Full Opinion

NOT DESIGNATED FOR PUBLICATION No. 128,838 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. BERNICE FARMER, Appellant. MEMORANDUM OPINION Appeal from Riley District Court; KENDRA S. LEWISON, judge. Oral argument held September 22, 2026. Opinion filed November 13, 2026. Affirmed. Peter Maharry, of Kansas Appellate Defender Office, for appellant. David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Kris W. Kobach, attorney general, for appellee. Before SCHROEDER, P.J., PICKERING and BOLTON FLEMING, JJ. PER CURIAM: Bernice Farmer was convicted by a jury of attempted second-degree murder and aggravated battery. On appeal, Farmer argues that the prosecutor erred in closing argument by improperly attacking the integrity of defense counsel and implying that the defense theory was based on trickery or deceit. After a thorough review of the record, we do not find that the prosecutor's statements were made in error, and accordingly, we affirm. 1 FACTUAL AND PROCEDURAL BACKGROUND In October 2022, Farmer and her husband, Lee, went to the American Legion in Junction City for drinks with their friends, Tony and Janilee Barnes. Before leaving, Farmer witnessed Lee hugging Cathy Nuss, who was present at the American Legion with her husband. Once home, Farmer and Lee discussed Lee's encounter with Cathy. Later that evening, Tony received a call from Farmer, stating that she had shot Lee and asked what she should do. Tony informed Farmer that she should call the police and that he and Janilee would drive to her home. Farmer then dialed 911 and stated, "I just shot my husband." During the call she requested that a paramedic come to her residence. Farmer also told the dispatcher, "I just shot him in the head, he's dying." Riley County Police Officer Wesley Ulmer was the first officer to arrive at Farmer's home. Additional officers arrived at her residence, including Officer Holly Ugo. Office Ulmer found Lee in a recliner in the living room with a gunshot wound to the head. Officer Ugo spoke with Farmer. Farmer explained to Ugo that she and Lee had been arguing. Farmer claimed that she had pointed the gun at Lee and the gun had accidentally discharged. Farmer said she did not know the gun was loaded. During her conversation with Ugo, Farmer discussed her relationship with Lee and admitted that "she was tired of his shit." Ugo also learned that Farmer was upset with Lee because she believed he had made plans to meet Cathy at Walmart. Farmer was taken to the police station for questioning. During an interview with Detective Derek McKee, Farmer stated that she witnessed Lee flirting with Cathy while 2 at the American Legion. Farmer stated that once she and Lee arrived home, she questioned him about Cathy. Farmer recalled to McKee, "I can't take no more. And I picked up the gun and I didn't know it had shells in it." Farmer stated that she intended to scare Lee—to let him know she was fed up. She stated that she pulled the hammer back on the gun but did not pull the trigger. Farmer spoke with Detective McKee a second time after she had been arrested for shooting Lee. Farmer explained that when she approached Lee about his interaction with Cathy, he gave her a grin. Farmer told McKee that she felt she could not take it anymore and had planned to shoot herself while Lee was present in the room. Farmer stated that she brought the gun up to do so but did not pull the trigger. After Farmer was released from jail, she spoke to Tony and Janilee about the incident. Farmer told Janilee that the gun had fired while she was trying to take her jacket off. Farmer told Tony that she believed something had occurred between Lee and Cathy. Tony recalled that Farmer told him, "When they got home she walked back to the bedroom, got the gun, brought it back, got in front of Lee, told Lee that she was going to commit suicide." Farmer told Tony that as she brought the gun up to shoot herself, it fired. The State ultimately charged Farmer with attempted first-degree murder and aggravated battery. During Farmer's jury trial, the State's theory was that Farmer had intended to kill Lee, and the defense theory was that the gunshot was accidental. The State presented evidence of gunshot residue found on Farmer's right hand and the absence of any residue on her left hand and face. A firearms expert with the Kansas Bureau of Investigation also testified that the gun used had at least a two-pound trigger pull with a hammer block, preventing the gun from firing without a trigger pull. The State presented additional evidence that after the bullet struck Lee, it was recovered from the windowsill behind the recliner in which Lee had been found. The State also admitted evidence that 3 Farmer had experience with guns and had spent time at her brother-in-law's shooting range in New Mexico. Farmer's brother-in-law testified that, based on his experience, a .38 revolver would not fire a bullet if the hammer was only partially pulled back; but he admitted it was "not impossible." At the conclusion of evidence, both parties gave closing arguments and the State also gave a rebuttal. Most of the prosecutor's closing argument focused on the inconsistencies found in Farmer's statements to various individuals about the incident. During the defense's closing argument, defense counsel attempted to define reasonable doubt by using colored pieces of paper. Defense counsel also discussed Farmer's experience shooting guns and explained to the jury that if Farmer had intended to kill Lee, she could have easily done so, repeatedly using the word "boom" to make the point. Defense counsel also discussed bullet trajectory evidence during closing argument. Defense counsel argued that the trajectory of the bullet showed that the bullet from Farmer's gun struck Lee's head and then struck curtains that hung above the recliner where Lee was sitting. Defense counsel reasoned that the trajectory of the bullet did not suggest an intentional target. During rebuttal, the prosecutor told the jury to consider the evidence as well as the inconsistencies in Farmer's multiple explanations of the incident. The prosecutor also directly responded to defense counsel's use of the colored paper as well as the use of the word "boom" repetitively. The prosecutor also responded to the defense trajectory theory, stating it was "just an argument that was made up to fit the narrative what they're trying to say it is, right?" Finally, the prosecutor argued that the use of the word "boom" and colored paper in closing argument was "a distraction. Shouting at the top of her lungs, at the top of his lungs, that's a distraction." Defense counsel did not object to the prosecutor's statements in rebuttal. 4 The jury found Farmer not guilty of attempted first-degree murder but convicted her of the lesser included offense of attempted second-degree murder as well as aggravated battery. ANALYSIS DID THE STATE COMMIT PROSECUTORIAL ERROR DURING CLOSING ARGUMENT? Farmer alleges that the State committed prosecutorial error during closing argument by improperly attacking the integrity of defense counsel and implying the defense theory was based on trickery or deceit. The State argues that the prosecutor's comments were within the wide latitude afforded to prosecutors. Standard of Review Appellate courts use a two-step process to evaluate claims of prosecutorial error: error and prejudice. State v. Coleman, 318 Kan. 296, 302, 543 P.3d 61 (2024). "To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can demonstrate '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., where there is no reasonable possibility that the error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). 5 Discussion We are first tasked with determining whether the prosecutor's comments, when considered in context, fell outside the wide latitude afforded to prosecutors. "This wide latitude extends to allow prosecutors to highlight evidence and discuss inferences reasonably drawn from that evidence. But a prosecutor may not misstate the law applicable to the evidence, comment on witness credibility, or shift the burden of proof to the defendant. [Citation omitted.]" Coleman, 318 Kan. at 302. Farmer makes two separate challenges to statements made by the prosecutor in rebuttal, and we will address each in turn. The first challenge pertains to a group of statements made by the prosecutor in response to defense counsel discussing colored pieces of paper and also repeating the word "boom" multiple times while referencing Farmer's ability to shoot. It is important that we consider the prosecutor's statements in context. "In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation." State v. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019). We begin then by noting that in closing argument, defense counsel showed the jury different colored pieces of paper and began to argue reasonable doubt. The district court sustained an objection from the State, but defense counsel nonetheless stated, "As we look at this we can all agree that this color of—that this piece of paper is not blue and it is in fact green, but it says blue on it." 6 Defense counsel also discussed the defense's theory that Farmer shooting Lee was an accident. Defense counsel pointed out Farmer's experience with using firearms by arguing: "This is a five-shot revolver. At 20 feet, she's lethal. Hard to miss at five feet, plus two and a half feet that she gets closer to Lee as she points the gun at his head. If she wanted Lee dead, boom. He's dead. Boom. He's dead. Boom. He's dead. Boom. He's dead. Boom. He's dead. Five times she could have shot him, if she wanted him dead. One shot. One shot. Where did the shot come from?" During rebuttal, the prosecutor addressed both the use of colored paper to explain reasonable doubt as well as defense counsel's argument that Farmer would not have missed if she intended to shoot Lee: "Well, ladies and gentlemen of the jury, now, it was used as a dramatic demonstrative. He yelled 'boom' a whole bunch of times, right? "This isn't about yelling about as loud as you can to make a point. This isn't about colors and demonstrative aids. This is about the facts, right? And so when she shot Lee, right? Sure, there would have been that loud boom. Did that loud boom surprise a bunch of you, right? Get you to maybe focus on intention?" Later in rebuttal, the prosecutor similarly argued that defense counsel's use of colors in closing argument was "a distraction. Shouting at the top of her lungs, at the top of his lungs, that's a distraction." Farmer argues that the prosecutor's statements improperly attacked defense counsel's integrity and implied that the defense theory was based on "trickery and deceit." Farmer asks us to consider State v. Villanueva, 274 Kan. 20, 49 P.3d 481 (2002), State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461 (1997), and State v. Knox, 301 Kan. 671, 347 P.3d 656 (2015), in support of her argument. 7 In Villanueva, the prosecutor told the jury during the State's rebuttal that "'[t]he funny thing is that's not the—that's not the only rape that took place in this case. The second rape . . . took place when she had to come in here and had her character attacked and her memory attacked.'" 274 Kan. at 33-34. While our Kansas Supreme Court found that the prosecutor's remarks fell outside of the wide latitude allowed prosecutors, the error did not warrant reversal. 274 Kan. at 33-36. In Lockhart, the prosecutor referred to the defendant as a liar and drug dealer. The prosecutor also suggested that the defendant had over a year to think about the defense he would raise and the lies he would perpetuate. A panel of this court determined that the comments constituted reversible error. 24 Kan. App. 2d at 492-93. In Knox, the Kansas Supreme Court held that a prosecutor's comments on the credibility of the State's witnesses as well as a comment that it was the job of defense counsel to make the State's witnesses "'look like liars'" constituted error. 301 Kan. at 684. However, the court concluded that the misconduct did not deny the defendant a fair trial. 301 Kan. at 684-85. "'[F]air comment on trial tactics and the interpretation of evidence is allowed, so long as care is taken not to "inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses."'" State v. Butler, 307 Kan. 831, 865, 416 P.3d 116 (2018). Here, the prosecutor's statements are distinguishable from those made in Villanueva, Knox, and Lockhart because the prosecutor's comments fairly responded to defense counsel's closing argument. See State v. Baker, 249 Kan. 431, 448-49, 819 P.2d 1173 (1991) (prosecutor may respond in kind to defense counsel's arguments). Though we caution that comments like those made by the prosecutor begin to approach the line that limits the wide latitude afforded to prosecutors, unlike the cases cited by Farmer, here the prosecutor's comments did not claim or imply that defense counsel had unfairly treated the victim as part of the defense theory. Nor did the prosecutor allege that Farmer 8 or defense counsel was dishonest. Instead, the prosecutor asked the jury to disregard that which was not evidence and only decide the case on the evidence before it—a permissible request. We find no error in this first category of the prosecutor's statements. Second, Farmer challenges the prosecutor's statement that was made in response to Farmer's trajectory defense theory. To put the prosecutor's statement in context, we begin with defense counsel's statements in closing argument: "Here's what I know. You get to use your common sense. If the 6'9" Lee Farmer is sitting in the chair and the bullet grazes the top of his scalp towards the middle of his scalp, exiting towards the rear of his scalp, and we know that the bullet hole or the bullet exited and went eight inches above the headrest of the recliner, the angle of the firearm is going up, because if that gun is being pointed down on Lee and he was getting shot in the head, the bullet, the .38 Special is a caliber which can in fact penetrate bone. It would have entered his skull and killed him. It did not." In rebuttal, the prosecutor responded: "Again, we want to make arguments about bullet trajectories and this, that, and the other. Well, if you go back and you listen to the science professionals in this case, and one of them being Crime Scene Investigator Wade Cherms, what did he tell you? Okay? When a projectile hits a hard object like a human skull, a lot of things can happen. That bullet can go all different ways. So to say that there's any scientific proof that because Mr. Farmer got hit on the top of his skull and shot in his head that that definitively proves what angle it is from, there's no evidence for that. It doesn't support that. No one said that. It's just an argument that was made up to fit the narrative what they're trying to say it is, right?" Farmer challenges the specific statement, "It's just an argument that was made up to fit the narrative what they're trying to say it is, right?" Farmer argues that the prosecutor's statement "continued to denigrate the defense." We believe that while the 9 statement teetered on being improper, it narrowly falls within the wide latitude afforded prosecutors. Considered in context, the prosecutor's statements were a fair response to the arguments made by defense counsel related to the defense trajectory theory. Butler, 307 Kan. at 865. The statements pointed out the lack of evidence in the case to support the defense theory that the trajectory of the bullet proved Farmer's actions were not intentional. The prosecutor was allowed to comment on trial tactics and the interpretation of evidence, and we do not find that the prosecutor's comments crossed the line into denigrating defense counsel. While we do not encourage such statements as the defense argument was "made up to fit the narrative," the challenged statement does not constitute error. Affirmed. 10