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No. 104,356 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JOSHUA MITCHELL CLARY, Appellant. SYLLABUS BY THE COURT

1. K.S.A. 21-3420 and K.S.A. 21-3421 are analyzed and applied.

2. There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal.

3. On appeal, a trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) is based on an error of fact.

4. In evaluating a motion for mistrial, the trial court must use a two-step analysis. First, the court must decide if there is some fundamental failure of the proceeding. Second, if a failure has occurred, the trial court must then assess whether it is possible to continue the trial without an injustice; in other words, the trial court must decide if the

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damaging effect of the prejudicial conduct can be removed or mitigated by an admonition or instruction to the jury.

5. To determine whether an error makes it impossible to proceed with the trial without injustice, a trial court must assess whether the fundamental failure affected a party's substantial rights, which means it will or did affect the outcome of the trial in light of the entire record.

6. If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis. The error may be declared harmless where the party benefitting from the error proves 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., proves there is no reasonable possibility that the error affected the verdict.

7. When a defendant has requested a lesser included offense instruction at trial, the standard of review for failing to so instruct is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.

8. A trial court shall instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant's testimony. 2

Appeal from Crawford District Court; DONALD R. NOLAND, judge. Opinion filed February 17, 2012. Affirmed.

Michelle Davis, of Kansas Appellate Defender Office, for appellant.

Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

PIERRON, J.: Joshua Clary appeals from his jury trial convictions of aggravated kidnapping, rape, and criminal threat. On appeal, Clary argues that (1) the State failed to present sufficient evidence to support a unanimous jury decision for alternative means involving the victim and another under the trial court's jury instructions for aggravated kidnapping; (2) the trial court erred by denying his request for a mistrial based on witness testimony presented by the State; and (3) the trial court erred by denying his request for jury instructions on the lesser included offenses of kidnapping and criminal restraint.

Clary lived with his girlfriend, E.H., at an apartment complex in Pittsburg, Kansas. On June 2, 2009, at approximately 6 a.m., E.H. awoke to discover that Clary was on top of her and had a box cutter pressed against her face. At trial, she testified that Clary told her that he was "going to cut her fucking eyes out."

An altercation between E.H. and Clary ensued that lasted for several hours. E.H testified that Clary called her several profane names, punched her, and slapped her. At trial, E.H.'s neighbor stated she could hear screams and yells from E.H.'s apartment. E.H.'s neighbor also testified that she heard Clary tell E.H. that he was "going to kill her." During the altercation, E.H. tried to defend herself and attempted to escape from the bedroom but was unable to do so. 3

Sometime during the altercation, Clary left the bedroom. E.H. testified Clary told her not to leave. She testified she did not leave the bedroom because she was afraid and did not know where Clary was. After approximately 30 minutes, Clary returned to the bedroom with a knife and a phone. Clary ordered her to take off her clothes. He then ordered her to get on the bed. E.H. testified that Clary climbed on top of her, placed the knife against her skin, and inserted his penis into her vagina. E.H. testified she told Clary to stop on several occasions and that he was hurting her. After the intercourse, the fighting between E.H. and Clary continued.

At approximately 11:56 a.m., E.H.'s mother, who also resided at the apartment complex, knocked on E.H.'s door. Clary answered the door. While Clary spoke to E.H.'s mother at the entrance to the apartment, E.H. escaped the apartment by walking beneath Clary's arms and going out the front door. E.H. went to her mother's apartment and locked herself in the bathroom.

Later that day, E.H. went to the hospital where the hospital staff conducted a rape examination. While at the hospital, E.H. also spoke with two law enforcement officers and told them what had happened.

On June 3, 2009, the State charged Clary with aggravated kidnapping, rape, aggravated assault, and criminal threat. Clary's case proceeded to a trial by jury. The jury found Clary guilty of aggravated kidnapping, rape, and criminal threat.

Clary timely filed a notice of appeal from his convictions.

The first issue we consider is whether the State failed to present sufficient evidence to support a unanimous jury decision for the aggravated kidnapping charge.

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Before consideration of the arguments advanced by Clary, we must first consider the State's argument that this issue is not properly before the court because Clary has raised it for the first time on appeal. To support this argument, the State cites the general rule that appellants cannot raise new issues for the first time on appeal. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (issue not presented to the lower court will not be considered on appeal).

The State, however, cites no authority for the specific proposition that a challenge to the sufficiency of the evidence before the trial court is necessary to preserve it for appeal. "There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve [it] for appeal." State v. Farmer, 285 Kan. 541, Syl.

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