State v. Horton: Double Hearsay Ruling Affirmed

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April 24, 2026 Get Citation Alerts Download PDF Add Note

State v. Horton

Supreme Court of Kansas

• Citations: None known

• Docket Number: 128574

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

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Combined Opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 128,574

STATE OF KANSAS,
Appellee,

v.

TERRY D. HORTON JR.,
Appellant.

SYLLABUS BY THE COURT

1.
Before a court may admit double hearsay, a statutory exception must apply to each
hearsay statement.

2.
An appellate court may independently consider whether a prosecutor erred even if
the lower court sustained an objection to the prosecutorial act.

3.
A prosecutor does not necessarily shift the burden of proof by comparing a
defendant's trial statement with earlier inconsistent statements.

Appeal from Wyandotte District Court; COURTNEY MIKESIC, judge. Oral argument held
December 15, 2025. Opinion filed April 24, 2026. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the
briefs for appellant.

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Garett C. Relph, deputy district attorney, argued the cause, and Mark A. Dupree Sr., district
attorney, and Kris W. Kobach, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, C.J.: A jury convicted Terry D. Horton Jr. of aggravated battery and
felony murder in connection with the injuries of Cedrick Scott and the death of Printara
Jackson. We affirm his convictions.

FACTUAL AND PROCEDURAL HISTORY

On July 17, 2022, Printara Jackson was found dead by gunshot wound on a porch
at the Gateway apartments in Kansas City. Cedrick Scott was injured and located close to
Jackson's body. Scott was taken immediately to the hospital, where he was operated on
and survived.

The State charged Terry Horton with aggravated battery for Scott's injuries and
felony murder for the death of Jackson. It theorized that Horton intentionally shot Scott
for physically hurting Horton's sister, Tanesha, and that Jackson was shot and killed
during the commission of that crime. There were no known eyewitnesses to the shooting
besides Scott, whom officers never interviewed. The State thus rested its case largely on
circumstantial evidence, relying primarily on the testimony of the lead detective, Tim
Fowler, and surveillance video from the Gateway apartment complex. What follows
describes that evidence.

Booker Watson, Tanesha's friend, testified that on July 17, 2022, he went to
Tanesha's home at Chelsea Plaza apartments in Kansas City, for dinner. When he arrived,
Scott—Tanesha's ex-partner—was at the apartment and had a gun. Tanesha asked Scott
to leave, but he would not go, and eventually their argument turned physical. Watson

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called Tanesha's brother, whom he knew as T.J. At trial, Watson would testify that he
believed T.J. to be Terry Horton. After Watson made this phone call, Scott took the
phone and the gun and left.

After Scott left, someone came over in response to Watson's call. Watson believed
the person was T.J. but was not certain because the person was wearing a black ski mask.
Watson, Tanesha, and the man Watson believed to be T.J. decided to leave and try to find
Scott so they could retrieve the phone. Tanesha took an AR-15 with her, and they used
Tanesha's phone to track Watson's phone that Scott was carrying. At one point, they
called Watson's phone and heard it ringing nearby. T.J. then split off from the other two.
Shortly thereafter, Watson heard shots, and he and Tanesha ran off. T.J. eventually
passed them, and the three got into Watson's vehicle. Watson drove T.J. to his car and
Tanesha to her apartment. Tanesha collected some things from her apartment and
followed Watson to his house.

On cross-examination, Watson did not remember initially telling detectives that
after he arrived at Tanesha's apartment, one of Scott's girlfriends showed up and reported
that there were people outside with guns who had a problem with them. He also did not
remember whether he told detectives that Scott had gone outside with a gun and fired
shots. He admitted that he was aware Tanesha had another brother named Terrell and that
he was not aware Terry's second name was Dwon.

A security guard from the Chelsea apartments, Eddie Scover, also testified. He
reported that he encountered Tanesha, a man, and a man in a mask on the night of the
shooting. The group reported to Scover that someone had jumped Tanesha and run off
with her phone, so they were trying to find the person. Scover denied remembering
initially telling detectives that he recognized the man in the mask as Horton. He also
admitted he was not testifying willingly.

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The videos show three people walking through the Gateway apartment complex.
Watson identified the three people as himself, Tanesha, and T.J. The person identified as
T.J. was wearing a ski mask, a gray shirt, and light-colored bottoms. At one point, T.J.
breaks apart from the other two and walks in the direction of where the victims were
found. About 15 seconds later, people flee from the direction of the crime scene. The
State theorized this was when shots rang out, but there is no sound to the video. About 7
seconds after that, T.J. flees from the direction of the crime scene. The State offered a
still of the video in which T.J. is holding something as he flees. The State argued it was a
handgun.

An officer who investigated the crime scene also testified. He reported that .40-
caliber casings were located at the crime scene, which would be consistent with a
handgun and not an AR-15.

Detective Fowler testified extensively for the State. He summarized his theory of
the case and his investigative process. At two points during cross-examination, defense
counsel attempted to elicit testimony from Fowler regarding Scott's statements to officers
who first arrived at the crime scene. Scott allegedly told Officer Jonathan Tompkins that
"[his] girl Tanesha" shot him and Jackson, and that she did it because Scott was cheating
on her. Detective Fowler allegedly heard this information from Officer Tompkins and
reported it in his affidavit to support the application to arrest Horton. The district court
held the statements inadmissible as double hearsay.

Horton testified in his own defense. He reported that on the night of the shooting,
he and his girlfriend met Tanesha at Grand Slam Liquor to give her some money. A
surveillance video confirms this meeting and shows Horton wearing a gray shirt and
light-colored bottoms. After leaving Grand Slam, Horton made some deliveries for Door

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Dash with his girlfriend, went to McDonalds, and then went home. He testified that when
they got home, he dropped his girlfriend and her daughter off and then drove to park the
car. While he was parking the car, he received a call from Tanesha telling him that a man
took her friend Watson's phone, but that she was okay. Horton then received a text from
his girlfriend at 11:10 p.m. asking him what he was doing. He presumed she sent the text
because he was taking too long to park the car. Horton's girlfriend testified and confirmed
his account of the evening.

A jury convicted Horton of first-degree felony murder and aggravated battery. The
district court sentenced him to a life sentence without the possibility of parole for 620
months for the felony murder conviction and a concurrent sentence of 29 months for the
aggravated battery. Horton filed a timely notice of appeal.

ANALYSIS

1. The district court made no error when it excluded certain hearsay statements.

Horton argues the district court committed reversible error when it excluded
statements that Scott allegedly made when officers arrived at the scene of the crime.

We review a district court's decision whether hearsay statements are admissible
under a statutory exception for an abuse of discretion. State v. Owens, 314 Kan. 210, 220,
496 P.3d 902 (2021). "'A district court abuses its discretion if its decision is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.'"
Owens, 314 Kan. at 221 (quoting State v. Moore, 302 Kan. 685, 692, 357 P.3d 275
[2015]).

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"'Hearsay is '[e]vidence of a statement which is made other than by a witness
while testifying at the hearing, offered to prove the truth of the matter stated.' K.S.A.
2020 Supp. 60-460. Hearsay testimony is inadmissible unless it fits within one or more of
the K.S.A. 2020 Supp. 60-460 statutory exceptions." State v. Evans, 313 Kan. 972, 984,
492 P.3d 418 (2021).

Double hearsay, or hearsay-within-hearsay, is "an out-of-court statement [that]
includes a statement made by another declarant" when "both statements are offered for
the truth of the matter stated." State v. Brown, 285 Kan. 261, 279, 173 P.3d 612 (2007).
Before a court may admit double hearsay, "each layer must be analyzed to determine its
admissibility." Owens, 314 Kan. at 222 ("'A statement within the scope of an exception
to K.S.A. 60-460 shall not be inadmissible on the ground that it includes a statement
made by another declarant and is offered to prove the truth of the included statement if
such included statement itself meets the requirements of an exception.'" [Emphasis
added.]). In other words, a statutory exception must apply to each hearsay statement.

During trial, defense counsel sought to elicit testimony from Detective Fowler that
Scott told Officer Tompkins that "[his] girl Tanesha" had shot him and Jackson because
Scott had been cheating on her. The State objected, arguing that Scott's statements were
inadmissible hearsay within hearsay that did not satisfy any statutory exception.

Horton responded that Scott's statement to Officer Tompkins was admissible
through Detective Fowler because it was an excited utterance. See K.S.A. 60-460(d)(2)
(making admissible a "statement which . . . was made . . . while the declarant was under
the stress of a nervous excitement caused by such perception"). He acknowledged that it
constituted double hearsay if it were to come in through Fowler, but he argued that did
not make a legal difference.

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The district court agreed Detective Fowler's testimony about Scott's comment
would constitute double hearsay and, consequently, Horton needed to show that each
statement—Scott's to Officer Tompkins and Officer Tompkins' to Detective Fowler—
satisfied an exception to the hearsay rule. It also agreed that Scott's statement to Officer
Tompkins was an excited utterance and would be admissible through Tompkins'
testimony. But it ruled that Officer Tompkins' later recitation of the statement to
Detective Fowler was not an excited utterance, so Horton needed to establish a different
statutory exception to show its admissibility through Fowler. When Horton offered no
other exceptions, the district court sustained the State's objection.

Later, defense counsel appeared to try another way to get Scott's statement into
evidence through Detective Fowler when he asked Fowler how he received information
about what the officers who first arrived on the scene observed. Fowler testified that
those officers provided written reports. Defense counsel asked if Detective Fowler's first
lead was Tanesha and if it was based upon those reports. Fowler replied that the officers
on the scene gave him Tanesha's name based on something a person at the scene told
them. When defense counsel asked if the person on the scene who offered that
information was a victim, the State objected, arguing that issue had "been ruled on."

Defense counsel responded that the testimony would be "harmless" because at that
point Detective Fowler had "testified that he got the report and reviewed the report."

The court sustained the objection and told the parties, "That's what I ruled on, so
let's not go down that path anymore."

On appeal, Horton claims the district court ruled Scott's statement could come in
through Officer Tompkins alone, and that this was error because it prevented "further
exploration" of "alternative foundation through Fowler." He argues three different

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hearsay exceptions permitted Fowler to testify about Scott's statement directly—prior
written statements under K.S.A. 60-460(a), an affidavit under K.S.A. 60-460(b), and
prior testimony under K.S.A. 60-460(c).

We reject Horton's claim. He mischaracterizes the district court's ruling as one that
cut off his ability to assert a hearsay exception that would permit Detective Fowler to
testify about Scott's statement. When the State argued that Detective Fowler's testimony
about Officer Tompkins' description of what Scott told him would constitute double
hearsay, Horton agreed but argued the excited utterance exception permitted that double
hearsay. Horton could have, at that time, argued that it would not have been double
hearsay or that a different exception applied. He offered neither, and so the district court
sustained the State's objection. Horton's suggestion that the district court erroneously
prevented that opportunity has no support in the record.

When the district court's ruling is characterized correctly, Horton's argument that
he is entitled to relief because there were other applicable hearsay exceptions is meritless.
This court has been clear that when a party seeks the admission of a hearsay statement,
they "must provide the trial judge with a specific basis for the admission so the judge has
a chance to fully consider whether the evidence should be admitted and to avoid any
potential reversible error." State v. Tague, 296 Kan. 993, 998, 298 P.3d 273 (2013).
When a party fails to do so, they are "'precluded from asserting the ground for the first
time on appeal as a basis for error.'" Tague, 296 Kan. at 998 (quoting State v. Haislip,
237 Kan. 461, Syl. ¶ 5, 701 P.2d 909, cert. denied 474 U.S. 1022 [1985]).

The record makes it clear that Horton had the opportunity to assert any hearsay
exception he thought applicable at the trial court. He failed to do so and, consequently,
may not do so for the first time on appeal.

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Horton offers a catch-all argument that the district court had to allow the
statement's admission because it was exculpatory. But Horton cites no rule supporting the
notion that anything that is exculpatory is admissible. In fact, the case he cites in support
defeats his argument. He quotes State v. Banks, in which this court acknowledged that
"[a] trial court violates a criminal defendant's fundamental right to a fair trial if the court
excludes relevant, admissible, and noncumulative evidence that is an integral part of the
theory of the defense." State v. Banks, 306 Kan. 854, 865, 397 P.3d 1195 (2017). But it
then cautioned that "[a defendant's] right to present [evidence in support of] a defense,
however, is subject to statutory rules and judicial interpretation of the rules of evidence
and procedure." Banks, 306 Kan. at 865.

As in Banks, the admission of this allegedly exculpatory evidence is subject to
statutory rules, including prohibitions on admitting hearsay evidence that does not fit
within an exception. Because Horton failed to advance a plausible exception below, the
district court made no error in prohibiting Detective Fowler from testifying about Officer
Tompkins' statement regarding what he heard Watson say.

1. Sufficient evidence supported Horton's convictions for felony murder and aggravated battery.

Horton moved for a judgment of acquittal after the State presented its case-in-
chief, arguing there was insufficient evidence to support the charges. The court denied
the motion. Horton renews this claim on appeal, arguing the evidence was insufficient to
support both of his convictions.

"In a criminal case, when a defendant challenges the evidence's sufficiency to
support a conviction, an appellate court examines the evidence in the light most favorable
to the State to determine whether a rational fact-finder could have found the defendant

9
guilty beyond a reasonable doubt." State v. Coble, 312 Kan. 615, 626-27, 479 P.3d 201
(2021). This court will "not reweigh evidence, resolve conflicts in the evidence, or pass
on the credibility of witnesses." State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021).

In considering sufficiency, this court has held "there is no distinction between
direct and circumstantial evidence in terms of probative value" and that "'[a] conviction
of even the gravest offense can be based entirely on circumstantial evidence and the
inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the
right to make the inference.'" Colson, 312 Kan. at 750 (quoting State v. Potts, 304 Kan.
687, 694, 374 P.3d 639 [2016]). To be sufficient, circumstantial evidence "'need not rise
to that degree of certainty which will exclude any and every other reasonable conclusion.'
Instead, circumstantial evidence 'affords a basis for a reasonable inference by the jury'
regarding a fact at issue." Colson, 312 Kan. at 750 (quoting State v. Logsdon, 304 Kan. 3,
25, 371 P.3d 836 [2016]).

To prove felony murder in this case, the State needed to prove "the killing of a
human being . . . in the commission of, attempt to commit, or flight from . . . aggravated
battery . . . ." K.S.A. 21-5402(a)(2), (c)(2)(G).

To prove aggravated battery, the State needed to prove Horton "knowingly
caus[ed] bodily harm to [Scott] with a deadly weapon, or in any manner whereby great
bodily harm, disfigurement or death can be inflicted." K.S.A. 21-5413(b)(1)(B).

Horton concedes there was evidence Jackson was killed by gunshot wound. But he
argues there was no reliable evidence that Scott was injured or, if he was, that Horton did
it. Thus, he argues, the State did not prove the aggravated battery conviction or,
consequently, the felony murder conviction which rested upon the aggravated battery.
We disagree.

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First, we conclude the evidence was sufficient to show that Scott suffered bodily
harm. Watson testified Scott was at Tanesha's house on the night of the shooting, became
physical with Tanesha, and left with Watson's phone. Photographs at the scene of the
shooting show an area away from Jackson's body that is covered in blood. Detective
Fowler testified the blood stains were from Scott. Next to the blood stains lay a phone
that Fowler testified was later identified as Watson's phone. Fowler testified that Scott
was found at the scene of the crime with gunshot wounds and was transported to the
hospital where he underwent surgery and survived.

Second, we conclude the evidence was sufficient to show the bodily harm was
inflicted with a deadly weapon. Fowler's testimony that Scott had gunshot wounds clearly
supports this element. Furthermore, the person in the Gateway apartment video who
allegedly shot Scott was holding what one could infer was a gun as he ran from the
direction of the crime scene. Detective Fowler testified that based on his training and
experience, he believed it was a handgun.

Finally, we conclude there was sufficient evidence Horton caused the harm and
did it knowingly. Watson testified that a man he believed to be Horton came to Tanesha's
house in response to a phone call informing him that Scott had hit his sister and that the
three of them went to Gateway apartments to look for Scott. Surveillance video showed
three people in the Gateway complex walking around. Watson identified them as himself,
Tanesha, and Horton. The person identified as Horton was wearing a gray t-shirt and
light-colored bottoms. Horton identified himself in an earlier video from Grand Slam
liquor wearing a gray t-shirt and light-colored bottoms. Fowler testified that a security
guard spoke to the three people and identified the third person to police as Horton.
Watson testified that Tanesha called his phone, they heard it ringing, and then Horton
split off from the group. Surveillance video shows Tanesha on the phone and the third

11
person walking away from Tanesha and Watson toward the direction of the crime scene.
A few moments later, people are seen running from the direction of the crime scene. A
few moments after that, the third person is seen running from the crime scene.

This evidence is all circumstantial. But circumstantial evidence can support a
conviction, and the evidence here was sufficient to allow a reasonable juror to conclude
Horton went looking for Scott, found him with Jackson, intentionally injured Scott with
his firearm, and killed Jackson in the process.

Horton insists there was no supporting evidence for any of the aggravated battery
elements besides Fowler's personal assessment of the evidence. He claims,

"[H]ad Detective Fowler not testified to his personal conclusions, there would have been
no evidence to identify Terry Horton as the third individual [in the video], no gun, and no
other presumptions. The actual evidence, without Fowler's conclusions, is simply that
three people were at the Gateway apartment complex, and during that time someone shot
Printara Jackson."

Horton's argument ignores: (1) Watson's testimony; (2) the surveillance video
from Grand Slam showing Horton in the same or similar clothes as the third person in the
video; and (3) Detective Fowler's testimony that the security guard identified Horton as
the third person in the video. It also mischaracterizes the evidence. While Fowler testified
as to the inferences he made based on the evidence, the jury heard more than these
inferences. It had before it all the pictures, the surveillance videos, and the testimony
upon which Fowler made those inferences. The jury was free to accept or reject Fowler's
conclusions and make its own.

Horton also claims that Fowler's testimony was unreliable and thus cannot support
the convictions. But we do not assess reliability in considering the sufficiency of the

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evidence. See State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005) (argument that
evidence was insufficient because the only eyewitness was intoxicated "ignore[s] the
applicable standard of review," because it is the jury's job to weigh evidence and
determine credibility). Reliability is an admissibility question. See, e.g., State v. Lyman,
311 Kan. 1, 22, 455 P.3d 393 (2020) (explaining courts consider reliability of expert
testimony before deeming it admissible).

Horton had the opportunity to object to the testimony's reliability when the State
offered it at trial, but he did not. Horton was able to cross-examine Detective Fowler and
poke holes in Fowler's testimony. He did this at length. His first question for Fowler was,
"How do you know there wasn't more than one shooter there?" He went on to question
how Fowler decided that Horton was the shooter when it was not on video and anyone
could have come out of their apartment and fired their shots. He pointed out that Fowler
had never spoken to Scott and Scott provided no testimony. From here, it was for the jury
to determine whether Fowler's testimony was credible, not an appellate court's. State v.
Doyle, 272 Kan. 1157, 1163, 38 P.3d 650 (2002) ("It is the jury's function, not [the
appellate court's] to weigh the evidence and determine the credibility of witnesses."). The
jury was free to accept or reject any of Fowler's conclusions.

In sum, the evidence, although circumstantial, was sufficient to support the
aggravated burglary conviction. Consequently, it was also sufficient to support the felony
murder conviction based upon that felony.

1. Did the prosecutor err by misstating evidence and shifting the burden of proof?

Next, Horton argues that the prosecutor committed prejudicial error by shifting the
burden of proof and misstating the evidence.

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In considering a claim of prosecutorial error, this court first assesses whether the
prosecutor "stepped outside the wide latitude afforded [them] 'to conduct the State's case
in a manner that does not offend the defendant's constitutional right to a fair trial.'" State
v. Coleman, 318 Kan. 296, 302, 543 P.3d 61 (2024) (quoting State v. Brown, 316 Kan.
154, 164, 513 P.3d 1207 [2022]). If this court finds error, it then considers whether that
error was prejudicial under the constitutional harmless error test. Under this standard, the
error is harmless "'if the State can demonstrate beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.'" Coleman, 318 Kan. at 303 (quoting State v. Sherman, 305 Kan. 88, 109, 378
P.3d 1060 [2016]).

Horton argues this court can skip the first step of this analysis because he objected
to every instance of error and the district court sustained each of his objections. He argues
this establishes error and this court should not revisit that step because the State has not
appealed those rulings.

The State disagrees; it contends the district court erred in sustaining the objections
and urges this court to independently consider whether the prosecutor's comments were
error. It points out that there is no statute authorizing its appeal from a conviction, so not
only did it have no obligation to preserve its objection, it could not do so. See K.S.A. 22-
3602 (authorizing State's appeal in criminal case in limited circumstances).

We agree with the State that this court can independently consider whether the
prosecutor's statements were error. While the district court's rulings may lend support to
Horton's position, he has offered no authority indicating they bar this court's independent
review, especially when the State challenges the rulings in its appellate briefing. We thus
move to the merits of his claims.

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Horton contends the prosecutor erred four times. The first instance occurred
during Horton's testimony. He testified that after the Door Dash deliveries, he and his
girlfriend went to McDonald's and then went home. On cross-examination, the State
pointed out that Horton did not report going to McDonald's before going home when he
was originally interviewed by detectives. The State asked, "At any point since then, did
you feel it important to tell the detectives where you were?"

Defense counsel objected, arguing the State was "switching the presumption of
innocence" by insinuating Horton had a duty to come forward. The court sustained the
objection, and the State abandoned the line of questioning.

The second instance came during closing argument, when the State pointed out
that when Horton testified,

"he told you when he talked to detectives he never gave his girlfriend's name, he never
gave the phone number, he never told them that he went to McDonald's afterwards
because he didn't think it was important at the time. McDonald's has surveillance
cameras. They could have looked at it if they'd been given that opportunity to say
whether he was there or not. They could have gotten the Door Dash account, which he
refused to give, and verified where he was at. But he refused."

Defense counsel objected. He argued the State was misstating the evidence
because Horton did not refuse to do anything, he just did not know the information the
detectives wanted and the State was shifting the burden of proof.

The court sustained the objection and instructed the jury as follows:

"The Court is going to instruct the jury to disregard the last statement of counsel. The
Court is also going to remind the jury that statements made during closing are arguments

15
of counsel and to remember the evidence and what was testified from the witness box and
from the witnesses. And the statements made by counsel are only argument."

The third instance occurred during the State's rebuttal, when the prosecutor told
the jury:

"The evidence is there's a shooting. There's no doubt about that. The evidence is
that Cedrick Scott was injured in a shooting. Again, there's no doubt about that."

Defense counsel objected because "there's no testimony he was shot," only that he
was injured, and that the injury could have come from anything.

The Court sustained the objection and directed the State to rephrase. The State
rephrased for the jury.

Finally, the fourth instance of alleged error occurred shortly thereafter. The
prosecutor noted that no one knew Horton and his girlfriend's location immediately after
they finished door dashing and asked, "[W]hat would have helped us figure that out, to
prove definitively where he was?" He answered, "Door Dash account would have helped.
Video from McDonald's would have helped."

Defense counsel objected and the court sustained the objection.

On appeal, Horton first argues that the prosecutor's questions and comments about
Horton's failure to tell detectives he went to McDonald's shifted the burden of proof. We
disagree.

"Prosecutors generally cannot suggest that a defendant has the burden to prove his
or her innocence." State v. Martinez, 311 Kan. 919, 922, 468 P.3d 319 (2020). So a

16
prosecutor may not "cross-examine a defendant about the reasons why he did not provide
his exculpatory statement to police once he was charged." Martinez, 311 Kan. at 922.

But the State correctly points out that the prosecutor was simply impeaching
Horton's testimony with prior inconsistent statements. The State cites State v. Falke, 237
Kan. 668, 682, 703 P.2d 1362 (1985), in support.

In Falke, the defendant told arresting officers that he did not remember what
happened during the crime because he was so intoxicated. But he offered new details at
trial. The prosecutor asked him why he had not given the arresting officers the story he
told at trial. The court held this was not improper because it did not offer a comment on
the defendant's right to remain silent when the defendant had not remained silent—he had
said he did not remember. The prosecution did not step outside its wide latitude when the
prosecutor compared the trial statement with that prior inconsistent statement.

The prosecutor's comments here were like those in Falke. The emphasis was not
on Horton's silence, but on his original statement that he went home after the Door Dash
deliveries in comparison to the comment he made at trial—that he went to McDonald's
before going home. In making those comments, the prosecutor did not step outside the
wide latitude they are afforded in trying the State's case.

Second, Horton argues that the comment that he "refused" to tell investigators his
girlfriend's name and her Door Dash account number and that he went to McDonald's
misstated the evidence. He asserts that he did not "refuse" to offer the information; his
testimony was that he simply did not know the information. He also argues the prosecutor
misstated the evidence when he said there was no doubt that Scott was shot. Horton
contends there is evidence that Scott was injured, but no direct evidence he was shot.

17
The State responds that these comments were not error because they were
reasonable inferences based on the evidence.

"A prosecutor errs by arguing a fact or factual inference with no evidentiary
foundation." State v. Watson, 313 Kan. 170, 179, 484 P.3d 877 (2021). But they may
discuss inferences "reasonably drawn from" the evidence. Coleman, 318 Kan. at 302.

Again, the prosecutor made no error. There was evidence that Horton "refused" to
give officers specific information. Fowler testified that Horton "did not want to give me"
the girlfriend's Door Dash account number and would not give Fowler the girlfriend's
name, even though Fowler asked. And Horton's own testimony at trial that he went to
McDonald's before returning home supports an inference that he refused to give that
information earlier when he originally left this detail out of his reports to detectives.

And there was evidence supporting an inference that Scott was shot. The trial
evidence indicated Scott was injured and bled on the scene, that he was taken to the
hospital and operated on, that a person running from the area of the crime scene was
holding a handgun, that there were .40-caliber casings on the scene, and that the other
victim at the scene suffered gunshot wounds.

In sum, none of the comments that Horton challenges amounted to error.
Consequently, we need not move to the prejudice prong of a prosecutorial error analysis.
We reject Horton's claim.

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4. Cumulative error did not deny Horton a fair trial.

Horton argues that even if the trial errors are not individually harmless, they
denied him a fair trial in the aggregate.

"The test for cumulative error is whether the errors substantially prejudiced the
defendant and denied the defendant a fair trial given the totality of the circumstances."
State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020). But "if none or only a single
error exists, the cumulative error doctrine is inapplicable." State v. Johnson, 321 Kan.
357, 371, 580 P.3d 20 (2025).

Because we have held there was no error, Horton's cumulative error claim fails.
We affirm Horton's convictions.

Affirmed.

LUCKERT, J., not participating.

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