BY THE COURT
res gestae of a crime includes the acts committed before,
during, or after the happening of the principal occurrence,
when those acts are so closely connected with the principal
occurrence as to form, in reality, a part of the occurrence.
Deaths caused within the time and circumstances of an
underlying felony's res gestae qualify as felony murders.
The focus is on whether the act causing the death occurred
during the res gestae of the underlying felony; the death
resulting from that act need not have occurred immediately.
Evidence of felony murder is sufficient when testimony
supports the State's theory that a victim's death 21
days after a rape was caused by blood clots that formed
because of the victim's immobility, which, in turn, was
precipitated by her pain from injuries suffered in the
direct causal connection exists between the crime underlying
felony murder and the death that follows from it unless an
extraordinary intervening event supersedes the
defendant's act and becomes the sole legal cause of
death. An intervening event does not qualify as extraordinary
if it was foreseeable.
Sufficient evidence supports a defendant's conviction on
felony murder, including the foreseeability of a rape
victim's death 21 days after the attack, when injuries
the victim suffered caused pain that immobilized her, giving
rise to development of fatal blood clots.
Sufficient evidence supports a defendant's conviction of
aggravated burglary on the theory that he or she entered a
dwelling, in which there was a human being, with intent to
commit a sexually motivated crime therein when the jury heard
testimony that, with the exception of a mutilated back door
through which the attacker entered and a disorganized master
bedroom where the rape occurred, the house was tidy and
orderly; there were no signs of someone entering the house to
commit theft, e.g., drawers and cabinets left open or their
contents disturbed; neither responding officers nor crime
scene investigators noticed anything missing or moved, and
valuable items in open view were left behind by the attacker;
and the victim was raped during the burglary.
Comments from a prosecutor in closing arguments that inflame
the passions or prejudices of a jury are prohibited. Such
comments distract the jury from its mission to decide the
case on the evidence and controlling law. A prosecutor's
description of a 100-year-old victim as a
"treasure" to her family is erroneous, but, in the
context of this case, harmless.
race-switching exercise jury instruction, worded as suggested
by the defendant in this case, is not legally appropriate in
Kansas. Such an instruction tells jurors to deviate from
their legal responsibility to disregard anything but the
facts and the controlling law when arriving at their verdict
in a case.
Cumulative error may require reversal of a defendant's
conviction if-under the totality of the circumstances-more
than one error substantially prejudiced the defendant and
denied the defendant the right to a fair trial. The doctrine
of cumulative error does not apply when only one error has
from Sedgwick District Court; Benjamin L. Burgess, judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender
Office, argued the cause, and Samuel Schirer, of Kansas
Appellate Defender Office, was on the brief for appellant.
A. Isherwood, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
Kasey L. Nesbitt appeals his convictions for felony murder,
rape, and aggravated burglary, arising from a violent and
ultimately fatal attack on 100-year-old M.S. in her home.
raises five issues on appeal: (1) insufficient evidence to
support felony murder; (2) insufficient evidence to support
aggravated burglary; (3) prosecutorial error; (4)error in
refusal to give a requested jury instruction on a
race-switching exercise; and (5)cumulative error.
reject these challenges and affirm Nesbitt's convictions.
and Procedural History
attack on M.S. came to light in the early morning hours of
September 30, 2014, when she knocked on her neighbor's
door. The neighbor's son answered the knock, finding a
visibly "distressed" and "shaking" M.S.
wrapped only in a bathrobe. M.S. said someone was breaking
into her house. After letting M.S. inside and checking
M.S.'s house for intruders, the son called police.
arrival, officers of the Wichita Police Department also
checked M.S.'s house for intruders. They found none but
noted that the lock on the back door had been damaged and
glass broken out. Although the master bedroom appeared
disorganized, the officers did not notice anything obvious
that had been disturbed or taken from the rest of the house.
The officers interviewed M.S., noting that her right wrist
was bruised and swollen. M.S. gave the officers her name,
consented to a search of her home, and was taken to the
scene investigators took photos of the back door of
M.S.'s house, observing that the frame was lying on the
ground in two pieces, surrounded by glass and sheetrock dust.
Both of the door's strike plates had been knocked out,
and one of them was lying on the floor. Like the officers
before them, the investigators observed that the house was
tidy and orderly, with the exception of the damage to the
back door and some disarray in the master bedroom, where the
attack had taken place.
bedding in the master bedroom had been pulled back, and a
pillow was lying on the floor next to the bed. As the crime
scene investigators collected evidence, they saw jewelry; car
keys; and a purse containing a wallet, medications, and cash
in open view. They also did not detect "evidence that
anything was moved" or missing in the rest of the house.
Three items from outside M.S.'s house were collected and
photographed: a Dr. Pepper can in the alley behind it, a
cigarette butt on its west side near the back door, and a
switchblade in its backyard. Although the can and switchblade
were tested for identifiable fingerprints, none were found.
sexual assault nurse examiner (SANE) saw M.S. at the hospital
and collected evidence. During the nurse's examination,
M.S. could not be moved without causing her great pain. She
also complained of severe pain while lying still. M.S.
particularly cited great pain in her right arm, bottom, and
back. The nurse made note of several injuries, including
"extensive bruising beginning at [M.S.'s] head to
her toes, " indicating recent blunt force trauma. The
nurse would later testify that M.S. had a fracture of her
lower right arm that caused swelling.
nurse also discovered substantial injuries to M.S.'s
genital area. M.S. had a 5 millimeter by 5 millimeter
abrasion on her labia minora, which, the nurse later
testified, was associated with trauma. In addition, M.S. had
bleeding under the tissue in the area where she urinated.
M.S. also had "a large hole" just below her vaginal
opening. M.S.'s vagina was swabbed for evidence, and the
swabs were turned over to police.
the SANE exam was finished, M.S. was admitted to the
hospital, where she told her attending physician that she had
"generalized pain all over" and had an especially
hard time walking because her "bottom [was] hurting all
the time." Hospital caregivers also discovered M.S. had
compression fractures in her lower spine, which were likely
to be attributable to her attack and considered the likely
source of her lower back pain. M.S. required a significant
amount of help to move; pain from her injuries limited her
ability to move herself. Doctors did not see improvement in
M.S.'s mobility during her two-week hospital stay.
Rather, they observed M.S. become weaker and suffer
increasing trouble with mobility.
end of the two weeks, M.S. was transferred to a skilled
nursing facility for physical therapy. She died 6 days
later-approximately 21 days after the attack.
coroner, Dr. Jamie Oeberst, would eventually confirm
M.S.'s extensive bruising and the fractures noted by the
hospital staff and the substantial reduction in her mobility
that followed from the pain these injuries produced.
According to Oeberst, M.S.'s reduced mobility ultimately
contributed to the formation of blood clots in her legs,
which traveled to M.S.'s lungs, killing her. Oeberst
estimated that the clots had formed three to seven days
before M.S.'s death. "[T]he clots in her legs that
then went to her lungs is her cause of death. And the reason
she developed those clots in her legs was because-was a
result of the immobilization after the assault." Oeberst
certified M.S.'s death as a homicide, with the attack,
obesity, dementia, and advanced age contributing to her
death. Oeberst acknowledged that it was possible, however,
that the blood clots could have formed even if the attack on
M.S. had not occurred.
was never able to give a complete description of the person
who attacked her. She was able to say only that the attacker
was a man. She told her daughter-in-law and a nurse, "I
guess you could say I was raped, " and, "[W]ell, I
guess you could call it a rape." When a hospital
psychiatrist asked M.S. if she knew why she was in the
hospital, he testified, M.S. told him she was raped. But, at
other times, M.S. said she did not know why she had been
hospitalized. The psychiatrist diagnosed M.S. with dementia,
primarily due to her advanced age.
did not have a suspect until DNA testing of M.S.'s SANE
examination swabs revealed a local-and state-database match
to a 2002 sample taken from Nesbitt because of another
incident. Before M.S. died, the State charged Nesbitt with