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IN THE SUPREME COURT OF THE STATE OF KANSAS Nos. 99,694 99,695 99,696 STATE OF KANSAS, Appellee, v. RAUL MANUEL MAGALLANEZ, Appellant.

SYLLABUS BY THE COURT 1. On appeal, allegations of prosecutorial misconduct in closing argument are analyzed in two steps. First, the court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. In this case, the prosecutor committed misconduct in vouching for the credibility of State witnesses and in diluting the prosecution's burden of proof.
2.

When a party fails to object to the giving of an instruction, an appellate court reviews the issue under the clearly erroneous standard.

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3. A shotgun instruction under K.S.A. 60-455 is rarely proper and increases the risk of error. In this case, the shotgun instruction was overbroad. District judges should not instruct upon any K.S.A. 60-455 factor that is obviously inapplicable.

4. Multiple steps are required in appellate analysis of evidentiary rulings. These steps must be followed for evidence that may be covered by the rape shield statute. The first issue is relevance, which has two components, materiality and probativeness. Materiality concerns whether the fact to be proved has a legitimate and effective bearing on the decision of the case. The appellate standard of review for materiality is de novo. On probativeness, the question is whether the offered evidence has any tendency in reason to prove a disputed material fact. An appellate court reviews probativity for abuse of discretion. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo. The contours of the rule in question in this case are found in the rape shield statute.

5. On the facts of this prosecution for child sexual abuse, the rape shield statute did not bar admission of a redacted portion of a letter from the victim to the defendant. The redacted portion dealt not only with the victim's sexual history but also with her admission that she had been untruthful about it.

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6.

Aggravated indecent liberties is not a lesser included offense of rape. If a jury is incorrectly instructed on this point and it convicts of aggravated indecent liberties, the conviction must be reversed for lack of jurisdiction. The defendant cannot be retried because conviction on a lesser offense, even if arrived at in error, is a de facto acquittal on the greater offense.

7. The inclusion of the phrase "another trial would be a burden on both sides" in an Allen-type instruction given before jury deliberations begin is error.

8. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the 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 effect rule if the evidence is overwhelming against a defendant. On the record in this case, five trial errors require reversal of the defendant's convictions under the cumulative error doctrine.
Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed July 16, 2010. Reversed and remanded.

Carl Folsom III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Amy L. Aranda, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by
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BEIER, J.: Raul Manuel Magallanez appeals his jury convictions in three child sexual abuse cases tried together by the district court. The district judge sentenced Magallanez to life imprisonment in 06 CR 681, consecutive to a total of 904 months in 07 CR 94 and 07 CR 95. Magallanez filed this timely appeal, and we have jurisdiction under K.S.A. 22-3601(b)(1).

Magallanez raises 15 issues. The following five are dispositive under the cumulative error doctrine:

(1) Whether the State committed reversible prosecutorial misconduct in closing argument by vouching for the credibility of witnesses, diluting its burden of proof, attempting to inflame the passions of the jury, and misstating the law;

(2) Whether the limiting instruction on prior crimes or civil wrongs was overbroad;

(3) Whether the district judge misapplied the rape shield statute by excluding relevant evidence concerning J.P.'s credibility and veracity;

(4) Whether the district court lacked jurisdiction to convict Magallanez of aggravated indecent liberties with a child in Counts 24 and 34 of 07 CR 94; and

(5) Whether the district judge erred in giving an Allen-type instruction to the jury.

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FACTUAL AND PROCEDURAL BACKGROUND

J.P.

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