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No. 103,881 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. KENNETH D. CRAWFORD, Appellant.

SYLLABUS BY THE COURT 1. Generally, issues not raised before the district court cannot be raised on appeal.

2. There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; and (3) if the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or use of a wrong reason for its decision.

3. Under the circumstances presented in this case, consideration of the defendant's speedy trial claim for the first time on appeal is not necessary to serve the ends of justice or to prevent a denial of fundamental rights.

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4. Appellate review of possible prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were within the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

5. In the second step of the analysis of prosecutorial misconduct, the appellate court considers three factors to determine whether to grant a new trial: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling.

6. Under the facts of this case, the prosecutor's analogy to a jigsaw puzzle to explain reasonable doubt minimized the State's burden of proof and constituted misconduct. Although the misconduct did not deny the defendant a fair trial in this particular case, such a practice by prosecutors is highly discouraged.

7. An appellate court exercises unlimited review of the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party's substantial rights. If a proper and reasonable construction will render the judge's remark unobjectionable, the remark is not prejudicial. 2

8. Cumulative error may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence is overwhelming. Also, one error is insufficient to support reversal under the cumulative effect rule.

9. A person accused of a misdemeanor has a right to counsel under the Sixth Amendment to the United States Constitution if the sentence imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.

10. The sentencing court does not violate the defendant's constitutional rights when it considers his or her criminal history in calculating the sentence without requiring the criminal history to be proven beyond a reasonable doubt to a jury.

Appeal from Barton District Court; RON L. SVATY, judge. Opinion filed September 9, 2011. Affirmed.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, and Paige Nichols, of Lawrence, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Steve Six, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and MCANANY, JJ.

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MALONE, J.: Kenneth Crawford appeals his convictions and sentences for aggravated kidnapping, aggravated indecent liberties with a child, and criminal threat. Crawford claims: (1) his statutory right to a speedy trial was violated; (2) the prosecutor committed multiple acts of prosecutorial misconduct; (3) the district court committed judicial misconduct; (4) he was denied a fair trial based on cumulative error; (5) the district court improperly aggregated three misdemeanors into one prior person felony when calculating his criminal history score; and (6) the district court violated his constitutional rights when it relied on his prior convictions to increase his sentence. For the reasons set forth herein, we affirm the district court's judgment.

Crawford does not challenge the sufficiency of the evidence to support his convictions, and we will only briefly set forth the facts of the case. On August 2, 2005, at approximately 8:45 p.m., Crawford came by S.V.'s house looking for her mother, Lorrie Headley. When S.V., who was 12 years old, explained that her mother was not home, Crawford persuaded her to take a ride in his truck. Crawford drove for an undetermined amount of time and stopped in a rural area near a shack. Crawford offered S.V. a beer to drink, but she refused. Crawford then asked S.V. if he could see her breasts. S.V. said no, that was disgusting, and Crawford replied, "What do you think we came down here for?"

S.V. tried to open the door to run away, but Crawford grabbed her legs and pulled her out of the truck and onto the ground, where he straddled her. Crawford put his hand over S.V.'s right breast outside her shirt and "smeared" his face over her face. S.V. stated that she repeatedly told Crawford to stop. S.V. struggled with Crawford, ending up with a bloody lip, and Crawford told her to shut up or he would kill her. During the struggle, S.V. scratched Crawford on the left side of his face and pinched him under his arm. After approximately 5 minutes, Crawford allowed S.V. to get up off the ground. S.V. ran into some nearby trees and eventually made it to the roadway where she encountered Nina Dozier and her husband, who were driving to their home. The Doziers drove S.V. to the local country club where Headley worked, and Headley immediately called 911. 4

On August 8, 2005, the State charged Crawford with aggravated kidnapping, aggravated indecent liberties with a child, criminal threat, and battery. Prior to trial, the State dismissed the battery charge. The jury trial commenced on November 16, 2009. The State presented testimony from S.V., Dozier, Headley, several Barton County Sheriff's deputies who investigated the case, and two forensic scientists from the Kansas Bureau of Investigation. Crawford did not present any testimony or evidence. The jury found Crawford guilty as charged. On January 4, 2010, the district court imposed a controlling sentence of 337 months' imprisonment. Crawford timely appealed.

STATUTORY RIGHT TO SPEEDY TRIAL Crawford first argues that his convictions must be reversed because the State failed to bring him to trial within the time period mandated by the speedy trial statute, K.S.A. 22-3402. Crawford concedes that he did not raise this issue in district court. The State argues that Crawford's failure to do so precludes this court from considering the issue for the first time on appeal.

Generally, issues not raised before the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). However, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; and (3) if the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or use of a wrong reason for its decision. State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010).

Crawford argues that the second exception applies, i.e., consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights. For 5

support, Crawford cites State v. Adams, 283 Kan. 365, 153 P.3d 512 (2007). In Adams, the defendant raised a statutory speedy trial issue before the district court, but he failed to raise the issue on appeal. After requesting supplemental briefing and allowing the parties to address the issue at oral argument, our Supreme Court reached the merits of the speedy trial issue sua sponte and explained:
"Because Adams raised the statutory speedy trial issue before the district court and the resolution of this issue serves the ends of justice by reversing Adams' convictions and vacating his sentences, we believe this case presents the exceptional circumstances necessary for raising the statutory speedy trial issue sua sponte. In addition to impacting Adams' incarceration and criminal history, the resolution of the issue at this point serves the ends of justice by promoting judicial economy. If we had refused to address the issue, Adams would be forced to file a K.S.A. 60-1507 motion on the grounds of ineffective assistance of appellate counsel, thereby requiring the additional use of judicial resources. Addressing the issue now also serves the ends of justice by preventing the denial of Adams' statutory right to a speedy trial. While we stress it is not our role to search for errors on behalf of litigants, we note that the speedy trial error in this case was inherently obvious from a cursory reading of the record." 283 Kan. at 367-68.

Before we decide whether to consider Crawford's speedy trial issue for the first time on appeal, we will summarize the procedural history of this case in district court. Crawford's first appearance was on August 8, 2005. On the next day, Crawford's courtappointed attorney filed a motion for an evaluation to determine competency. The district court granted the motion, and Crawford was transported to the Larned State Security Hospital for an evaluation. Crawford subsequently retained Michael S. Holland as counsel. On November 15, 2005, Holland filed a motion to set aside the order for psychiatric evaluation, which the district court granted. Thereafter, the preliminary hearing was continued multiple times at Crawford's request. The preliminary hearing was finally held on August 3, 2006, and Crawford was bound over for trial on the felony counts. The arraignment was originally set for September 8, 2006, but the hearing was continued at Crawford's request. 6

Crawford's arraignment was finally held on January 12, 2007. At this point, Crawford was released on bond, which meant that he needed to be brought to trial within 180 days after arraignment. See K.S.A. 22-3402(2). The district court set Crawford's jury trial for June 19, 2007, which was within the 180-day time period. However, in an order dated May 14, 2007, the district court continued the jury trial to November 13, 2007. The order, entitled "Notice of Hearing," does not contain any explanation of the reason for this continuance. Thereafter, the jury trial was continued multiple times, and there does not seem to be any dispute that these continuances were properly charged to Crawford. Crawford was not brought to trial until November 16, 2009.

The key continuance Crawford focuses on in his appeal is the continuance granted on May 14, 2007, postponing the trial from June 19, 2007, to November 13, 2007. The State concedes the order granting the trial continuance does not clearly state the reason for the continuance. However, the State asserts in its brief that "the reason was wellknown to all parties, and is most certainly why no speedy trial claim was raised below. The fact is, on June 7, 2007, only twelve days before the scheduled trial, Defendant's counsel, Michael S. Holland, died." Pursuant to an order from this court, the State added Holland's death certificate to the record on appeal. The State further argues there is evidence in the record of Holland's ill health preceding his death and this circumstance led to the delay in Crawford's trial. To support this contention, the State points to excerpts from a hearing held on May 29, 2008, at which Crawford's subsequent attorney, Michael S. Holland, II, was seeking to withdraw as counsel. At this hearing, Holland, II stated:

"I think if you go back through most of the file, you will see a lot of those continuances were toward the end of my father's life and had to be continued due to health reasons. So all of that would be time billable against the defendant. Obviously, then after the trial time, since we had a tentative plea or plea on the table, certainly that would be time billable against the defendant, and I would assume Mr. Crawford would say on the record today that he understands that any time it takes to get this matter now

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rescheduled, since he's asked me to withdraw, would not count against speedy trial for the State."

As the State points out, presumably Holland II did not believe the speedy trial deadline had expired as of May 29, 2008, or else he would not have informed the district court that Crawford was still willing to waive his speedy trial right to obtain further continuances. If the May 14, 2007, trial continuance was in fact granted at defense counsel's request due to his poor health, the time was attributed to Crawford. See State v. Vaughn, 288 Kan. 140, Syl.

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