State v. McGehee

Opinion

NOT DESIGNATED FOR PUBLICATION

No. 128,151

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CHRISTOPHER GLENN MCGEHEE, Appellant.

MEMORANDUM OPINION

Appeal from Riley District Court; GRANT D. BANNISTER, judge. Submitted without oral argument. Opinion filed August 28, 2026. Affirmed.

Reid T. Nelson, of Capital Appeals and Conflicts Office, for appellant.

David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Kris W.

Kobach, attorney general, for appellee.

Before CLINE, P.J., COBLE and PICKERING, JJ.

PER CURIAM: Christopher Glenn McGehee appeals his convictions in Riley County District Court for aggravated assault and criminal discharge of a firearm. McGehee contends the district court erred in admitting K.S.A. 60-455 evidence and in instructing the jury and claims the district court abused its discretion in refusing a defense continuance when the State sought to add new allegations just before trial. He argues that the State presented insufficient evidence that McGehee fired at a dwelling to support his conviction for criminal discharge of a firearm, and that the district court abused its discretion in refusing to order a mistrial after a prosecution witness testified about

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McGehee's protection from abuse order and in admitting evidence of an attempted suicide. Finally, McGehee argues that, if none of the claimed errors individually required reversal, the cumulative effect of the errors undermined his ability to obtain a fair trial.

On our review, we find none of McGehee's arguments ultimately persuasive and affirm his convictions for the reasons that follow.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

McGehee and Jane Doe (identified by use of a pseudonym) became acquainted in the fall of 2022 and within a month or two began a romantic relationship. McGehee and Doe agreed the relationship was casual. Doe was former military and McGehee was on active duty at that time and deployed overseas within a few months of the two meeting. According to Doe, the relationship took an uncomfortable turn for her during McGehee's deployment, with him seeking a more serious commitment and sending her frequent messages and gifts.

By February 2023, Doe suggested to McGehee that they pause their relationship, and during that video conversation, McGehee repeatedly punched himself in the face, only stopping when Doe threatened to end the call. As a result of McGehee's conduct, Doe relented and did not terminate the relationship, feeling pressured to remain in the relationship to prevent McGehee from inflicting harm on himself.

Over the course of the next few months, Doe became tired of what she called McGehee's emotional manipulation and she broke up with him in early May 2023. McGehee responded with a series of text messages in which he told her that he would kill himself, and it would be her fault, although McGehee denied sending these text

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messages. Doe was concerned that McGehee intended to commit suicide, and she contacted McGehee's battalion supervisor and tried to contact McGehee's parents on Facebook.

Days later, after Doe returned McGehee's apartment key and some of his belongings, Doe received a text message from McGehee that included a photo of a suicide note. Doe contacted McGehee's supervisors at Fort Riley and then called McGehee. Although he answered the call, he would not tell her where he was located but mumbled things like, "You don't love me. You're not here for me. Just let me go." McGehee later called her on his way to the hospital, telling her that he had attempted suicide by hanging, which he confirmed during his trial testimony. During the call, McGehee mentioned a package that he had mailed to Doe, instructing her not to open it. When the phone call ended, Doe drove home and retrieved the package. The package contained a note that read: "[I]f you're reading this, I am dead," along with various other items, including a journal. The last entry in the journal contained a plea for Doe not to break up with him and an accusation that, if Doe threw away the journal, it meant that she did not love him anymore.

After these events, Doe tried to work through the relationship with McGehee, explaining that she did not wish to renew a romantic relationship but that she cared about him and wanted him to get help. For the next few days, McGehee continued to send Doe text messages, saying that he would leave her alone but that he loved her.

McGehee had returned to Kansas, and on May 29, Doe was alone in her apartment when he began banging on her door. When she looked through the peephole, she saw McGehee standing in front of her door, holding a gun to his head. She was afraid that he might turn the gun on her if she opened the door, so she grabbed her cellphone and went into her bedroom.

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As McGehee pounded on Doe's apartment door, he drew the attention of her neighbor, and the neighbor went to her own front door and looked out the peephole. The neighbor heard the man yelling, aggressively and angrily. When she looked out into the hall, she observed a white male she did not know knocking on Doe's apartment door. As she watched, the man held a gun up to his head and told Doe that he was holding the gun to his head. Based on her observations of McGehee's actions, the neighbor also believed that Doe would have been harmed if she had opened her apartment door. Doe and her neighbor each separately called the police, believing the man was threatening.

The local 911 dispatch received several calls regarding the incident, and police responded to the scene. Once police officers arrived, one of them remained on the phone with Doe until McGehee surrendered. Doe never reported that McGehee had verbally threatened her, but she repeatedly stated that she was frightened. The dispatcher advised Doe to move away from the front door and remain in a bedroom. When Doe mistakenly believed that her bedroom door did not lock, the dispatcher advised her to use furniture to blockade the door, which she did. As the officers gathered to determine a plan of action, they heard a gunshot.

While she was speaking with the dispatcher, Doe also heard the gunshot, as did her neighbor. Doe initially thought the sound came from inside her apartment and feared that McGehee had killed himself until the dispatcher reassured her that he was still alive. Then Doe feared that McGehee was trying to get into her apartment, interpreting every noise as his attempt to do so. The dispatcher kept her updated on what the police could observe, reassuring her that McGehee was not breaking into her apartment.

Officers took up positions in the area to attempt to control the situation. One officer began speaking with McGehee in the stairwell. McGehee walked over to the railing at the third-floor stairwell, where he began to bang his head against the railing, loudly enough for Doe to hear inside her apartment. When McGehee approached the

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railing, he no longer held a gun. McGehee repeated that he wanted to speak with Doe before he killed himself or surrendered to the police. He repeatedly stated he wanted to kill himself and asked the officers to kill him. Ultimately, McGehee surrendered without talking to Doe. The officers located McGehee's gun on the doormat just outside Doe's apartment.

Another officer advised Doe of McGehee's arrest and took her statement. Doe appeared shaken, and reported that she believed McGehee might have held the gun to his head as a ploy to get her to open the door. She believed McGehee might have used the gun on her if she had opened the door, and said she feared for her life during the encounter. She also reported McGehee's earlier attempt at suicide two weeks before.

One officer drove McGehee directly to jail. At the jail, the officer advised McGehee of his rights, which McGehee waived and agreed to speak with the officer. McGehee told the officer that he went to Doe's apartment to drop off a backpack of mementos before driving up a hill to kill himself. McGehee admitted that he had a firearm and shot a round into the ceiling of the apartment complex. He also admitted that he held the gun to his head when he first arrived at Doe's apartment. McGehee did not have an answer when asked why he fired the gun in the hallway of Doe's apartment if he planned to kill himself in another location, or why he changed the position of the gun if he intended to shoot himself.

Procedural History

The State charged McGehee with criminal discharge of a firearm at an occupied dwelling and aggravated assault. After a preliminary examination hearing, the district court found probable cause to bind McGehee over for trial on both counts. After various pretrial motions and hearings, which will be discussed more fully below as needed to address the issues raised on appeal, the case went to jury trial.

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McGehee testified at trial, providing a different narrative of his relationship with Doe than she had provided. He acknowledged that the relationship had soured by May, but he claimed that his suicide attempts were genuine. He stated that he had previously attempted suicide in 2020, after he was severely injured in an airborne operation, along with isolation during the pandemic and the death of his beloved grandfather. On cross- examination, he admitted that the suicide attempt also coincided with the end of his marriage.

McGehee claimed he began to feel suicidal again on May 8, described the suicide attempt on May 17, and testified that he continued to feel suicidal until May 29, when he planned to go to the Konza Prairie and see a nice natural setting before he killed himself. He then intended to take a bag of keepsakes to Doe before driving to Scenic Hill and shooting himself. McGehee claimed that he changed his mind about going to Scenic Hill when he was at Doe's apartment and decided instead to kill himself in the hallway. McGehee maintained that his suicide attempts were genuine, and none of his attempts were intended to manipulate women. He disputed some of Doe's testimony regarding her attempts to end the relationship in February.

The jury ultimately convicted McGehee of both charged offenses. McGehee filed several posttrial motions, including a motion for judgment of acquittal on both offenses and a motion for a downward dispositional and/or durational sentencing departure. The court denied the motion for judgment of acquittal on the aggravated assault charge but reserved judgment on the criminal discharge of a firearm charge. At a subsequent hearing, the court also denied the motion for judgment of acquittal on the criminal discharge of a firearm count.

At sentencing, the district court denied the motion for a sentencing departure.

Because McGehee had no significant criminal history, he was classified with a criminal history score of I without objection. The court sentenced McGehee to a presumptive term

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of 12 months in prison followed by 12 months of postrelease supervision for criminal discharge of a firearm and a concurrent 12-month prison sentence for aggravated assault. The court ordered McGehee to pay $1,800 in restitution and to register as a violent offender under the Kansas Offender Registration Act (KORA).

McGehee filed a timely appeal.

ANALYSIS

McGehee raises multiple issues in his appeal, contesting his conviction as being the result of several claimed trial errors. We address each challenge in turn.

I. Did the district court abuse its discretion in admitting K.S.A. 60-455 evidence?

McGehee first appeals the district court's admission of certain evidence at trial. As background, when preparing for trial, the State discovered a protection from abuse (PFA) filing by another former romantic partner—we refer to her as Mary Major—against McGehee in April 2024, almost a year after the incidents underlying his charges, that bore similarity to some of Doe's allegations. Major claimed that on two different occasions, McGehee said that he was going to commit suicide when his relationship with Major did not go how he wanted. The State claimed that they only discovered the new information the week before McGehee's trial was to begin, and that they contacted defense counsel the same day. The State filed a motion to endorse Major as an additional witness the next day after the discovery, on May 9, 2024, which was four days before trial was scheduled to begin.

McGehee objected to the motion on three grounds: the late notice, lack of relevance, and that the new evidence was impermissible K.S.A. 60-455 evidence. The

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district court held a hearing to address the parties' arguments related to Major's testimony the Friday before trial. After hearing arguments, the court authorized the endorsement of the witness. The court ruled that the proffered evidence from Major did not constitute a civil wrong, in large part because a tort claim for emotional distress would require evidence of physical manifestations of the emotional distress. The court reserved ruling on the relevance of the evidence because the court did not know exactly what evidence the witness would present. The court concluded that the expected testimony's potential for prejudice did not outweigh its probative value.

Based on the court's ruling, McGehee requested a continuance to prepare a defense for this new evidence. Given the narrow scope of the new witness' testimony, the court denied the continuance, noting that the best source of information in support of a defense against the allegations was McGehee himself.

On appeal, McGehee challenges the district court's conclusion that the evidence was not governed by K.S.A. 60-455. Based on that argument, McGehee not only argues that the evidence should not have been admitted but also contends that the State failed to provide the statutorily required 10-day notice and the court erred in refusing a limiting instruction.

Preservation

During the hearing, McGehee's counsel clearly raised the applicability of K.S.A.

60-455 to Major's testimony and explicitly argued that admission of K.S.A. 60-455 evidence requires 10-day notice. On the last day of trial, defense counsel requested a limiting instruction related to evidence of McGehee's other suicide attempts, recognizing that the court had ruled that this evidence was not governed by K.S.A. 60-455.

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Just before Major was to testify at trial, the State requested a bench conference to confirm the scope of her testimony. The State announced its decision to abandon the evidence related to one occasion, April 14, and limit Major's testimony to the events of April 18. Based on this limitation of the evidence, the district judge stated:

"Okay. I have made my rulings on the 18th. I don't think we need to revisit them at this time. I think to whatever extent the defense wants an objection on the record it's been contained, but if it comes up, you can make such objections contemporaneously."

Defense counsel, however, did not interpose a contemporaneous objection to any specific testimony of Major or request a continuing or standing objection. But counsel did object to the admission of the text messages contained in Exhibit 41 on the basis of authenticity as well as based on K.S.A. 60-455 and another issue mentioned during an untranscribed sidebar. But, unless the district court's quoted comments above are deemed an unrequested continuing objection—which is unclear—an evidentiary challenge to Major's testimony may not be properly preserved. State v. Showalter, 318 Kan. 338, 345, 543 P.3d 508 (2024) ("[A]ny pretrial objection to the admission or exclusion of evidence must be preserved by contemporaneously objecting at trial, which can be accomplished through a standing objection.").

Even so, defense counsel's objection to the admission of the Snapchat messages between McGehee and Major, which form the basis for the most prejudicial evidence, was properly preserved by a contemporaneous objection. Accordingly, we address the merits of McGehee's challenge.

Applicability of K.S.A. 60-455

Subject to exclusion by statute, constitutional provision, or controlling caselaw, all relevant evidence is admissible. K.S.A. 60-407(f); State v. Brown, 321 Kan. 1, 23, 573 P.3d 237 (2025). K.S.A. 60-455(a) limits the admission of evidence that a "person

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committed a crime or civil wrong on a specified occasion" to prove propensity to commit similar acts on a different occasion. Such evidence may be admissible, however, when relevant to prove another material fact. State v. Bey, 322 Kan. 32, 43, 585 P.3d 911 (2026).

Here, the district court ruled that K.S.A. 60-455 did not apply because McGehee's alleged attempts to manipulate others by threatening suicide was not a crime or a civil wrong. McGehee challenges this conclusion, which is a question of law subject to unlimited appellate review. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 5, 166 P.3d 1047 (2007) ("The interpretation of a statute, including the determination of the applicability of statutory terms and phrases to undisputed facts, is a question of law to be decided by the court; such legal questions are not submitted to the jury.").

The argument hinges on the term "civil wrong." In an unpublished decision, another panel of this court adopted a dictionary definition of "civil wrong," defining it as "'[a] violation of noncriminal law, such as a tort, a breach of contract or trust, a breach of statutory duty, or a defect in performing a public duty; the breach of a legal duty treated as the subject matter of a civil proceeding.'" Gaona v. State, No. 115,618, 2017 WL 544626, at *4 (Kan. App 2017) (unpublished opinion) (quoting Black's Law Dictionary 1849 [10th ed. 2014]). According to the Gaona panel, therefore, a civil wrong must provide the basis for legal action. The definition remains unchanged. Black's Law Dictionary 1937 (12th ed. 2024).

In Gaona, the alleged K.S.A. 60-455 evidence involved a person's possession of a shotgun and possession of pornography. The court noted that possession of a firearm and possession of adult pornography did not form the basis for any legal action, criminal or civil. 2017 WL 544626, at *4.

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Here, at the hearing on the endorsement of Major as a witness, McGehee's counsel conceded that McGehee's alleged actions with Major did not constitute a crime. He contended, however, that the actions would support civil liability for emotional manipulation. On appeal, McGehee argues that emotional manipulation is actionable as infliction of emotional distress.

Kansas recognizes two civil actions for causing emotional distress: negligent infliction of emotional distress and intentional infliction of emotional distress. While the State correctly notes that McGehee did not identify the specific potential claim at the hearing, the circumstances necessarily direct the court to intentional infliction of emotional distress. By definition, a wrongdoer accused of negligent infliction of emotional distress does not intend the emotional distress caused. See Hallam v. Mercy Health Center of Manhattan, 278 Kan. 339, 340, 97 P.3d 492 (2004) (tort of outrage equivalent to intentional infliction of emotional distress under Kansas law); Curts v. Dillard's, Inc., 30 Kan. App. 2d 814, 815, 48 P.3d 681 (2002) ("Thus, we must conclude the exception to the physical injury requirement of a claim for negligent infliction of emotional distress is nothing more—nor less—then the tort of outrage, an intentional tort."). And, if the allegations had been that McGehee's acts of emotional manipulation were unintended, they would bear little relevance to this criminal prosecution.

The relevance of these other allegations of emotional manipulation is to counter McGehee's narrative that he genuinely wanted to kill himself and did not feign suicide as a means of threatening Doe on May 29. But these other instances of attempted suicide are immaterial to McGehee's intent on May 29 if they were the result of negligence rather than intentional conduct. The State cannot use these other acts of McGehee to show his intent or plan in dealing with Doe if the other acts were unintentional.

So, then, we presume McGehee's acts would have been intentional. To establish a claim of intentional infliction of emotional distress, a plaintiff would be required to prove

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that McGehee acted intentionally or recklessly, that the conduct was extreme and outrageous, that a causal connection existed between the outrageous conduct and the victim's alleged emotional or mental distress, and that the emotional distress was extreme and severe. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991). When a person inflicts emotional distress willfully or wantonly or with the intent to injure, a plaintiff is not required to establish physical injury to prevail on a tort claim. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214 (1983); Majors v. Hillebrand, 51 Kan. App. 2d 625, 628, 349 P.3d 1283 (2015).

Whether a claim for intentional infliction of emotional distress based on McGehee's conduct with Doe or Major would prevail at trial, the threat or attempt to commit suicide in the presence of a former partner is the type of extreme and outrageous conduct that could support such a claim. See, e.g., Bartanus v. Lis, 332 Pa. Super. 48, 63, 480 A.2d 1178 (1984) (claim for intentional infliction of emotional distress existed where family members attempted to alienate relationship of son from father by, among other things, threatening to commit suicide unless son left father's residence); Farina v. Branford Board of Education, No. 3:09-CV-49, 2009 WL 10688718, at *4 (D. Conn. 2009) (unpublished opinion) (finding summary judgment inappropriate when reasonable minds could differ whether the false accusation of threats of suicide were extreme or outrageous). Because proof of physical injury associated with the emotional distress is not required to prove a claim of outrage, the district court improperly concluded that K.S.A. 60-455 did not apply to the allegations of McGehee's various attempts or threats to attempt suicide.

As the State notes, however, the evidence presented of Major's allegations does raise questions because she did not demonstrate extreme and severe mental distress from McGehee's conduct. In fact, during McGehee's cross-examination of Major, she did not appear to take his threats of suicide seriously, posting a comment after his video of himself taking pills about whether he enjoyed the "Smarties." While Major cared enough

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about McGehee to call the Riley County Police Department for a welfare check, the record contains no evidence that Major suffered extreme or severe emotional distress from McGehee's suicide attempt on April 18, 2024.

Still, the State's argument is unpersuasive. In determining the applicability of K.S.A. 60-455, the focus should properly be on the defendant's conduct, not the alleged victim's reaction to that conduct. The protections offered a criminal defendant by K.S.A. 60-455 should not be subverted by an unemotional victim. In other words, if, as the State suggests, McGehee intended to emotionally manipulate Major by threatening or attempting suicide, the fact that Major was not traumatized when another individual in her position would have been should not affect the applicability of K.S.A. 60-455, even if Major's lack of emotional response would undermine a tort claim for outrage. The standard for K.S.A. 60-455 must be an objective examination of the defendant's conduct on the prior occasion, especially when the civil wrong at issue is introduced to establish a criminal defendant's intent in committing the charged crime.

The district court, then, erred in concluding that K.S.A. 60-455 did not apply to the State's evidence regarding Major's testimony. This error may be inconsequential if the evidence could have been properly admitted under K.S.A. 60-455. However, even if the evidence was so admissible, the State failed to satisfy the 10-day notice requirement of K.S.A. 60-455(e), and the district court failed to provide a limiting instruction. See State v. Evans, 313 Kan. 972, 987, 492 P.3d 418 (2021) ("If prior bad acts evidence is admitted under K.S.A. 2020 Supp. 60-455 in a jury trial, a limiting instruction must be provided to inform the jury of the specific purpose for which the evidence was admitted."). Assuming without analysis that the admission of the K.S.A. 60-455 evidence was erroneous, though, for reasons next discussed, we find any error harmless.

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Harmless Error

"Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights." K.S.A. 60-261.

See also K.S.A. 60-2105 (similar rule applied to appellate review); State v. Campbell, 317 Kan. 511, 518, 532 P.3d 425 (2023) (applying harmless error statutes to the admission of K.S.A. 60-455 evidence).

Because the admission of K.S.A. 60-455 evidence involves a statutory right, not a constitutional protection, the level of persuasion the State must establish is the lesser one. See Campbell, 317 Kan. at 518. So, we must determine whether the State carried its burden to prove that the admission of the evidence, though erroneous, was harmless by establishing a reasonable probability that the error had no effect on the jury's deliberations. 317 Kan. at 518.

We quickly dispense with the notion that Major's testimony had a meaningful impact on McGehee's conviction for criminal discharge of a firearm. The evidence was undisputed that McGehee fired his handgun in the hallway of the apartment building, lodging a bullet in the ceiling of the building. While McGehee challenges that this portion of the building constituted a dwelling, he did not contest any of the other elements of the crime, including his mental state in shooting the gun. McGehee even testified at trial that he knowingly discharged the weapon in the hall. Major's testimony does not add or detract from the jury's deliberation on the elements of criminal discharge of a firearm. Any erroneous admission of this testimony does not create a reasonable probability that the jury would have returned a different verdict on the criminal discharge of a firearm count if Major had not testified.

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The charge of aggravated assault provides a more complicated question. As McGehee contends on appeal, the evidence of his intent to place Doe in reasonable apprehension of immediate bodily harm is thin and based entirely on circumstantial evidence. However, Major's testimony did not directly contribute to the circumstantial evidence. Rather, her testimony tended to buttress the State's theory that McGehee never intended to commit suicide, as he claimed, but visited Doe's apartment on May 29 for some other purpose.

Although we cannot state with certainty that the jury would have concluded that McGehee used suicide as an emotional manipulation tool without Major's testimony, we focus on the fact that emotional manipulation is not an element of aggravated assault. We have no difficulty in concluding that McGehee's explanation for his conduct outside Doe's apartment door on May 29 lacks persuasive force.

McGehee testified that he intended to drop off some of his belongings at Doe's apartment before driving up to Scenic Hill and committing suicide. When confronted with his action of holding a gun to his head in front of his door and firing the gun in the hallway, McGehee responded that he had changed his mind and decided to commit suicide in the hall outside Doe's apartment. When the State pointed out the numerous opportunities for McGehee to kill himself—he possessed a fully loaded handgun and he could have rushed the police to make them stop him—McGehee explained that he did not want to risk injury to anyone in the apartment building or cause the police officers to carry the burden of shooting him. But, after his arrest, McGehee continued to talk about ending his life but also asked about his truck and other property, which does not appear consistent with someone intent on killing themselves.

Consequently, McGehee's own testimony, rather than undermining the State's theory that he never intended to commit suicide, supported that theory. None of the testimony offered at trial directly established that McGehee wanted to place Doe in

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apprehension of immediate bodily harm. But, if he did not intend to kill himself at her apartment, which the evidence suggested, a reasonable inference may be drawn that he brought the gun to her apartment for some nefarious purpose. As the jury concluded, that nefarious purpose encompassed causing Doe to fear that he was going to shoot her.

To the extent the circumstantial evidence was sufficient to support the jury's conclusion, which McGehee does not challenge in this appeal, Major's testimony did not significantly impact the jury's assessment of the evidence.

Of course, Major's testimony was prejudicial in that it painted McGehee as a person who emotionally manipulated romantic partners in a rather shocking manner. There is always the danger with such evidence that the jury convicted McGehee for this conduct rather than the crimes charged. But omitting Major's testimony would not eliminate the impression of McGehee as an emotional manipulator. Doe's testimony and other evidence offered at trial established that McGehee tried to manipulate Doe's emotions to maintain a relationship with her. Additionally, McGehee admitted in his own testimony that an earlier alleged suicide attempt took place around the time of his divorce. If the jury were inclined to convict McGehee for being a manipulator, the omission of Major's testimony would not significantly alter the jury's perception of McGehee's character given the other evidence presented by both Doe and McGehee himself.

And, the jury was instructed that the verdicts it reached must be based entirely on the law provided by the court and the evidence admitted at trial. The instruction on the elements of aggravated assault provided that the jury had to conclude that McGehee knowingly placed Doe in reasonable apprehension of immediate bodily harm with a deadly weapon. The burden of proof instruction directed the jury to find the defendant not guilty if they had a reasonable doubt about the truth of any of the claims the State was required to prove. An appellate court generally presumes that the jury followed the

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instructions provided by the court. State v. Dotson, 319 Kan. 32, 45, 551 P.3d 1272 (2024). As stated, omitting Major's testimony would not have changed the jury's inclination to convict McGehee based on his emotional manipulation of his partners, if they had been inclined to ignore the court's instructions. Consequently, the erroneous admission of Major's testimony and the accompanying text messages did not create a reasonable probability of a different verdict had the evidence not been admitted. The error was harmless.

II. Did the district court commit clear error by failing to properly instruct the jury on the definition of "knowingly"?

McGehee next contends that the district court committed reversible error in instructing the jury on the "knowingly" element of aggravated assault. As McGehee concedes, he neither requested a different definition nor objected to the court's definition when it was presented during the jury instructions conference. But McGehee now argues that the erroneous definitional instruction constituted the omission of a required element of aggravated assault.

We follow a progressional analysis when examining jury instruction challenges.

"First, [we consider] the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; next, [we apply] unlimited review to determine whether the instruction was legally appropriate; then, [we] determine[] whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and finally, if the district court erred, this court determines whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221[, 132 S. Ct. 1594, 182 L. Ed. 2d 205] (2012)." State v. Owens, 314 Kan. 210, 235, 496 P.3d 902 (2021).

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Applying this standard, we again note that McGehee did not object to the nowchallenged instruction at trial. As a result, the clear error framework applies. State v. Boeschling, 311 Kan. 124, 131, 458 P.3d 234 (2020).

The State charged McGehee with aggravated assault. K.S.A. 21-5412 defines aggravated assault as "knowingly placing another person in reasonable apprehension of immediate bodily harm" using a deadly weapon. So, the jury was instructed that the State must prove:

"1. Mr. McGehee knowingly placed [Jane Doe] in reasonable apprehension of immediate bodily harm. "2. Mr. McGehee did so with a deadly weapon. "3. This act occurred on or about the 29th day of May 2023, in Riley County, Kansas."

Thus, the culpable mental state for aggravated assault is "knowingly." Here, the district court did not specifically define "knowingly" but in the same instruction went on to tell the jury, "A defendant acts with knowledge when the defendant is aware of the circumstances in which he was acting." (Emphasis added.) This language mirrors the language found in PIK Crim. 4th 52.010 (2021 Supp.), option 2.

McGehee argues that the district court should have instructed the jury that he acted "knowingly" only if he was "aware that [his] conduct was reasonably certain to cause the result complained about by the State." This language is found in the same pattern instruction, option 3. McGehee reasons that option 3 sets out a higher standard, so the district court erred by using option 2. We disagree.

In Owens, 314 Kan. at 236, the Kansas Supreme Court examined the differences between two of the language options found in the same PIK Crim. 4th 52.010 defining

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"knowingly." The court upheld a challenged definitional instruction that advised the jury that "'[a] defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about.'" 314 Kan. at 236. The challenged instruction in Owens was based on PIK Crim. 4th 52.010, option 1. The defendant in Owens contended the district court should have given PIK Crim. 4th 52.010, option 3—the one McGehee now seeks—that a defendant acts knowingly "'"when he or she was aware that his or her conduct was reasonably certain to cause the result."'" 314 Kan. at 236. Also, within the context of aggravated assault, the Kansas Supreme Court found little difference between the two definitional instructions because the instruction provided to the jury required the jury to consider whether the defendant was aware of the nature of his conduct as it related to the elements of aggravated assault, whereas the defendant's requested instruction directed the jury to be reasonably certain to cause the result of the charged criminal conduct. The Supreme Court found: "In this case, any distinction between the two definitions of 'knowingly' is one without legal significance." 314 Kan. at 236.

Here, the instruction used not the option utilized in Owens or sought by the defendant in that case but the remaining option available in PIK Crim. 4th 51.010. Regardless, like in Owens, we find negligible differences between the three options. In this case, McGehee must have been aware of the circumstances in which he was acting in the context of an aggravated assault—that is, aware that his actions placed Doe in reasonable apprehension of bodily harm. Or put another way, that his conduct was reasonably certain to place Doe in fear for her safety.

McGehee testified that he was aware of what he was doing in the hallway outside Doe's apartment. He denied that he had blacked out and did not know what he was doing. He admitted to standing in front of Doe's door, that he "assumed she could see [him]," and admitted to holding a loaded gun. He admitted to shooting the gun, even, and to considering where best to shoot it so that no one else would get shot.

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Although this evidence does not directly support that McGehee ever directly threatened Doe or any other person beside himself with bodily harm, circumstantial evidence can support a conviction if the evidence allows a factfinder to find the elements of the crime beyond a reasonable doubt. State v. Wright, 321 Kan. 634, 659, 583 P.3d 174 (2026). Here, both Doe and a neutral third party, her neighbor, testified that McGehee did not just knock, but pounded on Doe's door. The neighbor added that McGehee spoke aggressively and angrily to Doe through the door. Though he denied it, McGehee purportedly shouted to Doe that he had a gun to his head. From the neighbor's perspective, she feared what McGehee would do to Doe if Doe opened her door. Both Doe and the neighbor called the police, believing the man was threatening someone with a gun. When Doe did not open her door, McGehee fired the gun in the hallway, lodging a bullet in the ceiling. Based on this circumstantial evidence, we are not firmly convinced that the jury would have reached a different verdict if it had been given McGehee's requested instruction.

For these reasons, as in Owens, we find the district court's aggravated assault instruction was both legally and factually appropriate, and not clearly erroneous.

We briefly address McGehee's argument that the proclaimed error in the definitional instruction constituted an omission of an essential element of the offense, apparently seeking application of the constitutional harmless error standard. But McGehee conflates an instructional error with an omission of an essential element of the crime. Here, the district court's elements instruction for aggravated assault included all the essential elements of the crime. See K.S.A. 21-5412(a) and (b)(1). McGehee does not argue otherwise. He contends only that the court's definition of "knowingly" was insufficient, but we have found it was not. He cites no authority for the proposition that an erroneous definition of an element of an offense is tantamount to omission of that element from the jury instructions. Accordingly, the issue is not properly briefed. State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020) (failure to support point with

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pertinent authority or failure to show why a point is sound despite a lack of supporting authority or in the face of contrary authority is like failing to brief the issue).

Moreover, McGehee simply appears to assume that an erroneous definitional instruction removes the element from the jury's consideration. This position does not find support in the law. See State v. Ballantyne, 64 Kan. App. 2d 14, 51, 543 P.3d 1152 (2024) ("Even though the mental state instruction would have been both legally and factually appropriate, we have consistently refused to find error when a district court fails to define the terms 'intentionally' or 'knowingly' in jury instructions.").

III. Did the district court abuse its discretion by refusing the defense continuance?

McGehee next contends that the district court should have granted his request for a continuance on the eve of trial when presented with new allegations of emotional manipulation through Major. The context for the defense's request for a trial continuance was discussed within the analysis of McGehee's challenge to the admission of Major's testimony. Based on the court's ruling admitting Major's testimony and the accompanying text messages, McGehee requested a trial continuance to prepare a defense for this new evidence. Given the narrow scope of the new witness' testimony, the court denied the continuance, noting that the best source of information to defend against the allegations was McGehee.

McGehee properly preserved the issue for appeal. Not only did defense counsel request a trial continuance at the hearing on the State's endorsement of Major's evidence, but defense counsel renewed the request the first day of trial before the jury was selected.

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Discussion

An appellate court reviews a district court's ruling on a request for continuance for an abuse of judicial discretion. State v. Gentry, 310 Kan. 715, 734, 449 P.3d 429 (2019). Judicial discretion is abused when its decision is based on an error of law (guided by an erroneous legal conclusion), is based on an error of fact (lacking substantial competent evidence in support), or is otherwise arbitrary, fanciful, or unreasonable (no other reasonable person in the position of the district court would have adopted a similar view). State v. Sinnard, 318 Kan. 261, 270, 543 P.3d 525 (2024).

McGehee constitutionalizes his claim by contending that the refusal to grant a trial continuance based on the admission of Major's testimony deprived him of a reasonable time to prepare for trial. When a request for continuance is reasonable, a district court's denial of that request to "'myopic[ally] insist[] upon expeditiousness'" renders the constitutional right to counsel an empty formality. State v. Flack, 318 Kan. 79, 101, 541 P.3d 717 (2024) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 [1964]). The Ungar Court observed that the courts lacked mechanical tests to determine whether the denial of a continuance is so arbitrary as to violate a criminal defendant's constitutional rights. Instead, the court must examine the circumstances in each case, taking particular notice of the reasons presented to the trial judge at the time the request is denied. 376 U.S. at 589. An appellate court conducts unlimited review of a claim that the denial of a continuance interfered with the right to present a defense. Flack, 318 Kan. at 102.

In conducting this de novo review, an appellate court examines several factors:

whether other continuances had been granted; whether legitimate reasons were shown to postpone the trial; and whether the denial of the continuance would prejudice the defendant. Flack, 318 Kan. at 102 (citing State v. Anthony, 257 Kan. 1003, 1019, 898 P.2d 1109 [1995]).

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At least two of these factors weigh, at least slightly, in favor of a continuance for McGehee. While the court noted that the trial had been continued previously, the court did not state which party had requested the earlier continuance. In this context, we find that determination relatively unimportant. If the State had requested an earlier continuance and the court granted it, an argument could be made that the court did not treat the participants in the trial equally, but the argument is weak because the record contains no information about the earlier continuance. A request for continuance made well in advance of a scheduled trial date is materially different from a request made days before the scheduled trial. If defense counsel requested the earlier continuance, a second request does not particularly weigh against the defense under the circumstances presented here. Defense counsel could not have sought a continuance based on newly presented evidence until the State declared its intention to present the evidence.

As McGehee argues, his request presented largely valid reasons to delay the trial.

On the one hand, the State proposed a new witness to testify to an entirely new set of allegations against McGehee supported with purported screenshots of Snapchat messages from him. Defense counsel might wish to seek evidentiary support for McGehee's explanation about the messages, including expert testimony regarding the authenticity of the messages. On the other hand, the best source of information about the messages would be McGehee, himself, and McGehee indeed testified regarding the incidents surrounding the messages and denied that he had sent some of them. While there were legitimate, defense-related issues that provided a reason to delay the trial, McGehee also had time to prepare his testimony in defense of Major's allegations, so this factor is balanced.

Finally, a refusal to grant the defendant a continuance could potentially prejudice McGehee's ability to defend against the new allegations. Again, McGehee questioned the authenticity of some of the messages he purportedly sent to Major. If a trial continuance had enabled defense counsel to find an expert to testify about the authenticity of the

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messages, some of the more damaging messages might have been excluded. That said, he did have the opportunity to refute the messages through his own testimony, which lessens any potential prejudice.

Even assuming error though, the district court's denial of McGehee's request for a trial continuance constituted harmless error, as we next explain.

Harmless Error

Even when a district court abuses its discretion by refusing a continuance, the error may be deemed harmless. See K.S.A. 60-261; State v. Carr, 314 Kan. 615, 681-82, 502 P.3d 546 (2022). The party who benefitted from the error has the burden to establish its harmlessness. Campbell, 317 Kan. at 518. Because the lack of a trial continuance impinged on McGehee's right to counsel, see Flack, 318 Kan. at 101-02, the State must satisfy the elements of constitutional harmless error under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Under this test, the court must reverse the conviction unless the State is able to prove beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. Gallegos, 313 Kan. 262, 273, 485 P.3d 622 (2021).

The discussion of harmless error in Issue I on the criminal discharge of a weapon charge holds, even under the more stringent constitutional harmless error analysis. Many of the elements of that charge were confirmed by McGehee's own testimony and were not disputed. Major's evidence did not significantly contribute to the jury's deliberations on that count. The error in refusing a continuance to permit counsel to investigate the new evidence was harmless with respect to criminal discharge of a weapon beyond a reasonable doubt.

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With respect to aggravated assault, a similar analysis to that of the instructional issue also holds. Given McGehee's admission that he was aware Doe could see him with the gun, and the circumstantial evidence provided by Doe and her neighbor's testimony, any error in denying the continuance to include Major's evidence appears extraneous. We are convinced that the refusal to grant a continuance so that defense counsel could potentially challenge Major's testimony was harmless beyond a reasonable doubt.

Even if we were not convinced, we are bound by our Supreme Court's precedent to find no prejudice resulting from the denial of the continuance. In State v. Cook, the court reaffirmed an earlier finding that a "'defendant cannot establish prejudice from the trial court's denial of his or her motion for a continuance for the purposes of investigating evidence if he or she fails to investigate the evidence after the trial and submit any new evidence in a motion for a new trial.'" 281 Kan. 961, 990, 135 P.3d 1147 (2006) (quoting State v. Ly, 277 Kan. 386, Syl. ¶ 2, 85 P.3d 1200 [2004]).

Here, defense counsel raised the issue in an oral motion for new trial after the verdict but did not offer any additional proffers or evidence regarding prejudice. Counsel also indicated he would file a written motion for new trial, but it does not appear that he did so. In light of this and the above reasoning, we find any error by the district court in denying the continuance to be harmless.

IV. Did the State present sufficient evidence that McGehee fired at a dwelling to sustain the conviction for criminal discharge of a firearm?

McGehee's fourth issue on appeal challenges the sufficiency of the evidence supporting his conviction for criminal discharge of a firearm. Appellate review of this type of challenge is well established. An appellate court reviews the evidence in a light most favorable to the prevailing party—the State—to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In

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conducting its review, the appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. Wright, 321 Kan. at 658 (quoting State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 [2021]).

K.S.A. 2022 Supp. 21-6308(a)(1)(A) defines criminal discharge of a firearm as "[r]eckless and unauthorized discharge of any firearm at . . . [a] dwelling, building or structure in which there is a human being whether the person discharging the firearm knows or has reason to know that there is a human being present." Because the charging document in this case limited the scope of the charge to "dwelling," the State was required to prove that McGehee discharged a firearm at a dwelling. See State v. Fitzgerald, 308 Kan. 659, 666, 423 P.3d 497 (2018) ("[T]he charging document in any specific case still sets the outer limits of the conviction or convictions that can result."). So, to prove McGehee committed criminal discharge of a firearm, the State was required to prove that he recklessly discharged a firearm at a dwelling without authority when the dwelling was occupied by another person. K.S.A. 2022 Supp. 21-6308(a)(1)(A).

McGehee's challenge to his conviction for criminal discharge of a firearm consists of two premises. First, he argues that the common areas of an apartment building are not dwellings. Second, McGehee discharged his weapon into a part of the building that was not a dwelling. Accordingly, he reasons that he did not discharge his weapon at a dwelling.

McGehee's argument raises a question of statutory interpretation, which is a question of law subject to unlimited appellate review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). The goal of judicial construction of a statute is to effect the intent of the Legislature. That intent is expressed in the language the Legislature selected in its legislation. Where the language is unambiguous, the court's role is nothing more than to implement the intent of the Legislature expressed in that language to the facts of the particular case before it. See State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022).

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The portion of the criminal discharge of a firearm relevant to this appeal is not ambiguous. "Dwelling" is statutorily defined as "a building or portion thereof, a tent, a vehicle or other enclosed space that is used or intended for use as a human habitation, home or residence." K.S.A. 21-5111(k).

In State v. Bannon, 55 Kan. App. 2d 259, 411 P.3d 1236 (2018)—the only Kansas authority cited by McGehee—the defendant was convicted of criminal carrying of a weapon under K.S.A. 21-6302(a)(4), which prohibited anyone from carrying a concealed firearm except when on that person's land, in the person's abode, or in that person's fixed place of business. 55 Kan. App. 2d at 264. Bannon challenged the conviction arguing that he was in the lobby of his apartment building. The court construed the meaning of abode to mean an area where a person lived, which excluded the common lobby area of the apartment building. 55 Kan. App. 2d at 268.

Bannon is inapplicable here. Assuming "abode" to be roughly equivalent to "dwelling" for purposes of this analysis, McGehee's reliance on Bannon completely ignores the difference in the prepositions governing the illicit conduct. In Bannon, the exception to the general prohibition occurred when the alleged offender was in (perhaps synonymously translated as "within") an abode or the defendant's place of business.

Under K.S.A. 21-6308(a)(1)(A), the criminal conduct is directed at the dwelling, and "at" has various meanings. See generally Webster's New World Collegiate Dictionary 89 (5th ed. 2020). The most common usages of the word mean "the preposition of general (usually static) location"—a locational preposition—and "to or toward as the goal or object"—a directional preposition. But in the context of K.S.A. 21-6308(a)(1)(A), the relevant meaning is directional. K.S.A. 21-6308 was enacted to criminalize drive-by shootings that often do not clearly demonstrate an intent to injure persons and, as a result, escaped prosecution under existing statutes. State v. Caldwell, 21 Kan. App. 2d 466, 470- 71, 901 P.2d 35 (1995) (citing Minutes of the Senate Committee on Judiciary, March 16,

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1992). Interpreting the statute to require an offender's physical presence at the location of a dwelling before discharging the weapon makes little sense in the historic context. Any person who recklessly discharged a firearm while in the location of a dwelling, even his or her own home, could then be prosecuted under the statute. Moreover, if location was intended by the Legislature, the requirement is superfluous, as any person must be in the location of the place where a gun is discharged unless the person has set up a firearm to fire remotely. Remote discharge of a firearm is not the evil the Legislature was concerned to prevent.

Consequently, the phrase at a dwelling is directional. Rephrased slightly, K.S.A.

21-6308(a)(1)(A) criminalizes the conduct of shooting a firearm in the direction of an enclosed space used for human habitation, home, or residence. Striking a "dwelling," however, is not required by the statute. In other words, if a person indiscriminately fires a gun toward a structure that qualifies as a dwelling, the elements of the crime of criminal discharge of a firearm are satisfied, even if the bullet strikes a non-dwelling portion of the structure or misses the structure completely. For example, if a person pulled a gun and carelessly shot in the direction of a dwelling—from a car or other vantage point—and the dwelling happened to be occupied at the time, the person shooting the gun could be convicted of K.S.A. 21-6308(a)(1)(A). It does not matter whether the bullet hit the roof of the dwelling, the front stoop, or missed the structure entirely. Additionally, it is irrelevant to the commission of the crime whether the structure hit was what the defendant had been aiming to hit. So, if, as a gang initiation, a drive-by shooting targeted one house but the shooter's aim was off and the bullet struck a neighboring house, the defendant is guilty of criminal discharge of a firearm if either of the houses was occupied.

Accordingly, the fact that McGehee's bullet lodged in the ceiling of the hallway outside Doe's apartment complex is immaterial to the elements of the crime. It is the directional discharge of the firearm that is material. If McGehee recklessly discharged the weapon in the general direction of any enclosed space used as a habitation or residence

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and one of those enclosed spaces was occupied, the evidence was sufficient to support his conviction for criminal discharge of a firearm.

We must view the evidence in a light most favorable to the State. McGehee admitted he sat down on the floor in a corner of the hallway outside Doe's apartment, with his back against the wall parallel to the neighbor's apartment. He reportedly put the gun under his chin, thinking that if he shot upward through his chin the bullet would go into the ceiling, and discharged the weapon. He admitted, though, that he first contemplated how best to shoot the gun because the bullet could go into an apartment and injure a person. McGehee was aware, then, that any errant movement—despite his claim that he aimed upward—could result in the injury of a person. Though he makes much of claiming his shot was directed toward the overhang space of a breezeway, there are no maps, diagrams, or photographs which demonstrate that his aim was specifically away from either Doe or the neighbor's apartments, especially where his testimony makes clear that he was close enough to injure another person. Although it is the State's burden to prove its case at trial, McGehee bears the burden to provide a record demonstrating the error of which he claims, and he has not done so. State v. Liles, 313 Kan. 772, 783, 490 P.3d 1206 (2021); Supreme Court Rule 6.02(a)(4), (a)(5) (2026 Kan. S. Ct. R. at 36).

Recklessness is the mens rea required for this crime; that is, there must have been evidence that McGehee consciously disregarded a substantial and unjustifiable risk that he could strike a dwelling when shooting the gun. K.S.A. 21-6308(a)(1)(A); PIK Crim. 4th 52.010. In a light most favorable to the State, McGehee's admission that he was sitting near the occupied apartments when he shot the weapon and he considered that a bullet could cause injury to an occupant sufficiently demonstrates that he consciously disregarded the risk of striking a dwelling with his shot.

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V. Did the district court abuse its discretion in refusing a defense request for mistrial based on misconduct by a prosecution witness?

Next, McGehee argues that the district court improperly refused a defense request for mistrial when a prosecution witness testified about a PFA.

Additional Background

Doe testified at the end of the second day of trial and the beginning of the third day of trial. Towards the end of the second day, Doe was relating McGehee's conduct in May after she ended the relationship. She testified that some of her acquaintances encouraged her to obtain a PFA.

Defense counsel requested a bench conference to lodge an objection. Outside the hearing of the jury, defense counsel told the court the basis for his objections.

"Your Honor, we have two issues with this. One, it's hearsay; but two, and more importantly, the 60-455 evidence concerning statements that she should get a protection order from my client concerning events that she just testified to, there was no 60-455 hearing in this case, and so I think at this point I have to move for a mistrial."

The court asked the court reporter to read back the question and answer to have a clear understanding of Doe's testimony and then asked for a response from the prosecutor. Defense counsel then argued that the court had decided at the pretrial conference that Doe could not testify about the protective order she ultimately sought against McGehee because it was viewed as a civil wrong. Defense counsel argued the same reasoning applied to testimony that she was encouraged to obtain a PFA. After the court released the jury for the day, the bench conference continued. The court ultimately denied the motion for mistrial, concluding that the comment did not constitute evidence of a civil wrong and was harmless.

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Defense counsel immediately objected to the comment and requested a mistrial in the bench conference outside the presence of the jury. The issue was preserved for appellate review.

Discussion

McGehee relies on K.S.A. 22-3423(1)(c), which authorizes a district court to terminate a trial and declare a mistrial when the court deems it necessary because prejudicial conduct in or outside the courtroom renders a continuation of the trial unjust.

The pivotal question the district court must have answered was whether the alleged prejudicial conduct undermined the defendant's ability to obtain a fair trial. In making this consideration, a district court should apply a two-step analysis, which the district court did here and McGehee does not argue otherwise. First, the court determines whether prejudicial conduct caused a fundamental failure in the proceeding. Second, the court decides whether the fundamental failure in the proceeding resulted in prejudice to one of the parties that could not be cured or mitigated through a jury admonition or instruction and whether the error undermined the defendant's ability to obtain a fair trial. Carr, 314 Kan. at 773 (citing State v. Ward, 292 Kan. 541, 551, 256 P.3d 801 [2011]).

The first inquiry is reviewed for an abuse of discretion. Carr, 314 Kan. at 773.

Judicial discretion is abused when a decision is based on an error of law, is based on an error of fact, or is otherwise arbitrary, fanciful, or unreasonable. Sinnard, 318 Kan. at 270. The second inquiry—whether an error was legally harmless—is a question of law subject to unlimited appellate review. See State v. Jenkins, 308 Kan. 545, 557, 422 P.3d 72 (2018).

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Fundamental Failure in the Proceedings

McGehee contends that, in the hearing on the endorsement of Major, the parties had agreed not to admit anything regarding the cross-filings for PFA by Doe and McGehee against each other. The court also ordered that the parties should not reference Major's PFA against McGehee. McGehee contends that these instructions should have caused the State to advise their witnesses not to testify about PFAs generally.

In a criminal case, the State must provide the defendant with notice of the intent to introduce K.S.A. 60-455 evidence before trial to provide the defendant an opportunity to challenge the evidence's admissibility. See K.S.A. 60-455(e); State v. Spackman, No. 122,021, 2021 WL 4929156, at *6 (Kan. App. 2021) (unpublished opinion). Here, it is unclear whether the evidence admitted through Doe's testimony constitutes K.S.A. 60- 455 evidence. She did not testify that she obtained a PFA based on McGehee's conduct, only that some unnamed acquaintances encouraged her to seek one. Moreover, the evidence does not fit within the proscription of K.S.A. 60-455(a) because it is not "evidence that a person committed a crime or civil wrong on a specified occasion" that is used "as the basis for an inference that the person committed another crime or civil wrong on another specified occasion." The circumstances supporting the suggestion that Doe obtain a PFA against McGehee are the circumstances she was testifying about in McGehee's criminal trial in this case. Perhaps McGehee's conduct before May 29 constituted evidence of a crime or civil wrong and should not have been admitted, but McGehee never challenged the admission of this evidence as a violation of K.S.A. 60- 455. The fact that someone believed McGehee's conduct provided a basis for applying for a PFA is not, in and of itself, a fundamental failure in the proceeding.

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Prejudice

But, even if McGehee's testimony caused a fundamental failure in the proceedings, the district court concluded that the prejudice caused to McGehee could be mitigated, if not cured, by instructing the jury to disregard the unsolicited statement about obtaining a PFA, not on the basis that it constituted unapproved K.S.A. 60-455 evidence but because it constituted hearsay. Choosing this method of mitigating the comment not only avoided highlighting the fact that McGehee's conduct toward Doe might be perceived as a crime or civil wrong but also instructed the jury to disregard the evidence on a prejudicially neutral basis.

Under the circumstances of this case, that is, given the fleeting nature of the comment accompanied by the district court's innocuous admonition to disregard the statement, along with the fact that the jury heard all the circumstances that might have supported a PFA in Doe's testimony without objection, we find any prejudicial comment was rendered harmless.

VI. Did the district court abuse its discretion by admitting evidence of another suicide attempt?

As his penultimate issue in this appeal, McGehee contends that the district court erred in admitting the State's evidence of his attempted suicide that occurred a year after the incidents forming the basis of this case, when his relationship with Major ended. While technically distinct from the K.S.A. 60-455 argument raised in Issue I, this argument is closely related.

We have already concluded under Issue I above that even if the district court erred by admitting Major's testimony and the accompanying text messages—which included the evidence of the later alleged suicide attempt—it was harmless error because it would not have significantly impacted the jury's consideration of the charged crimes.

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Conducting another analysis of this issue would be redundant. Without Major's testimony and evidence, there was ample evidence of how McGehee manipulated Doe through threats of suicide during the history of their relationship, not to mention his testimony regarding his earlier suicide attempt that happened near in time to his divorce. The outcome of trial would have been the same even without the evidence in issue.

VII. Did cumulative trial error undermine McGehee's ability to obtain a fair trial?

In McGehee's seventh and final issue, he argues that, even if none of his claimed errors were sufficiently prejudicial to require reversal for a new trial, the cumulative effect of the errors undermined his ability to obtain a fair trial.

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. 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. State v. Alfaro- Valleda, 314 Kan. 526, 551-52, 502 P.3d 66 (2022).

A single identifiable trial error will not support a claim for cumulative trial error.

State v. Lowry, 317 Kan. 89, 100, 524 P.3d 416 (2023). Furthermore, an unpreserved instructional error is not aggregated in a cumulative error analysis unless it amounts to clear error. State v. Waldschmidt, 318 Kan. 633, 662, 546 P.3d 716 (2024).

Although we have found no reversible error on any of McGehee's claims, individually, because we found some of the assumed errors to be harmless, we must still

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analyze whether the assumed errors' "'cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.'" State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). Because McGehee could not establish that the challenged definitional instruction constituted clear error, that error cannot be considered in the cumulative error analysis. See Waldschmidt, 318 Kan. at 662. This leaves only the admission of K.S.A. 60-455 evidence and the refusal to grant a continuance. Although the issues are raised separately and hold different burdens, they essentially amount to the same error: the erroneous admission of Major's allegations against McGehee without allowing McGehee adequate time to prepare a defense. A single trial error cannot form the basis of a cumulative trial error claim. Lowry, 317 Kan. at 100. There is no aggregate effect from the combined errors affecting the potentially erroneous admission of the same evidence.

Consequently, because we find that none of McGehee's claims constitute reversible error, individually, his claim for cumulative trial error fails.

Affirmed.