BY THE COURT
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.
prosecutor's clear misstatement of law constitutes
prosecutor does not shift the burden of proof by pointing out
the implausibility of a defendant's account.
Kansas law favors the admission of otherwise relevant
evidence, and the exclusion of relevant evidence is an
extraordinary remedy that should be used sparingly.
from Sedgwick District Court; Jeffrey Syrios, judge.
Maharry, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant, and Michael Ross,
appellant, was on a supplemental brief pro se.
A. Isherwood, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with her on the briefs for appellee.
Ross challenges his convictions for first-degree felony
murder, second-degree murder, and felony abuse of a child.
Finding any error to be harmless, we affirm.
morning of November 9, 2015, A.S. left two of her
children-17-month-old G.H. and 4-year-old S.T.-in the care of
her boyfriend, Ross, while she traveled to the hospital to
work her shift as a certified nursing assistant. At that
time, G.H. was uninjured and was acting normally, although
she did have a bruise on her right cheek. Other than Ross,
there were no adults in the residence at this time. Not long
after her shift at the hospital began, A.S. received a phone
call from Ross, who told her that G.H. had fallen and was not
left work promptly after receiving the call and returned
home. When A.S. arrived at the residence, G.H. was lying down
on a bed. She was breathing, but she was nonresponsive. G.H.
had bruising on her face and a bump on her head that had not
been present before A.S. left for work. While A.S. was on the
phone with 911, G.H. began having seizures.
responded to the scene a short while later, where they found
G.H. nonresponsive. The paramedics observed various injuries,
including a large hematoma to G.H.'s forehead, a swollen
upper lip, bite marks on different places of G.H.'s body,
and various circular and semicircular bruises on her body
that were in different stages of healing. When they moved
G.H. to the ambulance, the paramedics assessed her under the
Glasgow Coma Scale at a score of 4 out of a possible 15, with
15 indicating alertness. G.H.'s score decreased to a
3-the lowest possible score-during the ride to the hospital.
Glendinning, M.D., provided emergency care for G.H. when she
arrived at the hospital around 1:30 p.m. When she arrived,
G.H. was put under anesthesia and intubated. Glendinning
noted bruising on G.H.'s face and a swollen lip, along
with bruising on her abdomen. A CT scan revealed a subdural
hematoma and a liver laceration. Because these symptoms
suggested child abuse, Glendinning consulted with a pediatric
intensivist, Elizabeth Heflin, M.D. Heflin observed that G.H.
had a subdural hemorrhage covering half of her brain and
bilateral retinal hemorrhages in the back of her eyes, as
well as several bruises across her body that were indicative
of multiple impacts and what appeared to be a bite mark.
Further analysis revealed that G.H.'s intracranial
pressure was so high that she could not have been receiving
adequate blood flow to her brain.
was declared brain dead on November 12, 2015. Following
G.H.'s death, forensic pathologist Timothy Gorrill, M.D.,
performed an autopsy. Based on the constellation of injuries,
Gorrill concluded that G.H.'s manner of death was
Police Department detectives interviewed Ross prior to
G.H.'s death and subsequently took Ross into custody.
Following G.H.'s death, Ross was eventually charged with
premeditated first-degree murder and, in the alternative,
felony murder, along with abuse of a child.
the outset of the case to the date of trial, Ross offered a
number of different explanations for G.H.'s injuries.
Ross told the paramedics that G.H. had fallen from a standing
position and that she had possibly fallen into a doorway. He
told Wichita Police Department Detective Ryan Schomaker that
he had not seen the accident but that S.T. told him G.H. had
fallen. Ross later wrote A.S. a series of letters from jail
that contained various descriptions of how G.H. became
injured, including that G.H. fell while standing on a toilet;
that she slipped on water on the bathroom floor; that she was
pushed off a counter by S.T. and hit her head on a white iron
chair; and that she was hit by a falling television. Ross
also made multiple calls to his own mother featuring
different accounts. Additionally, Ross' one-time jail
cellmate Demarco Rippatoe came forward with what he alleged
to be four different versions of the day's events, as
relayed to him by Ross. Critically, in one of the versions
Rippatoe recounted, Ross admitted to "slamm[ing]"
an old, 1990s-model 32- to 34-inch television-the type
"with the big back"-weighing between 65 and 70
pounds onto G.H.
trial, Ross testified that G.H. fell off of the counter in
the kitchen and hit her head on an iron chair shortly after
A.S. left for work, after which G.H. "seemed fine."
After this, Ross said that he lay down to sleep because he
was exhausted from "coming down off crystal meth"
after having been awake for "[l]ike two days and a
half." Ross then claimed to have woken up after hearing
S.T. and G.H. "play[ing] in the sink." Upon
investigating, he found G.H. "between the tub and the
toilet" and S.T. "[s]tanding on the toilet."
He testified that G.H. fell again while walking to him
"because there was a lot of water on the floor."
Ross then went to sleep again, leaving G.H. to play with S.T.
A little while later, S.T. woke Ross because "the
TV's on top of [G.H.]." Again investigating, Ross
found the television lying on top of G.H. "[f]rom her
head to her abdomen." Ross claimed that G.H. was
unconscious and was ...