State v. Bowser

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NOT DESIGNATED FOR PUBLICATION

No. 117,952

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHARLES D. BOWSER,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed
September 21, 2018. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BRUNS and GARDNER, JJ.

PER CURIAM: Charles D. Bowser appeals following his convictions for aggravated
robbery, aggravated burglary, and criminal possession of a firearm. Bowser argues: (1)
There was insufficient evidence to support his aggravated burglary conviction, (2) the
district court erred in instructing the jury in several respects, (3) the prosecutor committed
error during closing argument, and (4) the cumulative effect of the alleged errors
deprived him of a fair trial. For the reasons stated below, we affirm.


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FACTS

On the evening of January 18, 2015, Wyandotte County Police Detective Ryan
Fincher was dispatched to an apartment in Kansas City, Kansas, following a report of an
armed robbery. Upon arrival, Fincher made contact with the victims, Samuel Sims and
his fiancée, Amy Brady. Fincher spoke with Sims, who advised that he and Brady were in
their bedroom when he heard a knock at the door. Sims stated that when he looked out
the peep hole, he saw an individual who he knew as "Ten or Lil Ten." Sims explained
that Ten was a cousin of an acquaintance named Mikey and that he had been around Ten
on three prior occasions. Sims stated that when he opened the door, Ten entered the
apartment, pointed a handgun at him, and demanded money. Sims described Ten as a
slim black male with a dark complexion, 6 feet tall, 150 pounds, and dressed in all black.
Sims also stated that a second individual entered the apartment with Ten. Sims described
this person as a black male with a dark complexion, about 6' 2'', 230 pounds, about 30
years old, and dressed in all black. Sims told Brady to retrieve the money from under
their mattress and bring it out to the men. Sims stated that the second man took the gun
from Ten and used it to hit Sims in the head. Sims said that Brady, who was naked, ran
out of the apartment and the two robbers followed her. Sims then heard a gunshot and
called 911 to report that his girlfriend might have been shot.

Detective Fincher also spoke with Brady, who was emotional and upset. Brady
stated that she was in the bedroom when she heard Sims respond to the knock at the door.
Brady heard male voices and heard Sims request the money from under the mattress.
Brady said that she recognized the men from the neighborhood. She described the first
suspect—who Sims identified as Ten—as a tall black male in his late teens or early 20s,
dressed in all black and wearing a hoodie and beanie. Brady described the second suspect
as a shorter black male in his 30s or 40s, dressed in all black and wearing a hoodie and
beanie. Brady stated that the second suspect's hood was up and she could not see his face
very well. Brady reported that in addition to the money from under the mattress, the men
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also took a shotgun and Sims' wallet. Brady said that after running out of the apartment,
she heard a gunshot and hid alongside the apartment building.

Sims later learned that Ten's real name was Charles Bowser and reported this
information to Detective Fincher. Fincher obtained a photograph of Bowser and placed it
in a photographic lineup with five other individuals. Sims and Brady each separately
identified Bowser as the first suspect, who Sims had identified as Ten. Sometime
thereafter, Sims contacted Fincher to report that he had seen a picture of the second
suspect online and learned that his name was Dyron King. Sims subsequently identified
King as the second suspect in a photographic lineup. When presented with this same
photographic lineup, Brady did not identify King as the second suspect.

The State charged Bowser with one count each of aggravated robbery, aggravated
burglary, and criminal possession of a firearm. The State charged King with one count
each of aggravated robbery, aggravated burglary, aggravated battery, and criminal
possession of a firearm.

The cases were consolidated for trial, where the State presented evidence from law
enforcement, Sims, and Brady. Sims identified Bowser as the man he knew as Ten. Sims
explained that his acquaintance, Mikey, was Ten's cousin. Sims said that he had smoked
marijuana with Ten on a couple of occasions before January 18, 2015. Sims testified that
he recognized Ten right away when he looked through the peep hole and that when he
opened the door, Ten came inside, pulled out a gun, and demanded money. Sims said he
thought it was a joke at first but realized it was not after Ten threatened to shoot him and
when the second suspect, who Sims did not know, came inside. Sims then told Brady to
bring the money from under the mattress in the bedroom and give it to the men. Sims said
that in addition to the money from the mattress, Brady also gave the men her purse and
Sims' wallet. At some point, Ten handed the gun to the second suspect, who ultimately
hit Sims in the head with it. Sims identified King as the second suspect. Sims noted that
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while King was pointing the gun at him, Ten went through the kitchen cabinets searching
for more money. Sims admitted that he had smoked marijuana earlier that night but
claimed it did not affect his ability to provide information to Detective Fincher or his
memory of the evening's events.

Brady testified that both robbers wore dark baggy clothing and that she could tell
one of the men was black but did not recognize him at that time. Brady stated that she got
a good look at the first suspect's face when she handed him her purse and Sims' wallet.
Brady described the first suspect as in his teens or early 20s with a dark skin tone and
bright, white, beady eyes. Brady testified that he later came into her bedroom and took a
shotgun from her. Brady identified this man as Bowser. Brady stated that she had
difficulty recalling for the police what had happened that night because she was scared
and confused. Brady admitted to smoking marijuana a couple of hours before the robbery
but claimed that it did not affect her ability to see or recall certain details about Bowser's
face. Brady testified that she did not recognize King.

The only witness Bowser called to testify was his mother, Tracy Rowland. She
testified that Bowser was not in Kansas on January 18, 2015, because he was in Texas
from January 15 to January 22. Rowland admitted that she did not give this information
to the police after Bowser's arrest for crimes occurring on January 18, 2015.

The jury found Bowser guilty as charged and found King not guilty of all charges.
The district court sentenced Bowser to a controlling prison sentence of 120 months with a
postrelease supervision term of 36 months. Bowser timely appeals.

ANALYSIS

Bowser raises four issues on appeal. First, Bowser argues that the evidence
presented at trial was insufficient to support his conviction for aggravated burglary.
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Second, Bowser claims the district court erred in instructing the jury in several respects.
Third, Bowser alleges that the State committed prosecutorial error during closing
arguments. Fourth, Bowser argues that the cumulative effect of these alleged errors
deprived him of a fair trial.

1. Sufficiency of the evidence

Bowser argues the evidence presented at trial was insufficient to support his
aggravated burglary conviction. "'When the sufficiency of the evidence is challenged in a
criminal case, this court reviews the evidence in a light most favorable to the State to
determine whether a rational factfinder could have found the defendant guilty beyond a
reasonable doubt.' [Citation omitted.]" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915
(2016). "'In making a sufficiency determination, the appellate court does not reweigh
evidence, resolve evidentiary conflicts, or make determinations regarding witness
credibility. [Citations omitted.]'" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).
It is only in rare cases where the testimony is so incredible that no reasonable fact-finder
could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v.
Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

The State charged Bowser with aggravated burglary under K.S.A. 2014 Supp. 21-
5807(b), which states in relevant part: "Aggravated burglary is, without authority,
entering into or remaining within any building . . . in which there is a human being with
intent to commit a felony, theft or sexually motivated crime therein." The phrases
"entering into" and "remaining within" refer to two separate factual situations. These
phrases constitute alternative means of committing the crime of aggravated burglary.
"The entering into element is satisfied when the evidence shows a defendant crossed the
plane of a building's exterior wall. In contrast, the remaining within element refers to a
defendant's presence in the building's interior after entry has occurred." State v. Daws,
303 Kan. 785, 789, 368 P.3d 1074 (2016).
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To find Bowser guilty of aggravated burglary, the district court instructed the jury
that the State must prove the following elements: (1) that Bowser entered into or
remained within Sims' and Brady's apartment; (2) that Bowser did so without authority;
(3) that Bowser did so with the intent to commit aggravated robbery therein; (4) that at
the time there was a human being inside; and (5) that this act occurred on or about
January 18, 2015, in Wyandotte County, Kansas.

Brady testified that she did not give either suspect permission to be in her
apartment. But Sims testified that when he looked through the peep hole, he recognized
Ten/Bowser right away and opened the door, inviting him into the apartment. Although
Sims admitted that Bowser initially had permission to enter the apartment, Sims testified
that Bowser no longer had permission to be there after pulling the gun. Specifically, Sims
testified: "[O]nce the gun was pulled, I don't want anybody inside so I was trying to
hurry up and get 'em out of there." As a result, the State relied on the "remaining within"
element during its opening statement and closing argument.

"The paradigmatic example of remaining within may occur when (a) a defendant's
initial entry into a building was authorized; (b) authority is later withdrawn; and (c)
defendant nevertheless stays inside the building." State v. Gutierrez, 285 Kan. 332, 337,
172 P.3d 18 (2007). Bowser argues the State failed to show that Sims or Brady ever
affirmatively asked him to leave the apartment. For support, Bowser primarily relies on
Gutierrez, 285 Kan. 332, and State v. Mogenson, 10 Kan. App. 2d 470, 701 P.2d 1339
(1985). In both of these cases, the defendants initially had consent to enter a residence but
were later expressly told to leave. See Gutierrez, 285 Kan. at 339 (evidence sufficient to
satisfy "remaining within" element of aggravated burglary where victim asked defendant
to leave apartment); Mogenson, 10 Kan. App. 2d at 473 (trial court properly instructed
the jury on "remaining within" element where victim demanded defendant leave house).

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But Bowser cites no authority for his assertion that withdrawal of authority must
be affirmative. Indeed, a conviction of even the gravest offense can be based entirely on
circumstantial evidence. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). While
neither Sims nor Brady testified that they ever demanded or requested that the two
robbers leave the apartment, their failure to do so cannot be regarded as giving the
robbers consent to remain inside. See State v. Carr, 300 Kan. 1, 168-69, 331 P.3d 544
(2014) (withdrawal of consent in aggravated burglary case may be proven by
circumstantial evidence of firearms and threats uttered by defendants even in absence of
explicit demands or requests to leave), reversed on other grounds by Kansas v. Carr, 577
U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). Sims testified that although he
consented to Bowser's initial entry into the apartment, Bowser no longer had permission
to be there after he pulled a gun. Sims also testified that Bowser demanded money and
threatened to shoot him. When viewed in a light most favorable to the State, there was
sufficient evidence for a rational jury to have found Bowser guilty of aggravated
burglary.

2. Jury instructions

Bowser argues the district court committed three errors in its instructions to the
jury. First, Bowser claims the court erroneously instructed the jury on the requisite
culpable mental state for the crime of aggravated burglary. Second, Bowser alleges the
court improperly instructed the jury on the mental state required for aiding and abetting.
Third, Bowser contends the court erred by failing to provide the jury with an eyewitness
identification instruction.

Bowser did not object to the instructions as given or request any additional
instructions. When jury instructions are challenged for the first time on appeal, this court
reviews the instructions for clear error. See K.S.A. 2017 Supp. 22-3414(3). This requires
a two-step analysis. First, we must determine whether there was an error in the
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instruction, which is a question of law subject to unlimited review. If an error exists, then
we must determine whether reversal is required. To reverse, we must be firmly convinced
that the jury would have reached a different verdict had the error not occurred. This
requires a de novo determination based on a review of the entire record. State v. Williams,
295 Kan. 506, 515-16, 286 P.3d 195 (2012).

In reviewing for clear error, we first consider whether the instruction was legally
and factually appropriate, using an unlimited review of the entire record. State v. Louis,
305 Kan. 453, 457-58, 384 P.3d 1 (2016). Legal appropriateness is whether the
instruction fairly and appropriately states the applicable law. Like all questions of law,
this court employs an unlimited standard of review. To determine whether the jury
instruction was factually appropriate, this court determines if there was sufficient
evidence, viewed in the light most favorable to the requesting party, to support a factual
basis for the instruction. State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

a. Culpable mental state for aggravated burglary

Bowser argues the district court failed to properly instruct the jury on the mental
state required to convict him for the crime of aggravated burglary. Bowser acknowledges
that the instruction provided to the jury listing the elements of aggravated burglary
correctly identified it as a crime that had to be committed with the specific intent to
commit the crime of aggravated robbery. But Bowser claims the court erred by also
providing a conflicting instruction which advised the jury that the State was required to
prove that he "knowingly" committed the crime of aggravated burglary.

The crime of aggravated burglary is defined by statute as "without authority,
entering into or remaining within any building . . . in which there is a human being with
intent to commit a felony, theft or sexually motivated crime therein." (Emphases added.)
K.S.A. 2014 Supp. 21-5807(b). Consistent with the statute, instruction No. 20 stated:
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"The defendant Charles Bowser is charged in Count II with Aggravated
Burglary. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant, Charles Bowser or another for whose conduct he was
criminally responsible entered into or remained in a building, to-wit:
residence located at . . . Kansas City, KS.
"2. The defendant Charles Bowser did so without authority.
"3. The defendant Charles Bowser did so with the intent to commit Aggravated
Robbery therein.
"4. At the time there was a human being to-wit; Samuel Sims and Amy Brady in
the residence.
"5. This act occurred on or about the 18th day of January, 2015, in Wyandotte
County, Kansas.
"The elements of Aggravated Robbery are set forth in Instruction No. 18."

This instruction was followed by instruction No. 21, which stated:

"The State must prove that the defendant Charles Bowser committed the crime of
Aggravated Burglary, knowingly.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about."

Again, Bowser acknowledges that instruction No. 20 properly stated the elements
of the crime of aggravated burglary, including the specific intent to commit the felony of
aggravated robbery. But Bowser claims that instruction No. 21 was not legally
appropriate because it conflicted with instruction No. 20 by erroneously informing the
jury that the State only had to prove he knowingly committed the crime of aggravated
burglary.

"[A]n instruction must always fairly and accurately state the applicable law, and
an instruction that does not do so would be legally infirm." Plummer, 295 Kan. at 161. To
decide whether instruction No. 21 was legally appropriate, we must determine whether
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the instruction correctly stated the required culpable mental state for the crime of
aggravated burglary. Instruction No. 21 appears to be based on the pattern instruction
pertaining to culpable mental state, PIK Crim. 4th 52.010 (2015 Supp.), which reads in
relevant part:

"The State must prove that the defendant (committed the crime) (insert
defendant's act that is the element of the crime which requires a particular culpable
mental state) insert one of the following:
 intentionally.
or
 knowingly.
or
 recklessly."

As reflected by the use of parenthesis, the PIK instruction identifies two options to
choose from in giving this instruction. The Notes on Use for this instruction, along with
the corresponding statute, explain the circumstances under which each of the options
should be used:

 The first parenthetical option is used (1) when the definition of a crime provides a
culpable mental state for the commission of a crime, without distinguishing among
the material elements, unless a contrary purpose plainly appears; and (2) when the
definition of the crime does not provide a culpable mental state at all, unless the
definition of the crime charged plainly dispenses with a culpable mental state.
Notes on Use, PIK Crim. 4th 52.010 (2017 Supp.); K.S.A. 2017 Supp. 21-5202(d),
(e), and (f).

 The second parenthetical option is used when the definition of the crime provides
a culpable mental state only for a particular element or elements. In such a case,
"the prescribed culpable mental state shall be required only as to [the] specified
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element or elements, and a culpable mental state shall not be required as to any
other element of the crime unless otherwise provided." K.S.A. 2014 Supp. 21-
5202(g).

See Notes on Use, PIK Crim. 4th 52.010 (2017 Supp.).

As applied to the facts here, the definition of aggravated burglary specifies a
culpable mental state for only one particular element: Bowser remained in an occupied
building without permission with the intent to commit a felony therein. K.S.A. 2014
Supp. 21-5807(b). Because aggravated burglary requires a culpable mental state only for
a particular element, the district court should have used the second parenthetical option in
instruction No. 21.

The State suggests that using the first parenthetical option in instruction No. 21
was proper because "the State opted to prove all elements of aggravated burglary (other
than the intent to commit the underlying felony) 'knowingly,' consistent with K.S.A. 21-
5202(d)." But as noted above, aggravated burglary requires the culpable mental state
"with intent" for the element to "to commit a felony, theft or sexually motivated crime
therein." See K.S.A. 2014 Supp. 21-5807(b). According to K.S.A. 2017 Supp. 21-
5202(g), this mental state applies only to this particular element and no mental state is
required for any other element of the offense because the aggravated burglary statute
does not provide otherwise.

Notably, aggravated burglary was previously defined as "knowingly and without
authority entering into or remaining within any building . . . in which there is a human
being, with intent to commit a felony, theft or sexual battery therein." (Emphasis added.)
K.S.A. 21-3716. The Legislature omitted the word "knowingly" from the aggravated
burglary statute in effect at the time of Bowser's crimes. See K.S.A. 2014 Supp. 21-
5807(b). The Legislature's omission indicates that it is no longer required that a defendant
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knowingly enter a building without authority in order to commit an aggravated burglary.
See State v. Zimbelman, No. 111,759, 2015 WL 4577693, at *5 (Kan. App. 2015)
(unpublished opinion) ("[T]he only apparent requirement of intent in K.S.A. 2012 Supp.
21-5807[b] is that the defendant act with intent to commit a felony, theft, or sexually
motivated crime once the defendant is inside the building."). Thus, when the district court
instructed the jury that the State was required to prove Bowser knowingly committed the
crime of aggravated burglary, this was an incorrect statement of the law. Because
instruction No. 21 was not legally appropriate, the district court erred in so instructing the
jury.

To find this error reversible, however, we must be firmly convinced that the jury
would have reached a different verdict had instruction No. 21 correctly stated the mental
state applicable to aggravated burglary. Whether instructional error is clearly erroneous
requires an unlimited review of the entire record. Bowser has the burden to establish the
degree of prejudice necessary for reversal. See Williams, 295 Kan. at 516.

Bowser claims that the jury could have reached a different verdict if it had been
given the appropriate legal standard. Bowser asserts that the erroneous instruction diluted
the State's burden of proof and could have reasonably led the jury to convict based on a
finding that Bowser merely acted knowingly rather than intentionally. In support of this
assertion, Bowser notes that Sims testified he was acquainted with Ten and invited him
inside the apartment. Given this relationship, Bowser suggests the jury reasonably could
have concluded that Bowser was merely aware of the other suspect's plan to rob Sims and
Brady, rather than concluding that Bowser intended to rob Sims and Brady or assist the
other suspect in doing so.

Bowser's suggestion that the jury could have convicted him of aggravated burglary
based on a finding that he merely knew about the other suspect's plan is completely at
odds with the evidence presented at trial establishing that Bowser was an active
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participant in the crime. The State presented evidence that immediately upon entering
Sims' apartment, Bowser pointed a gun at Sims and demanded money. The State also
presented evidence that Bowser made threats, rifled through drawers and cabinets in the
kitchen, and took money and other items belonging to Sims and Brady. And, as Bowser
readily acknowledges, instruction No. 20 set forth the appropriate legal standard for the
charge of aggravated burglary. For all of these reasons, we are not firmly convinced that
the jury would have reached a different verdict had the court used the second
parenthetical option in instruction No. 21.

b. Culpable mental state for aiding and abetting

Bowser argues the district court erred in instructing the jury on the theory of
aiding and abetting by informing the jury that it could convict him of aiding and abetting
by finding that he did so knowingly rather than intentionally.

Instruction No. 18 defined the elements of aggravated robbery and required the
State to prove in relevant part that "the defendant, Charles Bowser or another for whose
conduct he was criminally responsible, knowingly took property . . . from the presence of
Samuel Sims and Amy Brady." Instruction No. 19 provided:

"The State must prove that the defendant Charles Bowser committed the crime of
Aggravated Robbery, knowingly.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about."

But the district court also instructed the jury that it could find Bowser guilty of the
aggravated robbery under the theory of aiding and abetting. Specifically, the court issued
instruction No. 32 (based on PIK Crim. 4th 52.140) on aiding and abetting culpability:

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"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime."

The language of the instruction conforms with K.S.A. 2017 Supp. 21-5210(a) ("A person
is criminally responsible for a crime committed by another if such person, acting with the
mental culpability required for the commission thereof, advises, hires, counsels or
procures the other to commit the crime or intentionally aids the other in committing the
conduct constituting the crime.").

Bowser does not challenge the wording of any of these instructions. Instead,
Bowser argues that when read as a whole, the required mental state of knowingly in the
aggravated robbery instruction effectively lowered the required mental state (from
intentionally to knowingly) in the aiding and abetting aggravated robbery instruction.

When we review claimed instructional error, "we examine the instructions as a
whole, rather than isolate any one instruction." State v. Ellmaker, 289 Kan. 1132, 1139-
40, 221 P.3d 1105 (2009). In addition, we presume the jury followed the instructions.
State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). Applying these rules, we are
not persuaded by Bowser's claim that the district court lowered the requisite mental state
for aiding and abetting from intentionally to knowingly simply by instructing the jury on
the requisite mental state for the crime of aggravated robbery. Instruction No. 32 clearly
conveyed to the jury that Bowser, to be found guilty for a crime committed by another,
must have intentionally aided in the commission of the crime. See State v. Potts, 304
Kan. 687, 703-04, 374 P.3d 639 (2016) (unnecessary to add definition of intentional
conduct to instruction on aiding and abetting liability). The instruction also clearly
conveyed to the jury that Bowser, to be found guilty for a crime committed by another,
must have the required mental culpability for the crime at issue, which in this case is
committing the crime of aggravated robbery knowingly. Bowser makes no claim that
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instructions 18 and 19, defining the elements of aggravated robbery and the mental state
required for aggravated robbery, were incorrect statements of the law.

Instructions 18, 19, and 32 accurately state Kansas law and did not mislead or
confuse the jury about the level of intent a defendant must have to be found guilty under
an aiding and abetting theory. Bowser's claim of error necessarily fails.

c. Eyewitness identification instruction

Bowser argues the district court erred when it failed to give the jury an instruction
regarding the various factors jurors should consider in weighing eyewitness reliability. In
particular, Bowser asserts an eyewitness identification instruction should have been given
because there were serious questions about the reliability of the eyewitness identification
by Sims and Brady. Bowser claims these identifications were a critical part of the State's
case and the jury should have been instructed on factors to consider when evaluating their
testimony.

The eyewitness identification instruction Bowser argues should have been given is
found in PIK Crim. 4th 51.110 (2017 Supp.). This PIK instruction is based on State v.
Hunt, 275 Kan. 811, 69 P.3d 571 (2003), and instructs the jury factors to consider in
weighing the reliability of eyewitness testimony:

"1. The opportunity the witness had to observe. This includes any physical condition
which could affect the ability of the witness to observe, the length of the time of
observation, and any limitations on observation like an obstruction or poor lighting;
"2. The emotional state of the witness at the time including that which might be caused
by the use of a weapon or a threat of violence;
"3. Whether the witness had observed the defendant(s) on earlier occasions;
"4. Whether a significant amount of time elapsed between the crime charged and any
later identification;
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"5. Whether the witness ever failed to identify the defendant(s) or made any
inconsistent identification;
"6. Whether there are any other circumstances that may have affected the accuracy of
the eyewitness identification." PIK Crim. 4th 51.110 (2017 Supp.).

The Notes on Use accompanying PIK Crim. 4th 51.110 (2017 Supp.) state:

"This instruction should be given whenever the trial judge believes there is any
serious question about the reliability of eyewitness identification testimony. State v.
Willis, 240 Kan. 580, 585, 731 P.2d 287 (1987). However, unless there is evidence which
causes the trial court to question the reliability of the eyewitness identification, this
instruction should not be given. State v. Harris, 266 Kan. 270, 278, 970 P.2d 519
(1998)."

We first must decide whether the giving of an eyewitness identification instruction
at Bowser's trial would have been legally and factually appropriate, employing an
unlimited review of the entire record. See Louis, 305 Kan. at 457-58. There is no question
that PIK Crim. 4th 51.110 (2017 Supp.) is a correct statement of the law. See Plummer,
295 Kan. at 163. But the parties disagree on whether such an instruction was warranted
under the facts here. Bowser argues that the district court should have instructed the jury
on eyewitness identification because Sims' and Brady's eyewitness identification was a
critical part of the State's case and there was serious question about the reliability of their
identification. The State concedes that eyewitness identification was a critical part of this
case but claims there was no serious question about the reliability of the eyewitness
identification.

Our Supreme Court has held that an eyewitness identification instruction is not
necessary when the witness is familiar with the person being identified. See, e.g., State v.
Trotter, 280 Kan. 800, 808-09, 127 P.3d 972 (2006) (no instruction necessary where
defendant had been to witness' house and was not a stranger to witness); State v. Mann,
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274 Kan. 670, Syl. ¶ 2, 56 P.3d 212 (2002) ("Where the witness personally knows the
individual being identified, the cautionary eyewitness identification instruction is not
necessary and the accuracy of the identification can be sufficiently challenged through
cross-examination."); State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001) (eyewitness
identification instruction "contemplate[s] an eyewitness who does not know the
defendant personally"). In this case, the evidence shows that Sims personally knew
Bowser prior to the robbery. Sims testified that he knew Ten from around the apartment
complex and that they had smoked marijuana together on more than one occasion before
the robbery. Sims further testified that he immediately recognized Ten when he looked
through the peep hole of the door. Although Sims did not know Ten's legal name, he
immediately identified Ten as one of the robbery suspects to the responding officers that
night. Sims later identified Bowser as Ten in a six-person photographic lineup and at
trial. Because the evidence shows that Sims personally knew Bowser, the individual
being identified, the cautionary eyewitness identification instruction was not necessary in
this case. Accordingly, the district court did not err in failing to give an eyewitness
identification instruction with respect to Sims' identification of Bowser.

Nevertheless, Bowser argues the instruction was necessary for the jury to evaluate
Brady's identification because she gave inconsistent testimony regarding whether she had
ever seen the suspects prior to the night of the robbery. As earlier stated, a district court
should give a PIK Crim. 4th 51.110 (2017 Supp.) instruction "'in any criminal action in
which eyewitness identification is a critical part of the prosecution's case and there is
serious question about the reliability of the identification.' [Citations omitted.]" State v.
Duong, 292 Kan. 824, 836, 257 P.3d 309 (2011). "Evidence calling reliability into
question is key." 292 Kan. at 836. Brady's identification of Bowser was at least
corroborating of Sims' identification, if not critical. For this reason, we will take up
Bowser's claim that there was a serious question about the reliability of Brady's
identification as it pertained to Bowser.

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Our Supreme Court has identified five factors to determine whether there is a
serious question about the reliability of an eyewitness identification:

"'(1) the opportunity of the witness to view the defendant at the time of the crime, (2) the
witness' degree of attention, (3) the accuracy of the witness' prior descriptions of the
criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.'" Duong, 292 Kan. at 836
(quoting Saenz, 271 Kan. at 354).

Applying these factors to Brady's eyewitness identification, we find the evidence
fails to establish any serious question about the reliability of Brady's identification of
Bowser as one of the men who robbed her and Sims. Although Brady gave conflicting
statements about whether she recognized or knew the two suspects prior to the robbery,
she testified that she had the opportunity to look at the face of the man she later identified
as Bowser when she handed him her purse and Sims' wallet. Brady saw Bowser again
when he came into her bedroom and took the shotgun from her. On the night of the
robbery, Brady described Bowser as a tall black male in his late teens or early 20s,
dressed in all black, and wearing a hoodie and beanie. A few weeks after the robbery,
Brady identified Bowser in a photographic lineup. Brady also identified Bowser at trial
and described the man who robbed her as a black male in his teens or early 20s with a
dark complexion and bright, white, beady eyes. Brady agreed that on the night of the
robbery, she was scared and confused and had smoked marijuana. But Brady denied that
her ability to see or recall some details about Bowser's face was affected. Detective
Fincher testified that Brady was upset when he spoke with her but that she understood his
questions, she responded appropriately, and she did not appear to be intoxicated. There
was no testimony regarding Brady's level of certainty about the identification and no
other suggestion in the record that Brady expressed any uncertainty. We find no serious
question about the reliability of Brady's identification. As a result, the district court did
not err in failing to give an eyewitness identification instruction with respect to Brady's
identification of Bowser.
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3. Prosecutorial error

Bowser argues that the prosecutor committed error during closing argument by
using a misleading analogy that improperly sought to define the "beyond a reasonable
doubt" standard and diluted the State's burden of proof. Although Bowser did not object
to the prosecutor's statements at trial, a contemporaneous objection is not necessary to
preserve a claim of prosecutorial error based upon comments made during closing
argument. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012).

Our review of a claim of prosecutorial error in closing arguments requires a two-
step process:

"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." State v. Sherman, 305 Kan. 88, Syl. ¶ 7, 378
P.3d 1060 (2016).

Prosecutors are given wide latitude in language and manner or presentation of
closing arguments, so long as the argument is consistent with the evidence. State v. Pabst,
268 Kan. 501, 507, 996 P.2d 321 (2000). But "[a] prosecutor may not misstate the law
applicable to the evidence presented, may not offer a personal opinion about witness
credibility, and may not shift the burden of proof to the defendant." State v. Pribble, 304
Kan. 824, Syl. ¶ 6, 375 P.3d 966 (2016). It is also improper for the prosecutor to misstate
the legal standard of the burden of proof. State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229
(2010).

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Bowser complains about the following statements made during the rebuttal portion
of the State's closing argument:

"One of the things about being a juror we talked about is you have to check your
personal bias at the door. You don't have to like the victims, you don't have to like [their]
lifestyle in order to find beyond a reasonable doubt that these two defendants committed
the crimes as charged. That's not an element. And I would ask you to check any personal
bias when you walk into that jury room and make your decision based on the elements of
the law provided to you by the court and the evidence presented here in court.
"Talked about the situation being chaotic. You know, consider big events. Most
people have been to a wedding in their life and everybody at weddings, there's a lot of
things going on, a lot of people there, a lot of different details. Some people are wanting
to see the bride's dress and focusing on that, some people are looking at the flower
arrangements and admiring them. Some people, like my husband, would be looking at the
program trying to figure out how long it's going to take before he can get out of there.
Some other people may be focused on overpowering perfume of the person sitting next to
them. In focusing on those different things like the dress, the perfume, the program, the
flowers, they may miss other details. Person looking at the program may not notice the
rhinestones on the bride's shoes. That doesn't mean those rhinestones weren't present, it
just means that person didn't notice them. Missing some of those details doesn't mean that
the wedding didn't happen, it doesn't mean that the bride and groom weren't there, it just
means that different people notice different things."

Bowser compares these comments to a "puzzle analogy" that implicates the burden
of proof. Our Supreme Court has held that such analogies are "improper and to be
avoided." See Sherman, 305 Kan. at 96, 117 (prosecutor analogized concept of
reasonable doubt to picture of Mount Rushmore with Theodore Roosevelt's face
removed); see also State v. Stevenson, 297 Kan. 49, 52-55, 298 P.3d 303 (2013)
(prosecutor noted that although one letter was missing from "Wheel of Fortune" sign,
there was no doubt about what letter was needed to complete title). Bowser claims that
the prosecutor's comments about missing pieces of information at a wedding told the jury
that it could use a diluted burden of proof in deciding the case and implied that even if the
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State's case was lacking, the jury should find Bowser guilty of the crimes despite any
reasonable doubt.

Bowser's comparison to the disapproved of comments made in Sherman and
Stevenson is inappropriate. The prosecutor's statements here in no way attempted to
define the concept of reasonable doubt, diminish the State's burden of proof, or otherwise
suggest to the jury that it might convict on anything less than proof beyond a reasonable
doubt. The prosecutor did not ask the jury to fill in any elements that needed to be proved
beyond a reasonable doubt or otherwise misstate the appropriate standards. In fact, the
prosecutor referred to and properly stated the burden of proof twice in her initial closing
argument.

A prosecutor's wide latitude in closing arguments includes "the freedom to craft an
argument that includes reasonable inferences based on the evidence." Pabst, 268 Kan. at
507. Counsel for both defendants cross-examined Sims and Brady extensively about
inconsistencies in their prior statements and testimony. Detective Fincher testified that it
was not uncommon for witnesses to a crime to make inconsistent statements. During
closing argument, counsel for both defendants challenged the credibility of Sims and
Brady based on their inconsistent statements and testimony. When read in context, the
prosecutor's comments were made in an attempt to provide a reasonable inference
explaining why Sims and Brady may not have had the same recollection of the robbery or
seen exactly the same things. As a result, the prosecutor's statements did not fall outside
the wide latitude afforded to prosecutors in closing arguments and thus did not constitute
error.

4. Cumulative error

Finally, Bowser argues that the cumulative effect of the errors alleged above
deprived him of his constitutional right to a fair trial. When a party argues that the
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cumulative impact of alleged errors is so great that they result in an unfair trial, this court
aggregates all errors and, even if those errors individually would be considered harmless,
analyzes whether their cumulative effect is so great that they collectively cannot be
determined to be harmless. State v. King, 297 Kan. 955, 986, 305 P.3d 641 (2013). In
undertaking such an analysis, this court reviews the entire record and exercises unlimited
review. State v. Sean, 306 Kan. 963, 993, 399 P.3d 168 (2017).

Based on the analysis above, we found the district court erred by instructing the
jury on the requisite culpable mental state for the crime of aggravated burglary. A single
error, however, cannot constitute cumulative error. See State v. Williams, 299 Kan. 509,
566, 324 P.3d 1078 (2014). Accordingly, Bowser's claim of cumulative error necessarily
fails.

Affirmed.