State v. Hublein

NOT DESIGNATED FOR PUBLICATION No. 127,753 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. TODD C. HUBLEIN, Appellant. MEMORANDUM OPINION Appeal from Reno District Court; TRISH ROSE, judge. Oral argument held April 14, 2026. Opinion filed October 30, 2026. Convictions affirmed, sentence vacated, and case remanded with directions. Kasper Schirer, of Kansas Appellate Defender Office, for appellant. Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney, and Kris W. Kobach, attorney general, for appellee. Before PICKERING, P.J., ISHERWOOD, J., and ANDREW M. STEIN, District Judge, assigned. ISHERWOOD, J.: Todd C. Hublein brings this appeal to persuade our court that the erroneous admission of evidence during his trial casts doubt on the jury's conclusion that he was guilty of four counts of stalking and three counts of violating a protective order. He specifically contends that because the district court improperly denied his motion to suppress, the jury was permitted to hear evidence that was obtained in violation of his constitutional rights. According to Hublein, the negative impact of that evidentiary error was then compounded when the district court granted the State's request to allow one of 1 its witnesses to testify remotely. Finally, Hublein asserts that his sentencing proceeding was equally flawed because his prior South Dakota stalking conviction was improperly included in his criminal history score. We carefully analyzed each of Hublein's assertions of error and conclude that none of his guilt-phase based claims, viewed either independently or collectively, necessitate reversal of his convictions. We agree, however, that the district court erred when it included Hublein's South Dakota stalking conviction when it calculated his criminal history score. Accordingly, his case must be remanded for imposition of sentence in accordance with the proper criteria. FACTUAL AND PROCEDURAL BACKGROUND Hublein and Valerie (a pseudonym) were romantically involved, and he eventually moved into the home that Valerie shared with her father and son. The relationship soured over time and Valerie broke it off, but she allowed Hublein to remain at the residence until he secured alternate living arrangements. She was ultimately forced to rescind that offer when Hublein's behavior toward her grew increasingly hostile and it became apparent he was not making any meaningful overtures toward finding another place to live. Not long after Hublein's departure, Valerie obtained a temporary protection from stalking (PFS) order against him. Her father, son, and daughter were likewise under the umbrella of its protection. Highly summarized, its terms prohibited Hublein from following, harassing, threatening, or interfering with the privacy rights of the protected person(s) and their household. He was also expressly barred from attempting to communicate with the protected parties, or directing another to do so, through any medium, including social media. Shortly after the order was served, Valerie, her son Max (a pseudonym), and her father began receiving threatening text messages at all hours. Although the sender was 2 frequently identified as "Justin," or a member of military personnel, given the content of the messages, each recipient believed that Hublein was the source of the threats. Specifically, the person expressed knowledge of a constellation of topics that collectively, very few people other than Hublein were aware of, including Valerie's employment, her father's battle with cancer, and her son's specific educational pursuits through a nearby community college. The messages also disclosed that the sender was tracking Valerie's movements in that they referenced a concert she recently attended, when she turned in for the night or rose for the day, what she wore on a particular occasion, and whether she opted to leave work for lunch. She promptly notified the Hutchinson Police Department and was put in contact with Officer Dalton Leonard. Valerie shared the messages with Officer Leonard and informed him that Hublein also contacted her son's employer. The case was eventually assigned to Detective Braden Stewart for further investigation. The messages continued and in the opinion of Valerie and her family, Hublein was undeniably the source of a fair number of those communications as the sender demanded that either Valerie or "your daughter" stop ignoring them and answer or return their calls. Those demands were frequently accompanied by threats; some that targeted Valerie's employment and military retirement benefits and another in which the sender warned that Valerie's failure to contact them would result in adverse consequences to her son's education and scholarship. An effort to bring the latter to fruition occurred the following day when Max's academic department head received a call from an individual who identified themselves as "a concerned parent." The caller alleged that Max "was involved in drug use," had been "high" for the past two months, and should have his scholarship revoked. Valerie changed her number multiple times, to no avail, and efforts to block Hublein on social media likewise proved futile. On one particular occasion her attempt to 3 block him on Snapchat was followed a short time later by a "friend request" from "Todd's new phone," under which it read "Justin." Valerie had frequent contact with the police department throughout the ordeal. Initially, Detective Stewart attempted to simply address the issue with Hublein through a series of phone calls. Following the incident involving the community college, the detective obtained the number that the call originated from, and it matched the one he had for Hublein. Stewart called the number and the person who answered the phone identified himself as Hublein. Not surprisingly, Hublein acknowledged receipt of the PFS order, but he denied any involvement in the nefarious conduct that followed. He asserted that his stepbrother, "Justin," was a possible culprit despite the fact he had never met "Justin" and knew of no reason why he would feel compelled to contact or threaten Valerie's family. During a later interview, Hublein claimed to not even know Valerie's father's name and suggested that one of his coworkers may have taken his phone and used it to send the messages or place the calls. On that occasion, Hublein offered a different explanation for the call placed to Max's school. He told Detective Stewart that he called to inquire about registering for a motorcycle class and was mistakenly transferred to the department that housed Max's area of study. The calls and messaging grew so relentless that Detective Stewart eventually took Hublein into custody. When he placed Hublein under arrest the detective noticed a phone on Hublein's right hip, so he inquired whether Hublein would consent to a search of the device. Hublein declined so Detective Stewart explained that he would seize the phone as evidence and apply for a search warrant. The men disagree to what occurred next. According to Detective Stewart, Hublein handed the phone to him along with a passcode to access the device, and granted him permission to open any apps. The two men then looked through the phone's messaging apps together. Conversely, Hublein denies that he ever consented to the search. 4  Detective Stewart's search of the phone yielded Snapchat messages Hublein sent to Valerie, as well as text messages between Hublein and his ex-wife that discussed Valerie and the protective order. The detective advised Hublein of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and obtained a search warrant for the phone. The State ultimately charged Hublein with four counts each of stalking and violating a protection from stalking order, and one count of attempted stalking. Prior to trial, Hublein moved to suppress evidence obtained from the search of his phone while the State moved to allow Hublein's ex-wife to testify remotely from South Dakota. Following a hearing to address both requests, the district court denied Hublein's motion and granted the State's request. Hublein's case proceeded to trial and the State offered testimonial evidence through multiple witnesses, including remotely from Hublein's ex-wife, as well as screenshots of messages that Valerie and her father received from Hublein, in an effort to prove its case to the jury. At the conclusion of the State's case, the district court dismissed the attempted stalking count that arose from Hublein's contact with his ex-wife. The jury convicted Hublein of four counts of stalking and three counts of violating a protective order, and the district court sentenced him to serve a prison term of 130 months followed by 24 months of postrelease supervision. Hublein now brings his case to this court for a determination of whether his right to a fair trial was compromised by the erroneous admission of evidence and whether his sentence is the product of an inaccurate criminal history score. We incorporated those additional facts required for a thorough analysis of the claims raised for our consideration. 5  LEGAL ANALYSIS Did the district court err by denying Hublein's motion to suppress? Hublein contends that his convictions must be reversed because the record demonstrates that the investigating officers failed to honor his clear invocation of the right to counsel and that the evidence obtained from his cell phone was the product of an unconstitutional search. The State counters that Hublein failed to articulate an invocation. It further asserts that Hublein consented to the warrantless search of his phone and, moreover, he had a diminished expectation of privacy in that device given his status as a probationer when the search was conducted. Standard of Review When analyzing the district court's ruling on a motion to suppress, this court utilizes a bifurcated standard. We determine whether the underlying factual findings are supported by substantial competent evidence and conduct a de novo review of the district court's legal conclusions. State v. Moore, 311 Kan. 1019, 1034, 469 P.3d 648 (2020). We are expressly prohibited from resolving evidentiary conflicts, reweighing the evidence, or assessing the credibility of witnesses in arriving at our conclusion. State v. Yeargin- Charles, 321 Kan. 271, 275, 577 P.3d 542 (2025). When the material facts are not disputed, "'the question of whether to suppress evidence becomes a question of law subject to unlimited review.'" State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). Hublein consented to the search of his cell phone. Hublein contends that he neither consented to the search of his cell phone, nor did the terms of his probation allow a warrantless search of the device. Thus, the district court erred when it declined to suppress evidence law enforcement officers obtained as a product of the unlawful search. 6  "The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception." State v. Ramirez, 278 Kan. 402, 404-05, 100 P.3d 94 (2004). Consent is among the exceptions recognized in Kansas. 278 Kan. at 405. The existence, voluntariness, and scope of a consent to search is a question of fact to be determined from the totality of the circumstances. State v. Moore, 283 Kan. 344, 361, 154 P.3d 1 (2007). The State bears the burden to establish, by a preponderance of the evidence, that the search was voluntary. State v. Daino, 312 Kan. 390, 397, 475 P.3d 354 (2020); State v. Talkington, 301 Kan. 453, 476, 345 P.3d 258 (2015). Its failure to satisfy that burden can result in the suppression of the evidence. Daino, 312 Kan. at 397. A defendant's consent is considered valid when (1) law enforcement officers received express or implied consent free of duress or coercion; and (2) "consent was unequivocal, specific, and freely and intelligently given." Daino, 312 Kan. at 397. There is no requirement that such consent be verbalized. Rather, a suspect's "gestures or other indications of affirmation" may constitute sufficient expressions of consent provided they meet these criteria. 312 Kan. at 397, 403. When that is the landscape in which the consent was allegedly given, courts must simply determine whether the suspect's actions would have led a reasonable officer to conclude that the defendant consented to a particular search. 312 Kan. at 397, 403. Hublein's primary position for this issue is an absence of consent. He advances the alternative argument that anything perceived as his consent should be viewed as the product of coercion because it was only offered in the wake of Detective Stewart's statement that he would simply apply for a search warrant if Hublein refused to agree to an examination of his phone. 7  On the day of Hublein's arrest, Detective Stewart and Detective Trevor Stoll arrived at Hublein's place of employment dressed in plain clothes, operating an unmarked vehicle, and peaceably took him into custody. While those are all relevant factors in the overall voluntariness calculus, we find that Hublein's physical actions and conduct in relation to the phone specifically provide the most compelling evidence of his consent. The testimony elicited at the suppression hearing indicated that Detective Stewart noticed the phone in Hublein's belt clip as he was escorted from the building following his arrest. Hublein initially declined the detective's request to search the device, but when Stewart informed Hublein he was going to seize the phone anyway and apply for a warrant to examine its contents, Hublein personally removed it from his belt, handed it to Stewart, and told him to "go ahead." During the hearing, Detective Stewart informed the court that Hublein was directed to a seated position on the ground a short time later and Stewart kneeled alongside him to view the phone in his presence. Hublein provided the passcode upon request, without incident, and Detective Stewart entered it within Hublein's direct line of vision. Upon observing a messaging app on the phone, the detective requested and received permission from Hublein before opening it. Once Stewart obtained access to the contents of that app, he remained alongside Hublein which enabled him to see the phone as the detective scrolled through his messages. Notably, there was no evidence presented during the suppression hearing to indicate that Hublein attempted to revoke his consent after those investigatory wheels were set in motion. Again, an individual may provide consent through gestures or conduct that affords a law enforcement officer the same level of permission as if the consent was provided through spoken words. 312 Kan. at 397 (while consent must be unequivocal, specific, and freely and intelligently given, neither Kansas law nor constitutional doctrine require that it be written or spoken); United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007). We are satisfied that showing was made here, and in so finding draw some measure of guidance from our Supreme Court's opinion in State v. Younger, 320 Kan. 98, 130-32, 564 P.3d 744 (2025), which likewise analyzed whether valid consent was given to search 8 a cell phone. As law enforcement officers interviewed Younger in connection with a murder investigation, the county attorney inquired whether he had Younger's permission to search her phone. Younger nodded her head and stated "okay." The district court denied Younger's pretrial effort to suppress the evidence acquired from her phone upon finding that the totality of the circumstances reflected that her consent was voluntary and cooperative. 320 Kan. at 132. On appeal, the Supreme Court determined that the district court's conclusion was supported by substantial competent evidence. It expressly declined Younger's implicit request for the court to draw inferences from the evidence that the district court specifically rejected. 320 Kan. at 132. See United States v. Allison, 814 F. Supp. 3d 848, 867-68 (E.D. Mich. 2026) (Under the totality of the circumstances, defendant's consent to the warrantless search of his cell phone was voluntary. The state trooper clearly explained what consent would entail and repeatedly stressed that it was defendant's choice whether to allow him to search the phone.); United States v. Parrish, 942 F.3d 289, 294 (6th Cir. 2019) (Defendant voluntarily consented to search of his cell phone where he handed it over to the officers after they requested permission to look at it and then assisted them with changing the passcode to allow them to search it.); State v. Hemminger, 904 N.W.2d 746, 754-55 (S.D. 2017) (Under the totality of the circumstances, the defendant's use of the words "go ahead," "okay," and "I've got no problem with that," evidenced free and voluntary consent to the search of his cell phone, particularly where he repeatedly referred officers to his phone, asked them to look at his messages, and gave them the passcode required to access the device.). The record before us reflects that Hublein removed his phone from his belt in response to Detective Stewart's single request for the same, handed it over to him, and encouraged the detective to "go ahead." Moments later, he provided Detective Stewart with his access code, sat peaceably alongside Stewart as the detective scrolled through the phone, and provided consent in response to Stewart's request to open specific apps on the phone. We have no difficulty concluding that such conduct would have led a reasonable law enforcement officer to determine that they were given consent to conduct 9 the search at issue. This finding guides us directly into Hublein's alternative argument that any appearance of consent is deceiving. Rather, his argument goes, his conduct simply illustrates his acceptance of the reality that a search was inevitable given Detective Stewart's statement that he would obtain a warrant if Hublein declined to provide consent. A law enforcement officer's expression of an intent to seize a suspect's phone and apply for a search warrant does not, in and of itself, strip a subsequent search of its voluntariness and render it unlawful or coercive. See State v. Harris, 320 Kan. 31, 42-46, 562 P.3d 1001 (2025) (discussing whether an officer's threat to apply for a court order invalidates a defendant's consent); State v. Brown, 245 Kan. 604, 607-08, 783 P.2d 1278 (1989) (explaining that a threat to obtain a warrant may invalidate a consent whereas a threat to seek a warrant is merely a prediction that such application would be granted). In Harris, the officer requested a passcode to the defendant's cell phone and when the defendant declined, the officer informed him that a court order could be obtained to compel Harris to provide access to the device. 320 Kan. at 42. Harris later claimed the officer's remark was coercive and thereby invalidated any consent Harris seemingly provided. 320 Kan. at 42. On review, the Harris court explained that coercive police conduct arguably falls within one of two broad categories: that which is inherently coercive and that which is simply coercive under the circumstances. The former encompasses those physical or psychological tactics that are "'inherently offensive to a civilized system of justice.'" 320 Kan. at 43 (quoting State v. G.O., 318 Kan. 386, 397, 543 P.3d 1096 [2024]). The second category is fact-intensive and takes the "unique characteristics of the accused" into consideration. Harris, 320 Kan. at 43. The totality of the circumstances, including but not limited to specific details about the interrogation and the maturity, language proficiency, 10 and intellect of the accused, determines which category a particular case will fall under. 320 Kan. at 43, 45-46. The Harris court stated that simply feeling compelled to speak does not violate the Fifth Amendment unless the pressure is so great that the suspect's will is overborne. 320 Kan. at 46-47. Accordingly, where Harris was not unduly restrained, the detectives did not raise their voices or exhibit aggressive behavior, and the conversation Harris shared with them was very brief, it could not be said that the officer's statement that he would seek a warrant was coercive either standing alone or under the totality of the circumstances. Thus, Harris' decision to share his passcode was the product of his own free will. 320 Kan. at 48. We are convinced, from the totality of the circumstances outlined above, that Hublein's case demands the same interpretation. He voluntarily shared the passcode to his phone with Detective Stewart and, as a result, his motion to suppress was properly denied. Our Supreme Court's decision in Brown, 245 Kan. 604, provides an additional analytical prong to undergird the district court's suppression ruling. In that case, the court found that a threat to obtain a warrant may serve to invalidate any consent subsequently granted when valid grounds never existed for formulation of a warrant. But the converse is equally true—when a law enforcement officer states that a search warrant can be obtained and grounds for the issuance of such a warrant does exist, the statement does not constitute coercion. Stated another way, if there is probable cause to obtain a warrant a statement expressing the ability to do so is not coercive. 245 Kan. at 608. Returning to the facts of Hublein's case once again, with Brown as our backdrop, we find Detective Stewart had the requisite probable cause in the event he was compelled to pursue a search warrant. Specifically, the threats sent to Valerie and her father, as well as to the department head at the community college, all originated from a phone number that was traceable to Hublein, either as a registered contact or by his ability to generate 11 fake phone numbers through a messaging app. The content of those messages also contained information that was unique to an individual with close personal ties to Valerie and her family, such as her father's particular health challenges and her son's educational pursuits, including his area of study as well as his chosen institution. Our comprehensive review of this particular prong of Hublein's overall challenge to the denial of his suppression motion leads us to affirm the decision of the district court. It properly concluded that he was foreclosed from obtaining relief through this particular claim given the facts and circumstances of his case. Warrantless searches were authorized by the terms of Hublein's probation. Hublein's second contention of error under this issue consists of the claim that the State's failure to establish that the terms of his probation authorized warrantless searches renders Detective Stewart's search of his phone unlawful. K.S.A. 21-6607(b)(10) unequivocally states that an individual on probation is "subject to searches of the defendant's person, effects, vehicle, residence and property by a court services officer, community correctional services officer or any other law enforcement officer based on reasonable suspicion that the defendant violated conditions of probation or engaged in criminal activity." In State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2016), our Supreme Court observed that a person's reasonable expectation of privacy is commensurate with the level of freedom that person enjoys in society. So, people under the State's supervision, such as probationers like Hublein, have a reduced privacy interest when compared to that of their unrestricted counterparts. 288 Kan. at 92. A necessary corollary is that the State's interests in promoting offender rehabilitation and securing the safety of its citizens justify searches based on reasonable suspicion. 12  Hublein directs our attention to United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), for the proposition that a warrantless search of a probationer is only a recognized exception when (1) it is supported by reasonable suspicion; and (2) the probationary terms specifically authorize warrantless searches. We pause a moment to note that if we opted to proceed with this analytical framework, we would be required to find that Hublein opted to sidestep any challenge to the validity of any reasonable suspicion Detective Stewart claimed to have and instead focused solely on the assertion that the State failed to establish that such searches were expressly provided for by the terms and conditions of his probation. Accordingly, any shortcoming he may have perceived with the detective's degree of reasonable suspicion was waived and could not be a component in our resolution of this issue. See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021) (issues not adequately briefed are deemed waived or abandoned). In Knights, the probationer signed an order acknowledging that he would "'[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.'" 534 U.S. at 114. Specifically, he attested with his signature that he received a copy of the conditions he was required to adhere to, understood those requirements, and agreed to abide by the same. 534 U.S. at 114. A closer reading of Knights, however, makes clear that the search condition was but one "salient circumstance" subject to inclusion in the analysis of the totality of the circumstances when endeavoring to establish the reasonability of the search. 534 U.S. at 118-19. So the court was not required to decide whether Knights' acceptance of the search condition constituted consent to a complete waiver of his Fourth Amendment rights. 534 U.S. at 118. The Knights Court reiterated that "[t]he touchstone of the Fourth Amendment is reasonableness," which is determined by measuring the degree to which a 13 search invades a person's privacy against the degree to which the search is necessary to the preservation of legitimate government interests. 534 U.S. at 118-19. Here, Hublein was on probation and Detective Stewart was aware of the same. Thus, even if a finding was made that Hublein did not consent to the search, his status as a probationer diminished his expectation of privacy. As we observed in our immediately preceding analysis, the caller or message sender relayed intimate details of the victim and her family, including medical details few people were aware of. The detective also testified that his "training and experience" taught him that cell phone apps could create false phone numbers. Given that Detective Stewart had knowledge of Hublein's probationary status, as well as the protection order, he necessarily had reasonable suspicion to believe Hublein's violation of that order ran contrary to the terms of his probation. The search of Hublein's cell phone was reasonable because he implicitly consented to the search through the terms and conditions of his probation. Even in the absence of that acceptance, we must still find it lawful given Detective Stewart's reasonable suspicion that Hublein used his phone to violate the terms of his probation. Accordingly, the district court did not err in admitting evidence discovered during the search. Hublein did not clearly and unequivocally invoke his right to counsel. When Hublein entered the interrogation room and observed Detective Stewart seated there, Hublein remarked, "You're not an attorney." When Stewart requested clarification, Hublein repeated his remark. The detective concurred with Hublein's observation and then provided him with a copy of the rights waiver and read Hublein his Miranda rights. Hublein confirmed that he understood his rights by shaking his head affirmatively and agreed to speak with the detective "for now." Hublein confirmed his statement after Detective Stewart sought clarification. 14  It is Hublein's position that a reasonable person would consider the statement, "'You're not an attorney,'" to be a clear invocation of the right to counsel. He asserts that State v. Aguirre, 301 Kan. 950, Syl. ¶ 2, 349 P.3d 1245 (2015), mandates suppression of any evidence obtained as a result of his interrogation because Detective Stewart failed to scrupulously honor his invocation. The State counters that no such clear invocation occurred, and we share that assessment. Under the Fifth Amendment to the United States Constitution, individuals have a right against self-incrimination. U.S. Const. amend. V. This right includes the right to remain silent and the right to counsel during custodial interrogations. State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda, 384 U.S. at 479). The right against self-incrimination is also expressed under section 10 of the Kansas Constitution Bill of Rights. Aguirre, 301 Kan. at 954. Law enforcement officers may question a suspect if the individual "knowingly and intelligently waives these rights." Walker, 276 Kan. at 944. A suspect may invoke their right to counsel at any time but must "'at a minimum, [make] some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.'" 276 Kan. at 944-95 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 [1991]). The individual "'must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'" Walker, 276 Kan. at 945 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 [1994]). Whether an individual's statement was sufficiently clear is an objective inquiry. Walker, 276 Kan. at 945. If the suspect's request for counsel is sufficiently clear, "[l]aw enforcement must scrupulously honor" that request and all questioning must cease. State v. Mattox, 305 Kan. 1015, 1036-37, 390 P.3d 514 (2017). The United States Supreme Court has 15 established that (1) some suspects may be disadvantaged by the objective standard as they may not clearly articulate their invocation; (2) "'a suspect need not "speak with the discrimination of an Oxford don"'"; and (3) interrogators may, but are not required, to ask clarifying questions if a suspect makes an ambiguous statement about speaking with counsel or remaining silent. Walker, 276 Kan. at 945 (quoting Davis, 512 U.S. at 459). In Walker, the court examined several statements to determine whether any truly constituted an invocation of the Fifth Amendment right to counsel. During his custody, Walker stated: "'[D]o I need to get a lawyer?'" and "'That's why I can't wait to get over there [to jail] man so I can call a lawyer and tell him.'" 276 Kan. at 947. Walker's other statements included "'my peoples . . . need to go get me a lawyer so the lawyer there to talk to me.'" 276 Kan. at 947. The court concluded that none of the statements amounted to an invocation of the right to counsel. 276 Kan. at 947. Walker also requested to speak with Officer Robinson, a family friend. During his discussion with Robinson, Walker stated: "'I ought to get me a paid lawyer. Then I'm have to strike a deal with the DA.'" 276 Kan. at 950. After further discussion, Walker expressed a desire to contact his lawyer "'right now'" to come in and speak with the officers. 276 Kan. at 951. The court found Walker's statements constituted an invocation of his Fifth Amendment right to counsel and emphasized the undercurrent of immediacy in his communications. 276 Kan. at 952. It found that the officers' failure to honor Walker's clearly articulated requests demanded reversal of his convictions. 276 Kan. at 952-53. Hublein's statement falls well short of what was communicated in Walker and is more appropriately characterized as ambiguous at best. Unlike Walker, Hublein neither asked for counsel nor indicated to anyone that he needed counsel before speaking with Detective Stewart. Rather, Hublein merely observed that the detective was not an 16 attorney and when the detective sought clarification, Hublein repeated his observation. The governing standard is "whether a reasonable police officer under the circumstances would understand the . . . statement as an assertion of a Miranda right." Aguirre, 301 Kan. at 957. In our opinion, a reasonable law enforcement officer in this situation would likely recognize Hublein's observation as nothing more than what it is: a simple statement of fact. See Walker, 276 Kan. at 945. Finally, timing is also a crucial factor. Hublein contends that he invoked his right to an attorney when he asked a judge to appoint counsel. But the Sixth Amendment right to counsel at critical stages of prosecution is distinct from the Fifth Amendment right to counsel during custodial interrogations. Compare U.S. Const. amend. V with U.S. Const. amend. VI. The Sixth Amendment right to counsel is offense-specific where the Fifth Amendment does not share that characteristic. State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009). Therefore, Hublein's request for representation during critical stages is largely irrelevant to the issue at hand. We are not persuaded that the facts of Hublein's case demonstrated a need for Detective Stewart to cease questioning. Accordingly, the district court properly denied Hublein's request to suppress any incriminating statements he uttered during the interrogation. Did reversible error occur as a result of the district court's decision to allow a prosecution witness to testify remotely? In his final claim of substantive error arising within the guilt phase of his trial, Hublein contends that the policy reasons cited by the State failed to provide sufficient justification for allowing its witness to testify remotely. Accordingly, the district court erred, and violated his rights under the Confrontation Clause, when it granted the State's request to offer the testimony of Hublein's ex-wife via Zoom. 17  The Sixth Amendment to the United States Constitution, incorporated by the states through the Fourteenth Amendment, guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Kansas applies the right to "'meet the witnesses face to face'" under section 10 of the Kansas Constitution Bill of Rights, mirroring federal doctrine. Younger, 320 Kan. at 108. Appellate courts exercise unlimited review over issues arising out of the Confrontation Clause. 320 Kan. at 107 (citing State v. Belone, 295 Kan. 499, 502, 285 P.3d 378 [2012]; United States v. Cotto-Flores, 970 F.3d 17, 39 [1st Cir. 2020] ["whether trial judge made specific findings sufficient to permit the use of closed-circuit television testimony is a legal issue subject to de novo review"]). When a district court makes the required specific factual findings, this court may review that decision for clear error. Younger, 320 Kan. at 107 (citing Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct. 1859, 114 L. Ed. 2d 395 [1991] ["when there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous"]). Finally, if we detect that a violation occurred, we filter it through a harmless error analysis. Under that standard the State, as the party benefiting from the error, has the burden to establish, beyond a reasonable doubt, that there is no reasonable possibility the error impacted the verdict. State v. Bennington, 293 Kan. 503, 524, 264 P.3d 440 (2011). Hublein acknowledges circumstances occasionally arise that demand that a witness be granted leave to testify remotely. He simply takes the position that his ex- wife's travel expenses, lost wages, and obligation to secure care for her animals while she was away from home for the trial did not rise to the level of those "'important public policies'" deemed sufficient to override his constitutional right to confront the witness. He contends that the district court's flawed analysis resulted in a degree of prejudice to him that requires reversal of his convictions. 18  Prior to trial, the district court conducted a hearing to address the State's motion to offer the testimony of Hublein's ex-wife, via Zoom, from her home state of South Dakota. The State asserted that the testimony was relevant to establish its charge against Hublein for the attempted violation of a protective order. Specifically, the witness was expected to testify that Hublein solicited her, via text message, to send messages to Valerie on his behalf. The State argued its request was justified because traveling to offer her exceptionally brief testimony would result in significant financial strain for the witness, in the form of expenses and lost wages, as well as the inconvenience of boarding her animals. Hublein countered that there was nothing extraordinary about the witness' circumstances that distinguished her situation from that of jurors and witnesses called to testify in any other trial. Thus, allowing her remote testimony violated his right to confront adversarial witnesses. The district court initially denied the State's request but later made an about-face and agreed to allow the remote testimony, contingent upon the State's fulfillment of several predicate conditions. Specifically, the State had the burden to secure a "controlled environment" for the witness to testify from, ensure she was administered the oath, and accompanied by a neutral party who could attest to the fact that she was alone. Hublein timely renewed his objection to the witness' testimony at trial. Our Supreme Court has held that the primary purpose of the Confrontation Clause is to