmissions into evidence. The court reasoned that because the exhibit was cumulative of other testimony and exhibits found elsewhere in the record that were admitted without objection and not challenged on appeal, it could not be said its admission affected the outcome of the trial. The court applied the harmless error doctrine in a similar way to hearsay evidence in State v. Gutierrez-Fuentes, 315 Kan. 341, 356-57, 508 P.3d 378 (2022). In that instance, the court found that despite the fact hearsay statements were potentially erroneously admitted through an interpreter, any such error was harmless because the challenged testimony was also presented during the testimonies of witnesses who garnered no objection—specifically, an officer who spoke directly with the victim at the hospital without an interpreter and whose testimony was consistent with the challenged testimony. Consequently, a review of the record in its entirety failed to substantiate the contention that reversible error occurred.

We find ourselves similarly positioned here and detect no reason that justifies an alternate outcome. The record from Ayers’ trial, when viewed as a whole, fails to substantiate the conclusion that error occurred when the district court excluded Murphy's and Martinez’ Miranda-related evidence when Ayers was able to offer that evidence, unimpeded, during the cross-examination of Detective Babcock.

Did the prosecutor improperly express personal opinions?

In her final claim of error, Ayers asserts that the prosecutor improperly injected their personal beliefs about the case and remarked on witness credibility during their rebuttal closing argument. The State counters that the remarks were fair comments on the evidence and that any error found to have occurred did not impact the jury's verdict.

We employ a familiar two-step process to evaluate claims of prosecutorial error. A determination must be made as to whether error occurred and if so, whether Ayers suffered a corresponding prejudice. State v. Mendez, 319 Kan. 718, 737, 559 P.3d 792 (2024).

“To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can demonstrate ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ ” State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

The statutory harmlessness test also applies to prosecutorial error, but when analyzing both constitutional and nonconstitutional error, appellate courts only need to address the higher standard of constitutional error. State v. Carr, 314 Kan. 744, 764, 502 P.3d 511 (2022). While a defendant is not required to preserve a claim of prosecutorial error by interposing a timely objection, we may still factor the presence or absence of an objection into our analysis of Ayers’ claimed error. State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021), abrogated on other grounds by State v. Stubbs, 320 Kan. 568, 570 P.3d 1209 (2025). Finally, we do not consider any statement in isolation but look to the context in which it was made to determine whether error occurred. State v. Brown, 316 Kan. 154, 164, 513 P.3d 1207 (2022).

“ ‘[A] prosecutor's improper comment or argument can be prejudicial, even if the [error] was extemporaneous and made under the stress of rebutting arguments made by defense counsel.’ ” State v. Roeder, 300 Kan. 901, 934, 336 P.3d 831 (2014) (disavowing language in previous cases that defense provocation can justify prosecutorial misconduct); see also State v. Sprague, 303 Kan. 418, 429, 362 P.3d 828 (2015) (stating the “ ‘open-the-door rule does not insulate a prosecutor from a finding of misconduct’ ” when responding to defense arguments).

Defense counsel focused a portion of closing argument on evidence that one might associate with drug-related investigations but that was nevertheless nonexistent in Ayers’ case. Specifically, he highlighted the absence of any blood evidence, testimony from any witness who observed Ayers ingesting fentanyl, a confidential informant that could testify to Ayers’ drug usage, or bank records, among other pieces of potential evidence. Defense counsel also focused the jury's attention on the officers’ lack of bodycam footage, stating:

“[Defense counsel]: You all live in this community. You see officers, you see them with their body cameras on. You've probably been pulled over before. You see that the car is basically like a fighter jet, you know, just covered in technology. Cameras out the ying-yang, radar, all sorts of whiz-bang pow stuff. You didn't get any audio or video, which is pretty important if they're claiming that she made an admission. Especially important since they have the technology to do so. He could have drove [sic] by, pulled out his little body camera or put his little recording device—

“[The State]: Objection, Your Honor, assumes facts not in evidence. There was absolutely no question of Detective Babcock as to whether or not he had a body camera on or had a body camera.

“THE COURT: On that issue as to whether or not Detective Babcock had a video camera he could have turned on, sustained.”

The State addressed the issue of bodycam footage on rebuttal in the following way:

“[The defense] talk[s] about, well, how come we don't have body cameras. We don't need body cams, folks. I've been prosecuting these cases long before body cams, long before (inaudible). And I can guarantee you this, folks, if they were wearing body cams and those body cams showed that one or both of the officers were not being truthful, I guarantee you, you would have had that video being played by the defense going they're not telling you the truth. There's no body cams because there weren't any. And there's no questioning about them during—during direct examination or on cross. That issue never even came up, except in argument.”

The implication to be drawn from defense counsel's remarks was that bodycam footage may have shown exculpatory evidence because only Detective Babcock claimed to have heard Ayers mention fentanyl. Lieutenant Murphy and Martinez were unable to corroborate Babcock's contention.

Ayers takes the position on appeal that the prosecutor impermissibly offered their personal opinion by vouching for the officers and opining that any bodycam evidence would be irrelevant or inculpatory. Viewing the prosecutor's argument in its entirety, we do not share Ayers’ interpretation.

The Kansas Supreme Court has consistently held that when defense counsel creates an inference that the State's case is deficient as a result of its failure to admit a certain piece of evidence, it is well within the wide latitude that the State is afforded to rebut that inference by informing the jury that the defense likewise has the power to introduce evidence. State v. Arroyo, 321 Kan. 663, 671, 583 P.3d 909 (2026). In truth, the foundational rule is that a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defendant's argument alleging holes in the State's case. State v. Williams, 299 Kan. 911, 940, 329 P.3d 400 (2014), abrogated on other grounds by Stubbs, 320 Kan. 568; State v. Peppers, 294 Kan. 377, 397, 276 P.3d 148 (2012) (courts grant prosecutors considerable latitude in discussing weaknesses they identify in the defendant's theory of the case).

We found a useful guide in State v. Killings, 301 Kan. 214, 231-33, 340 P.3d 1186 (2015). In that case, defense counsel's closing argument included the itemization of multiple pieces of evidence the State could have procured but did not present—including photographs, DNA comparisons, cell phone records, and witness testimony. Counsel intimated that the evidence was withheld because it did not fit the State's theory of the case. In rebuttal, the prosecutor stated that every item admitted at trial was presented by the State and that it was not, nor did it have reason to, conceal anything from the jury. The Kansas Supreme Court held the comments were not outside the wide latitude the prosecutor is allowed in discussing evidence. The court further determined that the prosecutor could have even permissibly gone one step further and explicitly noted that the defense had the ability to present the missing evidence it identified as damaging to the State's case. 301 Kan. at 233-34. We decline to find that the challenged portion of the State's closing argument amounts to prosecutorial error.

Ayers’ second contention within this issue is that the following segment of the State's rebuttal closing illustrates that it exceeded the wide latitude it enjoys by commenting on Babcock's credibility, particularly his testimony that Ayers mentioned fentanyl:

“Now, let's talk about this supposed admission. You heard something that they all agree on. Mary Martinez, Detective Babcock, and Captain Murphy. You heard something that they all agree on. They all agree that they were all in Ms. Ayers’ presence, that they were surrounding her, okay. But what you did not hear them agree on was hearing Ms. Ayers admit to the possession of Fentanyl. The only person who heard that was Detective Babcock. Mary Martinez, Captain Murphy didn't hear that.

“Don't you think that's odd that she says this in the presence of three people who are investigating whether she's guilty of a crime and only one of them hears it? Don't you think that's weird? Don't you think that's inconsistent?

․

“Well, you heard the State come up here and tell you she told the officers it was Fentanyl and that is the p[er]fect way to illustrate to you the mistakes the State is making and that you can see as the juror. Only one officer said that they heard her admit to the officer it was Fentanyl. So right there they told you something that was not true. Captain Murphy didn't hear the Fentanyl comment. So you just heard a straight false piece of information from the State of Kansas. And that's incredibly important when you're talking about a substance that you cannot detect with the naked eye.”

During rebuttal, the prosecutor addressed these comments as follows:

“Did she make admissions to both—I'm sorry, to Detective Babcock and to Ms. Martinez about there being burnt foil? Yes. Did she tell Detective Babcock that the burnt foil had Fentanyl? Yes. And the straws that were in there tested positive for Fentanyl. So for Detective Babcock to have made this up, boy, talk about—with that type of luck, he should go play bingo or the lottery. Because Detective Babcock, the officer who pulled up, magically can pull something out of the air and go, I think she's going to say it's got Fentanyl in it. Well, lo and behold what does it have? It's the Fentanyl. What are the chances of that, folks, really?”

We are not persuaded that the prosecutor's insistence that it was unlikely for Babcock “to have made this up” amounted to error. The statements properly countered defense counsel's assertion that Babcock fabricated the claim that Ayers mentioned the presence of fentanyl. The prosecutor merely clarified for the jury that it would be extraordinary for Detective Babcock to spin a yarn that, of all the controlled substances available, he heard Ayers acknowledge being in possession of fentanyl, and was then fortunate enough to have his fabrication corroborated by forensic testing that revealed the presence of fentanyl. It was the State's position that if the detective was charmed enough to enjoy such remarkable measures of luck, then he should participate in activities that might be financially lucrative for him. Prosecutors enjoy wide latitude in crafting closing arguments, including the ability to make reasonable inferences based on the evidence and to address the weaknesses of the defense. State v. Anderson, 318 Kan. 425, 437, 543 P.3d 1120 (2024). The prosecutor did not exceed those boundaries in Ayers’ case.

Affirmed.

Isherwood, J.: