The opinion of the court was delivered by
Jeffrey Stimec appeals his jury conviction of two counts of aggravated indecent liberties with a child, arguing the prosecutor committed misconduct during rebuttal closing argument by encouraging the jury to return to the juiy room and take a poll to determine whether any of them had engaged in conduct similar to the allegations against Stimec. Stimec also asserts other allegations of prosecutorial misconduct and argues his sentence
Because we hold today that the prosecutor’s statements during rebuttal constituted misconduct and deprived Stimec of a fair trial, we do not reach Stimec’s remaining allegations of prosecutorial misconduct or his sentencing claims. Accordingly, we reverse his convictions and remand this case for a new trial.
Analysis
Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we decide whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. Second, if misconduct is found, we 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. State v. Naputi,
Further, we have held that none of these three factors is individually controlling and before the third factor can override the first two factors, we
“must be able to say that tire harmlessness tests of both K.S.A. 60-261. . . and Chapman v. California,386 U.S. 18 , [22,]17 L. Ed. 2d 705 ,87 S. Ct. 824 (1967) . . . , have been met.” [Citation omitted.]’ State v. McCaslin,291 Kan. 697 , 715-16,245 P.3d 1030 (2011). The basic test asks whether tire error affected the defendant’s substantial rights, meaning whether the error affected the outcome of the trial.” State v. Smith,296 Kan. 111 , 130,293 P.3d 669 (2012).
Stimec challenges three statements made by the prosecutor during closing argument. Because we hold that the statements made during rebuttal, standing alone, were so prejudicial as to require
At trial, the State presented evidence that Stimec’s 6-year-old son, J.S., spent every other weekend with Stimec, and when he returned home one weekend, J.S. told his mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including on each other’s private parts.
J.S.’s mother and stepfather reported J.S.’s statements to the police. A forensic examiner interviewed J.S., and a tape of the interview was played at trial. During the interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S. rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, “[I]t feels good” and, “Oh yeah,” as this conduct was occurring.
Stimec testified he put lotion on his son but never in inappropriate places. Consistent with this testimony, in closing argument Stimec’s counsel suggested “[m]ost people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but for him to put lotion on his son’s back after a bath isn’t a crime.” In rebuttal argument, the prosecutor responded:
“It is not illegal to put lotion on a child’s back. It is not illegal to put it on their anldes, knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a crime to stroke your son’s penis with lotion. I mean, let’s just call it what it is, okay, that’s a crime. You know what, feel free to take a poll in the juiy room when you go to deliberate, take a poll. If there is one member of this panel who has stroked their son’s penis with lotion, then by all means, find that way. I suspect that won’t be the case.”
Stimec contends that with these comments, the prosecutor improperly appealed to the passions and prejudices of the jurors and distracted the jury from its role as factfinder. Further, he contends the prosecutor’s comments “sent the message that any jurors who voted not guilty may have engaged in this conduct themselves.”
This court has repeatedly emphasized that it is improper for a prosecutor to comment on facts not in evidence, to divert the jury’s attention from its role as factfinder, or to make comments that serve no purpose other than to inflame the passions and prejudices of the jury. See, e.g., State v. Hall,
Here, the prosecutor’s suggestion that the jury return to the juiy room and take a poll to determine whether any of them had “stroked their son’s penis with lotion” may well have been facetious, or “tongue in cheek.” Nevertheless, the comments were highly improper for several reasons, including that they: (1) appealed to the passions and prejudices of the jury; (2) diverted the jury’s attention from the facts of the case, explicitly inviting the juiy to consider facts outside the record; (3) implicitly commented on Stimec’s credibility; (4) misstated the evidence by suggesting Sti-mec “stroked” his son’s penis when in fact, tire victim’s statements and testimony did not utilize this phrase; and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing the likelihood any juror would argue for acquittal. Under these circumstances, we have no hesitancy in concluding the prosecutor’s statements were inappropriate and in error.
Citing State v. Baker,
Further, as the party benefiting from the effect of the improper comments, the State has failed to even argue that the comments did not prejudice the jury against Stimec or deny him a fair trial. See State v. Brown,
Under these circumstances, we conclude the prosecutor’s statements here were so patently egregious and prejudicial as to deny Stimec a fair trial, requiring that we vacate his convictions and remand for a new trial.
Reversed and remanded.