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Pierron, J.: Millie K. Casey appeals the decision of the Workers Compensation Board (Board) that she only suffered a temporary work-related injury as a result of allergic reactions while working at a Dillon Companies, Inc., grocery store (Dillons) in Sterling. Casey argues that she suffers from an occupational disease and should be granted workers compensation benefits based on her wage loss. The facts in this case are for the most part undisputed. Casey began working at the Dillons in January 1990. Her jobs ranged from checker to video manager, to training new employees, and to entering price changes in the store’s computer scanning system. She did not work in the produce room, and her only contact with produce was in handling items of produce while working as a checker. In 1996, Casey began experiencing symptoms of an allergic reaction at work, occasionally breaking out in hives, experiencing difficulty breathing, and her eyes would swell. She was treated by her primary physician, Dr. Alan Davidson. Dr. Davidson provided prescription allergy medication and cortisone shots. Casey was referred to Dr. Bennett Radford, an internal medicine doctor specializing in allergy immunology. Dr. Radford treated Casey for seasonal allergies complicated by chronic sinusitis. Dr. Radford also stated that Casey was having an anaphylactic reaction while working at Dillons. Testing by Dr. Radford revealed that Casey was allergic to fresh fruits, fresh vegetables, molds, trees, grasses, weeds, and animal danders. Dr. Radford stated that Casey’s allergies developed over the time period of her work at Dillons because of a “priming effect” of her exposure to the allergens. Dr. Radford recommended that Casey not return to work at Dillons in Sterling because of her allergic reactions. He suggested that “it might be just that store” and she could possibly work in another Dillons. Casey continued to work at the Sterling Dillons until February 18, 2002, when Drs. Davidson and Radford took her off work. On April 28, 2003, she returned to work at the Sterling Dillons for a 2-hour shift. Approximately 30-40 minutes into her shift, Casey developed itchy and swollen eyes and her throat began to bother her. After her 2-hour shift, Casey clocked out, gave herself an injection, and had someone give her a ride home. She was taken to a medical center by her mother because of the allergic reaction. Dr. Davidson again took Casey off work. Casey had filed a claim for workers compensation on April 17, 2002. The administrative law judge (ALJ) referred Casey to Dr. Thomas Beller, a board-certified internist with a subspecialty in pulmonary medicine, for an independent medical examination. Dr. Beller concluded Casey suffered from allergic rhinitis, food allergies, and a histoiy of episodic work-related allergic reactions in- eluding skin rashes. Dr. Beller was uncertain as to the causation of Casey s allergic reactions but had tire opinion that it was “associated with some environment exposure at the grocery store.” Dr. Beller believed that Casey should not return to a grocery store work environment. Dr. Beller rated Casey with a 10% whole body impairment by reason of the skin lesions developed during her acute allergic reactions. Dillons had Casey examined by Dr. Allen Parmet, a board-certified physician in aerospace medicine and occupational medicine. Dr. Parmet also diagnosed Casey as suffering from life-long or long-standing allergic rhinitis and many food allergies as a result of exposure to fruit and vegetable pollen and mold found at the Dillons store. However, Dr. Parmet found that Casey did not suffer any permanent aggravation or injuiy as a result of her workplace exposure and did not give her any permanent work restrictions or functional impairment. The ALJ denied Casey any benefits and concluded there was no “sudden and unexpected event or events” and no “manifestation of force” that would constitute a personal injury by accident. The ALJ also concluded that Casey s condition was not an occupational disease because none of the expert testimony attributed the development of the disease to any “particular or peculiar hazard” of her employment at Dillons, nor did she develop allergies because of a special risk of a disease associated with a grocery store. The Board reversed the ALJ’s decision. The Board stated that Casey’s condition presented elements of both a series of accidental injuries and an occupational disease. The Board concluded that Casey suffered a repetitive trauma condition similar to carpal tunnel syndrome, which, therefore, was compensable as an accidental injury. The Board stated it gave greater weight to the opinions of Dr. Radford, as treating physician, and Dr. Beller, as independent medical examiner, than to Dr. Parmet. The Board concluded: “Once claimant stopped working for respondent her condition improved, her allergic reactions subsided and, with the use of medications, her symptoms returned to baseline. Her physical examinations by aE three physicians were of an essentially normal healthy individual but with numerous aEergies that were in remission. Accordingly, the Board concludes that claimant’s work-related injury was temporary. She therefore is not entitled to permanent partial disability compensation. As claimant is not claiming temporary total disability compensation, her benefits are limited to authorized and unauthorized medical expenses. All reasonable medical expenses for the treatment of claimant’s injuries and allergy condition shall be paid by respondent subject to the Kansas Worker’s Compensation Schedule for Medical Fees up through and including the November 14, 2002, examination by Dr. Beller, when claimant’s condition was found to be in remission and she was described as being at maximum medical improvement.” However, the Board was not in complete agreement. Two Board members dissented from the majority decision: “The undersigned Board Members agree with the majority that this claim is compensable but would treat it as an occupational disease rather than an accidental injury. [Footnote citing Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 907 P.2d 923 (1995)]. We would further find claimant’s work-related condition is permanent, riot temporary, and would award compensation based upon her actual wage loss as provided by K.S.A. 44-5a01 and K.S.A. 44-5a06.” Casey argues she suffered from an occupational disease and is entitled to compensation based on her wage loss. She seeks reversal of the Board’s order and a remand for determination by the Board of the amount of compensation she is entitled to based on the occupational disease. Casey maintains there was no accidental injuiy: “This is a situation where claimant was exposed on a daily basis to an environment heavy with fruit and vegetable pollen and mold. Over the course of 13 years, claimant’s mass cells were saturated to the point where she developed allergic rhinitis directly caused by fruits and vegetables which are particular to a grocery store environment. There is no trauma or accidental injury. There is a long exposure to an environment laden with substances which have saturated claimant’s mass cells and created an allergy which has resulted in symptomatic food allergies. This occupational disease has resulted in a loss of employment to claimant and claimant’s injuries should be compensated pursuant to the occupational disease statute.” K.S.A. 44-556(a) specifically subjects workers compensation appeals to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The KJRA limits the relief granted on appeal to just a few issues, including an agency’s erroneous interpretation of law and findings of fact not supported by substantial evidence when viewed in light of the rec ord as a whole. K.S.A. 77-621(c)(4) and (7). The Workers Compensation Act (Act), K.S.A. 44-501 et seq., limits review of all orders after October 1, 1993, to questions of law. K.S.A. 44-556(a) and (c); L. 1995, ch. 1, sec. 3 (revived and amended). Whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). The question of whether an injury is compensable is one of law, and an appellate court’s review is de novo. Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 356, 995 P.2d 855 (2000). The question in this case is whether Casey has suffered a compensable injury under the Act. As was stated of carpal tunnel syndrome in Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 229, 885 P.2d 1261 (1994), Casey’s condition is a hybrid condition that is “neither fish nor fowl.” We agree with the Board that Casey has suffered a compensable injury. Her condition, however, does not fit easily within the Act as either a work-related injury or an occupational disease. This case requires us to interpret multiple statutes of the Act. As a result, we have unlimited review of questions of law involving statutory interpretation. See Miami County v. Svoboda, 264 Kan. 204, Syl. ¶ 1, 955 P.2d 122 (1998). Although we do give deference to an agency’s interpretation of the law, if such interpretation is found to be erroneous, we are to take correction action. See Boatwright v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 9, 834 P.2d 368 (1992). Regarding work injuries, K.S.A. 44-501(a) provides: “If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workers compensation act.” Several definitions in the Act are relevant to this case. “Personal injury” and “injury” are defined in K.S.A. 2004 Supp. 44-508(e) to mean: “any lesion or change in the physical structures of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers from disability as a result of the natural aging process or by the normal activities of day-to-day living.” “Accident” is defined in K.S.A. 2004 Supp. 44-508(d): “[A]n undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.” On the other hand, K.S.A. 44-5a01(b) defines the affliction of an “occupational disease” as: “only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged.‘Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases.” The Kansas courts have settled the issue of whether carpal tunnel syndrome is a work-related accident or an occupational disease. In Berry, this court addressed the problem of assigning a date of injury to a claimant suffering from carpal tunnel syndrome. In attempting to determine whether carpal tunnel is an occupational disease or an accidental injury, the court determined that carpal tunnel is caused by repetitive trauma over a long period of time. The Berry court stated: “While it is true that it is caused by trauma and thereby fits the definition of an Injury caused by accident,’ it is nonetheless a condition that defies any attempt to affix the precise date the accident occurred.” 20 Kan. App. 2d at 229. Helpful for the discussion in the case at bar is the Berry court’s cite to a leading workers compensation authority: “ ‘[Historically,] the two crucial points of distinction between accident and occupational disease were the element of unexpectedness and the matter of time-definiteness. What set occupational disease apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazardfs] of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset.’ IB Larson, The Law of Workman’s Compensation § 41.31 (1992).” Berry, 20 Kan. App. 2d at 224. We do not believe Casey’s condition falls within the occupational disease provisions of the Act. There is simply no special risk associated with Casey’s work at Dillons. There is no “particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments.” K.S.A. 44-5a01(b). Several Kansas cases on occupational diseases are demonstrative. In Box v. Cessna Aircraft Co., 236 Kan. 237, 689 P.2d 871 (1984), the claimant worked for Cessna to repair manufactured planes and worked near the paint shop. Sometimes the air was so thick with fumes from lacquer paints, polyurethane, enamel, and ketone thinners that Box could not see the other end of the department. The Box court sustained a district court finding that the claimant suffered from an occupational disease, namely chronic bronchitis, under the workers compensation system, that it arose out of and in the course of his employment, and that he was permanently and totally disabled. 236 Kan. at 239-47. The Box court held: “There was ample substantial and competent evidence to support the trial court’s finding that claimant was engaged in an occupation or employment which exposed him to a special risk, a special and peculiar hazard of the disease from which the trial court found he suffers.” 236 Kan. at 244. In Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 907 P.2d 923 (1995), rev. denied 259 Kan. 927 (1996), Armstrong was exposed to toxic chemicals while working at the city sewer department and one of his physicians diagnosed him with multiple chemical sensitivities. The ALJ found Armstrong’s exposure to the toxic substances was of a greater concentration and frequency than that of the general public and as a result he was 100% temporarily totally disabled. The Board affirmed the ALJ’s award. The Armstrong court affirmed the award and held that compensation for an occupational disease was in order despite the lack of a specific name or diagnosis recognized by the majority of experts in the medical field. The court stated: “It is enough if it is shown that the worker is disabled and is disabled by a disease or condition which resulted from the nature of his or her employment and which meets the requirements of K.S.A. 44-5a01(b).” 21 Kan. App. 2d at 757. See also AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 71 P.3d 1097 (2003) (noise-induced hearing loss from continuous exposure to excessive noise while employed by Santa Fe is occupational disease); Burton v. Rockwell International, 266 Kan. 1, 967 P.2d 290 (1998) (adult-onset asthma and bronchitis caused by both smoking and dirt, dust, and chemical fumes at place of employment); Estate of John Doe v. Dept. of Correction, 268 Conn. 753, 848 A.2d 378 (2004) (HIV is occupational disease for correction officers who, like decedent, are members of correctional emergency response unit). Casey cites LeLenko v. Wilson H. Lee Co., 128 Conn. 499, 24 A.2d 253 (1942), as the leading case on the majority rule that allergies may constitute an occupational disease. However, LeLenko is distinguishable from the above-cited Kansas cases. LeLenko was a linotype operator who developed dermatitis from working with melted lead alloy. “Linotype machines require a melted lead alloy, from which the type is made. At the defendant’s plant pots electrically heated are used in connection with the machines to melt the metal. There is no apparatus for removing the fumes that may result. The pots are completely closed except where the metal is put in. The plaintiff had to open the one attached to his machine for this purpose, and at times when readjustment was necessary; and he also at times handled sticks of type which had not cooled.” 128 Conn, at 500-01. We agree with Dillons that Casey s allergic condition more closely meets the definition for an “ordinary diseases of life” and conditions which the general public may be exposed to outside of a particular employment, which is not compensable as an occu pational disease. Not everyone suffers from allergies. However, the allergic reactions suffered by Casey constitute an ordinary disease of life by those who are afflicted. Furthermore, we are not dealing with any generally recognized toxic substances in this case. Casey’s allergic reactions are common everyday items not specific or peculiar to the workplace; thus, her development of allergies to these substances has not been proven to have resulted from her employment. Although Casey’s allergic reactions are not an occupational disease, we find that they are a compensable work-related injury. A case not addressed by either the ALJ or the Board is West-Mills v. Dillon Companies, Inc., 18 Kan. App. 2d 561, 859 P.2d 382 (1993). The facts in West-Mills presented a similar situation of allergic reactions. West-Mills suffered from a condition known as intestinal candida which caused her to have a hypersensitivity to mold. She worked at a Dillons in Wichita for nearly 18 years. Her mold sensitivity had caused her hands to develop blisters, rashes, and cracked, bleeding sores when exposed to the mold spores present in the meat department. The facts indicated West-Mills started work in 1972, but she did not begin experiencing skin rashes and blisters on her hands until 1985 and first sought medical attention in 1987. The conclusion in West-Mills that the allergies were a work-related injury was clear. West-Mills involved the liability of the Kansas Worker’s Compensation Fund and whether the Board erred in deciding that West-Mills had suffered a 40% permanent partial disability. Interestingly enough, regarding the classification of West-Mills’ injuries, the parties did not dispute that she had suffered an accidental injury. “Both sides agree that West-Mills suffered an accidental injury while working at Dillon’s meat department. See K.S.A. 1992 Supp. 44-508(d). The medical evidence clearly reflects that the high level of mold spores present in the claimant’s work environment led to the outbreaks of rashes and blisters suffered by West-Mills.” 18 Kan. App. 2d at 566. The ALJ’s conclusion that Casey’s condition was not a work-related injury is too narrow a reading of the workers compensation statutes. The definition of the term “accident” does not limit itself to injuries caused by a manifestation of force. See K.S.A. 2004 Supp. 44-508(d). An accident can be an undesigned and unexpected event of an afflictive nature not necessarily accompanied by a manifestation of force. This interpretation, as required by the accident definition in K.S.A. 2004 Supp. 44-508(d), is necessarily “designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment.” We borrow again from the language in Berry, 20 Kan. App. 2d at 227-230, to conclude that Caseys injuries are compensable. Whether her allergic reactions are a personal injury caused by accident or an occupational disease is an analytical exercise. They have characteristics of both but do not fit exactly into either one. Her condition was caused by repetitive trauma to her immune system over a long period of time during her employment at Dillons. Consequently, she is entitled to compensation for a work-related injury. Casey also argues her allergic condition is permanent and that the Board erred in finding the condition was only temporary in nature. We disagree. Our standard of review is to determine whether there was substantial competent evidence to support the Board’s decision that Casey’s allergic condition was only temporary. Whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Webber v. Automotive Controls Corp., 272 Kan. 700, 703-04, 35 P.3d 788 (2001). Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and carries with it fitness to induce the conclusion that the award is proper, or furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003). Casey cites Dr. Radford’s testimony that she will continue to need both oral medications and immunotherapy in the form of injections, and that she is to avoid exposure to a grocery store environment. Dr. Radford would not allow Casey to work in the gro eery store environment. Casey also cites Dr. Beller’s testimony that her condition is permanent and there would be “fluctuations and exacerbations and remissions of the condition, but I don’t see that it is going to necessarily resolve.” Dillons argues the undisputed medical evidence established that Casey has not sustained any permanent aggravation or acceleration of her preexisting nonoccupational and environmental allergies. Dillons states it is also undisputed that once Casey stopped working for Dillons her condition improved, her allergic reactions subsided, and she was essentially a normal healthy individual but with numerous allergies that were in remission. Consequently, Dillons agrees with the Board that Casey’s work-related condition was only temporary. As the Board said: “Once claimant stopped working for respondent her condition improved, her allergic reactions subsided and, with the use of medications, her symptoms returned to baseline. Her physical examinations by all three physicians were of an essentially normal healthy individual but with numerous allergies that were in remission. Accordingly, the Board concludes that claimant’s work-related injury was temporary. She therefore is not entitled to permanent partial disability compensation.” The Act was enacted to award disability benefits to employees for damages resulting from injuries received at tire workplace and any permanent damage resulting therefrom which prevents the employee from performing work in the open labor market and earning comparable wages. See K.S.A. 44-510c(a)(1); K.S.A. 44510e(a); Brown v. City of Wichita, 17 Kan. App. 2d 72, 74, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). “Where the permanency of the condition does not result from the work-related injuiy, the employer is not hable for permanent partial disability benefits.” West-Mills, 18 Kan. App. 2d at 567. We find there is substantial competent evidence to support the Board’s conclusion that Casey’s work-related injury was only temporary. Affirmed.	[ -48, -56, -4, -83, 24, 97, 123, 54, 67, -127, -75, 115, -17, -28, 29, 43, -31, 125, 65, 123, -13, -93, 51, 98, -6, -33, -87, -57, -69, 107, -12, 84, 77, 56, 10, -44, -26, 76, -20, 28, -116, 5, -85, 106, 93, 16, 56, 58, -112, 71, 49, -44, -77, 46, 28, -57, 8, 111, 106, -84, -16, -32, -125, -119, 109, 24, -117, 101, -97, 23, -38, 78, -104, 53, 96, -88, 16, -74, -62, 20, 35, -87, 4, 98, 98, 48, 13, -91, 108, -88, -90, 94, 31, -92, -78, 8, 91, 2, -67, -107, 90, 30, -122, 88, -72, 77, 4, 40, -122, -106, -108, -111, -113, 56, 28, -89, -1, -113, -70, 85, -33, -72, 84, 4, 115, -109, -38, -106 ]
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Hill, J.: We are asked to decide in this case if Alejandro Casco should receive either workers compensation for a permanent partial general disability or compensation for two separate scheduled injuries. Casco, from repetitive work, first hurt his left shoulder and then, because he was compensating for that injury, his right shoulder hurt from overuse. We reverse and remand to the Workers Compensation Board (Board) with directions to resolve the issue of work disability. Work and Injury History Casco’s employment with the defendant required him to perform repetitive work with both of his upper extremities. His duties included looping and tying sausages, hanging sausages above shoulder level on a chain, filling boxes with meat, carrying 30- to 40-pound boxes, and placing the boxes on pallets. Casco felt pain in his left shoulder while performing his job and went to the nurse on June 8, 2000. The defendant provided treatment for Casco and had him evaluated by Occupational Health Clinic, Scott Ketcher, D.O., and Geary Community Hospital. Casco’s treatment consisted of radiographic studies, cortisone injections, physical therapy, medications, and work modifications. Casco showed little improvement during this treatment. Eventually, Casco was examined by Larry F. Frevert, M.D. After an arthrogram, Casco was diagnosed as having a rotator cuff tear. Consequently, Casco was placed on work restrictions, which included no use of his left arm. Casco received a left rotator cuff exploration and repair and then continued with physical therapy. Casco testified that after the surgery, he returned to work and performed his work primarily with his right arm due to discomfort in the left arm as well as the work restrictions he was placed on after the surgery. Frevert ordered Casco to not use his left arm for activities. Due to continuing discomfort in the left shoulder, a second arthrogram was performed in September 2001. Results of this arthrogram showed a recurrent rotator cuff tear. In February 2002, Casco underwent a left open rotator cuff repair with lysis of adhesions. Casco also continued rehabilitation of the shoulder. During a February 20, 2002, check-up, Frevert ordered Casco to remain off work for 5 weeks. This time off was extended for another 4 weeks at Casco’s next evaluation. On May 8, 2002, Frevert allowed Casco to return to work but with the restrictions that he could not use his left arm for over the shoulder work and that he could only perform sit-down duties. Once again Casco testified that he returned to work after the surgery and performed his duties using only his right arm. Casco testified that after he returned to work from his second shoulder surgery, he began experiencing pain in his right shoulder. Casco testified that he first began experiencing pain in his right shoulder in August 2002. During the time Casco began experiencing right shoulder pain, he continued to experience pain in his left shoulder. Casco first complained of his right shoulder pain to Frevert in September 2002. Frevert suggested a right shoulder MRI, but this was not authorized by the defendant. Then in February 2003, Casco filed an application for a preliminary hearing with the Kansas Division of Workers Compensation. After the hearing, the Administrative Law Judge (ALJ) ordered the defendant to pay for treatment to both of Casco’s upper extremities, with treatment to be provided by Frevert. At that time an MRI was performed on Casco’s right shoulder. The MRI showed “some impingement syndrome with some swelling of the rotator cuff musculature and no evidence of rotator cuff tear.” On May 30, 2003, Frevert performed decompression surgery on Casco’s right shoulder. After the surgery, Frevert had Casco undergo physical therapy and directed Casco to stay off work from April 12, 2003, through October 16, 2003. On October 16, 2003, Frevert released Casco to work with restrictions. These restrictions included no overhead activity, no lifting greater than 5-10 pounds, and no exposure to temperatures below 40 degrees. On October 17, 2003, Casco presented the defendant with his restrictions. At that point, the defendant told Casco that no employment was available. The defendant told Casco that his return to work would be coordinated with Casco’s attorney. Then Casco moved to Maryland to live with his son. In a letter dated November 5, 2003, the defendant’s attorney notified Casco’s attorney that the defendant had work available within Casco’s restrictions and requested Casco to report to work immediately. The letter stated that if Casco did not report to work by November 10, 2003, the defendant would consider Casco to have voluntarily terminated his employment. In a letter dated November 6, 2003, Casco’s attorney forwarded the defendant’s letter to Casco’s Junction City address. Casco testified that he received his attorney’s letter in Maryland on November 12, 2003, which was 2 days after the reporting date set by the defendant. Casco testified that he could not financially afford to return immediately, that he told his attorney that he could not return, and that he eventually returned to work on November 24, 2003. However, Casco testified that when he showed up for work, he was informed that they did not have any work for him. Sergio Delgado, M.D., evaluated Casco on three different occasions. He found that most of Casco’s shoulder symptoms were “aggravated by activities using both arms, particularly from waist to overhead level.” Dr. Delgado also testified that he agreed that Casco’s right shoulder problems were “mainly due to overuse and compensation for the left shoulder problems.” However, Delgado went on to say that it would be fair to assume that if Casco did not perform work activities, there would be nothing to cause injury to his right shoulder. After an evaluation in November 2003, Dr. Delgado opined that Casco suffered from a “27% left upper extremity impairment rating which would translate to a 16% whole person impairment.” Delgado further found that Casco suffered from a 6% right shoulder or right upper extremity impairment, which would translate to a 4% whole person impairment. He combined the values and found a 19% whole person impairment. The doctor also restricted Casco’s future work activities by stating: “Restrictions for future work activities continue to be avoiding activities requiring pushing and pulling not to exceed 50 pounds repetitively and 70 pounds occasionally. Avoid lifting from the floor not to exceed 40 pounds occasionally and from the waist to overhead levels to be minimal in nature not to exceed 5-10 pounds occasionally and [n]o repetitive lifting.” Dr. Delgado also reviewed a list of tasks Casco had performed in jobs during the 15 years preceding June 8, 2000, which was the stipulated date of the accident. The work task list was compiled by Monty Longacre, a vocational rehabilitation counselor and job placement specialist, after conducting a telephone interview with Casco. After reviewing the task list, Delgado concluded that Casco could not perform 10 of the 20 tasks due to his shoulder injuries. Another vocational rehabilitation counselor, Terry Cordray, interviewed Casco and compiled a 15-year work task list. Delgado re viewed this task list and determined that Casco could not perform 5 of the 15 tasks set out by Cordray. Dr. Delgado testified, in part: “Q. [Mr. Kolich] Okay. Now, Doctor, with regard to the right shoulder I think you’ve indicated that you feel that that shoulder became injured because he was over compensating [sic] for the other shoulder. Is that true? “A. [Dr. Delgado] That is very frequently seen where when there’s hmitation of motion, weakness or pain, the other shoulder is overloaded if he continues to do the same activities as before or similar to them. “Q. And when you say same activities, you are specifically referring to his work activities, is that true? “A. Yes. “Q. Because would it be fair to assume if he wasn’t doing the work activities, there would be nothing to cause an injury to that right shoulder, would there? “A. That would be correct. “Q. When he testified back in February of 2003, he was asked about that, and his — well, I’ll read you the question and the answer. The question is on Page 23, ‘And did I understand your testimony earlier the reason your right shoulder became a problem was you weren’t even using your left arm because of your left shoulder problem. You were doing everything with your right arm,’ and his answer was ‘Yes.’ Would that be consistent with what he told you? “A. Yes. “Q. And of course, Doctor, if he wasn’t using his left arm at all, there was no — that wouldn’t cause any aggravation or the continued aggravation of the left shoulder, would it? “A. It should not.” History of Administrative Procedures An ALJ held a hearing on Casco’s claims in April 2004. At the time of the hearing, Casco was living in Maryland. Casco testified that he had not worked since his job with the defendant, but he had applied for jobs in Maryland. A list of places and people Casco claimed he contacted about a job was admitted into evidence at the hearing. The ALJ issued an award and found that Casco’s right shoulder injury was a natural and probable consequence of the left upper extremity injury. Accordingly, the ALJ found that Casco’s injuries should be treated as a whole body injury. After analyzing testimony regarding Casco’s task and wage loss, the ALJ awarded Casco a 69.5% work disability. Casco’s total award was capped at $100,000. In due course the Board reviewed the award. The Board found that Casco’s injury to his right shoulder resulted from a separate accident, and, therefore, the natural and probable consequence rule could not be used to treat Casco’s injuries as a whole body injury instead of two separate scheduled injuries. The Board awarded Casco a 27% permanent partial disability to the left upper extremity at the shoulder level and 6% permanent partial disability to the right upper extremity at the shoulder level. Casco’s total award was $30,341.30 for the left shoulder injury and $4,337.69 for the right shoulder injury. Casco now claims the Board erred in awarding compensation based on two scheduled injuries under K.S.A. 44-510d rather than a general whole body disability under K.S.A. 44-510e. Casco’s claim is based on the allegation that his right shoulder injury was a natural and probable result of his left shoulder injury. Scope of Review The Board’s decision in this case was based on a finding that Casco’s right shoulder injury was the result of a separate accident. According to Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 356, 995 P.2d 855 (2000), this issue is a question of law over which this court’s review is unlimited. The defendant claims the Board made a negative finding that Casco did not meet his burden of proof, and, therefore, Casco must show arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice in order to prevail. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997). But this case is distinguishable from Nance. Here, the Board did not find that Casco failed to show that his right shoulder injury was a natural and probable result of left shoulder injury. Instead, the Board found that Casco’s right shoulder injury resulted from a new and separate accident so, under Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973), Casco’s injuries fell under K.S.A. 44-510d and not 44-510e. This is a positive find ing. Accordingly, the standard of review used in Nance is not applicable. Analysis K.S.A. 44-510d provides for the amount of compensation to be awarded for specific permanent partial disabilities that fall within the schedule. K.S.A. 44-510d(a)(13) sets forth the compensation to be awarded for the loss of an arm including or excluding the shoulder joint, shoulder girdle, shoulder musculature, or any other shoulder structures. Additionally, K.S.A. 44-510d(b) states in relevant part: “Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation . . . and no additional compensation shall be allowable or payable for any temporary or permanent, partial or total disability. . . .” K.S.A. 44-510e provides for the amount of compensation to be awarded for temporary or permanent partial general disabilities. This statute states that a permanent partial general disability exists “when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto.” K.S.A. 44-510e(a). It appears both of Casco’s shoulder injuries are compensable under K.S.A. 44-510d. Thus, Casco would generally be precluded from compensation under K.S.A. 44-510e. Casco claims the secondary disability rule set forth in Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (1972), allows him compensation under K.S.A. 44-510e. In Jackson, the court found that an employee who had sustained injuries to fingers on both hands and several months later complained of pain in his right shoulder and arm was entitled to temporary total disability benefits when the employee was diagnosed with having tendinitis in his right shoulder and the doctor testified the right shoulder injury was a direct result of the initial accident. In reaching this conclusion, the court stated: “We find that when a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural con sequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” 208 Kan. at 643. We point out that while the secondary disability rule only states that injuries that are a natural and direct result of another compensable injury are also compensable, it appears that if the secondary injury is to a parallel limb, then the presumption set forth in K.S.A. 44-510c(a)(2) applies. This point has not been challenged by either party. When courts have found that the secondary disability rule applies, they have found that the employee is not required to give notice of the second injury under the notice provisions in the Workers Compensation Act since the second injury is treated as part of the first injury. The same reasoning applies here. Since a second injury to a parallel limb would be considered part of the first injury, the injuries would be considered to be simultaneous. The rule in Jackson was later limited by Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973). In Stock-man, the employee suffered a work-related back injury. It was stipulated that this injury was compensable. The day after the employee was released to return to work, the employee again injured his back while at home as he bent down to pick up a tire. A doctor testified that he believed the employee’s later injury was a continuation of his original injury. On appeal, the employee argued that his later injury was compensable as a natural consequence of his original injury. The court addressed this argument by limiting the Jackson ruling: “The rule in Jackson is limited to the results of one accidental injury. The rule was not intended to apply to a new and separate accidental injury such as occurred in instant case. The rule in Jackson would apply to a situation where a claimant’s disability gradually increased from a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” 211 Kan. at 263. In this case, Casco claims that his right shoulder injury was a direct and natural result of his left shoulder injury and the rule in Jackson applies. The respondent claims the limitation set forth in Stockman is applicable because in its view Casco’s right shoulder injury was the result of a separate accident, and, therefore, his injuries should not be treated as a permanent partial general disability. In order to determine which argument is valid, a review of cases discussing the Jackson secondary disability rule and the Stockman limitation is necessary. Casco cites three cases, Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 949 P.2d 1149 (1997), Frazier, and Wall v. Gage Bowl, Inc., No. 89,350, unpublished opinion filed April 18, 2003, in support of his claim. We look at the three in order. In Woodward,, the employee twisted his left knee after stepping on an air hose. After having surgery performed on his left knee, the employee returned to work and began experiencing pain in his right knee, on which he had three prior surgeries. The employee later experienced pain in both knees, with his left knee budding occasionally. The ALJ awarded compensation for the left knee only, but the Board found that the aggravation to the employee’s right knee was a result of overcompensating for the left knee and found that the employee suffered bilateral knee injuries arising from the employee’s original accident. The Board found the employee suffered a nonscheduled injury and awarded compensation pursuant to K.S.A. 44-510e. On appeal, the court in Woodward found that substantial competent evidence existed to support a finding that the aggravation to the employee’s right knee was a result of the employee’s left knee injury. In Frazier, the employee suffered a repetitive use injury to his right forearm and shoulder in the course of his employment. After a surgery was performed, the employee participated in a prescribed work-hardening program and a functional capacity evaluation. A doctor later found that the employee’s participation in the work-hardening program and the functional capacity evaluation permanently aggravated the employee’s preexisting back condition. The ALJ denied compensation for the employee’s back injury due to the employee’s failure to timely notify the employer of the injury. This decision was affirmed by the Board and the Court of Appeals Then, the Kansas Supreme Court compared the employee’s situation in Frazier to the situation presented in Chinn v. Gay & Taylor, Inc., 219 Kan. at 196, 547 P.2d 751 (1976), where an employee who suffered a knee injury and later developed a backprob lem due to the employee’s limping gait. The court in Chinn found that the employee’s back problem was a natural consequence of the knee injury and, therefore, found the back problem to be compensable. 219 Kan. at 201. The court in Frazier also discussed Roberts v. Krupka, 246 Kan. 433, 442, 790 P.2d 422 (1990). In Roberts, the court held: “Where an injury is compensable under the Workers Compensation Act (K.S.A. 44-501 et seq.), any aggravation of that injury or additional injury arising from medical malpractice in the treatment thereof is a consequence of the primary injury and compensable under the Act.” 246 Kan. at 442. After examining the Chinn and Roberts decisions, the Frazier court held that the employee’s injury to his back during the work-hardening program and functional capacity evaluation was a part of his treatment for his forearm and shoulder injury. Accordingly, the aggravation of the employee’s back injuiy was a natural consequence of his forearm and shoulder injury. Thus, the employee was not required to give notice under K.S.A. 44-520 and K.S.A. 44-520a of the back injury and it should have been considered for compensation. As a result, the case was reversed and remanded for further proceedings. Finally, in Wall, the employee injured her left elbow during the course of her employment. After returning to work, she began to experience pain in her right arm. The employer agreed that the employee’s right arm injury was “ ‘caused by her work activities and repetitive use at work of her right arm.’ ” An independent examiner rated the employee as having 10% permanent partial impairment to her right arm and 15% permanent partial impairment to her left arm. The independent examiner also rated the employee as having a 15% impairment of the whole person. The independent examiner also found that the employee could not perform 9 of the 11 tasks she would have been asked to perform for employer. In Wall, the ALJ found that the employee’s.right arm injury was a direct and natural consequence of the left arm injury.and, accordingly, treated the injuries as injuries to the body as a whole. In affirming the ALJ’s award, the Board noted that the employee’s injuries resulted in an 82% task loss. On appeal, the employer claimed the employee’s injuries should have been compensated as two separate scheduled injuries. Concerning Wall, we recognize that Rule 7.04(f)(2) (2004 Kan. Ct. R. Annot. 47), states that unpublished memorandum opinions are not binding precedents, except under the doctrines of law of the case, res judicata, and collateral estoppel, and are not favored for citation. But unpublished memorandum opinions may be cited if they have persuasive value with respect to a material issue not addressed in a published opinion of a Kansas appellate court and if they would assist the court in its disposition. In Wall, the employer claimed on appeal that tire employee’s right arm injury was the result of subsequent work activities and not a natural and direct result of her left elbow injury. The court noted that the independent examiner’s testimony indicated that the employee’s right arm injury was caused by overuse and “was not simply caused by work-related activities but also by the normal daily activities which claimant was forced to perform with only one arm.” The court went on to find that sufficient evidence existed to find that the employee’s injuries to both arms caused substantial impairment. The court further found that when a second injury would not have occurred “but for” the original injury, an award for a general bodily disability may be proper. In response to Casco’s argument, the defendant cites Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 195, 820 P.2d 719, rev. denied 250 Kan. 808 (1991), and Depew v. NCR Engineering & Mfg., 23 Kan. App. 2d 463, 932 P.2d 461, reversed on other grounds 263 Kan. 15, 947 P.2d 1 (1997). In Wietham, tire employee injured his knee on December 31, 1983, as a result of an accident at work. The employee returned to work on May 21, 1984. The employee testified that on June 20, 1984, he injured his back after his previously injured knee gave out and caused him to fall against a pallet where cases of vegetables were being stacked. The employee did not file an accident report regarding the June 20, 1984, fall until October 1985, and he did not file a claim for compensation until December 1985. In Wietham, the ALJ awarded the employee a 7.5% permanent partial disability to the body as a whole. The Workers Compensa tion Director (the Director) modified the award to deny any claim by the employee due to the employee’s failure to timely notify the employer of the accident and the employee’s failure to timely file a written claim for compensation. The district court adopted the findings of the Director. On appeal, the employee claimed his back injury was a natural and probable result of his knee injury. In discussing this issue, the court stated: “Of primary importance in the instant case is the fact that an entirely different body part was injured. While Dr. Payne’s clinical notes indicate that claimant indicated as early as March 1984 that his knee tended to give way and Dr. Payne testified that it was possible claimant’s knee could and would give way in the future, such testimony does not necessitate a finding that the second accident was a natural and probable result of the first accident. The claimant argues that his weakened knee caused his fall and, as such, the second injury is a natural result. We believe this approach was rejected in Stockman” 16 Kan. App. 2d at 196. Wietham is clearly distinguishable from the present case in that the employee in Wietham did not suffer a repetitive use injury due to overcompensation. In Depew, the employee worked as a secretary. The employee’s work required her to use a computer, including extensive use of a computer mouse. In the fall of 1990, the employee began experiencing pain in her right arm and was diagnosed with right carpal tunnel syndrome. After surgery, the employee was released to work without restrictions on May 6, 1991. The employee testified that after returning to work she continued to have pain in her right arm, so she began using her left arm to do her work. By September 13, 1991, the employee developed carpal tunnel syndrome in her left arm. In Depew, the ALJ entered an award for a scheduled injury to the employee’s left arm and a partial general disability for the injuiy to the employee’s right arm. The Board modified the award by finding that the employee suffered two separate scheduled injuries. The employee appealed. On appeal, the court first determined that the employee’s failure to show simultaneous aggravation of both arms due to repetitive use prevented her from claiming a general bodily disability rather than two separate scheduled injuries. The employee also.claimed she was entitled to a general disability under the secondary disability rule. The court held that the Board’s finding that the employee’s injuiy to her left arm resulted from a new and separate accident foreclosed the application of the secondary disability principle. 23 Kan. App. 2d at 469. It should be noted that the Court of Appeals opinion in Depew was reversed by the Kansas Supreme Court in Depew v. NCR Engineering & Manufacturing, 263 Kan. 15, 947 P.2d 1 (1997). While the Supreme Court in Depew agreed that the employee had to show simultaneous injuries, the Supreme Court disagreed that the facts of the case supported the Court of Appeals decision. The court stated that the sequential manifestation of the injuries did not lead to a different result and was, in fact, consistent with the court’s understanding of repetitive use injuries. The court went on to hold that the facts showed that the employee’s injuries to her arms were simultaneous and, therefore, compensation for general bodily disability was proper. 263 Kan. at 27. In the present case, Casco has not claimed that the injuries to his shoulders were simultaneous. Thus, the Supreme Court’s decision in Depew is not relevant to the case at bar. The line of cases beginning with Jackson including Woodward, Frazier, and Wall are persuasive under the facts here. We find as a matter of law find that the relationship between the two injuries in the present case is so strong that the right shoulder injuiy should be viewed more as a continuation of the left shoulder injuiy and not as a separate accident. As the ALJ found, “Dr. Delgado, is the only physician to testify in this matter. He stated the Claimant suffers a persistent left shoulder rotator cuff tear and an impingement syndrome to the right shoulder. He opined the right impingement syndrome is attributable to overuse of that extremity due to compensation for the injury to the left shoulder.” By ignoring that evidence, the Board erroneously found the “appropriate question is not whether the injuries are somehow related. The controlling issue instead is whether a new accident has occurred.” Such a ruling totally discards the rule in Jackson/Frazier and replaces it totally with Stockman. We are mindful that these are repetitive use injuries, not injuries incurred as a result of trauma. No work accommodations were made for Casco. The nature of the injuries to parallel limbs controls. Reversed and remanded to the Workers Compensation Board with directions to resolve the issue of work disability.	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The opinion of the court was delivered by Nuss, C.J.: This is an action for personal injury and wrongful death brought against the State by Ron Keiswetter, individually and on behalf of the estate and heirs-at-law of his mother Helen Keiswetter. She died from her injuries after a minimum-security inmate escaped from the State’s custody, entered her home, and ultimately forced her into a closet. The Norton County District Court granted summary judgment to the State on a number of grounds, and a panel of the Court of Appeals affirmed. We affirm the summary judgment because the State is immune from liability under the police protection exception of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (KTCA). Facts and Procedural History Christopher Zorn was part of a Norton Correctional Facility community work crew mowing grass at a Norton church when he escaped from custody. About 25 minutes before the crew supervisor discovered Zorn was missing, an investigator from the prison arrived to question the inmates about a pack of cigarettes that had been stolen from another site where the crew had recently worked. Zorn ran from the church before he could be interviewed. The proper authorities were notified, and a large-scale search ensued. Zorn later admitted he had hidden in a shed until about 9 that night. He tiren entered Helen Keiswetter’s house to find keys for stealing her car. He said that he injured her when he shoved her into a closet. More specifically, he admitted he had grabbed her by the arms and waist and that he had lacked her, causing her to fall and hit her head. Helen Keiswetter’s daughter and grandson found her barricaded in the closet the next morning. She was transported first to the local hospital and then to Wesley Medical Center in Wichita. She died 8 months later. Her son, Ron Keiswetter, then sued the State for her personal injuries and wrongful death. He claimed it was negligent by “(a) failing to continue Mr. Zorn’s medication to control his bipolar disorder; (b) putting Mr. Zorn ... on work release out in the community in spite of his dangerous propensities; (c) negligently conducting a criminal investigation of Mr. Zorn while he was on work release in the community instead of while he was in the security of the Norton Correctional Facility; and (d) failing to take reasonable care in preventing Mr. Zorn, who was in [the Kansas Department of Corrections’] custody and control, from escaping and causing harm to Ms. Keiswetter.” He later voluntarily dismissed all but the fourth claim. The State filed a motion for summary judgment, arguing it owed no duty to Helen Keiswetter to protect her from Zom’s attack, and, even if it did, it was immune from liability under two exceptions of the KTCA. After a hearing the district court granted summary judgment. It found that the public duty doctrine precluded Keiswetter’s claim because any duty owed his mother was owed to the public at large and not specifically to her. The court additionally found that no special duty was owed to Keiswetter and that the State was immune from liability under the police protection exception of the KTCA, K.S.A. 2015 Supp. 75-6104(n). A panel of the Court of Appeals affirmed. Like the district court, the panel concluded Keiswetter’s claim failed because of the public duty doctrine, tire lack of a special duty owed to Keiswetter, and the police protection exception of the KTCA. Additionally, the panel held Keiswetter had presented insufficient evidence of the State’s negligence to survive summary judgment. Keiswetter v. State, No. 110,610, 2014 WL 3732021 (Kan. App. 2014) (unpublished opinion). Keiswetter filed a petition for review with this court under K. S. A. 20-3018, challenging each of the panel’s holdings and particularly asking us to consider whether the public duty doctrine is still viable under Kansas law. We granted the petition, obtaining jurisdiction under K.S.A. 60-2101(b). Analysis Issue: The State is entitled to summary judgment as a matter of law because it is immune from liability under the KTCA’s police protection exception. The parties’ arguments primarily concern whether we should abolish the public duty doctrine. Under that doctrine, a plaintiff suing a governmental entity in negligence cannot establish the duty requirement of its claim when the duty is a public one, i.e., owed to the public at large and not to any particular individual. See Shirley v. Glass, 297 Kan. 888, 894, 308 P.3d 1 (2013) (negligence claim requires a duty owed to the plaintiff by the defendant, breach of that duty, causation between the breach and the injury, and damages suffered by plaintiff). In short, tire doctrine bars a governmental entity’s liability unless the plaintiff can show a special relationship that gives rise to a specific duty owed to him or her. See Roe v. Dept. of SRS, 278 Kan. 584, 593, 102 P.3d 396 (2004); Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982). Despite the parties’ focus on this doctrine, however, the ultimate issue before us is whether the district court properly granted summary judgment to the State. As discussed below, we conclude such judgment was proper because the State is entitled to immunity under the KTCA’s police protection exception. See K.S.A. 2015 Supp. 75-6104(n). So we need not also address the other grounds the lower courts found to reject Keiswetter’s claim. Standard of review Our summary judgment standard is well-known: “‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted], Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009)’ ” Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan. 350, 358-59, 352 P.3d 1032 (2015). When the material facts are uncontroverted, we exercise unlimited review over a district courts grant of summary judgment. See Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010). And whether an exception of the KTCA applies to grant immunity to a governmental entity is a question of law, also subject to unlimited review. See 291 Kan. at 78. Discussion Liability is the rule, and immunity is tire exception for governmental entities sued under the KTCA. See 291 Kan. at 78. The general rule of liability is established by K.S.A. 2015 Supp. 75-6103(a) which provides: “Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be hable under the laws of this state.” K.S.A. 2015 Supp. 75-6104 lists several exceptions to liability, including the police protection exception. Under this exception, “[a] governmental entity or an employee acting within the scope of the employees employment shall not be liable for damages resulting from . . . failure to provide, or the method of providing, police or fire protection!.]” K.S.A. 2015 Supp. 75-6104(n). Such exceptions to governmental liability, like the general allowance of liability itself, are matters of public policy left to the legislature. See Barrett v. U. S. D. No. 259, 272 Kan. 250, 260, 32 P.3d 1156 (2001). In interpreting the KTCA, K.S.A. 2003 Supp. 75-6101 et seq. we have held: “ ‘[T]he analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found hable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be hable under the same circumstances and (2) no statutory exception to liability applies.”’ (Emphasis added.) Soto, 291 Kan. at 78 (quoting Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 585, 214 P.3d 1173 [2009]). As in Soto, for the sake of a straightforward review we will assume, but not decide, that a duty — here, to Keiswetter — existed. See 291 Kan. at 78; cf. Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 623, 938 P.2d 1293 (1997) (decision to grant summary judgment on basis of immunity is not an acknowledgment “any duty existed on the part of defendants to protect [victim] from [escaped juvenile’s] criminal actions”). So we need only determine whether the State s claimed statutory exception to liability, i.e., the police protection exception, applies. If the exception applies, it disposes of this case. Moreover, because an exception to liability, i.e., an immunity, is supposed to free the defendant from the burdens of litigation, it typically makes sense to examine immunity as the threshold question. As we have stated about the related issue of qualified immunity: “‘“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ [Citation omitted.] The privilege is ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’ [Citation omitted.] As a result, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ [Citation omitted.]”’” State v. Jones, 298 Kan. 324, 332, 311 P.3d 1125 (2013). Consistent with this view, this court has supported a district courts refusal to allow depositions and affirmed its dismissal of a negligence action against a defendant because of the plaintiffs failure to state a claim upon which relief could be granted. This failure was due, among other things, to the defendants immunity from liability provided by the police protection exception in the KTCA. Beck v. Kansas Adult Authority, 241 Kan. 13, 23-24, 735 P.2d 222 (1987). Accord Robertson, 231 Kan. at 362-63 (affirming dismissal of negligence action for failure to state a claim based upon discretionary function exception in KTCA). The Beck court generally explained the advantages of addressing dispositive issues early, i.e., by a motion to dismiss instead of a motion for summary judgment — even though both can avoid the burdens of trial: “The important distinction between the handling of a motion to dismiss on the one hand and a motion for summary judgment on the other is that in the former the trial court is limited to a review of the pleadings, while in the latter, the trial court takes into consideration all of the facts disclosed during the discovery process — affidavits, depositions, admissions, and answers to interrogatories. Thus, a party opposing a motion for summary judgment may point to or provide depositions, affidavits, or other documents to demonstrate that there are genuine issues of material fact, necessitating a trial.” (Emphasis added.) 241 Kan. at 26. Given our assumption that a duty to Keiswetter exists, our immunity analysis proceeds by acknowledging that the State has the burden to establish it is immune from liability under the police protection exception. See Soto, 291 Kan. at 78. If the State cannot meet this burden, then the general rule of liability set forth in K.S.A. 2015 Supp. 75-6103(a) applies. Jarboe, 262 Kan. at 624. The Court of Appeals panel in the instant case relied upon Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), to hold the State was entitled to immunity under the police protection exception. There, the plaintiff claimed the State was negligent in (1) failing to confine seven armed and dangerous inmates who escaped from a correctional facility and (2) failing to warn the public and local law enforcement of the escape. The Cansler court determined the failure to warn did not constitute a failure to provide police protection, and, therefore, the State was not immune from liability under the police protection exception. 234 Kan. at 572. But, as the Keiswetter panel noted, Cansler suggests that without the duty-to-warn claim, the State would have been immune from liability under that exception. See Keiswetter, 2014 WL 3732021, at *6 (“Absent the failure to warn of the escape after it occurred, Cansler indicates that the State would have been immune.”). In discussing the State s duty to confine tire dangerous inmates before their escape, the Cansler court acknowledged that “police protection” was implicated: “There is no question that penal officials and employees have the powers of law enforcement officers when such powers are necessary for the performance of their duties. When moving prisoners from one penal institution to another, or to and from court, penal officers would have and exercise the same powers as would, for example, a deputy sheriff. The operation of a penal institution is carried on pursuant to the police power of the state, and the institution itself provides police protection for all Kansas residents by keeping apart from the rest of the population those convicted felony offenders whose actions have been and perhaps promise to be dangerous and mimical to society.. .. . . While the seven inmates were within the walls of the penitentiary, the State’s duty could be classified as custodial and as providing police protection for the benefit of all Kansans.” (Emphasis added.) 234 Kan. at 571-72. See also K.S.A. 2015 Supp. 22-2202(m) (defining “law enforcement officer” as a person who has a “duty to maintain or assert custody or supervision over persons accused or convicted of crime”); K.S.A. 75-5247a (prison officials “acting within the scope of their duties as employees of the department of corrections, shall possess such powers and duties of a law enforcement officer as are necessary for the performance of such duties”). So we conclude per these statements from Cansler that under certain circumstances, the KTCA’s police protection exception can apply to correctional facilities and their supervisory personnel. Generally, whether an exception under K.S.A. 2015 Supp. 75-6104 applies depends on the specific allegations raised by the plaintiff. See Thomas v. Board of Shawnee County Comm’rs, 293 Kan. 208, 235, 262 P.3d 336 (2011) (discretionary function exception under K.S.A. 2010 Supp. 75-6104[e] does not apply when plaintiff alleges government defendant negligently performed a ministerial act); Cansler, 234 Kan. at 568 (enforcement of a law exception under K.S.A. 1981 Supp. 75-6104[c] applies when plaintiffs sole claim is that government defendant enforced or failed to enforce a law). And exceptions are not to be liberally construed. See Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984) (ordinarily a strict or narrow interpretation must be applied to statutory exceptions), overnded on other grounds by Simmons v. Porter, 298 Kan. 299, 312 P.3d 345 (2013); see also Robertson, 231 Kan. at 363 (ordinarily a strict or narrow interpretation is applied to statutory exceptions, but statutes must be construed in their entirety with a view of giving effect to the legislative intent). Here, Keiswetter claims only that the State failed to take reasonable care in preventing Zorn from escaping from custody and attacking Helen Keiswetter, i.e., that the State breached an individual duty to her to confine Zorn. Relying on Cansler, the State responds that because tire duty to keep an inmate confined is a duty of “providing police protection for the benefit of all Kansans,” any breach of that duty is immunized by the police protection ex ception. See Cansler, 234 Kan. at 572. Keiswetter counters with a 1992 opinion of a Court of Appeals panel to contend that the police protection exception does not apply when a government defendant breaches a specific duty owed to an individual rather than the public at large. See Washington v. State, 17 Kan. App. 2d 518, 525-26, 839 P.2d 555 (1992). As discussed below, we agree with the State and conclude the police protection exception exempts the State from liability in this case. We start with Washington. Inmate Washington of the Lansing Correctional Facility had been in a fight with an inmate named Vaughn. Both were later placed in the Adjustment and Treatment Unit where, while separated, Vaughn repeatedly threatened Washington. Both were released from the unit and placed in general population the same day in cells four cells apart. Vaughn then attacked and injured Washington who sued to recover for his injuries. The Washington Court of Appeals panel rejected the argument that the State was immunized because of the police protection exception with the following discussion: “The State argues tire administration of a correctional facility is a police function exempt from liability pursuant to this provision. As a general rule, this is correct. In Cansler, 234 Kan. at 571, the couit concluded that ‘[t]he operation of a penal institution is carried on pursuant to the police power of the state.’ “Although the language of 75-6104(n) suggests immunity for failure to provide adequate police protection is absolute, tire police protection exemption will not provide governmental immunity in all instances where the State fails to provide adequate protection. Where a government employee (1) possesses the power of a law enforcement officer and (2) breaches a specific duty owed to an individual rather than the public at large, 75-6104(n) will not protect the State from liability. Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982). If upon remand it is concluded that prison officials breached a specific duty owed to Washington as an individual pursuant to Restatement (Second) of Torts § 320, tire police protection exemption would not provide tire State with immunity from liability.” (Emphasis added.) 17 Kan. App. 2d at 525-26. We reject Washingtons blanket statement that the police protection exception never applies to a breach of "a specific duty owed to an individual rather than the public at large” — a rejection which eliminates our need to determine whether special duties existed here. 17 Kan. App. 2d at 526. In support of our conclusion we first observe that the sole authority cited by the Washington panel for this particular statement is Robertson v. City of Topeka. Rut this courts decision in Robertson is not supportive. We simply noted that “[ajbsent some special relationship with or specific duty owed an individual, liability will not he for damages” — a statement with which we agree. 231 Kan. at 363. The Washington panel goes farther, however, to conclude there can never be immunity under the police protection exception when law enforcement breaches this special duty. Second, we note this view by the Washington panel contravenes Canslers indication 8 years earlier that the police protection exception would have applied absent the duty to warn. And it is important to recognize that the Cansler plaintiff and Keiswet-ter both claimed, among other things, the State breached a special duty to confine those respective inmates under Restatement (Second) of Torts § 319 (1964). We turn now to Keiswetter s implicit contention during oral arguments that rejecting this Washington panel conclusion would violate tire general rule that exceptions to liability under the KTCA must be narrowly construed. See Robertson, 231 Kan. at 363. We acknowledge this court previously rejected an overbroad construction of the police protection exception in Jackson v. City of Kansas City, 235 Kan. 278. The Jackson decision was a personal injury action under the KTCA involving a collision between two Kansas City fire trucks responding to the same fire. The City argued the police protection exception granted “absolute” immunity in any suit under the KTCA where the plaintiff alleged a governmental entity failed to provide or negligently provided fire protection through its methods. Specifically, “[T]he City asserts that under subsection (m) [now subsection (n)] the sole fact the incident herein occurred while two city fire trucks were responding to a fire alarm operates as a complete bar to claimants’ actions.” 235 Kan. at 290. In holding the exception should not be construed quite so broadly, the Jackson court stated: “We believe [the police protection exception] is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipinent had been purchased. We do not believe subsection (m) is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to tire wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.” (Emphasis added.) 235 Kan. at 292. Three years later we approvingly quoted this full Jackson language as we again examined the police protection exception in Beck, 241 Kan. 13. There, after a man entered the University of Kansas Medical Centers emergency department and killed two people with a shotgun, the plaintiffs brought personal injury and' wrongful death actions against the Kansas Adult Authority, Roard of Regents, and Medical Center. Following our confirmation that the university police officers had the same rights, protections, and immunities afforded to other law enforcement officers, we determined that “[T]he negligent acts complained of consist only of the failure to provide more adequate police protection, and the failure to warn.” (Emphasis added.) 241 Kan. at 22. We relied on the plain language of the police protection exception and Jacksons rationale to hold that “[t]he determination of how to provide police protection is immunized. The Medical Center is not liable because of the methods it adopted for police protection.” (Emphasis added.) 241 Kan. at 24. We conclude Keiswetters claim that the State failed to take reasonable care in preventing Zorn from escaping from custody and attacking Helen Keiswetter falls under the police protection exception to liability under the KTCA because it invokes the State s “failure to provide, or the method of providing, police . . . protection.” See K.S.A. 2015 Supp. 75-6104(n). As mentioned, this court has held: “[A] city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased” and a university medical center is immunized “because of the methods it adopted for police protection.” (Emphasis added.) See Jackson, 235 Kan. at 292; Beck, 241 Kan. at 24; see also Cansler, 234 Kan. at 571-72. So the State likewise is immunized from Keiswetters claim that the attack on his mother could have been prevented if corrections personnel had more closely supervised Zorn, e.g., with additional personnel, to prevent his escape. As we have stated previously: “‘[T]he legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity. As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly elected legislators.’” Barrett, 272 Kan. at 260 (quoting Brown v. Wichita State University, 219 Kan. 2, 9, 547 P.2d 1015 [1976]). Because the State has demonstrated it is entitled to immunity under the KTCA’s police protection exception, we do not consider the lower courts’ additional grounds for rejecting Keiswetter’s claim for relief, i.e., the public duty doctrine, the lack of a special duty owed to Helen Keiswetter, or the failure to present sufficient evidence of negligence to survive summary judgment. See Barrett, 272 Kan. at 264 (after holding KTCA’s recreational use exception provided immunity, no need to consider KTCA’s discretionaiy function exception); Nichols v. U.S.D. No. 400, 246 Kan. 93, 98, 785 P.2d 986 (1990) (after holding KTCA’s recreational use exception provided immunity, no need to discuss discretionary function exception or Land and Water Recreational Areas Act defenses); Beck, 241 Kan. at 24 (after holding KTCA’s police protection exception provided immunity, no need to reach the discretionary function exception). The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed.	[ -48, -20, -35, 31, 11, -29, 59, 8, 99, -105, -28, 115, -23, -53, 5, 121, 122, 53, 84, 105, 103, -73, 23, -119, -42, -5, -72, -60, -78, 90, -10, -105, 77, 96, 10, 85, -90, -118, -43, 88, -114, 10, -120, -15, 89, 2, -74, 127, -36, 15, -79, -98, 50, 10, 23, -49, 77, 44, 91, 45, 65, -104, -55, 7, 94, 23, -94, -128, -108, -89, 80, 50, -104, -71, -128, -22, 83, -74, -126, -11, 79, -103, -116, 103, 99, 48, -100, -51, -96, -127, 14, 80, -81, -89, -103, 72, 99, 5, -73, -67, 120, 84, 14, -4, -1, 62, 109, 108, 1, -50, -44, -109, -51, 112, -58, -94, -61, 5, 33, 97, -50, -26, 88, 71, 112, -101, -86, -14 ]
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Granted. 51 Kan. App. 2d 296	[ -41, 107, -67, 125, 14, 64, 18, -102, 67, -3, 102, 83, 99, -102, 22, 107, -58, 109, 113, 120, -32, -77, 87, 73, -48, 59, -101, 79, -8, 123, -4, -42, 108, 112, 10, 21, 70, -56, -115, 92, -114, 5, -119, 69, 83, 2, 60, 39, 88, 11, 49, -58, -45, 40, 27, 85, 41, 62, -101, -65, -111, -13, -53, -107, -4, 23, -109, 4, -100, -59, 64, 110, -110, 57, 45, -24, 86, 38, -50, 116, 71, -103, -120, 36, 98, 2, -67, -19, -12, -88, 14, -42, -83, -122, -109, 89, 72, 9, -100, 28, 117, 20, 11, -12, -29, -92, 13, 60, -118, -34, -16, -77, -49, 120, 14, 19, -17, -115, -80, 97, -50, -90, 110, -9, 59, -45, -110, -67 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Bruns, J.: The maternal grandparents (the Grandparents) of a minor child appeal from a district court order dismissing their motion for grandparent visitation because it was filed in a paternity action rather than in a divorce proceeding. Although the child’s mother (the Mother) has participated in this appeal, the child’s father (the Father) has chosen not to do so. We find that the district court properly interpreted the plain and unambiguous language of K.S.A. 2014 Supp. 23-3301(a) as limiting the authority of a district court to grant grandparent visitation only in dissolution of marriage proceedings. Nevertheless, we conclude that the statute—as applied—violates the equal protection rights of a child born out of wedlock. Specifically, we find that discriminating on the basis of a child’s legitimacy in the context of grandparent visitation serves no important legislative or governmental purpose. Therefore, we conclude that the district court should rule upon the merits of the motion for grandparent visitation. Facts On May 22, 2009, the Father petitioned tire district court for determination of paternity, custody, parenting time, and support of T.N.Y. The petition alleged that the Mother had left the child to live with her parents shortly after the child’s birth in 2008. At the time, T.N.Y.’s mother evidently lived in Minnesota. According to the petition, the Father and die Modier were never married to each other. The Modier filed an answer admitting the paternity of T.N.Y. but denying that the minor child lived with her parents. Instead, the Motlier claimed that she and T.N.Y. lived together in Kansas City, Kansas. On September 10, 2009, the district court entered an order determining paternity and adopting the parties’ agreed parenting plan. Thereafter, on October 1, 2009, the district court ordered the Fatiier to pay child support to the Modier on behalf of T.N.Y. On October 22, 2014, the Grandparents filed a motion in the paternity action seeking visitation of their maternal grandchild. In the motion, the Grandparents asserted that since the child’s birth, T.N.Y. and the Mother lived with them until the Mother left the home in December 2008. According to die Grandparents, the child remained with diem until December 2010 and the Mother lived witii them “off and on” during that time. They also claimed that in late 2010, the Mother took T.N.Y. to live with her and her new husband. The Grandparents asserted that in April 2011, the Mother and T.N.Y. returned to live with them until July 2014, when they left to live witii die Mother’s new boyfriend in Blue Springs, Missouri. Since that time, the Grandparents claim that the Mother has refused to allow them to see T.N.Y. The district court held a hearing on November 5,2014. Although it is alleged that the motion was discussed, there is no transcript of the hearing in the record on appeal. Nevertheless, on December 3, 2014, the district court filed a journal entry denying the Grandparents’ motion for visitation. In doing so, the district court appropriately looked to the plain language of K.S.A. 2014 Supp. 23-3301(a) and determined that—on its face—the statute only permits a motion for grandparent visitation in an action involving the dissolution of marriage—not in a paternity action. On appeal, the Mother submitted a brief on March 27, 2015, in which she requested attorney fees from the Grandparents for the first time. In support of this request, the Mother argued that she was entitled to recover her attorney fees because the Grandparents’ brief failed to comply with Supreme Court Rules 6.02 (2014 Kan. Ct. R. Annot. 40) and 6.07(a) (2014 Kan. Ct. R. Annot. 50). Moreover, on April 1, 2015, the Grandparents filed a motion to strike the portions of the Mother’s brief drat requests attorney fees, contending that the Mother was required to make such a request by motion under Supreme Court Rule 7.07(b) (2014 Kan. Ct. R. An-not. 70). On April 22, 2015, the Mother’s request for attorney fees was denied for failing to follow Rule 7.07(b)(2). Analysis Adequacy of the Appellants’ Brief Initially, the Mother argues on appeal that the Grandparents failed to comply with Supreme Court Rule 6.02 governing briefs and asks that we dismiss this appeal under Rule 5.05 (2014 Kan. Ct. R. Annot. 37). Rule 5.05(a) states that “[a]n appellate court may dismiss an appeal due to a substantial failure to comply with these rules ... on motion of a party with at least 14 days’ notice to the appellant.” (Emphasis added.) (2014 Kan. Ct. R. Annot. 37). Because the Mother has herself failed to abide by the appropriate rule in making her request, it is denied. We also reject the Mother’s argument claiming that this court lacks jurisdiction over this appeal in light of the alleged errors in die Grandparents’ brief. See Szoboszlay v. Glessner, 233 Kan. 475, 481, 664 P.2d 1327 (1983) (stating that procedural requirements of tire rules are not jurisdictional); Newcastle Homes v. Thye, 44 Kan. App. 2d 774, 794-95, 241 P.3d 988 (2010). Thus, we turn to the merits of the issues presented on appeal. The Grandparent Visitation Statute The Grandparents’ first contention on appeal is that the district court erred by finding that it did not have the authority as a matter of law to grant them visitation in a paternity action pursuant to K.S.A. 2014 Supp. 23-3301(a). Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). Moreover, the most fundamental rule of statutory construction is that the legislature’s intent governs if that intent can be ascertained. Cheney v. Poore, 301 Kan. 120, 125, 339 P.3d 1220 (2014). We must attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, we are not to resort to statutory construction nor should we speculate about the legislature’s intent. Cady, 298 Kan. at 738-39. Generally, the statutory language is “tire primary consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use.” Stanley v. Sullivan, 300 Kan. 1015, 1017, 336 P.3d 870 (2014). Furthermore, third-party visitation statutes must be strictly construed. See Skov v. Wicker, 272 Kan. 240, 249, 32 P.3d 1122 (2001); State ex rel. Secretary of Dept. of S.R.S. v. Davison, 31 Kan. App. 2d 192, Syl. ¶ 3, 64 P.3d 434 (2002). At common law, grandparents had no legal right to visitation. See In re Hood, 252 Kan. 689, 691, 847 P.2d 1300 (1993); Elrod, Child Custody Practice & Procedure § 7:6 (2015). Over the years, however, “there had been a steady trend toward recognizing grandparent visitation rights if the visitation is found to be in the child’s best interests.” Today, “all fifty states recognize grandparent visitation in some circumstances.” Elrod, 2 Kansas Law and Practice, Kansas Family Law § 13.10 (2014). In 1971, Kansas enacted its first grandparent visitation statute. At the time, such visitation was limited to cases in which either the father or mother of a minor child was deceased. L. 1971, ch. 149, sec. 1; see also Browning v. Tarwater, 215 Kan. 501, 503, 524 P.2d 1135 (1974). Thirteen years later, the legislature significantly expanded the scope of grandparent visitation in Kansas by amending K.S.A. 38-129 to permit grandparent visitation upon finding that there was a substantial relationship with the child and that it was in the best interests of the minor child. L. 1984, ch. 152, sec. 1. It is important to recognize that in Troxel v. Granville, 530 U.S. 57, 71-72, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court found that the best interests of the child standard alone was insufficient to order grandparent visitation. But the Kansas Supreme Court subsequently found that K.S.A. 38-129 complied with the requirements of Troxel because it provided sufficient due process protections to parents as long as the burden of proof remained upon the grandparents seeking visitation to show that the visitation was in die child’s best interests and that they had a substantial relationship with the child. See Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 659-60, 16 P.3d 962 (2001). Thus, district courts continued to have the authority to award grandparent visitation in paternity actions. From 1984 to 2011, K.S.A. 38-129 provided: “(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights \yould be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established. “(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.” Similarly, prior to 2011, K.S.A. 60-1616(b) granted district courts the same authority in dissolution of marriage actions. The 2011 Kansas Legislature recodified the paternity and dissolution of marriage statutes into the new Family Law Code found in Chapter 23 of the Kansas Statutes Annotated. As part of the recodification, K.S.A. 38-129 was transferred to K.S.A. 2011 Supp. 23-3302 and K.S.A. 60-1616(b) was transferred to K.S.A. 2011 Supp. 23-3301. See L. 2011, ch. 26, secs. 29, 47. Under the new statute, district courts continued to have the authority to grant grandparent visitation in both paternity actions and dissolution of marriage actions. In fact, the new language of K.S.A. 2011 Supp. 23-3302 was identical to the language previously found in K.S.A. 38-129. The following year, the Kansas Legislature amended the new Family Law Code, including K.S.A. 2011 Supp. 23-3301 and K.S.A. 2011 Supp. 23-3302. The language that was previously found in K.S.A. 2011 Supp. 23-3302 was moved to subsections (b) and (c) of K.S.A. 2012 Supp. 23-3301. See L. 2012, ch. 162, sec. 54. As we will discuss in more detail in the next section of this opinion, the legislative history indicates that these amendments to the Family Law Code were to be technical and not substantive in nature. See memorandum from Joseph Molina, Kansas Bar Association, to Chairman Lance Kinzer and Members of the House Judiciary Committee, March 13,2012. Nevertheless, the qualifying language added at the beginning of K.S.A. 2012 Supp. 23-3301(a) appears on its face to restrict the district court’s authority to award grandparent visitation to dissolution of marriage actions. K.S.A. 2014 Supp. 23-3301 currently reads as follows: “(a) In an action under article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, grandparents and stepparents may be granted visitation rights. “(b) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established. “(c) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of diis act.” (Emphasis added.) It is undisputed that Article 27 of Chapter 23 encompasses only actions involving the dissolution of marriage. See K.S.A. 2014 Supp. 23-2701 et seq. On the other hand, Article 22 of Chapter 23—which is not mentioned in K.S.A. 2014 Supp. 23-3301—ap-plies to actions to determine paternity. See K.S.A. 2014 Supp. 23- 2201 et seq. Thus, we conclude that the district court was correct in finding that the plain and unambiguous language of K.S.A. 2014 Supp. 23-3301 restricts grandparent visitation to dissolution of marriage proceedings. Notwithstanding, the Grandparents argue that it would be reasonable to read the current statute to provide for grandparent visitation as it did prior to its 2012 amendment. Although this language is appealing in light of the legislative history of the amendment, such a reading of the current version of the statute would require us to ignore our directive from tire Kansas Supreme Court to strictly construe third-party visitation statutes. Moreover, a fair reading of the statute reveals that subsection (b) does not provide a statutory right to grandparents in paternity actions to seek visitation. Rather, that subsection provides the findings that a district court is required to make in order to grant visitation to a grandparent. If the legislature intended subsection (b) to broadly permit grandparent visitation in a variety of actions, subsection (a) would be superfluous. See Stanley, 300 Kan. at 1021 (“This court presumes that the legislature does not intend to enact superfluous or redundant legislation.”). In matters governed by legislation, we are not free to simply enact our view of wise public policy or even to correct what we believe may be an inadvertent mistake by the legislature. Rather, the Kansas Supreme Court requires that we leave such matters to die legislature itself to resolve. See In re Marriage of Hall, 295 Kan. 776, 784, 286 P.3d 210 (2012). In light of the directive to stricdy construe third-party visitation statutes, we are obligated to decline the Grandparents’ request to look beyond the statute’s plain language in this case. We, therefore, conclude that the current version of K.S.A. 2014 Supp. 23-3301 only authorizes a district court to grant grandparent visitation in proceedings involving the dissolution of a marriage. Equal Protection of Children The Grandparents also contend that even if K.S.A. 2014 Supp. 23-3301 no longer authorizes courts to order grandparent visitation in paternity actions, treating children whose parents have never been married to each other differently than children whose parents have been married to each other violates the Equal Protection Clause of the Fourteenth Amendment. It is important to note, however, that this issue was not presented to the district court, and the Grandparents raise it for the first time on appeal.' Accordingly, we must initially decide whether this issue is properly before us on appeal. Generally, constitutional issues asserted for the first time on appeal are not properly before an appellate court for review. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70 (2014). But there are several exceptions to the rule. These exceptions include: (1) the newly asserted theoiy involves a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theoiy is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1778 (2009). Pursuant to Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. An-not. 40), the Grandparents ask this court to consider the issue because doing so is necessary to serve the ends of justice and because the issue involves a question of law. Because the 2012 amendment to K.S.A. 2011 Supp. 23-3301 appears to have stripped away the power of district courts to grant grandparent visitation in paternity actions—a power that they held for more than 40 years in Kansas—while continuing to grant district courts the authority to allow grandparent visitation in dissolution of marriage actions, we find the resolution of this issue to be necessary to serve the ends of justice. Further, because the statute in question makes a distinction in the authority of district courts to grant grandparent visitation based on the legitimacy of the child, a quasi-suspect class is involved and a heightened level of judicial review is required. See Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988); Pierre v. Holder, 738 F.3d 39, 50 (2d Cir. 2013). Thus, we conclude that this issue is appropriately before us on appeal. The Fourteenth Amendment to the United States Constitution provides in part that “No State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “The guiding principle of an equal protection analysis is that similarly situated individuals should be treated alike.” In re K.M.H., 285 Kan. 53, 73, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). Courts are to presume statutes are constitutional, and all doubts must be resolved in favor of validity. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013). In determining whether statutes violate the Equal Protection Clause, there are three levels of review—strict scrutiny, intermediate scrutiny, and the rational basis test. See State v. Salas, 289 Kan. 245, Syl. ¶ 3, 210 P.3d 635 (2009). While all statutes must have a rational basis, statutes involving classifications affecting fundamental rights or involving classifications by race, national origin, or alienage must be able to survive the most scrupulous review— strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-17, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Statutes distinguishing among people on quasi-suspect classes such as gender and legitimacy, however, must be able to survive an intermediate level of review—heightened scrutiny. In other words, such statutes must be “substantially related to an important governmental objective.” Clark, 486 U.S. at 461. This requires the justification for the statute’s differential treatment to be “exceedingly persuasive.” United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996). As indicated above, the 2012 amendment to K.S.A. 2011 Supp. 23-3301(a) eliminated the authority that district courts had exercised to one degree or another for 41 years to order grandparent visitation of children whose parents were never married to each other while continuing to authorize courts to order grandparent visitation of children whose parents have been married to each other. See Atkinson, Shifts in the Law Regarding the Rights of Third Parties to Seek Visitation & Custody of Children, 47 Fam. L. Q. 1, 20 (2013) (stating that Kansas does not specifically provide for visitation of children born out of wedlock or who are the subject of paternity proceedings); see also Cheney, 301 Kan. at 127 (describing the statute as granting stepparents and grandparents “vis itation rights of minor child in divorce cases”). In other words, the 2012 amendment to K.S.A. 2011 Supp. 22-3301(a) makes a distinction between those children who are considered by law to be legitimate and those children who are considered to be illegitimate. Accordingly, we must apply a heightened scrutiny standard of review and determine whether the 2012 amendment “substantially furthers a legitimate legislative purpose.” Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 324, 291 P.3d 1056 (2013). As early as 1968, the United States Supreme Court recognized that illegitimate children “are clearly persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment” and concluded that “it is invidious to discriminate against them.” Levy v. Louisiana, 391 U.S. 68, 70-72, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968). Likewise, in a case involving a biological mother and her same-sex partner agreeing to have children by artificial insemination, the Kansas Supreme Court recognized the constitutional rights of children to receive equal treatment under the law. See Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013). Specifically, our Supreme Court found that “the constitutional rights of tire children” must be considered in addition to tiróse of the parents. 296 Kan. at 755 (“Accordingly, the constitutional rights of the children, as well as those of the parents, must inform our determination of the validity of a coparenting agreement.”). Similarly, we find that it is appropriate for us to consider the constitutional rights of children whose parents never married—in addition to those of married parents—in determining whether the 2012 amendment to K.S.A. 2011 Supp. 23-3301(a) substantially furthers an important governmental interest. In the present case, we have a difficult time finding that the 2012 amendment advances any legislative purpose, much less that it substantially furthers an important or legitimate one. Although the Mother suggests that it makes sense to allow district courts to order grandparent visitation in dissolution of marriage actions but not in paternity actions, she does not explain why this is so. Moreover, she makes no attempt to show that the 2012 amendment served an important or legitimate governmental purpose. Our review of the legislative history relating to the 2012 amendment reveals there was no intent to make any substantive changes to the Kansas Family Law Code. The amendment to K.S.A. 2011 Supp. 23-3301 began as part of House Bill 2741, which was proposed by the Kansas Judicial Council as “clean-up amendments to the recodified domestic relations statutes, (http: //www.kansasjudicialcouncil.org/2012Legislation.shtml) Further, the Kansas Judicial Council submitted written testimony in support of House Bill 274Fs amendment to K.S.A. 2011 Supp. 23-3301— as well as an amendment to K.S.A. 2011 Supp. 23-3302—which stated: “The amendments contained in these two sections merely reorder die provisions so that 23-3301 authorizes the court to grant visitation rights to grandparents and stepparents, while 23-3302 deals with modification of such orders. The changes are not substantive.” (Emphasis added.) Memorandum from Ron Nelson, Kansas Judicial Council, to House Judiciary Committee, March 13, 2012. Similarly, the Kansas Bar Association submitted written testimony explaining that “HB 2741 was introduced as a measure to correct any oversights that may have occurred” when implementing Senate Bill 24 in the previous year. Memorandum from Joseph Molina, Kansas Bar Association, to Chairman Lance Kinzer and Members of the House Judiciaiy Committee, March 13, 2012. Although House Bill 2741 died in the Senate Judiciary Committee after passing tire House, it was resurrected in Senate Bill 304—which was introduced on March 1, 2012. The Senate Bill dealt mainly with the implementation of a certified batterer intervention program. But a conference committee later included the amendments to K.S.A. 2011 Supp. 23-3301 and K.S.A. 2011 Supp. 23-3302 in Senate Bill 304. In fact, the Kansas Judicial Council’s website provides that Senate Bill 304 “contains provisions from [HB 2741] proposing clean-up amendments to the recodified domestic relations statutes.” (http://www.kansasjudicialcouncil.org/ 2012Legislation.shtml) The Governor ultimately signed Senate Bill 304 into law on May 25, 2012. In summarizing Senate Bill 304, the Kansas Legislative Research Department simply states that “the bill fixes non-substantive errors and omissions in 2011 SB 24, which recodified several domestic relations statutes.” (Emphasis added.) In light of the fact that the history of the 2012 amendment reveals that the Kansas Legislature did not intend to malee substantive changes to K.S.A. 2011 Supp. 23-3301 and the Mother has failed to offer any legislative purpose for treating grandparent visitation differently in paternity actions and actions for the dissolution of marriage, we find that amendment does not substantially advance an important or legitimate governmental interest. As such, we find that the 2012 amendment to K.S.A. 2011 Supp. 23-3301(a)—limiting grandparent visitation to dissolution of marriage proceedings—is unconstitutional because it violates the equal protection rights of children whose parents never married. Because we find—as previously discussed—that the legislature did not intend to make any substantive changes, striking the offending language from the 2012 amendment is the appropriate remedy. See State v. Limon, 280 Kan. 275, 306, 122 P.3d 22 (2005) (striking offending language from statute that violated equal protection by permitting the State to punish sodomy between adults and children of the opposite sex less severely than sodomy between adults and children of the same sex); State ex rel. Morrison v. Sebelius, 285 Kan. 875, 913, 179 P.3d 366 (2008) (severance provision not prerequisite for severing provision). Attorney Fees After this court denied the Mother s motion for attorney fees on appeal, the Grandparents filed a motion seeking to recover their attorney fees and costs on appeal. In their motion, they argue that they are entitled to attorney fees because the Mother did not agree to a motion for summaiy disposition reversing the judgment of the district court and remanding the case for factual findings. The mother filed a response on June 17,2015, asserting that the district court was without authority to grant attorney fees since it had no jurisdiction to entertain the motion for grandparent visitation. The Mother also argued that in light of the district court’s ruling and the lack of any provision granting grandparent visitation, she had a good faith basis to decline the Grandparents’ settlement offers. In this case, K.S.A. 2014 Supp. 23-3304 provides the authority to award attorney fees, and Rule 7.07(b) (2014 Kan. Ct. R. Annot. 70) establishes the procedure for seeking and awarding appellate attorney fees. K.S.A. 2014 Supp. 23-3304 states: “Costs and reasonable attorney fees shall be awarded to the respondent in an action filed pursuant to K.S.A. 2014 Supp. [23-3301] et seq., and amendments thereto, unless the court determines that justice and equity otherwise require.” “The legislature clearly intended that the petitioner (grandparents) pay the costs and the attorney fees unless the trial court specifically finds that justice and equity require otherwise.” In re Cathey, 38 Kan. App. 2d 368, 377, 165 P.3d 310 (2007) (Green, J., concurring). We find that it was reasonable for the Mother to decline their request to settle the case because she had prevailed before the district court and properly argued on appeal that the plain language of K.S.A. 2014 Supp. 23-3301(a) precludes grandparent visitation in paternity actions. Moreover, K.S.A. 2014 Supp. 23-3304 provides that the Mother—not tire Grandparents—would iypically receive reasonable attorney fees when a motion for grandparent visitation has been filed. We, therefore, deny the Grandparents’ request for attorney fees. Conclusion The district court correctly interpreted K.S.A. 2014 Supp. 23-3301(a) to limit grandparent visitation to only dissolution of marriage actions in light of the 2012 amendment to the statute. However, fee Grandparents did not raise the equal protection argument presented on appeal to the district court. As such, the district court had no opportunity to rule on this issue. Nevertheless, we find that it is appropriate to consider the constitutional issue on appeal and find that fee limitation in subsection (a) does not substantially further a legitimate or important legislative purpose. We, therefore, find feat fee language added to K.S.A. 2011 Supp. 23-3301(a) in 2012 violates the Equal Protection Clause of the United States Constitution. Accordingly, we hereby strike fee offending language from K.S.A. 2014 Supp. 23-3301(a)—specifically the words: “In an action under article 27 of chapter 23 of fee Kansas Statutes Annotated, and amendments thereto”—and we refer this matter back to the district court to rule on the merits of the motion for grandparent visitation. Reversed and remanded with directions.	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The opinion of the court was delivered by Johnson, J.: A jury convicted Deborah Meeks of second-degree intentional murder for fatally shooting her former partner, Wesley Smith, as he sat on a bed in his home. She did not deny that she pointed a handgun at Smith and pulled the trigger several times after the weapon initially malfunctioned and that the weapon ultimately discharged a round into Smith’s chest. But she claimed to suffer from battered woman syndrome caused by Smith’s many years of abusive and manipulative mistreatment. Meeks appealed to the Court of Appeals, claiming that the district court erred in two ways: (1) By refusing her request to establish a claim of self-defense based on battered woman syndrome; and, (2) by granting the State’s motion in limine barring evidence of specific instances of Smith’s abusive and violent acts toward her. The Court of Appeals affirmed Meeks’ conviction, finding that the district court did not err in excluding evidence of battered woman syndrome because Meeks had not asserted a claim of self-defense at trial, and, alternatively, that the evidence presented at trial would not have supported a claim of self-defense. State v. Meeks, No. 106,107, 2013 WL 310337, at 4-6 (Kan. App. 2013) (unpublished opinion). We granted review based on Meeks’ representation in her petition for review that she had attempted to rely on a claim of self-defense in the trial court, which would have allowed this court to consider the panel’s holding that this court’s decision in State v. Stewart, 243 Kan. 639, 646, 763 P.2d 572 (1988), precluded any claim of self-defense by Meeks, regardless of whether she suffered from battered woman syndrome. Procedural Overview After shooting Smith, Meeks exited his house, called 911, and waited outside for the police. She was arrested without incident and subsequently charged with first-degree premeditated murder. Prior to trial, Meeks filed an application requesting an evaluation by Dr. Marilyn Hutchinson, an expert on battered woman syndrome. The State filed an objection to the application, pointing out that Meeks had not asserted that the evaluation was necessary to support a claim of self-defense. At the motion hearing, defense counsel did not explicitly contend that the evaluation was relevant or necessary to a claim of self-defense. Rather, the defense argued that the evaluation was necessary to determine Meeks’ state of mind at the time of the shooting. The district court approved Meeks’ request but noted that the expert’s opinion might not be admissible at trial, depending upon “whatever the theory of the defense is going to be.” Dr. Hutchinson’s post-evaluation written report concluded that Meeks had shot and killed Smith “after an unusually controlling two week period” which “was the culmination of years of abuse and control”; and that Meeks “acted in a manner that appears to have been outside of her conscious decision making control,” as a result of the “fear, anger and resentment she had from his treatment of her.” The report does not explicitly state that the doctor had determined that Meeks was suffering from battered woman syndrome. The State subsequently filed a motion to determine the admissibility of Dr. Hutchinson’s expert testimony, claiming that it was irrelevant and inadmissible because Meeks was not expressly claiming self-defense. At the motion hearing, defense counsel agreed drat Meeks was not asserting a claim of classic self-defense. Nevertheless, defense counsel argued that expert testimony regarding battered woman syndrome should be admissible pursuant to State v. Hodges, 239 Kan. 63, 73, 716 P.2d 563 (1986), because it would be helpful to the jury to explain the nature of abusive relationships and why victims stay with a batterer. At the conclusion of the hearing, the district court announced that it could find no basis upon which to admit Dr. Hutchinson’s report or testimony as it was being proffered. But the court provided defense counsel the opportunity to present legal authority for the proposition that expert testimony regarding battered woman syndrome could be admitted in scenarios where the defendant was not acting in self-defense. Apparently, the defense did not seize that opportunity, because the record contains no such additional legal authority. The State also filed a pretrial motion in limine, seeking to exclude evidence about the couple’s past tumultuous relationship, specifically referring to any acts of violence committed by Smith upon Meeks. The State argued that because the evidence surrounding Smith’s shooting did not support a claim of self-defense, any evidence regarding Smith’s prior conduct was irrelevant. Meeks filed a written response, acknowledging that in light of the district court’s ruling, she was not asserting a claim of self-defense. The district court determined that because there was no evidence that Meeks was in imminent danger when she went to Smith’s house with a gun, evidence of specific instances of Smith’s prior acts of violence were inadmissible, albeit the court ruled that general background information regarding the couples’ abusive relationship would be admissible. Meeks testified at her jury trial, claiming that when she went to Smith’s house with the handgun, she intended to scare him, not kill him. The juiy’s verdict, convicting Meeks of second-degree intentional murder, rather than first-degree premeditated murder, was consistent with Meeks’ testimony. Meeks filed a timely appeal to the Court of Appeals. The Court of Appeals panel affirmed Meeks’ conviction, first holding that the district court did not err in excluding Dr. Hutchinson’s testimony regarding battered woman syndrome because Meeks had not asserted a claim of self-defense. Meeks, 2013 WL 310337, at 5. But the panel then went further, espousing the dictum that even had Meeks attempted to assert a claim of self-defense, there was no evidence to support such a claim. 2013 WL 310337, at 6. Finally, the Court of Appeals held that because Meeks did not assert a claim of self-defense, the district court did not err in excluding specific instances of Smith’s prior violent acts against Meeks. 2013 WL 310337, at 6. Meeks filed a timely petition for review, and this court granted the petition pursuant to K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b). Right to Present a Defense Meeks argues that the district court violated her right to a fair trial by refusing her request to establish a claim of self-defense based on the battered woman syndrome. Certainly, under the United States and Kansas Constitutions, a defendant has a right to present his or her defense, albeit the right is not without limits. See State v. Walters, 284 Kan. 1, Syl. ¶ 1, 159 P.3d 174 (2007) (right to present defense subject to statutory rules and caselaw interpreting rules of evidence and procedure). And if admissible evidence that is an integral part of the theory of defense is erroneously excluded, the defendant’s fundamental right to a fair trial has been violated. State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006). But the theory of defense upon which a defendant had a right to present evidence is the theoiy that the defendant actually pursued at trial. Cf. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (claims not raised before trial court cannot be first raised on appeal). A defendant cannot disclaim a theoiy of defense in the district court and then claim on appeal that he or she was prevented from pursuing that defense theoiy. Cf. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014) (litigant may not invite error, then complain of that error on appeal). The record before us indicates that Meeks clearly indicated to the trial court that she was not pursuing a claim of self-defense. Initially, Meeks advised the district court that she needed to be evaluated by the battered woman syndrome expert to determine her “state of mind,” i.e., to determine whether she had a “mental disease or defect” at the time of the shooting based on being a battered woman. After Dr. Hutchinson’s report revealed that Meeks did not suffer from a mental disease or defect, defense counsel acknowledged that Meeks was not asserting a classic claim of self-defense, even though counsel insisted that the expert testimony was relevant to explain abusive relationships to the jury and to establish Meeks’ intent at the time the gun was fired. Thereafter, Meeks never corrected or refuted the multiple assertions by the State and the district court that self-defense was not an issue in the trial. For example, in opposing Meeks’ request for an expert evaluation, the State represented that Meeks was not claiming self-defense, to which the defense counsel responded that he did not disagree with the State’s representations. When ruling on the admissibility of Dr. Hutchinson’s report, the district court said it was unaware of caselaw allowing evidence of battered woman syndrome in cases where a claim of self-defense was not indicated. Yet, defense counsel did not advise the court that Meeks was, in fact, claiming self-defense. Instead, defense counsel acknowledged that this case did not involve a classic example of self-defense. Moreover, in responding to the State’s motion to exclude evidence of Smith’s prior bad acts, defense counsel specifically stated that there was no evidence supporting a claim of self-defense nor would there be a claim of self-defense. Finally, the defense did not request a jury instruction on self-defense. Simply put, Meeks did not assert a claim of self-defense or give any indication to the district court that she was attempting to assert a claim of self-defense at trial. To the contrary, she led the trial court to believe that self-defense was not an issue in the trial. Accordingly, Meeks has no claim on appeal that she was denied tire right to present evidence on that unasserted—and disclaimed— theory of defense. Consequently, we affirm the Court of Appeals on that basis. Where we part company with the panel is with its theoretical exercise of determining whether the facts of this case could have supported a claim of self-defense, if Meeks had asserted that defense and if Meeks had established that she suffered from battered woman syndrome at the hands of the victim. We disapprove of that portion of the Court of Appeals opinion, especially with respect to its treatment of the holding from Stewart, 243 Kan. 639, albeit a complete analysis of the issue will have to await another day. Meeks’ second request in her petition for review was that, in the event of a new trial, we should direct that specific instances of Smith’s prior abusive and violent acts would he relevant and admissible to prove the reasonableness of Meeks’ perception of danger with respect to a claim of self-defense supported by the battered woman syndrome. Given that we are not remanding for a new trial, this issue is moot. Affirmed. Michael J. Malone, Senior Judge, assigned.	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Malone, C.J.: The State appeals the district court’s decision to dismiss the aggravated battery charge against Dustin Alex Evans based upon a finding that Evans qualified for self-defense immunity under K.S.A. 2014 Supp. 21-5231. The State charged Evans with aggravated battery arising from an altercation with Jose Luis Pena, Jr., that took place in Evans’ garage. During the altercation, Evans stabbed Pena, who was unarmed, with a sword. The district court held a pretrial hearing and, after weighing the conflicting evidence, found that the State had failed to establish probable cause that Evans’ use of force in defending himself was unlawful. Thus, the district court found drat Evans was immune from prosecution and dismissed the complaint. The only issue on appeal is whether the district court erred in applying K.S.A. 2014 Supp. 21-5231, which grants a suspect immunity from prosecution based upon the lawful use of self-defense. We will review the facts in detail. On the evening of June 18, 2013, Evans and Pena each went to different bars in Overland Park. The evidence indicates that both men became intoxicated over the course of the evening. At approximately 3 a.m. on June 19, after the bars closed, Pena stopped at Evans’ house, about four houses from his own, to talk to Jason Dalton, who had given Evans a ride home from the bar. When Dalton left, Pena knocked on Evans’ front door. Evans came to the door and allowed Pena to enter the house. Evans’ friend, Jarod King, also was at the house, and the three men eventually moved out into the garage. Pena’s wife joined the men for awhile, but she and King eventually left, leaving only Pena and Evans in the garage. Evans suggested a wrestling match and pulled some wrestling mats from the garage and spread them in the driveway. The two men apparently agreed to a “grappling” match in which the winner would be the person who obtained a “tap out” by the other. Evans and Pena provided different accounts of what happened next. Evans later told police that Pena covered Evans’ mouth with his hand during the wrestling match. Evans attempted to move Pena’s hand and became frantic when Pena kept replacing his hand over Evans’ mouth. Evans was unable to breathe. He managed to break free, stood up, and moved into the garage. Evans accused Pena of trying to kill him. Pena followed Evans into the garage, threatening to kill Evans and his family. Evans repeatedly told Pena to step back, but Pena continued to advance toward Evans. Evans retrieved a katana-style sword he had stored in the garage and pointed it at Pena. When Pena continued to advance towards Evans, he stabbed Pena once in the chest with the sword. Pena later testified that he accidentally placed his hand against Evans’ throat during the wrestling match as he attempted to gain a better position. Evans jumped up, visibly angry, and walked into the garage. Pena got up and walked along the outside of the garage, asking Evans what was wrong and whether he was okay. Evans accused Pena of trying to kill him. As they talked, Pena became distracted by something and looked over his shoulder. Pena stated that as he was turning back to Evans, he realized that Evans was trying to stab him with a sword. Pena raised his arm in defense and prevented the first two blows, but he was stabbed in the chest on tire third attempt. Pena noticed blood gushing out of his chest and pleaded with Evans to call someone to help. Evans responded, “Fuck you, mother fucker, die. That’s what you get.” Pena retreated out of the garage and staggered down the driveway into the neighbor’s yard, leaving a blood trail as he moved. He pounded on tire neighbor’s door several times before losing consciousness. Evans eventually called 911 and reported that he had stabbed Pena. Originally, Evans only reported that he stabbed a man who had come onto his property. When the dispatcher asked for an explanation of the events that preceded the stabbing, Evans explained that he had been wrestling and knew the victim. Emergency personnel responded to the call and Pena was rushed to the hospital. At the hospital, Pena wavered in and out of consciousness. When asked why Evans stabbed him, Pena indicated that he did not know the reason. Pena stated, “One minute we were fine, the next we weren’t.” Pena received emergency surgery. The treating physician informed an officer that Pena had received a puncture into his chest measuring approximately 3 inches wide and about a foot deep, cutting through a rib bone. The wound cut Pena’s liver and pancreas and nicked tire pericardium, the.sac surrounding the heart. Though the doctors indicated that the injuries were life threaten ing, Pena survived. A sample of Pena’s blood was taken at the hospital, and later testing indicated a blood-alcohol content of .20. The police arrested Evans on the night of tire incident. On June 20, 2013, the State charged Evans with aggravated battery under K.S.A. 2014 Supp. 21-5413(b)(l)(A) (intentionally causing great bodily harm). At the preliminary hearing on September 11, 2013, during which only Pena testified, the district court found probable cause to believe Evans committed aggravated battery and bound him over for trial. On January 16, 2014, about 1 week before Evans’ scheduled jury trial, Evans filed a “Motion to Present the Jury a Complete Defense.” Evans also filed a “Motion to Enforce K.S.A. 21-5231.” Evans’ motions did not seek dismissal of tire aggravated batteiy charge. Instead, Evans asked the district court to conduct an analysis in conjunction with the jury trial in order to determine whether Evans was entitled to self-defense immunity. The State filed a memorandum in response to Evans’ motions. The district court held a hearing on the motions on April 7,2014. The State presented the preliminary hearing transcript as evidence, and tire parties stipulated to numerous exhibits, including police reports of the investigation surrounding the stabbing incident, crime scene reports, medical reports, photographs, and recordings of the 911 call and Evans’ interviews with the police. In addition, Evans called as witnesses five law enforcement officers who had participated in the investigation. The stipulated evidence presented at the hearing revealed some inconsistencies in Pena’s version of the events. In his preliminary hearing testimony, Pena testified that after the wrestling match abruptly ended, he never followed Evans back into the garage. But the undisputed blood evidence indicated that the stabbing took place in the back area of the garage next to the door going into the house. Also, Pena testified at the preliminary hearing that Evans brandished the sword three times and Pena deflected the first two blows causing injury and scarring to his forearm. But the medical evidence indicated there were no injuries on Pena’s arms. Finally, the stipulated evidence included a report from an emergency room doctor and director of a wound care center who opined that the stabbing took place when Evans was in a defensive posture with both hands on the sword. After receiving the evidence, the district court took the matter under advisement. On April 25,2014, the district court filed a comprehensive order dismissing the State’s case against Evans. Relying primarily upon Lemons v. Commonwealth, 2012 WL 2360131 (Ky. App. 2012) (unpublished opinion), revel 437 S.W.3d 708 (Ky. 2014), the district court found that it was permitted to weigh the credibility of the evidence presented on the issue of self-defense immunity. After weighing the evidence, the district court found that the State had failed to establish probable cause that Evans’ use of force was unlawful. The district court found that Evans “was reasonably justified under these facts in using force because Pena was clearly a threat and a reasonable person in his position would have felt it necessary to defend himself and/or his home.” Accordingly, the district court granted self-defense immunity to Evans and dismissed the charge of aggravated batteiy. The State filed a motion to reconsider, which tire district court denied. The State then filed a timely notice of appeal. On appeal, the State contends that the district court erred in applying K.S.A. 2014 Supp. 21-5231, which grants suspects immunity from prosecution based upon self-defense. The State argues that tire district court improperly weighed the conflicting evidence instead of viewing tire evidence in a light most favorable to the State. The State contends that the evidence did not support a finding that Evans’ use of deadly force was objectively reasonable, and, thus, the court erred in granting Evans immunity. Evans responds that the State cannot establish that the district court applied the wrong standard to determine whether he was immune from prosecution pursuant to K.S.A. 2014 Supp. 21-5231. Evans contends that the district court should not be required to view the evidence in the light most favorable to the State at a hearing on a motion for self-defense immunity. In the alternative, Evans argues that even under a standard requiring the court to view the evidence in the light most favorable to the State, the evidence supported the district court’s decision to grant him immunity. Resolution of this issue involves the interpretation and application of K.S.A. 2014 Supp. 21-5231 and related self-defense statutes. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Likewise, when the State appeals the dismissal of a complaint, an appellate court’s review of an order discharging the defendant for lack of probable cause is de novo. State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011). In 2010, the Kansas Legislature enacted a series of statutes addressing the use of force, including the use of deadly force, in the defense of a person or property, including a person’s dwelling. See K.S.A. 2014 Supp. 21-5220 et seq. The statutes are commonly known as this state’s “stand-your-ground law.” K.S.A. 2014 Supp. 21-5222 states: “(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessaiy to defend such person or a third person against such other s imminent use of unlawful force. “(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessaiy to prevent imminent death or great bodily harm to such person or a third person. “(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” K.S.A. 2014 Supp. 21-5223 states: “(a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessaiy to prevent or terminate such other’s unlawful entiy into or attack upon such person’s dwelling, place of work or occupied vehicle. “(b) A person is justified in the use of deadly force to prevent or terminate unlawful entiy into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another. “(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person’s dwelling, place of work or occupied vehicle.” K.S.A. 2014 Supp. 21-5230 states: “A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person’s ground and use any force which such person would be justified in using under article 32 of chapter 21 of tire Kansas Statutes Annotated, prior to their repeal, or K.S.A. 21-5202 through 21-5208, 21-5210 through 21-5212, and 21-5220 through 21-5231, and amendments thereto.” Finally, K.S.A. 2014 Supp. 21-5231 provides immunity from prosecution for any person who lawfully uses force in defense of a person or property. That statute states: “(a) A person who uses force which, subject to the provisions of K.S.A. 2014 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2014 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer’s official duties and the officer identified the officer’s self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, ‘criminal prosecution’ includes arrest, detention in custody and charging or prosecution of the defendant. “(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but tire agency shall not arrest tire person for using force unless it determines that there is probable cause for the arrest. “(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause.” K.S.A. 2014 Supp. 21-5231. In State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 (2013), the Kansas Supreme Court determined that the standard of proof for whether a defendant is entitled to immunity from criminal prosecution is probable cause. Furthermore, the State bears the burden of establishing proof that the force used by the defendant was not justified as part of the probable cause determination under the immunity statute. 296 Kan. at 845. Immunity is separate and distinct from the affirmative defense of self-defense. A prosecutor must rebut a claim of immunity before a case can go to trial. This procedure differs from when a defendant raises an affirmative defense which must be established at trial. Generally, in order for a defendant to be bound over for trial, it must only appear from the evidence that a felony has been committed and there is probable cause to believe the defendant committed it. See K.S.A. 2014 Supp. 22-2902(3). But as noted in Ultreras, “once a defendant raises justified use-of-force immunity before a court, a probable cause determination must also include a determination that the defendant’s use of force was not justified under [the statutes]. Hence, the statute as written with a probable cause standard adds an additional requirement and is meaningful.” 296 Kan. at 844. While the Ultreras court declined to establish procedures for immunity hearings, this court addressed the procedural treatment of motions for self-defense immunity in State v. Hardy, 51 Kan. App. 2d 296, 300-04, 347 P.3d 222 (2015), rev. granted 304 Kan. (2016). In Hardy, this court held that in considering a motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, a district court must conduct an evidentiary hearing, unless the parties otherwise stipulate to the factual record, and the rules of evidence apply. Whenever possible, the district court should combine the immunity hearing with the defendant’s preliminary hearing. At the evidentiary hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. This court further held that consistent with making a probable cause determination at a preliminary hearing, the district court must view die evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State’s benefit and against a finding of immunity. 51 Kan. App. 2d at 304. Here, there can be no real dispute that the force used by Evans was deadly force, as that term is statutorily defined. See K.S.A. 2014 Supp. 21-5221(a)(2) (“ ‘Use of deadly force’ means die application of any physical force described in paragraph (1) which is likely to cause death or great bodily harm to a person.”). The sword wound entered Pena’s chest cavity approximately a foot, cutting a rib, his liver, his pancreas, and his pericardium. Even after stabilizing Pena in the emergency room for surgery, the doctors told law enforcement that his condition was precarious. Therefore, for Evans’ use of force to be justified, the evidence must establish that he reasonably believed that the use of deadly force was necessaiy to prevent imminent death or great bodily harm to himself. See K.S.A. 2014 Supp. 21-5222(b). Evans had no duty to retreat from Pena. K.S.A. 2014 Supp. 21-5222(c). The rea sonableness of the need for deadly force is statutorily presumed if the person against whom the force is used has unlawfully or forcefully entered a dwelling. K.S.A. 2014 Supp. 21-5224(a)(l)(A). But here, Pena was an invited guest at Evans’ home and the two men initially had agreed to engage in a friendly wrestling match before tempers flared and the encounter became combative. The evidence presented to the district court on Evans’ use of deadly force in self-defense was highly conflicting. As is clear from the district court’s order granting immunity, the district court gave little credibility to Pena’s sworn testimony provided at the preliminary hearing. In finding that the State failed to present sufficient evidence to establish probable cause that Evans’ use of force was unlawful, the district court stated: “The State did not consider the whole picture in this case when it charged Defendant with aggravated batteiy a mere six hours after being taken into custody. More than one police officer involved in this case admitted to having only a cursory knowledge of immunity statutes in general, and virtually no knowledge of this state’s ‘stand-your-ground law.’ Although Defendant cited to this type of immunity several times during the course of his custody (referring to the ‘new castle law’), there was no indication by Overland Park police that Defendant’s assertions were taken seriously or, in fact, considered at all. Defendant remained cooperative throughout questioning (after making the emergency call for medical assistance for Pena) and was consistent in the relaying of events to various officers, while Pena has given various accounts of that night to police, the State, and this Court. Based on the record before the State at the time of arrest and charging, self-defense immunity should have been considered. The subsequent investigation revealed facts favorable to Defendant in his claim of self-defense, none of which were acknowledged or understood prior to the immunity hearing.” The district court granted Evans’ motion for immunity, in part, because it found Evans’ version of the events to be more credible than Pena’s testimony. But it also appears that the district court granted the immunity motion, in large part, because the court found that the officers investigating the case were unaware of this state’s “stand-your-ground” law. The district court determined that the State rushed to judgment by charging Evans with a crime without fully investigating his claims of self-defense. Whether the district court erred in granting immunity to Evans turns on whether the district court was required to view the con- flirting evidence in a light favoring the State. Evans argues that, if the district court is required to interpret the evidence in a light most favorable to the State and is not permitted to weigh credibility, the immunity granted by statute becomes meaningless as the State will always be able to present some evidence that the defendant failed to act justifiably, usually in the form of the victim’s statement. Evans also points out that in ruling on other pretrial motions such as a suppression motion, the district court is not obligated to view the evidence in a light most favorable to the State but must make findings of fact and even credibility determinations. As this court noted in Hardy, a pretrial motion to suppress evidence typically deals with fact issues only indirectly bearing on guilt or innocence, and jurors will not be called upon to decide those same fact issues at trial. 51 Kan. App. 2d at 301. But if a district court is granted broad authority to weigh conflicting evidence and assess credibility in granting immunity, as Evans advocates, the court effectively supplants the jury in this traditional role. As stated by this court in Hardy. “The issue of self-defense immunity is inextricably bound up in guilt or innocence, and consistent with the strong preference for jurors making fact determinations in criminal cases, the preliminary examination standard [of viewing the evidence in a light favoring the State] preserves that function. A district court would otherwise usurp that role in considering self-defense immunity.” 51 Kan. App. 2d at 300-01. A defendant’s motion for self-defense immunity is a dispositive motion. If granted by the district court, the State’s charges are dismissed and tire defendant is immune from prosecution. As with any dispositive motion filed before the parties are allowed to present their complete evidence at trial, such as a motion for summary judgment in a civil case, the evidence must be weighed in the light most favorable to the nonmoving party. Thus, in ruling on Evans’ motion for self-defense immunity, the district court should have been required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling was sought. In dismissing the aggravated battery charge against Evans, die district court found that it was permitted to weigh the credibility of the evidence presented on the issue of self-defense immunity. We agree with the district court, in part. Our Supreme Court has stated that when evaluating evidence presented at a preliminary hearing, die judge must consider the defendant’s defense and pass judgment on the credibility of both the State’s and the defendant’s witnesses. See State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996). But generally, “[i]f diere is a conflict in witness testimony that presents a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony which is most favorable to the State.” 259 Kan. at 133. Only if doubts about an accuser’s testimony are so strong that tiiey “obviate the appearance that [the defendant] probably committed the felony with which he was charged,” will discharge of the defendant be appropriate. State v. Chapman, 252 Kan. 606, 616, 847 P.2d 1247 (1993). Here, Pena testified that he was stabbed just outside the entrance of the garage, but the undisputed blood evidence indicated that he was stabbed in the back corner of the garage. Pena testified that he blocked the first two blows with his arms, but the medical evidence indicated there were no injuries on his arms. Although the stipulated evidence presented to the district court revealed some inconsistencies in Pena’s version of the events, these inconsistencies were not so strong that they “obviate[d] the appearance” of probable cause that Evans committed the felony for which he was charged, even when his evidence of justification is considered. See Chapman, 252 Kan. at 616. This was not a situation where an intruder broke into Evans’ home. Evans and Pena were neighbors. Evans invited Pena into his home on the night in question. At Evans’ suggestion, the two men initially agreed to engage in a friendly wrestling match. Tempers flared and the encounter became combative, ending with Evans using a sword to stab Pena, who was unarmed. The evidence of what happened in the final moments before the stabbing was highly conflicting, and Evans and Pena were the only witnesses. If the district court was not required to view the evidence in a light favoring the State, the judge could have found in favor of either Evans or the State and there was sufficient evidence that would have supported either finding. But if the judge had viewed the evidence in a light favoring the State, it was sufficient to find probable cause to rebut Evans’ claim of immunity and submit the case to a jury. According to this court’s published opinion in Hardy, in considering a motion for self-defense immunity under K.S.A. 2014 Supp. 21-5231, the district court must view the evidence in a light favoring the State. 51 Kan. App. 2d at 304. Although this court’s decision in Hardy is not final, a majority of this panel adopts the reasoning in that case as applied to the facts herein. Because the district court failed to view the conflicting evidence in a light favoring the State, we conclude the district court erred in granting self-defense immunity to Evans and dismissing the charge of aggravated battery. We reverse the district court’s judgment and remand with directions to reinstate the complaint. We assume that a timely petition for review will prevent the remand order from being filed until the Kansas Supreme Court has a chance to review this case and Hardy. Reversed and remanded with directions.	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Marquardt, J.: The State of Kansas appeals the trial court’s dismissal of charges against Scott Haney on the ground that his right to a speedy trial was violated. We affirm. The facts of this case are not disputed. On January 3, 2003, Haney was charged with one count of misdemeanor sexual battery. In October 2003, Haney filed a motion to dismiss, claiming the case was not timely prosecuted. The trial court granted the motion, finding that Haney was not brought to trial within the 180 days required by K.S.A. 2004 Supp. 22-3402. The State appealed that finding to this court. See State v. Haney, No. 91,377, unpublished opinion filed September 24, 2004. On appeal, this court concluded that tire State caused a delay of only 120 days. Therefore, the State had not exceeded the 180-day limit, and the case was remanded for further proceedings. The mandate from the Clerk of the Appellate Courts was issued on October 28, 2004, and received by tire trial court on October 29, 2004. Upon remand, the State filed a notice of hearing for November 29,2004. At that hearing, it was agreed by both parties that Haney’s trial would be held on January 27, 2005. On January 26, 2005, Haney filed a second motion to dismiss for violation of his speedy trial rights. At that hearing, the State argued that the time delay “from October 3, 2003, to January 27, 2005,” should be assigned to Haney, since the State prevailed on its appeal regarding tire first dismissal. The trial court disagreed, finding that the State was not allowed to charge the speedy trial time after the filing of the mandate against Haney. The trial court concluded that 211 days had elapsed, which meant that the State was 31 days beyond the 180-day time limit. Haney’s motion to dismiss was granted. The State timely appeals. The State reiterates its argument that the delay in putting the matter back on the trial calendar was caused by Haney’s motion to dismiss, making it chargeable to Haney. The State contends that “the delay in bringing the defendant to trial from October 21,2003 to January 27, 2005 is entirely attributable to the defendant’s motion to dismiss.” The question of whether a defendant’s constitutional right to a speedy trial has been violated is a question of law subject to unlimited review. State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004). The State is correct that statutory speedy trial provisions are tolled while the State pursues an appeal. See K.S.A. 22-3604(2). However, this tolling lasts only until the mandate is received by the trial court. State v. Brown, 263 Kan. 759, 762-63, 950 P.2d 1365 (1998). The time during which an interlocutory appeal by the prosecution is pending is not counted for the purpose of determining whether a defendant is entitled to discharge for the State’s failure to provide a speedy trial. However, once the mandate is filed and received by the trial court, the time starts to run again, and any days which elapse are attributed to the State. State v. White, 34 Kan. App. 2d 182, Syl. ¶ 1, 115 P.3d 785 (2005). It is undisputed that Haney was not brought to trial until at least 210 chargeable days after the complaint was filed. At the time the mandate was filed, there were 120 days on the clock charged to the State. Ninety days elapsed between the filing of the mandate and Haney’s trial date. That amounted to 210 days from the filing of the complaint until trial chargeable to the State. This was a violation of K.S.A. 2004 Supp. 22-3402. The trial court properly granted Haney’s motion to dismiss for lack of a speedy trial. Affirmed.	[ -48, -24, -67, -114, 12, 67, 34, -100, 99, -77, 38, 83, -81, -54, 5, 123, 115, 111, 85, 123, -59, -73, 39, -64, -78, -77, 89, 95, -1, 75, -25, -41, 12, 112, -118, 85, 70, 72, -107, 88, -114, 0, -87, -32, 81, -117, 40, 43, 30, 11, 17, 6, -85, 107, 56, -58, -56, 126, -53, 29, 72, -47, -101, 21, 126, 16, -95, -92, 23, -121, 88, 62, -116, 56, 42, -4, 114, -74, -112, 116, 111, -103, 0, 38, 99, 35, 28, -18, -4, -95, 14, 19, -113, -90, -103, 9, 105, 45, -106, -97, 118, 22, -92, 126, -17, -100, 93, -84, 10, -49, -80, -109, 79, 37, -126, -118, -21, 5, 52, 115, -121, -26, 92, 103, 59, -37, -34, -92 ]
The opinion of the court was delivered by ROSEN, J.: Dustin J. Merryfield and Richard A. Quillen are residents of the Lamed State Hospital and are involuntary participants in the Kansas Sexual Predator Treatment Program there. They filed petitions challenging the Program’s implementation of a new administrative grievance procedure and sought habeas corpus relief under K.S.A. 60-1501 et seq. Without conducting a hearing, the district court summarily denied the petitions. The court held that the petitioners lacked standing to challenge the grievance procedure, that they had failed to assert a constitutionally protected due process right, and that the procedure did not constitute shocking or intolerable conduct. The district court then assessed the costs of filing tire action, $178, against each petitioner. The petitioners filed timely motions for reconsideration of the assessment of costs. The district court denied the motions, holding that the statutory assessment of costs is discretionary. Having consolidated the appeals from the judgments, the Court of Appeals affirmed the dismissal of the petitions but reversed the assignment of costs to the petitioners in Merryfield v. Sullivan, 50 Kan. App. 2d 313, 324 P.3d 1132 (2014). Secretary Sullivan filed a petition for review, and Merryfield and Quillen filed a cross-petition for review. This court granted the Secretary’s petition and denied the cross-petition. As a consequence, the only issue before this court is whether tire Kansas statutory scheme provides district courts with the discretion to assess costs against the petitioners or do the statutes require courts to impose filing costs on the counties in which the petitioners were determined to be sexually violent predators. The interpretation and construction of statutes is a matter of law that is subject to unlimited review on appeal. Stanley v. Sullivan, 300 Kan. 1015, 1016, 336 P.3d 870 (2014). It is a general rule of statutory interpretation that, when both a general statute and a specific statute govern the same topic, the specific statute controls. See, e.g., State v. Williams, 299 Kan. 911, 930, 329 P.3d 400 (2014). Whether and how this court applies that rule is a question of law. 299 Kan. at 930. The parties agree that the assessment of costs in a K.S.A. 60-1501 proceeding is governed by statute. They disagree on which statute governs in the present case. Each party contends that the more specific statute supports his respective position. The fundamental rule of statutory interpretation is that the intent of the legislature is dispositive if it is possible to ascertain that intent. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). This court deems the language of a statute to be the primaiy consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use. 299 Kan. at 906. The courts therefore look to the plain and unambiguous language of a statute as the primaiy basis for determining legislative intent. State v. O’Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014). The plain language selected by the legislature, when it does not conflict with constitutional mandates, trumps both judicial decisions and the policies advocated by parties. See, e.g., Casco v. Armour Swift-Eckrich, 283 Kan. 508, 524-26, 154 P.3d 494 (2007); Perry v. Board of Franklin County Comm’rs, 281 Kan. 801, 808-09, 132 P.3d 1279 (2006); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005); Mary E. Lane, Admr. v. The National Bank of the Metropolis, 6 Kan. 74, 80-81 (1870). In assessing filing costs against the petitioners, the district court relied on K.S.A. 2014 Supp. 60-1505(d), which governs summary K.S.A. 60-1501 proceedings. In denying tire petitioners’ motions for reconsideration, the district court wrote: “[I]mposition of Court costs is permitted pursuant to K.S.A. 60-1505(d).” The statute reads in relevant part: “If the court determines that the restraint is not wrongful, the writ shall be dissolved at the cost of the plaintiff.” K.S.A. 2014 Supp. 60-1505(d). Also in play is K.S.A. 2014 Supp. 60-1503(a), which governs facially meritless petitions for habeas corpus, which provides in relevant part: “If it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court, the petition shall be dissolved at the cost of the plaintiff.” (Emphasis added.) The Court of Appeals, however, relied on K.S.A. 2014 Supp. 59-29a23, which specifically governs habeas corpus petitions for civilly committed sexually violent predators. That statute states in relevant part: “(a) Whenever a person civilly committed pursuant to K.S.A. 59-29a01 etseq., and amendments thereto, files a petition pursuant to KS.A. 60-1501 et seq., and amendments thereto, relating to such commitment, the costs incurred, including, but not limited to, costs of appointed counsel fees and expenses, witness fees and expenses, expert fees and expenses, and other expenses related to the prosecution and defense of such petition shall be taxed to the county responsible for the costs. “(b) The county responsible for the costs incurred pursuant to subsection (a) shall be reimbursed for such costs by the office of the attorney general from the sexually violent predator expense fund. . . . “(c) As used in this section, ‘county responsible for the costs’ means the county where the person was determined to be a sexually violent predator pursuant to K.S.A. 59-29a01 et seq., and amendments thereto.” (Emphasis added.) There is obviously overlap and conflict within the plain language of the various statutory provisions. K.S.A. 2014 Supp. 60-1505(d) is generic in its application. The legislature confined application of section (a) to inmates only, but the legislature omitted that limitation in section (d), implying that (d) applies to all petitioners. K.S.A. 2014 Supp. 59-29a23(a), however, is narrowly applicable only to petitioners who are civilly committed sexual predators. The narrow scope of 59-29a23 renders it the more specific statute and therefore the statute that governs the present situation. See Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (“Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]”) The rule that a general statute should yield to a specific statute is “ ‘merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case.’ ” Williams, 299 Kan. at 930 (quoting State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 [1988]). In other words, the specific-statute rule seeks to resolve a conflict that occurs when the plain language of one statutory provision contradicts the plain language of another statutory provision. The courts presume that the legislature in tended the more narrowly crafted statute to control as a kind of exception to the more general statute. The Secretary argues that K.S.A. 2014 Supp. 59-29a23 is not the more specific statute because it was intended to address only meritorious habeas corpus petitions brought by civilly committed predators. In reaching this conclusion, the Secretary directs this court to testimony introduced at hearings on the statute in which witnesses provided written testimony regarding the burden that imposition of costs on one county or another would create. The Secretary offers three documents that he asserts support his resort to legislative history. First, the Secretary submits Att’y Gen. Op. No. 2011-3, in which the Attorney General opined that individual counties should bear the costs of attorney fees for indigent sexually violent predators who file petitions under K.S.A. 60-1501 et seq. It should be noted, however, that the Attorney General opinion does not distinguish between meritorious and non-meritorious claims. The Secretary next offers the testimony of John M. Settle, the Pawnee County Attorney, who wrote in support of Senate Bill 217 in March 2011. Settle was concerned that the consequence of the Attorney General opinion would be crippling costs to individual counties. He too did not distinguish between the costs of meritorious and non-meritorious petitions. The Secretary finally submits the testimony of Randall Allen, Executive Director of the Kansas Association of Counties, who wrote in opposition to the draft of Senate Bill 217 because he feared the consequences of assigning costs to individual counties instead of to the taxpayers of the state as a whole. Like the authors of the other documents, he made no mention of meritorious and nonmeritorious claims. Two problems inhere in the Secretary’s argument. First, the argument demands that this court ignore the plain language of the statutes and instead seek to divine the intentions of the legislature from the testimony of witnesses at legislative hearings. Second, the documents submitted do not really support the Secretary’s position. The Attorney General opinion stated that petitioners’ costs should be assigned to the taxpayers; it did not suggest that some costs should be assigned to petitioners. The subsequent testimonial letters did not argue otherwise. The Secretary’s argument is, in essence, that a legislative history showing that petitioners’ costs should be borne by the counties really means that petitioners’ costs should be borne by the petitioners. The legislative history asserted by the Secretary is at best ambiguous, while tire plain language of die statutes is not ambiguous. The Court of Appeals was correct in holding that K.S.A. 2014 Supp. 59-29a23 is the more specific statute and that its plain language provides for the assessment of costs to the county. The legislative history does nothing to cast doubt on that conclusion. The opinion of the Court of Appeals is affirmed. The judgment of the district court is affirmed in part, vacated in part, and remanded with directions to assess the costs to the county responsible for the costs as required by K.S.A. 2014 Supp. 59-29a23(c).	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Leben, J.: Ryan White pled no contest to one count of possessing marijuana with intent to distribute, and the district court imposed 36 months of probation with an underlying sentence of 98 months in prison. White completed all of the conditions of his probation, and in October 2014, he filed a motion to be released from his probation early, citing the presumptive-release statute, K.S.A. 2013 Supp. 21-6608(d), which states that low-risk defendants who comply with their probation for 12 months are eligible for early release, unless the district court finds substantial and compelling reasons to keep them on probation. The district court denied White’s motion. White argues on appeal that the district court lacked substantial and compelling reasons to deny his motion for early release. But the State argues that the presumptive-release statute that White relies on doesn’t actually apply to his case—White committed his crime in April 2013, and die statute didn’t take effect until July 2013. Normally, the statutes in place at the time a crime is committed control unless the language of a new statute clearly shows that the legislature intended to apply it retroactively. We don’t find sufficient language here to do so. Since the new presumptive-release statute didn’t apply, the district court had complete discretion on the question of White’s early release, and it did not abuse its discretion in denying it. We therefore affirm the district court’s judgment. Factual and Procedural Background The arguments in the district court and on appeal about whether White should have been released early from his probation require consideration of background facts regarding his underlying offense. We begin, then, with the April 2013 search of his Salina home. Officers discovered a marijuana-growing operation in the basement, including 30 plants, marijuana in various forms, an air-filtration system, special lighting, and marijuana-related paraphernalia. The officers also discovered 31 grams of psilocybin mushrooms, various firearms, envelopes of cash, and items relating to explosives. In the detached garage, officers found what appeared to be an assembled pipe bomb, but when opened, it contained more marijuana. The State charged White with five counts of drug crimes and one count of criminal use of explosives. In July 2013, White pled no contest to one count of possessing marijuana with intent to distribute, a level-2 nonperson drug felony. The State dismissed the other charges. At sentencing, in August 2013, the district court imposed 36 months of probation with an underlying sentence of 98 months in prison (the standard sentence based on the severity of the crime and White’s criminal-history score). Although White’s presumptive guidelines sentence was prison, the State recommended probation because White had no prior convictions, ran his own company, owned his home, and would benefit from drug treatment. In addition to complying with the statutory requirements of probation, White was required to (1) obtain an alcohol and drug evaluation and follow all recommendations, (2) refrain from possessing and consuming alcohol and drugs, (3) submit to drug testing, (4) gain and maintain employment, (5) notify his supervising officer of changes in employment, residence, and phone number, (6) comply with travel and curfew restrictions set by his supervising officer, (7) submit to DNA testing, (8) complete 40 hours of community service, and (9) pay costs of $1,313. White completed these conditions, and in October 2014, he filed a motion for an early release from his probation. At the hearing on his motion, White’s probation officer recommended release but admitted that in making that recommendation, she did not consider the facts surrounding White’s arrest or that his probation was a dispositional departure from a prison sentence. The State argued White should not be released from probation because of the facts surrounding his arrest and because White’s sentence was a dispo-sitional departure that he had bargained for in a plea agreement. The district court denied White’s motion, citing these reasons and noting that because White was convicted of a drug offense, he would benefit from additional supervision to ensure that he isn’t using drugs. White has appealed to this court. Analysis The State argues that die presumptive-release statute under which White requested relief does not apply to White’s case. White’s brief didn’t address this issue, and he did not file a reply brief. When White committed his crimes in April 2013, there was no statute mandating presumptive early release for certain successful probationers. See K.S.A. 2012 Supp. 21-6608. On July 1, 2013, the first version of the presumptive-release statute became effective: “(d) In addition to the provisions of subsection (a), a defendant who has a risk assessment of low risk, has paid all restitution and has been compliant with the terms of probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction for a period of 12 months shall be eligible for discharge from such period of supervision by the court. The court shall grant such discharge unless the court finds substantial and compelling reasons for denial of such discharge.” K.S.A. 2013 Supp. 21-6608(d). This 2013 version was in effect at the time of White’s sentencing. The presumptive-release statute was amended again on July 1, 2014, to modify the last sentence: “The court shall grant such discharge unless the court finds by clear and convincing evidence that denial of such discharge will serve community safety interests.” K.S.A. 2014 Supp. 21-6608(d). The 2014 version was in effect when the court heard White’s motion for early release. But neither version was in effect when White committed his crimes. We start our analysis with two general propositions. First, the criminal penalties in effect at the time of an offense determine the punishment for die offense. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010), overruled on other grounds by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). Because White’s crimes took place in April 2013 and the presumptive-release statute became effective on July 1,2013, tire only way the presumptive-release statute can apply to White is if it applies retroactively. No published appellate decision has addressed this question. Second, a statutory change operates only prospectively unless its language clearly shows that the legislature intended it to operate retroactively or if tire change is merely procedural and doesn’t prejudicially affect the parties’ substantive rights. State v. Reese, 300 Kan. 650, 653, 333 P.3d 149 (2014); Williams, 291 Kan. at 557. Procedural law deals with the steps by which a person who violates a law is punished, while substantive law declares what acts are crimes and prescribes the punishments for those crimes. State v. Hutchinson, 228 Kan. 279, 287, 615 P.2d 138 (1980). Here, neither the 2013 nor the 2014 statute contains explicit language suggesting that the statute applies retroactively. The 2014 version amended the evidentiary standard in the last sentence but didn’t add any language to make it retroactive. K.S.A. 2014 Supp. 21-6608(d); see also State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991) (giving an example of retroactive language in a statute that stated “ 'regardless of when the inmate was sentenced or committed the crime for which sentenced, good time credits shall be allocated as follows’ ”). So it would seem that the only way the presumptive-release statute could apply retroactively is if it is procedural and not substantive. See State v. Dreier, 29 Kan. App. 2d 958, 959, 34 P.3d 480 (2001). Generally, sentencing statutes are substantive because they affect the length of a person’s sentence. Sutherland, 248 Kan. at 106-07. The issue before us relates to the potential retroactive application of a statutory amendment related to probation; several past cases dealing with changes to probation statutes have applied the general rule that sentencing statutes are substantive so the amendments to them are not retroactive. E.g., State v. Freeman, 249 Kan. 768, 771-72, 822 P.2d 68 (1991) (holding that a statute that gave the State an additional 30 days to file a motion to revoke probation was substantive and not retroactive, because if applied, it would have changed the length of the defendant’s probation); State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014) (holding that an amendment to a statute on probation-violation sanctions was substantive and not retroactive), rev. denied September 23, 2015; Dreier, 29 Kan. App. 2d at 959 (holding that an amendment to a probation-revocation statute that reduced the harshness of penalties for the first probation violation was a substantive amendment and not retroactive). Perhaps the closest precedent to our situation is our Supreme Court’s 1991 decision in Sutherland. There, the legislature had amended a statute to state that within 120 days of sentencing, the district court “shall” modify a person’s sentence if a state diagnostic center recommends doing so. 248 Kan. at 104. Previously, the statute had stated that the district court “may” modify a person’s sentence. Sutherland, 248 Kan. at 104. The statutory change is analogous to the one here: previously, a district court had full discretion to terminate a person’s probation early, but now, under certain circumstances, the district court must either terminate a person’s probation or give specific reasons why it won’t. See K.S.A. 2013 Supp. 21-6608(a), (d). The Sutherland court disagreed with a Court of Appeals panel that had found the statutory amendment was procedural and did not “alter the punishment itself’ because the amendment dealt with the length of the sentence. 248 Kan. at 105-07. Probation is a form of sentence, see K.S.A. 2014 Supp. 21-6604(a), so the amendment here to the length of probation similarly affects the length of a person’s sentence. The change is therefore substantive and, under the logic in Sutherland, does not apply retroactively. We recognize that the Kansas Sentencing Commission has taken the position that the presumptive-release statute applies to anyone who had been in compliance with probation terms for 12 months as of July 1,2013, the effective date of the statute. See “HB 2170— Frequently Asked Questions,” available at goo.gl/OrOXk9 (accessed September 29, 2015). That would, of course, require retroactive application of the statute, because anyone with 12 months of compliance on July 1, 2013, would be eligible for presumptive release, regardless of when tire original crime was committed. We are unable to reconcile that conclusion with the general principles cited in this opinion combined with the sentencing cases we have already discussed. We do note that our Supreme Court found in Reese that a change in a sentencing statute did apply when sentencing defendants even though their crimes were committed before tire effective date of that statute. The statute at issue there dealt specifically with the determination of the defendant’s criminal history for sentencing purposes in DUI cases. The court noted that “[pjrior DUI convictions have been consistently and repeatedly treated as sentence enhancements, rather than elements of the crime.” 300 Kan. at 655. Given that understanding, the court construed the statutory language—about “ ‘determining whether a conviction is a first, second, third, fourth, or subsequent conviction in sentencing under this section’ ”—to be “consistent with the concept of establishing the prior convictions at the time of sentencing.” (Emphasis added.) 300 Kan. at 657. One could argue that our case is similar to Reese in that the presumptive-release statute speaks about a defendant’s characteristics while on probation (i.e., is low risk, has paid restitution, and has demonstrated compliance with probation terms), just as Reese deals with characteristics of a defendant’s DUI conviction (whether it was the first, second, tíiird, etc.). K.S.A. 2013 Supp. 21-6608(d); K.S.A. 2014 Supp. 21-6608(d). But the court in Reese emphasized “the unique sentencing scheme applicable to DUIs,” 300 Kan. at 658, and the authorities we have reviewed in this opinion interpreting the sentencing and probation provisions under the Kansas Sentencing Guidelines Act suggest that the statute at issue here would need clearer language indicating it is retroactive for us to apply it that way. In sum, K.S.A. 2013 Supp. 21-6608(d) is substantive, does not contain language clearly making it retroactive, and thus cannot be applied to White. That still left the district court with discretionary authority to terminate White’s probation early under K.S.A. 2014 Supp. 21-6608(a): “Probation . . . may be terminated by the court at any time.” This part of the statute has not changed in recent years, and with the word “may,” it grants district courts complete discretion to terminate probation. K.S.A. 2014 Supp. 21-6608(a); see also State v. Raschke, 289 Kan. 911, 923, 219 P.3d 481 (2009) (noting the difference between “may,” which grants discretion, and “shall,” which doesn’t). We therefore review the district court’s decision for an abuse of discretion, which occurs if the district court’s decision was arbitrary or was based on an error of law or fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). We find no abuse of discretion here. Although White’s probation officer testified that White had fully complied with the conditions of his probation to tire date of the hearing, the State argued against release because of the severity of White’s crimes. The State also argued for continued probation because White would have been in prison for almost 9 years if the court hadn’t granted the downward departure to probation and because White had made a plea agreement. The district court accepted the State’s arguments; it added that White would benefit from continued supervision to ensure he didn’t return to using drugs. A reasonable person could agree with the district court, so we find no abuse of discretion. We should note two other procedural matters regarding this appeal. First, our court ordered the parties to brief the question of our jurisdiction since a defendant cannot appeal a conviction entered on a plea of guilty or no contest under K.S.A. 2014 Supp. 22-3602(a) and a defendant cannot appeal a presumptive sentence under our state’s sentencing guidelines under K.S.A. 2014 Supp. 21-6820(c). Both sides responded that we have proper jurisdiction over the appeal, and we agree. White doesn’t challenge his original conviction; nor does he challenge his presumptive sentence. Rather, he challenges the district court’s denial of early release from probation. The appeal is analogous to an appeal of probation revocation: the appeals are connected to sentencing but are not the same as a challenge to the sentence itself. Second, the State did not argue in the district court that the presumptive-release statute wasn’t retroactive, and ordinarily a party cannot raise an issue on appeal that wasn’t raised in the district court. But the State has argued an exception to that rule—-that the newly asserted claim involves only a question of law arising on proved or admitted facts that is determinative of the issue on appeal—and we agree that it applies. See State v. Anderson, 294 Kan. 450, 464, 276 P.3d 200, cert. denied 133 S. Ct. 529 (2012). In addition, we may consider tire new argument because it provides an alternate rationale for affirming the district court’s judgment. 294 Kan. at 464. We conclude by noting that White’s case exemplifies the purpose of dispositional-departure sentences: instead of going to jad, he received treatment for his drug use and has not committed any new crimes. He also has fully complied with the conditions of his probation, without a single violation. Thus, he appears to be the type of person for whom the presumptive-early-release statute was designed. The legislature certainly is free to apply it to someone in White’s position. We simply need clear language telling us to do so. The district court’s judgment is affirmed.	[ 81, 107, -35, 28, 30, 97, 26, 48, 123, -89, 96, 19, -19, -50, 5, 59, -77, 95, 85, 73, 65, -73, 99, -64, -12, -77, 8, -43, -65, 79, -124, -35, 30, 48, -109, 53, -90, -103, -21, -40, -114, -123, -118, 114, -125, 0, 44, 47, 18, 11, 33, 60, -77, 47, 16, -21, 73, 108, -103, 61, -96, -55, -75, 21, -21, 22, -93, -91, -2, -125, -48, 126, 60, 49, 24, -24, 115, -74, -110, 116, 79, -119, -124, 98, -30, 33, 53, -20, -68, -128, 31, 63, -83, -26, 89, 89, 99, 45, -68, -66, 103, 22, 38, -6, 111, -122, 33, -20, -109, -34, -112, 17, 13, 32, 2, -9, -21, -91, 112, 49, -51, -26, 84, 118, 112, -101, -54, -3 ]
Leben, J.: In 2004, Jack R. LaPointe was convicted of aggravated robbeiy and aggravated assault based on a robbeiy of a Pay-less shoe store. Because he had prior convictions, he received a lengthy sentence—245 months. In 2014, LaPointe filed a motion requesting postconviction DNA testing of evidence found near die scene of the crime. He cited K.S.A. 2014 Supp. 21-2512(a), (c), which provides for DNA testing when a defendant has been convicted of first-degree murder or rape and the court determines that testing may produce evidence showing that the defendant was wrongfully convicted. The district court granted LaPointe’s motion under State v. Cheeks, 298 Kan. 1, 6-14, 310 P.3d 346 (2013), a case in which our Supreme Court held that the Equal Protection Clause of the United States Con stitution requires that DNA testing be allowed for defendants who are similarly situated to those convicted of murder or rape. The State has appealed to this court upon a question reserved, arguing that the district court erred in ordering the testing. But we lack jurisdiction to consider the State’s appeal. The State’s right to appeal on a question reserved applies only to afinal judgment. See State v. Grimes, 229 Kan. 143, 146-47, 622 P.2d 143 (1981); State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980). At the time the State filed its appeal, the DNA-testing aspects of this case were still pending, and the district court had not entered final judgment. The court had ordered DNA testing, and the statute under which that testing had been ordered provided that tire court consider whether a new trial should be ordered if the testing proved favorable to the defendant. See K.S.A. 2014 Supp. 21-2512(f)(2). We therefore dismiss the State’s appeal. Factual and Procedural Background In March 2004, a jury found LaPointe guilty of aggravated robbery and aggravated assault based on the robbery of a Payless shoe store in October 2000. State v. LaPointe (LaPointe I), No. 93,709, 2006 WL 2936496, at “1 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 932 (2007). On October 30, 2000, the police were informed that a white male in a plaid shirt, jacket, and bandana had robbed the Payless store. The police used a dog to search for evidence of the crime, and the dog led them to a plaid shirt, hat, and blue bandana at various locations around an apartment complex behind tire strip mall where the Payless store was located. The police also found a pair of cloth gloves at the apartment complex. At LaPointe’s trial, Brandy Loveall testified that she had seen a man walking quickly down the sidewalk at the strip mall carrying a gun and wearing a bandana and that she had later identified LaPointe as that man in a police lineup. Michael Norton told the jury that he and LaPointe had intended to commit a robbery and that he had driven the getaway car while LaPointe robbed the Payless store. A chemist who had conducted DNA testing on evidence in the case also testified. She said she had found hairs on the bandana, shirt, cap, and gloves but that she had not recovered enough DNA to develop a profile. Robert Booth, a criminalist at the Kansas City, Missouri, Police Department Crime Laboratory, testified that he had done a hair analysis comparing the hairs found on the bandana, shirt, cap, and gloves to LaPointe’s hair and found that they did not match. He said that he could not say with certainty that they were not LaPointe’s but that “tire probability [was that it was] not his hair.” Booth explained that his comparison testing did not definitively establish that tire head hairs did not come from LaPointe because he had only a sample of LaPointe’s hair and because LaPointe could have changed something about his hair since the hairs were deposited. Nevertheless, Booth testified that those two scenarios were rare and that the “the most likely outcome” was that the hairs were not LaPointe’s. During closing argument, defense counsel emphasized that no physical evidence linked La-Pointe to the crime. The jury nevertheless convicted LaPointe, and he was sentenced to 245 months in prison, which would run consecutively to sentences in three other cases. LaPointe appealed his convictions to this court, which affirmed them in 2006. LaPointe 7, 2006 WL 2936496, at 3. Since then, LaPointe has sought postconviction relief on multiple occasions. We will skip the earlier filings and discuss only the motion tlrat led to this appeal, which was filed in February 2014. This motion sought postconviction DNA testing in LaPointe’s criminal case. Specifically, he asked for mitochondrial DNA testing pursuant to K.S.A. 2014 Supp. 21-2512. That statute provides for postconviction DNA testing if it might produce relevant evidence showing that the petitioner was wrongfully convicted or sentenced: “[A] person in state custody, at any time after conviction for murder in the first degree ... or for rape . . . may petition the court that entered the judgment for forensic DNA testing ... of any biological material that: (1) Is related to the investigation or prosecution that resulted in the conviction; (2) is in the actual or constructive possession of the state; and (3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results. “(c) The court shall order DNA testing . . . upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner tlrat the petitioner was wrongfully convicted or sentenced.” K.S.A. 2014 Supp. 21-2512(a), (c). The same statute provides for the possibility offurther proceedings after the DNA testing is completed. Indeed, if the results of the testing are favorable to the defendant and there is a reasonable probability that the results would change the outcome of the case, the court must provide the defendant with relief, such as a new trial: “(2) If the results of DNA testing conducted under this section are favorable to the petitioner and are of such materiality that a reasonable probability exists that tire new evidence would result in a different outcome at a trial or sentencing, the court shall: (A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and (B) enter any order that serves the interests of justice, including, but not limited to, an order: (i) Vacating and setting aside the judgment; (ii) discharging the petitioner if the petitioner is in custody; (iii) resentencing the petitioner; or (iv) granting a new trial.” K.S.A. 2014 Supp. 21-2512(f)(2). In May 2014, die district court granted LaPointe’s motion for DNA testing. In support of its order, the district court cited State v. Cheeks, 298 Kan. 1, 310 P.3d 346 (2013), a case in which the Kansas Supreme Court determined that die Equal Protection Clause of the United States Constitution dictates that DNA testing should be allowed for defendants who are “similarly situated” to those convicted of murder or rape (the convictions for which the statute authorizes postconviction DNA testing). The district court found that LaPointe was similarly situated to people convicted of first-degree murder or rape because he was sentenced to more than 20 years in prison, which was comparable to or greater than potential sentences for those crimes. Before the DNA testing was done, the State then filed this appeal of die district court’s decision. The DNA testing was completed while this appeal has been pending. The results confirmed that LaPointe was not the source of one hair. The results from a second hair were inconclusive, but the report stated that it was more likely that LaPointe was not the source of the DNA than that the result was inconclusive. In February 2015, LaPointe filed a motion for hearing with the district court based on the test results. LaPointe asked that he either be discharged from custody or granted a new trial. At the time LaPointe filed his appellate brief in this case, his motion for a hearing was pending before the district court. Since he filed that brief, the district court has determined that the postconviction DNA evidence was not so important to the case that there was a reasonable probability that tire new evidence would result in a different outcome at a trial or sentencing. On that basis, the district court refused to grant a new trial or other relief to LaPointe. LaPointe filed a notice of appeal of tire district court’s decision to deny him relief based on the test results. That appeal has been separately docketed in our court as case No. 113,580 and is not pending before this panel. Analysis The State has appealed the district court’s order for DNA testing under K.S.A. 2014 Supp. 21-2512. LaPointe argues that we lack jurisdiction to reach the merits of the State’s arguments because the State does not have authority to appeal the district court’s decision to order DNA testing. The State counters that it has authority to file this appeal as a question reserved—a type of appeal that allows the State to obtain review of a trial court’s adverse ruling on a legal issue if the issue is of statewide interest, is important to the correct and uniform administration of criminal justice, and otherwise would not be subject to appellate review. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005); State v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993); State v. Pearce, 51 Kan. App. 2d 116, 121-22, 342 P.3d 963 (2015). We have jurisdiction to consider appeals only in tire manner prescribed by statute. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). K.S.A. 2014 Supp. 22-3602(b) lists the instances in which the State can appeal as a matter of right, including upon a question reserved: “Appeals to the court of appeals may be taken by the prosecution from cases before a district judge ... as a matter of right in the following cases, and no others: “(1) From an order dismissing a complaint, information or indictment; “(2) from an order arresting judgment; “(3) upon a question reserved by the prosecution; or “(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.” (Emphasis added.) So the statute, K.S.A. 2014 Supp. 22-3602(b)(3), does provide jurisdiction to consider a State appeal on a question reserved. Questions reseived are not used to determine whether the trial court committed error because “an appellate court’s answer to a State’s question reserved has no effect on the defendant in the underlying case.” State v. Berreth, 294 Kan. 98, 123, 273 P.3d 752 (2012). Rather, we decide a question reserved because the matter is of statewide importance. Pearce, 51 Kan. App. 2d at 122. But our Supreme Court has said that a question-reserved appeal is only available after a final judgment. See State v. Grimes, 229 Kan. 143, Syl. ¶ 2, 622 P.2d 143 (1981); State v. Puckett, 227 Kan. 911, Syl. ¶ 1, 610 P.2d 637 (1980). A question-reserved appeal presupposes that the case has concluded but that an answer to a legal question is necessary to determine future cases. Berreth, 294 Kan. at 124. The Puckett and Grimes cases both show that only a final judgment may be appealed by the State on a question reserved. In Puckett, the district court allowed the defendant to withdraw his pleas and then returned the case to the jury-trial calendar. 227 Kan. at 911. The State appealed the order allowing the defendant to withdraw his plea, and the Kansas Supreme Court held that it lacked jurisdiction to consider the merits of the case because no final judgment had been entered. 227 Kan. at 912-13. The court stated that appeals as a matter of right by the State inherently require a final judgment, so the State’s appeal was interlocutory and could not be decided because it did not fit the categories listed in another statute that provided for interlocutoiy appeals by the State. 227 Kan. at 912-13. In Grimes, a jury had found the defendant guilty of aggravated batteiy, but the district court granted a new trial based on an erroneous jury instruction. 229 Kan. at 144. The State appealed the order granting a new trial, and the Kansas Supreme Court again dismissed the appeal, finding that the appeal was interlocutory and that K.S.A. 1980 Supp. 22-3602(b)(3)—-which is substantially the same as the current statute providing jurisdiction for questions reserved—did not authorize interlocutory appeals by the State. 229 Kan. at 146-47. Thus, under Puckett and Grimes, for the State to appeal upon a question reserved as a matter of right, it must be appealing a final judgment. See Grimes, 229 Kan. at 146-48; Puckett, 227 Kan. at 912. Here the State argues that there has been a final judgment in LaPointe’s case. Criminal judgments become final after both a conviction and a sentence, and LaPointe was convicted and sentenced approximately a decade ago. See State v. Hall, 298 Kan. 978, 988, 319 P.3d 506 (2014). The State notes that in Puckett and Grimes, the defendants had not been convicted and sentenced. But we are not dealing with the original criminal judgment here; we are dealing with an order for DNA testing. When the court ordered DNA testing, there remained an ongoing proceeding in which K.S.A. 2014 Supp. 21-2512(f)(2), part of the statute authorizing DNA testing, left open the possibility of a further order for new trial. We know now that the district court did not order a new trial (even though the DNA testing was favorable to LaPointe). But at the time the State filed its appeal, the district court retained authority to consider a request for new trial if the testing was favorable to LaPointe. In Grimes, the State could not appeal an order for new trial. Here, we only had the entiy of an order that could have led to an order for a new trial. Appellate courts do not provide piecemeal reviews of every routine evidentiary ruling that is adverse to the State, and the district court here had not finished its proceedings when the State appealed. The State’s appeal here is akin to an interlocutory or in terim appeal of an order granting a pretrial motion, such as one granting a psychological evaluation of an alleged victim of a child sex crime, which the State could not appeal before trial unless it would somehow serve to suppress evidence at trial. See Sales, 290 Kan. at 136; State v. Dearman, No. 110,798, 2014 WL 3397185, at 3 (Kan. App. 2014) (unpublished opinion) (citing State v. Berriozabal, 291 Kan. 568, Syl. ¶¶ 4-5, 243 P.3d 352 [2010]; State v. Price, 275 Kan. 78, 80, 61 P.3d 676 [2003]). We do have limited jurisdiction to consider some interlocutory appeals by the State, but only the appeal of certain orders—orders quashing a warrant or a search warrant or orders suppressing evidence, a confession, or an admission. K.S.A. 2014 Supp. 22-3603. As was the case in Grimes, in this case, the State is not challenging one of the orders listed in K.S.A. 2014 Supp. 22-3603. Accordingly, neither the statute that provides for State appeals as a matter of right, K.S.A. 2014 Supp. 22-3602(b), nor the statute that provides for interlocutory appeals by the State, K.S.A. 2014 Supp. 22-3603, provides jurisdiction for this appeal. The State makes one final argument in favor of jurisdiction. It says that “[i]f LaPointe’s petition filed within the criminal case number is analogous to a civil case, then appellate jurisdiction still exists.” The State notes that our appellate courts have considered requests for DNA testing in civil appeals and that K.S.A. 2014 Supp. 21-2512 says a person in custody may “petition” for DNA testing. It argues that if this case is analogous to a civil case, La-Pointe’s request for DNA testing is like a request for an injunction (an order to do a particular act) or a mandamus proceeding (a proceeding to compel someone or something to perform a specified duty). See K.S.A. 60-801; K.S.A. 60-901. The State points out that its notice of appeal cited both K.S.A. 2014 Supp. 22-3602(b), which provides for appeals by the State in criminal cases on questions reserved, and K.S.A. 2014 Supp. 60-2102(a)(2), which provides for appeals as a matter of right from orders granting or refusing injunctions and granting or refusing mandamus or habeas corpus relief. But the notice of appeal said specifically that the State was appealing upon a question reserved: “This appeal is taken to the Court of Appeals of the State of Kansas upon a question reserved pursuant to K.S.A. 22-3602(b)(3), K.S.A. 60-2101(a) and K.S.A. 60-2102(a)(2).” Moreover, in its opening brief, the State based its claim of appellate jurisdiction solely on the existence of a question reserved under K.S.A. 2014 Supp. 22-3602(b)(3). To now consider this appeal on the ground that it is “analogous to a civil case,” we would have to ignore the State’s stated basis for jurisdiction in its notice of appeal and opening brief and rechar-acterize LaPointe’s “motion for post-conviction DNA testing,” which was filed by counsel in his criminal case, as a civil petition for mandamus or injunction. The State does not obtain the right to appeal on a question reserved in a criminal case simply because the procedure used might be analogous to a civil proceeding. In sum, we do not have authority to consider this appeal. The appeal is therefore dismissed.	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Marquardt, J.: Kay and David Sail (the Sails), acting as Matthew Patrick Sail’s guardians and conservators, appeal the trial court’s grant of summary judgment to T’s, Inc., d/b/a Smiley’s Golf Complex (SGC). We affirm. On June 14, 2001, Patrick and his friend, Christopher Gannon, decided to go golfing. They had discussed the weather that had been stormy earlier in the day. By 4 p.m., the weather was clear. Gannon checked the Weather Channel on television and saw that the storm appeared to be heading out of the area. On June 14,2001, Thad Borgstadt, the manager at SGC, opened the course as usual in the morning and testified that the weather was “nice.” However, Borgstadt closed the course at approximately 1:15 p.m., after he saw dark clouds in the sky and heard an alert on the television. Borgstadt sounded the horn which alerted golfers that they needed to immediately return to the clubhouse. Borgstadt left SGC at 3 p.m. Jeff Tull replaced Borgstadt and at 3:50 p.m. Jeff checked the radar on the computer. He noted that the thunderstorm had moved out of the area of SGC. Jeff reopened SGC to the public at 4 p.m. Jeff testified that conditions at SGC were sunny as late as 4:50 p.m. Gannon estimated that he and Patrick paid their greens fees at approximately 4:45 p.m. and arrived at the first tee box shortly before 5 p.m. Gannon described the weather as “fairly clear.” Patrick and Gannon played the first hole and as they were walking to the second tee, they noticed a veiy light rain. Gannon did not consider the rain to be anything that would cause SGC management to close the course, so they continued to play with the understanding that they would reevaluate their decision if the weather conditions changed. Patrick’s drive on the second hole went wide and it took him a few minutes to locate his ball. As they started putting on the second green, Gannon saw a lightning bolt in the western sky. Gannon thought the lightning was far off but testified that they would quit after they putted out on the second hole. At approximately 4:50 p.m., Jeff checked the weather radar on the computer. While the computer image was loading, a golf course employee told Jeff that he heard storms would be moving back into the area. When the radar image had loaded, Jeff could see storms to the southwest of SGC. Jeff walked outside, saw lightning, and blew the horn for two 5-second periods, rotating so that the sound would spread across the SGC complex. At the time that Jeff blew the horn, there were approximately five golfers on the course. Gannon was holding the flag for the second hole when he heard the horn. After the horn sounded, Gannon saw a second lightning bolt in approximately the same location as where he had seen the first lightning bolt. Patrick putted out, and then Patrick and Gannon started toward the clubhouse. Gannon testified that as they were walking, he saw a big flash of light followed by a loud boom. Gannon blacked out, fell to the ground, and lay unconscious. When Gannon came to, he could see Patrick face down on the ground. After attempts to rouse Patrick were unsuccessful, Gannon went to the SGC clubhouse for emergency assistance. Between 5:16 and 5:17 p.m., Gannon arrived at the clubhouse and reported Patrick’s injury. Jeff immediately called 911. Several golfers began giving Patrick CPR. Emergency personnel arrived and transported Patrick to the hospital. Patrick was severely injured and now requires total care. In January 2003, the Sails filed a petition claiming that SGC owed “Patrick the duty to warn him of any dangerous condition it knew about, or should have known about, had Smiley’s exercised reasonable care.” The Sails claimed that SGC was negligent by failing to: properly monitor the weather; sound a timely warning; utilize hghtning detection equipment; have appropriate medical equipment; and render timely and appropriate medical care. SGC filed a motion for summary judgment claiming that it breached no duty to Patrick. In addition, SGC claimed that any duty it owed to Patrick was satisfied with the timely warning to leave the golf course. In response to SGC’s motion for summary judgment, the Sails raised a new issue — that SGC assumed a duty to warn and protect Patrick against dangerous weather because Patrick relied on a weather warning system. To support this claim, they attached Mrs. Sail’s deposition where she testified that Patrick told her: “Mom, don’t worry; they wouldn’t be open if it wasn’t safe.” The trial court heard arguments on SGC’s motion and concluded that storms are capricious and foreseeing a lightning strike is a matter of speculation. Based on this lack of foreseeability, the trial court concluded that businesses do not have a duty to protect or warn patrons about hghtning. The trial court also ruled that the facts of the case were “insufficient to invoke the benefits” of Restatement (Second) of Torts § 323 (1964). SGC’s motion for summary judgment was granted. The Sails timely appeal. Essentially, the Sails’ case is based on premises liability law in that golf courses have a duty to warn their patrons about dangerous weather conditions and to protect those patrons from lightning injuiy. Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to successfully oppose summary judgment, there must exist a material disputed fact. On appeal, we apply the same rules. Where we find that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). Premises Liability Law and Foreseeability The Sails claim that Kansas courts recognize the doctrine of premises liability which is not limited to physical defects. They conclude that a force of nature can be a “dangerous condition” that would impose liability. Kansas has abolished the distinction between licensees and invitees. See Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). The duty of care owed to licensees and invitees is one of reasonable care under the circumstances. The factors to consider in determining whether the land occupier exercises reasonable care under all circumstances are: the foreseeability of harm; the magnitude of the risk of injury in maintaining such a condition of the premises; the individual and social benefit of maintaining such a condition; and the burden upon the land occupier or community, in terms of inconvenience or cost, in providing adequate protection. Jones, 254 Kan. at 509-10. As a general rule, an owner of a business is not required to insure the safety of his or her patrons or customers. Gardin v. Emporia Hotels, Inc., 31 Kan. App. 2d 168, 175, 61 P.3d 732, rev. denied 275 Kan. 963 (2003). As aptly stated by the trial court, “[t]his case turns’ on whether or not Smileys had a duty.” The Kansas Supreme Court has held that the question of duty is a question of law for the court. Siebert v. Vic Reginier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993). The Sails contend that Patrick would have been able to protect himself had he been given sufficient warning of the imminent storm. The interesting part of this contention is that Patrick and Gannon saw a lightning strike and ignored it. The second lightning strike occurred as the horn was blown when Patrick and Gannon were on the second green. Instead of immediately returning to the clubhouse, Patrick and Gannon continued to finish the hole. Patrick and Gannon made a conscious decision to finish the hole they were playing, rather than heeding die warning immediately No one thought there was imminent danger. Mills thought there was no danger and that SGC had blown the horn prematurely; however, he decided to return to the clubhouse. Kansas courts have not defined foreseeability of lightning strikes within the context of premises liability. However, a Texas court considered whether a lightning strike could be foreseeable. In Macedonia Baptist Church v. Gibson, 833 S.W.2d 557 (Tex. App. 1992), a woman was struck by hghtning as she exited her church. Prior to the incident, the church had installed a lightning rod. Gibson was injured by hghtning which hit the rod and traveled down the grounding cables. The Texas court ruled that for a result to be legally foreseeable, “all that is required is that the injury be of such a general character as might be reasonably anticipated and that the injured party should be so situated with relation to the wrongful act that the injury to him [or her] or to one similarly situated might reasonably have been foreseen.” 833 S.W.2d at 559. The church had been told that hghtning would travel down the ground cables and spread into the ground. In this case, the church enhanced the risk of injury by placing the ground cables directly next to the wallway. A person using the walkway could be hit by a side flash; therefore, the court ruled that the injury was foreseeable. 833 S.W.2d at 559-60. Here, it is undisputed that the storm system which produced the hghtning bolt that hit Patrick was moving at approximately 60 nautical miles per hour, that hghtning bolts can precede a storm by as much as 10 miles, and that the National Weather Service (NWS) issued an alert at 4:25 p.m., which included Johnson County. The alert noted that more rain and thunderstorms were on the way and predicted the leading edge of the rain would arrive in south Johnson County by 5 p.m. It is undisputed that no one at SGC read this NWS alert. Finally, it is generally accepted that the lightning bolt struck Patrick at approximately 5:07 p.m. Leshe Lemon testified in a deposition as one of the Sails’ expert witnesses. He noted that on June 14, 2001, there was a severe thunderstorm watch earlier in the day. Lemon testified that by approximately 4:30 p.m., the radar data for June 14,2001, indicated that thunderstorms would arrive over the golf complex. However, he acknowledged that there was no lightning between 2:24 p.m. and 5:06 p.m. on the day in question. Dr. Edmund Krider, SGC’s expert witness, testified in a deposition that thunderstorms are complicated, three-dimensional structures. Dr. Krider believes that there is an “extremely low” possibility of hghtning striking outside of a 6-mile radius, and he believes that SGC personnel did a good job of sounding the horn because the hghtning was outside that 6-mile range. Dr. Krider disputed Lemon’s analysis regarding the time at which the storm would have been visible on radar, noting that storms change, build, ánd decay over time. He opined that a hghtning detection system would not have saved Patrick from the hghtning strike because he beheved Patrick was struck by a hghtning bolt from outside a 6-mile radius. Dennis TuU, the owner of SGC, left the golf course at approximately 4 p.m. on June 14, 2001, and recalled that the weather was visibly clear between 4 and 5 p.m. Toby Mills was on the seventh hole when he heard the horn from the SGC clubhouse. He said that at the time, he did not want to go into tire clubhouse, because the “sky was totally clear” and “completely sunny,” and it was “going to be a long time before [the storm] is here.” Mills said there was nothing “in the air to malee me think that I want to stop playing golf.” Jeff confirmed that the dark clouds did not move in until after 5 p.m. It is necessary to differentiate between the foreseeability of a thunderstorm versus the foreseeability that there would be a hghtning strike directly over SGC. The Sails seem to suggest that the former is the benchmark which must be used. We disagree. The expert testimony was divided on foreseeability of the thunderstorm. The testimony from people who experienced the conditions on June 14, 2001, was remarkably consistent. The thunderstorm which produced the hghtning that hit Patrick moved in quickly. We do not believe that persons without advanced meteorological training could have known that a lightning-producing thunderstorm would arrive moments after the sky was “totally clear.” The Sails argue that SGC should have foreseen a hghtning related injury and that this is proven by the fact that SGC’s manage ment acknowledged that hghtning is dangerous to golfers. However, general knowledge that hghtning is dangerous is quite different from being able to predict when and where hghtning will strike. The Superior Court of New Jersey ruled in Maussner v. Atlantic City Country Club, Inc., 299 N.J. Super. 535, 552, 691 A.2d 826 (1997), that “[a] particular hghtning strike is clearly unpredictable. There is no way that present technology can predict whether a bolt of hghtning will strike a tree, a bush, a rock, or any of four golfers standing near them.” 299 N.J. Super. at 552. In this case, with these particular storm conditions, we believe it would have been nearly impossible for SGC personnel to know that a bolt of hghtning would hit on the second fairway. If we view the testimony in tbe light most favorable to the Sails, SGC personnel should have known by 3:50 p.m. that a thunderstorm was heading for the complex and hghtning would strike on the course. However, even Lemon could not testify that there would be hghtning in the storm, or a bolt of hghtning would strike the ground in direct proximity to Patrick. There were many unknown variables, which lead us to agree with the trial court that the hghtning strike at SGC was not foreseeable. Duty to Utilize Lightning Detection Equipment The Sails claim that SGC failed to comply with all relevant standards of care that are recognized customary conduct of the industry. The Sails argue that there is evidence the use of hghtning detection systems has become part of the golf course industry’s standard of care. The Court of Civil Appeals of Oklahoma noted in Grace v. City of Oklahoma City, 953 P.2d 69, 71 (Okla. App. 1997), that hghtning “is a universally known danger created by the elements.” For that reason, the Oklahoma court was unwilling to require a golf course to “alter its premises to protect against hghtning.” The Tennessee Supreme Court considered golf course liability in Hames v. State, 808 S.W.2d 41, 45 (Tenn. 1991), and found that with hghtning, “the risk to be guarded against is too remote to impose legal ha bility.” In rendering its decision, the court specifically found that “there is no industry standard to implement warning devices.” The Sails cite Maussner, in which the Superior Court of New Jersey ruled that when a golf course has taken steps to protect golfers from lightning strikes, it owes those golfers “a duty of reasonable care to implement its safety precautions properly.” 299 N.J. Super. at 553. Significantly, the court did not impose an absolute duty on golf course operators to protect their patrons from lightning. Other than lightning rods attached to the light poles on the driving range, a television, a weather radio, computer radar, and the use of the horn, Dennis Tull had not considered the use of any other weather warning systems. The SGC scorecard contains a warning to golfers that they assume all risks when playing. In addition, Mills testified that on the day of the incident, he noticed a sign which informed golfers that when conditions for hghtning or bad weather exist, they were to immediately cease playing and return to the clubhouse. The sign also said that golfers “must play at their own risk.” Mills described the sign as being “very apparent and obvious.” Dr. Krider, SGC’s expert witness, testified that detection systems respond to hghtning at an “enormously wide range of distances,” resulting in an “unacceptable number” of false alarms. Michael Flynn, a professor at Nova Southeastern University’s law school, testified that SGC’s failure to have a hghtning detection system on the premises was not in accord with the standard operating procedures for golf courses. However, he acknowledged that no governmental entity or the United States Golf Association (USGA) has required hghtning detection systems for golf courses. Professor Flynn also acknowledged that there have not been any independent reliable studies performed on hghtning detection systems. Edward Wankel, who formerly worked as the Deputy Commissioner of Parks, Recreation, and Historical Preservation in New York, agreed that a hghtning detection system was “probably not necessary.” In his opinion, it was more important to have a variety of safety procedures, including human input. It is apparent from the evidence that there is no golf course industry-wide standard of care which requires the use of a lightning detection system. Also, there is no agreement among weather professionals regarding the use of hghtning detection systems. No jurisdiction in this country has found that failure to use hghtning monitors is a breach of an industry standard of care. Even the Maussner decision failed to make such a finding. See 299 N.J. Super. at 553-54. Although there is some dispute as to the placement of the warning signs, a golfer who was on the course at the time of Patrick’s injury testified that SGC warned golfers. The “play at their own risk” language is similar to that used in Maussner, and it would theoretically, under that decision, absolve SGC from liability for golfer injuries due to inclement weather. See 299 N.J. Super. at 554. In addition to the sign, SGC had safety measures in place, including an internet connection to weather radar and a weather radio. Courts in other jurisdictions, as well as expert witnesses in this case, have articulated the reasons that hghtning detection monitors are not a guarantee for golfing safety. We are not prepared to impose a new standard of care for golf course operators when the evidence for their use is less than compelling. Therefore, regardless of what other golf courses in the area were doing, we do not find that SGC breached any standard of care simply by failing to use a hghtning detection system. SGC’s Duty to Warn of Dangerous Conditions The Sails contend that under Kansas law, SGC was required to warn Patrick of the risk of hghtning-related injury. The Sails claim that a timely warning would have allowed Patrick to reach the clubhouse before the hghtning struck on the golf course. In order to find that SGC breached its duty to timely warn, we would first have to determine the duty that was owed. Mihs testified in two different depositions that there was a 5-to-10-minute lapse between the time that SGC blew the horn and when the hghtning bolt appeared. Professor Flynn testified that the horn was not timely, based on his belief that on large golf courses, it takes approximately 35 minutes for a golfer to reach safety. Flynn did not know how long it would have taken a golfer at SGC to reach the clubhouse from the second green. SGC is a par 3 executive golf course that covers approximately 40 acres. SGC asserts that the distance from where Patrick was to the clubhouse was approximately 1 quarter of a mile. SGC employees were alerted to the potential for bad weather during a news teaser. However, due to delays with computerized radar images, it was likely that the thunderstorm cell which produced the lightning bolt that injured Patrick was not visible on radar until after 5 p.m., after the horn had already sounded. Bruce Thomas, a Kansas City meteorologist, testified on Patrick’s behalf. His opinion was that SGC should have closed the golf course when employees saw approaching storms. He based his opinion on “Patrick Sail’s injuries.” He testified that because Patrick was injured, SGC must have done something wrong. Aside from the fact that a golfer was injured, Thomas could not identify any other aspects in which SGC was deficient. It is undisputed that Gannon and Patrick continued to golf, even after Gannon spotted lightning off in the distance. There is compelling evidence that Patrick did not immediately head to the clubhouse after hearing the horn, but lingered on the golf course for as long as 10 minutes. Patrick was a young man, described as being in “pretty good physical shape.” He should have been able to travel the quarter-mile from the second green to the clubhouse in well under 10 minutes. We do not believe that SGC had a duty to foresee lightning under these circumstances. Nevertheless, if such a duty did exist, we do not believe it was breached. By all accounts, SGC provided its customers with approximately 10 minutes’ notice that lightning had been seen in the area. Gannon and Patrick saw the lightning themselves and chose to remain on the golf course. There is no evidence that SGC’s horn was not sounded early enough to allow all golfers to reach the safety of the clubhouse. Such action does not make SGC negligent. We have thoroughly reviewed the Sails’ arguments, and we agree with the trial court that there is no evidence the lightning bolt was in any way foreseeable, or that SGC breached any applicable standard of care. Patrick’s injury was tragic, but we do not believe SGC is responsible for his condition. The trial court correctly ruled on the Sails’ common-law negligence complaints. Restatement (Second) of Torts On appeal, the Sails renew their argument that SGC assumed a duty to protect its patrons by providing a weather monitoring and warning system upon which golfers could rely. They believe the trial court actually found that they presented sufficient evidence to support a claim under the Restatement (Second) of Torts § 323, but ruled against them so the entire case could proceed on appeal. The Sails’ claim here is not accurate. The trial court expressly found that the “facts in this case are insufficient” to invoke the benefits of § 323. Nothing in that language even suggests that the trial court actually believed the Sails presented sufficient evidence to support a claim. In fact, the opposite is true. In the alternative, the Sails argue that the trial court erred in its decision, because the facts of this case “are clearly sufficient” to support an assumption of duty theory. The Restatement (Second) of Torts § 323 reads: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” We do not believe that any court in the country has relied on § 323 to impose liability for a golf course hghtning injury claim. At the outset, we note that § 323 is, at its heart, focused on theories of negligence. We have already determined that SGC did not act negligently. Consequently, an individual must fail to exercise reasonable care before the Restatement may be applied to the particular facts of a case. In this aspect, we agree with the trial court that there are insufficient facts here to invoke the protections of § 323, as SGC did not fail to exercise reasonable care. The Sails cite the Maussner case, claiming that a golf course assumes a duty to exercise reasonable care in warning of dangerous weather. We do not agree with the Sails that the facts in this case are analogous to those in Maussner. We have already noted that SGC had signs with the “play at your own risk” language on them. In Maussner, the club did not use reasonable care to implement its safety precautions and that is why the court found die club liable. SGC used reasonable care under the circumstances in sounding the horn. For that reason, we reject the Sails’ attempt to favorably compare their case to Maussner. We agree with the trial court that the Restatement (Second) of Torts § 323 does not apply to the facts of this case. The dissent claims that the majority focused on facts favorable to the moving party; however, the issues raised in this case do not revolve around facts; they are legal issues. Notwithstanding the legal issues, the facts are that Patrick and Gannon noticed two bolts of hghtning and heard the horn, and they still continued to play. The question in this case is whether SGC had a legal duty to Patrick, and if that duty was breached. Lightning, as the trial court noted, “. . . is random. . . . Storms are random. . . . They turn, they stop, they back up. I don’t believe there’s anyone that can predict the location of a future lightning strike. . . . Foreseeabiltiy is speculation.” The location of a hghtning strike is not foreseeable; therefore, there can be no duty to prevent injuries as a result of such a strike. Without a duty, there is no breach. Affirmed.	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Pierron, J.: In this personal injury lawsuit involving an automobile and deer accident, Michele D. Burch, individually and as the parent of Georgia and Grace Burch (collectively Plaintiffs), appeals the district court’s granting of a directed verdict in favor of Michele D. Burch, in her capacity as administrator of the estate of her deceased husband and the Estate of Darrell Burch (collectively Defendants). The Plaintiffs argue the court erred in taking the case away from the jury by granting a directed verdict because there was evidence sufficient to find Darrell was negligent in his operation of the vehicle. We disagree and affirm. Darrell and Michele Burch and their 5- and 6-year-old daughters, Georgia and Grace, returned from a week-long vacation in Cabo San Lucas to Denver International Airport the night of November 23, 2000. On the trip from Denver to their home in Augusta, Kansas, Darrell was driving east on 1-70 when their vehicle hit a deer at approximately 2:15 a.m. on November 24. At the time, Michele, Georgia, and Grace were lying down in the back of the vehicle asleep. All four occupants were ejected from the vehicle. Darrell was killed. There were no witnesses to the accident. The first people to the scene reported they had only seen the vehicle flip. The police accident report stated as follows: “Vehicle no. 1 was Eastbound on 1-70 in the area of mile post 200.5 when it struck a deer then entered the median and rolled one complete time ejecting all occupants. The vehicle came to rest on its wheels facing South in the median as indicated in the diagram. “No sign of alcohol or drugs at the scene or in the vehicle. Blood was drawn from the driver. “The driver was dead at the scene. It appeared that he was partially ejected, rolled on by the vehicle then ejected completely. The wife and two little girls were ejected also. They were transported to Russell Regional Hospital and then to Wichita via ambulance. “There were no skidmarks at the scene only one scuff mark prior to vehicle entering the median. Debris from vehicle no. 1 was located on the shoulder of the road where the deer was found in the South ditch. “The witness listed was westbound and saw the vehicle rolling' — He was first person on the scene. “Exact point of impact where vehicle no. 1 struck deer could not be determined, but was estimated by blood spots on the roadway to be eastbound driving lane about 403 feet west of where vehicle no. 1 came to rest.” Michele, on behalf of herself and her two daughters, filed a negligence lawsuit against Darrell’s estate and Michele as administrator of the estate. Michele was the only witness to testify. The parties stipulated to the police accident report, and it was the only evidence presented concerning the accident. At the close of the Plaintiffs’ case, the trial court granted a directed verdict in favor of the Defendants. The trial court concluded there was no evidence of negligence on Darrell’s part such as would warrant tire case to proceed to the jury for deliberation. The Plaintiffs appeal. The Plaintiffs argue there was sufficient evidence to allow the jury to decide the case and the district court erred in granting a directed verdict to the Defendants. “ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ [Citation omitted.]” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000). The Plaintiffs argue there is evidence in the record that Darrell was negligent in his duty to keep his vehicle under control as would have enabled him to regulate his speed to stop or turn aside within the range of his headlights and also negligent in his duty to keep proper lookout for vehicles and objects in his line of vision which would have affected his use of tire highway. The Plaintiffs rely on a couple of pieces of evidence from the accident report: (1) no skid marks at the scene; and (2) the vehicle left the roadway and entered the median. The Plaintiffs also argue Darrell may have been confronted with a sudden emergency, but the emergency was only one factor in determining whether Darrell’s conduct was reasonable or whether he was negligent. The directed verdict statute, K.S.A. 2004 Supp. 60-250(a)(l), provides: “If during the trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine die issue against that parly and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.” The question of negligence is very fact sensitive. Each case’s facts must be examined in context to determine it they are sufficient to prove negligence. The ultimate determination of the presence or absence of negligence is left to the trier of fact. See Sterba v. Jay, 249 Kan. 270, 278, 816 P.2d 379 (1991). However, where no evidence is presented on a particular issue or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. See Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). In St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989), a vehicle driven by plaintiff s decedent was struck by a vehicle that ran a stop sign. The collision killed both drivers. The intersection was uncongested, and both drivers had an unobstructed view of the intersection and oncoming traffic for approximately lA mile. Defense counsel contended that a reasonable person could find that the decedent failed to maintain a proper lookout or otherwise exercise due care under the circumstances, making the question of decedent’s fault a matter for the jury’s determination. The St. Clair court stated that the evidence did not show decedent was aware of the approaching vehicle and that the evidence that decedent had an unobstructed view of the intersection would not support a finding that she failed to keep a proper lookout. “There is no evidence that [decedent] failed to keep a proper lookout or that, assuming she did not, it was to any degree the proximate cause of the collision.” 245 Kan. at 419. The St. Clair court stated: “Although normally a determination of whether someone failed to keep a proper lookout would involve a question of fact to be decided by the jury, the evidence presented here is undisputed that the cause of this accident was Denny’s failure to stop at the posted stop sign. Even viewing the evidence in the light most favorable to the defendants, as this court must do, the minds of reasonable persons could not differ in concluding that the cause of this accident was Denny’s failure to stop, not [decedent’s] failure to keep a proper lookout.” 245 Kan. at 420. In reviewing the evidence cited by the Plaintiffs, we find no evidence to support the inference that Darrell failed to maintain a proper lookout or that there existed some other negligence on his part. The additional evidence of no skid marks and the fact that the vehicle entered the median adds nothing to the evidence that would allow a reasonable inference that Darrell was in any way negligent or failed to keep a proper lookout. To reach the conclusion that Darrell was negligent requires a great amount of speculation. It is possible that the timing of the deer’s movement and its location were such that no driver would have been able to stop or avoid it. Such accidents, without driver negligence of the type claimed here, are a regular occurrence in Kansas. Unless there is some evidence from which to infer that a nonnegligent driver could have avoided the accident, a jury could not reasonably choose one explanation over another for what the causes of this accident were. When there is no evidence to support a choice, the party with the burden of proof, in this case the Plaintiffs, has failed to meet its burden. The Plaintiffs did not meet their burden of proof. Arguably, the facts in this case present a situation of an impossible burden of proof for the Plaintiffs to meet. That may very well be true due to the lack of witnesses. However, it would not be true in all cases of this type. In this case, for example, there might have been a witness in the Burch vehicle or even in a vehicle approaching or following the Burches’ vehicle who could testify to having seen the deer well in advance and having been concerned that the vehicle did not appear to be slowing or taking evasive action. While unfortunate, it is true that not all plaintiffs can prove causation in all cases where it exists. Nonetheless, the legal analysis we apply requires that such proof be presented. It was not. The trial court was correct in its ruling. Affirmed.	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The opinion of the court was delivered by Rosen, J.: A jury found Kyree Marshon McClelland guiliy of felony murder, three counts of attempted aggravated robbeiy, and one count of aggravated burglary. The district court sentenced Mc-Clelland to a hard 20 life sentence for the felony-murder conviction, imposed standard guidelines sentences for each of the remaining convictions, and ordered the sentences to run consecutively, resulting in a 153-month sentence consecutive to the life sentence. On appeal, McClelland argues: (1) the State presented insufficient evidence to convict him of felony murder because one of the three attempted aggravated robberies relied on by die State to support the felony-murder charge was complete by the time Mc-Clelland shot the victim and, thus, the victim’s death did not result from all three underlying felonies; (2) the district court’s jury in- straction on felony murder was broader than the charged crime; and (3) the district court violated the “double-rule” of K.S.A. 2011 Supp. 21-6819(b)(4) when it imposed the 153-month prison sentence because the sentence exceeded twice the base sentence Mc-Clelland received for the primary crime of attempted aggravated robbery. We conclude that the State presented sufficient evidence showing that the victim’s death resulted from any one of the three aggravated robberies McClelland attempted to commit. We also conclude that jury instruction on felony murder was not erroneous. Finally, as conceded by die State, we agree with McClelland that his 153-month prison sentence violates K.S.A. 2011 Supp. 21-6819(b)(4) because the sentence is more dian double the amount of prison time McClelland received for his primary crime of attempted aggravated robbery. Accordingly, we vacate the 153-month sentence and remand for resentencing. Facts During the evening of August 29, 2011, Use David Laeli invited his neighbors, Timothy Stone and Cecil Penry, into his home so Penry could try on a pair of shoes that he was interested in buying from Laeli. As Penry was trying on the shoes near the kitchen area of die house, Laeli noticed a man he had never seen before, later identified as McClelland, inside his dining room. McClelland asked Laeli whether he had any marijuana. Laeli told McClelland tiiat he had none and that McClelland needed to leave tire house. At that point, McClelland pulled a handgun from behind his back and pointed it at Laeli. He ordered Laeli to give him money and to get on the floor. Laeli kneeled down on the floor. At this same time, McClelland noticed Penry and Stone standing near the kitchen area. He pointed his gun at tirem and demanded money. McClelland approached tire men and attempted to strike Stone with his gun. At this point, Stone and Penry started struggling with McClelland for control of the gun, and Laeli ran out of his home to a neighbor’s house get help. During tire struggle to disarm McClelland, the gun fired, striking Stone in the chest. Laeli heard the gunshot as he was returning from the neighbor s house with two other men to assist Stone and Penry. When the men entered the home, they saw Penry struggling with McClelland. The men eventually subdued McClelland, and shortly thereafter, he was taken into custody by police. Stone later died as a result of the gunshot wound. The State charged McClelland with one count of felony murder based on the underlying felony of attempted aggravated robbeiy, three counts of attempted aggravated robbeiy for each of tire three victims (i.e., Stone, Pemy, and Laeli), and one count of aggravated burglary. Notably, in charging McClelland with felony murder, the State did not specify which attempted aggravated robbeiy it was relying on to serve as the underlying felony. At trial, the State presented several witnesses, including Pemy and Laeli. The defense presented no witnesses, and McClelland did not testify. The district court instructed the jury on the elements of the felony murder charged in this case: “The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty. “To establish this charge, each of tire following claims must be proved: 1. That the defendant killed Timothy Stone; 2. That such killing was done while attempting to commit aggravated robbery, and 3. That this act occurred on or about the 29th day of August, 2011, in Shawnee County, Kansas. “The elements of attempting to commit aggravated robbeiy are as follows: 1. That the defendant performed an overt act toward the commission of the crime of aggravated robbeiy; 2. That the defendant did so with the intent to commit the crime of aggravated robbeiy; 3. That the defendant failed to complete the commission of the crime of aggravated robbeiy; and 4. That this act occurred on or about the 29th day of August, 2011, in Shawnee County, Kansas. “The elements of the completed crime of aggravated robbeiy are as follows: 1. That the defendant intentionally took property from the person of Timothy Stone, and/or Use David Laeli, Jr., and/or Cecil Penry, Jr.; 2. That the taking was by threat of bodily harm to Timothy Stone, and/or Use David Laeli, Jr., and/or Cecil Penry, Jr.; 3. That the defendant was armed with a dangerous weapon; and 4. That this act occurred on or about die 29th day of August, 2011 in Shawnee Count)', Kansas.” (Emphasis added.) Ultimately, the jury found McClelland guilty of all the charged crimes. The district court ordered McClelland to serve a hard 20 hfe sentence for the felony-murder conviction and imposed a consecutive 153-month sentence for the remaining convictions. Mc-Clelland filed a timely notice of appeal. Sufficiency of the Evidence As noted above, the district court instructed the jury that if it found McClelland killed Stone while attempting to rob Stone, Penry, or Laeli, then McClelland was guilty of felony murder. Accordingly, the jury was instructed on alternative means of committing the felony murder charged in this case. See State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011) (“[Different underlying felonies supporting a charge of felony murder are alternative means rather than multiple acts.”)' In State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), overruled on other grounds by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014), this court, quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988), stated: “ ‘In an alternative means ease, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for tire single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ ” Subsequently, in State v. Wright, 290 Kan. 194, 203-06, 224 P.3d 1159 (2010), overruled on other grounds by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014), this court held that appellate courts should apply a super-sufficiency of the evidence test in alternative means cases. Under this test, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Therefore, when the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support each means, reversal is required. Wright, 290 Kan. at 202-03. Based on this caselaw, McClelland argues that the State failed to present sufficient evidence to convict him of felony murder because the evidence failed to establish each means of committing the felony murder charged in the case—namely, that Stone’s death resulted from the attempted robbeiy of Laeli (McClelland does not dispute that Stone’s death resulted from the attempted robberies of Stone and Penry). McClelland notes that Stone was shot after Laeli had escaped from the house. Thus, McClelland contends that his attempted robbery of Laeli was completed by the time he shot Stone, rendering Stone’s death unconnected to the attempted robbeiy. Standard of Review When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). Furthermore, this court has recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.” McCaslin, 291 Kan. 697, Syl. ¶ 9. Analysis Felony murder is the killing of a human being committed “in tlie commission of, attempt to commit, or flight from an inherently dangerous felony.” K.S.A. 2011 Supp. 21-5402(a)(2). Aggravated robbery is considered an inherently dangerous felony for purposes of applying the felony-murder rule. See K.S.A. 2011 Supp. 21-5402(c)(1)(D). In interpreting the felony-murder statute, we have rejected a narrow reading of tire statute requiring that the death occur during the commission of, attempt to commit, or flight from the felony. As noted in State v. Griffin, 279 Kan. 634, 641, 112 P.3d 862 (2005), “[a] less restrictive construction of the statute prevails in the caselaw, where the requirement is that the killing be some part of the [underlying] felony.” For example, in Griffin, during the burglary of an apartment, tire defendant and an accomplice pushed over a stove, causing the gas supply pipe to break. The defendant and his accomplice heard the gas hissing from the broken pipe and fled from the apartment. Gas continued to escape into the apartment until an explosion occurred sometime between 2½ and 2¾ hours later, killing two people. Reviewing this evidence, the Griffin court affirmed tire defendant’s felony-murder convictions, finding that the evidence was sufficient to show that the victims’ deaths resulted from tire defendant’s commission of an inherently dangerous felony (i.e., burglary). Similarly, in State v. Jacques, 270 Kan. 173, 14 P.3d 409 (2000), the defendant hatched a plan with his cousin to purchase cocaine from an acquaintance. The defendant was to remain at a grocery store while the cousin completed the transaction at the acquaintance’s house. The defendant grew bored waiting for his cousin, so he walked to the house where, after knocking on the door, the cousin came out of the house and the two of them got into an altercation, resulting in the defendant stabbing his cousin. The defendant tiren went into the house and purchased cocaine. The cousin later died as a result of his stab wound. The Jacques court reviewed the evidence and found that a reasonable factfinder could have concluded that the stabbing occurred within the res gestae of possessing cocaine because the cousin’s attempt to purchase cocaine, the defendant’s act of stabbing his cousin, and the defendant’s subsequent purchase of cocaine were part of one continuous transaction. The court also noted that the defendant had the opportunity to take his cousin to the hospital but chose instead to enter tire house and complete tire purchase. Accordingly, this court affirmed the defendant’s felony-murder conviction based on the underlying felony of possessing cocaine. 270 Kan. at 189-90. The requirement that the felling be some part of the underlying felony is reflected in the test for determining application of the felony-murder rule. In State v. Cameron, 300 Kan. 384, 396-97, 329 P.3d 1158 (2014), we stated: “In order to establish felony murder, the State must prove two causation elements. First, the death must lie within the res gestae of the underlying crime, which is defined in this context as 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. Second, the felony and the homicide must have a direct causal connection, which exists unless an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death.” Furthermore, in Jacques, we stated: “When applying tire felony-murder rule . . . the felony and the victim’s death do not need to occur simultaneously, nor does fee felony need to occur before the death. Time, distance, and die causal relationship between die underlying felony and the killing are factors to be considered in determining whedier die killing is a part of die felony and therefore subject to die felony-murder rule.” 270 Kan. at 189-90. Regarding the causal connection between an attempted aggravated robbeiy and a subsequent death, this court in State v. Branch and Bussey, 223 Kan. 381, 383, 573 P.2d 1041 (1978), stated: “A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate diat a deadi might occur. This is particularly true of a robber who carries a deadly weapon . . . and forces his way into an occupied dwelling. The impulse for an individual to resist fee sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbeiy, is a potential assassin because he knows he may be forced to use his weapon eidier to cany out his criminal act or to escape without being pursued and captured by his victim.” We rejected an argument similar to McClelland’s in State v. Phillips, 295 Kan. 929, 287 P.3d 245 (2012). In that case, the defendant entered a home armed with a gun and robbed two individuals of money in the front part of the residence. After talcing their money, the defendant tiren moved to the back of tire residence where he saw a female acquaintance involved in an alter cation with the victim. The victim eventually rushed towards the defendant, and the defendant shot at him while walking backwards towards the front door. The defendant was subsequently convicted of felony murder based on the theory that the killing occurred during the commission of the aggravated robberies of the two individuals. On appeal, the defendant argued that the State presented insufficient evidence to show that he killed the victim during the commission of the aggravated robberies because the robberies were complete by the time the shooting occurred. This court rejected the defendant’s argument, stating: “The res gestae element is satisfied because [the victim’s] murder occurred immediately after the happening of the principal occurrence—aggravated robbery—-and thus became so closely connected with the principal occurrence as to form a part of the occurrence. A direct causal connection is also present. The time element is met because there was evidence the events happened quickly and that [the defendant] moved from his aggravated robbery of [one individual] immediately to tire bedroom where [the female acquaintance] struggled with [the victim]. The distance factor is satisfied because tire aggravated robberies of [the individuals] occurred in the same house where [tire victim] was shot. Lastly, the causal relation is also satisfied because it is foreseeable that violence will erupt during an aggravated robbery in which the robber carries a gun. “The very nature of an aggravated robbery is violent. Moreover, [the defendant] stuck a potato on the end of his gun, indicating his preparation to silently shoot the gun. . . . [The defendant] set off a chain of violent events when he planned on robbing a house and brought a gun in furtherance of that plan. The elements of time, distance, and causal relationship were met. Accordingly, the evidence, when viewed in a light most favorable to the prosecution, was sufficient to establish beyond a reasonable doubt that the murder occurred during the res gestae of the aggravated robberies.” Phillips, 295 Kan. at 941-42. We reached a similar conclusion in State v. Kaesontae, 260 Kan. 386, 920 P.2d 959 (1996). In that case, the defendant was riding in a car with an acquaintance late at night when they came upon a man walking by himself. The defendant said he wanted “ ⅛ jack’ the walking man, which meant that he wanted to rob him.” 260 Kan. at 387. The driver of the car pulled up alongside the man, and the defendant, sitting in the front passenger seat, pointed a gun at the man and asked for his wallet. The man threw his hands up in the air and backed towards the rear of the car. He continued moving away from the front passenger-side window until his back was against the rear end of the car on the passenger side. Then, keeping his back against the side of the car, the man walked towards the front of the car and swung his right arm into the open passenger-side window. The man was leaning into the car, fighting with the defendant, when the defendant shot him twice. The man later died. The defendant was charged and convicted of felony murder based on the underlying felony of attempted aggravated robbery. On appeal, the defendant argued that the evidence did not support his conviction for felony murder because his attempt to rob the man was complete by the time he was shot. This court rejected the defendant’s argument, finding that that the chain of events set in motion by the defendant when he attempted to rob the victim continued even after the defendant stopped trying to rob him. We found that the killing and the underlying felony were part of the same principal occurrence, even though they did not occur at precisely the same time. We applied the time, distance, and causal relationship factors and concluded the victim’s killing was part of the attempted aggravated robbeiy. Kaesontae, 260 Kan. at 390-91. McClelland cites State v. Becker, 290 Kan. 842, 235 P.3d 424 (2010), in support of his argument that his attempted aggravated robbery of Laeli was complete by the time he shot Stone. Becker does not provide the support McClelland claims. In Becker, the defendant, along with two accomplices, forced Stephens, Dupree, and others to remain in a back bedroom while they tortured and questioned another individual in the living room about a missing safe containing drugs and money. While this was going on, Richardson—a person the defendant and his accomplices believed might know where the missing safe was located—arrived at the house. At gunpoint, Richardson was forced to sit on a couch while being questioned by the defendant and his accomplices about tire missing safe. Richardson eventually grew bold, getting off the couch and forcing his way out of the house. The defendant and his accomplices followed Richardson outside where one of them shot Richardson, causing him to bleed to death. The defendant was subsequently charged and convicted of felony murder for killing Richardson during the commission of a kidnapping of Stephens and/or Dupree and/or Richardson. On appeal, the defendant argued that the underlying kidnappings were completed by the time Richardson was shot outside the house. Specifically, he noted that the shooting occurred after Richardson was forced to sit down on the couch. Furthermore, the defendant argued that the kidnappings of Stephens and Dupree were in no way causally connected to Richardson’s shooting. The Becker court rejected the defendant’s argument, stating that acceptance of it “requires an impossible stretch of the imagination. The four people in the back bedroom were being held there in part so that [the defendant] and the others could terrorize and beat [one individual] and then Richardson. The kidnappings and the murder were closely related. Although Richardson got up to leave the house, the perpetrators attempted to stop him, and it was as he was attempting to escape his captivity that he was shot. We cannot conclude that the attempted kidnapping of Richardson was completed by that time.” (Emphasis added.) 290 Kan. at 855-56. McClelland argues that the italicized portion of the above quote supports his argument that his attempted aggravated robbery of Laeli was complete by the time Stone was shot. Unlike in Becker, where the defendant and his accomplices were trying to prolong Richardson’s captivity when he was shot, McClelland contends that the facts here show that he was not attempting to rob Laeli when Stone was shot. In fact, Laeli had escaped and was returning from the neighbor’s house with two other men by the time he heard the gunshot that killed Stone. By making this argument, McClelland assumes that Stone’s death must have strictly occurred within the confines of his attempted robbery of Laeli in order for the felony-murder rule to apply. But as the caselaw cited above establishes, in order for a killing to be considered a felony murder, all that is required is that the killing be some part of the underlying felony. See Griffin, 279 Kan. at 641. Becker exemplifies this rule. Technically, the kidnappings of Stephens and Dupree were “complete” by the time Richardson was shot—the defendant and his accomplices forced Stephens and Dupree into the bedroom with the intent to injure or terrorize them before Richardson even arrived at the house. But the Becker court still considered these kidnappings part of the later shooting because the kidnappings aided the defendant and his accomplices with questioning Richardson in the living room, which eventually resulted in Richardson being shot when he attempted to leave the house. Accordingly, “[t]he kidnappings and the murder were closely related,” and, thus, the felony-murder rule could be properly applied to the facts of the case. 290 Kan. at 855. As mentioned above, in order to establish a felony murder, the State must prove two causation elements: (1) the death occurred within the res gestae of the crime and (2) the felony and homicide must have a direct causal connection. See Cameron, 300 Kan. at 396-97. Furthermore, “[t]ime, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and therefore subject to the felony-murder rule.” Jacques, 270 Kan. at 189-90. Turning to the facts of this case, the res gestae element is satisfied because Stone’s murder occurred shortly after the happening of the principal occurrence—the attempted aggravated robbeiy of Laeli—and thus became so closely connected with the principal occurrence as to form a part of that occurrence. A direct causal connection is also present. The time element is met because the evidence presented at trial indicated that the events happened quickly—McClelland moved seamlessly from attempting to rob Laeli, to attempting to rob Stone and Penry, to finally shooting Stone during his struggle with Stone and Penry over control of the gun. The distance factor is satisfied because the attempted robbery of Laeli occurred in the same house where Stone was shot. Lastly, tire causal relation is also satisfied because “it is foreseeable that violence will erupt during an aggravated robbeiy in which the robber carries a gun.” Phillips, 295 Kan. at 942. As tire Branch court similarly put it, McClelland set off a chain of violent events when he planned on robbing a house and brought a gun in furtherance of that plan. The elements of time, distance, and causal relationship were met. Therefore, tire evidence, when viewed in a light most favorable to the prosecution, was sufficient to establish beyond a reasonable doubt that the murder occurred during the res gestae of the attempted aggravated robbery of Laeli. Jury Instruction on Felony Murder Next, McClelland argues that the district court’s jury instruction on felony murder was broader than the charged crime because the instruction identified three alternate felonies (i.e., the attempted aggravated robberies of Stone, Penry, and/or Laeli) that the jury could rely on to satisfy the element that Stone’s death occurred during the attempted commission of an inherently dangerous felony. As noted above, in the complaint, the State simply identified attempted aggravated robbery as the underlying felony supporting the felony-murder charge; the charge did not specify which attempted aggravated robbery was being relied on as the inherently dangerous felony. McClelland contends that the State, by charging felony murder in this manner, limited itself to the theory that Mc-Clelland committed felony murder solely by killing Stone during the attempted commission of an aggravated robbery upon Stone. Accordingly, because the jury instruction on felony murder indicated that any one of the three attempted aggravated robberies could satisfy the inherently-dangerous-felony element, the jury instruction was broader than the charged crime and, thus, erroneous. Standard of Revieio McClelland did not object to the district court’s instruction on felony murder; therefore, the standard of review is governed by K.S.A. 22-3414(3) and State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012). In Williams, this court noted that K.S.A. 22-3414(3) imposes a procedural hurdle when a party fails to object to or request a jury instruction: “K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” 295 Kan. 506, Syl. ¶ 3. A two-step process is utilized to determine whether an instruction is clearly erroneous: “First, ‘the reviewing court must . . . determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ 295 Kan. 506, Syl. ¶ 4. If error is found, then we proceed to the second step of assessing whether we are firmly ‘convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ [Citations omitted.]” State v. Cruz, 297 Kan. 1048, 1066-67, 307 P.3d 199 (2013). Analysis “A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous.” State v. Trautloff, 289 Kan. 793, 802-03, 217 P.3d 15 (2009). The reason for this is because “the charging instrument sets out the specific offense alleged to inform the defendant of the nature of the accusation, to permit die development of a defense to meet that accusation, and to protect against conviction based on facts not contemplated in the accusation.” State v. Hart, 297 Kan. 494, 508, 301 P.3d 1279 (2013). Accordingly, die State is bound by the wording of its charging document, and the prosecution and district court must use caution in conforming the juiy instructions to the charges. State v. Haberlein, 296 Kan. 195, 210-11, 290 P.3d 640 (2012). McClelland cites Trautloff in support of his argument that the jury instruction on felony murder was broader than the charged crime. In Trautloff, we found that a jury instruction on sexual exploitation of a child was broader than how the State had charged the crime. The State had charged the defendant with “displaying” an offending photograph or video of a child, but the instruction allowed the juiy to convict die defendant of “displaying, procuring or producing” such a photograph or video. At trial, there was ample evidence tiiat the defendant procured and produced sexually explicit photographs and videos. Consequently, this court found that the instruction was erroneous because it allowed the juiy to convict the defendant of sexual exploitation based on conduct that was not charged in the information. Trautloff, 289 Kan. at 801-02. This court has reached similar conclusions in other cases. Generally, if an instruction adds alternate statutoiy elements of a crime that were not included in the complaint or information, the instruction is overly broad and, thus, erroneous. See, e.g., Hart, 297 Kan. at 508-10 (finding overbroad jury instruction requiring crime of indecent liberties be committed with intent to arouse the sexual desires of the victim or defendant or both, but complaint only alleged intent to satisfy the sexual desires of the defendant); State v. Jones, 290 Kan. 373, 383-84, 228 P.3d 394 (2010) (finding over-broad jury instruction for aggravated kidnapping that included additional statutory elements beyond what was charged); State v. Hemby, 264 Kan. 542, 547-50, 957 P.2d 428 (1998) (finding overbroad jury instruction for sodomy that allowed conviction for oral or anal copulation when complaint only charged oral copulation); State v. Turbeville, 235 Kan. 993, 997-98, 686 P.2d 138 (1984) (finding overbroad jury instructions for kidnapping that included statutoiy alternate intents “to terrorize another” and “to facilitate flight” that were not included in complaint). The facts of this case are distinguishable from those present in Trautlojf and the cases cited above because the instruction at issue here did not contain an alternate statutory element that was not included within the language of the charged crime. Furthermore, the felony-murder instruction did not cite a new underlying felony that could be relied on to satisfy the inherently-dangerous-felony element. Cf. State v. Wade, 284 Kan. 527, 537, 161 P.3d 704 (2007) (finding overbroad jury instruction for aggravated burglary predicated on underlying felony of either first-degree murder or aggravated assault when defendant was not put on notice that aggravated assault could serve as underlying felony). Both the instruction on felony murder and the charged crime identified attempted aggravated robbeiy as the inherently dangerous felony. The only difference is that tire instruction, unlike the language of the charged crime, specified three alternate attempted aggravated robberies that could satisfy the inherently-dangerous-felony element. Contrary to McClelland’s assertion, the language of the complaint did not identify or imply that a specific attempted aggravated robbery was the underlying felony supporting the felony-murder charge, i.e., the felony-murder charge did not identify or imply that Stone was the victim of the underlying felony. Thus, the State was not limited to pursuing that sole theory at trial. Consistent with the complaint, the instruction on felony murder identified attempted aggravated robbeiy as the inherently dangerous felony and then specifically identified three alternate attempted aggravated robberies that could satisfy the element that Stone’s death occurred during an attempted inherently dangerous felony. If anything, the instruction on felony murder was more precise, not broader, than the charged crime. Based on the above analysis, we conclude that the jury instruction on felony murder was legally appropriate. The instruction was not broader than tire charged crime. Furthermore, based on evidence showing that Stone’s death occurred during the course of McClelland’s attempt to rob Stone, Penry, and Laeli, it was factually appropriate for the district court to instruct the jury that any one of die attempted aggravated robberies could satisfy the inherently-dangerous-felony element. Accordingly, the district court’s instruction on felony murder was not erroneous. Violation of the Double Rule Finally, McClelland argues that the district court violated the “double-rule” of K.S.A. 2011 Supp. 21-6819(b)(4) when it ordered his sentences for three counts of attempted aggravated robbery and one count of aggravated burglary to run consecutively, resulting in a 153-month prison sentence. Admirably, die State concedes this issue. Under K.S.A. 22-3504, an illegal sentence can be corrected at anytime. In State v. LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010), tiris court stated the applicable standard of review: “The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutoiy provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” When a defendant is sentenced to multiple convictions in Kansas, K.S.A. 2011 Supp. 21-6819(b)(2) requires that the district court establish a base sentence for the primary crime. The primary crime is the on-grid crime which has the highest severity level among all the on-grid crimes of which the defendant was convicted. K.S.A. 2011 Supp. 21-6819(b)(2). The “double rule” is found in K.S.A. 2011 Supp. 21-6819(b)(4), which provides that “[t]he total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence.” Here, McClelland was sentenced to a hard 20 life sentence for felony murder, an off-grid crime. In addition, tire district court sentenced McClelland to 57 months for the primary crime of attempted aggravated robbery in count 2 and imposed 32-month prison sentences for counts three (attempted aggravated robbery), four (attempted aggravated robbery), and five (aggravated burglary). The district court ordered that all of these sentences run consecutively, resulting in a hard 20 life sentence plus a sentence of 153 months. Because McClelland’s base sentence for the primary crime of attempted aggravated robbery was 57 months, his total prison sentence for his on-grid crimes could not exceed 114 months. Accordingly, the controlling 153-month prison sentence McClelland received for his on-grid crimes violates the double rule of K.S.A. 2011 Supp. 21-6819(b)(4). Thus, we vacate McClelland’s 153-month prison sentence and remand for resentencing on counts two through five. We affirm all of McClelland’s convictions and affirm his hard 20 life sentence for felony murder. McClelland’s sentences for counts two through five are vacated, and his case is remanded for resent-encing on tiróse counts.	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MARQUARDT, J.: Carl W. McFadden appeals his conviction for driving while under the influence (DUI). We affirm. On the evening of July 15, 2002, between 9:30 and 10 p.m., Brandon Hosheit and Mark Mayes were riding motorcycles when Hosheit noticed a car (whose driver was later identified as McFadden) approaching from behind. Hosheit and Mayes were traveling 60 to 65 mph and were directly behind a semi-trailer truck. McFadden’s vehicle was following them veiy closely. Hosheit and Mayes accelerated to between 75 and 80 mph to pass the semi. McFadden followed them as they passed the semi. As McFadden passed the motorcycles, he almost hit Hosheit. Hosheit estimated that McFadden’s speed was between 85 to 100 mph. McFadden reduced his speed as he approached the city of Cullison. Hosheit and Mayes followed McFadden. Hosheit noticed that McFadden crossed the center line at least 13 times. McFadden’s car crossed into the oncoming lane twice. McFadden then crossed the center line, over-corrected, hit the rumble strip on the opposite side of the road, and slammed on his breaks before returning to his lane. Hosheit believed that McFadden was impaired and on the verge of causing a serious traffic accident. He decided to continue to follow McFadden. McFadden continued his erratic driving as he approached the city of Haviland. Hosheit and Mayes decided to stop McFadden when they saw him pulling into the driveway of a co-op. As Hosheit approached McFadden, he detected the odor of alcohol. McFadden had trouble balancing and leaned on his car door for support. When Hosheit and Mayes confronted McFadden about his driving, he denied having any problems. Hosheit had previously served as a sheriff s deputy for Kiowa County and was familiar with the signs of an impaired person. Hosheit believed that McFadden was too impaired to drive safely. Hosheit used his cell phone to call the local sheriff s department and removed McFadden’s keys from his car. Deputy Mike Yohn arrived and observed that McFadden had trouble walking and keeping his balance, his speech was slurred, his eyes were bloodshot and glazed over, and Deputy Yohn de tected the odor of alcohol. Deputy Yohn administered several field sobriety tests which McFadden performed poorly. Deputy Yohn placed McFadden under arrest. He read McFadden the implied consent advisory and also provided him with a written copy. After McFadden consented to a blood test, Deputy Yohn searched McFadden’s car and found bottles of beer on the front passenger floorboard, three of which were unopened, two of which were empty, and one of which was open. McFadden was taken to the hospital where a registered nurse drew his blood at 11:20 p.m. Tests at the Kansas Bureau of Investigation laboratory indicated that McFadden had a blood alcohol level of .20. McFadden admitted that he had three or four beers on his way home from Wichita. He had spent the day at a golf tournament in Wichita which lasted from 9 a.m. until 2 p.m. McFadden and two friends drank three six-packs of beer between them. After the tournament, Joel Lovesee and McFadden stayed in the clubhouse for a couple of hours and drank more beer before leaving around 6 p.m. McFadden drove Lovesee to Kechi. According to Lovesee, McF adden did not appear to have any problem driving safely. They arrived in Kechi at approximately 6:30 p.m. and McFadden left sometime between 7 and 8 p.m. McF adden was charged with DUI and transporting an open container. McFadden reserved his opening statement until after the State concluded its case. During cross-examination of the State’s witnesses, McFadden’s counsel asked whether various medical conditions could malee it appear an individual was intoxicated when they were not. The State’s witnesses were also asked whether they were familiar with the drug Cortisol. During McFadden’s opening statement, his counsel indicated that McFadden would testify about his medical condition, at which time the State objected and the following dialogue took place outside of the presence of the juiy: “MR. RICHARDSON [State’s Attorney]: I’m also concerned with the intimations that there’s some sort of medical condition that would result in the Cortisol thing. What the defense is trying to get the jury to believe is the medications he took affected the alcohol content and he does not have the witnesses to testify to that. “MR. HOLLAND [McFadden’s Attorney]: Mr. McFadden can testify about his own medical problems or conditions. “THE COURT: No, he cannot unless he’s a doctor. “MR. HOLLAND: Yes, he can testify . . . what he believes it would be. He’s entitled to do that. “THE COURT: I don’t believe he can talk about a medical malady he has that’s been diagnosed by a physician. “MR. HOLLAND: Fie can testify what believes [sic] he has as far as what his medical conditions are or are not. It’s not like I’m bringing in a third party. This is his own medical condition. Mr. Richardson can point out to the jury that it’s not substantiated by a doctor or that person, that’s his prerogative. “THE COURT: You’re not going to bring that in here, you understand that? “MR. HOLLAND: We’re going to proffer it then, write it on appeal and we’ll come back down again. “THE COURT: All right. While we were up here you indicated to me, Mr. Holland, your client was going to talk about some type of medical condition that he has. I don’t know what that is but I told you up here that he is not a physician as far as I know and I’m not going to allow him to talk about medical conditions, and furthermore, would not allow him to testify as to how a medical condition can affect him in this type of a situation, and you indicated you had something you wanted to proffer in reference to that. “MR. HOLLAND: Yes, we wanted to make a proffer. Well, obviously I believe it’s already on the record but we would object to the Court’s ruling. I believe Mr. McFadden is entitled to testify as to the known medical condition he believes he has. It is different than expert testimony being asked to talk about some other person or some other tiling. Mr. McFadden can testify as to what his beliefs are. “THE COURT: And those are what? “MR. HOLLAND: His belief and after consulting numerous different individuals, labs, and research of his own which we were going to go through in detail with the juiy which Your Honor has indicated we are not permitted to do, his ultimate conclusion is that he has what is called severe adrenaline deficiency. It takes place in episodes occasionally. It is similar to diabetes but not die same, that he has been prescribed and is taking a drug called Cortisol. . . . “MR. HOLLAND: . . . He takes that during these episodes and he has had subsequent episodes after July 15th, 2002, and it is his opinion this is what he was suffering from on July 15th, 2002, and what caused his apparent driving difficulties as testified to by the officers. “THE COURT: I appreciate your proffer but my ruling in reference to the objection made by the County Attorney will stand. “MR. HOLLAND: Your Honor, after speakingwith Mr. McFadden based upon your rulings, Mr. McFadden now believes he has nothing to gain and we’ll only potentially harm his case by testifying without being able to give an explanation to the jury. . . . Mr. McFadden has decided not to testify . . . .” A jury found McFadden guilty of DUI and transporting an open container. He timely appeals his conviction. McFadden argues that by prohibiting him from testifying about his medical condition, the trial court violated his constitutional rights to testify on his own behalf and present a defense. “The admission of evidence lies within the sound discretion of the trial court. [Citation omitted.] An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. [Citation omitted.]” State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). When the appellate court reviews a constitutional challenge to the admission of evidence, it applies the federal constitutional rule, under which an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt the error had little, if any, likelihood of having changed the result of the trial. State v. Atkinson, 276 Kan. 920, 925, 80 P.3d 1143 (2003). McFadden argues that even though the exclusion of evidence is typically reviewed using an abuse of discretion standard, his case “actually raises an 'abstract question of law’ directly effecting [sic] the rules of evidence themselves.” He argues, therefore, that this court should use a de novo standard of review. The State points out that the cases cited by McFadden do little to support his argument. State v. Smallwood, 264 Kan. 69, 80, 955 P.2d 1209 (1998), supports the use of an abuse of discretion standard. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000), explains‘"[l]ittle turns . . . on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction.’ ” “A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. [Citations omitted.] A defendant’s interest in presenting such evidence may thus ‘ “bow to accommodate other legitimate interests in the criminal trial process.” ’ [Citations omitted.] As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ [Citations omitted.] Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. [Citations omitted.]” United States v. Scheffer, 523 U.S. 303, 308, 140 L. Ed. 2d 437, 118 S. Ct. 1261 (1998). As a means of ensuring reliable evidence, K.S.A. 60-456(a) limits the opinion testimony given by lay witnesses to opinions which “may be rationally based on the perception of the witness.” The statute limits opinion testimony offered by experts to opinions based on facts perceived by or personally known to the witness and “within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b). In Kansas, a lay witness may testify about the external appearances and manifest medical conditions that are readily apparent to anyone. E.g., Hiatt v. Groce, 215 Kan. 14, 21, 523 P.2d 320 (1974). However, lay witnesses are not competent to provide reliable testimony about medical matters beyond the common knowledge of laypersons, or those that are not readily apparent such as medical diagnoses or the effects of possible medical conditions. Smith v. Prudential Ins. Co., 136 Kan. 120, 124, 12 P.2d 793 (1932). McFadden’s proffer of testimony about his medical condition goes beyond the common knowledge of laypersons. Even if a jury had heard about McFadden’s medical condition and the fact that it could cause someone to be impaired, it would still not contradict the uncontroverted evidence that McFadden had a blood alcohol level of .20. The trial court had a legitimate interest in admitting only reliable evidence and did not abuse its discretion by prohibiting McFadden from testifying about his medical condition. The trial court did not infringe upon McFadden’s constitutional right to testify on his own behalf or present a defense. McFadden had the opportunity to offer factual testimony or to call an expert to offer medical testimony, but did not do so. Affirmed.	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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Marquardt, J.: Golda Maenhoudt, through Frances Rose, attomey-in-fact, and Frances Rose, individually, appeal the trial court’s grant of summary judgment to Stanley Bank (Bank) and Joe Jackson. We reverse in part, dismiss in part, and remand with directions. Rose is Maenhoudt’s niece. In June 2002, Maenhoudt, who was 90 years old, had a stroke. She was treated at a hospital and discharged to a nursing home. Maenhoudt executed a trust agreement naming Rose as trustee. The trust agreement allowed Rose to handle Maenhoudt’s financial affairs, which included two certificates of deposit (CDs) in the amount of $40,000 each at Stanley Bank (Bank) that were to be transferred into the trust, and “all monies” located in Maenhoudt’s checking account with the Bank. The trust agreement was notarized in the “State of KANSAS County of KS” by Dettie L. Davis. A durable power of attorney (POA) dated April 26, 2003, was signed by Maenhoudt naming Rose as attomey-in-fact; however, the POA was notarized on May 2, 2003, in the “STATE OF KANSAS COUNTY OF JOHNSON” by Dettie L. Davis. The durable POA gives Rose very broad powers to handle Maenhoudt’s assets. See K.S.A. 58-610 et seq. On May 5, 2003, Angela Holland, an assistant cashier at the Bank, was told that Rose and her attorney, Phillip Schuley, had come to the Bank with a durable POA. Rose and Schuley left the Bank after the employee informed them that the Bank did not accept POAs. Later that afternoon, Rose and Schuley returned to the Bank and presented the durable POA and said they wanted to “take care of’ some CDs. Holland told them that it was the Bank’s policy not to recognize a POA, and she refused to make the requested transactions. Holland described Schuley and Rose as “upset” because she would not comply with their request. Schuley and Rose returned to the Bank on another day without an appointment to speak to Jackson, the Bank’s president. Holland told Jackson that she had already informed Schuley and Rose that the Bank did not recognize a POA. After being presented with the durable POA and the trust agreement, Jackson said that he would “check into” the matter. In an attempt to investigate the legitimacy of Rose’s request, Jackson asked Holland if she would visit with Maenhoudt at the nursing home. Holland was told that the nursing home would transport Maenhoudt to the Bank. Jackson saw this as an opportunity to speak directly with Maenhoudt and determine the circumstances surrounding the request to transfer funds into the trust. Schuley and Rose were present at this meeting. The CDs were purchased on May 23, 1994, and May 25, 1994, and are “payment on date due” notes. When the request to cash the CDs was made, the Bank was not required to pay the full amount on any day other than the due date, or within 10 days thereafter, otherwise a penalty would be imposed. When Maenhoudt was brought to the Bank, Holland testified that Schuley prevented her from explaining this to Maenhoudt, saying, “She does not need to know any of that, she just needs to sign.” Holland did not believe that Maenhoudt had the capacity to make this type of financial decision. Maenhoudt eventually signed both CDs, and as she was endorsing one document, she stopped and paused for approximately 20 seconds. Holland perceived this as uncertainty, and it caused her more concern. Rose wrote a check to herself personally, not in her capacity as trustee, to close Maenhoudt’s checking account. Holland left her desk and relayed her concern to another employee. Eventually, Holland spoke with Jackson, telling him that she did not believe Maenhoudt understood what she was doing. Holland testified that Schuley interrupted them in Jackson’s office, telling them that he needed to get Maenhoudt back to the nursing home for lunch. Jackson was unable to obtain confirmation from Maenhoudt of her wishes, so he decided the Bank needed legal counsel. Jackson attempted to speak privately with Maenhoudt; however, Jackson described Schuley and Rose as “resisting” his efforts. Schuley put his hand in between Jackson and Maenhoudt and physically shoved Jackson. Holland described it as a “confrontation” because Schuley did not want Jackson to speak with Maenhoudt. After approximately 30 seconds of Jackson’s attempts to speak with Maenhoudt, Schuley rolled Maenhoudt’s wheelchaif out of the Bank. The CDs and check written to Rose were never presented for payment. Holland was so disturbed by the entire matter that she notified Kansas Social and Rehabilitation Services (SRS) of a potential case of fiduciary abuse. SRS determined that the report was unconfirmed. In response to the Bank’s actions, Rose filed a petition claiming that the trust was damaged by the Bank’s willful and wanton refusal to transfer Maenhoudt’s assets to the trust. In February 2004, Rose filed a motion for summary judgment, arguing that the Kansas Supreme Court’s opinion in Bank IV Olathe v. Capitol Fed’l Savings & Loan Ass’n, 250 Kan. 541, 828 P.2d 355 (1992), essentially required the Bank to immediately accept the durable POA. The Bank responded by filing its own motion for summary judgment, claiming that Kansas law and Bank TV do not require a state banking institution to recognize either a durable POA or a trust agreement. The trial court heard arguments from the parties and concluded that Bank IV “does not establish a common law of our state, that a bank is obligated to comply with a request made under a power of attorney.” The trial court also found that the CDs were presented at a time when they were not due and thus, under the CDs’ specific terms, they were not payable on the date they were presented for payment. The trial court also ruled that the Bank did not dishonor the check because Rose never presented the personal check for payment. The trial court granted the Bank’s motion for summary judgment. Rose’s motion for summary judgment was denied. Rose timely appeals. Rose continues to assert that Bank TV requires a financial institution to recognize a durable POA and the Bank was limited to comparing Maenhoudt’s signature on the POA with the signature the Bank had on file. .Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). When Maenhoudt was at the Bank on May 9, 2003, the Bank officials came to the conclusion that she did not understand the transactions that were being attempted. Bank IV holds that the incapacity of the principal at the time the power of attorney is presented is not a factor the financial institution may use in deciding whether to honor the request by an attomey-in-fact for withdrawal of funds. The only time relevant to the principal’s capacity is the time when the power of attorney was executed. 250 Kan. at 544. Maenhoudt’s capacity when Rose and Schuley went to the Bank is immaterial. The question is whether Maenhoudt was competent on the date she executed the POA. Affidavits attached to Rose’s motion for summary judgment state that Maenhoudt was competent when she executed the POA on May 2, 2003. No evidence to the contraiy was presented. The POA is a contract between Maenhoudt and Rose. A third person is any legal entity that “acts on a request from, contracts with, relies on or otherwise deals with an attorney in fact pursuant to authority granted by a principal in a power of attorney.” K.S.A. 2004 Supp. 58-651(k). K.S.A. 2004 Supp. 58-658(a) states that a third person, who is acting in good faith, without liability to the principal or the principal’s successors in interest, may rely and act on any POA executed by the principal. Bank TV does not hold that a financial institution must honor every durable POA. If a banking institution is put on notice that the fiduciary is misappropriating the principal’s funds, it can refuse to honor the POA. Under those circumstances, by honoring the POA, the banking institution could be considered an accessory and be held hable for the fiduciary’s actions. 250 Kan. at 550. The Bank may rely on the POA as long as there are no circumstances that would indicate a potential of misappropriation of the principal’s funds. An unqualified refusal to honor the POA is contrary to Kansas law; however, when presented with a durable POA or trust agreement, the Bank has a duty to: (1) compare the signature on the POA with the customer’s signature on file; (2) obtain proper identification from the person seeking withdrawal as the person designated as attorney in fact; and (3) determine whether the requested transaction was within the scope of the durable POA. Bank IV, 250 Kan. at 546. In addition, K.S.A. 2004 Supp. 58-658(d) allows the Bank to require indemnification from the fiduciary. The trial court decided this case on summary judgment. Due to the trial court upholding the Bank’s unqualified refusal to honor the POA, this case must be reversed and remanded because there are questions of fact to be decided regarding the validity of the POA, whether the Bank compared the signatures on the POA and trust with the signature they had on file, and whether the Bank had actual or constructive knowledge that a fraud was being perpetrated by Rose. Rose’s motion for summary judgment claimed that the Bank was obligated to honor the POA and, because it did not, the Bank caused Maenhoudt and Rose to incur attorney fees, deposition costs, and expenses. Rose also claims that Jackson should also be responsible for fees, costs, and expenses. Rose argues that K.S.A. 2004 Supp. 58a-809 requires the trustee to “take reasonable steps to take control of and protect the trust property.” Rose believes this statute, as well as K.S.A. 2004 Supp. 58a-1004, requires that this court award attorney fees and costs of this action. The assessment of costs and attorney fees is within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. Fletcher v. Anderson, 29 Kan. App. 2d 784, 786, 31 P.3d 313 (2001). We can find no request for attorney fees in the record on appeal. This court cannot review matters that were not brought to the trial court’s attention. Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Thus, this issue is dismissed. Reversed in part, dismissed in part, and remanded with directions consistent with this opinion.	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The opinion of the court was delivered by Luckert, J.: A jury convicted Charles Logsdon on seven counts stemming from the death of Jennifer Heckel: intentional first-degree murder, felony murder, conspiracy to commit first-degree murder, conspiracy to commit aggravated robbery, aggravated burglary, criminal possession of a firearm, and aggravated intimidation of a witness. The district court imposed a life sentence with a minimum term of 50 years (hard 50 life sentence) for the intentional first-degree murder conviction. Logsdon now appeals, asking us to reverse his convictions and vacate his hard 50 life sentence. For reasons we will more fully explain, we uphold Logsdons convictions because his arguments on appeal are ultimately non-meritorious. First, viewing the evidence in the fight most favorable to the State and deferring to the jury’s credibility conclusions — as we must do on appeal — there is sufficient evidence supporting his convictions. Second, the district court did not err in denying Logs-don’s motions for a mistrial (which were based on the admission of certain hearsay evidence). The court took effective remedial action to prevent the juiy from considering some hearsay. And the remaining hearsay was either not objected to or was admissible under at least one hearsay exception. None of tire hearsay statements violated Logsdons constitutional right to confront witnesses. Third, we reject Logsdon’s argument regarding a jury instruction on aid ing and abetting liability because, even assuming the instruction was erroneous, he invited any error by requesting it. Although we affirm Logsdon’s convictions, we must vacate Logs-dons hard 50 life sentence and remand for resentencing. As the State concedes, Logsdons hard 50 life sentence was improperly imposed in light of the United States Supreme Court s decision in Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and our application of that decision in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014), and State v. Warren, 302 Kan. 601, 622-23, 356 P.3d 396 (2015). Facts and Procedural History Logsdons lengthy trial involved numerous witnesses and thousands of pages of transcript. We offer a condensed version of the facts, as they were established at trial, but still must discuss the evidence in some detail because of Logsdon s sufficiency of the evidence challenge. A. The crime and initial investigation Trial testimony established that Heckel was shot in her home around 7:00 p.m. on June 14, 2011. Her 5-year old son, T.H., was home at the time and ran to his neighbors for help. Emergency responders found Heckel slumped on the floor in her kitchen and, after lifesaving measures were attempted, declared her dead at the scene. At trial, T.H. testified he was sitting in his playroom watching television. During a commercial, he went to the window and saw someone come up to the house. He heard someone else in the house with his mother and heard several loud bangs, but he did not see anything because he stayed in his playroom until he heard the kitchen screen door shut. Although T.H. could not recall any additional details at trial, law enforcement officers testified that right after the shooting T.H. had told them he saw a red car pull into the driveway with possibly two people in it and he saw a man run out of the house. A total of four shots were fired inside the Heckel home: one shot went through a food container in the kitchen, through a win dow, and outside (and was never recovered); one grazed Heckels side and was found imbedded in a kitchen wall; one was found under her body and probably caused her chest wound; and one was fired at the back of Heckels head and found near her neck. Heckels wounds were caused by medium-caliber bullets. Expert witnesses opined that the shots were probably fired from relatively close range, but no one was able to conclusively determine their sequence. Neither the Kansas Bureau of Investigation (KBI) nor the Hutchinson Police Department found any relevant fingerprint, DNA, or trace evidence. Of note, investigators found two cigarette butts outside the house, but tire cigarettes yielded no DNA match to any suspect. Nor did investigators initially discover any evidence of motive. Further, as members of the Hutchinson Police Department testified at trial, every person of interest among Heckels family, friends, and acquaintances had an alibi. As a result, the police began to investigate whether someone other than Heckel was the intended target. To this end, police began canvassing the streets and questioning people known to be involved in home invasions, daytime burglaries, and drugs. The first break in the case came on June 30, 2011, when Detective Dean Harcrow interviewed Billy Craig. According to Detective Harcrow’s trial testimony, Craig told him he had heard “someone had been shot in the head." This same statement was also introduced through the testimony of Lieutenant Martin Robertson, who was not present during the exchange but recounted what Craig had told Detective Harcrow. This particular statement was important to the investigation. As both Lieutenant Robertson and Detective Harcrow explained, Craig’s comment told them they were on the right track because that particular detail of the shooting had not been released to the public. Logsdon timely made a hearsay objection to both witnesses’ testimony about Craig’s statements. See K.S.A. 2015 Supp. 60460 (A statement constitutes hearsay evidence if it “is made other than by a witness while testifying at the hearing [and is] offered to prove the truth of the matter stated ....). Hearsay evidence is generally inadmissible unless a specific exception applies or the evidence is otherwise excluded from this general definition. As relevant to the rulings, the State argued Craigs statements were excluded from the definition of hearsay because the State planned to have Craig, who was in custody, testify. The State pointed to K.S.A. 2015 Supp. 60-460(a), which allows admission of “[a] statement previously made by a person who is present at the hearing and available for crossexamination with respect to the statement and its subject matter.” The district court overruled Logsdons objection. Later in the trial, however, Craig refused to testify, leading the district court to admonish the jury to “disregard the testimony regarding the statements of Billy Craig that were specifically made during the testimony of . . . Detective Dean Harcrow, regarding a meeting on June 30 with Billy Craig only.” The instruction did not mention Lieutenant Robertson’s testimony about Craig s statement. After Craig revealed information that would only have been known by someone involved in the crime or an investigator, police began interviewing people with whom Craig was associated. Eventually law enforcement concluded that warring groups of drug users, who often robbed each other and did not report the robberies to tire police, were linked to Heckel’s death. B. Testimony from witnesses associated with Craig or Logsdon Most of the evidence admitted at trial against Logsdon came from various members of Craigs circle. There were credibility concerns. Many, if not most, of these witnesses received some sort of benefit in exchange for their testimony against Logsdon. Almost all of them had unrelated criminal cases pending or were in jail on unrelated criminal charges. Several admitted they were reluctant to testify, and some witnesses were held in contempt of court before eventually agreeing to take the stand. A handful of the other witnesses called to testify against Logsdon were alleged, by other witnesses, to have somehow been involved in Heckel’s death. Indeed, at the time of Logsdons trial, Craig was charged with the first-degree murder of Heckel and conspiracy to commit first-degree murder. See generally State v. Craig, No. 110,466, 2014 WL 2871395 (Kan. App.) (unpublished opinion), rev. denied 300 Kan. 1105 (2014). Logsdon called these witnesses’ credibility into question at trial. We will discuss these credibility issues more thoroughly later in our opinion, but we mention them here because they provide context for understanding the State’s case against Logsdon. 1. Conspiracy to rob Kayla Rodriguez Once investigators began to focus on Craigs circle of friends, they learned of a conspiracy to rob someone other than Heckel— Kayla Rodriguez, a woman involved in the drug trade who sold drugs to Craig and others. Several witnesses testified at trial regarding Logsdon’s involvement in a couple of different plans to rob Rodriguez. Kara Kylie Branton admitted at trial that 3 to 4 weeks before Heckel’s death, she, Craig, and Logsdon were involved in the original plan. Branton testified she became afraid when Logsdon proposed using guns, and she sent word of the plan to Rodriguez. Afterwards, according to Branton, Logsdon called her cussing and screaming because she had ruined the plan. Rodriguez testified at trial that after she learned of the plan to rob her, she was reluctant to go to Craig’s house if Logsdon was there. When she asked Craig about the plan to rob her, Craig assured her that as long as he was around nothing bad would happen to her. Logsdon lodged a hearsay objection, which was overruled. There was also evidence of a second plan to rob Rodriguez. According to law enforcement testimony, Leonard Hill told the KBI that he too was involved with a planned grab-and-go robbexy of Rodriguez — and this plan was between himself, Logsdon, and Craig. Other testimony described a plan without mention of Hill’s involvement, suggesting there was at least a third plan, and it is this plan the State believed led to Heckel’s death. The State introduced evidence of this last plan through a variety of witnesses, including one who had been incarcerated with yet another woman in Craig’s circle, Kylie Hartman. Hartman told her fellow prisoner that the final plan involved herself, Logsdon, Craig, and two others — Matt Barnes and Jason Casanova. In addition to evidence about Logsdon being involved in plans to rob Rodriguez, other evidence implicated Logsdon in efforts to obtain a gun. One witness testified at trial that sometime prior to HeckePs murder (the timeline is not clear from testimony, but the evidence suggests it was in the spring of 2011), Logsdon asked him if he knew where he could get a gun. A second witness testified that before HeckePs murder on June 14, 2011, Logsdon and Branton came to his house and Branton asked about purchasing a firearm, as she and Logsdon needed it for a robbery they were trying to commit against someone named “Kayla” or “Kayley” — which would fit with evidence of a plan to rob Kayla Rodriguez. This second witness then denied Branton gave him any specific reason for needing a gun, but he stated Branton tried to sell him a gun after HeckePs murder. He never saw the gun but drought it might have been a .22 caliber rifle. 2. HeckePs murder Trial testimony was in conflict as to why anyone — whether it be Logsdon, Craig, Branton, Hartman, Hill, Barnes, or Casanova— wanted to rob Rodriguez. A few witnesses suggested it was because she owed money to Craig or a Wichita drug cartel. Rodriguez, however, stated it was Craig who owed her money. Anotirer witness floated a theory involving Social Security fraud. Logsdon told KBI agents that the plan was part of a paid hit. Of relevance to Logs-don’s appeal, Hartman testified at trial, over Logsdon s hearsay objection, that she had heard Craig mention Rodriguez’ debt a few times, and Craig would occasionally rant and rave about it, like he did about a lot of tilings. Regardless of the motive for the robbery, several witnesses testified they had heard HeckePs shooting was a mistake. Logsdon also told KBI agents after his arrest that Craig had told him the wrong person was killed. At least two theories about such a mistake emerged at trial. First, investigators considered whether HeckePs death was a case of mistaken identity. A law enforcement officer testified Heck-el “could have been mistaken for Rodriguez” but only if a person did not know either woman. This theory was somewhat undermined at trial, as Rodriguez and others testified Logsdon, Hartman, and Craig knew what Rodriguez looked like; Hartman even had a Christmas card photograph of Rodriguez. Logsdon initially denied knowing Rodriguez, but he later told police he had seen her at Craigs house. Second, some evidence suggested the shooter knew who to look for but went to the wrong house. At least one witness briefly mentioned having heard that Heckel and Rodriguez had similar house numbers but lived on different streets. Other witnesses mentioned this theoiy in a little more detail. For example, a witness who had been incarcerated alongside Hartman testified that Hartman told her she, Craig, Logsdon, Barnes, and Casanova met one evening to talk about going over to Rodriguez’ house. This witness testified Hartman had said Craig then drove the men to the house and Logsdon and Barnes committed the actual murder. Hartman also told the witness she was not involved in the murder and was “freaking out” when she learned the men had gone to the wrong house and shot the wrong woman. Yet another witness testified Hartman told her Logsdon shot Heckel and they had “got the wrong house.” Logsdon stated in a letter from jail, however, that Craig both knew what Rodriguez looked like and where she lived. 3. After Heckel’s death After Heckel’s murder, Branton — who was, as we mentioned above, involved in tire first plan to rob Rodriguez — testified Logs-don left town. Logsdon called Branton and asked her what she was hearing about the shooting. He specifically asked whether Craig was “telling stuff about him.” According to Branton, Craig also made a comment along the fines of “everyone was turning bitch on him.” When she asked Logsdon if he was involved in Heckel’s murder, Logsdon told Branton he “stayed up eight days too many and that he shot her.” Hartman testified that she too left the state after Heckel’s murder to care for her injured child. She spoke with police via phone in July 2011. In her testimony, she admitted drat after spealdng with the police she called Casanova and told him to remove any bullets that might be around her house; she explained dris had nothing to do with Heckel’s murder but was because she was a convicted felon. Casanova testified he remembered Hartman calling to do a clean sweep of her house, but he told the jury he thought he was just cleaning the house because it was a mess. Casanova implied at trial that he found a gun outside Hartmans house. When the State asked if he threw it away, he said he was going to “plead the Fifth.” Despite Casanovas cleaning, the police recovered bullets from Hartmans house. Hartman acknowledged hearing from someone on the street that Casanova had made a smart aleck remark about getting “rid of that handgun that killed that girl.” But Hartman denied hearing this statement directly. She explained that all she knew about Heckels death she had learned on the street — and those stories changed a lot; she had heard probably 50 theories about the murder. Hartman repeatedly denied having anything to do with Heckels murder. Yet another witness offered testimony about conversations she had with Hartman and Branton. According to this witness, Hartman once made a comment — -knowing she was a suspect in the case — that she got her hair cut so that it looked less like a “murderess’ haircut.” This witness also testified that Hartman did not think Craig would give her up to the police and that Craig was protecting her. This witness further stated that Branton called her several days after Heckels death to say Logsdon had left the state and had told her he had shot and killed Heckel. According to this witness, Branton gave no other specifics about Heckel’s death other than that Logsdon was scared. A different witness testified Hill came to her house about a week after Heckel’s murder and let slip that Logsdon shot Heckel in the face — information she passed on to the police. Hill, who also testified, denied making this statement. Another witness testified he told the police both Logsdon and Hill paid him a visit the day after Heckels murder and Hill was acting “real crazy” and said Logsdon shot Heckel in the back of the head. Another witness, David Crothers, testified that the day after the murder he ran into Craig; he later told Detective Bryan Rodriguez about what he had heard. Crothers testified Craig said, “[I] f he had anything to do with it he’d make sure that everybody was killed.” Detective Rodriguez corroborated that Crothers had told him about Craig’s statements involving Heckel. Detective Rodri guez further testified that Crothers told him Craig said he knew who shot Heckel and it was Logsdon. The district court initially overruled Logsdons hearsay objections to Crothers’ and Detective Rodriguez’ testimony on the grounds that Craig would be available as a witness. But when Craig refused to testify and the district court admonished the juiy to disregard some testimony about Craig’s statements, the district court specifically directed the jury to disregard the testimony of both these witnesses. As for Logsdon, he left Hutchinson for Nebraska approximately 2 weeks after Heckel’s death. He told people, however, including Detective Harcrow in a July 11, 2011, telephone conversation initiated by Logsdon, that he was in Texas. A police officer testified Logsdon was arrested without incident on August 5, 2011. Police recovered several firearms from a locked gun cabinet in a bedroom in the Nebraska house. The gun cabinet was not in Logsdon’s bedroom and the homeowner, not Logsdon, unlocked the cabinet for the police. Investigators focused on two firearms — a Smith and Wesson .357 handgun and a Colt .38 revolver with the serial number removed. Through later testing and comparison to the bullets found in Heckel’s house, KBI investigators were able to exclude the Smith and Wesson .357 handgun. They were unable to exclude the Colt .38 revolver. A KBI forensic examiner testified this meant it was equally likely that the Colt .38 revolver fired the bullets as that it did not. The parties stipulated Logsdon was a felon and was prohibited from possessing a firearm. C. Logsdons statements to police Logsdon’s own statements to the police were also admitted at trial through various law enforcement officers. One statement came in when Detective Harcrow testified about the July 11 phone conversation Logsdon had initiated. During this call, Logsdon mentioned several people who might have been involved in the crime, including Craig, Branton, Barnes, and Casanova. He also mentioned rumors he had heard about a conspiracy to rob Rodriguez. On August 6, 2011, the day after Logsdon was arrested in Nebraska, he began his interview with officers by stating he did not know anything about the Heckel case. Nevertheless, Logsdon told the officers certain things that had not been released to the media. For example, Logsdon threw out the idea, unprompted, that a red car might have been involved; he later told police that Craig drove to the Heckels’ house in a red Cadillac. When a KBI officer said Craig did not own a red Cadillac on the day of the murder, Logs-don disagreed. Further investigation revealed that Craig indeed had owned two red cars. One was a red or maroon Cadillac that he owned for only a week. And during that week, a witness testified he had repeatedly asked Craig if Craig would sell the Cadillac. Craig refused. But a few days after Heckel’s murder, Craig said he was willing to sell. Logsdon also suggested someone went to the wrong house, and he listed several people as possible suspects — including Craig, Hartman, Branton, Barnes, and Casanova. The police were not yet investigating some of these people. Logsdon denied knowing Barnes but then kept giving little bits of information about him (and later stating that he had heard Barnes was “the trigger man”); Logsdon also, in later interviews, said he had never been with Casanova in his life, which differed from his statements in earlier interviews. Finally, Logsdon told police Heckel was shot in the head — a detail that had still not been publically released — and Logsdon also said he knew for a fact that Craig knew who shot Heckel. Originally Logsdon claimed only to have heard of Craig’s involvement; in later interviews Logsdon asserted Craig told him he was the driver and once said Craig had gone inside the Heckels’ house. Logsdon mentioned firearms several times in his postarrest interviews with police. He vaiyingly stated: Craig was supposed to give him a rifle but never did, he actually was in possession of a rifle and tried to trade it for a pistol or other handgun, Craig gave him a rifle, and either Branton or Hartman gave him a rifle. Of note, Logsdon always adamantly denied shooting Heckel. But during one interview, when a KBI agent suggested Heckel was killed because someone panicked, Logsdon responded that he did not panic. Logsdon also told the agent he had provided 85 percent of the truth, and, when asked for the rest of it, said the remaining 15 percent would incriminate him. D. Logsdon’s statements to other inmates The State also called witnesses who were housed with Logsdon in jail. The trial transcript does not always make clear when the various alleged exchanges between Logsdon and these witnesses actually took place. But the evidence suggests some of Logsdon’s alleged statements to these inmates may have been made after he had access to tire charging documents, other preliminary filings, and evidence — as opposed to these statements coming from personal knowledge alone. One witness testified that Logsdon denied killing Heckel but then went on to explain how the crime supposedly happened— Heckel was shot “execution style,” two people were involved, and a child was present. Another witness testified he and Logsdon discussed the case and Logsdon asked him legal questions; according to this witness, Logsdon wanted to know how long it took to get results from DNA testing but was not concerned about any DNA evidence specific to him. At some point this witness and Logsdon were involved in a jailhouse fight where, at least according to the witness’ subsequent interview with die police, Logsdon said, “I’m going to kill you like I killed that bitch.” However, the witness testified at trial he was untrudiful with the police and Logsdon never actually made diis statement. The State also presented a video from the jail depicting a conversation between Logsdon and two inmates. One of these inmates testified at trial that Logsdon asked him about various legal issues involving DNA evidence from cigarette butts and discussed different aspects of Heckels case. According to this inmate, Logs-don demonstrated how Heckel was shot by getting down on his knees and “put[ting] his hands behind execution style and kind of point[ing] somewhere to the back.” This inmate testified Logsdon said a handgun was used in the crime but explained he and Logs-don "didn’t touch a lot on the gun issue” because Logsdon “was assured that the gun used wasn’t going to be found so he wasn’t worried about it.” This inmate further testified that Logsdon told him Heckel was murdered by mistake and the plan was to rob someone — “Kylie” or “Kaylee” — who was supposed to have drugs and guns. A second inmate in the jailhouse video testified that Logsdon discussed a cigarette butt with him but changed his story several times — sometimes Logsdon said he left a cigarette behind. According to this second inmate, Logsdon was particularly concerned he might have left a cigarette butt inside the house by Heckels body. This second inmate testified Logsdon told him that after the murder Craig learned the wrong woman had been shot; he further testified that Logsdon gave him the names of Craig, Hartman, Casanova, and Barnes and said Craig was the driver, Hartman knocked on the door, and a total of three people went inside the Heckels’ house. A third inmate testified at trial that he had conversations with Logsdon while they were in jail together. The inmate stated that Logsdon claimed he had never seen Heckel or been to her house. Yet, when Logsdon later saw a picture of Heckel on television, he said she was not that nice or good-looking, she was overweight, and her house was messy. According to this inmate, Logsdon explained they entered the Heckel home by going through the garage. Logs-don also mentioned something about a gun that was torn apart. Although not entirely clear, it appears this particular conversation occurred during a recess of Logsdons preliminary hearing. During the preliminary hearing, a video of the inside of Heckels home was shown. Thus, Logsdon’s descriptions of Heckel and her home might have been based on evidence he saw during die hearing. A KBI agent testified this inmate also told him Logsdon had said he was worried his DNA might be found on a cigarette butt at the scene. A fourth inmate testified Logsdon was upset about facing a robbery charge because nothing was missing from Heckel’s home. Specifically, this inmate testified Logsdon had said, “[W]hen I shot that bitch her purse was sitting right there.” Indeed, several witnesses testified Heckels purse was found not far from her body. E. Other evidence Not all the evidence at trial came from the testimony of witnesses associated with either Craig or Logsdon. Police uncovered text messages between Craig and Logsdon on July 1, 2011, a couple of weeks after Heckels murder and right after Logsdon left Hutchinson for Nebraska. Logsdon sent one message to Craig reading, “[T] hey questioned you about a murder? You better talk 2 me” (Logs-don would later tell investigators he did not know what this conversation was about). Police testimony established there had been no murders in Hutchinson for months before Heckel’s, there were no other murders in Hutchinson between hers and July 1, and Heck-el’s murder was the only pending murder investigation with the Hutchinson Police Department at that time. Logsdon also sent several messages to one of his cousins. One, sent hours after Heckels death, stated, “I’m goin to prison anyhow.” Another, sent on the evening of June 14, 2011, read, “That’s how I pay my bills you punk hoe I’m a end up hurtin one of shot one your hoes with this new piece .... A law enforcement officer explained there had been no other shootings in Hutchinson that day or that week that could have been the subject of tire message. A few minutes later, Logsdon sent another message that read, “I ain’t readin your bullshit you drunk coke head bitch ah kill one of you clowns real talk bitch you fuck with Billy I’m steelin something from you every time you do it watch ya ain’t got no love.” Also, Logsdon mentioned the Heckel murder in several letters from jail. In one, he denied having anything to do with Heckel’s death and wondered why Craig was speaking out against him. He identified Craig as the driver, Barnes as the shooter, and Hartman and Casanova as the ones who “tore up the gun” afterwards. In another letter, Logsdon again denied involvement and wondered why Craig was lying; he asked the recipient to tell Craig to stop lying or else he would go to the police with his own information. He later did just that: Logsdon wrote to a detective and, while again denying any role in Heckels murder, stated he wanted to help and would do so if the police could get him out of jail. Specifically, Logsdon wrote that he could help put Craig away and wanted a deal. F. Billy Craigs refusal to testify and Logsdon’s motion for mistrial As is apparent from these facts, Craig’s initial statement about having heard someone was shot in the head turned out to be critical to the investigation because that information, unreleased to the public, led to investigators questioning those associated with Craig. Several of these individuals testified at trial about statements Craig made regarding Rodriguez or the Heclcel murder. Again, Logsdon objected to this testimony as hearsay, but the district court overruled the objections because the State planned to call Craig as a witness, making him available for cross-examination. As previously noted, under Kansas law, the other witnesses’ testimony about Craig’s previous out-of-court statements would be admissible under a hearsay exception if Craig testified. See K.S.A. 2015 Supp. 60-460(a). Toward the end of trial, however, when the State attempted to call Craig to the stand, the State’s plan hit a snag. The State had charged Craig with offenses arising from Heckel’s murder, and his attorney notified the district court that he expected Craig to assert his right under the Fifth Amendment to the United States Constitution to not incriminate himself. In light of his refusal to testify, the State provided Craig with derivative testimonial use immunity for his testimony, at which point Craig’s attorney advised Craig (despite acknowledging caselaw to the contraiy) that the federal government might still prosecute him. The district court informed Craig he could be held in contempt for refusing to testify despite his immunity. Still, Craig refused to testify — he went so far as to explain why a contempt sentence would not make much difference to him or his sentence. ■ , The district court granted Craig’s attorney extra time to speak with Craig. The State supported the extra time because of the potential impact on the trial if. Craig continued to refuse to testify — for example, the jury would need to be instructed to disregard what it had already heard regarding Craig’s prior, out-of-court statements. The district court let Craig think about his situation overnight and, the next day, informed him that in fight of his immunity he did not have a Fifth Amendment privilege to refuse to testify. Craig refused to testify, and the district court held Craig in criminal contempt. Logsdon then moved for a mistrial on the grounds that the admission of Craig’s out-of-court statements through other witnesses, when Craig himself did not testify, violated Logsdon’s Sixth Amendment confrontation rights. The State insisted it believed in good faith that Craig would testify and that a mistrial was not called for, especially since a limiting instruction could cure any prejudice. The district court denied Logsdons motion for a mistrial and set the parties to the task of crafting an appropriate admonition for the jury. The court then instructed the jury to disregard all testimony of Crothers and Detective Rodriguez regarding statements Craig had made and to disregard the testimony of Detective Harcrow regarding Craigs June 30 statement. The instruction did not detail what the June 30 statement was, but the transcript reveals that Craig told Detective Harcrow he had heard about Heckel being shot in the head. G. Verdict, 'posttrial motions, and sentence After deliberating over 3 days, the jury found Logsdon guilty of all counts against him: first-degree murder, felony murder, conspiracy to commit first-degree murder, conspiracy to commit aggravated robbeiy, aggravated burglary, criminal possession of a firearm, and aggravated intimidation of a witness. Logsdon again moved for a mistrial, and he also moved for judgment of acquittal and a new trial. As relevant on appeal, he argued that several witnesses were permitted to testify about Craigs out-of-court statements even though Craig himself never testified. Without Craigs testimony or other witnesses’ testimony about what Craig had said to them, there was insufficient evidence of Logsdon s guilt, according to him. Additionally, he argued the testimony violated his Sixth Amendment confrontation rights. Further, Logsdon disputed whether the State honestly had a good faith belief that Craig would testify. The district court held a hearing on Logsdon s posttrial motions and eventually denied them. It ruled the State had a good faith basis for believing Craig would testify, and it also held that the curative instruction issued to the jury adequately dealt with testimony about Craigs out-of-court statements. Also, the court concluded a reasonable factfinder could find beyond a reasonable doubt that Logsdon was guilty even excluding the evidence subject to the limiting instruction. Logsdon elected not to participate at the sentencing stage. At the State’s request, the district court imposed a hard 50 life sentence, pursuant to K.S.A. 2015 Supp. 21-6620. Analysis Our review is limited to the issues raised by Logsdon, which we have reordered for purposes of our analysis, as follows: (1) Does sufficient evidence support Logsdons convictions? (2) Did the district court abuse its discretion in denying Logsdons motion for mistrial, which asserted Logsdon had been prejudiced by the erroneous introduction of out-of-court statements by Craig? (3) Did the district court err in instructing the jury on an aiding and abetting theory? and (4) Must Logsdons hard 50 fife sentence be vacated because it is based on judicial factfinding? We discuss each of these issues in turn below. Issue 1: Sufficient evidence supports Logsdons convictions. First, we consider Logsdon’s argument that no rational factfinder could have found him guilty beyond a reasonable doubt. We note that Logsdon’s sufficiency argument is a general one. He does not pinpoint which elements of which crimes he believes the evidence does not support; instead he points to various evidentiary issues which, he contends, show that no reasonable jury could have found him guilty of any of his convictions. A criminal defendant’s challenge to the sufficiency of the evidence amounts to a posttrial claim that the State failed to meet its burden of proving each essential element of one or more charges against the defendant. An appellate court reviews a sufficiency of the evidence challenge “by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In arguing the State cannot meet this standard, Logs-don focuses on discrete evidence. We will first examine the specific evidence discussed by Logsdon and then refocus the analysis on the ultimate standard of looking at all the evidence in the fight most favorable to tire State. Logsdon first questions the value of the testimony of T.PI.— HeckePs 5-year-old son. In particular, Logsdon argues statements by T.H. about seeing a red car during the crime were not credible, considering his age and his initial inconsistent statements about what he saw. Logsdon seems to be arguing that if T.H. s statements about seeing a red car were taken out of the mix, he would not have been tied to the crime and no reasonable juiy would have convicted him. In essence, Logsdon asks us to reweigh T.H. s testimony. But that is not our role. Rather, an appellate court “do[es] not reweigh the evidence or evaluate the credibility of witnesses,” as these functions are left to the jury. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011); see also State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993) (“On appellate review... all questions of credibility are resolved in favor of die State.”). The jury was in the best position to evaluate T.H. s credibility, especially since Logsdon was able to point out T.H. s inconsistent statements during cross-examination. See State v. Peoples, 227 Kan. 127, 135, 605 P.2d 135 (1980) (pointing out the defendant had “an opportunity in closing argument to impress the jury with die circumstantial nature of most of the evidence”). In addition, T.H. s testimony was not the only circumstantial evidence linking Logsdon to the murder through a red car: Logsdon himself, in his postarrest police interviews, indicated that a red car, driven by Craig, was involved. In fact, when an investigator told him Craig did not own a red Cadillac on the day of the murder, Logsdon’s protest led to further investigation that confirmed Logs-don’s statement — Craig owned two red or maroon cars at the time, and after the murder he quickly attempted to sell the red Cadillac despite recently expressing a reluctance to part with it. Thus, any issue with T.H.’s testimony does not undermine the evidence about a red car and, more importantly, the sufficiency of the evidence for any of Logsdon’s convictions. Logsdon next argues all the evidence of his involvement in a conspiracy to rob Rodriguez consisted of testimony about what someone told someone else, i.e., hearsay evidence. He contends that, due to witness credibility issues, this evidence was insufficient to show his guilt. We recognize much of this testimony was called into some question on cross-examination and most of the States witnesses had potential credibility issues: almost all were involved in other criminal cases, several had prior crimes of dishonesty, many hoped to receive some sort of benefit in exchange for their testimony, some were evasive on the stand, and a few were extremely reluctant to testify at all. Rut Logsdon was able to highlight and address these issues during cross-examination. Despite Logsdon’s efforts, the juiy believed at least some of these witnesses. Again, we will not supplant the juiy’s conclusions with our own credibility determinations. See Hall, 292 Kan. at 859. The credibility issues Logsdon raises do not show that no reasonable jury would have convicted him. Logsdons next argument relating to the sufficiency of the evidence involves his text messages which were presented to the jury, most notably one reading, “I’m a end up hurtin one of shot one your hoes with this new piece.” He contends we can only speculate about what this and the other text messages meant, as at most they tended to show he said he might shoot someone in the future. We disagree. Granted, Logsdon’s text messages are not definitive evidence of his guilt and are certainly subject to interpretation. Regardless, a rational jury could have concluded that Logsdon’s messages were meant to convey he had already shot someone and, since there were no other shootings in Hutchinson that week, that this someone was Heckel. The jury also did not consider each message in isolation. In addition to the one referring to shooting a “hoe,” there were others reading, “I’m goin to prison anyhow,” and “ah ldll one of you clowns real talk bitch you fuck with Rilly I’m steelin something from you every time you do it.” The jury considered these messages in the context of Logsdon’s conflicting statements during his interviews with the police, other inmates’ testimony about his behavior and statements while in jail, and many witnesses’ testimony about his involvement in the Rodriguez conspiracy. Again, we will not reweigh the evidence. Considering all the evidence in the case, we conclude a reasonable jury could infer some evidence of Logsdon’s guilt from the messages. Logsdon also addresses the firearms evidence in the case. This argument relates to most of the charges brought against Logsdon but, in particular, to his charge of being a felon in possession of a firearm. The parties stipulated Logsdon was a felon and prohibited from possessing a firearm at the time of the murder, and there is no dispute that two relevant firearms were found in the Nebraska home where Logsdon was arrested. We acknowledge these firearms were locked away in someone else s room and testimony established the key was not even in Logsdon’s possession. Logsdon highlights these facts in an apparent attempt to call into question his “possession” of these firearms in Nebraska. Logsdon fails to recognize, however, that the State did not charge him for possessing a firearm in Nebraska. Instead, the State charged him for possessing a firearm on tire day of Heckel’s death. Nevertheless, the firearms seized at the time of his arrest are a part of the relevant evidence of his possession on the day of tire murder because one of the firearms recovered in Nebraska — -the Colt .38 — could not be excluded as the murder weapon. This meant, according to the State’s expert witness, there was a fifty-fifty chance that the Colt .38 was used to shoot Heckel. Thus, some circumstantial evidence supported a finding that Logsdon wielded the .38, which police found in Nebraska, on the day of Heckel’s murder. Had this been the only evidence regarding firearms presented to the jury, we would have strong reservations about whether it was sufficient to support his criminal possession of a firearm conviction. But Logsdon told police investigators that Craig gave him a rifle and he tried to trade it for a pistol; a fellow inmate testified Logsdon said he traded a rifle for a revolver; and another inmate testified he and Logsdon had some discussion about one gun being traded for another. This last inmate also testified Logsdon was sure the gun used in the murder would not be found. Yet another witness testified Logsdon was looking to procure a gun prior to Heckel’s death. Also, Logsdon’s text message sent hours after the shooting referred to a shooting with “this new piece.” Further, as we will discuss next in more detail, there is sufficient evidence from which a reasonable jury could conclude that Logsdon shot Heckel. Accordingly, a rational factfinder could have found Logsdon guilty of criminal possession of a firearm beyond a reasonable doubt. This brings us to our overarching consideration of all the evidence against Logsdon and his final argument that all the evidence against him was circumstantial. Logsdons argument initially rests on shaky ground because “[a] conviction of even the gravest offense may be sustained by circumstantial evidence.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990); see State v. Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001) (as long as there is substantial evidence, we will not disturb a guilty verdict “even though the evidence is entirely circumstantial” [emphasis added]). Circumstantial evidence, in order to be sufficient, “need not rise to that degree of certainty which will exclude any and every other reasonable conclusion.” Casey v. Phillips Pipeline Co., 199 Kan. 538, 551, 431 P.2d 518 (1967). Instead, circumstantial evidence “affords a basis for a reasonable inference by the juiy” regarding a fact at issue. 199 Kan. at 550 (explaining circumstantial evidence “tends to prove a fact in issue by proving other events or circumstances which, according to the common experience of mankind, are usually or always attended by the fact in issue”). Further, Logsdon took full advantage of his opportunity to impress upon the juiy the circumstantial nature of the evidence. See Peoples, 227 Kan. at 135 (noting defendant’s opportunity to discuss weaknesses in State’s case). More specifically, as we look to the evidence in this case, the State presented sufficient evidence supporting Logsdon’s convictions, despite its largely circumstantial and hearsay nature or the questions of witnesses’ credibility. Many witnesses implicated Logsdon in the Rodriguez conspiracy. Several of the State’s witnesses testified about what Logsdon himself said. See K.S.A. 2015 Supp. 60-460(g) (excepting party admissions from the general rule prohibiting hearsay). For example, Branton testified she and Logs-don conspired to rob Rodriguez and that it was Logsdon’s idea to involve guns; she also testified Logsdon called her after he left the state, asked about Heckel’s murder and what Craig was saying, and said he had “stayed up eight days too many and . . . shot her.” Hill testified that he told police Logsdon asked him to participate in a robbery. Two inmates testified Logsdon showed them how Heclcel was shot. Another inmate testified Logsdon said Heckel did not look nice in person and was a messy housekeeper. And yet another inmate testified Logsdon was indignant about being charged with robbery because “when I shot that bitch her purse was sitting right there.” Furthermore, Logsdon sent the text messages and made some key statements to the police. Logsdon himself brought up a conspiracy to rob Rodriguez when he called Detective Harcrow from Nebraska and gave the names of several other people who might be involved — some of whom then testified against him at trial. In his postarrest interviews, he brought up several details of the crime unknown to the public, including the color of the car, the fact Craig owned a red Cadillac on the day of the murder, and the idea that the shooter went to the wrong house. He also informed a KBI agent that he had given 85 percent of the truth but would not divulge the remaining 15 percent because it would incriminate him. The jurors heard portions of these interviews and could judge for themselves Logsdons demeanor. In addition to witness testimony, the jury examined hundreds of exhibits — including audio and DVD tapes of police interviews with Logsdon. And the jury heard the forensic evidence about the gun found in the house where Logsdon was arrested. As the State points out in summarizing dre evidence, even after excluding the hearsay evidence mentioned in the limiting instruction: nine witnesses testified Logsdon provided unknown details of Heckels murder, six witnesses testified they were told by someone other than Craig that Logsdon killed Heckel, two witnesses testified Logsdon confessed to the murder, Logsdon sent incriminating text messages shortly after Pieckels murder, Logsdon fled to Nebraska upon learning investigators might be looking for him, a gun that could not be eliminated as the murder weapon was found at the house where Logsdon was arrested, and the State introduced a video of Logsdon recreating the murder for other inmates. We do not find, as the State argues, that the evidence against Logsdon was overwhelming. There are troubling aspects about the evidence and the trial. Nevertheless, we must view all the evidence in a fight most favorable to the prosecution, and we conclude a rational factfinder could have found Logsdon guilty of all charges beyond a reasonable doubt. See Frye, 294 Kan. at 374-75; Scott, 271 Kan. at 107; Casey, 199 Kan. at 550-51. Issue 2: The district court did not abuse its discretion in denying Logsdon’s two motions for a mistrial. Logsdon also argues the district court should have declared a mistrial due to the erroneous admission of witness testimony about Craigs out-of-court statements. Craigs refusal to testify is at the root of Logsdon’s argument because it upset the district courts professed basis for admitting testimony about Craig’s out-of-court statements. Logsdon makes two separate but related arguments about the denial of his motions for mistrial: (1) an evidentiary argument that the testimony was inadmissible hearsay and (2) a constitutional argument that the witness testimony violated his Sixth Amendment Confrontation Clause rights. 2.1. Standard of Review A district court may order a mistrial if there is “[prejudicial conduct, in or outside the courtroom, [that] makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(l)(c). In making this determination, the district court must engage in a two-step process: (1) it must determine if there is a “fundamental failure” in the proceeding; if so, (2) the district court must determine “whether it is possible to continue the trial without an ‘injustice.’” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). In Ward, we explained that whether a fundamental error resulted in an injustice depends on whether the error affected substantial rights — meaning whether it affected the outcome of the proceedings. See 292 Kan. at 565. On appeal, we review the district court’s ruling at each step for an abuse of discretion. In general, a district court abuses its discretion by issuing an order that is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; oils) based on an error of fact. 292 Kan. at 551. 2.2. Scope of Issue: Preservation and Waiver Several preliminary considerations potentially limit the eviden-tiary issues requiring full analysis on appeal. First, although Logsdon broadly claims the district court erred in admitting any testimony regarding statements made by Billy Craig to others, the State argues we cannot consider many of these instances. Two prudential considerations are implicated. Specifically, Logsdon failed to preserve some instances with a timely trial objection, and, in two different ways, he waived his argument as to others by failing to follow our appellate rules. As to Logsdon’s failure to make a timely trial objection, K.S.A. 60-404 provides that a verdict will not be set aside “by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” In other words, “evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). This court has consistently refused to “review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right.” State v. Dukes, 290 Kan. 485, 488-89, 231 P.3d 558 (2010) (requiring defendants to raise contemporaneous Confrontation Clause objections); see also State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (“Without a contemporaneous objection, [defendant’s] claim is being asserted for the first time on appeal and is subject to the general rule that alleged constitutional violations cannot be raised for the first time on appeal.”). Applying 60-404 means that not all testimony regarding Craig’s statements are preserved for appeal. According to the State’s count, it asked questions about Craig’s statements “[a]t least a dozen times” over the 3-week trial, but “Logsdon made contemporaneous objections [only] seven times.” We have not verified the State’s count but do know Logsdon did not object to all of the testimony he discusses in his brief. For example, Logsdon complains on appeal about Hartman’s testimony that Craig denied killing “that girl” and then started crying. But Logsdon elicited this testimony himself on cross-examination and obviously did not object. As a result, he cannot now claim it was admitted in error. See K.S.A. 60-404. Second, Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41), requires an appellate brief to include “a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court.” In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), we warned litigants that Rule 6.02(a)(5) means what it says and is ignored at a litigants own peril. Then, in State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015), we held: “We are now sufficiently post -Williams that litigants have no excuse for noncompliance with Rule 6.02(a)(5).” Yet, Logsdons appellate brief contains a very limited number of pincites to specific trial objections. Consequently, he has failed to preserve any statement about which he complains that is not accompanied by a timely trial objection and a pincite in his brief. Third, a failure to adequately brief an issue results in abandonment or waiver. See State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012). In at least one instance, Logsdon cites a trial objection in his brief to a questions asked of Lieutenant Robertson but does not mention the witness by name or explain why his answer made any difference in the proceedings. Thus, we specifically hold Logsdon has waived any argument regarding Lieutenant Robertsons testimony about what Craig told Detective Harcrow. As a result of the application of these various rules, we find Logs-don failed to preserve or has abandoned an evidentiary or constitutional objection to any witness testimony beyond the following six specific instances. Each of these instances were the subject of a timely trial objection and have been argued by Logsdon with a supporting citation to the record: 1. David Crother s testimony that the day after HeckePs urder Craig told him Logsdon shot Heckel; 2. Detective Rodriguez’ testimony that Crothers told him about Craigs statement that Logsdon shot Heckel; 3. Detective Harcrow’s testimony that, on June 30, Craig told him he had heard someone was shot in the head; 4. Leonard Hill’s testimony that Craig told him about a plan to do a grab-and-go robbery of Kayla Rodriguez; 5. Kayla Rodriguez’ testimony that Craig told her she knew he would not let anything happen to her; and 6. Kylie Hartmans testimony that she had heard Craig ranting and raving about Rodriguez owing him money. According to the State, an additional consideration curtails the need for a full discussion of the merits of Logsdon’s argument as to these statements. Specifically, the State argues Logsdon invited any error by not including all of these statements in a limiting instruction in which the district court told the jury to disregard some of Craig’s statements. 2.3. Scope of Issue: Limiting Instruction and Invited Error Some additional facts help explain the State’s argument. As we mentioned above, Logsdon moved for a mistrial as soon as Craig refused to testify. The district court denied the motion and instead asked the parties to draft a limiting instruction to reduce die impact of the erroneously admitted testimony on die verdict. They did so. The State presented a proposed instruction, and Logsdon agreed with the State that they had “finally narrowed it down” to a specific list of witnesses — Crothers, Detective Rodriguez, and Detective Harcrow. Logsdon’s attorney specifically agreed he had no other names to add to the list. Nevertheless, he objected to the proposed instruction “to be consistent.” Ultimately, the district court informed the jury that during trial the parties believed Craig would be a witness but, when called, he refused to testify. The instruction stated Craig was unavailable as a witness and the jury was instructed to “disregard the testimony regarding the statements of Billy Craig that were specifically made during the testimony of the following witnesses: 1. David Crothers 2. Detective Bryan Rodriguez 3. Detective Dean Harcrow, regarding a meeting on June 30 with Billy Craig only This instruction applies only to the witnesses named and not to the other statements you may have heard regarding Billy Craig in this trial.” Despite this instruction and his participation in its drafting, Logsdon filed a posttrial motion for mistrial in which he argued Craig’s out-of-court statements were so prejudicial that the error could not be cured by the limiting instruction. The district court denied his motion. The State argues Logsdon should not be allowed to claim error arising from any statement other than those mentioned in the limiting instruction because he helped draft the limiting instruction and failed to include the testimony. The State also points out that Logsdons attorney explicitly told the court “that was the list that I had.” If that were the end of the issue before the district court, then we would agree with the State’s argument. But that was not the end. Logsdon’s attorney continued by objecting to the instruction, and the objection precludes application of tire invited error doctrine. The invited error doctrine applies only when the party fails to object and invites the error, unless the error is structural. See State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014) (holding that, if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural); see also K.S.A. 2015 Supp. 22-3414(3) (“No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”); State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012); State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012). We therefore conclude that the limiting instruction does not preclude Logsdon’s ability to raise his present arguments as to the six witnesses and statements listed above. Yet, our consideration of the instruction does not end here because the State presents a second argument as to the three witnesses listed in the limiting instruction — Crothers, Detective Rodriguez, and Detective Har-crow. Specifically, the State argues the district court correctly determined the instruction cured any prejudice caused by the admission of Craig’s out-of-court statements into evidence. Essentially, the State argues harmless error, which we will return to after a discussion of whether there was error. 2.4. Hearsay Not Admissible Under KS. A. 2015 Supp. 60-460(a) We turn first to Logsdon’s arguments about hearsay. At trial, the State argued these six statements were not hearsay because Craig would be present and available for cross-examination. As we have previously noted, Kansas law allows the admission of an out-of-court statement if the person who made the statement — that is, the declarant — actually testifies during the trial. See K.S.A. 2015 Supp. 60-460(a). The district court, relying on this exception to the hearsay rule, permitted witnesses to testify about what Craig told them out of court. Clearly, 60-460(a) did not apply once Craig refused to testify. But it also did not apply even at the time the statements were introduced into evidence: Craig had not yet been given immunity, and our prior cases hold 60-460(a) cannot be used to admit an out-of-court statement if the declarant is still protected by his or her privilege against self-incrimination. See State v. King, 221 Kan. 69, 71-72, 557 P.2d 1262 (1976) (defense sought to admit recording of conversation between witness and defendant; we held defendant was not, at that point, “available” for cross-examination because she was still protected by her Fifth Amendment privilege; when defendant later took the stand, court did not abuse discretion in refusing to admit the self-serving tape because defendant’s in-court testimony was best evidence); State v. Oliphant, 210 Kan. 451, 453, 502 P.2d 626 (1972) (witnesses who had claimed privilege against self-incrimination in previous proceedings were not available for cross-examination and 60-460[a] did not apply); see also State v. Fisher, 222 Kan. 76, 78, 563 P.2d 1012 (1977) (emphasizing that judges should use restraint in allowing admission of evidence under 60-460[a] and quoting S. Gard, Kansas Code of Civil Procedure 465 [1963] for proposition that the exception “could be subject to abuse” if judges allow reliance on its use when “better evidence is available and no good purpose is served by receiving” the out-of-court statement). Here, Craig had been charged with crimes arising from the murder of Heckel, his Fifth Amendment privilege still applied, and he was not available for cross-examination when his various out-of-court statements were admitted. There is thus no question that 60-404(a) did not permit Hill, Rodriguez, Hartman, Crothers, Detective Harcrow, or Detective Rodriguez to testify about what Craig told them. Consequently, this testimony was inadmissible hearsay — unless another hearsay exception applied. 2.5. The Coconspirator Hearsay Exception Applies The State argued to the district court, after Craig refused to testify, that Craig’s statements were admissible under K.S.A. 2015 Supp. 60-460(i)(2) as statements of a coconspirator. The district court did not rule on this alternative basis for admission and instead gave the limiting instruction. On appeal, tire State once again argues this alternative ground; it also argues it had a good faith reason for believing Craig would agree to testify. Briefly, as to this second argument, good faith does not make evidence admissible. But the State makes a valid argument regarding coconspirators’ statements because K.S.A. 2015 Supp. 60460(i)(2) permits “[a]s against a party, a statement which would be admissible if made by the declar-ant at the hearing if. . . the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination .... K.S.A. 2015 Supp. 60460(i)(2). In order for this so-called “coconspirator exception” to apply: “(1) the person testifying must be a third party; (2) the out-of-court statement . . . must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been made while the conspiracy was in progress; and (4) the statement must be relevant to the plan or its subject matter.” State v. Betancourt, 301 Kan. 282, 298, 342 P.3d 916 (2015). As we noted above, the district court never ruled on this exception but instead decided to instruct the jury to disregard at least some evidence. Under some circumstances, this might preclude our consideration of this alternative exception. But here, Logsdon’s statements that the limiting instruction covered all the witnesses on his list would have reasonably led the district court and the State to believe no further rulings were necessary. And while Logsdon objected to the instruction, he did not state a specific objection that would alert tire district judge or the State to the necessity for additional findings. Nor does he argue the State should be prohibited from making the argument on appeal. Under these unique circumstances, we will consider the State’s argument that the coconspirator exception would apply; we also note Logsdon does not attempt to refute this argument. Furthermore, the record allows us to apply the exception because Craig was charged as a coconspirator, and ample evidence supports his involvement, including the testimony of Logsdon and other coconspirators. Also, the content of Craigs statements to Kayla Rodriguez, Hartman, and Hill reflect that the statements were about the conspiracy while it was ongoing. See Betancourt, 301 Kan. at 298. The district court thus did not err in admitting this testimony — although it was hearsay, it qualified for an exception and was admissible. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012) (appellate court can affirm even if reasoning differs from district court). Moreover, to the extent Logsdon argues any testimony of these three witnesses regarding Craig’s statements was so prejudicial that the district court erred in allowing them into evidence, we disagree. First, Logsdon fails to cite a legal basis for arguing that prejudice precludes the admission of a coconspirators statements. Second, we find no basis to conclude the district court abused its discretion in this regard because the statements were not unduly prejudicial. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013) (Even if evidence is relevant, a trial court has discretion to exclude it where the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60-445. An appellate court reviews any such determination for an abuse of discretion.). A review of the evidence explains our conclusion. With regard to Craigs statements to Kayla Rodriguez, Logsdon asserts this testimony tied him to the plan to rob Rodriguez and supported the State’s theoiy of mistaken identity. But Rodriguez’ testimony about Craig’s statement did not implicate Logsdon. Plus, there was plenty of other, unobjected-to evidence tying Logsdon to the conspiracy involving Rodriguez, and there was also quite a bit of other evidence suggesting nobody ever intended to kill Heckel, including Logsdon’s own statements to police. As for Hartman’s alleged hearsay testimony, the State correctly points out that Logsdon only objected when she said that Craig ranted and raved about Rodriguez’ debt. Any error in admitting that statement was harmless in light of Logsdon’s own statements to police about a debt “the girl” owed Craig and multiple, conflicting statements about who owed whom and how much — all of which was presented at trial. Then, regarding Hill’s testimony that Craig said the murder was not Logsdon’s plan and the robbery was supposed to be a nonviolent grab-and-go, the same sort of testimony was admitted through other witnesses who were involved in the planning of the robbery— such as Branton’s testimony that the original plan was nonviolent and involved counterfeit money. Accordingly, we hold the district court did not err in overruling Logsdon’s hearsay objections relating to these three witnesses. This leaves Crothers’ testimony that Craig told him Logsdon was the shooter, Detective Rodriguez’ testimony that Crothers’ repeated what Logsdon had told him, and Detective Harcrow’s testimony that Craig had told him of the rumor that the victim had been shot in the head. The State concedes Detective Rodriguez’ testimony was inadmissible, and this concession carries over to Crothers’ testimony, which Detective Rodriguez was essentially repeating. In light of this concession, we will, without analysis, assume error. However, as to the final claim of hearsay error, the State argues Detective Harcrow’s testimony was not hearsay because the statement was not admitted for the truth of the matter asserted — that is, it was not admitted to prove Heckel had been shot in the head. Rather, the argument goes, it was admitted to explain why detectives began to investigate Craig and his associates. Had the detective simply said that Craig provided information that had not yet been made public, the State’s point would have persuaded us. But the State wanted the jury to understand the truth of the statement — that Heckel had indeed been shot in tire head and Craig knew it. The detail of Craig’s statement and its truth made it more believable that Craig (and, in turn, his associates) were tied to the crime. Although the State proved the nature of Heckel’s injuries in other ways, it still presented,this testimony for the truth of the matter it asserted. The State does not argue this testimony falls under any hearsay exception. This means we either assume or find that the district court erred in overruling Logsdons hearsay objection to Detective Harcrows, Detective Rodriguez’, and Crothers’ statements about comments made by Craig. Before discussing whether these errors resulted in an injustice, we will discuss Logsdon s claim that these errors were also a violation of his constitutional right to confront witnesses. 2.6. Confrontation Clause The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” See Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (applying the Confrontation Clause to state prosecutions). This right is violated if an unavailable declarants testimonial statements are brought into evidence against a person without a prior opportunity to cross-examine that declarant; whether the statements are “testimonial” is the threshold question. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Bennington, 293 Kan. 503, 508, 264 P.3d 440 (2011). Neither party claims Craig was previously available for cross-examination. Thus, if Craig made testimonial out-of-court statements to a witness who then testified about those statements, a fundamental error occurred. We have established four factors to be considered in determining when evidence is testimonial: “(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? (2) Was the statement made to a law enforcement officer or to another government official? (3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to leam what had happened in tire past; and (d) the interview was part of a government investigation?; and (4) was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was tire statement made in response to questions, was the statement recorded, was the déclarant removed from third parties, or was tire interview conducted in a formal setting such as in a governmental building?” State v. Brown, 285 Kan. 261, Syl. ¶ 15, 173 P.3d 612 (2007). See also Crawford, 541 U.S. at 68 (leaving “for another day any effort to spell out a comprehensive definition of ‘testimonial,’” though stating the term at least covers, inter alia, statements made during police interrogations”). None of those four factors apply to Craigs statements to his own friends or acquaintances, including four of the six statements subject to our review — that is, those of Kayla Rodriguez, Hartman, Hill, and Crothers. See Brown, 285 Kan. 261, Syl. ¶ 15. An objective witness would not have reasonably believed the statements would later be available for use in the prosecution of a crime; the statements were not made to a government official; the primary purposes of the conversations were not for proof to be used in prosecuting a crime; and the statements occurred in informal conversations between friends and acquaintances. See, e.g., Crawford, 541 U.S. at 51 (“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”); Crawford, 541 U.S. at 51 (explaining that an “off-hand, overheard remark” might be excluded under hearsay rules but “bears little resemblance to the . . . abuses the Confrontation Clause targeted); Bennington, 293 Kan. at 510, 513 (stating, in the context of domestic violence, that a de-clarants statements to friends and neighbors would be excluded at trial, if at all, by hearsay rules alone, not because they were testimonial); Brown, 285 Kan. at 288 (recognizing “indications that the court intended to exclude private or casual conversations from the definition of testimonial statements”). Furthermore, the United States Supreme Court has stated that among those statements “that by their nature [are] not testimonial [are] for example, business records or statements in furtherance of a conspiracy.” (Emphasis added.) Crawford, 541 U.S. at 56; see also Dutton v. Evans, 400 U.S. 74, 83, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (“We cannot say that the [coconspirator] evi-dentiary rule applied by Georgia violates the [Sixth Amendment to the United States] Constitution merely because it does not exactly coincide with the hearsay exception applicable in the decidedly different context of a federal prosecution for the substantive offense of conspiracy.”); Betancourt, 301 Kan. at 300. In this case, Craig’s statements to Hill and Hartman clearly furthered the alleged conspiracy to rob Kayla Rodriguez and, arguably, so did his statement to Rodriguez. Thus, although Kayla Rodriguez, Hartman, Hill, and Crothers (and Detective Rodriguez by repeating Crothers’ statements) offered hearsay evidence at trial, their testimony did not implicate the Confrontation Clause given that all statements arose in the context of informal conversations among friends and acquaintances. This leaves a possible Confrontation Clause violation in die testimony of Detective Harcrow (about Craigs statement he heard someone had been shot in the head). The State fails to address why this statement by Craig was not testimonial and why the detectives testimony about these statements did not violate the Confrontation Clause — in fact, the State makes no mention of the Confrontation Clause during its discussion of this testimony. At most, the State relies on its argument the statement was not hearsay and that it acted in good faith. Yet, tire Sixth Amendment prohibits testimonial statements without prior opportunity for cross-examination, even if those statements would be admissible under hearsay rules, and there is no good faith exception to Confrontation Clause requirements. See Crawford, 541 U.S. at 55 (holding a prior opportunity to cross-examine was a necessary, not merely sufficient, condition for admitting testimonial statements at the time tire Confrontation Clause was created); Crawford, 541 U.S. at 61 (ruling the Sixth Amendments protections should not be left to "the vagaries of the rules of evidence”). Because Logsdon makes at least a colorable argument that statements to a detective are testimonial and, considering the State’s silence on the matter, we assume, again without analysis, there was a Confrontation Clause error in the admission of Detective Har-crow’s testimony about Craigs statement. See Brown, 285 Kan. 261 Syl. ¶ 15. 2.7. Impact on Logsdons substantial rights Assuming that error occurred in denying Logsdons hearsay objection to tire testimony of Crothers, Detective Rodriguez, and Detective Harcrow regarding Craig’s statements and that Detec tive Harcrows statement also violated Logsdons right to confront a witness, we must next consider whether the district court erred in concluding the trial could proceed without an injustice. In making this assessment, a district court must determine whether the error “affectfed] the outcome of the trial in light of the entire record.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). In Ward, we explained that in considering a motion for mistrial: “[t]he degree of certainty by which the court must be persuaded that the error did not affect the outcome will vary depending on whether the fundamental failure infringes upon a right guaranteed by the United States Constitution. If it does not, the trial court should apply K.S.A. 60-261 and determine if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record. If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, tire trial court should apply the constitutional harmless error analysis defined in Chapman v. California 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), in which case the error may be declared harmless where the party benefitting from the error proves 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., proves there is no reasonable possibility that the error affected the verdict. ... An appellate court reviewing the second step for an injustice will review the entire record and use the same analysis, applying K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman, depending on the nature of the right allegedly affected. (Emphasis added.) Ward, 292 Kan. at 569-70. We also instructed the district courts to consider “whether any damage caused by the error can be or was removed or mitigated by admonition, instruction, or other curative action.” 292 Kan. at 569-70. Generally, we presume juries follow the courts instructions. See State v. Williams, 299 Kan. 509, 560, 324 P.3d 1078 (2014). Here, the district judge instructed the jury to disregard the testimony of Crothers and Detective Rodriguez relating to any of Craigs statements and to disregard the testimony of Detective Harcrow regarding Craigs June 30 statement. On appeal, Logs-don fails to present any reason to suspect this particular jury improperly considered the listed statements despite being instructed not to do so. And our own review of the record leaves us with no reason to suspect the jury disregarded the instruction. The instruction removed any damage caused by admitting the error. Moreover, Crothers5 statements (repeated by Detective Rodriguez) were es sentially cumulative of other evidence about the crime and Logs-don s involvement. And while Craigs statement to Detective Har-crow was particularly incriminating as to Craig, it did not in any way incriminate Logsdon. In light of tírese considerations we are persuaded the State has met its burden under both K.S.A. 60-261 and the constitutional harmless error standard. See Ward, 292 Kan. at 565; see also State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 (2013) (“[W]here both tiie constitutional and nonconstitutional error clearly arise from the veiy same acts and omissions, we will logically begin with our harmlessness analysis of the constitutional error. This is because if we conclude the constitutional error is not harmless and reverse the convictions, there is no point in analyzing whether the State met the lower standard for harmlessness under K.S.A. 60-261.”). Accordingly, we hold the district court did not abuse its discretion in denying Logsdon’s motions for mistrial to the extent the motions were based on a violation of the Sixth Amendment. ISSUE 3: The district cow~t did not err in instructing the jury on aiding and abetting liability. Logsdon next argues the district courts use of an aiding and abetting instruction misled the jury about what was needed to return a guilty verdict for first-degree murder. According to Logs-don, the State’s theory of the case was that Craig drove Logsdon to Heckel’s house and then Logsdon shot her — in other words, the State never pursued an aiding and abetting theory and so an aiding and abetting instruction should not have been issued. Further, Logsdon contends, the aiding and abetting instruction impermis-sibly allowed the jury to find Logsdon guilty of premeditated and felony murder based solely on discussions Logsdon may have had with Craig about a mere plan to rob Kayla Rodriguez. Here, both parties requested the jury be instructed on aiding and abetting liability. Logsdon specifically requested a jury instruction stating that a person who intentionally aids another in committing a crime is criminally responsible for that crime regardless of the extent of his participation. The State requested a similar instruction, and the district court provided the pattern instruction on aiding and abetting. When examining jury instruction issues, we follow a three-step process: ‘“(1) determining whether the appellate court can or should review the issue, i.e. whether there is a lack of appellate jurisdiction or a failure to preserve tire issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.”’ State v. BolzeSann, 302 Kan. 198, 209, 352 P.3d 511 (2015) (quoting State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 [2012]). The “first and third step are interrelated in that whether a party has preserved a jury instruction issue will affect [the court’s] reversibility inquiry at the third step.” BolzeSann, 302 Kan. at 209; see also K.S.A. 2015 Supp. 223414(3) (“No parly may assign as error the giving or failure to given an instruction . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to given an instruction is clearly erroneous.”). Our analysis ends at the first step — if a party has not merely failed to object to a jury instruction but has instead invited error, we will not review the party’s argument regarding that issue on appeal unless the error is structural. See State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014); State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013). We decline to review Logsdon’s argument regarding the aiding and abetting jury instruction because he specifically requested the instruction — thereby inviting any error that occurred. State v. Devine, 291 Kan. 738, 742, 246 P.3d 692 (2001) (explaining a party may not invite error and then complain of the error on appeal). Logsdon does not raise any constitutional argument regarding this instruction, nor does he explain why his explicit request for the aiding and abetting instruction does not preclude our review. See Hargrove, 48 Kan. App. 2d at 531-33. Issue 4: Logsdons hard 50 sentence was imposed in violation of the Constitution. Although we affirm Logsdon s convictions, we must, as he urges, vacate his hard 50 fife sentence. Logsdon was sentenced pursuant to K.S.A. 2012 Supp. 21-6620, which imposed a mandatory 50-year sentence, without the possibility of parole, for a defendant convicted of premeditated first-degree murder if the district court concluded that certain statutory aggravating circumstances were present and were not outweighed by any mitigating circumstances. We have previously held this hard 50 sentencing scheme was unconstitutional under the Sixth Amendment because the factual findings necessary to impose the enhanced minimum sentence were made by a judge by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2160-63, 186 L. Ed. 2d 314 (2013); State v. Warren, 302 Kan. 601, 621-24, 356 P.3d 396 (2015); State v. Soto, 299 Kan. 102, 103-04, 322 P.3d 334 (2014). The State concedes Logsdon s hard 50 life sentence must be vacated and he should be resentenced, which leaves us only to decide how resentencing should be accomplished. We decline the State’s suggestion (which was unaccompanied by any citation to legal authority) to order the preparation of a nunc pro tunc or amended journal entry of sentencing because, in our view, Logsdons sentence accurately reflects the judgment rendered at the time. See State v. Mebane, 278 Kan. 131, 136, 91 P.3d 1175 (2004) (explaining nunc pro tunc orders are appropriate to correct clerical errors arising from oversight or omission); State v. Lyon, 207 Kan. 378, 380, 485 P.2d 332 (1971). We acknowledge the States assertion that it does not wish to pursue a hard 50 fife sentence on remand, but we are not inclined to choose which sentence would be appropriate in its place. Instead, we simply remand for resentencing so as to permit the parties to present their sentencing arguments to the district court. Accordingly, for the foregoing reasons, we affirm Logsdon s convictions but vacate the sentence and remand for resentencing.	[ 16, -22, -35, -66, 25, 32, 58, 120, 32, -31, 37, 115, 45, -61, 1, 105, -77, 125, 85, 105, 87, -77, 39, -31, -74, -77, -39, -46, -78, -54, -67, 93, 76, 112, -62, 85, 102, 10, -25, 80, -114, 5, -71, -63, 64, -48, 48, 47, 70, 15, 33, -98, -21, 42, 26, -61, 73, 44, 74, -73, 80, -111, -85, -113, -49, 20, -93, -122, -98, -125, 48, 36, -104, 57, 8, 104, 115, 20, -122, -44, 111, -119, 45, 102, 98, 1, 56, 77, -88, -127, 47, 126, -123, 39, 24, 81, 65, 13, -106, -33, 126, 52, 15, 126, -25, -60, 120, 109, 5, -33, -12, -77, -53, 124, 22, -8, -21, 1, 64, 97, -34, 98, 92, 71, 120, -33, -114, -106 ]
Knudson, J.: Nelson H. Boykins appeals his conviction for possession of cocaine and the sentence imposed of 74 months’ incarceration. Boykins raises two issues: (1) Did the trial court err in overruling the defendant’s motion to suppress evidence and statements; and (2) is the sentence imposed unconstitutional under Ap prendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)? We conclude Boykins was unreasonably detained by the arresting officer after being lawfully stopped for a traffic infraction. Accordingly, the judgment of the trial court must be reversed and the case remanded for further proceedings. Our decision renders the Apprendi issue moot. Cf. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002) (proof of prior convictions as sentencing enhancements need not be submitted to a jury and proved beyond a reasonable doubt). On December 2, 2002, police officers of the Wichita Police Department were watching a home for suspected drug activity. At about 12:19 p.m., Detective Jason Miller saw a tan-colored Honda' pull up in front of the home and a female passenger get out of the car and go into the home. Before entering the home, Miller saw her remove something from her pants pocket and hand it to the male driver. Detective Miller followed the car, keeping it in his line of vision. Miller observed the car turn without signaling and called Officer Mackey, who was assisting in the surveillance of the home. Officer Mackey stopped the vehicle at about 12:22 p.m. The defendant, Nelson H. Boykins, was the driver. Mackey told Boykins he had been stopped for failure to signal a lane change. Mackey observed Boykins’ “jittery eyes,” shaking hands, and his generally nervous behavior, which included a “shaking” voice. Mackey requested Boykins to step from the car. Mackey asked Boykins if he had a weapon, to which he responded negatively. Mackey asked if Boykins was in possession of narcotics based upon actions observed at the alleged “narcotics house.” Boykins looked to his left breast shirt pocket, paused, looked back at Mackey, and answered “yes.” Boykins started to reach toward his pocket; Mackey requested Boykins lower his hands. Mackey found a whitish-colored stone in a baggie in Boy-kins’ front left shirt pocket. Boykins was placed into custody at about 12:26 p.m. Two more plastic bags were found in the car upon the inventory search. The contents of all three bags were later proven to be cocaine. Boykins was charged with possession of cocaine. He subsequently filed a motion to suppress evidence and statements, alleging unreasonable detention under the Fourth Amendment to the United States Constitution. After hearing the evidence presented at the suppression hearing, the trial court concluded the officers did have reasonable suspicion to investigate a possible drug violation and denied Boykins' motion to suppress. A bench trial was held based upon stipulated facts with the suppression issue preserved. The court found Boykins guilty of possession of cocaine after a prior conviction, pursuant to K.S.A. 65-4160(b). Boykins was sentenced to 74 months’ imprisonment. His appeal is timely. When reviewing a motion to suppress evidence, the appellate court determines whether die factual underpinnings of the trial court’s decision are supported by a substantial competent evidence standard. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply ade novo standard of review. The appellate court does not reweigh the evidence. State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003). The State concedes Boykins’ car was not stopped for suspicion of a drug crime. The sole reason for the stop was the failure'to signal a lane change. A traffic stop is a seizure under the Fourth Amendment. See State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998). The scope and duration of such a seizure must be tied to the traffic stop. 263 Kan. at 733. If the scope of questioning goes beyond that necessary to reasonably effectuate the reason for the stop, the Fourth Amendment requires reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime. 263 Kan. at 733-34. In this appeal, Boykins argues his Fourth Amendment rights were violated when Mackey detained him for questioning about possession of narcotics. The State concedes the questioning of Boy-kins and the subsequent discovery of cocaine exceeded the scope and duration of the traffic stop. The State argues Officer Mackey had a reasonable and articulable suspicion that Boykins was engaging in illegal drug activity based upon (a) Detective Miller’s observations at the suspected drug house and (b) Boykins’ high state of nervousness. “What is reasonable is based on tire totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993). “A person’s mere propinquity to others independently suspected of criminal activity does not, without more, authorize a Terry stop unless the officer has reasonable suspicion directed specifically at that person.” State v. Morris, 276 Kan. 11, 25, 72 P.3d 570 (2003). The State concedes what it must: Boykins’ proximity to the location where drug activity was suspected and a female passenger handing him an unidentified object does not provoke reasonable suspicion of criminal activity. There is no evidence in the record that the female passenger was involved in the trafficking of drugs. There is no evidence as to the size or shape of the object she handed Boykins before entering the house. The female passenger handed Boykins the object before entering the house. There is no showing of the relationship between Boykins and the passenger. Here, we are one step removed from the factual circumstance in Morris. Boykins’ “mere propinquity” to the unidentified female passenger who entered a home under suspicion for drug activity. There is no showing the female passenger was a suspect in any drug activity. In United States v. McRae, 81 F.3d 1528, 1534 n.4 (10th Cir. 1996), the court stated: “We have held that nervousness alone is not sufficient to justify further detention; however, in combination with other suspicious circumstances, it might contribute to a finding of articulable suspicion. Cf. United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir. 1994) (While nervousness may also appear as a factor in many traffic stop cases, we have never held that by itself it creates a reasonable suspicion of criminal activity.’).” In United States v. Hall, 978 F.2d 616, 621 n.4 (10th Cir. 1992), not a traffic stop case, the court stated succinctly why nervous behavior is of questionable value in assessing reasonable suspicion of criminal activity: “ ‘In all search and seizure cases of the type here concerned, the Government argues that a defendant’s nervousness, either alone or in conjunction with other factors, supports the contested search or seizure, This repetitive assertion by the Government in all cases of this land must be treated with caution. It is common knowledge that most citizens, . . . whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness.’ United State v. Millan-Diaz, 975 P.2d 720, 722 (10th Cir. 1992).” In DeMarco, the Kansas Supreme Court addressed the defendants’ argument that a stop exceeded what was reasonable after their car was stopped for making a lane change without signaling. The arresting officer, Trooper Michael Weigel, testified the scope and duration of the stop changed after he noted the defendant DeMarco’s nervousness during routine questioning. In summarizing Weigel’s testimony on this point, the court stated: “Weigel said that he usually bases reasonable suspicion on three to five indicators. At the preliminaiy hearing, Weigel testified that DeMarco’s nervousness was the ‘number one’ factor forming the basis of his reasonable suspicion. Weigel’s experience was that people are nervous when he first stops them, but as he talks to them, nervousness subsides. According to Weigel, DeMarco’s nervousness escalated. He was fidgety, would not sit still, and could not come out with a specific answer about what he was doing. Based on Weigel’s personal experience, persistent or escalating nervousness is an indicator that the person might be involved in illegal activity.” 263 Kan. at 735. In affirming the suppression order, the court held that DeMarco’s nervousness alone did not provide sufficient reasonable suspicion of illegal activity. 263 Kan. at 738. We conclude, under the reasoning and holding in DeMarco, Boykins’ nervousness considered in isolation did not provide reasonable suspicion of criminal activity warranting extension of the duration of the traffic stop. Thus, we come to the ultimate legal question to be answered: Does “mere propinquity” and a high state of nervousness by Boy-kins when pulled over for a traffic violation, provide reasonable suspicion of criminal activity? Under the undisputed facts of this case, we answer “no.” This is not a case where two subjective observations can be added together to make an objective observation that will pass muster under the Fourth Amendment. The record is devoid of any evidence that Detective Miller saw Boykins do anything that was suspicious. There is no evidence regarding the activities of the female passenger or her relationship with Boykins. There is no evidence Boykins was acquainted with anyone in the house. His conduct was certainly lawful. Adding lawful conduct under no suspicious circumstances together with his nervousness at the traffic stop is not an articulation of reasonable suspicion of criminal activity, it only produces a subjective hunch that may or may not ultimately prove correct. We conclude Boykins’ rights under the Fourth Amendment were violated as a matter of law, and the remaining evidence, if any, is insufficient to support the underlying conviction. Accordingly, Boykins’ conviction is reversed, and his sentence is to be vacated. Our decision on the search and seizure issue renders moot the Apprendi sentencing issue. Reversed and remanded.	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The opinion of the court was delivered by Stegall, J.: Henry Petersen-Beard challenges his sentence to lifetime postrelease registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard’s argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. 283, 371 P.3d 900 (2016), State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016), and Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016). Factual and Procedural Background Petersen-Beard pled guilty to and was convicted of one count of rape for having sexual intercourse with a 13-year-old girl when he was 19 years old. Prior to sentencing, he filed motions asking the district court to depart from the presumptive guidelines sentence and to declare KORAs requirement of lifetime registration unconstitutional under § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. The district court granted Petersen-Beard’s motion for a downward durational departure but denied his request to find KORAs lifetime registration requirements unconstitutional. As such, the district court sentenced Petersen-Beard to 78 months’ imprisonment with lifetime postrelease supervision and lifetime registration as a sex offender — the lowest sentence permitted by law. Petersen-Beard appealed the district court’s ruling to the Court of Appeals but did not prevail. State v. Petersen-Beard, No. 108,061, 2013 WL 4046444 (Kan. App. 2013) (unpublished opinion). Petersen-Beard now brings his appeal to this court reprising the arguments he made below that the requirement in Kansas law of lifetime registration as a sex offender is unconstitutional. We granted Petersen-Beard’s petition for review pursuant to K.S.A. 20-3018(b), exercise jurisdiction pursuant to K.S.A. 60-2101(b), and affirm. Analysis Standard of Review This appeal requires us to decide whether KORAs mandatoiy lifetime sex offender registration as set forth in K.S.A. 22-4901 et seq., runs afoul of either the Eighth Amendment’s prohibition against “cruel and unusual punishments” or § 9’s prohibition against “cruel or unusual punishment.” The constitutionality of a statute is a question of law over which this court exercises plenary review. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012). “We presume statutes are constitutional and must resolve all doubts in favor of a statutes validity.” State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). “It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.” State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008). Typically, challenges arising under either the Eighth Amendment or § 9, or both, attack criminal sanctions against persons convicted of crimes as being cruel and/or unusual. Such is the case with Petersen-Beards argument here. However, as the State points out, there remains a threshold question as to whether the challenged sanction is punishment at all for purposes of eidrer the Eighth Amendment or § 9, or is rather a civil and nonpunitive sanction. Here, the State claims that KORAs requirement of lifetime sex offender registration in Petersen-Beard’s case is not punishment at all and is therefore not subject to our normal cruel and unusual analysis. For the reasons set forth below, we agree. KOBA’s lifetime sex offender registration requirements are not punishment for purposes of applying the United States Constitution. In Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the United States Supreme Court set out the following framework for analyzing whether a legislature s statutory scheme is punitive: “We must ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘ “so punitive either in purpose or effect as to negate [the State’s] intention” to deem it “civil.”’ Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we ‘ordinarily defer to the legislature’s stated intent,’ Hendricks, supra, at 361, ‘“only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty’ Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249, [100 S. Ct. at 2641]); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984).” This framework is often referred to as the “intent-effects” test. Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001). In Smith v. Doe, the Supreme Court reasoned that a “conclusion that the legislature intended to punish” would resolve the question of the punitive nature of the statutory scheme “without further inquiry into its effects.” 538 U.S. at 92-93. Applying the intent-effects test to KORA’s lifetime registration provisions, we have held today in Thompson that our legislature intended those provisions of KORA to be a nonpunitive and civil regulatory scheme rather than punishment. See Doe v. Thompson, 304 Kan. at 309-17, (citing State v. Myers, 260 Kan. 669, 923 P.3d 1024 [1996] [lifetime postrelease registration under Kansas Sex Offender Registration Act was nonpunitive in nature], cert. denied 521 U.S. 1118 [1997]). We agree and do not disturb that aspect of Thompson or its companion cases. See State v. Redmond, 304 Kan. at 287; State v. Buser, 304 Kan. at 185. Because the legislature did not intend for KORA’s lifetime sex offender registration scheme to be punishment, we must next turn to the effect of those provisions to determine whether, by “ ‘ “the clearest proof,””’ those effects “‘override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’” Smith, 538 U.S. at 92. The Supreme Court in Smith utilized the seven factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), to decide whether the effects of the legislative enactment negated and overrode the legislature s intent to establish a civil regulatory scheme. Smith, 538 U.S. at 97. The Mendoza-Martinez factors are: “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether die behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally he connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned ....” Mendoza-Martinez, 372 U.S. at 168-69. While in Smith, the Mendoza-Martinez factors were applied to determine whether a lifetime registration scheme was punishment for ex post facto purposes rather than for purposes of the Eighth Amendment, there exists no analytical distinction between or among the different constitutional contexts in which the question of punishment versus a civil regulatory scheme can arise. “The common inquiry across the Court’s Eighth Amendment, ex post facto, and double jeopardy jurisprudence is determining whether the government’s sanction is punitive in nature and intended to serve as punishment.” Hinds v. Lynch, 790 F.3d 259, 264 n.5 (1st Cir. 2015) (citing Mendoza-Martinez); see also United States v. Under Seal, 709 F.3d 257, 263-64 (4th Cir. 2013) (using Mendoza-Martinez factors to determine federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. (2012), is nonpunitive for purposes of the Eighth Amendment); Myrie v. Commissioner, N.J. Dept. of Corrections, 267 F.3d 251, 262 (3d Cir. 2001) (applying Mendoza-Martinez factors to an Eighth Amendment “Excessive Fines” Clause challenge); Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir. 1999) (using Mendoza-Martinez factors to determine Tennessee’s Sex Offender Registration and Monitoring Act was nonpunitive under the Eighth Amendment); Hare v. City of Corinth, MS, 74 F.3d 633, 651-52 (5th Cir. 1996) (Dennis, J., concurring) (using Mendoza-Martinez factors to evaluate whether a pretrial detainee was punished under the Eighth Amendment); People v. Adams, 144 Ill. 2d 381, 388, 581 N.E.2d 637 (1991) (court would have used Mendoza-Martinez factors to evaluate Eighth Amendment claim if conclusive evidence of legislative intent was unavailable); In re Justin B., 405 S.C. 391, 404, 747 S.E.2d 774 (2013) (using Mendoza-Martinez to evaluate sex offender registration under the Eighth Amendment). Given this, if KORA’s fifetime sex offender registration requirement is punishment for either ex post facto or double jeopardy purposes, it must necessarily also be punishment for Eighth Amendment purposes. The reverse would likewise be true. Thus, while the question of whether KORA is punishment arises here in the context of tire Eighth Amendment, we must necessarily address our decisions, issued today, in Redmond, Buser, and Thompson. In Redmond, Buser, and Thompson, we held that the identical statu-toiy provisions we consider here are, in fact, punishment for ex post facto purposes. Redmond, 304 Kan. at 289-90; Buser, 304 Kan. at 189-90; Thompson, 304 Kan. at 328. If we were to follow those holdings, we would conclude that KORAs lifetime sex offender registration requirement is punishment for Eighth Amendment purposes and we would proceed with a cruel and unusual analysis pursuant to established precedent. However, this court is persuaded that the holding of Thompson, Buser, and Redmond that KORA constitutes punishment is incorrect. We are instead convinced by the dissent in Thompson that a faithful application of federal precedents requires us to find that the provisions of KORA at issue here are not punitive for purposes of applying our federal Constitution. We therefore overrule the contrary holdings of Thompson, Buser, and Redmond. Because we are persuaded by the Thompson dissent on this question, we take the unusual step of quoting liberally from that opinion and adopting its reasoning in toto: “Federal appellate courts have unanimously held retroactive application of the federal offender registration requirements found in SORNA does not violate the Ex Post Facto Clause. United States v. Brunner, 726 F.3d 299, 303 (2d Cir. 2013); United States v. Parks, 698 F.3d 1, 5-6 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Elkins, 683 F.3d 1039, 1045 (9th Cir. 2012); United States v. Leach, 639 F.3d 769, 773 (7th Cir. 2011); United States v. W.B.H., 664 F.3d 848, 860 (11th Cir. 2011); United States v. Shenandoah, 595 F.3d 151 (3d Cir.), cert. denied 560 U.S. 974 (2010), abrogated on other grounds by Reynolds v. United States, 565 U.S. 432, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); United States v. Gould, 568 F.3d 459, 466 (4th Cir. 2009), cert. denied 559 U.S. 974 (2010); Young, 585 F.3d at 206 (noting that Young made no “effort to prove that the effect of SORNA is so punitive as to make it not a civil scheme, and any attempt to do so would have been futile”); United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008), cert. denied 556 U.S. 1258 (2009), abrogated on other grounds by Reynolds, 132 S. Ct. 975 (2012); United States v. Hinkley, 550 F.3d 926, 937-38 (10th Cir. 2008), abrogated on other grounds by Reynolds v. United States, 565 U.S. 432, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); see also United States v. Under Seal, 709 F.3d 257, 265 (4th Cir. 2013) (applying Mendoza-Martinez factors to hold SORNA was not cruel and unusual punishment as applied to a juvenile); United States v. Stacey, 570 Fed. Appx. 213, 216 (3d Cir. 2014) (holding ex post facto challenge to conviction for failing to register under SORNA foreclosed by Shenandoah); United States v. Sampsell, 541 Fed. Appx. 258, 260 (4th Cir. 2013) (holding ex post facto challenge to SORNA foreclosed by Gould). “In addition, federal circuit courts have upheld state sex offender registration laws against federal ex post facto challenges, even when those state laws contained provisions more expansive in scope and impact than either SORNA or the Alaska provisions addressed in Smith. See Litmon v. Harris, 768 F.3d 1237, 1242-43 (9th Cir. 2014) (upholding California requirement that offenders register in-person every 90 days); American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1051, 1058 (9th Cir. 2012) (upholding Nevada law expanding category of individuals who must register, increasing time period offenders were subject to registration, adding in-person registration requirements, and expanding law enforcement obligations to notify specified entities that an offender resided nearby); Doe v. Bredesen, 507 F.3d 998, 1000 (6th Cir. 2007) (upholding Tennessee law requiring, among other things, extended lifetime registration and satellite-based monitoring with wearable GPS device); Hatton v. Bonner, 356 F.3d 955, 967 (9th Cir. 2004) (upholding California law containing several provisions different from the Alaska statute analyzed in Smith). “The majority disingenuously characterizes this unanimous body of caselaw as just the decisions of‘a number of Federal Circuit Courts of Appeal,’ which it then discounts by noting the obvious, i.e., there are differences between the federal SORNA and our state’s KORA. 304 Kan. at 327-28. And while it is true that none of the statutory schemes upheld by other courts are identical to KORA, there is substantial overlap, and so the rationale from those decisions should apply with equal force here. I would not so quickly disdain this federal caselaw because it compellingly answers the real question presented: Are there convincing reasons to believe the United States Supreme Court would view KORA differently than it viewed die Alaska law in 2003 when it decided Smith? See Litmon, 768 F.3d at 1243 (‘[Tjhere is no reason to believe that the addition of [die 90-day, in-person registration] requirement would have changed the outcome [in Smith].’). If the answer to diat question is no, dien this court must affirm. “[Given diat'tiie legislature did not intend KORA to be punishment], we must decide whether KORA is ‘ “so punitive either in purpose or effect as to negate [the State’s] intention” to deem [KORA] “civil.”’” Smith, 538 U.S. at 92. This is where I depart from the majority’s analysis. “For this second step, we should follow the federal factors laid out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). See Smith, 538 U.S. at 97. Those factors consider die degree to which the regulatory scheme imposes a sanction that: (1) has historically been regarded as punishment; (2) constitutes an affirmative disability or restraint; (3) promotes die traditional aims of punishment; (4) is rationally connected to a nonpunitive purpose; (5) is excessive in relation to die identified nonpunitive purpose; (6) contains a sanction requiring a finding of scienter; and (7) applies the sanction to behavior that is already a,crime. Mendoza-Martinez, 372 U.S. at 168. In Smith, the Court focused on the first five as more relevant in evaluating Alaska’s registration and notification law, concluding the remaining two were of ‘little weight.’ 538 U.S. at 105. I will do the same. “Historical Form of Punishment “The majority holds that the 2011 KORA crosses the line drawn by Smith’ by too closely resembling the shaming punishments from the colonial period. 304 Kan. at 321. KORA does this, according to the majority, by posting the registrant’s information on the Internet, ‘branding’ a registrant’s driver’s license with the letters ‘RO,’ and requiring quarterly registration in each location where an offender works, lives, or attends school. Let’s take each of these in turn. “Posting offender information on the Interriet “As summarized below, there is overwhelming federal authority holding that Internet posting of registrant information is not analogous to historical forms of punishment. The analysis used to reach that conclusion applies in equal force to KORA, regardless of other differences the statutory schemes may have. The majority overreaches by rejecting this caselaw and adopting a contrary view. “In Smith, the United States Supreme Court held that Alaska’s offender registration act could apply retroactively and ‘[t]he fact that Alaska posts the information on the Internet does not alter our conclusion.’ 538 U.S. at 99. The Court held the posting requirement was not akin to historical punishments despite recognizing that it subjects the offender to public shame or humiliation because most of the information related to an already public criminal record and dissemination of it furthers a legitimate governmental objective. 538 U.S. at 99. The Smith Court explained: ‘[T]he stigma of Alaska’s Megan’s Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of winch is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contraiy, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not malee the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.’ 538 U.S. at 98-99. “The Smith Court then added: ‘The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to die extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform die public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.’ 538 U.S. at 99. In so holding, the Court’s analysis recognizes the obvious — posting information on the Internet makes it far more accessible and subjects the offender to increased shame and humiliation. Nevertheless, the Court held that Internet posting did not make Alaska’s statutory scheme punitive. “The majority characterizes the Smith Court’s 2003 analysis of the Internet as ‘antiquated,’ and then concludes: ‘Any suggestion that disseminating sex offender registration [information] on an Internet website reaches no more members of the public and is no more burdensome to the offender than maintaining an archived criminal record simply ignores the reality of today’s world.’ 304 Kan. at 322. “But as seen from its holding, Smith did not base its conclusion on some old-fashioned, dial-up modem/floppy disk notion of the World Wide Web; nor did it consider accessing offender information on the Internet nothing more than a walk to the courthouse to thumb through publicly available paper files. Smith’s rationale withstands the more recent development of a mobile, smartphone Internet. Indeed, these developments can be viewed as furthering the nonpunitive, public safety ends supporting offender registration because, as Smith acknowledged, ‘[widespread public access is necessary for the efficacy of the scheme.’ Smith, 538 U.S. at 99. The majority simply disagrees with the Court’s conclusion but needs a rationale for considering the question further. This becomes overwhelmingly evident when the authority from more recent courts applying Smith is acknowledged. “Consider first the federal notification statute, SORNA. Similar to KORA, tire federal law requires that offender information including the offenders’ names, physical descriptions, photographs, criminal offenses, and criminal histories be made publicly available on the Internet. See 42 U.S.C. §§ 16914, 16918-16920 (2012). Under SORNA, the states and enumerated territories, including the District of Columbia and Puerto Rico, must each maintain websites for tins purpose. See 42 U.S.C. §§ 16911(10); 16918(a) (2012). The federal government, in turn, must maintain a website containing ‘relevant information for each sex offender and other person fisted on a jurisdiction’s Internet site.’ 42 U.S.C. § 16920. Each of these websites must malee the information obtainable ‘by a single query for any given zip code or geographic radius set by the user.’ 42 U.S.C. §§ 16918(a), 16920(b). And among SORNA’s others mandates, an appropriate official must affirmatively distribute notice of an individual’s sex offender status to ‘each school and public housing agency’ in the area where that sex offender resides. 42 U.S.C. § 16921(b)(2) (2012). In short, SORNA goes further than the Alaska scheme at issue in Smith and further than KORA as to affirmative notification of statutorily specified groups. “Nevertheless, all federal circuits addressing whether SORNA’s publication requirements are punitive have followed Smith and held they are not, despite candidly recognizing they can result in greatly increased public shame. See, e.g., Parks, 698 F.3d at 5-6 (noting the disadvantages from the publicity attendant to SORNA’s Internet requirements ‘are obvious’ and refusing to invalidate SORNA due to ‘wide dissemination’ of offender’s information, citing Smith); Hinckley, 550 F.3d at 937-38 (‘SORNA, just as the Smith scheme, merely provides for the “dissemination of accurate information about a criminal record, most of which is already public”’); see also United States v. Talada, 631 F. Supp. 2d 797, 808 (S.D. W. Va. 2009) (citing Smith and upholding SORNA as a valid regulatory program even though it requires widespread Internet dissemination of offenders’ information, a community notification program, and in-person reporting). “Also persuasive is the Ninth Circuit’s 2012 decision upholding retroactive application of a Nevada statute that, among other tilings, not only required Internet publication of registration information, but also active notification to specified groups over and above what was required by SORNA, such as youth and religious organizations. Masto, 670 F.3d at 1051. In rejecting any notion that these features were akin to historical forms of punishment, the Ninth Circuit held: ‘Active dissemination of an individual’s sex offender status does not alter the [Smith] Court’s core reasoning that “stigma . . . results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.” [Citation omitted.] Though “humiliation increases] in proportion to the extent of tlie publicity,” the “purpose and the principal effect of notification are to inform the public for its own safety.” [Citation omitted.]’ 670 F.3d at 1056. “There is also recent state court authority, relying heavily on Smith, that holds posting registered offenders’ information on the Internet is not akin to traditional shaming punishments. See Kammerer v. State, 322 P.3d 827, 834-36 (Wyo. 2014) (‘Although dissemination of information relating to a registrant’s status as a sex offender may have negative consequences for the registrant, information regarding the offense is made public at the time of trial, and its publication under WSORA is merely a necessary consequence of the Act’s intent to protect the public from harm.’); State v. Letalien, 2009 ME 130, ¶ 38, 985 A.2d 4 (2009) (Internet posting of sex offender information is not punitive in purpose or effect, citing Smith; Maine and federal Ex Post Facto Clauses are coextensive); see also Doe I v. Williams, 2013 ME 24, ¶ 35, 61 A.3d 718 (2013) (following Letalien). “I would follow this abundant caselaw and hold that KORA’s Internet posting of information is not akin to historical shaming punishments. And in reaching that conclusion, I would further note the majority’s discussion of the sharing functions available on dre Johnson County Sherriffs website is irrelevant to dre statute’s constitutionality because KORA does not require this capability; and, just as importantly, the majority cites no autirority that would find a federal ex post facto violation because of a nonstatutorily mandated software feature added by a local law enforcement agency. “Regardless, given the overwhelming weight and substance of the caselaw rejecting federal ex post facto challenges based on widespread Internet dissemination of offender registration information, as well as the federal courts’ more recent validations of Smith, I would not consider Smith’s rationale to be ‘antiquated’ or subject to easy dismissal, and I would not weigh this against the statute’s constitutionality. The majority errs in this regard. “ ‘Branding’ a registrant’s driver’s license “Next, the majority declares that KORA ‘mimics [the] shaming of old by branding tire driver’s license of a registrant with tire designation, “RO.” ’ 304 Kan. at 321. The majority is referring to K.S.A. 2011 Supp. 8-243, which provides that an offender’s driver’s license ‘shall be assigned a distinguishing number by the division [of motor vehicles] which will readily indicate to law enforcement officers that such person is a registered offender. The division shall develop a numbering system to implement the provisions of this subsection.’ This requirement, while not technically contained in KORA, differentiates Kansas laws from SORNA, although the statute only requires a distinguishing number and tire ‘RO’ practice is just a decision by a state agency that is not specifically dictated by tire statute. See K.S.A. 8-243(d). “The majority draws support for its view from a divided decision in Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, 305 P.3d 1004 (2013), which considered the Oklahoma Constitution’s Ex Post Facto Clause. See Okla. Const., art. 2, § 15. But I do not find Starkey persuasive for several reasons. “First, although the Oklahoma Supreme Court applied the intent-effects test, that court’s majority suggests they applied a lower standard as to when dre effects of a measure are punitive under the Oklahoma Ex Post Facto Clause by noting that the United States Constitution simply establishes a floor for constitutional rights in Oklahoma. 2013 OK 43, ¶ 45 (‘How we apply the “intent-effects” test is not governed by how the federal courts have independently applied the same test under dre United States Constitution as long as our interpretation is at least as protective as the federal interpretation.’). Second, Oklahoma’s offender registry law imposed harsher restraints on offenders because of residency boundaries (minimum distance from schools, playgrounds, etc.) and a requirement that Oklahoma driver’s licenses and identification cards spell out tire term 'Sex Offender.’ In contrast, KORA contains no residency exclusions and Kansas simply uses as a matter of state agency practice an abbreviation (RO), which applies equally to non-sex-offenders. Finally, tire Starkey court relied upon the totality of the Oklahoma law’s harsher circumstances when determining they weighed in favor of punishment. 2013 OK 43, ¶ 61 (‘[W]e are not making a determination of tire constitutionality of any of these individual registration requirements but for purposes of analyzing the second Mendoza-Martinez factor we find the totality of these requirements weigh in favor of punishment.’). “Offering a different analysis, the Louisiana Supreme Court’s unanimous decision in Smith v. State, 84 So. 3d 487 (La. 2012), reached tire opposite conclusion regarding its driver’s license labeling and is more on point. In so holding, the Louisiana court acknowledged that including the words ‘sex offender’ printed in orange color on an offender’s driver’s license ‘may be remotely similar to historical forms of punishment, such as public humiliation, [but] the immediate need for public protection was a corollary of, rather than an addendum to, the punishment for sex offenders.’ Smith, 84 So. 3d at 496 n.7-8, 498. The court then concluded that the requirement of a notation on an offender’s driver’s license ‘may be harsh, may impact a sex offender’s life in a long-lived and intense manner, and also be quite burdensome to the sex offender, [but] we do not find them to constitute an infringement of die principles of ex post facto.' 84 So. 3d at 499. “Admittedly, the Louisiana court did not articulate whether it was relying on the federal or state constitution for its holding, but this does not appear to malee a difference because that court had previously held Louisiana’s Ex Post Facto Clause offers the same protections because it was patterned after the United States Constitution. See State ex rel. Olvieri v. State, 779 So. 2d 735 (La. 2001). For this reason, I find the Louisiana decision more persuasive than the Oklahoma decision. “Quarterly Registration “Next, the majority labels KORA’s quarterly, in-person registration requirements for each location where the offender works, lives, or attends school as ‘a traditional means of punishment’ by likening the requirement to probation or parole. 304 Kan. at 322. It does so without citation to any authority or explanation as to how quarterly reporting mandates offend federal ex post facto caselaw. Again, a review of the unanimous federal caselaw upholding SORNA is persuasive and leads to a contrary conclusion. “SORNA’s in-person reporting requirements differentiate between types of sex offenses in determining the frequency of in-person reporting. There must be in-person verification ‘not less frequently than’ once a year for Tier I sex offenders, twice a year for Tier II sex offenders, and four times per year for Tier III sex offenders. 42 U.S.C. § 16916 (2012); see 42 U.S.C. § 16911 (definingTiers I, II, and III). In Parks, the First Circuit recently noted SORNA’s in-perSon requirement was ‘surely burdensome for those subject to it,’ but nevertheless concluded this was not punitive, noting: ‘To appear in person to update a registration is doubtless more inconvenient than doing so by telephone, mail or web entry; but it serves the remedial purpose of establishing that the individual is in the vicinity and not in some other jurisdiction where he may not have registered, confirms identity by fingerprints and records the individual’s current appearance. Further, the inconvenience is surely minor compared to the disadvantages of the underlying scheme in its consequences for renting housing, obtaining work and the like — consequences that were part of tire package that Smith itself upheld.’ 698 F.3d at 6. See Doe v. Pataki, 120 F.3d 1263, 1281-82 (2d Cir. 1997); see also Doe v. Cuomo, 755 F.3d 105, 112 (2d Cir. 2014) (approving triennial, in-person reporting as being reasonably related to the nonpunitive, prospective goals of protecting the public and facilitating law enforcement efforts). “Admittedly, KORA’s reporting requirements are more burdensome than those in SORNA because under KORA, all sex offenders are subject to in-person registration four times per year, and drug and violent offenders must report in person a minimum of three times per year. K.S.A. 2011 Supp. 22-4905(b). KORA further requires an offender to report registration changes in person ‘to the ... agency or agencies where last registered.’ (Emphasis added.) K.S.A. 2011 Supp. 22-4905(a), (g). In addition, the definition of ‘reside’ in KORA is broader than the definition in SORNA. Compare K.S.A. 2011 Supp. 22-4902(j) (definition of ‘reside’) with SORNA’s 42 U.S.C. § 16911. Therefore, it is obvious KORA imposes a greater registration burden on the offender than SORNA. But the question is whether the federal courts would view these changes as tipping the balance. I think not. “Consider again as an example Matso in which the Ninth Circuit rejected a federal ex post facto challenge to a Nevada law that essentially mirrored SORNA’s registration requirements, but also expanded the category of individuals required to register, added to- the frequency offenders were subject to registration, and required in-person registration. Matso, 670 F.3d at 1051; see also Litmon, 768 F.3d at 1242-43 (holding California’s 90-day, in-person lifetime registration requirement does not violate federal ex post facto principles); Hatton, 356 F.3d at 965 (no evidence California's registration requirement has an objective to shame, ridicule, or stigmatize sex offenders). These decisions strongly point in a direction that indicates KORA’s reporting requirements do not offend federal ex post facto principles. “Additionally, the majority’s analogy to probation is not persuasive. While probation/parole may have ‘reporting’ in common in the abstract, this is only one aspect of many conditions attached to these punishments. For example, probationers are subject to searches of their persons and property simply on reasonable suspicion of a probation violation or criminal activity and are subject to random drug tests. They may also be required to avoid ‘injurious or vicious habits’ and ‘persons or places of disreputable or harmful character’; permit state agents to visit their homes; remain in Kansas unless given permission to leave; work ‘faithfully at suitable employment’; perform community service; go on house arrest; and even serve time in a county jail. K.S.A. 2011 Supp. 21-6607(b), (c). "In sum, I do not believe the federal courts, more specifically the United States Supreme Court, would hold that this historical-form-of-punishment factor weighs toward an ex post facto violation. “Affirmative Disability or Restraint “The majority focuses next on what it characterizes as the ‘more common restraint on an offender’s freedom of movement’ under KORA, which is the quarterly registration requirement in each applicable jurisdiction and the required $20 registration fee, as well as the KORA’s broader definition of the word ‘resides.’ 304 Kan. at 323. The majority notes the registration costs, depending on circumstances, could be $80 to $240 annually. “But the majority fails to explain how the federal courts would hold that these components of KORA would weigh this factor against the Kansas law. For example, no evidence was presented establishing that the KORA registration costs were a fine instead of a fee. See Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014) (‘The burden of proving that it is a fine is on the plaintiffs ....’). “In Mueller, the Seventh Circuit recently upheld Wisconsin’s annual $100 registration fee against a sex offender who moved out-of-state but was still required to register in Wisconsin. In doing so, tire court noted first that plaintiff had done nothing to get over the first hurdle by presenting evidence regarding the fee versus tire registration program’s cost. 740 F.3d at 1134 (‘[Tjhey cannot get to first base without evidence that it is grossly disproportionate to the annual cost of keeping track of a sex offender registrant — and they have presented no evidence of that either. They haven’t even tried.’). Similarly, Doe has done nothing as to this evidentiary hurdle, yet the majority strikes this factor against KORA even though the burden is on the challenger and the statute is presumed constitutional. “Second, the Seventh Circuit noted the nonpunitive purpose of collecting fees and where the responsibility lies for having to provide a registry, stating: ‘The state provides a service to tire law-abiding public by maintaining a sex offender regstry, but there would be no service and hence no expense were there no sex offenders. As they are responsible for the expense, there is nothing punitive about requiring them to defray it.’ 740 F.3d at 1135. “If it is the potential for a total annual cost of $240 that offends the majority, what is the legal basis for that? The majority leaves this unexplained. “Next, die majority holds that housing and employment problems result from the regstry, which ties back to the widespread dissemination of information on the Internet discussed above, which Smith and tire other federal courts have plainly rejected. But the majority believes KORA suffers an additional evidentiary blow because of direct evidence that Doe actually lost a job and housing opportunities because of the Internet regstry. I disagree this tips the balance when tbe caselaw is considered. “As noted earlier, my review of federal caselaw from Smith on down shows the courts have fully understood that actual consequences result from offender regstration and have not dismissed these consequences simply as conjecture. See, e.g., Smith, 538 U.S. at 99; Parks, 698 F.3d at 6 (‘The prospective disadvantages to Parks from such publicity are obvious.’). Indeed, several courts have approved state laws that imposed actual residential living restrictions on offenders, which are literally off-limits zones disabling offenders from living in close proximity to schools, playgrounds, etc. See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (Iowa’s 2,000-foot buffer zone regulatory, not punitive); Salter v. State, 971 So. 2d 31 (Ala. Civ. App. 2007) (approving 2,000-foot buffer zone); People v. Leroy, 357 Ill. App. 3d 530, 828 N.E.2d 769 (2005) (approving 500-foot buffer zone); State v. Seering, 701 N.W.2d 655 (Iowa 2005) (upholding 2,000-foot buffer zone); see also Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir. 2007)(‘The [Tennessee] Act’s registration, reporting, and surveillance components are not of a type that we have traditionally considered as a punishment, and the district court correctly found that they do not constitute an affirmative disability or restraint in light of the legislature’s intent.’); Standley v. Town of Woodfin, 186 N.C. App. 134, 650 S.E.2d 618 (2007) (upholding ban on entering public park); Doe v. Baker, No. Civ. A. 1:05-CV-2265, 2006 WL 905368 (N.D. Ga. 2006) (unpublished opinion) (upholding 1,000-foot buffer zone). Clearly, such exclusions cause lost opportunities for housing and employment for offenders, yet these prohibitions were upheld as nonpunitive. “I am not persuaded the federal courts would find KORA to impose requirements traditionally considered to be affirmative disabilities or restraints to the point of weighing this factor against constitutionality. “Traditional Aims of Punishment “The third Mendoza-Martinez factor is whether the ‘regulatory scheme . . . promotes the traditional aims of punishment.’ Smith, 538 U.S. at 97. The Court has described those aims as retribution and deterrence. See, e.g., Mendoza-Martinez, 372 U.S. at 168. “The majority’s analysis of this factor is muddled and difficult to unpack. It is unclear to me whether the majority is relying on the articles attached to Doe’s summary judgment motion or its own intuition. As best as I can tell, the majority ultimately ignores the attachments and simply holds that KORA promotes traditional aims of punishment because the legislature increased the reporting term from 10 to 25 years. 304 Kan. at 325. But this conclusion is at odds with the federal caselaw. “But the fact that KORA has a deterrent effect is not conclusive. The Smith Court found that ‘[a]ny number of government programs might deter crime without imposing punishment’ and ‘“[t]o hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’... would severely undermine the Government’s ability to engage in effective regulation.” [Citations omitted.]’ 538 U.S. at 102. The Court also rejected the lower court’s finding that Alaska’s registration obligations were retributive based upon the length of reporting differing between individuals convicted of nonaggravated offenses and those ‘convicted of aggravated or multiple offenses.’ 538 U.S. at 102. The Court found the ‘categories . . . and the corresponding length of the reporting requirement are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.’ (Emphasis added.) 538 U.S. at 102. “The Smith Court’s analysis is equally applicable to KORA, though not wholly dispositive because the Court was addressing a 15-year registration requirement and KORA has a 25-year requirement. But SORNA imposes a 25-year registration requirement on Tier II offenders and a lifetime requirement on Tier III offenders, 42 U.S.C. § 16915 (2012), and the federal courts addressing this issue have upheld SORNA based on Smith. “The Eleventh Circuit addressed this registration requirement in W.B.H, and held that SORNA is no different than the Alaska act at issue in Smith. 664 F.3d at 858-59. The W.B.H. court reasoned that SORNA is ‘reasonably related to the danger of recidivism posed by sex offenders.’ 664 F.3d at 858. And the court explained that while SORNA ‘allows the public and law enforcement to determine the general whereabouts of convicted sex offenders,... it does not directly restrict their mobility, their employment, or how they spend their time.’ 664 F.3d at 858. So, the court found that any deterrent effect or purpose of SORNA does not justify a finding that the act’s purpose is punitive. 664 F.3d at 858; see also Under Seal, 709 F.3d at 265 (quoting from Smith to find that SORNA does not promote traditional aims of punishment). “I would find under Smith and the cases interpreting SORNA that the traditional aims of punishment factor weighs in favor of KORA being fairly characterized as nonpunitive. “Rational Connection to Nonpunitive Pukpose “In Smith, the Court identified this as ‘a “most significant” factor in our determination that the statute’s effects are not punitive.’ 538 U.S. at 102 (citing United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L. Ed. 2d 549 [1996]). The Smith Court did not elaborate on what is meant by ‘rational connection to a nonpuntive purpose’ before analyzing the Alaska act under the standard. One commentator has noted that the standard is ‘deferential to the state purpose (much like rational basis review under substantíve due process analysis).’ Hobson, Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?, 40 Ga. L. Rev. 961, 984 (2006). In State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008), this court determined that ‘the registration act was intended to promote public safety and to protect the public from sex offenders, who constitute a class of criminals that is likely to reoffend.’ “The majority concludes that arguably under the current version of KORA, ‘public safety has become a pretext.’ 304 Kan. at 326. The majority finds fault with KORA because it does not distinguish between types of offenders and contains no mechanism for relieving a ‘fully rehabilitated’ offender from its notification burdens. But the Ninth Circuit and others have rejected similar arguments. In Matso, the court held: ‘Plaintiffs argue Smith overstated the risk of sex-offender recidivism. They note that Smith cited several studies on sex offender recidivism. See id. at 104. Plaintiffs then rely on an expert declaration critiquing the methodology of the recidivism studies in Smith. The district court did not make any factual finding regarding the risk of sex offender recidivism. Even had it adopted the declaration’s conclusions as its own, a recalibrated assessment of recidivism risk would not refute the legitimate public safety interest in monitoring sex-offender presence in the community.’ 670 F.3d at 1057. See also Bredesen, 507 F.3d at 1006 (Tennessee Legislature ‘could rationally conclude that sex offenders present an unusually high risk of recidivism, and that stringent registration, reporting, and electronic surveillance requirements can reduce that risk and thereby protect the public’ and concluding that ‘[w]here there is such a rational connection to a nonpunitive purpose, it is not for the courts to second-guess the state legislature’s policy decision’). In addition, the Second Circuit recently held the New York Legislature’s ‘decision to eliminate the possibility of relief from registration for twenty years’ for level one offenders did not render the registration provisions punitive. Cuomo, 755 F.3d at 112. “The majority fails to cite any authority for its analysis of this factor; and the proposition that offender registration schemes are rationally related to the nonpu-nitive purpose of public safety finds overwhelming approval in the federal caselaw. Even Myers, 260 Kan. at 681, appears to assume offender registration is rationally connected to public safety, and the Alaska state case that held post-Smith changes to the Alaska act were an ex post facto violation admits registration, at least as to sex offenders, advances a nonpunitive public safety purpose. See Doe v. State, 189 P.3d 999, 1015-16 (Alaska 2008). “I do not see how the majority can say no public safety purpose is rationally furthered by having sex, drug, and violent offenders register. I would follow tire referenced precedent and hold that KORA has a rational connection to a nonpu-nitive purpose, so this factor does not weight towards punishment. “Excessive in Relation to Regulatory Purpose “In Smith, die Court clarified that ‘[tjhe excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether die legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in fight of the nonpunitive objective.’ 538 U.S. at 105. The Smith Court further noted that ex post facto jurisprudence does not preclude a state from making reasonable categorical judgments that certain crimes should have particular regulatory consequence. “Instead of independently analyzing this factor, the majority merely harkens back to the ground it already plowed, concluding: ‘Our discussion of the other factors has touched upon the excessive nature of KORA.’ 304 Kan. at 327. The majority then specifically cites the fact that the 2011 KORA amendments required more information from die offenders and that the penalty for noncompfiance has increased. 304 Kan. at 327. I would hold that neither of these requirements is excessive given KORA’s public safety purpose based on the authority cited above. “Conclusion “Although the 2011 KORA offender registration scheme imposes a number of burdens on sex offenders, I believe the applicable federal caselaw considering similar burdens under other offender registration schemes compels us to conclude that the 2011 KORA amendments do not violate the United States Constitution’s Ex Post Facto Clause as applied to sex offenders and that the United States Supreme Court would so hold.” Doe v. Thompson, 304 Kan. at 328-46. (Biles, J., concurring in part and dissenting in part). Because we conclude the registration requirements Petersen-Beard complains of are not punishment, his claim that those requirements violate the Eighth Amendment’s prohibition against cruel and unusual punishment cannot survive. KORA’s lifetime sex offender registration requirements are not punishment for purposes of applying the Kansas Constitution. Having held that KORA’s lifetime sex offender registration requirements are not punishment for purposes of applying our federal Constitution, we must next consider whether those same requirements might still be punishment for purposes of applying the Kansas Constitution. We conclude they are not. Section 9 of the Kansas Constitution Bill of Rights provides that “[a]ll persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” “This court . . . can construe [its] state constitutional provisions independent of federal interpretation of corresponding provisions.” State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). While we have the freedom to extend greater protection to Kansas citizens under the Kansas Constitution than exists under comparable provisions of the federal Constitution, we generally have not done so. See State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000); Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996); State v. Morris, 255 Kan. 964, 981, 880 P.2d 1244 (1994); Schultz, 252 Kan. at 826. However, we have shown a willingness to evaluate § 9 under a separate analytical framework. See State v. Mossman, 294 Kan. 901, 924, 281 P.3d 153 (2012) (explaining how proportionality analysis can differ between the two clauses). In this instance, however, we find no textual or historical evidence that the drafters of § 9 intended the meaning of “punishment” to differ from the same word’s meaning as used in the Eighth Amendment to the United States Constitution. The origins of the Eighth Amendment and similar state prohibitions (“punishments clauses”), such as § 9 of the Kansas Bill of Rights, are in the 1689 English Bill of Rights. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277, 285 n.10, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); 3 Story, Commentaries on the Constitution of the United States § 1896 (1833). By 1791, five state constitutions prohibited “cruel or unusual punishments.” See Del. Declaration of Rights, sec. 16 (1776); Md. Declaration of Rights, art. 22 (1776); Mass. Declaration of Rights, art. XXVI (1780); N.C. Declaration of Rights, sec. 10 (1776); N.H. Bill of Rights, art. 33 (1784). Two others prohibited “cruel” punishments. See Pa. Const., art. IX, sec. 13 (1790); S.C. Const., art. IX, sec. 4 (1790). The Eighth Amendment most closely followed the Virginia Declaration of Rights, which prohibited “cruel and unusual” punishment. Va. Declaration of Rights, sec. 9 (1776). The Kansas Bill of Rights, adopted as part of the Wyandotte Constitutional Convention of 1859, was modeled after tire Ohio Bill of Rights, although there were “a few transpositions and changes in phraseology.” Perdue, The Sources of the Constitutions of Kansas, reprinted in 7 Kansas Historical Collections 130-151 (1902). Ohio had created a new constitution in 1851 and its punishments clause read: “All persons shall be bailable by sufficient sureties, except for capital offences where the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.” Ohio Const., art. I, § 9 (1851). Our § 9 tracks Ohio’s § 9, but for one key distinction: “or” vs. “and.” While this textual difference may support a divergent application of § 9 in some cases, it is immaterial to our decision today. The record regarding the adoption of the Kansas Bill of Rights— and § 9 in particular — is scarce. We can find no textual or historical reason to depart from our general practice of giving an identical interpretation to identical language appearing in both the Kansas Constitution and our federal Constitution. There is no evidence that the word “punishment” meant anything different to the drafters of tire Kansas Constitution than it did to the framers of the Bill of Rights. Therefore, we conclude the term punishment has the same meaning in § 9 as it does in the Eighth Amendment. Because we have held that KORAs sex offender registration requirements do not qualify as punishment as that word is used in the Eighth Amendment, we likewise conclude that those requirements are not punishment as that word is used in § 9. 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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Granted. Unpublished	[ -107, 121, -99, 31, -86, 33, 58, -98, -58, -113, 38, 127, -49, -21, 28, -47, -89, 103, 20, 83, -20, 3, 119, -43, -30, 83, -77, 91, 81, 102, -66, 24, 78, -96, -102, 61, -26, -56, -51, -56, -126, 21, -120, -116, -48, 65, 36, 35, -55, 15, 81, 84, 112, -86, 30, 65, -52, 62, -57, -115, 81, -23, -99, 67, -1, -108, -126, 85, 60, -53, -64, -18, -103, 56, 5, -86, 114, -26, -126, 87, 11, -5, -80, 4, 26, 112, -68, -3, -96, -76, 7, -50, -83, -124, 9, 73, 105, 121, 26, 57, -120, 20, 35, 56, 99, -127, 61, 34, 43, -33, 102, -93, 95, 40, 12, 11, -5, 63, 35, 55, -57, 118, -52, -14, 61, -126, -62, 55 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Granted. Unpubhshed	[ -105, -23, -124, 125, -120, 32, 27, -98, 70, -97, 103, 91, 99, 112, -10, 96, -74, -19, -91, 87, -24, 3, 119, -55, -14, 83, -69, 71, 81, -14, -82, 109, 102, -94, -118, -76, 78, -60, -19, -56, -126, 68, 57, -116, -16, 67, 33, 11, 81, 11, 83, 20, 113, -86, 24, 81, -88, 34, -51, -81, 65, -37, -71, 3, -17, -116, -126, 16, 60, -21, -62, 110, -99, 25, 1, -56, 82, -28, -122, 116, 15, -37, -84, -16, 38, 48, -83, -4, -84, -77, 103, -18, -83, -90, -115, 73, 72, 107, -81, 121, -120, 16, 42, -24, -13, -124, 44, 108, 43, -98, -58, -89, 93, 60, 30, 10, -1, 92, -77, 33, -58, 118, -52, 114, -66, -57, -46, -69 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
The opinion of the court was delivered by Nuss, C.J.: After accepting William Shanks guilty pleas, the district court ultimately sentenced him to life with a mandatory minimum of 25 years for first-degree murder, 59 months for aggravated arson, and 32 months for aggravated burglary. It ordered all sentences to run consecutively and imposed $108,427.65 in restitution. Shank argues the district court abused its discretion in ordering his sentences to run consecutively instead of concurrently and in imposing a restitution plan that is “unworkable.” Because there was no abuse of discretion, we affirm. Facts and Procedural History The State charged William Shank with first-degree murder for the premeditated killing of Teri Morris; aggravated arson for setting afire the residence where she was killed; and aggravated burglary for entering the residence with the intent to kill her. Shank pled guilty to all counts. At Shanks plea hearing, the State proffered the evidence it would have presented at trial. In 2012, Shank and Morris lived together in Garden City. Morris later moved to Colby where she eventually gave birth to their daughter, A.J.S. Later that year, Morris and A.J.S. moved into Russell Rodenbeck’s house in Colby. Early one morning in Februaxy 2013, Morris was sleeping in her bed while A.J.S. slept in her crib. While responding to a report of a fire at the house later that morning, firefighters found Morris’ dead body in the living room. An autopsy revealed she was stabbed and slashed 27 times — and suffered blunt force trauma to her head and thermal burns to her naked body. The soot in her mouth and nose indicated she was alive when the fire was set. Several hours later Shank was found with A.J.S. about 100 miles from Colby. He had cuts on his body, Morris’ blood and DNA on his shirt, and Morris’ blood on his right ear. Police found gloves covered with Morris’ and Shank’s blood in a trash bag at Shank’s home as well as Morris’ blood on the steering wheel of Shank’s vehicle and on a lighter inside. Shank’s partial DNA was also found on the door knob of Rodenbeck’s house. His computer revealed internet searches explaining how to pick a lock and break into a residence. At the sentencing hearing, the State requested Shank serve sentences for each count consecutively while Shank requested them to run concurrently. Defense counsel did not object to the proposed plan for restitution of damages. When asked for Shank’s position on the State’s request for reimbursing the state general fund for expenditures made by the Board of Indigent Defense Services (BIDS), counsel responded Shank had no resources or ability to reimburse. The court sentenced Shank to consecutive terms of life with a mandatory minimum of 25 years for first-degree murder, 59 months for aggravated arson, and 32 months for aggravated bur-glaiy. The court also assessed $108,427.65 in restitution, primarily as compensation for Rodenbeck’s fire-damaged house. Jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b)(3), (4) (maximum sentence of life imprisonment imposed for an off-grid crime). More facts will be added as necessary to the analysis. Analysis Issue 1: The district court did not abuse its discretion by ordering Shank to seme consecutive sentences. Shank argues the district court erred in imposing consecutive sentences. The State responds drat this decision was well within the court’s discretion. Standard of review K.S.A. 2015 Supp. 21-6819(b) provides that, absent certain circumstances, “[t]he sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases.” This statute does not fist specific factors for consideration but states the judge “may consider the need to impose an overall sentence that is proportionate to the harm and culpability” associated with the crimes. K.S.A. 2015 Supp. 21-6819(b); State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015). This court s abuse of discretion standard is well established: “‘Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]’ State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Wilson, 301 Kan. at 405. By simply claiming the district court “needlessly” lengthened Shank’s sentence and imposed an “unduly” lengthy sentence, Shank essentially argues no reasonable person would have taken the courts view. The State counters that reasonable persons would agree with the court, e.g., that the crimes were “excessively brutal” and consecutive sentences appropriate. Discussion At the sentencing hearing, the State requested Shank serve time for each crime consecutively “due to tire egregiousness of each act.” In support, it pointed to the vulnerability of the victim at the time of the aggravated burglary — i.e., Morris was sleeping naked alone in her house with her child. The State also noted the brutal, cruel, and premeditated nature of the murder and further emphasized that Shank set the fire to hide the crime while Morris was still alive. Shank requested concurrent sentences because he was only 25 years old and had entered into the plea to take responsibility for the crime. He did not make any personal statements at the hearing. In the court s evaluation, it stated that it weighed the statements of counsel, the statements of the victims family and those made on behalf of Shank, and the presentence investigation report. It also considered the case record which revealed Shank broke into the residence where Morris and her daughter were sleeping. He stabbed Morris 27 times and inflicted blunt force trauma to her body. One of those stab wounds punctured her lung and caused her to suffocate on her own blood. After setting tire house on fire while Morris was still alive, Shank left with A.J.S. From this information, the court characterized the crime as excessively brutal. In applying our test, we are unable to conclude that no reasonable person would take this view. See Wilson, 301 Kan. at 406 (citing Ward, 292 Kan. at 550). So the court did not abuse its discretion when it concluded consecutive sentences were proportionate to the harm and culpability associated with Shank’s convictions. See K.S.A. 2015 Supp. 21-6819(b). Issue 2: The district court did not abuse its discretion by ordering Shank to pay restitution. Shank argues the district court erred in imposing restitution. The State counters Shank did not preserve the issue for appeal because he failed to object to the amount of restitution at the sentencing hearing. In the alternative, it contends the court did not abuse its discretion by ordering restitution. Standard of review K.S.A. 2015 Supp. 21-6604(b)(l) provides that the sentencing court “shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” An appellate court’s consideration of a restitution plan can involve three standards of review: “Questions concerning the ‘amount of restitution and die manner in which it is made to die aggrieved party’ are reviewed under an abuse of discretion standard. [Citation omitted.] A district court’s factual findings relating to the causal fink between die crime committed and the victim’s loss will be affirmed if those findings are supported by substantial competent evidence. Finally, appellate courts have unlimited review over legal questions involving the interpretation of the underlying statutes.” State v. King, 288 Kan. 333, 354-55, 204 P.3d 585 (2009) (citing State v. Dexter, 276 Kan. 909, 912-13, 80 P.3d 1125 [2003]). Shank argues the restitution order is unworkable because he cannot pay the restitution as ordered. Accordingly, abuse of discretion is the proper standard. See State v. Goeller, 276 Kan. 578, 581, 77 p.3d 1272 (2003) (setting of amount of restitution is within district judge’s discretion), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). Discussion Under K.S.A. 2015 Supp. 21-6604(b)(l), restitution is the rule and a finding that restitution is unworkable is the exception. State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). When challenging the workability of a restitution order, die defendant carries the burden to come forward with evidence of “compelling circumstances” that render the restitution plan unworkable. 301 Kan. at 840. In King, 288 Kan. at 356, the defendant did not raise at the district court level the issue of unworkabifity of the restitution plan “at all.” We held: “Not only would this lack of objection fail to preserve the issue for appellate review in the normal case, but it also fails to meet his burden of proving unworkability. Thus, the district court did not abuse its discretion when it ordered the restitution in this case.” (Emphasis added.) 288 Kan. at 356. In the instant case, Shanks attorney explicitly stated at the sentencing hearing he and his client did not object to the restitution “as fisted”: “So Your Honor, we are here today. We have had an opportunity to review the restitution. The majority of the restitution, obviously, as the court knows is for — to reimburse the insurance company for die payment to the house. We have no specific way to challenge that. We’ve been given an opportunity to review tíre restitution claims made by the different individuals, and we do not object to those, Your Honor. “So with that, we would ask the Court to make a determination to sentence Bill Shank concurrently with respect to all three of die crimes. “We agree widi the 604 days, as far as die time served, and again, [we] do not have any objection to the restitution as listed, Your Honor.” (Emphasis added.) As with the defendant in King, Shanks overall failure to object to the proposed restitution obviously includes a failure to raise any specific argument about the restitution plans unworkabifity. 288 Kan. at 356. And as in King, this would represent not only a failure to preserve the issue for our review in the normal case but also constitute a failure to meet his burden of proving unworkabifity. Shank contends, however, that defense counsel’s statement about a current lack of assets was the equivalent of objecting to the imposition of the restitution plan as unworkable. But as revealed by the following colloquy between defense counsel and the court, this statement related exclusively to the issue of BIDS reimbursement, which occurred immediately after counsel declared, “[A]nd again, [we] do not have any objection to the restitution as listed, Your Honor.” “The court: Mr. Fairbanks, if I might ask you [for] your position, or Mr. Shank’s position, in regard to tire imposition of an order requiring him to reimburse the state general fund for all expenditures made bij the Board of Indigent Defense Services to provide your services in the matter. “Defense counsel: Well, Your Honor, Mr. Shank has no resources. There were no resources available initially, Your Honor. I don’t think he has any ability at this time to reimburse them for those services. I think that’s tire, my understanding, the major factor of that to look at, Your Honor. “If and when he was ever granted parole, he has restitution to make, he has no assets, Your Honor. None. The only asset he had was his car, and obviously that has been currently still, I think, in control of the State. So that would be the position we’d take, Your Honor.” (Emphasis added.) Like the King court, we conclude that here “the district court did not abuse its discretion when it ordered the restitution.” 288 Kan. at 356. Simply put, the responsibility for challenging the workability of a restitution plan lies with the defendant, not the court. 288 Kan. at 356-57 (rejecting argument the district court has independent obligation to make findings on record regarding plans workability, and contrasting language in restitution statute with language in BIDS reimbursement statute, K.S.A. 22-4513, at issue in State v. Robinson, 281 Kan. 538, 132 P.3d 934 [2006]). And the defendant — not the court — carries the burden to come forward with evidence of compelling circumstances that render the restitution plan unworkable. Alcala, 301 Kan. at 840. Despite these burdens, Shank did not challenge the restitution plan, much less provide any compelling circumstances to support such a challenge. Even giving Shank the benefit of any possible doubt about his counsels statements at sentencing, i.e., that in addition to having no current assets, he will not have the ability to pay restitution in the future, these statements do not support an abuse of judicial discretion. Our decision in Alcala, 301 Kan. 832, is instructive. In Alcala, the defendant argued his restitution plan was unworkable in part because of his limited earning potential during his lengthy incarceration: life imprisonment without parole for 25 years. We noted, however, that restitution is typically not due during incarceration so “imprisonment alone is not sufficient to render restitution unworkable.” 301 Kan. at 840. We concluded that, because Alcala had failed to present evidence of his inability to pay restitution after his possible parole, he had failed to meet his burden to show tire restitution plan was unworkable. 301 Kan. at 840 (citing State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 [2014]). As in Alcala, Shank failed to present evidence of his inability to pay restitution in the future. Accordingly, he could not establish this as a basis to demonstrate the restitution plan is unworkable. So the district court did not abuse its discretion in ordering restitution. See Alcala, 301 Kan. at 840. For these reasons, the decision of the district court is affirmed.	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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
MAUGHMER, Commissioner. Defendant was operating and plaintiff was riding in a boat on a lake in the State of Oklahoma when the craft struck an object allegedly resulting in personal injuries to plaintiff, who brought this suit for damages. Defendant filed a motion to dismiss based upon the assertion that the cause of action was barred under the applicable statutes of limitation. The trial court sustained the motion, dismissed the petition and plaintiff has appealed. The accident occurred on May 15, 1964. The plaintiff, Donald W. Strickland, was at the time a resident of the State of Missouri and the defendant, Roy Kay, was a resident of Arkansas. On December 13, 1966 (approximately two years and seven months after the occurrence of the casualty) plaintiff filed the instant suit in the Circuit Court of Jackson County, Missouri. With respect to the limitation question, plaintiff therein alleged: (1) that the parties were residents of Missouri and Arkansas; (2) that defendant had absented himself from the State of Oklahoma and had not been in that state since the accident for a period of two> years, and that service on defendant by notice under the Oklahoma statutes could not be had because the watercraft involved had not been removed from Oklahoma. Defendant moved to dismiss the petition on the ground the action was barred under the statutes of limitation. The parties additionally filed affidavits as to the situs of the watercraft from and since the date of the accident. Defendant averred it had been removed from Oklahoma to Siloam Springs, Arkansas, within one week after the accident and had remained there ever since. Plaintiff declared that defendant had admitted to him the boat had been “traded in” and disposed of in Oklahoma. One of the positions taken by plaintiff on appeal is that these diverse affidavits, as to a factual matter, present a jury question and preclude the propriety of a judgment by the court alone. In our opinion the affidavits do present a fact issue and if a determination of that question were vital as to application of the statutes of limitation we believe it should have been determined by a jury. However, we do not believe such a question is vital. In our opinion the case can be resolved without further reference to this particular facet of the controversy. Section 516.180, V.A.M.S. declares that whenever a cause of action is fully barred by the laws of the state where it originated said bar shall be a complete defense to any action thereon, brought in any of the courts of Missouri. Section 95, Title 12, Limitations of Actions, Oklahoma Statutes, provides: “Civil actions * * * can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: “Third: Within two (2) years: * * an action for injury to the rights of another, not arising on contract, * * * Since the present action was commenced more than thirty months after it accrued, it is evident that the cause is barred unless the running of the statute was tolled for a sufficient time to bring its date of commencement within the limitation period of two years. The parties in their briefs and oral arguments agree that this is so. We must, therefore, determine if there was such tolling. This determination will be decisive of the controversy. We set out Section 98, Title 12, from the Limitations of Actions Chapter of the Oklahoma Statutes: “Absence or flight of defendant. — If, when a cause of action accrues against a person, he be out of the State, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the State, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the State, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. R.L.1910, Sec. 4660”. Under its statutory law on the general subject “Public Health and Safety”, Oklahoma has a chapter (22) devoted to “Motorboats and Vessels”. We incorporate Section 816, Title 63 of that chapter herein: “Service of notice upon nonresident owners — Venue. In an action in any court of this State, arising out of injury to person or property caused by any watercraft while operating in the waters of this State, including the Oklahoma portion of boundary rivers, or moored in such waters or against shore land in this State, when the owner or operator is a nonresident of this State or a corporation not incorporated under the laws of this State, service of the original notice may be made upon such nonresident owner or operator or upon such foreign corporation in the manner provided in Title 47, Sections 393, 394 and 398, Annotated Statutes of Oklahoma 1951. The venue of such an action shall be the county in which the damage occurred and the presence of such watercraft and the doing of said damage within the territory comprising the State of Oklahoma, together with the subsequent removal of said watercraft from the jurisdiction of the State of Oklahoma, shall constitute a waiver by the owner or operator thereof of any objection to the venue of such an action commenced in a proper court of this State. Laws 1959, p. 389, § 16”. Title 47, Sections 393, 394 and 398, referred to in the just quoted statute and providing the method of service in suits for damages by watercraft, prescribes the same procedure as that provided for service upon nonresident automobile operators; that is, upon the Secretary of State, with service of summons or notice by registered mail to the operator. Of course, before enactment of these so-called “Long Arm Statutes”, if any nonresident automobile or watercraft operator was involved in an accident, committing a tort or inflicting damage, and removed himself and his vehicle from the state before service of summons of a petition for damages, he was immune to suit in that jurisdiction. It is the theory of this new legislation that by entering into the foreign state and using its highways or waters, the nonresident operator constitutes the Secretary of State as his agent to be served with summons in a suit for torts there committed. These statutes have been generally adopted and universally upheld as constitutional and lawful in America. One of the plaintiff’s contentions is that the watercraft involved in this particular accident was not removed from Oklahoma and that, therefore, under Section 816, Title 63, supra, plaintiff could not maintain his suit in Oklahoma even though he could have maintained it had the boat been removed from that state and, therefore, the statute was tolled. We see no reason to discuss what rights to sue, if any, by attachment or otherwise, the actual presence of the boat or automobile might give a plaintiff. The reference in the statute to the boat being in or being taken out of the state refers to venue alone. It is our opinion that a nonresident operator of a motorboat or automobile could not by the expedient of leaving the instrument by which the tort was inflicted in the State of Oklahoma, thereby eliminate the possibility of his being sued in that state under the “Long Arm Statute.” Another of appellant’s contentions is that the tolling limitations statute applied to corporations, but not to individuals, and was for the benefit of citizens, but not for the benefit of nonresidents. He relies upon Quinette v. Pullman Co. et al., 233 F. 980 (C.C.A.8), a decision mainly to the effect that Oklahoma adopted and followed the Kansas law, which jurisdiction holds that the statute is for the benefit of residents and further that the statute is tolled as to individuals in nonresidence. He invites our attention to the fact that Walker v. L. E. Meyers Const. Co., 175 Okl. 548, 53 P.2d 547, involved a corporation rather than an individual. As plaintiff says, statutes of limitations are to be strictly construed and not enlarged upon by the courts. Woodruff v. Shores, 354 Mo. 742, 190 S.W.2d 994, 996; Hicks v. Hamilton (Okl.Sup.), 283 P.2d 1115. After the Quinette case (decided in 1916) which was based in part upon the opinion in Hale v. St. Louis & S.F.R.R. Co., 39 Okl. 192, 134 P. 949 (1913), the Supreme Court of Oklahoma took up the question again in St. Louis & S.F.R.R. Co. v. Taliaferro, 67 Okl. 37, 168 P. 788, 789 (1917), and expressly overruled the Hale case. The syllabus contains the following expression as to the rule: “The theory of the statute of limitations is that it operates to bar all actions, except as against persons and corporations upon whom notice of the action cannot be served because of their being out of the state. If such notice can be served during the whole of the prescribed period, and a personal judgment obtained which can be enforced in the mode provided by law, then such person or corporation is not ‘out of the state,’ * * * ”, within the meaning of the limitation statute. It is true that the Taliaferro case concerned only a corporation. Moore v. Dunham, 240 F.2d 198, 201 (C.C.A. 10) was an action for wrongful death under the Nonresident Motor Act brought in the Federal District Court of Oklahoma. The court said: “Oklahoma courts have not construed Section 98 in connection with the provisions for service of process under the Nonresident Motorist Act. But the majority, and we think the better reasoned view, holds that provisions for substituted service of process upon a state official arising out of motor accidents within the state has the effect of nullifying any statute suspending the period of limitations. See Annotations 17 A.L.R.2d 516; 119 A.L.R. 859; 94 A.L.R. 485; Kokenge v. Holthaus, [243] Iowa [571], 52 N.W.2d 711; Nelson v. Richardson, 295 Ill.App. 504, 15 N.E.2d 17. Such view is said to be consistent with the purpose of substituted service, i. e. expeditious adjudication of the rights of the parties; that by creating substituted service, the legislature obviously intended to provide an exception to the suspension provisions; and that a contrary conclusion would permit a plaintiff to defer the institution of his action indefinitely to the prejudice of the defendant. See 119 A.L.R. at page 860. “While there are contrary views, see Bode v. Flynn, 213 Wis. 509, 252 N.W. 284, 94 A.L.R. 480; Maguire v. Yellow Taxi Corp., 253 App.Div. 249, 1 N.Y.S.2d 749, we apprehend that the Oklahoma courts will follow the majority”. (Italics added.) In Burnett v. Swenson, 95 F.Supp. 524 (W.D.Okl.) a Kansas resident was allowed to sue a Minnesota resident in Oklahoma for injuries sustained in an automobile accident which occurred in Oklahoma. We note that many of the opinions cited by the contestants here were written before enactment of the Nonresident Acts respecting either automobiles or watercraft. Stripped to the bare essentials we believe the decisive question is: Could plaintiff, during the two year limitations period ensuing immediately after the accident which occurred on May 15, 1964, have sued defendant in Oklahoma in the county where the casualty occurred and would service on the Secretary of State, with notice as provided under the Nonresident Act, have been legally sufficient upon which to base a personal judgment against defendant? If plaintiff could have done so and if the service and notice were adequate for such a personal judgment, then the statute of limitations was not tolled because defendant was not “out of the state” insofar as lawful filing of suit and service of process against him was concerned. Appellant leans heavily upon the opinion of the New York Surrogate Court (In re Davis’ Will, 127 N.Y.S.2d 88) which held the Oklahoma statute was tolled on a claim for services when the creditor was physically out of the state even though there was a provision for substituted service. The New York court concluded that the Taliaferro case applied only to foreign corporations and relied mainly in determining the law of Oklahoma upon the testimony of two experts — presumably lawyers. We are unwilling to accept the conclusion of a New York Surrogate Court in a suit for services as entitled to greater weight than are the decisions, (1) of the Oklahoma Supreme Court in Taliaferro, supra, and (2) of the Circuit Court of Appeals, Tenth Circuit in Moore v. Dunham, supra. Moreover, we believe the weight of authority, including Missouri, supports the latter interpretation. We believe the statutes are plain and have been universally approved as to automobiles. The phraseology is the same respecting watercraft. We conclude that the interpretation would be the same. It follows that the court did not commit error when it sustained defendant’s motion to dismiss. The judgment for defendant is affirmed. SPERRY, C., concurs. PER CURIAM. The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court. HOWARD; P. J., CROSS and MORGAN, JJ., and HALL, Special Judge, concur.	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CROSS, Judge. Plaintiff sued to recover $5,000.00 damages for bodily injuries allegedly sustained in a collision between automobiles driven by the respective parties. Upon trial to a jury plaintiff’s case was submitted solely under the rear end doctrine. The jury returned a unanimous verdict in favor of defendant, upon which judgment was duly entered. Thereafter, and more than thirty days after filing date, plaintiff’s motion for a new trial was sustained on the ground the trial court erred in giving defendant’s Instruction No. 4 submitting the issue of plaintiff’s contributory negligence. Defendant has appealed. In a single point defendant contends that the trial court erred in granting a new trial on the ground it had erred in giving Instruction No. 4 because: (a) there was ample substantial evidence from which the jury could find that plaintiff was contribu-torily negligent in either of the two respects submitted therein; and (b) the instruction correctly declared the law on the submitted grounds as prescribed by MAI. The text of Instruction No. 4 reads as follows: “Your verdict must be for the defendant whether or not defendant was negligent if you believe: First, plaintiff either: failed to keep a careful lookout, or suddenly turned to the left at a time when such movement could not be made with reasonable safety, and Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained. (M.A.I. 28.01, M.A.I. 17.05, M.A.I. 17.06 (Modified)” Plaintiff has filed a motion to dismiss the appeal on the ground that defend ant has violated Civil Rule 83.05(e), V.A. M.R. in that he has stated his appeal point purely in the abstract without reference to the specific grounds upon which the submission of contributory negligence was predicated or reference to what the “ample substantial evidence” in support thereof might be. The omission of which plaintiff complains is not of sufficient gravity to warrant the drastic action plaintiff requests of us. We deny the motion and proceed with our review of the case. In determining whether Instruction No. 4 was supported by evidence we must consider the evidence in a light most favorable to defendant and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence, and disregard plaintiff’s evidence unless it tends to support the grounds of contributory negligence submitted by the instruction. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656; LaFata v. Busalaki, Mo.Sup., 291 S.W.2d 151; Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775. We shall state the facts accordingly. The collision occurred on February 24, 1965, on the northbound roadway of Van Brunt boulevard in Kansas City. Van Brunt is an expressway at the place of the collision, with two lanes for northbound travel and two lanes for southbound travel, separated by a median strip some 35^10 feet wide. The accident occurred at about 6:15-6:30 A.M. It was then still dark, there was no moon, and there were no street lights in the vicinity, but it was clear and there was no precipitation, fog, mist, snow or rain to obscure visibility. An eight inch snow had fallen during the previous evening and part of the night. The snowplow had been along to clear the course for northbound travel before the accident occurred and had undertaken to clear both of the northbound lanes. In clearing the right hand or outside lane, the plow had encountered a small compact car, a Sunbeam, which had been parked or abandoned on the extreme right portion of the traveled surface. The obstructing vehicle forced the plow to curve out and go around it, as it occupied approximately one-half of the right hand lane — the extreme outer half. The cleared surface was still covered with a skim of snow and was “some” slick and slippery. The accident occurred at a place where the highway gradually curved first toward the east and then in a northerly direction. The automobiles of both plaintiff and defendant got onto Van Brunt at its intersection with Elmwood by making right turns from Elmwood after stopping for traffic signals. When the signals changed, plaintiff’s car moved out first, followed by defendant’s. After the two automobiles got onto Van Brunt, defendant continued to follow plaintiff in the right hand lane, directly behind him, separated by a distance of seven to ten car lengths. Both cars were traveling approximately 15 to 20 miles per hour. After traveling in that manner for approximately a block and a half, defendant then moved into the left lane and increased his speed to approximately 20 to 25 miles per hour. After so traveling another block and a half, defendant had nearly come abreast of plaintiff’s car and was about to pass it. When the front of defendant’s car was about ten feet from the rear of plaintiff’s car, plaintiff suddenly swerved his vehicle to the left to avoid the Sunbeam, and then “tried to cut back” when he saw defendant’s car. These movements developed into a “swing” or skid which carried the vehicle partly into the left lane, and into collision with defendant’s automobile, whereby the right front portion of defendant’s car came in contact with the right rear of plaintiff’s. Defendant explained that “all of a sudden he came around to my lane” and that “after his left rear had got into my lane he started to spin or slide or whatever it was and then, of course, his right rear came onto toy lane just as I was right on him.” The actual impact of the cars occurred in the left lane, and happened before plaintiff’s car had got alongside the Sunbeam. The force of the impact threw plaintiff’s car into the Sunbeam and turned it completely around. It “ended up” headed south “a little bit ahead of the Sunbeam.” Defendant’s car came to rest in a snow bank on the left side of the roadway. Plaintiff testified that he first saw the Sunbeam when his automobile was about 50 feet from it; and that about the same time (when he was 50 feet from the Sunbeam) he swerved to the left to go around it. He stated: “So of course when I saw this little car, I knew that I had to move out to my left to get around it. I put my signal lights on and started to pull out, and I noticed this car in back of me, in my rearview mirror, the lights of it, and I pulled out and was straightened up to go by it — The little Sunbeam.” His car moved about 30 feet from the time he saw the Sunbeam until there was contact with defendant’s car. When that occurred, plaintiff’s car was still about 20 feet (south) from the Sunbeam. The collision took place within one or two seconds after he turned out around the Sunbeam. Plaintiff admitted that at the time of the impact his car was straddling the enter line that separates the two lanes. Before plaintiff made his “swerve out around the Sunbeam” he was aware there was a car coming from the rear. He testified, “I saw lights in my rear view mirror”, that he also had a left outside rear view mirror, and that he could see defendant’s car “coming up” in both mirrors. As to whether defendant was traveling in the left hand or right hand lane immediately prior to the collision plaintiff’s testimony was inconsistent. He testified both ways. At one point he testified that he thought Mr. Hall was in the lane to his left. Later he testified that defendant was in the right hand lane; that he was in “the same lane as I was, behind me”. Plaintiff took the final position in his testimony, (and it is his position in this appeal) that defendant was traveling immediately behind him in the right hand lane at the time he swerved to go around the Sunbeam. Immediately after the accident and upon inquiry by defendant as to what had occurred, plaintiff said “it happened so fast” he didn’t know for sure. He admitted that he saw defendant coming up behind him, and made the statement that “When I was moving over, I saw you and I tried to cut back.” When interviewed by a police officer making a report of the accident plaintiff stated that he was northbound on Van Brunt at 20 to 25 miles per hour and swerved to avoid a number three vehicle and was struck by Mr. Hall’s automobile. Plaintiff’s “explanation” for the accident “as far as he was concerned”, was his “swerve to get around the Sunbeam.” Defendant contends that the submission of whether plaintiff failed to keep a careful lookout was supported by evidence in two separate aspects, to-wit: (1) evidence from which the jury could find that plaintiff could have seen the Sunbeam sooner than he did and (2) evidence that although plaintiff knew defendant’s car was approaching from the rear, he negligently failed to observe and discover that it was traveling in and about to pass him in the left lane. As constituting evidence to support the postulate that plaintiff could have seen the Sunbeam before he got to within fifty feet of it, defendant points to his own testimony, in which he stated that with his own lights he could see a vehicle ahead “probably 20 or 30 car lengths, maybe. I’m just kind of guessing.” The foregoing is not a sufficient evidentiary basis for a jury finding that plaintiff could have seen the Sunbeam from a distance greater than fifty feet. Even if it be assumed that plaintiff’s headlights had illuminating power equal to defendant’s generous “guess”, that circumstance alone would not justify the finding in question. “Whether the failure to keep a lookout at any time or place constitutes negligence depends upon the conditions and circumstances and is usually a jury question.” Cox v. Moore, Mo.App., 394 S.W.2d 65. Under this principle, the visibility of an object on the highway and the distance at which it is discoverable by proper lookout would, in the absence of direct testimony based on actual observa tion, depend upon the surrounding circumstances and conditions. There is a lack of evidence in this case to show certain material facts and conditions necessary for a proper consideration of the question by the jury. There is no showing as to the degree of curvature in the highway, except the generality that it was “gradual”. That factor conceivably could affect the direction and effectiveness of the headlight beams. Likewise, and to the same effect, there is no evidence to show whether the highway was uphill, level or downhill. There is no evidence to show the color of the Sunbeam, whether light or dark, a consideration significantly affecting its visibility. It is not shown whether or not the Sunbeam had a cover of snow, the presence of which might effectively camouflage the vehicle. Other than testimony that there were no street lights in the vicinity of the collision, evidence is lacking to show whether there were any sources of illumination additional to plaintiff’s headlights. It is of material significance that defendant himself did not claim to have seen the Sunbeam prior to the collision. We rule that the submission of the lookout issue was not supported by substantial evidence that plaintiff was negligent in failing to see the Sunbeam sooner. See Hawkeye-Security Insurance Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622; O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129; Levin v. Caldwell, Mo.Sup., 285 S.W.2d 655. There is, however, an abundance of evidence from which the jury could have found that plaintiff failed to keep a careful lookout in that he negligently failed to observe that defendant’s car was traveling in and about to pass him in the left lane. As our courts have frequently declared, it is the continuous duty of a person operating a motor vehicle on the public streets and highways to exercise the highest degree of care at all times and all places thereon to keep a careful lookout for persons, objects and other vehicles on the highway. Mo. Digest, Automobiles, S=s>150. With respect to that duty, the Supreme Court has said that the “object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions. It is only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril.” Miller v. St. Louis Public Service Co., Mo.Sup., 389 S.W.2d 769, 771. There is substantial, convincing evidence that plaintiff was derelict in his above defined duty, in that he failed to utilize available means at hand to “acquire knowledge” of defendant’s position on the highway and to become aware of the dangerous situation that could result from a sudden movement of his automobile from its forward course to the left. It is in evidence that just before the two cars collided defendant had been traveling in the left lane for one and one-half blocks and had come almost abreast of plaintiff’s car to pass it. There can be no doubt that prior to swerving around the Sunbeam, plaintiff knew there was a car somewhere behind him. He testified: “I saw lights in my rear view mirror.” He said that he also had an outside rear view mirror and he admitted that he could see defendant’s car “coming up” in both mirrors. And, although plaintiff testified (not without self-contradiction) that defendant’s car was then in the right hand lane, he stated immediately after the accident that, “When I was moving over, I saw you and I tried to cut back.” In the light of the evidence favorable to defendant, reasonable minds could conclude: defendant’s car was, in fact, in the left hand lane when plaintiff made his swerve around the Sunbeam; that when plaintiff made that maneuver he either thought defendant’s car was in the right hand lane behind him or was oblivious of its true position on the highway; that plain tiff had the opportunity and means at hand to learn defendant’s actual position on the highway either by looking in his rear view mirrors or by looking directly to his rear in the direction of the car he knew was behind him; and, that plaintiff negligently failed to look carefully or effectively by either means and thus disabled himself from taking appropriate measures in the situation of peril which had developed. In Lands v. Boyster, 417 S.W.2d 942, the Supreme Court held that the failure of a left turning motorist to look into the windshield mirror, when admittedly that measure would have revealed an automobile behind him, would support an inference that he failed to maintain a proper lookout. In Myers v. Searcy, Mo.Sup., 356 S.W.2d 59, the Court said, “The driver contemplating a left turn must keep a vigilant lookout * * for vehicles which may be following him;”. Also see Reed v. Shelly, Mo.App., 378 S.W.2d 291, where it is stated that “ * * * a driver who intends to turn left must make a proper observation to the rear to ascertain whether another vehicle is approaching from the rear in such close proximity that a left turn cannot be made with reasonable safety.” Plaintiff undertakes to argue that the issue of his failure to keep a careful lookout should not have been submitted to the jury because there is no evidence to show that such a failure contributed to cause the collision. Plaintiff insists there is no showing that he had “sufficient time and distance and the means and ability to have avoided the collision — even had he maintained an even better lookout than he did.” The argument is entirely beside the point at issue for the reason it is based on the unacceptable evidentiary premise that defendant’s car never had been in the left lane, but that at all times prior to the accident, and to plaintiff’s actual knowledge, it was traveling behind plaintiff in the right hand lane. For that reason, plaintiff says, he could not have acquired any better knowledge of defendant’s whereabouts by any better lookout and could have done nothing to avoid the accident. Simply stated, it is plaintiff’s position that he was “rear-ended” and could have taken no measures to avoid it. The foregoing concept of the evidence is a version favorable to plaintiff, is in direct conflict with defendant’s unequivocal testimony that he was in the left lane before the collision, and, under the rules of appellate review, will not be considered in deciding the submissibility of the lookout issue. We have determined that question under evidence which we consider to be favorable to defendant, and from which the jury could have found that had plaintiff exercised a proper lookout he could have discovered that defendant’s car was in the left lane, and with that knowledge could have avoided the collision by refraining from executing the sudden movement of his vehicle to the left. We rule that the trial court did not err in submitting the issue of plaintiff’s contributory negligence on the hypothesis that he failed to keep a careful lookout. We next consider whether there was substantial evidence to support the alternative hypothesis of plaintiff’s contributory negligence submitted by Instruction No. 4, namely, that he “suddenly turned to the left at a time when such movement could not be made with safety.” The fact that plaintiff “suddenly turned or swerved to the left” to go around the Sunbeam is so thoroughly established by the evidence we have heretofore detailed, in particular, plaintiff’s own testimony, that further comment thereon is unnecessary. And, in our opinion, the jury had warrant to make the additionally required ultimate finding that the move in question was at a time when it could not be made with safety — from evidence showing that plaintiff’s left turn was a sudden maneuver in the direction of defendant’s car which was then traveling in the left lane and had approached almost abreast of plaintiff’s vehicle; that from the time plaintiff made his left turn until he collided with defendant, only one or two seconds had elapsed and he had traveled only 30 feet; that plaintiff’s sudden left turn was made at a time when the traveled roadway surface was in a slick and slippery condition; and the further fact that soon after plaintiff made his left turn he saw defendant approaching and then “tried to cut back”. From these established facts the jury could reasonably believe that plaintiff’s original left turn carried him into suddenly discovered danger of colliding with defendant, (previously discoverable by a careful lookout), which he attempted to avert by a countermove back to the right, and that those manipulations on the slick, slippery, snow-covered roadway exerted natural resultant forces which caused the rear of plaintiff’s car to swing or skid to the left into the left lane in the path of defendant’s car. The jury could have additionally concluded that plaintiff was negligent in suddenly turning to the left when it was unsafe to do so and that such negligence was an act “such as to enter into and form the direct, producing and efficient cause of the casualty, and absent which the casualty would not have happened.” Lands v. Boyster, Mo. Sup., 417 S.W.2d 942. In arriving at the foregoing conclusion we have given due consideration to plaintiff’s counter-contention that there was no evidence to justify an instruction on “turning” because it was not shown that his car actually turned into the left lane or that the front end of it ever went into the left lane, but that, instead, the evidence showed that the rear end of Ihis car skidded around into the left lane. Therefore, plaintiff argues, Instruction No. 4 should have conformed to the evidence and hypothesized the rear end skid, if there had been evidence of prior negligence causing it (which plaintiff denies), instead of submitting the hypothesis of a negligent left turn as a proximate cause of the accident. This proposition is not supported by Missouri decisions. The Supreme Court has specifically ruled that in cases where skidding of an automobile is shown to have been caused by a negligent act occurring prior in time to the commencement of the skidding, it is not necessary that a verdict-directing instruction hypothesize the fact of skidding, but that the instruction is sufficient if it requires the finding of the negligent act or acts which caused the skidding. In Davis v. Werremeyer, Mo.Sup., 377 S.W.2d 319, where defendant’s automobile skidded sideways to the wrong side of the road and collided with another vehicle, the court held that it was not essential that plaintiff’s verdict-directing instruction have hypothesized the fact “that defendant skidded across the center line (as distinguished from driving or guiding the vehicle across)”. The court said: “Skidding was not the cause of the collisions, but was the result of defendant’s antecedent negligence. * * * The act relied upon to form the basis of a finding of negligence in No. 1 (failure to keep a lookout) occurred in time prior to the commencement of the skidding. Skidding was a subsidiary evidentiary fact. Under the evidence defendant, as a result of his failure to keep a lookout, suddenly found it necessary to apply his brakes hard. * * * Facts from which the jury could find that the cause of the movement over was negligence were sufficiently hypothesized. * * * In No. 1 the cause of the crossing of the center line (failure to keep a lookout, followed by hard jamming of the brakes) was the issue tried and submitted;' the crossing and the skidding in so doing was a mere evidentiary fact — not an element vital to the plaintiff’s case — and the negligent act which caused the skidding-crossing was required to be found.” Plaintiff has cited two Missouri cases, Wray v. King, Mo.App., 385 S.W.2d 831 and Branch v. Gordon’s Transports Inc., Mo.App., 375 S.W.2d 418. Those cases do not involve the point at issue. Nor does the Massachusetts case, Correira v. Boston Motor Tours, 270 Mass. 88, 169 N.E. 775, also cited by plaintiff, touch the question. Plaintiff has also advanced the theory that defendant’s own evidence negated such an occurrence as that he “suddenly turned to the left.” Seeking to support this suggestion, plaintiff directs attention to the following questions and answers made by defendant on cross-examination: “Q. You never saw him at any time turn out in a left diagonal to go around the Sunbeam? A. No. Q. Did you ever see the front of McDaniels’ car pull out to the left from his position that he had been travelling near the right snow bank? A. No. I never did see it move.” Looking to the whole of defendant’s testimony on the subject thus explored, we do not consider it subject to reasonable interpretation as an admission that plaintiff did not in fact turn or make a move to the left to go around the Sunbeam. The import of defendant’s testimony is that he did not see what plaintiff did before the collision, as illustrated by the following cross-examination questions and answers: “Q. Now, you didn’t actually see what Mr. McDaniels did before the collision, did you, what his car did? A. No, outside of just all of a sudden he came around to my lane. Q. I say in answer to my question, you didn’t see with your own eyes what Mr. McDaniels’ car did before the collision, immediately before the collision, did you? A. No.” Considering the surrounding circumstances it is reasonable to believe that defendant was not in a position or had opportunity to see or observe the initial left movement of plaintiff’s car, or for that matter the “cut-back” movement. It was then dark, the roadway was slippery, and defendant was occupied with the operation of his own car as he was about to pass plaintiff. It would appear doubtful that any substantial illumination from defendant’s headlights was then being directed on the front of plaintiff’s car, considering the relative position of the vehicles. It is reasonably probable that the rear end of plaintiff’s car was a physical obstruction to his view of the front end at the time in question. Under those conditions it is a matter of substantial doubt whether a movement of plaintiff’s front wheels sufficient to alter the course of the vehicle would be in fact visible to defendant. We reject plaintiff’s theory of “negation” and adhere to our view that defendant is entitled to the benefit of the abundant evidence plaintiff himself has furnished to establish his sudden left turn around the Sunbeam. Finally, defendant submits that Instruction No. 4 is a proper declaration of substantive law and that its form satisfies MAI requirements. We first observe that with the exception of the language “suddenly turned to the left at a time when such movement could not be made with reasonable safety” the instruction, inclusive of the lookout element, faithfully follows the text of MAI 28.01, Contributory Negligence — generally. There is no MAI form for the sudden turn submission. Consequently it was necessary to formulate the desired element in accordance with Rule 70.01(e), which requires that modifications or instructions be simple, brief, free from argument and that they shall not submit or require findings of detailed evidentiary facts. The basis for the sudden turn submission is V.A.M.S. Section 304.019, which provides in pertinent part: “No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein.” The foregoing portion of Section 304.019 was construed in Reed v. Shelly, Mo.App., 378 S.W.2d 291, as follows: “The language of the opening paragraph of Section 304.019 and cases construing similar statutes convince us that at least two duties are imposed upon a motorist who intends to turn left in the circumstances here presented. First, he must ascertain that such movement can be made with reasonable safety; then, he must give an appropriate signal of his intention to change direction. Giving a signal does not dispense with the necessity of determining that a left turn can be made with reason able safety.” Inasmuch as two separate and distinct duties are prescribed by Section 304.019, it is our view that a negligent failure to observe either thereof, or both, may be asserted as a ground for recovery by a plaintiff, or as a ground of contributory negligence by a defendant. Therefore, upon a sufficient evidentiary showing that plaintiff violated his statutory duty to determine that the left turn in question could be made with reasonable safety, it was the defendant’s privilege and the court’s duty to submit that act as a ground for finding plaintiff guilty of contributory negligence. We believe that the language chosen for the submission sufficiently hypothesizes a violation of the statute and adequately satisfies MAI requirements. We find no prejudicial error in the instruction. The order and judgment granting a new trial is reversed and the cause is remanded with directions to reinstate the verdict of the jury and enter judgment thereon in favor of the defendant. All concur. . The MAI Committee comments (p. 133) that “a very complete exposition of the skidding doctrine is found in Davis v. 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MORGAN, Judge. At the close of plaintiff’s evidence in this jury tried case, the trial court sustained defendant’s Motion For A Directed Verdict. Plaintiff has appealed, and the ultimate question is whether or not he made a sub-missible case. Plaintiff’s theories of recovery against defendant were set out in one paragraph of one count of the petition as follows: “For cause of action against Defendant, Plaintiff states that for several months in 1965, the exact times of which are unknown to Plaintiff, but are known to Defendant, Defendant wrongfully, illegally, wantonly, and with legal malice, recklessly and with gross negligence, operated construction and excavating work in front of, around and near his business place, blocking access thereto, causing heavy vibrations, damaging his property and causing him loss of business to his actual damage in the sum of Four Thousand ($4,000.00) Dollars; that said action as above described entitle him to punitive damages in the sum of Six Thousand ($6,-000.00) Dollars.” Having commingled several legal theories, obvious in the quoted allegations of the petition, plaintiff is consistent in his rather ambivalent attack by presenting here all possible avenues of recovery under one “Point.” However, if there is to be any logic to our review of the case, we, of necessity, will consider individually those theories of recovery touched on in the petition, i. e., (1) obstruction of access, (2) negligence and (3) trespass by nuisance. The setting for defendant’s alleged actionable conduct was on the south side of Tenth Street in Kansas City, Missouri. Plaintiff was in possession of business locations at 407 and 409 East Tenth Street and operated a pool room in 407 and a laundromat in 409. Both businesses faced to the north and a north-south alley bordered 409 on the east. The sidewalk in front of the locations was approximately 8 feet wide with adjacent metered parking at the curb. A parking lot in the rear (south side) of the building was available for plaintiff’s customers during certain limited hours of the day. On May 14, 1965, the City passed Ordinance No. 31241 which, among other things, authorized the Kansas City Power & Light Company to construct and maintain two under-sidewalk reinforced concrete vaults for the installation of electrical transformers and wiring in front of plaintiff’s locations. The following excerpt therefrom indicates somewhat the extent of the proj ect: “* * * The east wall of the combined vaults will be on a line approximately 14 feet west of the west line of the north-south alley. From said east wall the vaults will extend westward for a distance of 32 feet, 3 inches. The width of the vaults will be 9 feet, 5 inches, and the depth approximately 10 feet, 9 inches.” Although not clearly shown, it appears the work extended south along the alley. Defendant was the contractor performing this work. The testimony was limited to that of plaintiff, and it can be fairly generalized with particular attention being given to setting out that part apparently thought significant by plaintiff as indicated in his brief. He drew some customers from the many apartments and hotels in the vicinity; customers were prevented from parking in the metered curb locations; the parking area to the rear was free after 6 P.M. and on week ends, but the alley access route was barred due to this work, and if the parking area was to be used, a customer would have to walk west to Oak, north to Tenth and east to plaintiff’s locations; workmen noisily and dustily cut out the sidewalk by use of a jackhammer and a back hoe; when they hit solid concrete, they had to use a “heavy duty machine like a pile driver” and when it was dropped the whole building would shake; he had a water pump that provided a continuous flow of hot water at 140°s to the different washing units and “ * * * the vibration hit so hard one day it clogged my spindle.”; this caused some flooding and required repair of the unit; several days later, “Same thing. It blew. I had to go through the same deal. I had to run around and buy the parts and shut down again.”; wooden sawhorse barricades surrounded the working area cutting off “the entrance to my business”; they (apparently the general public) “walked across the street and around. That is the only thing they could do.”; for over 90 days the sidewalk barricades compelled the public to go around “ * * * traffic was ‘nil.’ ”; customers quit coming rather than try to “jump around to get into the doorway”; because of the noise and dust he had to keep his door shut, and the resultant heat drove customers away; some of his pool-playing customers used the tables in the YMCA across the street; the walkway provided ran east and west next to the building and was 2(4 to 3 feet wide and at times solid plywood covers were placed over the excavation; picture exhibits show the walkway had to be removed when the workmen were pouring concrete; he removed the inside door between 407 and 409 so that customers could pass between the laundromat and pool hall where he also sold peanuts, candy and pop corn; the exhibits indicate the work did at times block direct access to 407; when necessary to remove the plywood covers and the walkway, defendant’s employees would stop and provide a plank walkway for customers or plaintiff. Defendant’s attorney made the following inquiry of plaintiff, “So we don’t have any confusion about this, is it a fact, Mr. Titone that your customers at all times had access into your laundromat?” Plaintiff’s reply was “Yes, sir. They could at all times come in.” Plaintiff also testified the workmen were always “hard at work,” often continued to work until 10 P.M., and they were always courteous and polite to any customers. First, plaintiff’s right to recover for the alleged invasion of his right of ingress and egress will be considered. In Dillon Municipal Corporations, Sec. 730, Fourth Edition, we find: “Although the distinction between the extent of the rights of the public in a street and the right of the abutting proprietor to access to his premises from the street, has been often overlooked, yet it is one which has been asserted by high authority, and which may be regarded as thoroughly established. The right of an abutting owner to access to and from the street is a private right, in the sense that it is something different from the right which the members of the public have to use the street for public purposes * * * ” The protection of this private right, peculiar and special to the abutting proprietor, has created general legal prin ciples uniformly stated in text authority; but, notwithstanding the urbanization of our society, the decided cases on this singular issue have been so limited as to cause text writers to comment on the “paucity” of judicial precedent. Annotation: 68 A.L.R. 340. In 64 C.J.S. Municipal Corporations § 1746, p. 173, we find: “Ordinarily an obstruction of a temporary character is not illegal per se and a nuisance, as where persons other than abutting owners temporarily obstruct the streets in connection with business purposes, and such an obstruction becomes a nuisance only from unnecessary delay in removal. Thus, a municipality may lawfully authorize a temporary and reasonable obstruction of streets, and such an obstruction does not constitute a purpresture.” (Emphasis added) In 25 Am.Jur., Highways, Sec. 320: “A loss of business due to a mere temporary obstruction for a lawful purpose, within the limitation of necessity and reasonableness, is damnum absque in-juria. But liability will be incurred by exceeding such limitation.” See 86 A.L.R. 101; 68 A.L.R. 1510. The rule accepts a temporary obstruction as a legitimate incident of and limitation on an easement of ingress and egress. In Frick v. Kansas City, 117 Mo.App. 488, 93 S.W. 351, this court, after following the general rule, found defendant had exceeded “such limits.” In that case the defendant in sewer construction had piled a ridge of dirt in the street along the front of plaintiff’s property and had entirely shut off access. The ridge of dirt was allowed to remain long after it was known it would not be needed for back-fill and would have to be hauled away. This court said: “ * * * had defendants observed the degree of care required of them in raising the embankments in the street and on the vacant lot, and had they acted with reasonable diligence in the removal of the dirt from the street when it became apparent that it was not needed for refilling, plaintiff would have had no cause of action for any damage inflicted upon her property, or any inconvenience or annoyance incurred by her in consequence of the presence of the embankments.” In the instant case plaintiff’s right to recover on his first theory is conversely bottomed on a showing of the “unreasonableness” of the defendant’s effort to provide access under all of the existing circumstances. Of necessity, the size and extent of the project has some bearing on such a determination. It appears the ordinance contemplated a major project. Neither was it alleged, nor was an effort made by plaintiff to offer any evidence that the 90 day work period was unreasonable. To the contrary, the evidence shows defendant’s employees worked hard and long hours in attempting to complete the project which directly tended to minimize the effect of their presence in the area. We do not belittle plaintiff’s complaints and recognize his pattern of conducting the business was undoubtedly disturbed, but “property owners, as well as the traveling public, must expect to suffer the inconvenience and even damage occasioned by the presence of such obstructions.” Frick v. Kansas City, supra, 93 S.W. 1. c. 353. Further, no recovery can be had for the temporary removal of the metered parking stalls at the curb as such action was encompassed in the right to obstruct the adjacent street, nor for blocking the alley on the east. The latter only required a longer walk from the parking area around the buildings to the west resulting in a circuity of route which has often been ruled non-compensable. State ex rel. State Highway Commission v. Meier, Mo., 388 S.W.2d 855. Distinctly different legal principles are applicable to plaintiff’s two remaining theories of liability. “Nuisance and negligence are two different kinds of torts. ‘Negligence’ is a failure to use a degree of care required under the particular circumstances involved; whereas ‘nuisance’ does not rest on the degree of care used, but on the degree of danger existing with the best of care.”, Bollinger v. Mungle, Mo. App., 175 S.W.2d 912, 1. c. 916; however, a claim based upon either theory requires proof of one common and essential element, i. e., proximate cause. It must be deter mined if plaintiff offered sufficient evidence to enable the jury to trace the causal connection between the action complained of and the claimed damage to the water pump. The only evidence offered was plaintiff’s statement that during the vibrations the “spindle” on his water pump “clogged” requiring repairs and at a later date the same thing happened with the descriptive explanation “It blew.” In Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498, we find the oft quoted standard for resolving the question of causation: “Of course, a finding essential to recovery may be proved by circumstantial evidence; but, our appellate courts have said repeatedly that, in civil cases, the shown circumstances must be such that the facts necessary to support the finding may be inferred and reasonably must follow, that the existence of such facts may not depend upon guesswork, conjecture and speculation, and that the evidence should have a tendency to exclude every reasonable conclusion other than the one desired. * * * ” Osterhaus v. Gladstone Hotel Corporation, Mo., 344 S.W.2d 91; Lindsay v. Wille, Mo., 348 S.W.2d 1, 4. Did the evidence offered “have a tendency to exclude every reasonable conclusion other than the one desired” that the vibrations “clogged” some part of the equipment ? Certainly the normal connotation of the word “clogged” in connection with a water system is that it became stopped up. A jury would have to resort to guesswork, conjecture and speculation to find it resulted from vibrations. If the terminology used held a special meaning for plaintiff some explanation should have been given. The shortcomings of the probative value of the proof offered are made more apparent by reference to an answer of plaintiff in describing the duties of his repairman that came most every week. It was, “ * * * repairs, repairs, and repairs and fixes.” In the absence of proof sufficient' to sustain a finding of proximate cause, there is no necessity that we consider defendant’s additional contentions that proof is lacking to establish other necessary elements of a claim founded on either negligence or nuisance. We agree with the trial court that plaintiff failed to make a submissible case, and the judgment is affirmed. All concur.	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McAnany, J.: Maxine Fischer appeals the district court’s dismissal of her lawsuit against Robert Roberge for lack of prosecution, as well as the court’s denial of Fischer’s motion to reinstate the case. Finding no abuse of discretion, we affirm. This action arises out of an automobile accident on August 2, 1999, in which Fischer claims to have sustained personal injuries. The record discloses that a prior action against Roberge, assigned to Judge Foster, was dismissed without prejudice on July 25,2002. The current action was filed on January 7, 2003. It apparently is the refiling of the earlier action that had been dismissed by Judge Foster. At the time suit was refiled, Fischer failed to comply with Local Rule 2.2 (Civil) by alerting the clerk of the court that the matter had previously been filed and assigned to Judge Foster. Accordingly, rather than being assigned to Judge Foster, the case was randomly assigned to Judge Russell. At a scheduling conference on January 8, 2004, Judge Russell became aware of this misassignment and ordered the case to be reassigned to Judge Foster. On February 13, 2004, Chief Judge Tatum issued one of the court’s semi-annual dismissal lists, alerting Fischer (among others) that pursuant to K.S.A. 2004 Supp. 60-241(b)(2) her case would be dismissed for failure to prosecute at 12 p.m. on March 12,2004, unless by that time the assigned judge had entered an order removing the case from the dismissal fist. Fischer’s counsel took no action in response until the last possible day. On March 12, 2004, her counsel was engaged in discovery in another case. He directed his assistant to file a motion to remove Fischer’s case from the dismissal fist. Shortly after 2 p.m. on March 12, 2004, the assistant faxed to the Clerk of the District Court a motion to remove the case from the dismissal list, along with an unsigned order. No effort was made to comply with Local Rule 6.4 (Civil) which predicates removal of a case from a dismissal list on contacting the assigned court to set the matter for a pretrial or discovery conference, to obtain a trial setting, or to otherwise show good cause for removing the case from the list. Since no order was entered removing the case from the dismissal list, the district court dismissed the case for lack of prosecution on March 15, 2004. Fischer moved to set aside the dismissal and to reinstate the case. In her motion she acknowledged that she had been 2 hours late when she fax-filed her motion to remove the case from the dismissal list. When the district court overruled her motion, Fischer appealed. We review the district court’s actions using the abuse of discretion standard. “ ‘Orders of dismissal for want of prosecution rest in the judicial discretion of the district courts in order that they may control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business, subject, however, to statutory notice x'equirements. Such ox'ders will not be reversed on appeal in the absence of a clear showing of abuse of judicial discretion.’ [Citation omitted.]” Namelo v. Broyles, 33 Kan. App. 2d 349, 353, 103 P.3d 486 (2004), rev. denied 279 Kan. 1007 (2005). K.S.A. 2004 Supp. 60-241(b)(2) provides: “The judge may on the judge’s own motion cause a case to be dismissed without prejudice for lack of prosecution, but only after directing the clerk to notify counsel of record not less than 10 days in advance of such intended dismissal, that an order of dismissal will be entered unless cause be shown for not doing so.” Substantial compliance Fischer fails in her attempt to claim that she substantially complied with the requirements of Chief Judge Tatum’s order. She was required to (1) file a motion to remove the case from the dismissal list; (2) contact the court pursuant to Local Rule 6.4 (Civil) and obtain a pretrial or discoveiy conference setting or a trial setting, or otherwise show good cause for removing the case from the dismissal list; (3) obtain an order from the court removing the case from the dismissal list; and (4) file the order before noon on March 12, 2004. It is readily apparent that faxing a motion to the Clerk of the District Court, with no other effort, action, or follow-through, does not constitute substantial compliance with these requirements. Fischer also fails in her attempt to claim the district court’s deadline of 12 p.m. was ambiguous, excusing her from having to meet “an uncertain deadline.” Fischer did not raise this contention before the district court. Arguments not raised below cannot be raised on appeal. Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Moreover, Fischer’s claim of ambiguity in the deadline is disingenuous given her admission in her motion to reinstate the case that she filed her motion to remove the case from the dismissal list 2 hours past the deadline. Finally, Fischer fails in her attempt to shift the burden of compliance to the clerk. The responsibility for obtaining and filing an order that satisfies the statute and the local rule is clearly upon Fischer and her counsel, not the clerk. Mitigating Factors Fischer relies on the factors announced in Reed v. Bennett, 312 F.3d 1190-95 (10th Cir. 2002), which our court has turned to in examining whether a district court abused its discretion in dismissing a case for lack of prosecution. See Namelo, 33 Kan. App. 2d at 356. Those factors are: “ (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant.’ [Reed,] 312 F.3d at 1195.” 33 Kan. App. 2d at 356. The primary responsibility for prosecuting a case lies with the plaintiff. When a case has not been prosecuted in a diligent manner, prejudice is generally presumed. Namelo, 33 Kan. App. 2d at 356-57. Forty-one months elapsed between the accident and the refiling of the action. Because Fischer failed to alert the clerk to the fact that the case had been filed before, the case languished in the wrong court for an additional 12 months. The inactivity in the refiled action prompted tire court to place it on the dismissal list. Though Fischer claims that substantial discovery had taken place, we cannot find this assertion verified in tire record. Further, Roberge disputes Fischer s claim that she was cooperating in discovery. Simply put, the appearance docket reveals scant effort by Fischer to prosecute this case. Under the circumstances, the district court did not abuse its discretion in dismissing the case and refusing to reinstate it upon Fischer s request. Affirmed.	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Leben, J.: Kirk Wilson was convicted of the murder of Kurt Boldridge based in part on the testimony of John Goodpasture, who said he witnessed the murder. But the district court later set aside Wilson’s conviction and ordered a new trial after it concluded that his trial attorney had provided representation below constitutionally required minimum standards. The State has appealed, but the facts found by the district court after 2 days of evidence support its conclusion that Wilson’s attorney provided inadequate representation. Among the key failings: • Goodpasture said the murder took place on a Saturday night, but at least five people told police that either they or someone they knew had seen or spoken to Boldridge afterward, including two witnesses who saw him on Monday. Wilson’s attorney did not present that evidence to the jury. • Goodpasture made highly inconsistent statements to law-enforcement officers about the murder. Although Wilson’s attorney did cross-examine Goodpasture about some inconsistencies, the attorney left many very significant ones unexplored. • Goodpasture had written letters that contradicted his statements to police. Wilson’s attorney did not present the letters to the juiy. • Police recorded conversations involving Wilson and another person without Wilson’s knowledge, and Wilson’s comments during those conversations suggested he was not involved in the murder and did not even recognize a person Goodpasture said had also been present with Wilson at the murder. Wilson’s attorney did not present tiróse tape recordings to the jury. The district court concluded that there was no reasonable strategic reason to fail to present the noted evidence or to more thoroughly cross-examine Goodpasture, the only claimed eyewitness who testified. We agree that by not offering this evidence or more thoroughly cross-examining Goodpasture, Wilson’s attorney must have either failed to familiarize himself with the evidence in the case or used an objectively unreasonable trial strategy. See In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012). We also agree with the district court that this worked to Wilson’s substantial detriment, i.e., there is a reasonable probability that the trial’s outcome would have been different had Wilson’s attorney provided minimally effective representation. We therefore affirm the district court’s judgment, which requires that Wilson receive a new trial. Factual and Procedural Background The claims before us are intimately tied to the facts of both the underlying prosecution of Wilson and the actions of his trial attorney in defending him. Accordingly, we must set out the facts in substantial detail. Wilson was convicted in 2001 of premeditated first-degree murder. On the initial, direct appeal from a conviction, the appellate court must look at the evidence in the light most favorable to the State, since the factfinder (in Wilson’s case, a jury) has found in the State’s favor. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). Applying that standard in Wilson’s direct appeal, the Kansas Supreme Court summarized the facts in the light most favorable to the State: “Kirk Wilson was convicted of the premeditated first-degree murder of Kurt Boldridge. Wilson and Boldridge had both been married to the same woman, Sandra White. Wilson was married to Sandra first. Before divorcing in 1991, Wilson and Sandra had a son named Matt. Sandra was married to Boldridge from October 1998 to October 1999, a time in which Wilson was incarcerated. Wilson’s son Matt lived with Sandra and Boldridge during their marriage. Wilson was released from prison on March 13, 2000. “On March 24, 2000, Boldridge’s mother contacted the Atchison County sheriffs office and requested that they check on Boldridge’s welfare because she had not seen or heard from him in nearly a week. When officers reached Boldridge’s house they could smell the decay of a dead body from outside the house. The house was secure, and there was no evidence of forced entry. Because all of the windows were locked, sheriffs deputies had to bréale part of the glass from a window to enter the house. “Deputies discovered Boldridge’s body on the bed with a comforter completely covering him. The body was decayed enough that the coroner could not immediately determine the cause of death at the scene, so he ordered an autopsy. Besides Boldridge’s dead body, nothing else in the house appeared out of place. Nothing appeared to be missing, and there was no evidence of a fight or a struggle. “An autopsy established that Boldridge died from a shotgun blast to his left temple. There was wadding from the shotgun shell inside Boldridge’s head, indicating that he had been shot at close range. There were no other injuries on his body. Insect larvae in Boldridge’s body indicated that he had been dead for at least 3 days and possibly longer. “News of the gruesome discovery leaked out quickly. Wilson’s current wife Kim heard about Boldridge’s death within hours of the discovery of his body and telephoned her sister to inform her of Boldridge’s death and advise her that she thought Wilson was involved. Kim’s sister immediately contacted the Atchison police to report Kim’s statements. “The investigator for the sheriff s department interviewed Wilson on March 28, 2000. Wilson denied any involvement in Boldridge’s death, but stated that he heard about it on the weekend of March 18, 2000, 6 days before Boldridge’s body was discovered. “In August 2000, Kim called police because Wilson had beaten her. Kim reported that while he was attacking her, Wilson stated that he had lolled Boldridge and they were coming to arrest him for that, so he might as well kill her too. “John Goodpasture was sleeping on the Wilsons’ couch while Wilson was beating Kim. After beating Kim, Wilson attacked Goodpasture and began beating him. Wilson drug Goodpasture into the bedroom and accused him of having an affair with Kim. During the fight, Wilson told Goodpasture, ‘if you think what happened to that nigger was bad, wait until you see what happens to you, and Gary [Skeen] [is] going to get it twice as bad.’ Fearing for his life, Goodpasture jumped through tire glass in the bedroom window to escape from Wilson’s fuiy. “Soon after Wilson beat Goodpasture, Goodpasture started talking to police about Wilson’s involvement in Boldridge’s death. According to Goodpasture’s story, Goodpasture and his friend Gaiy Skeen were at their friend Harold Gillis’ house when Wilson arrived at approximately 1 a.m. on March 19, 2000. Wilson was very upset, proclaiming that Boldridge had made Wilson’s son Matt perform oral sex on Boldridge. Goodpasture stated that Boldridge’s current wife Lisa had informed Wilson about the alleged abuse of Wilson’s son. Wilson was so upset that he said he was going to kill Boldridge and showed Goodpasture a gun that was tucked in his pants. Lisa Boldridge arrived at the Gillis’ house after Wilson and encouraged Goodpasture to participate in killing Boldridge by telling him that Boldridge had cocaine and Goodpasture could have it in return for his participation. “Wilson, Goodpasture, Gary Skeen, and Lisa Boldridge left Gillis’ house and drove to Boldridge’s house. When they arrived, Lisa Boldridge let the other three into die house and led them to tire bedroom, where Boldridge was sleeping. Lisa got a shotgun and some shells and gave them to Wilson. Wilson approached Bold-ridge as he lay sleeping and shot him. Afterwards, Goodpasture and Skeen looked briefly for the cocaine but decided to leave before finding anything. “Wilson, Skeen, and Goodpasture left in one car and drove to the Atchison park on die Missouri River. Lisa Boldridge left in anodier car and met the others at the park. Wilson threw the shotgun into die Missouri River. Although Good-pasture told law enforcement several different versions of the story and admitted that he lied to law enforcement several times, he insisted tiiat his story implicating Wilson as die shooter was truthful. “The State filed a complaint/information charging Wilson with first-degree premeditated murder in December 2000. At trial, die State relied on testimony from Kim and Goodpasture to establish Wilson’s involvement in Boldridge’s deadi. In addition to testifying that Wilson admitted to killing Boldridge, Kim testified that Wilson began checking the newspaper for articles about Boldridge’s death before Boldridge’s body was discovered. “To impeach Goodpasture’s testimony, Wilson elicited evidence that Goodpas-ture had entered into a plea agreement allowing him to plead guilty to a severity level 7 felony with a sentence of probation in return for his testimony against Wilson. Goodpasture testified that he would do almost anything to avoid going to prison for murder. Wilson also impeached Goodpasture with the various stories and lies he told to law enforcement. In response, Goodpasture testified that he lied until he knew he had to pass a polygraph test. “. . . The district court sentenced Wilson to life in prison with no possibility of parole for 25 years.” State v. Wilson, 281 Kan. 277, 278-80, 130 P.3d 48 (2006). The Kansas Supreme Court affirmed Wilson’s conviction. In 2007, Wilson filed a motion for habeas relief under K.S.A. 60-1507, claiming that his trial counsel, Michael Waite, had been ineffective. The petition said that Waite had failed to introduce material evidence and had failed to offer police reports and witnesses to impeach State witnesses’ testimony. Waite was indefinitely suspended from the practice of law in Kansas in 2007 for misuse of another client’s money. Waite died in 2008 and thus was not available to testify at Wilson’s habeas hearing. Wilson sought leave in 2011 and 2012 to amend his habeas claim. The district court denied his request to add two claims—that Waite had failed to present evidence that Lisa acted alone in murdering Kurt and that at Lisa’s trial the State directly contradicted the theory of motive it later attributed to Wilson at his trial. The court found the issues were different in time and type from the claims raised in the original petition and thus were time barred. The district court held a 2-day evidentiary hearing on Wilson’s claims in January 2013. Judge Robert Bednar handled this hearing; a different judge had presided at Wilson’s criminal trial in 2001. At the evidentiary hearing on Wilson’s habeas claims, Wilson’s counsel asked him-why he had told the police that he had heard about the murder on Friday, March 17, 2000, when the body had not been found until March 24. Wilson said that he had initially told the police that he knew it was a Friday and that they had pressured him to say whether it was the 17th or the 24th. Unsure of the date, he said, he simply picked the 17th. Wilson said that between his preliminary hearing and trial he had only met with Waite two or three times for no more than 30 minutes each time. Wilson said that Waite never went over the witness list Wilson provided him. Wilson said that duiing the trial, he had found a police report indicating that Boldridge’s mother had spoken to Boldridge on Sunday, March 19—after Goodpasture alleged that the murder occurred. Wilson said he had shown that to Waite during the trial but that after Waite read the report, he had indicated to Wilson that bringing up the evidence would undercut Wilson’s alibi defense. Criminal-defense attorney Kurt Kerns, who had no involvement in Wilson’s murder trial, testified for Wilson as an expert witness. He said that in his expert opinion, Waite had been ineffective because he failed to investigate and present evidence on the issues raised in each of the ineffective-assistance-of-counsel claims the court was considering. Kerns pointed to several specific pieces of evidence: • that Boldridge was alive as much as 37 hours after the time the eyewitness, Goodpasture, gave for the murder; • that taped, secret conversations demonstrated that Wilson had no involvement with Boldridge’s murder; • that Goodpasture had written letters contradicting his statements to police; and • that Kim Sampson-Wilson and Goodpasture had conspired to falsely accuse Wilson while in jail. In addition, Kerns said that there were serious discrepancies in the statements Goodpasture made implicating Wilson and that Waite did not address the discrepancies when cross-examining Goodpas-ture. Goodpasture’s initial statements to police did not implicate Wilson. Several months after the murder, Goodpasture said that “everything had come back to him,” and he implicated Wilson. Even so, Goodpasture’s story changed in a number of ways over time. Wilson presented evidence to the court on the claims Kerns mentioned. Substantial evidence suggested that Boldridge was alive 37 hours after the time Goodpasture gave for his murder. Police reports indicated that Boldridge’s mother, a neighbor, and two teenage girls had told the authorities that they had spoken to Boldridge after the date and time that Goodpasture said Boldridge had been killed (late Saturday, March 18, 2000, or early Sunday, March 19, 2000). Boldridge’s mother told the police that no one had heard from Boldridge since Sunday, March 19, 2000, and Boldridge’s neighbor said he spoke to Boldridge when he went to get his mail on Monday, March 20, 2000. The Stewart sisters— ages 13 and 14—said they briefly spoke to Boldridge at a gas station on their way home from school on Monday, March 20,2000. Bold-ridge’s brother, Duane Boldridge, said he had called his mother on Sunday, March 19, 2000, and that Boldridge had called her while they were talking. Copies of the police reports were available to Waite at both the Atchison County Sheriffs Department and the Kansas Bureau of Investigation (KBI). Wilson also provided the district court with transcripts of taped, secret conversations that he said demonstrated that he had no involvement with Boldridge’s murder. The tapes involved Lisa Bold-ridge, who Goodpasture testified at trial had handed the shotgun used to kill Boldridge to Wilson before the murder. About 2 weeks after the police found Boldridge’s body, Lisa went to Wilson’s house wearing a wire (unbeknownst to Wilson), and tlie police taped a conversation between Lisa and Wilson. Both Lisa and Wilson were under investigation by this time. Wilson seemed not to know who Lisa was until she introduced herself: “Lisa: Hi. “[Wilson]: Hi. “Lisa: Kirk [Wilson]? “[Wilson]: Yeah. “Lisa: I need to talk to you. There’s something that happened to Kurt Boldridge and I’m getting some heat over it. And I don’t know, I’m just wondering, you know, if we can talle a minute. “[Wilson]: Who, who am I talking to? “Lisa: Lisa Boldridge. “[Wilson]: That’s you???!!! “Lisa: Yeah.” Wilson told the court that he had not recognized Lisa because he had not seen her for at least 5 years and her appearance had changed. Wilson said that they had both been trustees in jail in the mid-90s and had “pass[ed] in the hall.” Since then, he said he had only spoken to her once over the phone in August 1999 to tell her to stop bothering his son, who was living with Boldridge’s and Wilson’s ex-wife, Sandy. After Wilson learned who Lisa was, he asked her to come back later and dren alerted Investigator Myer that Lisa had approached him. Investigator Myer told Wilson to speak with Lisa to see if he could find anything out about Boldridge’s murder. Wilson said drat when Lisa had returned, he had said to her, “I didn’t even know who you was when you came here.” He also said tirat he had indicated he hadn’t met Boldridge and didn’t know what he looked like until Boldridge’s picture was in the paper after the police found his body. Investigator Myer then went to Wilson’s house wearing a recording device (again, unbeknownst to Wilson). He taped his conversation with Wilson, who said that he had not known who Lisa was before she introduced herself. He also said that he had thought Lisa was involved with the murder. At the evidentiary hearing, Wilson also presented the district court with two letters Goodpasture had written that indicated he was not present at the crime scene and that he was unsure whether Wilson had murdered Boldridge—significantly contradicting his statements to the KBI. One letter was mailed on September 20, 2000, after Goodpasture had started telling the police that Wilson murdered Boldridge. In that letter, Goodpasture wrote: “It’s possible [Wilson is] guilty. But I don’t [k]no[w.] But my sense tells me otherwise]. What if [they] sentence the wrong person[?] I[’m] glad I[’]m not a Judge. Cause I couldn[’]t deal with it. I just hope they get the right one.” The other letter, sent on August 14, 2000, said, “I think Kim is in jail with Lisa Boldri[d]ge[.] Everybody thinks Kirk had something to do with it. I don[’]t know but I[’]m sure Kim is having a picnic.” Waite had introduced one Goodpasture letter at trial—a romantic letter that Goodpasture had written to Cindy Higley, who was Skeen’s girlfriend. In that letter, Goodpasture said: “Eveiyone thinks that [the] deal with Kirie [Wilson] is over. But it[’s] not. I don[’]t know anything[,] but I[’m] not so sure he’s not involved.” It also said that Goodpasture had wanted Wilson’s “ass cook[ed].” During cross-examination, Waite drew attention to the fact that Goodpasture was allegedly involved with two women who were dating other men, that he had written Higley multiple letters while in jail, that he was angry with Wilson for beating him up, and that he had told the police that the beating was related to his alleged relationship with Kim. But Waite did not present evidence that Goodpasture had mailed the two additional letters noted above, each indicating that Goodpasture was not present at the crime scene and was unsure whether Wilson murdered Boldridge. Wilson presented police reports indicating that after Boldridge’s murder, Goodpasture’s cellmate, Sean Kelley, had told the police that Kim had been having an affair with Goodpasture and had sent him a letter from jail discussing Boldridge’s murder. Kelley told the police that the letter from Kim to Goodpasture had indicated that Wilson shot Boldridge, that the weapon used was not in the river, and that Kim knew why Wilson murdered Boldridge. Kelley also indicated that Goodpasture had said he had heard Wilson bragging about murdering Boldridge. Wilson presented evidence that there were serious discrepancies in Goodpasture’s statements to the KBI and that Waite did not address these discrepancies when cross-examining Goodpasture. Goodpasture made statements to the KBI on the following dates: • On March 30, 2000, Goodpasture spoke with the KBI about Boldridge’s murder but did not implicate Wilson or suggest that Goodpasture had firsthand knowledge of the murder. • On August 3, 2000, Goodpasture told the KBI that Wilson had beat him and Kim, saying, “ If you guys want to [have sex], then [do it].’ ” Goodpasture also said he had not discussed the Boldridge homicide with Wilson but that Kim thought Wilson was responsible. Goodpasture said he was not sure whether Wilson was responsible. • On September 14, 2000, Goodpasture took a polygraph examination. He stated that he had not been present when Boldridge was shot and that he had not taken part in the murder. He also indicated that Lisa and Wilson could have been involved in the homicide. • On September 19, 2000, the KBI received a letter from Goodpasture indicating that while Wilson was beating Good-pasture and Kim, he had said the beating was “nothing compared to what he was going to do with Gary Skeen,” and “if [Goodpasture] thought what happen[ed] to [Boldridge] was bad just wait.” That same day, Goodpasture told the KBI that he had tried to block out the Boldridge homicide but that everything had come back to him. He described the murder as follows: On March 18 or 19, Wilson came over to Gillis’ house and told Skeen and Good-pasture that Boldridge had “laid his hands on” Wilson’s kid. Wilson, Skeen, and Goodpasture left and went to Boldridge’s sometime between 10 p.m. and 1 a.m. Lisa let them in to Boldridge’s house, and Skeen said Wilson was going to kill Boldridge. Goodpasture saw “a black male with no shirt on, sitting at the end of a bed, feet and legs straight out.” Wilson was trying to hold a pillow to the back of the man’s head, and the man was slumped over, like he might have been asleep. When Goodpasture, Skeen, and Wilson left, Goodpasture saw a silver revolver lying in the front seat of the car. Wilson then dropped Goodpasture and Skeen off at Gillis’ house. Goodpasture didn’t think Wilson knew that he had come into Boldridge’s house that night. • On September 21, 2000, Goodpasture told the police that on the Thursday or Friday of the week before the police found Boldridge’s body, Goodpasture had been at Gillis’ house, and Wilson had told him “ ‘he was going to kill that son of a bitch [Boldridge]’ ” because Boldridge had raped or molested Wilson’s son. Goodpasture said that he and Skeen had tried to talk Wilson out of killing Boldridge but that he had been very persistent in saying he wanted to kill him. Goodpasture said that Lisa had let them into Boldridge’s house and that he had seen her with a shotgun. He said that Lisa had handed Wilson the gun and said, “ ‘[H]ere, Kirk, just kill him,’ ” while Good- pasture and Skeen stood by watching. Boldridge was asleep in the bed, about half covered up with a blue comforter. Wilson went to the left side of the bed and shot Goodpasture, who was lying on his back, in tire face, from about 12 to 18 inches away. Goodpasture and Skeen were scared and ran out to the car. Wilson then drove Goodpasture and Skeen to the Missouri River while Lisa followed in a separate car. Goodpasture saw that the gun was wrapped in a blanket and that Wilson wiped it down, but he could not remember for sure what happened to the gun. • On September 22, 2000, Goodpasture requested to speak to the police in the early morning hours because he had just remembered what happened to the gun. He said that after he, Skeen, and Wilson had left Boldridge’s house, Wilson had driven over the Missouri River bridge and parked along the river bank just north of the bridge. Wilson took the gun from Lisa, wiped it down with a blanket, and threw the gun and the blanket into the river. Goodpasture also remembered that after the murder he had seen a hole on the left side of Boldridge’s head about the size of a quarter but that “[i]f you were looking from the foot of the bed, the gun shot would have been on the right side of [Boldridge’s] face.” (Emphasis added.) The skin of Kurt’s face was folded back on the top side of the hole. • On October 4, 2000, Goodpasture told the KBI that before and after the shooting, he and Skeen had searched Bold-ridge’s bedroom for cocaine. He also said that before Wilson shot Boldridge, he had helped Wilson load the shotgun. After Wilson disposed of the gun, Goodpasture said that Wilson had said that he had found it “with the butt in the water and the barrel sticking straight up.” Goodpasture said Wilson had told Skeen that he had retrieved the gun and thrown it into the river behind the prison in Leavenworth. But Goodpasture also said he overheard Wilson tell Skeen that he had destroyed the gun with a sledgehammer and a rock. Goodpasture also indicated for the first time that Wilson had told him that the two of them, Lisa, and Skeen would each receive about $20,000 in insurance proceeds because Boldridge had a $100,000 life insurance policy. When Good-pasture declined his share of the money, Wilson drove Good-pasture and Skeen to the river, and while Skeen held a pistol to Goodpasture’s head, Wilson injected a clear liquid into Goodpasture’s arm to “calm Goodpasture down.” • On October 9, 2000, Goodpasture told the KBI that before the murder, Skeen had not tried to talk Wilson out of murdering Boldridge. Goodpasture reported that Skeen had told Wilson, “ If you want to kill him, kill him’ ” and had then said that Goodpasture had to go with them to Boldridge’s house. At the house, Goodpasture told Wilson how to load the gun, and Wilson put the shell in. Before Wilson shot Boldridge, Boldridge started to wake up, raising his head up about 4 inches. After that, Wilson looked for cocaine under pillows on the other side of the bed. Goodpasture reported that at that point he had said, “ ‘Maybe I can save him,’ ” and Skeen pointed a pistol at Goodpasture until he changed his mind. Goodpasture and Skeen then continued the search for cocaine. Goodpasture said that he had later suggested they call 911 and leave the phone off the hook. This angered Skeen, who pointed the pistol at Goodpasture’s head. Goodpasture told Skeen, “Gary, don’t, we’ve been like brothers. Don’t shoot me. If you want me to, I’ll shoot him. Just don’t kill me. I’m with you. I won’t say nothing.” Skeen threw the blanket off Boldridge’s body, up toward his head, and told Goodpasture that he had to perform oral sex on the body or they’d have to kill him. Goodpasture said he then had put his mouth on Boldridge’s penis and had spit on it at Skeen’s command. Skeen then made Goodpasture touch the box of shotgun shells and put his fingerprints on the headboard, dresser, boxes, and walls. Wilson then drove Skeen and Goodpasture to the river. On the way, he stopped on the road to talk to someone. Goodpasture couldn’t see the person but thought it was Larry Haley. At the river, Wilson wiped the shotgun down and threw it in river. He then took Skeen and Goodpasture to Gillis’ house where they spent the night. Goodpasture said that the next day, Wilson had said that he, Lisa, Skeen, and Goodpasture would each receive $20,000 from Boldridge’s $100,000 life insurance policy because there were five people involved with the murder. Goodpasture thought the fifth person was Larry Haley. Goodpasture, Wilson, and Skeen then went back to the river where Wilson said he had dropped the shotgun. Wilson told the others he had seen the barrel sticking up, so he retrieved it and had Haley drive him to Leavenworth to get rid of the gun. Kerns testified that Waite had failed to adequately investigate the case and that the failures he testified about were not the result of reasonable decisions of defense strategy: “[T]here’s a difference between a strategy decision and a bizarre failure to introduce evidence. I think this falls along the lines of a bizarre failure to introduce evidence. When every single strategy happens to be the one that’s the laziest strategy, you have to start calling into question that strategy. When every single excuse is, well, it was strategy, and by the time we get to die 10th this-is-a-strategy thing and every single time the strategy thing just happens to coincide with the least effective way to do it, you have to start calling into question whether this is a real strategy thing or if we got a real problem.” The district court found merit in all five of Wilson’s claims and ordered a new trial. The State has appealed to this court. Analysis I. Wilsons Trial Counsel Was Constitutionally Ineffective. We begin with the standards against which we must measure the conduct of Wilson’s trial attorney. To obtain habeas relief, Wilson had the burden to show two things set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984): (1) that his attorney’s work was below minimum standards and, thus, was constitutionally deficient; and (2) that his attorney’s substandard work prejudiced his defense. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013); Mattox v. State, 293 Kan. 723, 725-26, 267 P.3d 746 (2011). We often refer to tírese two parts of the Strickland test as the “performance prong” and the “prejudice prong.” Mattox, 293 Kan. at 726. The benchmark for judging Wilson’s claim was whether his attorney’s conduct “so undermined the proper functioning of the adversarial process” ’ ” that the district court could not rely on his trial “ ‘ “having produced a just result.” ’ ” Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). When the district court has conducted an evidentiary hearing, we review its factual findings to be sure that they are supported by substantial evidence; if they are, we must accept them. Adams, 297 Kan. at 669; Mattox, 293 Kan. at 725; Thompson v. State, 293 Kan. 704, 715-16, 270 P.3d 1089 (2011). Whether the defendant has met the two-part showing required under Strickland presents a legal issue that we review independently, without any required deference to the district court. Adams, 297 Kan. at 669; Mattox, 293 Kan. at 725; Thompson, 293 Kan. at 716. When we evaluate the performance prong of the Strickland test, we don’t view the attorney’s performance through the corrective lens of hindsight. Rowland v. State, 289 Kan. 1076, 1086, 219 P.3d 1212 (2009). Instead, we presume that the attorney’s performance fell within the wide range of reasonable professional assistance and consider the entire range of possible reasons why the attorney might have made the decisions that he or she did. See Cullen v. Pinholster, 563 U.S. 170, 195-96, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011); Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006). Our test is not what the best or even a good attorney would have done but whether some reasonable attorney could have acted, under the circumstances, as the defense attorney acted at trial. Hardwick v. Benton, 318 F. Appx. 844, 846 (11th Cir. 2009). Much of this case rests on whether the decisions Waite made in defending Wilson were in pursuit of some reasonable defense strategy: An attorney’s strategic decisions are essentially not challenge-able if the attorney made an informed decision based on a thorough investigation of the facts and the applicable law. Edgar, 294 Kan. at 839; Thompson, 293 Kan. at 716. But the failure to complete a thorough investigation is a ground for establishing ineffective assistance of counsel. Shumway v. State, 48 Kan. App. 2d 490, 512, 293 P.3d 772, rev. denied 298 Kan. 1203 (2013); McHenry v. State, 39 Kan. App. 2d 117, 123, 177 P.3d 981 (2008) (finding that an attorney’s failure to investigate key issues surrounding the State’s witnesses fell below minimum standards in a case that turned on credibility); State v. James, 31 Kan. App. 2d 548, 553-55, 67 P.3d 857, rev. denied 276 Kan. 972 (2003) (finding an attorney ineffective when he failed to contact or subpoena defendant’s witnesses); State v. Sanford, 24 Kan. App. 2d 518, 521-23, 948 P.2d 1135, rev. denied 262 Kan. 967 (1997) (stating that defense counsel’s failure to make more than perfunctory attempts to contact alibi witnesses fell below minimum standards). In addition, the attorney’s strategy itself must be reasonable. In re Care & Treatment of Ontiberos, 295 Kan. 10, 33, 287 P.3d 855 (2012); Bledsoe v. State, 283 Kan. 81, 93-94, 150 P.3d 868 (2007); Bullock v. Carver, 297 F.3d 1036, 1046, 1048 (10th Cir. 2002). While deliberate strategic decisions that experienced attorneys might disagree about cannot establish ineffective assistance of counsel, “the strategy itself must still pass muster.” Bledsoe, 283 Kan. at 93-94. If no competent attorney would have adopted the strategy, it falls below minimum constitutional standards. See Bledsoe, 283 Kan. at 93-94; Mashaney v. State, No. 101, 978, 2010 WL 3731341, at 11 (Kan. App. 2010); Bullock, 297 F.3d at 1046. For example, in Ontiberos, defense counsel did not introduce available test results at trial to contradict the State’s test results indicating that Ontiberos fell into a high-risk category for committing sexual offenses. The court held that the failure to contradict some of tire “more damaging evidence presented at trial” was a constitutionally deficient performance because the attorney had either utilized an unreasonable strategy regarding the test results or had failed to familiarize himself with the evidence in the case. 295 Kan. at 33. We then evaluate the prejudice prong of the Strickland test and determine whether the defendant has shown a reasonable probability that the result of the trial would have been different but for the defense attorney’s inadequate work. Mattox, 293 Kan. at 725-26. A defendant can establish prejudice by demonstrating that an accumulation of errors created a reasonable probability of changing the outcome of the trial. See Ontiberos, 295 Kan. at 40-41. While Ontiberos appears to be the only Kansas case specifically applying a cumulative-error analysis to an attorney’s errors under Strickland and granting relief, that rule is in line with most other courts. See Moyer, To Err Is Human; To Cumulate, Judicious: The Need for U. S. Supreme Couri Guidance on Whether Federal Habeas Courts Reviewing State Convictions May Cumulatively Assess Strickland Errors, 61 Drake L. Rev. 447, 466-67 (2013) (noting that a majority of federal circuits apply cumulative-error analysis in applying the Strickland prejudice test). Here the State argues that Wilson has not presented any evidence indicating that Waite failed to investigate the case or that his actions at trial weren’t protected strategic decisions. The State insists that in the absence of any evidence that Waite’s decision was not strategic, Wilson cannot overcome the strong presumption that counsel’s conduct fell within die wide range of reasonable professional assistance, citing Burt v. Titlow, 571 U.S. _, 134 S. Ct. 10, 17, 187 L. Ed. 2d 348 (2013) (stating that the absence of evidence of counsel’s effectiveness cannot overcome the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance); Pinholster, 131 S. Ct. at 1407 (stating that when trial counsel dies before a postconviction hearing, the reviewing court must consider the range of all possible reasons for trial counsel’s decisions); and Pabst v. State, 287 Kan. 1, 17, 192 P.3d 630 (2008) (stating that when the allegedly ineffective counsel doesn’t testify at the habeas hearing, the court’s review of counsel’s conduct is highly deferential). 1. Waite’s Representation Was Constitutionally Deficient in Several Respects. A. Transcripts of Taped Conversations Indicating that Wilson Did Not Know Lisa Boldridge We first consider the State’s brief argument that the transcripts of Wilson’s conversations with Lisa and Investigator Myer- (where he didn’t know Lisa) would have been hearsay—which is generally inadmissible at trial—and that we cannot deem' Waite’s representation ineffective for his failure to seek,the admission of inadmissible evidence. That argument overlooks a well-known exception to the hearsay rule in Kansas: When the alleged hearsay statement was made by someone who is present at the hearing and available for cross-examination, the statement is admissible. See K.S.A. 60-460(a); State v. Stafford, 296 Kan. 25, 47-48, 290 P.3d 562 (2012). Here Wilson testified at trial, so the State could have cross-examined him about his conversations with Lisa and Investigator Myer, and the admission of the transcripts would not have been barred by tire hearsay rule. The State’s main argument on this issue is that Waite strategically declined to present transcripts of Wilson’s conversations with Lisa and Investigator Myer to the jury. The State contends that Waite may have believed that if he introduced the evidence, the jury would have thought Wilson and Lisa were working together “to throw the police off their trad.” But that wouldn’t have been a reasonable strategy decision. The transcripts would have been very important in this case because they would have created questions about Goodpasture’s credibility and forced the jury to consider how it could be that Wilson did not recognize Lisa if he had been Lisa’s co-conspirator just a few weeks before. The transcripts could only have helped Wilson’s defense. The transcripts strongly suggest that Wilson wasn’t involved with the murder. And Waite could have ensured that the jury didn’t think Wilson and Lisa were working together; Waite could have presented evidence that Wilson told Investigator Myer that he thought Lisa was involved with the murder. Waite’s failure to present the transcripts is evidence that a reasonable person might accept as sufficient to support the conclusion that Waite had either failed to investigate Wilson’s case enough to find the taped conversations in the first place or made an unreasonable strategy decision not to offer them. Thus, Waite’s failure to introduce the transcripts of the conversations satisfies the performance prong of the Strickland test. B. Police Reports Contradicting the Date of the Murder At trial, the State presented evidence that the murder occurred on tire night of Saturday, March 18, 2000 (or perhaps veiy early on Sunday, March 19). Waite did not present evidence that suggested Boldridge was still alive on Monday, March 20. The State argues that this was a protected decision of trial strategy—Waite strategically chose to accept the State’s date for tire alleged crime and then present an alibi for that Friday night. The State notes that Waite’s statement to Wilson at trial that the police report indicating that Boldridge’s mother had spoken to him on Sunday, March 19, would have ruined his alibi demonstrates that it was a strategic decision. We agree that Waite made a strategic decision. But an attorney’s strategic decisions are only unchallengeable in habeas cases if counsel made an informed decision based on a thorough investigation of the facts and law applicable to the case. Edgar, 294 Kan. at 839; Thompson, 293 Kan. at 716; Mashaney, 2010 WL 3731341, at 11 (“[A] misinformed or vacuous strategy decision must not escape a full investigation for its ineffectiveness.”). And here Waite’s decision could not have been based on a thorough investigation of the facts. In this case, five different people—Boldridge’s mother, his neighbor, the Stewart sisters, and Duane Boldridge— told police that they had heard or seen that Boldridge was alive after the date and time that Goodpasture said he had died. Because no physical evidence linked Wilson to the crime, damaging Good-pasture’s credibility as an eyewitness was critical to Wilson’s case. It was not a reasonable trial strategy to agree to Goodpasture’s date for the alleged crime simply because Wilson had an alibi on that date when as many as five witnesses could have offered conflicting testimony. See Shumway, 48 Kan. App. 2d at 502 (finding ineffective assistance of counsel when the time of the crime was a critical factor in determining guilt and counsel failed to call two witnesses who could have provided an alibi for the time of the crime); McHenry, 39 Kan. App. 2d at 123 (finding defense counsel ineffective when the trial turned on credibility and counsel failed to investigate State’s witnesses and as a result was unprepared to present defendant’s "most effective defense”). Moreover, several other considerations suggest that Waite didn’t thoroughly investigate the case. First, Wilson’s alibi—which was that he was in the same house as his sleeping son and intoxicated wife—was not a strong enough alibi to warrant declining an opportunity to damage the credibility of the only testifying eyewitness to the crime. This is particularly true because it is unlikely that— as the State also argues—the crime could have occurred as Good-pasture described it but at a later date. That’s because Goodpasture had a weekday job that would have prevented him from observing the events he said happened after the murder. The State also asserts that Waite’s decision made sense because Boldridge’s mother and neighbor would have been weak witnesses, arguing that during Lisa Boldridge’s murder trial, Boldridge’s mother had doubts about when she last heard from or saw Bold-ridge, and the neighbor said that he never saw Boldridge after he heai'd shots fired at his house. But the arguably weak testimony of two witnesses isn’t a reason to decide not to call any of these witnesses. Even if Boldridge’s mother and neighbor were not ideal witnesses, their testimony could have been corroborated by the Stewart sisters—who Waite never contacted—and Duane Bold-ridge. As a result, we find that Wilson has overcome the presumption that Waite’s conduct fell within the range of reasonable professional assistance. Because the reports were available in the police and KBI files, Waite would have discovered those witnesses if he had thoroughly investigated the facts of the case. The fact that he didn’t introduce them at trial is substantial evidence that he didn’t. Accordingly, Waite’s conduct regarding the police reports was ineffective under the performance prong of the Strickland test. C. Goodpasture’s Letters to Cindy Higley The State also argues that Waite made a strategic decision not to use all of the letters Goodpasture wrote to Cindy Higley at trial. The State says that Waite knew about the letters Goodpasture wrote Cindy Higley because he listed “[l]etters from John Good-pasture to Cindy Higley” on his pretrial exhibit list. (Emphasis added.) The State also asserts that the letters would have been cumulative and thus unnecessary because Waite presented the general nature and content of the letters at trial. See Bledsoe, 283 Kan. at 103 (finding that the failure to present cumulative testimony is not ineffective assistance of counsel). But failing to offer the September 20 letter was not a reasonable strategy decision. The fact that Goodpasture sent the letter after he started implicating Wilson in the murder would have impeached Goodpasture’s credibility on the fact that the events of the murder suddenly came back to him, suggesting that he continued to lie to the KBI about the murder. The letter also would not have harmed Wilson’s defense because the only relevant point it discusses is the fact that Goodpasture was unsure about Wilson’s guilt. The September 20 letter also would not have been cumulative. It indicated that Goodpasture still had doubts about Wilson’s involvement after he provided the only eyewitness account to the KBI. We find that Waite’s failure to offer it fell below minimum standards. On the other hand, we find that defense counsel could have reasonably decided not to present the August 14 letter, which indicated that Goodpasture was unsure of Wilson’s involvement in tire murder and that Kim should be happy that Wilson was being tried for Boldridge’s murder. The letter was less useful in impeaching Goodpasture’s credibility because it was written before Good-pasture began implicating Wilson in the murder. Moreover, despite Wilson’s argument that the letter would have supported a defense theory that Goodpasture and Kim framed Wilson (because it indicated that Kim wanted Wilson to be incarcerated), Waite may have had a valid strategic reason for not offering the letter. The evidence that supported the theory also implicated Wilson in the murder. As explained below, while there is evidence that Kim and Goodpasture may have been conspiring to frame Wilson, that evidence highlights the fact that Wilson’s wife said he murdered Boldridge and corroborated Goodpasture’s testimony. As a result, reasonable attorneys might not agree on whether to use the theory. Since Waite did present one of Goodpasture’s letters at trial, the August 14 letter would only be useful if Waite adopted the defense theory that Goodpasture and Kim framed Wilson. Because he might have had a valid strategy reason for not adopting the theory, we find that Waite was not ineffective for failing to present the letter at trial. D. Waite’s Cross-Examination of Goodpasture We have set out in detail earlier in this opinion the varying and contradictory statements Goodpasture made to law-enforcement officers between March 30, 2000, and October 9, 2000. A skilled trial attorney would be able to construct a highly effective cross-examination of Goodpasture from those statements. But we must determine not what a highly skilled trial attorney would do; we must determine what a minimally adequate cross-examination would be. Wilson was entitled to that minimum-level, constitutionally adequate performance. Even applying that standard, Waite’s cross-examination of Good-pasture was inadequate. Several key points were not explored at all: • Goodpasture said on direct examination that a major reason he had initially lied to police was his desire to protect Skeen, who had been a friend since childhood. But in one of Good-pasture’s statements to police, he said that Skeen had pointed a gun at him after the murder and forced Goodpasture to put his mouth on the dead man’s penis; Goodpasture also told police that Skeen later held a gun to Goodpasture’s head while Wilson injected Goodpasture with some clear liquid. Waite did not ask Goodpasture how he could have left such memorable details of the events out of his direct testimony at trial. Nor did he ask why he would have wanted to protect Skeen after, Skeen had done these things to Goodpasture. • As the district court noted in its factual findings, Boldridge’s body was found lying on its stomach and on its right side. In his detailed statement to police on September 21, 2000, Goodpasture had said that Boldridge had been lying on his back when Wilson shot him from the left side of the bed (defined as the left side looking toward the headboard). That would have resulted in Boldridge being shot on the right side of his head. Goodpasture confirmed this location of the gunshot wound in a September 22, 2000, interview. But Bold-ridge was shot in his left temple. Waite did not ask about this discrepancy. • Waite didn’t ask Goodpasture whether he knew what he had been injected with by Wilson and whether it might have impacted his ability to recall the events. • Waite didn’t ask Goodpasture about specific statements in various letters he had sent from jail, including his statement on September 20, 2000—after he had begun telling police that Wilson committed the murder—that Goodpasture didn’t know whether Wilson had been involved. We recognize that Waite did cross-examine Goodpasture, and he made some good points in doing so. He began by pointing out the plea agreement under which Goodpasture would be allowed to plead to a relatively low-level felony (conspiracy to commit aggravated burglary) rather than the first-degree-murder charge initially brought against him. He also established generally that Goodpasture had made inconsistent statements and had sometimes lied to police. He also got Goodpasture to admit that he had written to Higley that Goodpasture wanted Wilson’s “ass cooked” (though the prosecutor had Goodpasture testify on redirect that this referred to the incident when Wilson beat up Goodpasture, not to the murder). Based on tire transcript, our Supreme Court noted that Waite had “vigorously cross-examined Goodpasture.” State v. Wilson, 281 Kan. 277, 281, 130 P.3d 48 (2006). But that characterization of a “vigorous!]” cross-examination must not be taken out of context. It came during the court’s review of Wilson’s challenge to the sufficiency of the evidence to convict him. Wilson argued on direct appeal that because Goodpasture had made contradictory statements, his testimony wasn’t sufficient to support a guilty verdict. In that context, the court noted that the jury had heard Goodpasture and that Goodpasture had been cross-examined. The court also was required to review the facts in the light most favorable to the State, since the jury had ruled in its favor. 281 Kan. at 280-81. Our Supreme Court did not have before it the additional evidence presented to the district court on Wilson’s habeas claims, evidence that made additional areas of cross-examination crucial. See Driscoll v. Delo, 71 F.3d 701, 710-11 (8th Cir. 1995) (finding ineffective assistance of counsel where attorney failed to cross-examine key eyewitness with inconsistent prior statements and witness’ story about events had expanded and gained clarity over time). We do not suggest that an attorney must ask every potential cross-examination question, even of a key witness. Sometimes brevity is key in making a simple yet telling point. Here, however, there were too many key details unexplored in Waite’s cross-examination of Goodpasture for us to accept the normal presumption that Waite made reasonable decisions to limit his cross-examination to only a few key points. Rather, we conclude that Waite’s failure showed a lack of appropriate presentation and fell below tire objective standard of reasonableness. Goodpasture was too important a witness in the case against Wilson to leave so much unexplored. E. Kim’s Letter to Goodpasture Wilson’s final claim that was accepted by the district court was that Waite should have introduced evidence about a letter Kim wrote to Goodpasture while he was in jail. Wilson argues that the letter was crucial to show that Kim and Goodpasture—who didn’t implicate Wilson until he beat them in August 2000—were communicating “to string enough facts together to get Wilson arrested for the crime” before implicating him. As a result, Wilson says that Waite’s decision not to offer the letter at trial was an unreasonable strategy. Under the presumption that Waite’s performance fell within the wide range of reasonable professional assistance and die requirement that we consider the entire range of possible reasons Waite could have had for making his decision, we note one reasonable, strategic reason why Waite could have decided not to introduce the evidence-—-it implicated Wilson in the murder. Information about the letter came from Kelley, Wilson’s cellmate. Kelley’s statements about the letter Kim allegedly wrote to Goodpasture (who let Kelley read the letter) would have corroborated Goodpasture’s eyewitness testimony that Wilson murdered Boldridge. While Wilson may argue that the letter really shows a conspiracy between Kim and Goodpasture to falsely implicate Wilson, that isn’t the only conclusion that could be drawn from the evidence. The letter s inference of collusion to falsely implicate Wilson is not so strong as to overcome the presumption that Waite’s decision not to introduce the letter was within the wide range of reasonable professional judgment about what evidence to introduce. F. The District Court Did Not Err by Considering Expert Testimony from Attorney Kerns. The State also contends that the district court improperly relied on Kerns’ expert testimony as evidence that Waite was ineffective and that we cannot consider the testimony substantial evidence for the court’s decision. The State cites New Mexico, Missouri, and federal cases that say such testimony is unnecessary because it does not explain something outside the trial judge’s areas of expertise. See Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (“[I]t would not matter if a petitioner could assemble affidavits from a dozen attorneys swearing that the strategy used at his trial was unreasonable ... [because whether an attorney was ineffective] is a question of law to be decided by the . . . courts.”); Sidebottom v. State, 781 S.W.2d 791, 794-95 (Mo. 1989) (finding that the court did not err in excluding attorney expert testimony on ineffective assistance of counsel because “the motion court was at least as qualified as the witness to form an opinion on the question”); Lytle v. Jordan, 130 N.M. 198, 212, 22 P.3d 666 (2001) (“[I]t is superfluous for expert witnesses to advise a court . . . about the proper application of existing law to the established historical facts and about the ultimate issue of trial counsel’s effectiveness.”). But the mere fact that the ultimate question at issue is a legal one for the court to determine does not make potential testimony on the subject inadmissible. The Kansas Rules of Evidence make clear that expert testimony “is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.” K.S.A. 60-456(d). Accordingly, when expert testimony may be helpful to the court in understanding the background facts of the case or determining the ultimate legal issue, the testimony is admissible. See K.S.A. 60-456(b); State ex rel. Schmidt v. Memorial Park Cemetery, Inc., No. 108, 063, 2013 WL 1943071, at 11-12, rev. denied 298 Kan. 1203 (2013). While it’s true, as the State argues, that many judges have had experience trying criminal cases, many have not. Certainly, most judges have not had the level of experience of Kerns, who had defended 10 murder trials and handled more than 60 jury trials. His testimony helped to place the legal issues of this case into context and thus was admissible. See K.S.A. 60-456(b); Memorial Park Cemetery, 2013 WL 1943071, at 11-12. So, expert testimony may be admitted, but since the ultimate question is a legal one, that testimony is not determinative. See KPERS v. Kutak Rock, 273 Kan. 481, 493, 44 P.3d 407 (2002). Thus, the district court is free to admit expert testimony regarding the Strickland analysis, but that court—and any appellate court on review—must make its own independent conclusions. While the district court cited in part to Kerns’ testimony in the court’s ruling, the district court made its own independent legal conclusions. Moreover, based upon our own independent review, we agree with those conclusions, and we too found Kerns’ testimony helpful. The district court did not err here by admitting Kerns’ testimony. 2. Waite’s Failure to Introduce the Taped Conversations, Police Reports, and Letters to Cindy Higley Prejudiced Wilson’s Defense. Our next question, then, is whether Waite’s conduct that fell below minimum standards for attorney performance prejudiced Wilson’s defense. See Mattox v. State, 293 Kan. 723, 725-26, 267 P.3d 746 (2011). Here one major theme pervades Waite’s errors— his failure to damage the credibility of the State’s only eyewitness. This theme was evident in Waite’s failure to introduce transcripts of Wilson’s conversations with Lisa and Investigator Myer. The district court weighed the transcripts, heard portions of the tapes, and heard Wilson’s testimony about them, and the district court found that Wilson did not recognize Lisa when she approached him. We do not reweigh that evidence on appeal. See State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009). The fact that he did not recognize her cast serious doubt on whether he was present at the murder as Goodpasture described it. This theme was also evident in Waite’s ineffective cross-examination of Goodpasture. Goodpasture remembered key details in dramatically different ways, and his inability to mention memorable details until he had retold his stoiy several times strongly suggested that he was making it up as he went along. Because Goodpasture was the only eyewitness, there is a reasonable probability that the outcome of Wilson’s trial would have been different if the jury had heard the conversations in the transcripts and seen an effective cross-examination of Goodpasture. We cannot rely on Wilson’s trial as “ ‘ “having produced a just result.” ’ ” Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). The other two errors—Waite’s failure to introduce police reports indicating that Boldridge was seen alive after the date Goodpasture said he was murdered and the September 20 letter Goodpasture wrote to Cindy Higley—also undermine our confidence in the trial’s outcome, when taken together. These errors also fit within the theme of failing to damage Goodpasture’s credibility. Since Waite didn’t introduce the police reports, the juiy didn’t know that there was a real question about the timeline Goodpasture provided. And because Goodpasture worked during the week, the murder was unlikely to have happened as he described but on a later date. Furthermore, the September 20 letter also would have seriously undermined Goodpasture’s credibility. Waite’s failure to introduce it kept the jury from hearing evidence that Goodpasture continued to Me to the police about his knowledge of Boldridge’s murder after he began implicating Wilson. Since there was no physical evidence implicating Wilson in the murder, damaging Goodpasture’s eyewitness testimony was crucial to Wilson’s defense. When taken together, tiróse errors satisfy the prejudice prong of the Strickland test: there is a reasonable probability that the result of Wilson’s trial would have been different if Waite had provided adequate representation in the ways we have noted. Accordingly, the district court properly ordered a new trial. II. We Need Not Consider the Issues Presented in Wilsons Cross-Appeal. The district court denied Wilson’s attempt to amend his habeas claim to present two additional grounds for a finding that Waite had failed to provide adequate representation. Wilson cross-appealed that denial. But there is no reason for us to consider the cross-appeal since we have already concluded that Wilson is entitled to a new trial. He seeks no other relief on his cross-appeal. The district court’s judgment is affirmed.	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Atcheson, J.: By statute, Kansas extends immunity from criminal prosecution to persons acting in self-defense. K.S.A. 2014 Supp. 21-5231. The statute, however, fails to describe how district courts should go about deciding a request for that protection. The Kansas Supreme Court has held the State must establish probable cause to show that a defendant has not acted in lawful self-defense. State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 (2013). But the court expressly declined to outline the procedures for presenting or resolving immunity claims. This case requires us to fill that void. Drawing cues from Ultreras, we find a district court should conduct an evidentiary hearing procedurally comparable to a preliminary examination, so the rules of evidence apply and conflicting evidence should be resolved in favor of the State. Based on those standards, the Sedgwick County District Court erroneously granted self-defense immunity to Defendant Marlon T. Hardy. We, therefore, reverse and remand to the district court with di rections tliat the charge of aggravated battery against Hardy be reinstated for further proceedings. Factual and Procedural History What we consider amounts to a matter of statutory interpretation and, thus, a question of law. State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012). Our review owes no particular deference to the district court’s determination on how to handle Hardy’s motion for self-defense immunity. In re Care & Treatment of Quary, 50 Kan. App. 2d 296, 301, 324 P.3d 331 (2014). And, given the issue, the factual circumstances out of which the criminal charges arose are largely irrelevant, save for some general context. Hardy and another man stopped at a party to pick up a couple of female acquaintances. Some other partygoers came out and approached the convertible in which Hardy was riding. There are multiple versions of what happened. The gist seems to be that Javier Flores, the putative victim of the aggravated battery, approached the car and without provocation punched Hardy in the face several times. Hardy picked up a handgun from inside the car and fired a shot, striking Flores in the shoulder. Witnesses offered differing accounts as to whether Flores continued to threaten Hardy after punching him, whether Flores was being physically restrained when Hardy fired, and whether other partygoers menaced Hardy. The State charged Hardy with aggravated battery, a severity level 4 person felony violation of K.S.A. 2014 Supp. 21-5413. After he was bound over for trial at a preliminaiy examination, Hardy filed a motion for self-defense immunity, as provided in K.S.A. 2014 Supp. 21-5231(a). The district court convened a hearing on the motion and wound up spending much of the time with the prosecutor and Hardy’s lawyer trying to sort out what ought to be considered in deciding the request for immunity. The district court ultimately received and reviewed the transcript of the preliminary examination at which Flores and Yuliana Mejia testified, two police reports, transcripts of tape recorded police interviews with Hardy and with Mejia, and a few other documents. The district court heard no witnesses as part of the motion hearing, although neither side asked to present live testimony. In short, the district court held a nonevidentiary hearing and considered a good deal of material that would have been inadmissible at the preliminary examination or at trial. Two days later, the district court made a detailed bench ruling granting Hardy’s motion for immunity and dismissing the complaint. Given tire ruling, the district court obviously recognized factual conflicts relevant to self-defense as portrayed in the materials submitted at the hearing. The district court also plainly resolved at least some of those conflicts in deciding the motion and did so favorably to Hardy, although the ruling doesn’t describe those determinations with any particularity. The State has appealed the dismissal of the complaint, as permitted by K.S.A. 2014 Supp. 22-3602(b)(l). Legal Analysis Self-Defense Immunity in Light of Ultreras Persons facing criminal charges for their use of force may assert a statutory immunity on grounds they acted lawfully. If warranted, the immunity would bar their arrest or prosecution. K.S.A. 2014 Supp. 21-5231. Enacted in 2010, the self-defense immunity statute provides: “(a) A person who uses force which, subject to the provisions of K.S.A. 2014 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2014 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer’s official duties and the officer identified the officer’s self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, ‘criminal prosecution’ includes arrest, detention in custody and charging or prosecution of the defendant. “(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but tire agency shall not arrest the person for using force unless it determines that there is probable cause for Ae arrest. “(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause.” K.S.A. 2014 Supp. 21-5231. We refer to the statutory shield as self-defense immunity, although it extends to lawful force used to protect another person, a dwelling, a place of business, and an occupied vehicle or to prevent the unlawful interference with other property. The statute substantively goes beyond establishing a defense to criminal charges and imposes immunity from arrest and prosecution. Despite the breadth of that protection, the statute conspicuously lacks any guidance as to how procedurally a claim for immunity should be handled in the district or appellate courts. In Ultreras, the court held that the State bears the burden of establishing probable cause to believe a person’s use of force to be unlawful or unjustified to defeat a claim for self-defense immunity. 296 Kan. at 845. The court drew the standard from the statutory language found in K.S.A. 2014 Supp. 21-5231(b) and (c) permitting arrest and prosecution to go forward based on “probable cause” determinations. 296 Kan. at 844-45. Accordingly, the State must negate a claim for self-defense immunity to establish “probable cause” that a crime had been committed and the defendant committed it. 296 Kan. at 844. The court, however, declined to offer any guidance on “the procedures by which the immunity defense should be presented to or resolved by the district court.” 296 Kan. at 845.[1] [ljGiven the posture in which the issue came up on appeal in Ultreras, the court didn’t have to formally address the procedural mechanics of deciding self-defense immunity claims. The district court erroneously required Ultreras to prove entitlement to self-defense immunity by a preponderance of evidence and, therefore, improperly denied his request. But the court found the error to be harmless because a jury later convicted Ultreras of aggravated battery, thereby rejecting his claim of self-defense. The jury necessarily concluded that the evidence didn’t even create a reasonable doubt about Ultreras’ guilt. See State v. Johnson, 258 Kan. 61, 66, 899 P.2d 1050 (1995). Accordingly, the motion for self-defense immunity would have failed under the correct probable-cause standard-— a significantly less rigorous burden for the State than proof beyond a reasonable doubt. See State v. Jones, 298 Kan. 324, 334, 311 P.3d 1125 (2013). In recognizing a probable cause evidentiary standard and allocating the burden of satisfying that standard to the State, the Ul-treras decision effectively adopts the requirements imposed at a preliminary examination or hearing under K.S.A. 2014 Supp. 22- 2902. (The statute refers to the proceeding as a preliminary examination; but in common parlance, it is known as a preliminary hearing.). At a preliminary examination, the district court shall order the defendant to face trial on a charged felony “[i]f from the evidence . . . there is probable cause to believe that a felony has been committed by the defendant.” K.S.A. 2014 Supp. 22-2902(3). Procedural Treatment of Motions for Self-Defense Immunity Following that lead, we see no reason the procedural structure of a preliminary examination shouldn’t similarly be incorporated for handling seif-defense immunity claims. Nothing in either the self-defense immunity statute or Ultreras shouts out to the contrary. As we suggest, the preliminary examination and a request for self-defense immunity typically ought to be decided in a single hearing with a single set of ground rules. The district court, therefore, should hold an evidentiary hearing on a claim for self-defense at which the rules of evidence apply. That is how preliminary examinations now operate. State v. Cremer, 234 Kan. 594, 599-600, 676 P.2d 59 (1984); see In re H.N., 45 Kan. App. 2d 1059, 1069, 257 P.3d 821 (2011). So the State would be obligated to call witnesses and lay appropriate foundations for documentary evidence; it could not rely on inadmissible hearsay. [2] f2]The parties, with the district court’s permission, could stipulate to the use of otherwise inadmissible evidence, just as they may in other proceedings. See Gannon v. State, 298 Kan. 1107, 1125, 319 P.3d 1196 (2014) (discussing scope of stipulations to evidence). Again, consistent with preliminary examinations, the district court should not resolve conflicts in the evidence and, rather, ought to construe the record in a light favoring the State. The district court’s evaluation of evidence at a preliminary examination has been stated this way: “If there is conflicting testimony, the preliminary hearing judge must accept the version of die testimony which is most favorable to the State.” State v. Bell, 268 Kan. 764, 764-65, 1 P.3d 325 (2000); see State v. Whittington, 260 Kan. 873, 877, 926 P.2d 237 (1996); State v. Wilson, 47 Kan. App. 2d 1, 6, 275 P.3d 51 (2008). The issue of self-defense immunity is inextricably bound up in guilt or innocence, and consistent with the strong preference for jurors making fact determinations in criminal cases, the preliminary examination standard preserves that function. A district court would otherwise usurp that role in considering self-defense immunity. Cf. State v. Brooks, 297 Kan. 945, 951, 305 P.3d 634 (2013) (cautioning appellate judges against venturing credibility assessments as “invad[ing] the province of the jury”). Courts similarly assess claims for qualified immunity extended to government officials sued for damages in civil actions. If facts relevant to an official’s claimed immunity are disputed, the issue must be deferred to trial. See Tolan v. Cotton, 572 U.S. _, 134 S. Ct. 1861, 1865-66, 188 L. Ed. 2d 895 (2014); Stoner v. Watlingten, 735 F.3d 799, 805 (8th Cir. 2013). We don’t mean to overwork any analogy between self-defense immunity and qualified immunity. They differ in both context and purpose. See State v. Jones, 298 Kan. 324, 332, 311 P.3d 1125 (2013) (noting qualified immunity should be raised early in a civil case, as should self-defense immunity in a criminal case, but specifically declining to endorse a sweeping analogy of the two). In ruling on other pretrial motions in criminal cases, district courts do weigh evidence and make credibility findings. The most common, perhaps, are defense motions to suppress evidence. See, e.g., State v. Martinez, No. 107,995, 2013 WL 5925903, at “4 (Kan. App. 2013) (unpublished opinion); State v. Cheatham, No. 106,413, 2012 WL 4678522, at 3 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1249 (2013); State v. Reichard, No. 102,890, 2011 WL 588494, at 2 (Kan. App. 2011) (unpublished opinion). But motions of that sort deal with issues only indirectly bearing on guilt or innocence, and jurors will not be called upon to decide those issues at trial. State v. White, No. 109,953, 2014 WL 5312873, at *11 (Kan. App. 2014) (unpublished opinion) (At-cheson, J., concurring). When it comes to self-defense immunity, the procedures for handling a motion to suppress, then, offer a model less apt than those for a preliminary examination. Because self-defense immunity affords a shield against prosecution and the attendant burdens and personal upheaval often associated with participation in the criminal justice process, especially as a defendant facing serious charges, a claim for the protection typically ought to be asserted early in that process. See State v. Jones, 298 Kan. at 334 (defendant must assert statutory self-defense immunity before trial). After a prosecutor has filed charges, a defendant presumably would counter with a motion in the criminal case raising self-defense immunity. The defendant also should be afforded a preliminary examination within 14 days after arrest or an appearance in a felony case unless the hearing is continued for cause. K.S.A. 2014 Supp. 22-2902(2). A hearing on self-defense immunity at that point would provide a prompt determination of the issue consistent with heading off an unwarranted prosecution. As the Ultreras court pointed out, and we have noted, when a defendant seeks self-defense immunity, the State effectively must refute that claim as part of its burden in establishing probable cause to hold the defendant to answer a felony charge. So considerations of timing and common burdens of proof unite motions for self-defense immunity and preliminary examinations. District courts, therefore, ought to facilitate hearings combining preliminary examinations with claims for self-defense immunity. The Kansas Code of Criminal Procedure permits that sort of judicial efficiency. In light of State v. Seabury, 267 Kan. 431, 434-35, 985 P.2d 1162 (1999), a motion for self-defense immunity should be treated as an objection to prosecution, i.e., a challenge to the institution of criminal proceedings against the defendant, governed by K.S.A. 2014 Supp. 22-3208(5). As provided in that statute, a motion objecting to prosecution simply must be determined before trial, consistent with Jones’ requirement for self-defense immunity claims. Accordingly, a district court has the flexibility to set reasonable, case-specific deadlines for filing motions objecting to prosecution generally or motions for self-defense immunity specifically. See K.S.A. 22-3217 (authorizing district court to hold pretrial conferences as may be necessary to “promote a fair and expeditious trial”); State v. Crume, 271 Kan. 87, 99-100, 22 P.3d 1057 (2001) (consistent with K.S.A. 22-3217, district courts have “broad authority ... to consider various matters as may aid in the disposition of the action,” including motion practice); see State v. Bloom, 273 Kan. 291, 300, 44 P.3d 305 (2002) (acknowl edging district court’s use of pretrial conference to set schedule for motions). We, therefore, conclude that by order or local rule, district courts may require that a defendant assert any request for self-defense immunity so that it may be decided in conjunction with a preliminary examination at a single evidentiary hearing. Apart from simple efficiency, that sort of case management prevents a defendant from going to preliminary hearing and then deploying a motion for self-defense immunity principally as a tactical device to secure a second opportunity to examine at least some of the State’s witnesses under oath before trial. Those defendants waiving preliminary examination or charged with misdemeanors would be free to file motions for self-defense immunity anytime before trial, consistent with K.S.A. 2014 Supp. 22-3208, Jones, and case-specific orders. In this case, the district court imposed no such limitation on Hardy, so he may pursue his motion for self-defense immunity on remand. [3] The language of K.S.A. 2014 Supp. 21-5231(a) extends self-defense immunity as a bar to arrest and charging in addition to halting tire continued prosecution of a criminal case already on file. Someone facing possible prosecution arising from an incident involving his or her use of force presumably, then, could seek a court ruling on immunity before any charges had been filed. The facts here don’t implicate that scenario. We venture no speculative suggestion on the proper procedure for invoking self-defense immunity in that abstract (and we think remote) circumstance. Kansas self-defense law includes a rebuttable presumption that a person should be deemed to believe the use of deadly force to be reasonably necessaiy and, thus, lawful in specific enumerated circumstances. K.S.A. 2014 Supp. 21-5224(a). Among other situations, the presumption comes into play if a person uses deadly force against someone who is unlawfully or forcefully entering an occupied vehicle or has done so. Here, Flores did not try to get into the convertible, as someone attempting a carjacking might. Rather, he simply reached in to punch Hardy. The presumption, therefore, appears to be factually inapposite in this case under any version of the events. More broadly, in deciding a motion for self-defense immunity, a district court should not consider the pre sumptions in K.S.A. 2014 Supp. 21-5224(a) if, on some version of the facts, they would be inapplicable. To do otherwise would construe disputed evidence against the State, contrary to our interpretation of K.S.A. 2014 Supp. 21-5231 in light of Ultreras. To sum up, a district court must conduct an evidentiaiy hearing on a motion for self-defense immunity, unless tire parties otherwise stipulate to the factual record. The rales of evidence apply. At the hearing, the State has the burden to establish probable cause that the defendant acted without legal justification in using force. The district court must view the evidence in a light favoring the State, meaning conflicts in the evidence must be resolved to the State’s benefit and against a finding of immunity. Whenever possible, a district court should combine the hearing on the motion with a defendant’s preliminary examination. District Court Misread Ultreras Tea Leaves In attempting to tease some direction on procedure from Ul-treras, the district court here placed undue emphasis on language the decision drew from Rodgers v. Com., 285 S.W.3d 740, 754-55 (Ky. 2009). See Ultreras, 296 Kan. at 841. In Ultreras, the court opted for a probable cause standard in resolving claims for self-defense immunity and cited the Kentucky Supreme Court’s opinion in Rodgers as supporting authority, while distinguishing Colorado authority construing a significantly narrower statutory immunity and Florida authority construing a statute containing no language allowing prosecution to commence upon probable cause as provided in K.S.A. 2014 Supp. 21-5231(c). 296 Kan. at 842-43. The Colorado and Florida courts recognized standards requiring defendants to prove entitlement to statutoiy self-defense immunity in pretrial hearings by a preponderance of the evidence. People v. Guenther, 740 P.2d 971, 980 (Colo. 1987); Dennis v. State, 51 So. 3d 456, 459-60 (Fla. 2010). The district court may have focused on two passages from Rodgers quoted in Ultreras when it decided to permit the State to rely on police reports, witness interviews, and other hearsay. First, the Rodgers court noted probable cause tends to be “ ‘a fluid concept’ ” derived from “ 'die totality of the circumstances,’ ” as when a judge considers whether to issue a search warrant. Ultreras, 296 Kan. at 841 (quoting Rodgers, 285 So. 3d at 754-55). We take the Kansas Supreme Court’s reference to be focused on the totality-of-the-circumstances review in considering probable cause and not to suggest probable cause related to self-defense immunity be established using a process like that for issuing a search warrant. A government agent—typically a law enforcement officer or a prosecutor—presents a warrant application to a judge ex parte. The application commonly may include hearsay and other information that would be inadmissible under the rules of evidence. We doubt Ultreras meant to signal that a request for self-defense immunity could be resolved either on an ex parte basis or with inadmissible evidence. Moreover, a defendant may challenge the sufficiency of a search warrant in an adversarial, evidentiary hearing to suppress anything seized. There would be no comparable judicial determination of a request for self-defense immunity if the motion could be resolved in a nonevidentiary hearing using otherwise inadmissible evidence. In Ultreras, the court also drew on a passage from Rodgers to the effect that once a defendant asserts self-defense immunity, “the State has the burden to establish probable cause ‘and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.’ ” 296 Kan. at 841 (quoting Rodgers, 285 S.W.3d at 755). Again, we presume the court meant to emphasize the burden placed on the State measured by the record evidence and not the particular materials to be considered. The Rodgers court held that a defendant’s claim for self-defense immunity should be resolved at the Kentucky version of a preliminary hearing. 285 S.W.3d at 755. But that preliminary hearing serves a purpose different from the preliminary examination provided in K.S.A. 2014 Supp. 22-2902 and is subject to considerably more relaxed rules. In Kentucky, a district court judge, roughly equivalent to a Kansas magistrate, conducts the preliminary hearing to determine if there is probable cause to refer a felony charge to a grand jury for indictment and then trial in the circuit court. Abramson, 8 Ken tucky Practice, Criminal Practice and Procedure §§ 8:1, 8:14 (5th ed. 2010). The district court judge may also set bail at the prelim-inaryhearing. So the Kentucky preliminary hearing functions much as an initial appearance in Kansas. Unlike a preliminary examination in Kansas, the hearing does not replace a grand jury indictment as the principal mechanism for establishing probable cause to proceed with felony charges. Accordingly, the Kentucky Rules of Evidence do not apply in that state’s preliminary hearing, so hearsay and other evidence that would be inadmissible at trial may be considered. Ky. R. Cr. 3.14(2) (2015); Ky. K.R.E. 1101(d)(5) (2015); see 8 Kentucky Practice, Criminal Practice and Procedure § 8:13. Kentucky prosecutors routinely establish probable cause at preliminary hearings simply by having the criminal investigator handling a given case recount what others have told him or her during the investigation. 8 Kentucky Practice, Criminal Practice and Procedure § 8:13. Given the marked differences in criminal procedure between Kentucky and Kansas, we cannot conclude Ultreras’ reliance on Rodgers meant to endorse a new type of hearing—otherwise unrecognized in the Kansas Code of Criminal Procedure—equivalent to the Kentucky preliminary hearing for resolving motions for self-defense immunity. Nor do we conclude Ultreras allows district courts to dispense with tire rules of evidence in hearing those motions. Finally, in this case, the district court suggested that unless it had the latitude to make credibility determinations and otherwise resolve conflicts in the evidence, a hearing on a motion for self-defense immunity would be of little significance, especially if a defendant had already been bound over at a preliminary examination, as was true for Hardy. In Ultreras, the court explained why that wasn’t so. 296 Kan. at 844. In at least some cases involving the use of force, the State could malee an evidentiary showing of probable cause without addressing possible self-defense. A motion for self-defense immunity necessarily requires the State to deal directly with the issue. See 296 Kan. at 844. Having considered Ultreras and the purpose of statutory self-defense immunity, we reverse the district court’s dismissal of the complaint based on Defendant Hardy s motion. We remand with directions that the complaint be reinstated and the district court hold a hearing on self-defense immunity in conformity with this opinion and conduct any additional proceedings in this case as may be required.	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Leben, J.: The City of Edwardsville, Kansas, opted into the Public Employer-Employee Relations Act in 1999. Doing so gave the City’s employees a specific right to negotiate with their employers over conditions of employment. See State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 292, 894 P.2d 777 (1995). In August 2013, the City voted to opt out of the Act, which is allowed under K.S.A 75-4321(c). The statute provides that a public employer covered by the Act may vote to opt out but that the vote will not take effect until “the termination of the next complete budget year following such vote.” The City considered its vote effective at the end of the 2013 budget year and in January 2014 unilaterally imposed new employment conditions on local fire-department employees. The union-member employees obtained a temporary injunction ordering the City to comply with its obligations under the Act, and the City has appealed the order granting the injunction. The City’s appeal is not well taken as the employees’ claim meets all of the standard tests for granting a temporary injunction. See Downtown Bar and Grill v. State, 294 Kan. 188, 191, 273 P.3d 709 (2012). The employees were likely to succeed on the merits of their claim under the clear language of K.S.A 75-4321(c), which says the City could not stop following the Act until the next complete budget year following the vote—the 2014 budget year—had ended. In addition, the court had substantial evidence that the employees would suffer irreparable injury if the City stopped following the Act, that the threatened injury outweighed whatever damage the proposed injunction might cause, and that the injunction would not be adverse to the public interest. An injunction was also the appropriate remedy in this case because damages would have been speculative and inadequate compensation for the continued loss of bargaining rights. We therefore affirm the district court’s grant of a temporary injunction. Factual and Procedural Background Edwardsville opted into the Public Employer-Employee Relations Act by enacting Resolution No. 1999-20 on October 25,1999. On August 26, 2013, the City voted to opt out of the Act under K.S.A. 75-4321(c), which provides that an opt-out does not take effect until the end “of the next complete budget year” after the vote to opt out: “Once an election has been made to bring tire public employer under the provisions of this act it continues in effect unless rescinded by a majority vote of all members of the governing body. No vote to rescind shall take effect until the termination of the next complete budget year following such vote.” The City continued to follow the Act for just over 4 months after its opt-out vote, until the end of its 2013 budget year (December 31, 2013). In January 2014, the City stopped recognizing the bargaining representatives for the Edwardsville Fire Department, Local No. 64 of the International Association of Fire Fighters. Until that time, the union had been the exclusive bargaining agent for employees at the rank of captain or lower. The employee members of the union filed a petition in the Wyandotte County District Court ask ing the court to enjoin the City from violating the Act and alleging that the vote to rescind was to take effect January 1, 2015, not January 1, 2014. The employees obtained a Temporary Restraining Order ordering the City to “comply with its obligations under [the Act], K.S.A. 75-4321, et seq.” In support of its motion for a temporary restraining order, the employees had attached an affidavit from Robert Wing, the president of the union, stating that the City’s refusal to negotiate with the union caused the employees irreparable harm—namely, changes to wages and other conditions of employment. The City moved to set aside the temporary restraining order on January 21, 2014. In opposing the City’s motion, the employees provided the court with copies of letters from the City to the employees. The letters, which took effect January 5, 2014, set out the compensation rates for working as an active captain or active driver as well as incentive-pay guidelines and leave benefits. Those terms had not been negotiated with the union. At a hearing on the motion to set aside the temporary restraining order, the employees moved orally for a temporary injunction to prohibit the City from disregarding its bargaining obligations under the Act. The district court granted a temporary injunction and informed the City that it was prohibited from decertifying the union and was required to meet its obligations under the Act. The court’s written journal entry provided: “1. Plaintiff s oral motion for temporary injunction is granted and the Defendants shall comply with its obligations under [the Act], K.S.A. § 75-4321 as stated in the Temporary Restraining Order. “2. The Court finds that the Plaintiff is likely to prevail on the merits. “3. The Court finds that irreparable harm will happen if the injunction is not entered. “4. Defendants are prohibited from de-certifying the Members of International Association of Fire Fighters, Local No. 64.” The City has appealed to this court. Analysis The District Court Did Not Abuse Its Discretion in Issuing a Temporary Injunction. An injunction is a court order to do or refrain from doing a particular act. K.S.A. 60-901. The purpose of a temporary injunction is to preserve the status quo until the court can determine whether it should grant a permanent injunction. State v. Alston, 256 Kan. 571, 579, 887 P.2d 681 (1994). A party seeking a temporary injunction must make a five-part showing: “(1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability of suffering irreparable future injury; (3) the lack of... an adequate remedy at law; (4) [that] the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; (5) and [that] the impact of issuing the injunction will not be adverse to the public interest.” Downtown Bar and Grill, 294 Kan. at 191. We review the district court’s decision to grant the injunction for an abuse of its discretion but have unlimited review of the legal conclusions behind the decision. 294 Kan. at 191-92. Where the district court issued findings of fact, we determine whether those findings were supported by substantial evidence. State ex rel. State Bd. of Healing Arts v. Thomas, 33 Kan. App. 2d 73, 79, 97 P.3d 512 (2004), rev. denied 279 Kan. 1007 (2005); Barnesco, Inc. v. Liftco, L.L.C., No. 98,867, 2008 WL 4291634, at 2 (Kan. App. 2008) (unpublished opinion). Here, the district court expressly found that the employees were likely to succeed in proving their entitlement to another year of benefits under the Act and that the employees would suffer irreparable harm if the court did not order the City to comply with the Act. On appeal, the City argues that the union failed to establish the factors required for an injunction and that the district court failed to follow statutory requirements when granting the injunction. We begin our analysis with the tests a plaintiff must meet to obtain a temporary injunction. 1. The Employees Are Substantially Likely to Succeed on the Merits of Their Claim. To obtain a temporary injunction, a party must show a “substantial likelihood” of eventually prevailing on the merits. Idbeis v. Wichita Surgical Specialists, P.A., 285 Kan. 485, 491, 173 P.3d 642 (2007). We review the district court’s conclusion that the employees would prevail independently, without any required deference to the district court. See Downtown Bar and Grill, 294 Kan. at 192. The merits of this case come down to a simple question: Was the City entitled to quit following the Public Employer-Employee Relations Act at the end of its 2013 budget year? Or did it have to wait until the end of the 2014 budget year? Answering that question requires only that we look at the text of K.S.A. 75-4321. That text seems especially clear—a vote to opt out of the Act’s provisions cannot “take effect until the termination of the next complete budget year following such vote.” At the time the vote was taken, the City was in the midst of its 2013 budget year (its budget years tracking the normal January-December calendar year). So “the next complete budget year following [the] vote” was 2014, and the City’s action could not take effect until the end of 2014. The City makes no coherent argument that the statute could be interpreted to allow what it did. The City bases its argument on the meaning of the word “next”: “Presumably, the Plaintiffs are focusing on the word ‘next’ in the statute. Black’s Law Dictionary defines ‘next’ as: nearest, closest, or immediate following. Using any of tírese three definitions clearly provide that after a municipality has voted to opt out of [the Public Employee Relations Act], it will not take effect until the budget year they are in, reaches the nearest, closest or immediately following completion date. That is exactly what Defendant City of Edwardsville did. After the vote in August of 2013, the City waited until the budget year was complete, on December 31, 2013, to begin operating outside of [the Act].” The City is correct that Black’s Law Dictionary, in its sixth edition, defined “next” as “[n]earest; closest; immediately following.” Black’s Law Dictionary 1043 (6th ed. 1990). We have no quarrel with that definition. See American Heritage Dictionary 1189 (5th ed. 2011) (also defining “next” as “immediately following”). But the City ignores altogether other words in the statute, like “complete,” “budget year,” and “following.” It’s the combination of words here that makes the legislature’s intent unmistakably clear. The statute doesn’t say that the vote to rescind may take effect in the next budget year. It says that it may not take effect until the termination of the next complete budget year. We cannot envision any way in which the legislature could have been more definitive. In fact, this is a case in which the legislature has used redundant language to eliminate all doubt. Had it said that the vote may not take effect until the end of the “next budget year,” that would have meant the same thing. But the legislature added the word “complete” and said that the vote could not taire effect until the end of the “next complete budget year.” Ordinarily, courts presume that the legislature does not use redundant language, and we try to give meaning to every word in the statute. See State v. Roeder, 300 Kan. 901, 923, 336 P.3d 831 (2014); Scalia & Garner, Reading Law: The Interpretation of Legal Texts, pp. 174-79 (2012). But sometimes the legislature uses redundant language to avoid any possible uncertainty about the meaning of a statute. See Popldn, Materials on Legislation: Political Language and the Political Process, p. 223 (5th ed. 2009); Reading Law, pp. 176-78. This is such a case. The City’s vote took place in August 2013, which was during the 2013 budget year. That vote cannot take effect until the end of the next (complete) budget year, which is 2014. The City acted illegally by acting sooner. Thus, the employees have shown a substantial likelihood of success on the merits of this dispute. 2. An Action at Law Would Not Provide an Adequate Remedy. As a general rule, when a party can obtain a full and adequate legal remedy—such as damages—an injunction is not appropriate. See Roard of Reno County Comm’rs v. Asset Mgmt. & Marketing L.L.C., 28 Kan. App. 2d 501, 506-07, 18 P.3d 286 (2001) (citing Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, Syl. ¶ 10, 726 P.2d 287 [1986]). But the City has not argued that the employees had an adequate legal remedy. Indeed, legal remedies are not adequate when damages would be speculative, when the violation to be addressed is continuous or ongoing, and when damages can’t provide adequate compensation for a party’s injuries. 11A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2944 (2013). Here it is impossible to calculate what the employees would lose as the result of being denied the right to bargain, and the City’s refusal to bargain with the employees is a continuing violation of K.S.A 75-4321(c) and the employees’ bargaining rights. See Friess v. Quest Cherokee, 42 Kan. App. 2d 60, 65, 209 P.3d 722 (2009) (noting that legal remedies provide inadequate redress for ongoing violations); Persimmon Hill First Homes Ass’n v. Lonsdale, 31 Kan. App. 2d 889, 894, 75 P.3d 278 (2003) (noting right to injunctive relief for ongoing violation of restrictive real-estate covenant). In addition, delays in bargaining have a chilling effect on union participation, and damages would not provide adequate compensation for this effect, which ultimately harms the union’s employee members. See Allee v. Medrano, 416 U.S. 802, 814-15, 94 S. Ct. 2191, 40 L. Ed. 2d 566 (1974); Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1194 (9th Cir. 2011); Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 500-01 (7th Cir. 2008); N.L.R.B. v Electro-Voice, Inc., 83 F.3d 1559, 1572-73 (7th Cir. 1996). As a result, damages would not provide an adequate legal remedy in this case. 3. There Is a Reasonable Probability of Irreparable Future Harm to the Employees. The City contends that the employees presented no evidence that they would suffer irreparable harm without the injunction. When the challenge is to a lack of evidence, we look to see whether the district court’s findings were supported by substantial evidence, which is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014); Hamel v. Hamel, 296 Kan. 1060, 1078, 299 P.3d 278 (2013); Barnesco, 2008 WL 4291634, at 2. The district court did not lack evidence. It had copies of letters from the City unilaterally setting out the compensation for working as an active captain or active driver, incentive-pay guidelines, and leave benefits for fire-department employees as of January 5,2014. The district court also had an affidavit from Robert Wing, stating that the City’s refusal to negotiate with the employees’ union led to the changes to wages and other work conditions. The letters and affidavit were evidence that the City was denying the employees their collective-bargaining rights by acting to unilaterally change policies that affected the conditions of employment at the fire department in direct violation of tire provisions of the Act. Other courts have found irreparable harm in the loss of collective-bargaining rights. See Small, 661 F.3d at 1194; Hoffman ex rel. N.L.R.B. v. Inn Credible Caterers, Ltd., 247 F.3d 360, 369 (2d Cir. 2001); Electro-Voice, 83 F.3d at 1572-73; Blyer ex rel. N.L.R.B. v. One Stop Kosher Supermarket, Inc., 720 F. Supp. 2d 221, 227 (E.D.N.Y. 2010). Not only are the employees unable to bargain collectively, but support for the union through which they have chosen to bargain collectively is discouraged under these conditions. That too constitutes irreparable harm. See Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 704, 64 S. Ct. 817, 88 L. Ed. 1020 (1944); Small, 661 F.3d at 1194; Frankl v. HTH Corp., 650 F.3d 1334, 1362-63 (9th Cir. 2011); Lineback, 546 F.3d at 500; Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 299 (7th Cir. 2001); Hoffman ex rel. N.L.R.B., 247 F.3d at 369; Electro-Voice, Inc., 83 F.3d at 1572-73. In sum, the letters and affidavit showing that the City was denying the employees their collective-bargaining rights were substantial evidence of irreparable harm to the employees. 4. The Threat of Injury to the Employees Outweighs the Damage the City May Suffer. The City contends that the employees presented no evidence that the threatened injuiy to the employees outweighs the damage the injunction might cause. But tire letters and affidavit showed an injuiy to the employees—-the loss of the right to bargain—and the City has not explained what damages it would suffer if the injunction were upheld. The City also argues that the district court failed to malee a finding on this point. But it made no objection to the district court about a lack of findings, and in such cases we presume that the district court found all the facts needed to support its ruling so long as the record supports that presumption. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012); Empire Mfg. Co. v. Empire Candle, Inc., 273 Kan. 72, 87, 41 P.3d 798 (2002). The evidence here that the employees lost the right to bargain collectively supports the presumption that the district court made a factual finding that the threat of injury to the employees outweighed the damage the City might suffer (even though the court didn’t expressly state this). It’s also substantial evidence in support of that finding. 5. The Injunction Will Not Be Adverse to the Public Interest. The City again challenges the district court’s failure to make an explicit finding that entering the injunction would not be adverse to the public interest. Once again, though, substantial evidence in our record supports such a finding, and we presume that the district court made the findings needed to support its ruling. As the employees note, correcting a violation of the law is in the public interest. And in this case, violating the Act is particularly harmful to the public because the Act was specifically enacted to develop harmonious and cooperative relationships between the government and its employees and to prevent the potential for conflict and interruption of government operations that can be caused by the denial of the right to organize: “(a) The legislature hereby finds and declares that: (1) The people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employees; (2) the denial by some public employers of the right of public employees to organize and the refusal by some to accept the principle and procedure of full communication between public employers and public employee organizations can lead to various forms of strife and unrest; [and] (3) the state has a basic obligation to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government . . . .” K.S.A. 75-4321. The Act protects these public interests by requiring that public employers who opt into the Act follow its terms. As a result, the evidence in the record indicating that the City violated the terms of the Act (by unilaterally changing conditions of employment while the Act was still in effect) both supports the presumption that the district court found that prohibiting the City from violating the Act would not be against the public interest and is substantial evidence supporting that finding. The District Court Complied with the Specificity Requirements for Injunctions Set Out in K.S.A. 2013 Supp. 60-906. The City also makes two arguments that the district court did not comply with specific provisions of the Kansas injunction statutes. Tlie City’s first such claim is that the order granting the preliminary injunction was not sufficiently clear to meet the requirements of K.S.A. 2013 Supp. 60-906, which provides that orders granting injunctions be specific and detailed. The statute says that orders must set forth the reasons for the injunction and describe the acts it restrains in reasonable detail: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the petition or other document, die act. or acts sought to be restrained . . . .” K.S.A. 2(313 Supp. 60-906. The City contends that the district court neither gave reasons for the injunction nor specifically described the acts the injunction would restrain. But the district court said that the employees would likely succeed on the merits and that irreparable harm would occur if the injunction were denied. It also specifically described the acts the injunction would restrain. The journal entry expressly ordered that the City could not decertify the union and stated that the City must “comply with its obligations under [the Act,] K.S.A. § 75-4321.” Although the City didn’t mention it, caselaw interpreting a similar federal rule on injunctive relief counsels that an injunction simply telling a party to comply with the law isn’t specific enough. See Fed. R. Civ. Proc. 65(d); United States v. Phillip Morris USA, Inc., 566 F.3d 1095, 1137-38 (D.C. Cir. 2009); Vallario v. Van dehey, 554 F.3d 1259, 1268 (10th Cir. 2009). But the specificity rules for injunctions are not rigidly applied, Garrido v. Dudek, 731 F.3d 1152, 1159 (11th Cir. 2013), and even an obey-the-law order may be sufficient “if it relates tire enjoined violations to the context of the case.” Phillip Morris USA, Inc., 566 F.3d at 1137. Here, there was no dispute about what the City had to do under the Act— the dispute was simply whether the City’s obligation to comply witli the Act had expired. Accordingly, the district court sufficiently tied its order to the context of the case by answering the only disputed question between the parties. Even on appeal, the City has not given an example of any situation that might cause it uncertainty regarding its obligations under the temporary injunction. The district court’s temporary injunction was sufficient under K.S.A. 2013 Supp. 60-906. The District Court Complied with the Notice and Bond Requirements Set Out in K S.A. 60-905. The City’s second claim regarding specific requirements found in the injunction statutes is that the district court granted the injunction without following the notice and bond requirements for injunctions. It claims it didn’t receive notice of the injunction and that the employees didn’t post a bond as required under K.S.A. 60-905. That statute requires reasonable notice before a temporary injunction is issued and, in most cases, a bond to protect the enjoined party in the event it is later determined the injunction should not have been entered: “(a) Notice and hearing. No temporary injunction shall be granted until after reasonable notice to the party to be enjoined and an opportunity to be heard. “(b) Bond. Unless otherwise provided by statute or this section, no temporary injunction shall operate unless the party obtaining the same shall give an undertaking with one or more sufficient sureties in an amount fixed and approved by the judge of the court, securing to the party injured the damages such injured party may sustain including attorney fees if it be finally determined that the injunction should not have been granted. Neither the state nor any of its agencies shall be required to give an undertaking with one or more sufficient sureties in order to be granted a temporary injunction. For any other party, at the discretion of the judge, the undertaking required by this subsection may be waived.” K.S.A. 60-905. The City had reasonable notice of the temporaiy injunction: the petition, filed nearly a month before the court granted the injunction, asked the court to “enjoin[ ] the Defendants from further violating] the Act.” The City was also aware of the temporary restraining order—which appears to have been granted on the same bases as the temporary injunction—well before the district court granted the temporaiy injunction. In fact, the hearing at which the district court entered the temporaiy injunction was called for the purpose of hearing the City’s motion to dissolve the restraining order. And when the employees moved orally at that hearing for a temporary injunction, the City did not object that it lacked proper notice or was unprepared to proceed. K.S.A. 60-905 provides for “reasonable notice . . . and an opportunity to be heard.” The City called a hearing at which the same issue—whether the Act’s requirements still applied to it—would be considered, and the City had a full opportunity at that hearing to be heard. As for the bond, the district court has the discretion to waive the bond requirement. The City argues that the district court did not expressly make a finding doing so, but as we have noted, we presume the district court made all findings necessary to support its judgment—including a waiver of a bond requirement—if the party opposing the judgment did not object and the record supports the presumption. See O’Brien, 294 Kan. at 361. Here the City did not object at the district-court level, and the fact that K.S.A. 75-4321(c) clearly says the City acted unlawfully in refusing to bargain with the employees’ union as the 2014 budget year began supports the district court’s waiver of the bond. Thus, we presume that the district court waived the bond requirement and therefore find that it satisfied both the notice and bond requirements in this case. Because we find the district court did not violate the statutory requirements for injunctions, the employees are highly likely to succeed on the merits of their claim, and substantial evidence supports the district court’s factual findings, we hold that the district court did not abuse its discretion in granting the temporaiy injunction. The City Cannot Recover Attorney Fees. Even though it made no coherent argument for how a court could construe K.S.A. 75-4321(c) in its favor, the City has argued on appeal that it is entided to attorney fees. The City acknowledges that it is only entitled to attorney fees if it can show that the district court should not have granted the injunction and that the fees were a natural result of the injunction. See K.S.A. 60-905(b); Idbeis, 285 Kan. at 489. Because the City hasn’t shown that the injunction shouldn’t have been granted, the City is not entitled to attorney fees in this case. We affirm the district court’s order granting a temporary injunction to the employees.	[ -110, 109, -44, -20, -116, -63, 26, 19, 81, -77, -27, 83, -19, -39, 21, 123, -57, 45, 81, 83, -63, -93, 21, 75, -26, 27, -13, 77, -69, 111, -16, -36, 76, 17, 10, -43, -122, 64, -55, -116, -112, 4, -86, -24, -16, -125, 48, 123, 82, 11, 33, -72, -77, 46, 24, -63, -19, 36, 90, 7, -93, -15, -95, -123, 127, 22, -93, 69, 60, 7, -44, 127, -104, 56, -71, 104, 114, -90, -18, 118, 47, -39, 44, 99, 35, 34, -88, -89, -36, -84, 14, -37, -113, -124, -47, 121, 51, 10, -74, -101, -43, 22, 5, -8, -10, 69, 31, 44, -126, -114, -60, -109, 31, 117, 53, 7, -17, 4, 35, 101, -126, 52, 94, -41, 19, 19, -6, -39 ]
Arnold-Burger, J.: A Kansas State Trooper stopped Joseph Shane Allen for driving without a seatbelt. Allen showed several signs of impairment, so tire trooper asked him to exit the vehicle for sobriety tests. When the trooper patted Allen down before testing, however, Allen ran from tire scene. During a search of Allens vehicle, the trooper discovered evidence of drug possession and use, including methamphetamine residue on a scale and inside a pipe. A jury convicted Allen of several offenses, including possession of methamphetamine. Factual and Procedural Background Kansas State Trooper James Parr noticed that the driver of a Chevy Avalanche was not wearing his seatbelt. After stopping the vehicle, Parr ran the license plate and discovered that the vehicle belonged to Allen. When Parr contacted Allen, he noticed several indicators of intoxication, including bloodshot eyes, a strong odor of alcohol, and an open beer bottle in the center console. Allen also appeared uncoordinated, and his hands trembled. For those reasons, Parr requested that Allen step out of the car for sobriety tests. When Allen exited the truck, Parr asked him how much he had to drink that night, and Allen admitted to drinking the open beer that was sitting in the center console. Although Allen complied when Parr asked permission to pat him down for weapons, he “took off running” when Parr touched a hard object in his front right pocket. Parr radioed for assistance but otherwise stayed with the vehicles. After speaking to Allens passenger briefly, Parr started searching Allen’s vehicle both for evidence of more alcohol and to inventory the contents prior to towing. Inside, Parr discovered a number of items, including: (1) a homemade “sand club” in the driver s side door, (2) a scale with “a white powdery residue on it” in the center console, (3) a leafy green substance on the floorboards, (4) a second scale (this one without residue) in a lunch box in the truck bed, and (5) a “crack pipe” with a “white powdery residue” in the same lunch box. Testing at the KBI revealed the white powders on tire scale and inside the pipe to be methamphetamine. The scale residue also contained THC. The green leafy substance from the floor was marijuana. The State charged Allen with nine separate offenses, including possession of methamphetamine. On one of these charges, the district court granted a directed verdict of acquittal. Another was dismissed at some point during the trial. At trial, Parr and a Kansas Bureau of Investigation (KBI) technician each testified to the above information. Parr acknowledged that the residue on the scale was not enough to secure in a Baggie, but he noted that there was “enough powder to see.” The KBI technician also remembered seeing the residue on the scale and inside the pipe. The jury convicted Allen of six of the seven remaining charges, acquitting him of criminal use of a weapon. The district court sentenced Allen to 20 months’ imprisonment for tire possession of methamphetamine conviction with all other sentences running concurrently. Allen timely appealed. Analysis There was sufficient evidence to support Allens conviction for the possession of methamphetamine. On appeal, Allen first challenges the conviction for possession of methamphetamine, arguing that the State failed to prove that he knew he possessed the drug. As always, when the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all tire evidence in the fight most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support the conviction, this court generally will not reweigh evidence or evaluate the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Importantly, a verdict may be supported by circumstantial evidence if that evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). Possession of a controlled substance occurs when an individual possesses “any opiates, opium or narcotic drugs,” as well as certain stimulants or analogs of those substances. K.S.A. 2015 Supp. 21-5706(a). To prove possession, the State must demonstrate that the defendant either: (1) exercised “joint or exclusive control over [the substance] with knowledge of and intent to have such control,” or (2) knowingly kept the substance “in a place where [he or she] has some measure of access and right of control.” K.S.A. 2015 Supp. 21-5701(q). The crux of Allens argument is simple: because Parr discovered only a small amount of methamphetamine residue on the scale, the residue constituted an oversight on his part and not something he knowingly possessed. And since the State never demonstrated that Allen knew about the residue, it failed to prove possession. Our Kansas statutes provide that someone “acts ‘knowingly,’ or ‘with knowledge,’ with respect to . . . circumstances surrounding such person’s conduct when such person is aware . . . that the circumstances exist.” K.S.A. 2015 Supp. 21-5202(i). To put it another way, knowledge requires an awareness of the circumstances at issue. K.S.A. 2015 Supp. 21-5202(i). Both Parr and the KBI technician who tested the residue, Alyssa Teichen, testified that they saw the residue on the scale. In fact, Parr testified to the residue’s white color. He also differentiated this scale from the second one discovered in tire lunch box, noting that the second scale lacked any “powder or residue.” Teichen, on tire other hand, could not recall the color of the residue and failed to note any color details in her report. However, she repeatedly testified that she saw it with the naked eye. The same is true for the pipe collected from the lunch box: both Parr and Teichen plainly saw the residue. This time, enough residue was present drat each could testify about its color; Parr described it as a “white powdeiy” substance, while Teichen classified it as white and blue. On appeal, Allen essentially admits that methamphetamine likely touched dre scale at some point but claims drat he knew noth ing of the residue that remained. But the testimony at trial clearly demonstrates that die residue was visible to the naked eye on the scale and, that similar, visible residue existed in the pipe from the lunch box. And as the items bearing the residue were found in Al-lens vehicle, ample circumstantial evidence supports the conclusion that Allen knew about and controlled the metiiamphetamine residue in question. When viewing the facts in the light most favorable to the State, they support finding Allen guilty for possession. The burden of proof instruction was not clearly erroneous. On appeal, Allen argues that the district court erred when instructing the jury on the burden of proof, as the instruction precluded the possibility of juiy nullification. The portion of the instruction at issue provides: “If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find tire defendant guilty.” (Emphasis added.) Importantly, Allen failed to object to this instruction at trial. A party cannot claim instructional error unless he or she either objects to die error or the error is determined to be clearly erroneous. K.S.A. 2015 Supp. 22-3414(3); State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). When determining whether an instruction is clearly erroneous, this court engages in a two-step analysis. First, the court considers whether any error occurred, which requires employing an unlimited review of the entire record to determine whether the instruction was legally and factually appropriate. Second, if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014); see State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012) (whether a given instruction was legally appropriate is subject to unlimited appellate review). Allen rests his argument on the fact that the instruction given was not legally appropriate because it precluded the possibility of jury nullification. The instruction given in this case mirrored the Pattern Instructions for Kansas (PIK) Crim. 4th 51.010. Although the use of PIK instructions is not required, it is strongly recommended, as those instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. “Absent a particular need under the facts of a case to alter . . . PIK instructions, they should be followed.” State v. Acevedo, 49 Kan. App. 2d 655, 663, 315 P.3d 261 (2013), rev. denied 300 Kan. 1104 (2014). So we must determine whether the PIK instruction is legally inappropriate. It is undisputed that criminal defendants are not entitled to have the jury instructed on its inherent power of nullification—the power to disregard tire rules of law and evidence in order to acquit the defendant based upon the jurors’ sympathies, notions of right and wrong, or a desire to send a message on some social issue. Our Supreme Court has clearly stated: “The administration of justice cannot be left to community standards or community conscience but must depend upon the protections afforded by the rule of law. The jury must he directed to apply the mies of law to the evidence even though it must do so in the face of public outcry and indignation. Disregard for the principles of established law creates anarchy ánd destroys tire very protections which the law affords an accused. Finally, to permit a jury to disregard the principles of law laid down by a trial court is contrary to the statutory law of this state. [Citation omitted.] “Although it must be conceded that dre jurors ⅝ a criminal case have die raw physical power to disregard bodr the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jtíry to accept the mies of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.” (Emphasis added.) State v. McClanahan, 212 Kan. 208, 216-17, 510 P.2d 153 (1973). The Supreme Court reiterated this same stance in State v. Naputi, 293 Kan. 55, 260 P.3d 86 (2011), where it found that juries should not be instructed on nullification because “[i]t is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore tile rule of law, no matter how draconian it might be.” 293 Kan. at 66. But our Supreme Court hás found error when a jury was instructed that “‘[i]f you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.’ ” (Emphasis added.) State v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014). The Supreme Court found that “[a]lthough we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, [citation omitted], the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. [Citation omitted.]” 301 Kan. at 164. The Supreme Court determined that the word will used in the first-degree murder instruction essentially directed a verdict for the State, and a judge “cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.” 301 Kan. at 164. So the issue presented by Allen is whether the term “should” as used in the reasonable doubt instruction has the effect of directing a verdict for the State on all the charged crimes. We find it does not. Recently, this court has rejected the same argument that Allen makes here in several unpublished opinions. See State v. Cuellar, No. 112,535, 2016 WL 1614037, at 1-2 (Kan. App. 2016) (unpublished opinion); State v. Hastings, No. 112,222, 2016 WL 852857, at 4-5 (Kan. App. 2016) (unpublished opinion); State v. Singleton, No. 112,997, 2016 WL 368083, at 4-6 (Kan. App. 2016) (unpublished opinion), rev. denied December 21, 2016; State v. Jones, No. 111,386, 2015 WL 4716235, at 5-6 (Kan. App. 2015) (unpublished opinion), rev. denied 303 Kan. 1080 (2016). There, as here, the district court instructed the jury using PIK Crim. 4th 51.010, which the defendants argued eliminated the possibility of jury nullification. And there, like in this case, the defendants insisted that the word should compelled the jury to convict, contravening other cases that disapproved of imperatives like must or will. We have consistently found that the instruction at issue here “does not upset the balance between encouraging jury nullification and forbidding it. . . . [U]nlike the words must, shall, and will, the word should does not express a mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of action and encourages following the advised path.” Hastings, 2016 WL 852857, at 4. We believe our colleagues in Singleton said it best: “But as every teacher instructing a class knows, and as every parent admonishing a child knows, should is less of an imperative than must or will. . . . Should as used in this instruction is not the equivalent of ‘must’ or ‘will’ used in the instructions discussed in [odrer cases]. Should is advisory. It is not an imperative. The district court did not err in giving this instruction.” 2016 WL 368083, at 6. Allen presents no compelling argument as to why a different result is warranted in this case. We find that the instruction used here, PIK Crim. 4th 51.010, does not direct a verdict for the State. Accordingly, it is legally sufficient, and it was not clearly erroneous for the district court to use it here. Affirmed.	[ -80, -21, -55, -100, 58, -32, 59, 28, 83, -41, -12, 51, -85, -31, 21, 35, -24, 127, 117, 73, -43, -73, 83, -46, -62, -13, 57, -32, 50, 91, 44, -44, 79, 112, -101, 21, 38, 73, -74, 92, -114, 4, -15, 114, 82, -80, -84, 43, -121, 15, 49, 31, -42, 46, 26, -49, 105, 108, -53, -83, -64, -16, -7, 21, -17, 18, -93, 36, -67, 37, -44, 31, -99, 59, 104, 56, -13, -90, -120, -12, 45, -119, -124, 32, -78, 33, 21, -19, -83, -116, 47, -69, 31, -121, -38, 73, 91, -84, -105, -36, 111, 22, 46, -8, -6, 85, 85, 120, 7, -50, -68, -127, 77, 48, 70, -1, -1, -123, 37, -57, -115, -10, 84, 85, 112, 27, -49, -74 ]
The opinion of the court was delivered by Rosen, J.: The State of Kansas appeals from an order by the district court that granted Amoneo D. Lee’s motion to correct an illegal sentence. Lee was convicted by a jury for a 1995 murder, and the judge imposed a life sentence without the possibility of parole for 40 years. The conviction was affirmed by this court in State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999). The validity of the sentencing procedure was not raised in the direct appeal. In 2008, Lee filed a motion “for correction of sentence pursuant to K.S.A. 22-3504(1),” alleging, inter alia, that the sentencing court denied him “his due process rights of allowing the jury to participate in the sentencing proceeding that was not waived by the defendant.” The district court summarily denied the motion. This court affirmed the judgment of the district court, relying on the then-current understanding of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000): Because the sentencing court did not enhance Lee’s maximum sentence but only his sentence relating to parole eligibility, the sentence did not violate his Sixth Amendment right to a jury trial. State v. Lee, No. 101,638, 2011 WL 433533 (Kan. 2011) (unpublished opinion). On August 11, 2014, Lee filed through counsel a second motion to correct an illegal sentence, based on Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014). Following a hearing, the district court granted Lees motion. It is this motion and order that is the subject of the current appeal. Whether a sentence is illegal under K.S.A. 22-3504 is a question of law subject to de novo review. State v. Mitchell, 284 Kan. 374, 376, 162 P.3d 18 (2007). At sentencing, the district court judge considered Lees three prior convictions of aggravated batteiy, as well as convictions of carrying concealed weapons, burglaries, and thefts. He also took into account the nature of the crime at hand and concluded: “Clearly the aggravating factors in this case, the prior conviction, the severity of it, those findings I’ve already made, clearly outweigh beyond a reasonable doubt any mitigating factor that exists in this case.” Based on this finding, the judge sentenced Lee to a life term without eligibility for parole for a minimum of 40 years. These determinations were made exclusively by the sentencing judge. In granting Lees motion to correct the sentence, the Sedgwick County District Court agreed with him that the sentencing procedure violated Alleyne. The district court then held that retroactivity was not a relevant inquiiy, because it would be unfair to punish a defendant who was the victim of bad timing. The court then ordered that Lee be brought back into court for resentencing. Under K.S.A. 22-3504(1), a defendant may file a motion to correct an illegal sentence at any time. An illegal sentence is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. Mitchell, 284 Kan. at 376. A sentence is illegal only if it fits within these categories. State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006). A claim that a term of punishment was later declared unconstitutional does not satisfy the requirements for finding a sentence illegal. 281 Kan. at 292. This court addressed that issue squarely in State v. Moncla, 301 Kan. 549, 553-54, 343 P.3d 1161 (2015), holding: “Monda also argues that his sentence is illegal because a judge rather than a jury determined the existence and weight of the aggravating factor that led to the hard 40. He cites Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2162-63, 186 L. Ed. 2d 314 (2013), which held that, under the Sixth Amendment, any fact that increased a sentence must be found by a jury rather than a judge. ‘Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.’ State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007); see Verge v. State, 50 Kan. App. 2d 591, 598-99, 335 P.3d 679 (2014) (motion to correct illegal sentence based on Alleyne improper constitutional challenge to sentence).” See also State v. Warrior, 303 Kan. 1008, Syl., 368 P.3d 1111 (2016) (motion to correct illegal sentence inappropriate vehicle for challenges under Alleyne); State v. Noyce, 301 Kan. 408, 409-10, 343 P.3d 105 (2015) (Alleyne constitutional issues not proper basis for motion to correct illegal sentence); State v. Peirano, 289 Kan. 805, 217 P.3d 23 (2009) (failure of sentencing court to carry out statutorily mandated balancing of aggravating and mitigating factors did not render sentence illegal). Lee seeks to frame his main argument as being something other than a constitutional challenge. As artfully crafted as his arguments are, they all seek application of later caselaw to the statute that was in effect at the time that he was sentenced. Lee was sentenced under a statute that did not, at the time, conflict with any higher court decision on the jury-determination question. The statute, K.S.A. 22-3504, was not void at the time, because no court had held it to be void. Apprendi was not issued until June 2000, and Lee’s conviction, sentence, and appeal had become final by that time. The 1997 statute was not vacated as having no effect. See, e.g., Whisler v. State, 272 Kan. 864, 877-79, 36 P.3d 290 (2001) (Apprendi represented procedural, not substantive change and was not a “watershed rule” of ciiminal procedure implicating fundamental fairness of trial; could not be applied in collateral attacks on sentences). Whether the timing of subsequent decisions gives the appearance of “unfairness,” as the district court ruled, is irrelevant: Lee’s claim is inappropriate because a motion to correct an illegal sentence cannot be used to attack the constitutionality of a sentencing statute. The decision of the district court granting the motion to correct an illegal sentence is reversed, and the order that Lee be resen-tenced is vacated.	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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Buser, J.; On April 15, 2004, the Reno County District Court dismissed without prejudice a complaint/information charging Donella J. Parker with aggravated battery, upon receipt of a forensic evaluation report prepared by the Larned State Hospital that concluded that Parker was “not competent to stand trial and will not become competent in the foreseeable future.” No competency hearing was ever held. The State appeals the district court’s failure to conduct a competency hearing and dismissal. We reverse and remand. Factual and Procedural Background On January 27, 2004, Parker was charged in the Reno County District Court with aggravated battery pursuant to K.S.A. 21-3414(a)(1)(B). The following day, January 28, 2004, the district court, on its own motion, ordered the Lamed State Hospital to conduct a “psychiatric or psychological evaluation of the defendant and provide to the Court its findings and opinion of the defendant’s competency to stand trial.” The district court’s order was predicated upon K.S.A. 22-3302. On February 5, 2004, upon motion of defense counsel, the district court ordered Horizon’s Mental Health Center in Hutchinson, Kansas, to conduct “a mental health evaluation to determine competency to stand trial and an I.Q. determination.” This order was made pursuant to K.S.A. 22-3301 et seq. Included in this filing was an order to transport Parker to the mental health center on February 9, 2004. The record on appeal does not indicate if Parker was ever evaluated at this facility and, if so, whether a report was prepared addressing her competency. Another transportation order was issued on February 11, 2004, to transport Parker to Lamed State Hospital. On April 15, 2004, the district court filed an “ORDER OF DISMISSAL AND CIVIL COMMITMENT PROCEEDINGS.” No competency hearing was held prior to the issuance of this order. In the court’s order the district court indicated it had received a forensic evaluation report from Larned State Hospital. According to the district court, “[t]he report concludes, after an evaluation pursuant to K.S.A. 22-3303, that Donella J. Parker is not competent to stand trial and will not become competent in the foreseeable future.” The district court ordered the “criminal proceedings be dismissed without prejudice.” Finally, the court further ordered the Secretary of the Department of Social and Rehabilitation Services (SRS) “to commence involuntary commitment proceedings pursuant to Article 29 of Chapter 59 of the Kansas Statutes Annotated.” On April 21, 2004, the State appealed from the “Order of Dismissal and Civil Commitment Proceedings.” Issues on Appeal The State raises two issues on appeal. First, the State contends the district court erred in failing to conduct a competency hearing pursuant to K.S.A. 22-3302(1). Parker counters by citing State v. Costa, 228 Kan. 308, 317, 613 P.2d 1359 (1980), for the proposition that “K.S.A. 22-3302 does not require the trial court to conduct a hearing.” Second, the State complains that the district court did not comply with the provisions of K.S.A. 2004 Supp. 22-3303 when it simultaneously dismissed Parker s criminal case and ordered SRS to commence involuntary commitment proceedings. Parker responds that there was no abuse of discretion because “the trial court’s actions left the defendant’s constitutional and statutory rights intact, and simultaneously left open the possibility that the State could refile charges in the event that the defendant’s competency ceased to be an issue.” Standard of Review “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). K.S.A. 22-3302(1) Competency Hearing K.S.A. 22-3302(1) provides: “At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, tire judge before whom the case is pending finds that there is reason to believe drat dre defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” The State argues that the plain language of this statute places a mandatory obligation on the district court to hold a hearing re garding defendant’s competency. Parker disputes that a competency hearing is mandatory and argues that the handling of a defendant’s competency determination is a matter of judicial discretion. We begin our analysis with a plain reading of K.S.A. 22-3302(1). The statute’s language is clear and unequivocal. Once a district court finds “there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” (Emphasis added.) While the district court has discretion to determine if a reason exists to believe the defendant is incompetent, the language of the statute requires a hearing prior to the district court’s ultimate determination of whether the defendant is, in fact, incompetent. In this regard, “[t]he legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Moreover, in the interpretation of statutes, ordinary words are to be given their ordinary meaning. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). The plain and simple language of K.S.A. 22-3302(1) compels the conclusion that the district court must conduct a hearing with regard to the determination of a defendant’s competency to stand trial. Our review of Kansas case law confirms our understanding of the plain meaning of the statutory language. In Costa, the Kansas Supreme Court reviewed the exact same language found in the predecessor statute and held: “When the accused’s competency to stand trial is in question pursuant to K.S.A. 1979 Supp. 22-3302, the determination is for the trial court after conducting a hearing.” (Emphasis added.) 228 Kan. at 317. In Costa, the district court “provided a hearing on the question of competency, by giving the appellant’s counsel the opportunity to present evidence of incompetency” and by considering “evidence presented, in the form of physicians reports,” that concluded the defendant was competent. 228 Kan. at 317-18. Parker cites Costa, however, in support of her claim that a competency hearing was not statutorily required. Parker s reliance on Costa is misplaced. The Kansas Supreme Court in Costa did not, as argued by Parker, hold that “K.S.A. 22-3302 does not require the trial court to conduct a hearing.” Costa declined to mandate that “there must be an evidentiary hearing where the accused has the opportunity to present evidence and question the court appointed physicians,” or what it colloquially referred to as “a full blown adversary hearing” to determine competency. 228 Kan. at 317. Costa stands for the proposition that a hearing is required before a determination of competency, but there is no statutory mandate for the presentation of live testimony and cross-examination of witnesses at the hearing. Thus, the statute requires a competency hearing but permits the district court to use appropriate discretion to determine the nature and extent of evidence presented at tire hearing. In the present case, the district court committed error when it failed to conduct any competency hearing as required by K.S.A. 22-3302(1). Dismissal of Criminal Charge Pursuant to K.S.A. 2004 Supp. 22-3305 K.S.A. 2004 Supp. 22-3303(1) states in relevant part: “A defendant who is charged with a felony and is found to be incompetent to stand trial shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution. . . . Within 90 days after the defendant’s commitment to such institution, the chief medical officer of such institution shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future. ... If such probability does not exist, the court shall order the secretary of social and rehabilitation services to commence involuntary commitment proceedings . . . .” In the present case, in accordance with K.S.A. 2004 Supp. 22-3303(1), the district court ordered involuntary commitment proceedings on April 15, 2004. In the same order, however, the court dismissed the aggravated battery charge against Parker without prejudice. The State contends that under K.S.A. 2004 Supp. 22-3305, charges may only be dismissed after the defendant is not committed, or is committed but will be discharged, and the State is afforded the opportunity to request a hearing. Parker responds that the dismissal of the criminal case was a simple matter of judicial discretion which protected both parties’ legal interests. K.S.A. 2004 Supp. 22-3305 states: “(1) Whenever involuntary commitment proceedings have been commenced by the secretary of social and rehabilitation services . . . and the defendant is not committed to a treatment facility as a patient, . . . the secretary shall promptly notify the court and the count)' or district attorney of the county in which the criminal proceedings are pending of the result of the involuntary commitment proceeding. “(2) Whenever involuntary commitment proceedings have been commenced by the secretary of social and rehabilitation services . . . and the defendant is committed to a treatment facility as a patient but thereafter is to be discharged . . . the head of the treatment facility shall promptly notify the court and the county or district attorney . . . that the defendant is to be discharged. “... Upon request of the county or district attorney, the court may set a hearing on the issue of whether or not the defendant has been restored to competency. If no such request is made within 10 days after receipt of notice pursuant to subsection (1) or (2), the court shall order the defendant to be discharged from commitment and shall dismiss without prejudice the charges against the defendant . . . .” Once again, a plain reading of the statute is dispositive of this issue. In those cases wherein a district court has ordered commencement of involuntary mental commitment proceedings at a treatment facility, K.S.A. 2004 Supp. 22-3305 directs that both the district court and the State be notified when one of two developments occur: (1) the defendant has been evaluated and is not inr voluntarily committed or (2) the defendant has been evaluated, involuntarily committed, and is to be discharged. Under either scenario, as part of this notification, the head of the treatment facility must render an opinion as to whether the defendant is competent to stand trial. The statutorily mandated notification is important because it triggers a 10-day period for the State to request a “hearing on the issue of whether or not the defendant has been restored to competency.” K.S.A. 2004 Supp. 22-3305(2). Unlike the provisions of K.S.A. 22-3302(1) which require a competency hearing, K.S.A. 2004 Supp. 22-3305(2) provides that “the court may set a hearing on the issue of whether or not the defendant has been restored to competency.” (Emphasis added.) Such language obviously affords the district court discretion in the determination of whether to conduct a hearing. In the event the State does not make a request for a hearing within 10 days, the district court is required to discharge the defendant from commitment and “shall dismiss without prejudice the charges against tire defendant.” (Emphasis added.) K.S.A. 2004 Supp. 22-3305(2). In the case at bar, the district court violated the clearly stated provisions of K.S.A. 2004 Supp. 22-3305 by dismissing the criminal proceedings against Parker prior to receipt of the notice from the Secretary of SRS regarding the disposition of Parker s involuntarily commitment proceeding, the treatment facility’s opinion regarding competency, and the expiration of the statutorily mandated 10-day period of time for the State to request a hearing to determine if Parker had been restored to competency. The district court’s actions were not a matter of judicial discretion. As our Supreme Court has observed, “A decision which is contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but it is nothing more than an erroneous decision, or a judgment rendered in violation of law. [Citation omitted.]” Saucedo v. Winger, 252 Kan. 718, 730, 850 P.2d 908 (1993). Regarding the two issues on appeal, the statutory language did not provide the district court with any discretion to disregard the clearly stated and mandatory provisions of K.S.A. 22-3302(1) and K.S.A. 2004 Supp. 22-3305(2). In its brief, the State advises that, subsequent to the dismissal of this case, on May 19, 2004, the district court received a report from SRS pursuant to K.S.A. 22-3305(2) indicating that Parker did not meet the criteria for a mentally ill person subject to involuntary commitment, was not competent to stand trial, and was unlikely to attain competency in the foreseeable future. Given the current status of this case, we have endeavored to fashion an appropriate remedy that would provide the State an opportunity to be heard on the matter of competency, while not burdening the court and parties by requiring, at this late stage in the litigation, an initial competency hearing pursuant to K.S.A. 22-3302. The district court’s order dismissing without prejudice the criminal proceedings against Parker is reversed. The case is remanded to the district court for a hearing in accordance with K.S.A. 2004 Supp. 22-3305(2) on the issue of whether or not the defendant has been restored to competency.	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Greene, J.: Roger M. Smith appeals the district court’s summary denial of his motion for DNA testing pursuant to K.S.A. 2004 Supp. 21-2512. Concluding that such testing could not produce exculpatory evidence, we affirm. Factual and Procedural Background Smith pled guilty to one count of rape and one count of aggravated criminal sodomy in 1986. The record on appeal reflects that during his incarceration, he has written a host of letters to the district court and others, he has filed a plethora of postconviction motions, and his case has been before our appellate courts and prompted memorandum opinions on at least five occasions. Before us in this appeal is Smith’s “Petition Order for Forensic Testing and Appointment of Counsel,” which seeks an order for DNA testing pursuant to K.S.A. 2004 Supp. 21-2512. The district court denied Smith’s motion, together with three other motions, in a memorandum decision relying upon Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494 (1995), which predates tire enactment of K.S.A. 2004 Supp. 21-2512 and case law construing the new statute. The district court recited a colloquy between the court and Smith regarding his waiver of rights and his confirmation of voluntariness at the plea hearing and concluded that Smith’s motion should be denied because he pled guilty. The court reasoned: “The defendant’s argument for post-conviction DNA testing ignores the fact that testing has only been allowed where tire conviction foEowed a trial. Here, tire defendant, after having had both charges read to him by the court, admitted his guilt and waived his right to offer exculpatory evidence. “There is no person in any better position to know of the extent of his involvement in tírese crimes than the defendant himself. Had the defendant beHeved he was innocent, he could have proceeded to trial or at the least entered a plea of no contest. The defendant, however, pleaded guilty. To aEow re-testing solely to satisfy a fishing expedition as is sought here would amount to a mockery of the solemn nature of a plea hearing. Further, defendant’s contention now that post-conviction testing might lead to exculpatory evidence, is simply evidence that he lied when he admitted his compEcify in tire crimes. Under these circumstances the defendant’s request for DNA testing should be denied.” Smith appeals. Did the District Court Err in Denying Smith’s Motion for DNA Testing? We view Smith’s argument as framing a question of statutory interpretation, a question of law over which our review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). K.S.A. 2004 Supp. 21-2512 provides in material part: “(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that: (1) Is related to the investigation or prosecution that resulted in the conviction; (2) is in the actual or constructive possession of the state; and (3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results. “(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.” Our Supreme Court had recent occasion to interpret and apply this statute in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004), and Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). In Denney, the court held that the statutory goal is to use DNA testing to help determine if one who is in state custody “was wrongfully convicted or sentenced” and if so, to vacate and set aside the judgment, discharge the person if in custody, resentence, or grant a new trial. 278 Kan. at 654. In Bruner, the court held that (1) it is inappropriate to apply the exceptional circumstances condition to such a request, even if it is presented in a successive postconviction motion; (2) relief under the statute may not be limited to situations where the evidence against the defendant was not overwhelming; (3) the statute does not require specific allegations by the defendant regarding what noncumulative exculpatory evidence would be produced by such testing; (4) a request under this statute should be determined on a case-by-case basis; and (5) to the extent the statute may permit a fishing expedition, it is an expedition that our legislature has concluded is worth conducting. 277 Kan. at 605-06. We must first address the apparent conclusion of the district court that DNA testing pursuant to the statute is not warranted where the defendant has pled guilty to the offenses. The statute itself fails to restrict its ambit based upon the plea entered by the defendant; in fact, the statute expressly applies to “a person in state custody, at any time after conviction for murder ... or for rape . . . .” K.S.A. 2004 Supp. 21-2512. The legislature is perfectly capable of limiting such postconviction relief to those who pled not guilty or no contest to the material charges, and no such limitation appears in the text of the statute. Moreover, our statutory scheme and related case law has long recognized that a plea of guilty is subject to being set aside. K.S.A. 2004 Supp. 22-3210(d); see, e.g., State v. Williams, 275 Kan. 284, 64 P.3d 353 (2003). Because such a plea is not necessarily irrevocable, it would be inconsistent with the broad legislative goal if DNA testing was unavailable solely because a guilty plea was entered. Accordingly, we disapprove this aspect of the district court’s analysis. We next address whether Smith’s petition was adequate under the statute as construed by the court in Bruner. Smith alleged that he sought an order for “ ‘forensic DNA testing (deoxyribonucleic acid testing)’ of any biological material that a. ) Is related to the investigation or prosecution that resulted in [his] conviction .... b. ) Is in the actual or constructive possession of the State, and: c. ) Was not previously subjected to DNA testing; d. ) Can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.” These allegations appear to meet the threshold requirements of the statute, although we note that in Bruner the defendant claimed that a police report noted collection of certain biological evidence, whereas Smith made no such claim and was apparently unaware whether such evidence existed. Because a criminal defendant — especially one whose case is resolved by a guilty plea — may remain unaware of the extent, if any, that biological evidence has been collected and may be available for testing, we conclude that specific allegations regarding the nature and existence of such material need not be made. Neither the statute nor the court in Bruner require such specificity, and the district court erred in its apparent reliance on the fact that Smith “does not identify what ‘biologic’ material he seeks to have tested, or even demonstrate that there is any material available to test.” Moreover, the district court’s conclusion that the absence of such allegations rendered Smith’s motion “purely a fishing expedition by the defendant” proved an unfortunate choice of phrase, given the subsequent Supreme Court endorsement of the statute’s apparent scope as permitting precisely such an expedition. The more fundamental issue is whether the district court was required to appoint counsel and conduct an evidentiary hearing given the allegations of Smith’s petition. We conclude that there is no such requirement where files and records available to the district court demonstrate conclusively that such testing could not lead to exculpatory evidence. The statute requires no evidentiary hearing in every case, but rather requires a “determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.” K.S.A. 2004 Supp. 21-2512(c). We are mindful that the court in Bruner held that appointment of counsel and evidentiary hearing were required in that instance, but this was based upon the court’s conclusion that there was “no reason to believe that testing of available biological evidence might not produce noncumulative, exculpatory evidence.” 277 Kan. at 606. In Smith’s case, however, there was indeed reason to believe that testing could not produce exculpatory evidence. Here, the files and records available to the district court were more than sufficient to determine that testing could not produce exculpatory evidence. First, in his personal handwritten letter to the court in support of his original motion to vacate sentence, Smith did not claim his innocence, but rather claimed that no harm was inflicted on the victim, no weapons were used, and “alcohol controlled [his] mind.” Second, in a later pro se motion to withdraw plea, Smith did not claim that he did not commit the sexual activities, but rather claimed that “he had [not] done anything more than enter into a consenting sexual encounter which was in the most part induced by the alleged victim.” Third, in his presentence investigation interview, Smith did not deny extensive sexual activities with the victim, but rather claimed that the victim encouraged the activity. Fourth, in a veritable host of postconviction letters and motions, Smith does not once deny being the perpetrator of the sexual activity from which the charges arose. DNA testing is intended to confirm or dispute the identity of individuals involved in or at the scene of a purported crime. Here, the fact that Smith engaged in intercourse and oral sodomy with the victim in this case has never been in dispute. We fail to com prehend any possibility that DNA testing could assist in supporting a defense of consensual conduct or otherwise exculpate Smith. Accordingly, the district court did not err in its determination that testing should be denied. Finally, Smith argues that the district court’s failure to follow the letter of all statutory procedures requires that we remand for further proceedings. We recognize that the district court failed to observe the requirements of K.S.A. 2004 Supp. 21-2512(b)(l), which mandates notification to the prosecuting attorney and an opportunity for the prosecutor to respond. Clearly, the better practice is for all requirements within the statute to be faithfully observed by the district court upon the filing of a petition under this statute. Given the court’s determination that no testing was warranted, however, we fail to see any prejudice to Smith as a result of any failure of notification and response by the State. To the extent that the district court’s memorandum decision relied upon case law and an analysis that proved inconsistent in part with subsequent case law, including Bruner, it cannot be approved. The ultimate judgment of the court, however, that Smith was not entitled to DNA testing, was correct. We uphold that judgment even though the district court may have erred in its reasoning. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004). Affirmed.	[ 48, -32, -20, -100, 13, -32, -70, 60, 64, -21, 101, 115, 109, 74, 4, 122, -30, 125, 69, 121, -57, -105, 119, -63, -74, -70, -5, -41, -13, 79, -20, -76, 12, -16, 74, -43, 38, -120, -77, -38, -114, -108, -71, -63, 82, -64, 50, 102, -74, 15, 53, 30, -13, 10, 25, -61, -119, 46, 91, -82, -56, -15, -112, -105, -51, 22, -93, 21, 54, 12, 80, 59, -40, 57, 0, 105, 48, -74, -126, -12, 111, 9, 40, 104, 99, 41, 24, -1, 45, -112, 15, 62, 29, -89, -101, 64, 97, 45, -106, -37, 116, 52, 46, 120, -25, 13, 21, 108, -114, -97, -80, -127, -53, 53, 14, 17, -5, -75, 16, 113, -35, -30, 78, 71, 120, -37, -50, -80 ]
Rulon, C.J.: Defendant Christina F. Banning appeals the district court’s decision ordering her to serve her underlying prison sentence after revoking her probation. Banning argues the court, absent making specific findings, was required to assign her to community corrections. We affirm in part, reverse in part, and remand with directions. In November 2003, Banning entered a plea of guilty to forgery in case 03CR2134 and was subsequently given a presumptive sentence of probation for 24 months under the supervision of community corrections with an underlying sentence of 18 months in prison. In February 2004, the sentencing court revoked her probation for failing to remain in the community corrections lobby as directed; testing positive for amphetamines; and for admitting use of methamphetamine. The court then reinstated Banning’s probation with the same conditions except that she was ordered to enter and successfully complete the Labette Correctional Conservation Camp (LCCC). In March 2004, Banning entered a plea of guilty to possession of pseudoephedrine and drug paraphernalia in case 04CR78. The district court granted Banning’s motion for dispositional departure from the presumptive prison sentence and placed her on probation for 60 months with an underlying prison sentence of 30 months. As a condition of her probation, Banning was ordered to complete the program at the LCCC. The sentence in 04CR78 was ordered served consecutive to 03CR2134. Banning subsequently violated the conditions of her probation by being removed from LCCC for various violations. The district court revoked her probation in both cases and ordered her to serve her underlying prison sentences. On appeal, Banning argues the sentencing court should have placed her on community corrections instead of ordering her to prison. First, Banning argues that before revoking probation and imposing a prison sanction, the court was required to find that she failed “to participate in or has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program” pursuant to K.S.A. 2004 Supp. 21-4603d(n). K.S.A. 2004 Supp. 21-4603d(n) applies only to felony violations of K.S.A. 65-4160 or K.S.A. 65-4162. Although Banning was charged with violating K.S.A. 65-4162(a)(3) for possession of marijuana, that charge was dismissed in the plea agreement. Possession of pseudoephedrine and drug paraphernalia are not violations of K.S.A. 65-4160 or K.S.A. 65-4162. See K.S.A. 65-7006; K.S.A. 65-4152(a)(3). As such, K.S.A. 2004 Supp. 21-4603d(n) did not require the district court to make specific findings related to Banning’s participation in any drug treatment program. Banning next argues K.S.A. 2004 Supp. 22-3716(b) requires the sentencing court to place her on community corrections instead of sending her to prison. K.S.A. 2004 Supp. 22-3716(b) reads, in relevant part: “Except as otherwise provided, no offender for whom a violation of conditions of release or assignment or a nonprison sanction has been established as provided in this section shall be required to serve any time for the sentence imposed or which might originally have been imposed in a state facility in the custody of the secretary of corrections for such violation, unless such person has already at least one prior assignment to a community correctional services program related to the crime for which the original sentence was imposed . . . (Emphasis added.) Banning originally argued she had not been assigned to a community correctional service program. However, at oral argument, Banning’s counsel conceded that Banning had in fact been previously assigned to community corrections in 03CR2134. Consequently, the district court could properly impose Banning’s prison sentence following the probation revocation in 03CR2134. The State argues that because Banning’s probation in 03CR2134 was considered by the court in granting a dispositional departure in 04CR78, Banning’s assignment to community corrections in 03CR2134 was related to the crime for which the underlying prison sentence was imposed in 04CR78. We disagree. “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute.” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). “ ‘The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ ” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005) (quoting Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 [2003]). “ ‘The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.’ ” State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005) (quoting State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 [1995]). In State v. Miller, 32 Kan. App. 2d 1099, 1103, 95 P.3d 127 (2004), this court interpreted K.S.A. 2004 Supp. 22-3716(b) to apply only to the case before the court for sentencing, not to prior sentencing dispositions for other offenses. We see no reason to apply a different result here, as Banning’s assignment to community corrections occurred in 03CR2134, not 04CR78. The convictions in 04CR78 did not arise out of the same events as 03CR2134, and there were separate plea and sentencing hearings for both cases. Although not briefed by either party, the question becomes whether ordering Banning to complete the program at LCCC constitutes assignment to a community corrections service program. We conclude that assignment to LCCC as a condition of probation does not constitute assignment to a community corrections service program within the meaning of K.S.A. 2004 Supp. 22-3716(b). K.S.A. 75-5290 et seq. is the Kansas Community Corrections Act. K.S.A. 2004 Supp. 75-5291 reads: “(a)(1) The secretary of corrections may make grants to counties for the development, implementation, operation and improvement of community correctional services that address the criminogenic needs of felony offenders including, but not limited to, adult intensive supervision, substance abuse and mental health services, employment and residential services, and facilities for the detention or confinement, care or treatment of offenders as provided in this section except that no community corrections funds shall be expended by the secretary for the purpose of establishing or operating a conservation camp as provided by KS.A. 75-52,127 and amendments thereto.” (Emphasis added.) K.S.A. 2004 Supp. 75-52,127 reads: “On or after the effective date of this act, the secretaiy of corrections may establish conservation camps to provide inmates with a highly structured residential work program. Such conservation camps shall be a state correctional institution or facility for confinement under the supervision of the secretary. A conservation camp may accept defendants assigned to such camp as provided in K.S.A. 21-4603 or K.S.A. 21-4603d and amendments thereto. Defendants assigned pursuant to K.S.A. 21-4603 or K.S.A. 21-4603d, and amendments thereto, to a conservation camp may be transferred by the secretary to any other correctional institution or facility. Any inmate sentenced to the custody of the secretary may be confined in a conservation camp, however, only those inmates assigned to the conservation camp pursuant to subsection (1)(5) or (3) of K.S.A. 21-4603d or subsection (b)(6) of K.S.A. 21-4603, and amendments thereto, shall be eligible for release upon successful completion of the conservation camp program.” (Emphasis added.) From the plain language of the statutes, LCCC is not a community corrections service program but a state correctional institution and, therefore, assignment to LCCC as a condition of pro bation does not satisfy the assignment to community corrections requirement of K.S.A. 2004 Supp. 22-3716(b). As the State notes, K.S.A. 2004 Supp. 22-3716(b) provides the following exceptions to the rule that a probation violator must first be assigned to community corrections before being ordered to serve his or her underlying sentence: (1) when the violation in question is a new misdemeanor or felony; (2) for certain adult felony offenders as described in K.S.A. 2004 Supp. 75-5291(a)(3); and (3) “if the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by such assignment to a community correctional services program.” The State agrees that exceptions (1) and (2) are not applicable, but argues the court’s comments at the probation revocation hearing satisfy exception (3). Again, we disagree. The district judge stated, “Ms. Banning’s had plenty of opportunity to change. She’s not willing to do so at this time. I’ll deny the request. She’ll remain in the custody of the Sheriff, be delivered by the Sheriff to the Secretary of Corrections to serve the sentences imposed.” In Miller, the district court ordered the defendant to serve his underlying sentence because “ ‘[Mr. Miller] received a significant break from the Court at time of sentencing by being granted not only a dispositional departure, but being assigned to court services. And Mr. Miller was unable to make it from the courthouse to court services, a half block [before violating probation].’ ” 32 Kan. App. 2d at1101. This court concluded the district court had failed in these statements to comply with the requirements of K.S.A. 2004 Supp. 22-3716(b). 32 Kan. App. 2d at 1101-03. In State v. Huskey, 17 Kan. App. 2d 237, 834 P.2d 1371 (1992), the appellant contended the sentencing court failed to comply with K.S.A. 1990 Supp. 21-4603(4)(a) in denying his request to be placed in a community correction program. K.S.A. 1990 Supp. 21-4603(4) (a) also required a district court denying a modification to “set[ ] forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.” (Emphasis added.) In denying Huskeys request, the district court cited his involvement with drugs and stolen antique guns. This court held this was not sufficient. 17 Kan. App. 2d at 239-40. “When something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details.” 17 Kan. App. 2d 237, Syl. ¶ 2. We are convinced the reasoning in Miller and Huskey is applicable here. Affirmed in part, reversed in part, and remanded with directions to assign Banning to community corrections or to make the specific findings necessary under K.S.A. 2004 Supp. 22-3716(b)(3).	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Caplinger, J.: Peggy Rinke fell in the parking lot outside the building where she was employed by Bank of America. The Kansas Workers Compensation Board (Board) determined Rinke was injured on the bank’s premises and was entitled to more than $50,000 in compensation. In this appeal, the Bank of America and its insurance carrier, Royal & Sun Alliance Insurance Company (American Insurance Company) (collectively Bank), argue the “going and coming” rule of K.S.A. 44-508(f) bars Rinke’s claim. We agree and reverse the Board’s determination, finding it was not supported by substantial competent evidence. We hold that because the parking lot in which Rinke was injured was not under the control of the Bank, Rinke was not injured on her employer’s premises and her claim is not covered by the Kansas Workers Compensation Act, K.S.A. 44-501 et seq. Background The facts are not disputed. Rinke worked in the Bank’s telephone banking department in Wichita. Her normal working hours were 6 a.m. to 2:45 p.m. On March 5,2001, Rinke left work around 3:15 p.m., taking a direct route from the building to her vehicle, which was parked in a parking lot adjacent to the Bank’s south side. Rinke slipped on a patch of sand that had been placed on ice in the parking lot to prevent slipping. Rinke was injured when her right hip, shoulder, and elbow hit the pavement. The building in which Rinke worked was owned by Argora Properties, L.P. (Argora) and was leased by the Bank. The only other tenant in the building, Wesley Occupational Health, also leased space in the building from Argora. The parking lot in which Rinke was injured also was owned by Argora, and the Bank leased parking space for its employees from Argora. The parldng lot contained 757 parking spaces, 20 of which were reserved for use by Wesley employees. The remainder of the spaces were used by bank employees, visitors of the building’s tenants, and the general public. Bank employees did not have parldng stickers or designated parking spaces and were not told where to park. Argora was responsible for all maintenance of the parking lot and was required to insure it was in a clean, safe, and good condition. Argora also was required to maintain and enforce any controls and provide security during and after business hours. The administrative law judge (ALJ) determined Rinke’s injuries were compensable because they occurred on the Bank’s “premises” and thus K.S.A. 44-508(f), which precludes compensation for injuries that occur while an employee is going and coming from work, did not apply. The Board affirmed the ALJ’s conclusions but modified the ALJ’s ruling by utilizing a different method of computing the compensation award. On appeal, the Bank argues that because it did not own, maintain, or control the parking lot where Rinke’s injury occurred, the Board erroneously determined Rinke’s actions fell under the premises exception of the going and coming rule of K.S.A. 44-508(f). Rinke primarily argues that because the Bank leased the parldng spaces, it was responsible for Rinke’s injuries which occurred in that leased space. Standard of review Under the Workers Compensation Act, the Board has authority to review the decision of the ALJ on questions of law and fact. The Board’s decision is then appealable to this court, where review is limited to questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Webber v. Automotive Controls Corp., 272 Kan. 700, 703, 35 P.3d 788 (2001). Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequences and carries with it fitness to induce the conclusion that the award is proper or furnishes a substantial basis of fact from which the issue can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Neal v. Hy-Vee, 277 Kan. 1, 16-17, 81 P.3d 425 (2003). Liability under the Workers Compensation Act Where the Workers Compensation Act applies, if an employee is injured by an accident that arisés out of and in the course of employment, the employer is liable to compensate the employee under K.S.A. 44-501. The term “arising out of’ employment is further defined: “The phrase [arising] ‘out of employment points to the cause or origin of the worker’s accident and requires some causal connection between the accidental injury and the employment. An injury arises ‘out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, acausal connection between the conditions under which the work is required to be performed and the resulting injury.” Kindel v. Ferco Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995). The “going and coming” rule ofKS.A. 44-508(f) Generally, if an employee is injured while on his or her way to assume the duties of employment or after leaving such employment, the injuries are not considered to have arisen out of and in the course of employment under K.S.A. 44-508(f). This rule is known as the “going and coming” rule. See Chapman v. Beech Aircraft Corp., 20 Kan. App. 2d 962, 894 P.2d 901, aff'd, 258 Kan. 653, 907 P.2d 828 (1995). The rationale for the going and coming rule was explained in Thompson v. Law Offices of Alan Joseph, 256 Kan. 36, 46, 883 P.2d 768 (1994): “[W]hile on the way to or from work the employee is subjected only to the same risks or hazards as those to which the general public is subjected. Thus, those risks are not causally related to the employment. [Citations omitted]” The “premises” exception to the going and coming rule The “premises” exception to this rule, which the Board found applied here, provides that if the employee is on the premises of the employer, the employee is not considered to be on his or her way to assume the duties of employment or to have left such duties. K.S.A. 44-508(f). “ ‘[T]he question of whether the ‘going and coming’ rule applies must be addressed on a case-by-case basis.’ [Citation omitted.]” Chapman 20 Kan. App. 2d at 964; see Chapman 258 Kan. 653, Syl. ¶ 3. In Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 383, 416 P.2d 754 (1966), our Supreme Court defined “premises” as the “place where an employee may reasonably be during the time he is doing what a person so employed may reasonably do during or while the employment is in progress.” “Premises” has also been defined as “ ‘not restricted to the permanent site of the statutory employer’s business nor limited to property owned or leased by him but contemplates any place under the exclusive control of employer where his usual business is being carried on or conducted.’ ” Thompson v. Law Offices of Alan Joseph, 19 Kan. App. 2d 367, 372, 869 P.2d 761, aff'd 256 Kan. 36, 883 P.2d 768 (1994) (quoting Black’s Law Dictionary 1181 [6th ed. 1990]). In considering whether the premises exception applied here, the Board relied heavily upon our Supreme Court’s opinion in Thompson, 256 Kan. 36. There, the claimant was furnished with a parking space in a public garage across a public street from the office where she worked. Claimant went to the fourth floor of the public parking garage, used an enclosed overhead walkway across the public street to the employer’s office, and took an elevator to the eighth floor. The elevator on the eighth floor exited into a hallway, which led to two offices, one of which was Thompson’s employer’s office, and as the claimant exited the elevator, she slipped and fell. The claimant argued she was on her employer s premises the moment she parked her car and, therefore, she was on the premises of the employer when she fell. Alternatively, she argued the area in which she fell was on her employer’s premises. However, neither the parking garage nor the building where the claimant worked was owned, controlled, or maintained by her employer. The ALJ in Thompson denied compensation because the claimant was en route to work when she was injured. The Director of Workers Compensation, the district court, and the Court of Appeals upheld the ALJ’s ruling. The sole issue for the Kansas Supreme Court was whether the claimant’s injury occurred on her employer’s premises under K.S.A. 44-508(f). Significantly, the Thompson court initially noted that Kansas precedent required the employer to exercise control of an area in order for the area to be part of the employer’s premises. 256 Kan. at 39-40. In affirming the denial of benefits, the court in Thompson relied upon several factors: (1) There was no evidence the employer controlled the parking garage other than paying the monthly parking fee; (2) there was no evidence the owner of the building where the employer rented space also owned the parking garage where the claimant parked her car; (3) there was no evidence that the employer directed the employees to park in a certain area in the lot; and (4) the claimant was not subjected to greater risk than the general public who used the parking garage. Therefore, the court found the claimant was not injured on the employer’s premises. 256 Kan. at 44. The Board also considered Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987), which was cited in Thompson. In Barnes, the plaintiff was struck by a vehicle operated by the defendant in the parking lot leased by the defendant’s employer. Although the employer leased the entire second floor of the garage as a subtenant, it neither owned nor maintained the parking lot. Nevertheless, portions of the parking lot were allocated to the employer for its em- Like Kansas, Virginia law also provided that an employee coming to or going from Iris or her place of employment was not engaged in any service growing out of and incidental to employment. See 233 Va. at 251. However, the court determined the claimant’s injuries arose out of and in her course of employment because: (1) the injuries occurred on the premises of another that was in proximity and in relation to the spaces leased by the employer as to be in practical effect the employer’s premises; (2) the accident occurred in an area specifically allocated to the employer and at the place the employees were required to park; and (3) the parking area was adjacent to the work site and provided a valuable fringe benefit for employees and the employer. 233 Va. at 252-53. In the case at bar, the Board distinguished Thompson and followed the line of reasoning in Barnes, holding: (1) The parking lot was adjacent to the building where Rinke was employed by the Bank; (2) the Bank leased a substantial portion of the building and the parking lot; (3) the Bank was allocated 737 parking spaces for Bank employees; and (4) Rinke was injured in the area leased by the Bank. Based on this analysis, the Board concluded Rinke’s claim was compensable because she was on the Bank’s “premises” at the time of her fall. The Bank argues the Board’s reliance on Barnes is misplaced because Kansas more narrowly construes the term “premises” than Virginia. We agree. As the Bank points out, Virginia courts follow the more expansive rule that allows for compensation if the injury was “substantially” or “sufficiently” on the premises of the employer. Kansas courts, on the other hand, follow a minority view and narrowly construe the term “premises.” See Madison v. Key Work Clothes, 182 Kan. 186, 191, 318 P.2d 991 (1957); Murray v. Ludowici-Celadon Co., 181 Kan. 556, 559, 313 P.2d 728 (1957). Because Kansas narrowly construes the term “premises” and has specifically rejected the “proximity” or “zone of danger” rule, see Thompson, 256 Kan. at 40, we consider whether substantial competent evidence supports the Board’s determination that the parking lot was part of the Bank’s premises, utilizing the narrower definition of “premises” approved by the Supreme Court in Thompson. Specifically, we consider whether the Bank exercised control of the parking lot. See Thompson, 256 Kan. at 44; Teague v. Boeing Airplane Co., 181 Kan. 434, 312 P.2d 220 (1957) (claim ant was compensated under the Workers Compensation Act after claimant fell in a fenced parking lot with assigned parking spaces that was exclusively controlled by employer). Considering the factors considered by the court in Thompson, we cannot find that the Bank controlled the parking lot. Although the Bank paid Argora to lease space in the parking lot, Argora was responsible for maintenance, enforcement, towing control, and security of the parking lot during and after business hours. Bank employees did not have parking stickers or designated parking spaces in the lot. Moreover, although there were 20 spaces designated for use by Wesley, there was no evidence that the Bank directed its employees to park in any of the other 727 spaces in the lot. Nor was Rinke subjected to greater risk than the general public who used the parking lot. Other than tire fact that the parking lot and building were leased by the Bank from the same entity, a fact mentioned as significant by the Thompson court, the facts of this case simply do not support a finding that the Bank had control of the parking lot. Thus, we conclude that the Board’s finding that Rinke was injured on the Bank’s premises was not supported by substantial competent evidence. Because the premises exception to the going and coming rule of K.S.A. 44-508(f) does not apply, Rinke’s claim is not covered by the Workers Compensation Act, and we reverse the Board’s contrary finding. Reversed.	[ -46, 120, -48, -20, 8, -32, 58, 26, 105, -108, 53, 83, -19, -55, 93, 47, -42, 61, -44, 113, -105, -77, 83, -55, -62, 51, -15, -59, -78, 123, 116, -44, 76, 80, -118, -43, -90, 72, -59, 92, -116, 4, -86, -8, -39, 64, 40, 47, -32, 78, 48, -123, 59, 40, -104, 71, 44, 46, 91, -83, -13, -16, -62, 5, 127, 19, -95, 4, -66, 35, -40, 8, -112, 50, 56, -56, 114, 38, -62, 44, 103, -103, -124, 34, 98, 35, 25, -83, 100, -72, 6, -44, -113, -121, -112, 24, 51, 11, -107, -99, 80, 5, 68, -4, -2, 69, 31, 104, -125, -54, -12, -111, -113, -27, -98, -121, -33, -113, -77, 97, -98, -30, 95, -123, 114, 19, 14, -80 ]
Green, J.: Leon and Sandra Boldridge appeal from the judgment of the trial court determining that the mortgage of National City Mortgage Co. (NCM) was entitled to be subrogated to the rights of two prior mortgagees which were discharged with the proceeds of NCM’s loan and mortgage. The Boldridges purchased a home from Matthew and Elaina Tumberger under a contract for deed. When the Boldridges purchased the premises, two preexisting valid mortgages existed against the property. The Boldridges did not record their contract for deed. The Tumbergers made a second sale of the property to Kevin and Terri Ross while the Boldridges were openly in possession of the property. To finance the purchase, the Rosses obtained a loan and a mortgage from NCM. On appeal, the Boldridges contend that the doctrine of subrogation was inapplicable in the case because of the negligence of NCM in failing to investigate the Bold-ridges3 possession of the premises. The Boldridges further contend that their possession of the premises constituted constructive notice of their rights under their contract for deed. Nevertheless, as the trial court properly determined, the Boldridges have been enriched to the extent of the discharge of the two prior mortgages. As previously stated, the Boldridges3 rights were subject to the two preexisting valid mortgages on the property. Moreover, the Bold-ridges have not shown that they have had to change or that they have been induced to change their position because of the satisfaction of the two prior mortgages. As a result, any negligence on the part of NCM in failing to make an adequate inquiry as to the Boldridges3 possession of the premises does not bar NCM from the right of subrogation. Accordingly, we affirm. On June 15, 2000, the Boldridges entered into a contract for deed with the Tumbergers to purchase the following described real estate in Johnson County, Kansas: “Lot 203, Lakepointe, Third Plat, Shawnee, KS. “More commonly known as: 21319 West 58th Street, Shawnee, Ks 66218.” The Tumbergers entered into the contract for deed through their agent, David Kostelec. The purchase price of the property was $165,000, which was based on the combined amounts of the two outstanding mortgages at the time. The Boldridges agreed to pay $500 at tire time of execution and malee installment payments of $1,602 a month directly to the mortgage companies. The contract for deed was never recorded with the register of deeds. From July 2000 to June 2001, the Boldridges made payments totaling $21,595.61, which included excess payments in the amount of $2,371.61. In May 2001, NCM had a real estate appraiser appraise the property; the appraisal indicated that the Tumbergers were the occupants of the premises. When Leon Boldridge encountered the appraiser on the property, he identified himself and told the appraiser that he was the owner of the property. Leon also testified that the appraiser never entered the interior of the house during his inspection. On June 8, 2001, the Tumbergers resold and conveyed the property by warranty deed to the Rosses. The Rosses secured a mortgage loan from NCM in the amount of $208,000. The Rosses executed a mortgage on tire property to NCM as security for the loan. Both the warranty deed and the mortgage were recorded with the register of deeds’ office of Johnson County on June 25, 2001. Before granting a mortgage loan to the Rosses, NCM had a title report done on the property, which indicated that the Tumbergers were the owners of record. Nevertheless, NCM failed to verify much of the financial information associated with the loan application. The Boldridges were unaware of the sale of die property to the Rosses and the mortgage to NCM. Because property taxes were coming due and back taxes had not been paid, Kostelec asked the Boldridges to agree to an addendum to the original contract for deed authorizing the refinancing of the properly. The Boldridges agreed and authorized the property to be refinanced for the maximum amount of $173,685. Under this new agreement the Bold-ridges’ monthly payments increased to $1,928.77. The Boldridges were unaware the property had been refinanced until they began to receive mail and a welcome wagon basket for a Kevin Ross in late July 2001. When they asked Kostelec about this, he told them the mortgages on the property had been refinanced with NCM in the name of Kevin Ross. Starting in August 2001, the Boldridges began making monthly payments to NCM in the amount of $1,928.77. They continued to make these payments until December 2001 when they discovered the amount of the new mortgage was $208,000. The Boldridges contacted Kostelec and told him that they would not malee further payments until or unless the amount of the new mortgage was reduced to the agreed upon purchase price. Despite the Boldridges’ protests, they maintained that they tried to make a payment in early 2002 but were told that NCM was no longer accepting payments on the mortgage loan. On April 12,2002, NCM brought an action to foreclose its mortgage on the property against the Rosses and the Boldridges, asserting that the Rosses had defaulted on their mortgage loan in December 2001. On August 11, 2003, the Boldridges filed a third-party petition against tire Tumbergers, the Rosses, and NCM. The Boldridges sought a judgment for damages from the Tumbergers. They contended that they had been deprived of the use of their equity in the property as a result of the resale of the property to the Rosses and the Rosses’ execution of a mortgage to NCM. They sought to have the deed to the Rosses and the mortgage to NCM voided. They also requested that the title to the property be quieted in their names in fee simple. In December 2003, Kevin Ross had several conversations with Linda Mock, tire attorney who filed the original foreclosure petition. Ross admitted to Mock that it was his signature on the note, mortgage, and loan application. Nevertheless, he explained that other documents included with the loan application were false. Ross told Mock that the W-2 form included with the loan application was false. According to Mock, after she showed Ross the form, he commented, “I never worked for those people, and I never made that much money in my entire life.” Ross further told Mock that he recognized the company listed on the form as one that was owned by Kostelec and Matthew Tumberger. Ross explained that Kostelec had approached him at a construction site where he worked and asked him if he would be willing to purchase a piece of property in his name and in a couple of months the property would be moved out of his name. Kostelec told him they were trying to help someone who wanted to purchase a house but could not obtain financing on their own. Before trial, in settlement and payment of the Boldridges’ claim against the Tumbergers, the Tumbergers agreed to relinquish their title and interest in the property and executed a quitclaim deed for tire property to the Boldridges. After previously denying the parties’ competing summary judgment motions, the trial court held a bench trial to consider NCM’s petition and the Boldridges’ third-party petition. The trial court requested the parties submit suggested findings of facts and conclusions of law. The trial court adopted the findings of fact submitted by the Boldridges except for the amount of equity the Boldridges claim they were deprived of due to the reselling of the property. The court concluded that “[ajlthough the Boldridges made a claim based on the loss of use of equity at trial, creditable evidence supporting the claim was lacking and the evidence offered was highly speculative.” The trial court, however, concluded that the Boldridges’ possession of the property was notice to all persons as to whatever title or interest they had in the property. Additionally, the trial court determined that the NCM had a valid first lien on the property and that the Rosses had made, executed, and delivered to NCM a valid mortgage which was now in default. The court also decided that the title to the property should be quieted in favor of the Boldridges. The court further determined that the Rosses were never the legal owners of the property. The court recalculated the amount due under the mortgage to be $173,201.05, plus interest. The court based this calculation on the following: “$173,685.00 of the loan proceeds benefitted the Bold-ridges, equitable principles require under the unusual facts of this case that the face amount of the mortgage be limited to $173,685.00, less the amount paid toward the reduction of the mortgage of $483.95 or to $173,201.05.” Finally, the court ordered that NCM’s mortgage be foreclosed. Nevertheless, the court determined that the sale of the property should be stayed provided the Boldridges resume payments under the revised note. In addition, the court determined that the reinstatement balance of $74,262.12, plus interest, would be a further lien on the property, becoming due and payable following the payment of the principal balance. Standard of Review Commonly, when a trial court makes specific findings of facts and conclusions of law the function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law, over which an appellate court has unlimited review. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004); U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). In this case, aside from making specific findings of facts and conclusions of law, the trial court ultimately employed an equitable doctrine. “[T]he application of an equitable doctrine rests within the sound discretion of the trial court. [Citation omitted.]” Bankers Trust Co. v. United States of America, 29 Kan. App. 2d 215, 218, 25 P.3d 877 (2001). In proper cases, equity will protect one lending money secured by a mortgage to pay an existing valid hen. Quoting from Everston v. Central Bank, 33 Kan. 352, 6 Pac. 605 (1885), our Supreme Court in Newcomer v. Sibon, 119 Kan. 358, 361, 239 Pac. 1110 (1925), stated: “ ‘Where money is loaned upon the security of what is supposed to be a valid mortgage, but which in fact is a forged and void mortgage, and the money is so loaned for the purpose that a prior valid mortgage may be discharged, which is done, the mortgagee of the void mortgage may be subrogated to the rights of the prior mortgagee, there being no intervening liens or incumbrances.’ [Citation omitted.]” Subrogation is the “substitution of another person in the place of the creditor so that the person in whose favor it is exercised succeeds to the right of the creditor in relation to the debt. [Citation omitted.]” Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 206, 597 P.2d 622 (1979). There are two types of subrogation — conventional subrogation, which arises out of an agreement between parties, and legal or equitable subrogation. 226 Kan. at 206. The doctrine of equitable, or legal, subrogation “ ‘is a creature of equity invented to prevent a failure of justice, and is broad enough to include an instance in which one party is required to pay what is, between them, the debt of another. . . . [It] is founded upon principles of natural justice.’ [Citations omitted.]” United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 749, 494 P.2d 1149 (1972). In the present case, although the trial court did not specifically refer to this doctrine, it employed the doctrine of equitable subrogation when it foreclosed on the mortgage established between NCM and the Rosses but stayed the sale of the property provided the Boldridges resumed payments under the revised note creating a lien against the property. The Boldridges argue that the trial court did not have any basis in law or equity to enforce NCM’s mortgage. Relying on Bankers Trust they argue that “equity will not afford a party relief who negligently takes a lien or interest in property which is subject to prior interest of which that party has actual or constructive notice.” NCM, on the other hand, argues that subrogation was just and equitable under the circumstances, pointing to the fact that the Boldridges failed to protect their interests by recording their contract for deed and that the Tumbergers perpetrated a fraud on both NCM and the Boldridges. Moreover, NCM argues that voiding the mortgage would result in a windfall to the Boldridges who would receive title without having to pay full value, because the previous valid mortgages were paid off using funds from the NCM’s mortgage loan. The Boldridges’ reliance on Bankers Trust, however, is misplaced. In Bankers Trust, Dale and Marsha Latham entered into a contract for a deed with the Lechtenbergs to purchase real estate in 1986 and then later assigned their interest in the contract for deed to the Peoples National Bank and Trust to secure a loan for $50,000, which was recorded on September 17, 1992. On December 1, 1992, the Internal Revenue Service (IRS) filed a tax lien against Dale Latham. In May 1993, tire United States obtained a judgment against Latham and in June 1993, an abstract of the judgment against Latham was filed. “On January 23, 1997, Dale Latham filed a waiver of marital interest in which he purported to transfer his interest in the real property” to his wife, Marsha. 29 Kan. App. 2d at 216. “Also on that day, the Lechtenbergs recorded a warranty deed which transferred the property to Marsha.” 29 Kan. App. 2d at 216. At the same time, Marsha “executed a promissory note and mortgage, covering the real estate in favor of Quality Mortgage U.S.A., Inc.” 29 Kan. App. 2d at 216. The proceeds were used to satisfy a prior mortgage held by the Lechtenbergs, to fully satisfy the contract for deed; partially satisfy the prior assignment of interest to Bankers Trust, to satisfy an IRS tax hen against Marsha Latham; and for closing costs. “Either on or prior to the date of closing, Quality Mortgage obtained a title insurance policy” reflecting the United States’ judgment lien. 29 Kan. App. 2d at 217. That same day, Bankers Trust bought tire Marsha Latham promissory note and mortgage from Quality Mortgage. Marsha Latham eventually defaulted on the mortgage, and Bankers Trust brought an action to foreclose the mortgage. The United States was named as a defendant to the action, and it claimed “a priority hen on the one-half interest in the property that was held by Dale Latham prior to the entry of judgment against him in 1992 which he subsequently transferred to Marsha Latham.” 29 Kan. App. 2d at 217. The trial court apphed equitable subrogation and ordered that Bankers Trust be given priority over the United States upon the sale of the property, leaving the United States without hope of recovery because the Bankers Trust’s mortgage exceeded the sale value of the property. In determining that the trial court abused its discretion by applying the doctrine of equitable subrogation, this court stated: “We hold the doctrine of equitable subrogation may not be apphed to relieve a party who neghgently takes a hen on or an interest in property which is subject to prior liens of record of which that party had either actual or constructive notice.” 29 Kan. App. 2d at 222. The appellate court further stated that “[i]t is difficult to understand why any bank would take a hen on property knowing that it was encumbered by a prior judgment hen which had been of record for approximately 5 years.” 29 Kan. App. 2d at 221. The Bankers Trust court relied on Kuhn v. Bank, 74 Kan. 456, 458, 87 Pac. 551 (1906). In Kuhn, our Supreme Court declared that it was “negligence for a purchaser of either real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired.” 74 Kan. at 458. Both Bankers Trust and Kuhn are concerned with the rule that one purchasing or taking an interest in real property is charged with constructive notice of all instruments recorded of which he or she could have acquired actual notice by an examination of the record. See Harms v. Burt, 30 Kan. App. 2d 263, 267, 40 P.3d 329, rev. denied 274 Kan. 1111 (2002). Here, when NCM made the loan and accepted the mortgage, there was no contract for deed of record. For example, if NCM had examined the record in the register of deeds’ office of Johnson County, or if it had examined a properly prepared abstract of title, NCM would not have acquired actual knowledge of the existence of the Boldridges’ contract for deed. As a result, Bankers Trust and Kuhn are inapplicable to this case. Although not cited by the Boldridges, Harms, which followed Bankers Trust and Kuhn, is also distinguishable from this case. In Harms, three lawsuits resulted in two separate judgments entered on record against Veva Burt. The first was recorded in favor of the Harms in February 1999. The second was recorded in favor of the McMullins in October 1999. At the time the judgments were entered and recorded, Burt owned property which was subject to two mortgages. On November 7, 1999, the Wrights made an offer to purchase Burt’s residence. On December 8,1999, a title company prepared a title commitment which did not show the Harms’ and McMullins’ judgment liens on the property because although the examiner checked company records, he did not check original records or recorded pleadings. On December 16, 1999, a writ of execution was filed on the Harms’ judgment against the property. The following day a settlement was agreed to that would release the two prior mortgages if the sale closed by December 31, 1999. On December 18, 1999, Burt accepted the Wrights’ offer, and on December 21, 1999, the Wrights applied for a mortgage from Capital Federal and the sale closed on December 29, 1999. Also on December 29, 1999, the sheriff received an “Order For Sale” on the property but returned the order on January 31, 2000, reporting that Burt was not found and was no longer a resident at the address provided. “Sixty days later, Burt filed a Chapter 7 bankruptcy petition in Texas.” 30 Kan. App. 2d at'266. On April 11, 2000, the Wrights received written notice that the judgment liens previously entered against Burt remained unsatisfied. When the Wrights failed to respond, the Harms filed a writ of general execution on August 4, 2000, and 3 days later a “writ declaring the property seized by the district court was posted” at the residence. The trial court allowed the Wrights and Capitol Federal to intervene in the execution proceedings. The Harms moved to determine hen priorities. The trial court applied the doctrine of equitable subrogation determining the interests of Capitol Federal and the Wrights were superior to the judgment hens. It prohibited the Harms from proceeding with levy on the residence. This court found that the trial court erred by applying the doctrine of equitable subrogation. Determining that the Wrights and Capital Federal had constructive notice, this court noted that “[i]n Kansas, courts charge parties with constructive notice of public records. [Citation omitted.] The judgment docket places parties and their agents who use reasonable care and diligence on notice of potential title problems. [Citation omitted.]” 30 Kan. App. 2d at 267-68. Harms is distinguishable from the present case because it involved judgment hens which were recorded. Unhke this case, the Boldridges never recorded their contract for deed. The Boldiidges cite Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228 (1903), as a case they maintain is analogous to the present case. In Gray, our Supreme Court refused to apply an equitable doctrine to enforce a mortgage obtained by the party listed on the deed without the consent of the party who was in open and notorious possession of the property. Koch purchased land for $560, paying $60 in cash and obtaining a mortgage for the remaining $500. The land was then transferred into Zellmer’s name with Koch’s consent, but Koch took possession and held it openly and notoriously. When the Koch mortgage came due, Zellmer obtained a mortgage for $300 from Ambler, which was used to discharge the Koch mortgage. Ambler trusted the title as shown in the records and made no inquiry into Koch’s possession. The trial court refused to subrogate Koch for Zellmer. Instead, it granted a personal judgment against Zellmer but refused foreclosure against Koch. In affirming this decision, our Supreme Court refused to substitute Koch as the debtor when the mortgage was obtained without Koch’s “knowledge, consent, or procurement, but solely by the fraud of Zellmer.” The court determined subrogation was inappropriate under the circumstances. The court reasoned that equitable doctrines should not be used “in favor of one who has knowledge of another’s rights [and] has convenient and available means of obtaining such knowledge.” 66 Kan. at 516-18. Nevertheless, in Newcomer, our Supreme Court recognized subrogation as an appropriate measure and disapproved of “[t]he language used by the court in Gray v. Zellmer so far as inconsistent with this conclusion.” 119 Kan. at 361. The Newcomer court determined that a party who makes a loan based on a forged real estate mortgage is entitled to subject the land to the repayment of any part of the money used to discharge valid Hens even when the valid titleholder is innocent of the forgery. 119 Kan. at 361-62. In Newcomer, a husband obtained a mortgage loan from a loan company, using property owned by his wife by forging her name and the name of a grantee in a deed from her. Part of the money lent was used in paying off liens on the property. The mortgages were later adjudged to be forgeries. Successors-in-interest of the loan company brought an action on the principle of subrogation to subject the property used to secure the forged mortgages to the payment of the portion of the money lent that was used to discharge prior mortgage and tax hens on that property. They argued any other remedy they might have otherwise had was cut off by a decree quieting the wife’s title rendered in the actions to foreclose the forged mortgages. Our Supreme Court determined that the loan company’s successors were entitled to recover under the doctrine of subrogation. 119 Kan. at 359-61. Notice The Boldridges maintain that their undisputed possession of the questioned property gave constructive notice to NCM of the Bold-ridges’ rights under their contract for deed. The general rulé is that possession of land is notice to the world of whatever rights the possessor may have in the property. See Gray v. Zelmer, 66 Kan. at 516. Under the facts of this case, the trial court determined that NCM had both constructive and actual notice “of the Boldridges’ prior equitable title and ownership in the property under the contract for deed.” In addition, the trial court determined that NCM’s “lack of care . . . was the primary contributing factor and exceeded the lack of care of the Boldridges.” Subrogation The Boldridges argue that the doctrine of subrogation is inapplicable in this case because of their undisputed possession of the property and because of the negligence on the part of NCM in failing to investigate or inquire about their possession of the premises. Before addressing the subrogation issue, we need to consider a holding made by the trial court. The trial court determined that the Rosses had signed a valid mortgage to NCM. The trial court’s conclusion, however, is inconsistent with its holding that the Rosses were never the legal owners of the property. Black’s Law Dictionary 1009 (6th ed. 1990), defines the word mortgage as “an interest in land created by written instrument providing security for the performance of a duty or the payment of a debt.” Black’s Law Dictionary further defines a mortgagor as “[o]ne who, having all or some part of title to property, by written instrument pledges that property for some particular purpose such as security for a debt.” Black’s Law Dictionary 1012 (6th ed. 1990). Because the Rosses were never the legal owners of the property, they could not have executed a valid mortgage to NCM. Even though the Rosses delivered an invalid mortgage to NCM, NCM may still seek to be subrogated to the rights of the two prior mortgages. In Crippen v. Chappel, 35 Kan. 495, 496-99, 11 Pac. 453 (1886), an administrator borrowed money to pay off a mortgage on property belonging to an estate and as security signed a mortgage. The mortgage was determined to be invalid for lack of power in the administrator to execute it. In determining that the mortgagees under the invalid mortgage were not mere volunteers, our Supreme Court stated that the mortgagees were entitled to be subrogated to the rights of the original mortgagee. Explaining that the doctrine of subrogation is based on the theory of unjust enrichment, the Crippen court stated: “[T]he right of subrogation or of equitable assignment is not founded upon contract alone, nor upon the absence of contract, but is founded upon the facts and circumstances of the particular case and upon principles of natural justice; and generally, where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in the place of the creditor, such person will be so substituted.” The Boldridges received the benefit of NCM’s loan to the Rosses— the payment of the two prior mortgages which had priority over their contract for deed. The Boldridges have not been required to change their position because of the satisfaction of the two prior mortgages. See Federal Land Bank v. Hanks, 123 Kan. 329, 339, 254 Pac. 1040 (1927) (“They are substantially in the same situation as they were before the change in the form of the indebtedness was made, and hence there can be no equitable reason why the mortgagee in the new mortgage should not be subrogated to the rights of the mortgagees in the old mortgages.”). As a result, any negligence on the part of NCM in failing to make an adequate inquiiy as to the possession of the premises by the Boldridges does not bar NCM from the right of subrogation. The doctrine of subrogation is designed to promote natural justice. As stated previously, to permit NCM to assert the rights of the two preexisting valid mortgagees against the Boldridges would not prejudice the Boldridges’ interests. As a result, the trial court did not abuse its discretion in granting subrogation in this case. 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The opinion of the court was delivered by Beier, J.: Defendant Gregory Vincent Keenan challenges the denial of his motion to suppress evidence obtained when officers entered his home without a search warrant. The district court judge denied Keenans motion based on what he described as the existence of reasonable suspicion to conduct an investigation of drunk driving and exigent circumstances. The Court of Appeals affirmed the denial, holding that probable cause to arrest Keenan for violation of a protection from abuse order (PFA) and for drunk, driving existed before the officers entered the house and that exigent circumstances — the possible loss, destruction, or concealment of evidence and the doctrine of hot pursuit— supported the warrantless entry. State v. Keenan, 50 Kan. App. 2d 358, 365, 371-73, 325 P.3d 1192 (2014). We also affirm the district judge’s decision, although our reasoning for doing so differs somewhat from that of tire district judge and the Court of Appeals panel. We agree with the Court of Appeals that, based on the undisputed facts before the district court at the time of the suppression hearing, the officers had probable cause to arrest Keenan for driving under the influence before they entered his home. In addition, even if the Fourth Amendment to the United States Constitution should have prevented the officers from following Keenan into his home to effect the arrest, any evidence gathered .and admitted at trial as a result of the entry was superfluous; it would not have affected the ultimate outcome in Keenans case. See State v. Thomas, 302 Kan. 440, 451, 353 P.3d 1134 (2015) (court need not determine whether un-Mirandized statements could be used in search warrant affidavit when affidavit already contained evidence sufficient to support finding of probable cause). In other words, even if there was error, an issue we do not decide today, the error was not reversible. Factual and Procedural Background On December 23, 2010, Julie Hynes agreed to babysit her 4-year-old grandson overnight. About 11 p.m., Keenan, the boy’s father, unexpectedly came into Hynes’ residence. He was acting “bizarre,” according to Hynes — speaking nonsensically, slurring his speech, stumbling, and swaying. He also smelled of alcohol. He picked up the sleeping .boy and stumbled while carrying him out to his vehicle. It was sleeting outside, and Hynes was concerned about the weather. She thought Keenan was returning the boy to her daughter’s residence a couple of blocks away; but Keenan said he was going home to Lenexa. When Keenan drove away, Hynes called Platte County, Missouri, law enforcement and was subsequently connected with the Lenexa Police Department. Lenexa Police Officer Betsy Madl was dispatched to Keenan’s residence, based on a call that he was driving while intoxicated with his 4-year-old son in the car. Dispatch also advised her that a complaint had been made earlier that day about Keenan’s alleged violation of a PFA order. Madl parked in front of Keenan’s home and observed a vehicle matching the description she had been given drive up the road and pull into Keenan’s driveway. Madl did not observe any signs of driver impairment while watching the vehicle. Keenan then got out of the vehicle and retrieved his son. Madl approached and asked if she could speak with Keenan. Keenan asked if he could take his son inside. Madl smelled a strong odor of alcohol on Keenan, and she saw him stumble while carrying the boy toward the home. Officer Jason Hinkle arrived at Keenan’s home and observed Madl speaking with Keenan. Hinkle heard Keenan ask if he could go inside to put his son down, and the officers allowed him to do so. Hinkle aslced for permission to follow Keenan into the house, but Keenan said, “No.” The officers followed Keenan inside anyway. At a later preliminary hearing, Hinkle would provide two reasons for entering the home despite Keenan’s refusal of permission. First, Hinkle believed that exigent circumstances existed because Keenan could destroy or manipulate the evidence, i.e., the amount of alcohol in his body. Second, while en route to the residence, Hinkle had been told that Keenan had violated a protection order involving another party. Hinkle had read about three-quarters of a report on that issue before arriving at Keenan’s residence, and he believed there to be probable cause to arrest Keenan for violation of the order. The officers followed Keenan down a hallway inside the home and observed him stumble again on his way to a bedroom where he lay his son down. Keenan was speaking on his phone, and he ignored multiple requests from tire officers to hang up. The officers observed that Keenan had slurred speech and bloodshot eyes, and they smelled an overwhelming odor of alcohol. Keenan stumbled several more times and had difficulty communicating. He refused to perform field sobriety tests, and he was placed under arrest for DUI. Hinlde offered Keenan an opportunity to malee arrangements for his son, and Keenan went into the kitchen to plug in his cell phone. Hinlde told Keenan to stay out of the kitchen because a 12-inch butcher knife was on the counter. Keenan told them to stop being paranoid and continued on. Hinlde grabbed Keenan by the collar, and Keenan stated: “Tm fucldng Jersey, baby. I’ve taken care of more cops than you’ll know.’ ” Keenan was then handcuffed. He refused to take a breath test. A subsequent search of his vehicle revealed a half-empty bottle of whiskey, a bottle cap, and full bottles of beer. Later that evening, officers learned that the PFA order was no longer valid. Keenan was charged with felony DUI as a three-time offender, refusing a preliminary breath test, and transporting an open container. He was bound over after the preliminary hearing, in which Hynes and the officers testified. He pleaded not guilty to all three charges. Keenan then filed his motion to suppress. The motion is not in the record on appeal. The State’s written response and oral argument at the hearing on the motion asserted that exigent circumstances justified the officers’ entiy into Keenan’s home and that officers needed to ensure as part of their DUI investigation that Keenan did not drink alcohol once inside. The State also argued that Miranda warnings were unnecessary because the officers’ questions were part of an investigatory interrogation and that the officers had probable cause to arrest Keenan for DUI because of their observations of his impairment. The defense argued that, even if Hinlde believed he had probable cause to arrest Keenan for a violation of the PFA order, a warrant would be necessary to make such an arrest in a residence, absent exigent circumstances. The defense attempted to discount the significance of the officers’ reliance on their DUI investigation, saying that the officers had “absolutely zero instances with any kind of DUI issues until they got in the house.” The State disagreed, pointing to Madl’s testimony about odor and stumbling before Keenan went inside. At the conclusion of the suppression hearing, the district judge ruled that a recording of the arrest would need to be redacted to eliminate statements obtained from Keenan in violation of his Miranda rights. He also ruled: “Considering the evidence having been presented and your arguments, it is my finding that the police under exigent circumstances had die duty to enter the home and conduct a DUI investigation, certainly a reasonable suspicion to do so. Upon entering the home, more facts were made known which ultimately led to Mr. Keenan’s arrest for DUI. “But as to the first part of the argument that the police should not have entered the residence without a search warrant, I overrule that point. I think the police acted appropriately in entering die home at the time that they did.” (Emphasis added.) At a subsequent hearing concerning the planned redaction of the recording, defense counsel said that tire district judge previously had made “it clear there was probable cause to go in the house without [a] search warrant.” The district judge corrected defense counsel, saying: “Exigent circumstances.” When Keenans case came to trial, defense counsel objected to the admission of the recording of the officers encounter with Keenan and of the alcohol bottles found in Keenan’s vehicle. Counsel asserted that the bottles were found in an unlawful search of Keenans vehicle incident to his arrest; that the search of the house was illegal; and that any testimony arising from the unlawful police conduct should be inadmissible. The district judge adhered to the pretrial rulings and admitted tire exhibits. Keenan was ultimately convicted of felony DUI and transporting an open container. He also was fined for refusing the preliminary breath test. When'Keenan challenged the district judge’s suppression ruling before the Court of Appeals, the panel first ruled that, based on all of the evidence available to the officers, they had more than the mere reasonable suspicion upon which the district judge had relied to rule in the States favor. The panel held that tire officers had probable cause to arrest Keenan, both for violating a PFA and for driving under the- influence before they'entered Keenans home. Keenan, 50 Kan. App. 2d at 364-66. The panel next addressed whether either exigent circumstances, specifically, such as the potential for loss, destruction, or concealment of evidence or the doctrine of hot pursuit justified tire officers’ warrantless entry into Keenan’s home. It determined that a violation of a PFA and a DUI were not minor, nonjailable offenses; and thus Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), did not preclude a warrantless entry. 50 Kan. App. 2d at 368. The panel next rejected Keenans argument that law enforcements mere speculation that Keenan would drink additional alcohol, coupled with a lack of a particularized finding of exigent circumstances by the district judge, doomed the States reliance on State v. Dugan, 47 Kan. App. 2d 582, 588-89, 276 P.3d 819 (2012) (probable cause must be coupled with particularized, exigent circumstances to allow warrantless entry of a private residence). 50 Kan. App. 2d at 368-69. The panel listed five factors set out in Du-gan for evaluation of whether exigent circumstances exist: ‘“(1) The time needed to secure a search warrant; (2) the reasonableness of the officers’ belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of tire evidence are aware of the officers’ presence; and (5) the ease with which the evidence might be destroyed or hidden.’" 50 Kan. App. 2d at 369 (quoting Dugan, 47 Kan. App. 2d at 605 [citing United States v. Moses, 540 F.3d 263, 270 [4th Cir. 2008]; United States v. Vega, 221 F.3d 789, 800 [5th Cir. 2000]). In the panels view, the situation at the threshold of Keenan’s home met four of the five factors, all but the third focused on danger to the officers guarding the site while a warrant is obtained. 50 Kan. App. 2d at 369. The panel then noted that Kansas had little authority on whether the potential for increase or dissipation of alcohol in a suspect s blood constituted exigent circumstances. It also observed that cases from other jurisdictions are split. See 50 Kan. App. 2d at 370 (citing and discussing People v. Thompson, 38 Cal. 4th 811, 825, 43 Cal. Rptr. 3d 750, 135 P.3d 3 [2006] [dissipation may constitute exigent circumstance under particular facts]; People v. Wehmas, 246 P.3d 642, 644 [Colo. 2010] [dissipation insufficient to show exigency]; State v. Legg, 633 N.W.2d 763, 772 [Iowa 2001] [compromise of blood-alcohol evidence establishes exigency]; City of Kirksville v. Guffey, 740 S.W.2d 227, 228-29 [Mo. App. 1987], cert. denied 485 U.S. 1035 [1988] [permissible for officer to block closing garage door to apprehend DUI suspect in home; need to prevent altera tion of blood-alcohol evidence justified entry into suspects home]); State v. Larson, 266 Wis. 2d 236, 251, 668 N.W.2d 338 [Wis. App. 2003] [loss of blood-alcohol evidence not exigency]. In this relative legal vacuum, the panel concluded that the totality of the circumstances in this case demonstrated a potential for loss of evidence that was serious enough to qualify as an exigent circumstance justifying the officers’ entry into Keenans home. 50 Kan. App. 2d at 371. The panel also sided with the prosecution on the applicability of the doctrine of hot pursuit: “The officers’ contact with Keenan reflects their control of the stop. Although the officers had not arrested Keenan, by Keenan asldng permission to enter his own house, Keenan submitted to the officers’ authority and control of Iris movement and recognized he was restricted by their presence. “. . . [T]he officers had two choices — keep Keenan out of his house or allow him to enter the house to put his child to bed. They chose to protect the child’s welfare but kept Keenan under their control by following him into the house. Keenan was using his need to put his son to bed as a reason to keep moving toward the house and avoid the officers. The fact Keenan was trying to retreat into his house, particularly in fight of Iris request to put his young son to bed, does not protect him from an arrest that was ‘set in motion in a public place.’ See [United States v.] Santana, 427 U.S. [38,] 43, [96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976)]. “Keenan first encountered Madl outside his house, and while the pursuit may not have been the equivalent of an action movie, the United States Supreme Court has still deemed the short trip from the doorway of a house to tire interior to qualify as hot pursuit. 427 U.S. at 42-43.” 50 Kan. App. 2d at 372-73. In its ultimate conclusion, the panel cautioned that its decision was narrowly limited to the facts of this case. It said it was “not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol.” 50 Kan. App. 2d at 373. Preservation The State argued before the Court of Appeals and again before us at oral argument that Keenan has an issue preservation problem on his challenge to the denial of suppression. The State did not cross-petition for review on the preservation issue, even though the Court of Appeals rejected its argument that Keenans late trial objection was insufficient. 50 Kan. App. 2d at 363. Supreme Court Rule 8.03(h)(1) (2015 Kan. Ct. R. Annot. 81) states that “issues before the Supreme Court include all issues properly before tire Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals.” Recause the State did not cross-petition to challenge the Court of Appeals’ preservation ruling in favor of Keenan, we will not consider whether the panel erred on this point. Suppression “When reviewing a district courts decision on a motion to suppress, we bifurcate our analysis, first assessing whether the factual findings below are supported by substantial competent evidence and then applying a de novo standard to the ultimate legal conclusion to be drawn from those facts.” State v. Aguirre, 301 Kan. 950, 954-55, 349 P.3d 1245 (2015). The defendant carries the burden of establishing the facts necessaiy to support his or her suppression motion in the district court. State v. Estrada-Vital, 302 Kan. 549, 557, 356 P.3d 1058 (2015). However, the State bears the burden of proving the lawfulness of a search and seizure. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). “When it comes to the Fourth Amendment, tire home is first among equals. It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” State v. Talkington, 301 Kan. 453, Syl. ¶ 5, 345 P.3d 258 (2015). “Except in carefully circumscribed situations, law enforcement officers, then, violate the Fourth Amendment if they enter a dwelling without either a search warrant for the premises or an arrest warrant for a resident they reasonably believe will be found there.” Dugan, 47 Kan. App. 2d at 588 (citing Welsh, 466 U.S. at 748-49). “Kansas recognizes various exceptions permitting warrantless entries or searches: consent; search incident to lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; emergency aid; inventory searches; plain view; and administrative searches of closely regulated businesses.” State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). And the United States Supreme Court has recognized that entry into a house without a warrant can pass muster under the Fourth Amendment when an officer possesses 'probable cause of criminal activity and exigent circumstances exist. See Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). We first address the panel’s determination that there was probable cause to arrest Keenan by the time he entered his home. This determination does not require a rigid application of factors. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). Rather, it looks to tire totality of the circumstances, as viewed through the lens of an objectively reasonable police officer. State v. Ramirez, 278 Kan. 402, 407, 100 P.3d 94 (2004). The probable cause necessary to justify a warrantless arrest is ‘“a reasonable ground for belief of guilt; and this means less than evidence which would justify condemnation of conviction; probable cause exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. [Citation omitted.]”’ State v. Fewell, 286 Kan. 370, 377, 184 P.3d 903 (2008) (quoting State v. Hays, 221 Kan. 126, Syl. ¶ 1, 557 P.2d 1275 [1976]). The record supports Keenan’s contention drat the district court judge erred in applying the wrong legal standard — evaluating the facts for the existence of reasonable suspicion rather than the more demanding probable cause. Reasonable suspicion is a much lower standard tiran probable cause and may be established with less reliable information. State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). However, we agree with the Court of Appeals panel that probable cause to arrest nevertheless existed. Keenan, 50 Kan. App. 2d at 365-66; see Sloop, 296 Kan. at 22 (Supreme Court may decide probable cause question on undisputed facts in DUI case despite failure to analyze in district court). Although Madl saw Keenan commit no traffic infractions, she and Hinkle responded to Keenan’s home based on Hynes’ telephone tip reporting that Keenan was driving home drunk and had his son with him. See Aguilar v. Texas, 378 U.S. 108, 113-14, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) (use of informants can be an acceptable method of establishing probable cause). “[Pjrobable cause can be based solely on information from a reliable, credible informant.” United States v. Long, 774 F.3d 653, 660 (10th Cir. 2014), cert. denied 135 S. Ct. 2068 (2015). Probable cause for a warrantless law enforcement action may rely upon information received through an informant, rather than upon an officers direct observation, “ ‘ “so long as tbe informant’s statement is reasonably corroborated by other matters within the officers knowledge.”’ [United States v. Mathis,] 357 F.3d 1200, 1204 (10th Cir. 2004) (quoting Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 [1960]).” Long, 774 F.3d at 659. All of the particulars of Hynes’ tip were corroborated by the officers’ personal, direct observations. Keenan was driving the vehicle described; he arrived at his home when expected; his son was with him; Keenan smelled of alcohol; and he stumbled while carrying his son. See State v. Slater, 267 Kan. 694, 703, 986 P.2d 1038 (1999) (“An officer may corroborate the tip by observing illegal activity or by finding the person and vehicle and the location as substantially described by the informant.”). These observations combined with the detailed tip from identified informant Hynes supplied substantial competent evidence to support probable cause to arrest Keenan for DUI. Ordinarily, we would next turn to the question of the existence of exigent circumstances, the question on which the parties have concentrated their efforts during the proceedings on petition for review. Indeed, when Keenan’s petition for review was granted, this court anticipated that this case would provide an opportunity to fill in the blanks the Court of Appeals noted in Kansas law on the exigencies that may arise because of the changeable nature of blood-alcohol evidence in DUI prosecutions. But, on closer examination, we have determined that this case cannot bear the weight intended for it. Even if we were to conclude that Keenan was correct and there were no exigent circumstances to justify the officers’ entry into his home, meaning all evidence obtained as a result of that entry should have been suppressed, the district judge’s error would be examined on appeal for harmlessness. See State v. James, 301 Kan. 898, 910, 349 P.3d 457 (2015) (where case turns on Fourth Amendment analysis, constitutional error may be declared harmless when party benefitting from error demonstrates beyond a reasonable doubt that error did not affect outcome of trial in light of the entire record). After reviewing tire entire record here, we are convinced beyond a reasonable doubt that the additional, largely cumulative evidence obtained as a result of the officers’ entry into Keenan’s home and later search of his vehicle did not affect the outcome of his trial. Before the entry, the officers were acting on a highly reliable tip from a known informant who personally observed Keenan display multiple signs of intoxication and yet place his son in his vehicle to drive him to his home. The officers corroborated every aspect of this tip with their own observations. They had probable cause to arrest and could have arrested Keenan for DUI without a warrant at this point. Instead, they behaved in a calm and humane way, allowing Keenan to put his young son inside and out of the sleet late at night. They then appropriately effected the arrest they could have made moments before on the other side of the home’s exterior door. Under these circumstances, we need not reach the issue we anticipated, and we do not decide whether die officers’ entry into Keenan’s home was permissible because of the exigent circumstances of the loss, concealment, or destruction of evidence or the doctrine of hot pursuit. We simply hold that, even if the entiy was illegal, any error by the district judge was harmless. See State v. Thomas, 302 Kan. 440, 453, 353 P.3d 1134 (2015) (if lawfully obtained information sufficient, standing alone, to support requisite probable cause to issue warrant, inclusion of unlawfully obtained information will not invalidate warrant).. - Conclusion Although the reasoning of this court differs, as discussed above, we affirm die judgment of the district court and the decision of the Court of Appeals panel.	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The opinion of the court was delivered by Luckert, J.: Water District No. 1 of Johnson County, Kansas, (referred to by the parties as WaterOne) filed an eminent domain petition in the district court seeking to condemn 10 tracts of land “[s]ubject to existing easements of record.” Prairie Center Development, L.L.C., owned each of the tracts in fee simple. After die district court'granted the petition, D.P. and Wanda Bonham and the D.P. and Wanda Bonham Trust (hereinafter the Bonhams)— who were not parties to the condemnation proceeding — filed both an appeal of the condemnation award and a motion to void the district court’s order. The Bonhams owned an easement in one of the 10 condemned tracts, and they argued that WaterOne necessarily took their easement without complying with the Eminent Domain Procedure Act (EDPA) as to their easement. See K.S.A. 2015 Supp. 26-501 et seq. After hearing arguments, the district court denied the Bonhams’ motion to void, concluding that WaterOne did not condemn the Bonhams’ easement. We affirm the district court’s decision. Facts and Procedural Background WaterOnes plan was to install “a water pump station, a reservoir and system of transmission and distribution mains in Johnson County, Kansas.” To complete this project, WaterOne exercised its eminent domain power to condemn permanent water main easements and temporary construction easements in the 10 tracts of land on and around which the project was to be constructed. Prairie Center Development, L.L.C., was the owner of the 10 tracts. In February 2014, WaterOne filed an eminent domain petition in the district court against Prairie Center Development and “any unknown persons claiming an interest in or in possession of the property described herein.” About a month later, the district court approved WaterOnes petition and appointed appraisers to conduct a valuation of the land. Thereafter, the appraisers determined just compensation for the condemned lands, and the district court ordered WaterOne to pay the awards. The record does not reflect that WaterOne or Prairie Center Development filed an appeal. Instead, the Bonhams, who were not parties to the proceedings, filed both an appeal of the award and a motion to void the condemnation. Specifically, the Bonhams argued the condemnation relating to one of the tracts — Tract 16A — was void for noncompliance with tire EDPA. The Bonhams possessed their own easement in Tract 16A and argued that WaterOne failed to name them in the condemnation petition or send them the proper statutory notice. In response, WaterOne argued it did not have to name the Bonhams or give them notice under the EDPA because it did not intend to take or interfere with their easement. After considering the motion in a hearing, the district court denied the Bonhams’ motion to void. The Bonhams timely appealed to this court, which has jurisdiction under K.S.A. 2015 Supp. 26-504 (“Appeals to the supreme court may be taken from any final order under the provisions of [tire EDPA].”). Analysis In Kansas, the EDPA provides tire only avenue through which the government can exercise its eminent domain power. See K.S.A. 2015 Supp. 26-501 et seq.; Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 227, 231, 523 P.2d 755 (1974). Importantly, “‘[a] statute which confers the right to exercise the power of eminent domain is to be strictly construed in light of the objectives and the purposes sought to be attained by its enactment.’” Miller v. Bartle, 283 Kan. 108, 113, 150 P.3d 1282 (2007) (quoting Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239, Syl. ¶ 5, 38 P.3d 723 [2002]). The Ronhams allege WaterOne failed to comply with the EDPA. As relevant to this appeal, we conduct unlimited review over matters of jurisdiction, the interpretation of statutes, and the interpretation of written instruments. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014); Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013); Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 917, 46 P.3d 1120 (2002); City of Wichita v. Meyer, 262 Kan. 534, 539, 939 P.2d 926 (1997). A brief overview of a proceeding under the EDPA puts the Bonhams’ claims in context and clarifies the objectives and purposes of the EDPA. 1. This action is governed hy the nature of condemnation proceedings. Eminent domain — the power to take private lands for public use — is essential and inherently governmental. See K.S.A. 2015 Supp. 26-501(c)(2); Concerned Citizens, 215 Kan. at 226-27; 26 Am. Jur. 2d, Eminent Domain § 4. But however essential, the government cannot exercise its inherent power to take land for free: The government must justly pay for the land it takes. K.S.A. 26-513(a) (“Private property shall not be taken or damaged for public use without just compensation.”). In Kansas, provisions of the EDPA control the proceedings to the extent the provisions address an issue. In an appeal from an eminent domain award, the code of civil procedure applies. K.S.A. 2015 Supp. 26-508(a) (an eminent domain appeal “shall be tried as any other civil action”); Neighbor v. Westar Energy, Inc., 301 Kan. 916, 920, 349 P.3d 469 (2015). Eminent domain proceedings begin when an entity seeking to condemn land files a petition in the district court. K.S.A. 2015 Supp. 26-501(b). Under the EDPA, the entity’s petition must include: “(1) the authority for and the purpose of the taking; (2) a description of each lot, parcel or tract of land and tire nature of the interest to be taken; (3) insofar as their interests are to be taken (a) the name of any owner and all lienholders of record, and (b) the name of any party in possession. ... No defect in form which does not impair substantial rights of the partes shall invalidate any proceeding.” K.S.A. 26-502. In addition, K.S.A. 2015 Supp. 26-503 requires that notice be given to “each interested party as named in K.S.A. 26-502,” that is, “any owner,” “lienholders of record,” and “any party in possession.” Once the petition is filed, the judge must determine from the petition itself (1) whether the entity “has the power of eminent domain” and (2) whether “the taking is necessary to the [entity’s] lawful corporate purposes.” K.S.A. 2015 Supp. 26-504. When the judge makes those findings in favor of the government entity, appraisers are appointed to conduct a valuation of the land the entity seeks to take. K.S.A. 2015 Supp. 26-504; K.S.A. 2015 Supp. 26-505. Ultimately, those appraisers file a report on the amount of compensation that is just. K.S.A. 2015 Supp. 26-506. Then, to proceed with the taking, the entity must pay that amount within 30 days of the appraiser’s report. K.S.A. 2015 Supp. 26-507; Miller, 283 Kan. at 113. This court has characterized these proceedings as an “inquest” — an investigation into exactly how much the government owes. Indeed, the proceedings are narrow and not .“‘a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof.’” Miller, 283 Kan. at 113-14. Here, WaterOne filed its eminent domain petition in the district court. As to the extent of its taking, WaterOne sought to condemn temporary construction easements and permanent water main easements in 10 tracts of land owned by Prairie Center Development in fee simple. The district court appointed appraisers, the appraisers filed reports, and from those reports Prairie Center Development received compensation. There is nothing in this appeal suggesting that WaterOne did not fully comply with the EDPA as to the owners of the land — Prairie Center Development. The EDPA does provide that if any party is not satisfied with the amount awarded in the appraisers report the party can appeal to the district court for a trial de novo. But even the trial de novo is narrow: “The only issue to be determined... shall be the compensation required by K.S.A. 26-513.” K.S.A. 2015 Supp. 26-508(a). In short, EDPA proceedings are intended to be quicldy resolved, only concerning (1) the authority to take and (2) just compensation for the taking. Litigation of collateral issues is relegated to other civil actions. Miller, 283 Kan. at 114; State Highway Commission v. Bullard, 208 Kan. 558, 561-62, 493 P.2d 196 (1972). From the record here, it does not appear that Prairie Center Development or WaterOne filed an appeal under K.S.A. 2015 Supp. 26-508 to challenge the amount of compensation awarded. What makes this case unique is that the Bonhams — who were never parties to WaterOne s action — filed an appeal. WaterOne had taken a permanent water main easement in Tract 16A, which is a tract of land on which the Bonhams held their own easement. And the Bonhams’ easement had become a private roadway known as Stonecrest Road. Soon after filing the appeal, the Bonhams also filed a motion to void the proceedings for statutory defects. Essentially, the Bonhams claimed WaterOne could not possibly take the permanent water main easement and use it to install a pipeline in Tract 16A without interfering with Stonecrest Road — the Bonhams’ easement. So the Bonhams argued WaterOne did not comply with the EDPA’s petition requirements because WaterOne took the Bonhams’ interest without listing the Bonhams as parties in the petition. See K.S.A. 2015 Supp. 26-503. Additionally, under K.S.A. 2015 Supp. 26-503, the Bonhams argued WaterOne failed to send them the requisite notice of the condemnation proceedings. The Bonhams also argued the district court made two errors that are reflected in the journal entry: The district court read K.S.A. 26-502 and 26-503 as applying only to fee holders, not easement holders, and it considered parol evidence. In response, before both the district court and this court, Wa-terOne has consistently argued that it did not include the Bonhams in the action because it never sought to acquire the Bonhams’ easement — notably, the plain language in WaterOnes petition condemned an easement in Tract 16A “[sjubject to existing easements”; in other words, subject to the Bonhams’ easement. Likewise, WaterOne argues the district court wholly lacked the jurisdiction to hear the Bonhams’ claims. Before we address the Bonhams’ arguments, we address Wa-terOne’s threshold question of whether the district court had jurisdiction to consider the Bonhams’ claims. 2. The district court had jurisdiction to consider the Bonhams’ narrow claim that WaterOne’s petition was statutorily defective. Essentially, WaterOne presents a question of subject matter jurisdiction, which is an issue that can be raised at any time. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009). Thus, despite the Bonhams’ argument diat this argument should not be considered because WaterOne did not cross-appeal, we can consider WaterOne’s argument. WaterOne’s argument arises, in large part, because the district court heard tire Bonhams’ claim even though the Bonhams were not originally parties to the condemnation proceedings. As a practical matter, the district court had to determine whether WaterOne took the Bonhams’ property interest in order to determine whether WaterOne’s petition was statutorily defective for failing to name the Bonhams. Despite their nonparty status, we agree with the district court that it could determine the narrow issue of whether WaterOne’s petition contained a statutory defect. “There is no provision in the [EDPA] precluding a landowner from raising statutory defect arguments in the condemnation proceeding.” City of Wichita, 262 Kan. at 542. The Bonhams relied exclusively on City of Wichita for the authority to file a motion to void the proceedings. And the case does support the Bonhams’ ability, as a procedural matter, to file their motion in this case. In City of Wichita, the city initiated condemnation proceedings on multiple tracts for the purpose of constructing an ice rink. 262 Kan. at 535. Although the city sought to condemn Tracts 47 and 48, which R.E.M. Properties (REM) owned, the city did not fist REM or mention the tracts in its petition. The public hearing notice, however, did list REM and its two tracts, and the appraisers determined the value of the two tracts at $29,000. Despite its non-party status, REM filed an appeal and argued a statutory defect (a day later the city amended the petition to include REM and the two tracts). 262 Kan. at 536-37. Because REM was not a party to the initial petition, the city argued the district court did not have jurisdiction over REM s claims. 262 Kan. at 539-40. Rejecting the citys jurisdictional argument, this court concluded that although the EDPA limits an appeal to the issue of compensation, “raising statutory defects that render the condemnation proceeding void before trial of the appeal [or after the appeal] is not foreclosed.” 262 Kan. at 542. This court in City of Wichita reasoned that even though REM was not initially a party to the proceedings, as a landowner with rights at stake, it should not have to risk foregoing an appeal of an award by filing a separate action to challenge the validity of the petition. 262 Kan. at 542; 6 Nichols on Eminent Domain § 26A.03[3] (3d ed. 2008) (“[A] description of property to be taken that does not meet the strict pleading requirements of this allegation will render the entire condemnation proceeding void.”). Thus, under City of Wichita, the district court in this case had jurisdiction over the proceedings to narrowly consider the merit of the Bonhams’ statutory-defect argument. See also Dotson v. State Highway Commission, 198 Kan. 671, 675-76, 426 P.2d 138 (1967) (permitting unnamed owner to join in appeal: “[A]ny appeal by a landowner, lienholder or interested party brings to the district court for determination in a single action the sufficiency of tire award for all interests in the tract or parcel of land under condemnation.”). Alternatively, tire code of civil procedure gives the district court discretion to permit intervention if the Bonhams presented “a claim . . . that share[d] with the main action a common question of law or fact.” K.S.A. 2015 Supp. 60-224(b)(1)(B). WaterOne notes that the Bonhams characterized their motion specifically as a motion to void under City of Wichita rather than a motion to intervene. But implicit in the motion to void was an intervention question— whether the Bonhams had an ownership interest sufficient to give them a place in this action. And typically intervention is subject to liberal construction in favor of intervention. Smith v. Russell, 274 Kan. 1076, 1083, 58 P.3d 698 (2002). In this procedurally unique case, we do not find that the district court wholly lacked jurisdiction to narrowly consider the Bonhams’ claims. Because the district court had jurisdiction to consider the Bon-hams’ statutory-defect claim, the next question is whether the district court correctly resolved the motion against the Bonhams. We conclude that it did. 3. The district court was correct that WaterOnes petition contained no statutory defects. Certainly, WaterOnes petition did not name the Bonhams or describe their ownership interest in the easement over Tract 16A. If WaterOne intended to condemn the Bonham’s interest — either permanently or temporarily — it needed to include them as a party and describe their interest. However, in seeking both a permanent water main easement and a temporary water main easement, WaterOne pleaded that its interests would be “‘[sjubject to existing easements of record.’ ” This fact — i.e., that WaterOne was not seeking and has never-sought to take the Bonhams’ easement — makes this case factually distinguishable from City of Wichita. Notably, in City of Wichita, there was no question the city sought to take Tracts 47 and 48 from REM. So the city’s petition was void for two reasons: (1) It failed to fist Tracts 47 and 48, and (2) tire city failed to send REM the requisite statutory notice. 262 Kan. at 544-46 (“If the petition fails to list the property to be condemned, it is impossible-for the judge to malee any of the findings to allow condemnation to go forward as to that property.”); see also K.S.A. 26-502 (petition must contain description of property); K.S.A. 2015 Supp. 26-503 (condemning authority must send notice to interested parties). Here, WaterOne has consistently maintained that it is not seeking to take the Bon-hams’ easement, and the plain language of the condemnation petition is consistent with that position. Had the petition not contained the phrase ‘“[sjubject to existing easements of record,’” the Bon-hams would have made a valid point. Nevertheless, the phrase was included, and the language in the petition and the corresponding appraisers report determined the extent of the property rights taken. City of Mission Hills v. Sexton, 284 Kan. 414, 431, 160 P.3d 812 (2007). Thus, WaterOnes petition did not condemn the Bonhams’ interest and WaterOne did not obtain the right to interfere with the Bonhams’ interest. (The appraisers’ report does not appear in the record on appeal). WaterOne, as the government entity condemning the land, had the exclusive right to determine what lands it needed to take. Murray v. Kansas Dept. of Transportation, 239 Kan. 25, 27, 716 P.2d 540 (1986); Concerned Citizens, 215 Kan. at 228; 26 Am. Jur. 2d, Eminent Domain § 38 (“The selection of the amount of land necessary for a condemnation is a legislative question to be determined by the condemnor.”). Apparently, WaterOne determined that it needed an easement in Tract 16A but did not need the Bonhams’ easement. Generally, “no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary.” 26 Am. Jur. 2d, Eminent Domain § 39. Even in this appeal, WaterOne claims that “no . . . taking or damage will result [in the Bonhams’ easement] from the exercise of rights acquired.” If in WaterOnes estimation it did not believe it needed the Bonhams’ easement, it would have been difficult for WaterOne to justify using eminent domain to take it. K.S.A. 2015 Supp. 26-504 (petition must show that taking the land is necessary). Indeed, a condemning body “has no authority to appropriate private property for only a contemplated or speculative use in the future.” 26 Am. Jur. 2d, Eminent Domain § 40 (“[I]f the condemning body is uncertain when the future use will occur, the future use becomes unreasonable, speculative, and remote as a matter of law and defeats the taking.”). The Bonhams recognize that the petition condemns an interest in Tract 16A “subject to any existing easements.” However, they argue that other language in the petition gives WaterOne the right to ignore the Bonhams’ easement: ‘What WaterOnes Petition seems to give with one hand through the ‘Subject to any existing easements of record . . .’ language, it takes away with the other.” This argument fails to persuade us. When interpreting a written document, the intent of the parties controls and is best evinced by the documents unambiguous language. A documents meaning should be gleaned from the document as a whole rather than “the critical analysis of a single or isolated provision.” See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998). Eschewing this interpretive canon, the Bonhams claim WaterOne can “pretty well do as it pleases” on the Bonhams’ easement, pointing to the long and general list of actions WaterOne s petition says it can take on the property it condemns — e.g., “may temporarily excavate or cut through any road.” Contrary to this assertion, WaterOne’s interest is expressly limited by the language that indicated any right it sought in Tract 16A was subject to the Bonhams’ easement. Regardless of what Wa-terOne’s petition would have given it the right to do if WaterOne had condemned the Bonhams’ interest (if the petition had included the Bonhams’ easement) or its rights on property interests it did condemn, WaterOne did not condemn the Bonhams’ easement and has no legal right to interfere with it. The Bonhams’ assertion before the district court that WaterOne would at some point obstruct Stonecrest Road does not mean that WaterOne condemned the easement. See 26 Am. Jur. 2d, Eminent Domain § 240 (“Future apprehended damages . . . claimed to be due because of anticipated . . . operation of the public project, may not be included in the condemnation award since the law furnishes a remedy in the future for recovery of those damages if and when they occur.”). The district court did not err in concluding, from the petition, that WaterOne did not take the Bonhams’ easement. The core of the Bonhams’ appeal is their claim that WaterOne cannot realistically hope to construct a water line without interfering with Stonecrest Road. That contention might have seemed like a fair possibility when the district court considered the parties’ arguments; it might even prove (or by the time it reached this court have proven) true. If so, WaterOne will have exceeded its legal authority; because of such possibilities, we urge condemning authorities to be scrupulously fair in the exercise of eminent domain, always cognizant of the responsibility that comes with a power so great. Nevertheless, we are constrained in an eminent domain proceeding by the language the condemning authority uses, its condemnation plans, and the limits of the EDPA. “‘A condemnation proceeding instituted under K.S.A. 26-501 et seq., . . . does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right. .. . The right... to determine other issues such as the necessity and extent of the taking can only be litigated in an individual civil action.’” (Emphasis added.) Miller, 283 Kan. at 114. We reiterate, the express language in WaterOne’s petition — which controls in the very narrow proceedings at issue here — did not condemn the Bonhams’ easement. In fact, WaterOne’s discretionary decision to take an interest in Tract 16A and leave the Bonhams with their easement is only subject to judicial review upon a showing of fraud, bad faith, or abuse of discretion. Murray, 239 Kan. 27; Concerned Citizens, 215 Kan. at 228. First, WaterOne correctly notes that the Bonhams do not argue fraud, bad faith, or abuse of discretion in this appeal. Second, even had the Bonhams made those assertions in this case, those assertions are only proper in an action outside the narrow condemnation proceedings. Murray, 239 Kan. at 27; Concerned Citizens, 215 Kan. at 225-26, 228. Under the weight of the authority, the Bonhams cannot prove a statutory defect based on their assertion that WaterOne will necessarily, at some point, interfere with their easement. 6 Nichols on Eminent Domain § 26A.03[1] (It is not “necessary to describe property that will be damaged if the proposed improvement is constructed”; the condemnor does not intend to damage land it does not take, so those damages are speculative.); see also Concerned Citizens, 215 Kan. at 237-39 (condemning authority does not need to show it could fully accomplish its plan prior to taking land); Weldon v. State, 495 So. 2d 1113, 1116 (Ala. Civ. App. 1985) (Owners of easement did not need to be named because it was “obvious that the rights of those owning the dominant tenements of the right of way across Fot B are not obstructed in any way by the condemnation of a small, noncontiguous, portion of Lot B. As such, there has been no taking of the dominant tenement or the easement.”); In re Appeal of Heim, 151 Pa. Cmwlth. 438, 444, 617 A.2d 74 (1992) (No error in failing to name easement owners because “the easements of the additional lot owners will continue to exist over the opened road, just as they existed over the unopened road. The additional lot owners therefore do not have a property interest which has been taken, injured or destroyed.”). Consequently, the district court correctly resolved the narrow issue before it. WaterOne’s petition was not statutorily defective on its face for omitting the Bonhams and their easement because WaterOne never sought to take — and did not take — the Bonhams’ easement. Notwithstanding WaterOne’s intentions, the Bonhams are not, as we have alluded, left without a remedy just because their claims were improper in this case: Should WaterOne interfere with the Bonhams’ easement (or if it has done so), the Bonhams could file a separate action for inverse condemnation. 6 Nichols on Eminent Domain § 26A.03[1]. Indeed, “[i]nverse condemnation is an action initiated by the landowner and is available when private property has been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action.” City of Wichita v. Meyer, 262 Kan. 534, 548, 939 P.2d 926 (1997). It seems WaterOne has no intention to file a formal condemnation proceeding as to the Bonhams’ easement. So if WaterOne does take or damage the easement, the Bonhams have viable legal options, which they recognized in the hearing before the district court. Accordingly, we hold WaterOne’s petition was valid on its face. We next address the Bonhams’ challenges to the district court’s journal entry denying their motion to void the condemnation. 4. The Bonhams fail to establish an error in the journal entry. As to their attack on the journal entry in this case, the Bonhams first claim the district court erred as a matter of law by concluding that easement holders are not entitled to notice under the EDPA. Second, the Bonhams assert that the district court improperly relied on parol evidence to conclude that WaterOne did not take their easement. We find no error in the journal entry. 4.1. An entity must comply with the EDPA when taking an easement. The Bonhams assert that tire district court made a mistake of law in concluding that only fee owners of property, lienholders, and parties in possession are entitled to statutory notice under the EDPA. We reject this claim because we disagree with the Bonhams’ characterization of the district courts legal conclusion. Citing Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 132, 928 P.2d 73 (1996), the Bonhams argue this court has recognized easement holders as parties entitled to compensation under the EDPA. See 261 Kan. 125, Syl. ¶ 6 (“Under the facts of this case, the trial court correctly found the owner of a retained easement taken by a condemnor was entitled to the entire amount of the appraiser’s award.”). They fault the district court’s conclusion that “WaterOne complied with the Eminent Domain Procedure Act, . . . since die [Bonhams] were not the fee holder, lienholders, or parties in possession of’ the condemned tract. Indeed, this statement strayed from the statutory language and substituted “fee holder” for the term “owner” in K.S.A. 26-502, and, arguably this change could be read as a failure to account for an easement holder’s interest. Neverdieless, as we have noted, WaterOne has consistently argued it did not include the Bonhams in the action because it never sought to acquire the Bonhams’ easement; WaterOne asserts its position was never that those with a preexisting easement would not be entitled to be named in a petition and given notice. WaterOne, for its part, concedes that the EDPA covers the taking of easements. See also 26 Am. Jur. 2d, Eminent Domain § 209 (“The owner of an easement is entitled to compensation when the easement is taken in eminent domain.”). This means, according to Wa-terOne, any misstatement by the district court (assuming there was one) was irrelevant to its ultimate conclusion, which was that Wa-terOne did not take the Bonhams’ property interest. The Bonhams also concede that “being the owner of an easement interest does not entitle one to be named and noticed up if the taking at issue does not interfere with the enjoyment of the easement in question.” Reading the district courts faulted statement regarding fee holders in context, it becomes clear this statement was not the basis for the district court s decision and, in fact, the district court did not conclude that easement holders are never entitled to statutory notice under the EDPA. Rather, the court found that the Bonhams were not entitled to notice because their “easement rights under the plain language of WaterOne’s condemnation petition [were] not designated to be taken.” As we previously concluded, because WaterOne took Prairie Center Development’s property subject to any existing easements, WaterOne did not take the Bonhams’ easement, or any existing easement, and only had to name Prairie Center Development, who happened to be tire fee holder. Nothing in the record suggests that the district court did not understand that easements could be taken or that it believed the EDPA notice requirements did not apply to easements. We do not find the record to support the Bonhams’ argument on this point. 4.2. The district court did not erroneously rely on parol evidence. The Bonhams argue the district court concluded there was no taking only by erroneously relying on WaterOne’s project design plan, which was parol evidence outside WaterOne’s condemnation petition. The district court’s findings of fact did mention WaterOne’s project plan. The court found, among other tilings, that the “project design plans and contract specifications provide that the contractor is ‘to construct 12 foot wide temporary access road for neighborhood ingress/egress that is to be accessible at all times.’” We recognize the petition was not the source of that information. Again, the petition and appraiser’s report define the extent of the land condemned, and parol evidence is not admissible to limit the extent of a taking. See City of Mission Hills, 284 Kan. at 431 (“ ‘parol evidence will not be admitted for the purpose of establishing a lesser interest based on the condemnors intended use’ ”). But WaterOne did not condemn the Bonhams’ easement through its petition and then use the project plan to exclude the Bonhams’ easement from the condemnation. WaterOne never intended to take the Bonhams’ easement, and it explicitly drafted its petition so as not to take die easement. Granted, the district court did mention parol evidence in its journal entry. But it was the Bonhams who first referenced parol evidence in their motion to void by arguing that “[a]s part of the construction project it will be necessary to dig up Stonecrest Road in order to put the pipeline underground.” Nowhere does the petition say WaterOne will dig up Stonecrest Road; the petition makes no mention of Stonecrest Road. Generally, a party cannot invite error and then complain of the error on appeal. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203-04, 308 P.3d 1238 (2013). The Bonhams attempted to support their motion to void by arguing that WaterOne would have to dig up Stonecrest Road to complete its project. We find a point WaterOne made before the district court compelling: Just as WaterOne cannot use its plans to show how it will avoid interfering with the Bonhams’ easement, the Bonhams cannot go outside of the petitions language to argue WaterOne will interfere with their easement. The Bonhams invited the district court to hear parol evidence about the project plan in their attempt to prove WaterOne would need their easement. The petition itself simply did not condemn the Bonhams’ easement. Furthermore, even if the district court’s discussion of parol evidence was uninvited error, the error was harmless here because it did not affect the Bonhams’ substantial rights. See City of Mission Hills, 284 Kan. at 434 (Harmless error under K.S.A. 60-261 applies to the admission of evidence in an eminent domain proceeding.); see also K.S.A. 2015 Supp. 60-261 (“[N]o error in admitting or excluding evidence. . . is ground for . . . disturbing a judgment or order [unless the error affects a] party’s substantial rights.”). Again, despite mentioning parol evidence, the district court relied only on the language of the petition to conclude that the Bonhams’ “easement rights ... are not designated to be taken.” So its discussion of the construction plan did not lead to its ruling. If WaterOne does dig up Stonecrest Road at some point in the future (or, as argued during oral arguments before this court, has already interfered with the Bonhams’ property interest), then the Bonhams would have had a claim in a separate action for inverse condemnation. See City of Wichita, 262 Kan. at 548. Finding no error in the district courts decision in this case, we affirm. 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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Granted. Unpubhshed	[ -105, -23, -124, 125, -120, 32, 27, -98, 70, -97, 103, 91, 99, 112, -10, 96, -74, -19, -91, 87, -24, 3, 119, -55, -14, 83, -69, 71, 81, -14, -82, 109, 102, -94, -118, -76, 78, -60, -19, -56, -126, 68, 57, -116, -16, 67, 33, 11, 81, 11, 83, 20, 113, -86, 24, 81, -88, 34, -51, -81, 65, -37, -71, 3, -17, -116, -126, 16, 60, -21, -62, 110, -99, 25, 1, -56, 82, -28, -122, 116, 15, -37, -84, -16, 38, 48, -83, -4, -84, -77, 103, -18, -83, -90, -115, 73, 72, 107, -81, 121, -120, 16, 42, -24, -13, -124, 44, 108, 43, -98, -58, -89, 93, 60, 30, 10, -1, 92, -77, 33, -58, 118, -52, 114, -66, -57, -46, -69 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
The opinion of the court was delivered by Rosen, J.: Kristin Lea Wagner, a Johnson County resident, appeals the Court of Appeals’ decision in In re Equalization Appeal of Wagner, No. 109,783, 2014 WL 1096896 (Kan. App. 2014) (unpublished opinion) (Wagner II), affirming the Court of Tax Appeals’ $494,200 valuation of her home for the 2012 tax year. Notably, in determining the 2012 valuation, COTA adopted the final valuation it assigned to the home for the 2011 tax year. We conclude that COTA ignored evidence in the record establishing that Wagner’s home suffered a 2.94% decrease in value between 2011 and 2012. Accordingly, we reverse the Court of Ap peals’ decision and remand the case to COTA with directions that Wagners home be valued at $479,600 for the 2012 tax year. Facts To fully understand Wagners current tax appeal, an overview of the facts from her 2011 appeal — In re Equalization Appeal of Wagner, No. 107,472, 2012 WL 3290147 (Kan. App. 2012) (unpublished opinion) (Wagner I) — is necessary. In 2011, Wagner received a Notice of Value from the County showing that, based on comparable properties and a quality rating of 4.33 good+, the appraised value of her property was $569,000. Wagner appealed, complaining that the appraised value was higher than that of 2006 despite no improvements to the property and a “substantial downturn” in the real estate market during the interim. After an informal equalization appeal, the County did not change the appraised value, leading Wagner to file a protest form with COTA. Ultimately, COTA determined that the appraised value for tax year 2011 should be reduced to $553,600. Wagner disagreed with COTA’s determination and appealed. Wagner I, 2012 WL 3290147, at 1-3. On appeal before the Court of Appeals, Wagner raised two arguments: (1) COTA improperly assumed that the 4.33 good+ quality rating was correct and placed the burden of proving its invalidity on Wagner; and (2) COTA’s underlying factual findings concerning the aptness of the quality rating were not based on evidence that was substantial when viewed in the fight of the record as a whole. The Wagner I court agreed with Wagners arguments, concluding that COTA had improperly shifted tire burden of proof on the quality rating issue and that COTA’s underlying factual findings concerning the quality rating were not based on evidence that was substantial when viewed in the fight of the record as a whole. Accordingly, the court reversed COTA’s decision and remanded with directions that COTA establish the appraised value of Wagner’s property for 2011 based on a 4.00 good quality rating. Wagner 1, 2012 WL 3290147, at 7. The Wagner I decision became final in September 2012. While tire 2011 appeal was pending, the County, utilizing a sales-comparison approach and, once more, a construction qual ity rating of 4.33 good+, appraised Wagners property for the 2012 tax year at $537,300 — a 2.94% decrease from the value assessed in 2011 ($553,600) prior to Wagners successful appeal to the Court of Appeals. Wagner challenged the 2012 appraisal, arguing before the Small Claims and Expedited Hearings Division of COTA that the property’s fair market value had fallen to $490,000. The hearing officer found in favor of the County, and Wagner appealed. COTA conducted a hearing on October 11, 2012 — after the Wagner I opinion had become final. At the hearing, Traci Weaver, a Johnson County appraiser, appeared for the County and Wagner appeared pro se. In describing Wagners home, Weaver stated that the property is a “conventional style home” located in the Belle Meade Farms subdivision of Shawnee, Kansas. The home has five bedrooms, five full and one-half baths, and a walk-out basement. Weaver stated that the home had a “[t]otal living area above grade” of 3,551 square feet along with a “lower level finish of approximately 2,000 square feet.” In discussing an aerial view of the property, Weaver stated that Wagners “home has a lot of pitch- — pitches in the roof, some angles and design features that are a little bit better than what would be normal or typical for this area . . . .” Weaver also noted that the “home has certain amenities that a typical home in this area would have, such as decks and patios, and ... a pool.” Weaver acknowledged that the 4.33 good+ quality rating utilized in the appraisal was at issue. But, Weaver stated that in preparation for the hearing, “the County did go out and view the subject property and the comparables as well as other homes within the neighborhood to determine if. . . the quality rating for the property is accurate; and at this time we do deem that, based on the information that we have and views of the property, that quality is stated accurately.” Weaver testified that the County relied heavily on the sales comparison approach in determining the appraised value for Wagner s property. She discussed the three comparable properties utilized in the 2012 appraisal, two of which were located in the same subdivision. Weaver stated: “All these homes are similar conventional style homes either built in the late 1990s or early 2000s. County has made adjustments for those market driving factors such as differences in total living area, lower level finish and condition of these homes. “These properties sold with prices ranging from $420,000, which is Comp 2 [located outside tire subdivision]; Comp 1 selling for $625,000, and Comp 3 selling for $737,000. After these adjustments have been made, we have an indicated market value of $545,000. However, tire County chose to go with the model predictor [i.e., Multiple Regression Analysis (MRA) Estimate of Value] of $537,300 for this valuation.” Notably, out of the four approaches the County used to appraise the value of Wagner’s home, the MRA estimate of value resulted in the lowest value. Within the appraisal report the County submitted to COTA, “MRA Value” was defined as “a statistical valuation approach. It is an estimate of value based on regression models developed for delineated market areas, usually a neighborhood or group of neighborhood^] referred to as a model area. Multiple regression analysis allows for defining the relationship between property characteristics and sale prices. Property characteristics contributing to value are identified and the summed contributory value of each, as defined in tire model, become the value from this approach.” See also In re Equalization Appeal of Voth, No. 94-8411-EQ, 1995 WL 865905, at 1 (Kan. Bd. Tax App. 1995) (“MRA stands for Multiple Regression Analysis, which is a statistical technique for estimating unknown data on the basis of known and available data. In mass appraisal, the unknown data is the fair market value and the known data consists of sales prices and property characteristics of comparable properties. The objective of the MRA is to model the relationship between property characteristics and value so that an estimate of fair market value can be estimated from the comparable sales. The actual calculation of the MRA is extremely difficult. . . . Because of the complex mathematics involved, a computer is used to make the calculátions.”). Based on the information the County had regarding Wagner’s home, Weaver recommended that the 2012 appraised value of the home remain at $537,300. After Wagner questioned Weaver about the properties she used as comparables, Wagner directed COTA’s attention to Taxpayer Exhibit No. 3, which was a copy of the Court of Appeals’ Wagner I decision. In referring to the Wagner I decision, Wagner stated the following: “So in that case, I’d like to reference Taxpayer Exhibit No. 3. I know that I heard Ms. Weaver at the beginning state that she would only like to talk about 2012. However, this document from 2011,1 believe is veiy important to the value of 2012. “It was my understanding that a copy of this was provided to the County as well as [COTA] but in it my understanding was that it was directed that the quality value of my home in 2011 be returned to a value of 4 instead of a value of 4.3. ... “So again, I’m asking that 2011 be recalculated with a value of 4. Since nothing has changed since 2011, I believe it’s imperative that my value for 2012 also be calculated ivith a quality of 4.” (Emphasis added.) The COTA judge responded that he was unsure whether the Wagner I case had become final but told Wagner she was free to argue that “the 2011 should roll over to 2012.” Counsel for COTA noted that because the Court of Appeals reversed COTAs decision in Wagner I, there was more action that needed to be taken to determine the final 2011 appraisal value for Wagner’s home. Based on this comment, Wagner suggested that the hearing be continued until the 2011 tax appeal was finally resolved because she believed that “the 2011 amount is going to have some impact on 2012.” In response, one of the COTA judges sitting on the panel stated, ‘Well, let’s go ahead and finish the testimony, and then that’s a decision that the Court will have to malee.” Wagner concluded by stating: “I have simply one document that I sent during the exchange of evidence, and that would be Taxpayer [Exhibit] No. 4. I believe it’s pretty straightforward, but essentially, assuming that the quality value on my home for 2011 is good as opposed to good plus, I would like to see 2011 recalculated and then based upon that value consider 2012.” Taxpayer Exhibit No. 4 was a letter that Wagner wrote to the Johnson County Appraiser prior to the hearing before COTA, detailing her legal arguments regarding the 2012 appraisal of her home. Wagner wrote: “For 2012, Johnson County established the appraised value of my property at an amount 2.94% lower than the 2011 appraised value. “In determining the 2011 value, Johnson County used a Construction Quality parameter setting of Good+ (4.33). I appealed the county’s use of the Good+ (4.33) setting; the COTA denied my appeal and affirmed the county’s value. “In its opinion filed August 10, 2012 (case number 107,472), the Kansas Court of Appeals reversed the COTA’s decision regarding the appraised value of my property for 2011 and directed the COTA to establish the 2011 appraised value based on a Qualify parameter setting of Good (4.00), rather than Good+ (4.33). “Johnson County has not yet provided me with the corrected appraised value for 2011. Assuming that the corrected value for 2011 is fair and acceptable, I request that the 2012 appraised value of my property be set at a value 2.94% lower than the corrected 2011 appraised value. I also request that the Construction Quality of my property for 2012 be set at Good (4.00).” (Emphasis added.) After asking for and receiving no final comments, one of the COTA judges sitting on the panel stated that the hearing was now closed and that the panel would take the information the parties had provided under advisement and issue a decision within the statutory time period. With regard to the 2011 tax appeal, upon remand, COTA reviewed supplemental valuation evidence provided by the County applying a 4.00 good quality rating to Wagners home. Based on this evidence showing a market value for Wagners home of $494,200, COTA issued a final decision on December 13, 2012, adopting this value as the appraised value for Wagner’s home for the 2011 tax year. On January 4, 2013, COTA sent a letter to Weaver, the Johnson County appraiser, regarding the 2012 appraisal of Wagners home. The letter stated: “The Court held a hearing in this matter on October 11, 2012. The Court requests a tax year 2012 sales approach be compiled via the county’s mass appraisal system utilizing the physical characteristics and amenities as originally indicated with the exception that the construction quality factor be changed to good. “Please submit this additional evidence to the Court within two (2) weeks of the date of this letter. Please also send a copy of your submission to the applicant, Ms. Wagner, and include a notation in your submission to the Court indicating that you have done so. “The Court will also allow the applicant ten (10) days to present any reply that she may have to the county’s submission.” (Emphasis added.) Kathryn D. Myers, a Johnson County assistant county counselor, responded to the letter on January 9, 2013. Myers stated: “The County is in receipt of a letter dated January 4, 2012[,] asking Ms. Weaver of the appraiser’s office to provide additional information related to an evidentiary hearing that was held and tire record closed on October 11, 2012. The Court does not cite to any legal authority that allows it to request additional information from a party litigant once the evidentiary record is closed. As the County is not compelled by an order, it declines to provide additional information.” With regard to the 2012 valuation of Wagners home, Myers stated that it was the County’s position that “K.S.A. 79-1460 applies to the 2012 tax year and that the Court is mandated to maintain the final value determined by the 2011 appeal to the 2012 tax year.” K.S.A. 2012 Supp. 79-1460 stated in pertinent part: “(a) The county appraiser shall notify each taxpayer in the county annually on or before March 1 for real property and May 1 for personal property, by mail directed to the taxpayer’s last known address, of the classification and appraised valuation of the taxpayers property except that, the valuation for all real property shall not be increased unless . . . (2) for the taxable year next following the taxable year that the valuation for real property has been reduced due to a final determination made pursuant to the valuation appeals process, documented substantial and compelling reasons exist therefor and are provided by the county appraiser. When the valuation for real property has been reduced due to a final determination made pursuant to the valuation appeals process for die prior year, and the county appraiser has already certified the appraisal rolls for the current year to the county clerk pursuant to K.S.A. 79-1466, and amendments thereto, the county appraiser may amend the appraisal rolls and certify the changes to the county clerk to implement the provisions of this subsection and reduce the valuation of the real property to the prior years final determination, except that such changes shall not be made after October 31 of the current year.” (Emphasis added.) On January 19, 2013, Wagner sent a letter to COTA noting the County’s refusal to provide the information COTA had requested and stating her belief that the Wagner I decision dictated that the County apply a 4.00 good quality rating instead of a 4.33 good+ rating to the 2012 appraisal of her home. Wagner’s evidence presented at the hearing showed that in 2012, the County, using a quality rating of 4.33 good+, appraised her home at $537,300 — a 2.94% decrease from the value assessed in 2011 ($553,600) using the same 4.33 good+ quality rating. Based on this evidence, Wagner argued that the 2012 value of her home should be $479,600— 2.94% lower than the corrected value assessed for 2011 ($494,200). Wagner argued that contrary to the County’s assertion, K.S.A. 2012 Supp. 79-1460 did not mandate that the final 2011 valuation be maintained as the valuation for 2012 because she was seeking a valuation for 2012 that was less than the 2011 valuation. Wagner noted that there was no language within the statute that prevented a valuation that was lower than the previous year’s valuation. COTA did not respond to Wagners letter and did not order the County to provide the additional information that COTA had requested. Instead, COTA issued an order on March 8, 2013, establishing the value of Wagners property for the 2012 tax year at $494,200, i.e., the same amount as the property’s 2011 final appraised value. In reaching its decision, COTA stated: “In light of the findings of the Kansas Court of Appeals in Wagner [I], we find that a construction quality rating of good is appropriate for the valuation of the subject property for the 2012 tax year. The Court finds the subject property’s final 2011 appraised value of $494,200 was determined based on this corrected construction quality rating and pursuant to this Court’s examination of pertinent market data. The Court finds no substantial credible evidence to support the Taxpayer’s assertion that the subject neighborhood has experienced a 2.94% decrease in overall market value from 2011 to 2012. Given the record evidence, the Court concludes that the subject property’s final 2011 appraised value of $494,200 is the best indicator of the subject property’s value for the 2012 tax year.” (Emphasis added.) Notably, in maintaining the 2011 value for the 2012 tax year, COTA did not rely on K.S.A. 2012 Supp. 79-1460 but concluded that the final appraisal for the 2011 tax year constituted the best evidence of the homes value for 2012. Wagner filed a subsequent letter asking for reconsideration, pointing out that her argument for a 2.94% reduction in value was not based on a supposed decrease in value of homes in her neighborhood, but on the decrease in value the County assigned to her home in 2011 and 2012 using a 4.33 good+ quality rating. Wagner specifically asked COTA to require that the County produce a 2012 appraisal using a 4.00 good quality rating. In the alternative, Wagner asked COTA to set the 2012 value of her home at $479,600— again, a decrease of 2.94% from the final 2011 value assigned to her home. When COTA denied Wagners petition for reconsideration, Wagner filed a timely petition for judicial review. Before the Court of Appeals, Wagner raised two arguments. First, she argued that COTA misconstrued the basis for her argument that her home’s 2012 value should be reduced by 2.94%. Wagner argued that COTA mistakenly believed that her argument for a reduction was based on a supposed decrease in value of her home’s neighborhood rather than a specific decrease in value to the home itself. Because of this mistaken belief, Wagner contended that COTA ignored evidence supporting her argument (i.e., the County’s 2011 and 2012 appraisals of her home showing a 2.94% reduction in value). Second, Wagner argued that COTA relieved the County of its statutory burden to prove the value of her home by failing to require that the County produce a 2012 appraisal of her home using a 4.00 good quality rating. Wagner believed that such an appraisal was required under the holding oí Wagner I and, moreover, factually appropriate, given that she had made no improvements to her home between 2011 and 2012. In response, the County argued that because the valuation of Wagners home in 2011 had been reduced as a result of the valuation appeals process, K.S.A. 2012 Supp. 79-1460(a)(2) dictated that the 2011 valuation be carried over to 2012 unless substantial and compelling reasons existed to justify increasing the valuation for 2012. The County pointed out that after the hearing before COTA, it took the position that no substantial and compelling reasons justified increasing the home’s valuation for 2012. The County contended that Wagner had the burden to prove that her homes 2012 valuation should be less than the final valuation for 2011 and that she failed to do so. As a result, the County argued that COTA, despite not relying on K.S.A. 2012 Supp. 79-1460 for its decision, properly applied the 2011 valuation to the assessment of Wagners home for 2012. The County also responded to Wagners argument contending that it had a legal obligation to produce a 2012 appraisal of her home using a 4.00 good quality rating. The County noted the absence of a provision within the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., authorizing a hearing officer or a hearing panel to compel a party to create and/or offer evidence that it did not offer voluntarily at an. evidentiary hearing that has been closed. Ultimately, the Court of Appeals affirmed COTA’s decision, concluding that COTA properly used die 2011 valuation to determine the home’s value for the 2012 tax year. In reaching this holding, the court determined that unless substantial and compelling reasons existed for doing so, K.S.A. 2012 Supp. 79-1460 prevented the County from increasing a taxpayer’s property value during the tax year following a successful tax appeal. But the court also noted that the statute did not prevent a valuation from being lower than the final valuation obtained for the prior tax year. Accordingly, the court concluded that because the County conceded that substantial and compelling reasons did not exist for increasing the valuation in 2012, the valuation of the home for 2012 was capped at $494,200, i.e., the final value for 2011. Wagner II, 2014 WL 1096896, at 5-6. With regard to whether the valuation for 2012 should be less than the 2011 valuation, the court construed Wagner’s argument for a 2.94% reduction as being based on either a decrease in the value of neighboring properties (how COTA construed Wagners argument) or on the difference in value the County assigned to her home in 2011 and 2012 using a 4.33 good+ quality rating. Citing In re Equalization Appeal of Whittaker, No. 109,155, 2013 WL 4566422 (Kan. App. 2013) (unpublished opinion), in support, the court concluded that Wagner could not “rely on the changes in appraised values of neighboring properties to show that she was entitled to a reduction in value of 2.94% for the 2012 tax year.” Wagner II, 2014 WL 1096896, at 6. The court also rejected Wag-ners argument that a reduction in value was justified based on the difference between the 2011 and 2012 appraisals. The court stated: “The problem with Wagner’s argument is that she bases it on the County’s use of the 4.33 good+ quality rating. But the Wagner I court reversed and remanded with directions that COTA establish the appraised value of Wagner’s property for the 2011 tax year- based on a 4.00 good quality rating. Upon remand, COTA valued Wagner’s property at $494,200 using the 4.00 good quality rating. In Wagner’s 2012 tax dispute, COTA again appraised Wagner’s property at $494,200 using tire 4.00 good quality rating. “Because COTA used a 4.00 good quality rating to appraise Wagner’s property in 2011 and 2012, Wagner has failed to meet her appellate burden to show that she is entitled to a 2.94% reduction in the appraised value of her property. Simply because Wagner’s appraised property value decreased by 2.94% under a 4.3 good+ quality rating, used by the County, it does not necessarily follow that Wag-ners appraised property value would have decreased by the same amount under the 4.00 good quality rating used by COTA. “If we understand Wagners argument correctly, it turns on a false analogy. Wagner’s point, we take it, was that because the County used a 4.33 good+ quality rating to establish .the 2012 appraised value of her property of $537,300, which was a 2.94% decreased from the County’s 2011 appraised [sic] of Wagner’s property of $553,600, using the same 4.33 good + quality rating, therefore, COTA’s 2012 ad valorem valuation of $494,200, using the 4.00 good quality rating, should be further reduced by 2.94%. Wagner’s argument is weak because it relies on the difference in valuation that one may obtain between using a 4.00 good quality rating versus a 4.33 good+ quality rating. Because these two quality ratings are dissimilar, Wagner’s argument is not supported by substantial competent evidence. Consequently, COTA properly denied Wagner’s request to reduce the appraised value of her property by 2.94%.” Wagner II, 2014 WL 1096896, at 7. Based on this reasoning, the Court of Appeals affirmed COTAs decision. Wagner II, 2014 WL 1096896, at 8. We granted Wagners petition for review. Analysis 4.00 Good Quality Rating Decisions of COTA are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. K.S.A. 2012 Supp. 74-2426(c). On appeal, Wagner has the burden of proving the invalidity of COTAs actions and decision because she is the party asserting invalidity. See K.S.A. 2012 Supp. 77-621(a)(1). K.S.A. 2012 Supp. 77-621(c) sets out eight standards under which an appellate court shall grant relief. Wagner correctly notes that her argument that COTA erroneously relieved the County of its burden to prove the value of her home for 2012 using a 4.00 good quality rating falls under subsection (c)(4) of the statute. See K.S.A. 2012 Supp. 77-621(c)(4) (relief shall be granted if “the agency has erroneously interpreted or applied the law”). Wagner asserts that based on the Court of Appeals’ decision in Wagner I (remanding with orders that a 4.00 good quality rating be used for the 2011 appraisal) and the fact that she made no improvements to her home between 2011 and 2012, the County was legally required to use a 4.00 good quality rating to appraise her home in 2012. Because the County had the burden of proof before COTA, see K.S.A. 2012 Supp. 79-1609, Wagner contends that COTA relieved the County of its burden when it failed to order that the County produce a 2012 appraisal of her property using a 4.00 good quality rating. Though Wagner is correct that the County bore the burden of proof at the hearing before COTA to establish the validity of its appraisal of her home for 2012, she is mistaken that the County had the duty to present an appraisal of her home using a 4.00 good quality rating. Wagner assumes that the Court of Appeals’ decision in Wagner I regarding her homes 2011 appraisal dictates that a 4.00 good quality rating must be applied to any subsequent appraisals of her home until she “changes the construction quality of her property, and the [County] properly substantiates and documents a different CQ/G rating for her property.” The problem with this argument is that Wagner I only involved the appraisal of Wagners home for the 2011 tax year and merely concluded that the County, for that tax year, had failed to sufficiently prove that a 4.33 good+ quality rating was properly applied to die appraisal of the home. Based on this holding, the Wagner I court reversed and remanded with directions that “COTA establish the appraised value of the subject property for tax year 2011 based on a 4.00 quality rating.” (Emphasis added.) Wagner I, 2012 WL 3290147, at 7. As long as the county meets its burden, Wagner I did not foreclose the possibility of a 4.33 good+ quality rating being applied to future appraisals of Wagner s home. Further, when different tax years are involved in matters of taxation, principles of res judicata and collateral estoppel do not apply because taxes are levied annually. In re Tax Appeal of Fleet, 293 Kan. 768, 780-81, 272 P.3d 583 (2012); In re Equalization Appeal of Prieb Properties, 47 Kan. App. 2d 122, 127, 275 P.3d 56 (2012). Accordingly, we reject Wagners assertion that the County was precluded from producing an appraisal of her property using-a 4.33 good+ quality rating, if the county can meet that burden. Reduction in Value Next, Wagner argues that COTA improperly rejected her argument that her homes 2012 valuation should be 2.94% less than the value assigned to it for 2011 tax year. Wagner relies on K.S.A. 2012 Supp. 77-621(c)(7) and (c)(8) to support her claim for relief. K.S.A. 2012 Supp. 77-621(c)(8) requires an appellate court to grant relief if COTA’s action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 2012 Supp. 77-621(c)(7) allows an appellate court to grant relief if the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in the light of the record as a whole. K.S.A. 2012 Supp. 77-621(d) defines “in light of the record as a whole” to include the evidence both supporting and detracting from an agency’s finding. Courts must now determine whether the evidence supporting the agency’s factual findings is substantial when considered in light of all the evidence. K.S.A. 2012 Supp. 77-621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 182-83, 239 P.3d 66 (2010). “Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined.” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). Furthermore, in reviewing the evidence in light of the record as a whole, an appellate court “shall not reweigh the evidence or engage in de novo review.” K.S.A. 2012 Supp. 77-621(d). Ultimately, COTA decided that “[i]n light of the findings of the Kansas Court of Appeals in Wagner [I],” a 4.00 good construction quality rating should be used to appraise Wagners home for 2012. COTA then concluded that because the final 2011 appraisal of Wagner’s home employed a 4.00 good quality rating, the resulting valuation of $494,200 should be adopted as the home’s value for the 2012 tax year. Moreover, COTA rejected Wagner’s argument that the 2012 value should be less than the 2011 value because, according to COTA, there was no substantial credible evidence to support Wagner’s assertion “that the subject neighborhood had experienced a 2.94% decrease in overall market value from 2011 to 2012.” (Emphasis added.) Initially, it must be noted that COTA’s reasoning for adopting the home’s 2011 value as its value for 2012 is incorrect. As can be gleaned from its order, COTA misconstrued Wagner I as commanding that a 4.00 good quality rating be maintained for 2012. But as indicated above, Wagner I only involved the 2011 appraisal and merely concluded that the County, for that tax year, had failed to sufficiently prove that a 4.33 good+ quality rating was appropriate for Wagner’s home. As mentioned above, Wagner I certainly did not foreclose the possibility of the County proving a 4.33 good+ quality rating applies to future appraisals of Wagner’s home. Instead of relying on Wagner I as justification for maintaining a 4.00 good quality rating for 2012 and, in turn, carrying the 2011 valuation over to 2012, COTA should have taken note of the County’s post-hearing letter advising it of the applicability of K.S.A. 2012 Supp. 79-1460 to the current appeal. Again, the statute (its constitutionality is not at issue in this appeal) stated that when “the valuation for real property has been reduced due to a final determination made pursuant to the valuation appeals process,” the valuation of the property for the next taxable year will not be increased unless the county appraiser provides “documented substantial and compelling reasons” for increasing the valuation. See K.S.A. 2012 Supp. 79-1460(a)(2); In re Appeal of Tallgrass Prairie Holdings, 50 Kan. App. 2d 635, 645-46, 333 P.3d 899 (2014) (reaching same conclusion). The Court of Appeals correctly noted that nothing in the language of K.S.A. 2012 Supp. 79-1460 prevented a valuation from being lower than the prior year’s valuation. Thus, because the County, in its post-hearing letter to COTA, essentially conceded that substantial and compelling reasons did not exist for increasing the valuation in 2012, the valuation for 2012 was capped at $494,200, i.e., the final value for 2011. Wagner II, 2014 WL 1096896, at 5-7. The Court of Appeals went astray by excusing COTA’s misunderstanding of Wagner’s argument for a 2012 valuation that was 2.94% less than the final valuation determined for 2011. In its order, COTA misconstrued Wagner’s argument as being based on an alleged 2.94% decrease in overall market value of her home’s neighborhood. Based on this misunderstanding, COTA improperly rejected Wagner’s argument for a reduction in value, finding no substantial credible evidence to support her claim. But as indicated above, the record clearly shows that the basis for Wagner’s argument was the fact that the County’s 2012 appraisal of her home, using a quality rating of 4.33 good+, valued her home at $537,300 — a 2.94% decrease from the 2011 valuation of $553,600, resulting from an appraisal using the same 4.33 good+ quality rating. Though die Court of Appeals acknowledged that die 2011 and 2012 appraisals indicated that Wagner’s home suffered a decrease in value, the Court of Appeals reasoned that because these apprais als utilized a 4.33 good+ quality rating, they were not probative as to whether COTAs 2012 valuation of $494,200 — based on a 2011 valuation employing a 4.00 good quality rating — should be reduced by 2.94%. The Court of Appeals reasoned that “[s]imply because Wagners appraised property value decreased by 2.94% under a 4.33 good+ quality rating, used by the County, it does not necessarily follow that Wagners appraised property value would have decreased by the same amount under the 4.00 good quality rating used by COTA.” Wagner II, 2014 WL 1096896, at 7. Concluding that Wagners argument was “weak because it relies on the difference in valuation that one may obtain between using a 4.00 good quality rating versus a 4.33 good+ quality rating,” the Court of Appeals held that COTA properly denied Wagners request for a 2012 valuation that was 2.94% less than the final 2011 valuation. Wagner II, 2014 WL 1096896, at 7. The Court of Appeals’ reasoning for rejecting Wagners argument for a reduction in value appears to be based on false premise. The court assumed that COTAs 2012 valuation of Wagners home resulted from a 2012 appraisal utilizing a 4.00 good quality rating. Wagner II, 2014 WL 1096896, at 7 (“In Wagners 2012 tax dispute, COTA again appraised Wagner’s property at $494,200 using the 4.00 good quality rating.”). Rut the record shows that COTAs 2012 valuation resulted from COTA merely adopting the 2011 valuation for 2012. Granted, the 2011 valuation resulted from an appraisal utilizing a 4.00 good quality rating, but this valuation applied to the 2011 tax year. It was never updated for the 2012 tax year to reflect market changes, nor was there a new appraisal conducted for the 2012 tax year which applied a 4.00 good quality rating. Consequently, the Court of Appeals’ reasoning for rejecting the 2011 and 2012 appraisals as evidence of a reduction in value was incorrect. Because the County has conceded that substantial and compelling reasons do not exist for increasing the valuation of Wagner’s home for 2012 above its final 2011 value, K.S.A. 2012 Supp. 79-1460 dictates that the home’s valuation for the 2012 tax year must be capped at $494,200. As evidenced by the 2011 and 2012 appraisals — uncontested evidence which the County produced-— Wagners home suffered a 2.94% decrease in value between 2011 and 2012. We agree with Wagner that her homes 2012 valuation should reflect this reduction. Accordingly, we reverse the Court of Appeals’ decision and remand the case to COTA with instructions that Wagners home be valued at $479,600 for the 2012 tax year. Reversed and remanded for further proceedings consistent with this opinion. Johnson, J., concurs in the result.	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Per Curiam: This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Kenton M. Hall, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1988. Pursuant to Kansas Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350), the Disciplinary Administrator filed a Notice of Appeal and Exceptions to the Hearing Panel Report regarding its dismissal of two claims brought against respondent — purported violations of Supreme Court Rule 218(c)(1) (2015 Kan. Ct. R. Annot. 401) and Kansas Rules of Professional Conduct (KRPC) 5.5(a) (2015 Kan. Ct. R. Annot. 641). The Disciplinary Administrator also argues that the panel assigned respondent the wrong mental state and considered an inappropriate mitigating circumstance. The dismissal of claims and the other errors resulted in a too lenient recommendation of published censure. Facts and Procedural History On June 30, 2015, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent filed an answer on July 13, 2015. The parties entered into a written stipulation on September 9, 2015. A hearing was held on the complaint before a panel of the Kansas Roard for Discipline of Attorneys on September 10, 2015, where respondent was person ally present and represented by counsel. The hearing panel determined that respondent violated KRPC 3.3(a)(1) (2015 Kan. Ct. R. Annot. 601) (candor toward tribunal); 8.4(c) (2015 Kan. Ct. R. An-not. 672) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 208 (2015 Kan. Ct. R. Annot. 342) (registration of attorneys). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “8. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on October 5,1988. Initially, the respondent practiced law in Kansas with Wallace, Saunders, Austin, Brown & Enochs. “9. The Missouri Supreme Court admitted the respondent to the practice of law in the State of Missouri in April 1989. The respondent accepted a position with the Missouri public defender’s office. Since that time, the respondent has been actively engaged in the practice of law in Missouri. “10. In 1990, the respondent changed the status of his law license in Kansas to inactive. On August 14, 1996, the respondent called the clerk of the appellate courts to find out what would happen if he did not pay the inactive fee. He was informed that his license would be suspended. The respondent did not pay the inactive fee in 1996. As a result, on November 5, 1996, the Kansas Supreme Court suspended the respondent’s license to practice in Kansas. The respondent’s license to practice law in Kansas has remained suspended since 1996. “11. In 2003, the respondent resigned from the Missouri public defender’s office. “12. In May 2003, the respondent called the clerk of the appellate courts to learn what steps he would have to taire to have his license reinstated. The clerk’s office sent the respondent the forms necessaiy to seek reinstatement and the instructions for doing so. The respondent failed to complete the steps necessary to have his license reinstated. “13. In May 2009, the respondent again called the clerk of the appellate courts to learn what steps he would have to take to have his license reinstated. Again, the clerk’s office sent the respondent the forms and instructions for applying for reinstatement. Again, the respondent failed to complete the steps neces-saiy to have liis license reinstated. “14. On June 8, 2012, the respondent submitted a verified application to appear pro hac vice on behalf of the defendant in State v. H.R.I., Johnson County District Court, case number 12DV0289J. ‘a. Paragraph 4 of the application required the respondent to list all “[b]ars to which the applicant is admitted, the dates of admission, and the applicable attorney registration number(s)[.]” The respondent did not list his Kansas bar admission. ‘b. Paragraph 5 of the application required the respondent to state whether he was a member in good standing with each bar. The respondent answered, “I swear and affirm that I am a member in good standing of each bar referenced in paragraph 4.” The respondent’s license to practice law in Kansas was not in good standing. ‘c. Paragraph 6 of the application required the respondent to state whether he had “been the subject of prior public discipline, including but not limited to suspension, or disbarment, in any jurisdiction[.]” The respondent stated, “I have not been the subject of prior public discipline by any jurisdiction.” The respondent’s license had been suspended, albeit an administrative suspension.’ “15. On June 13,2012, the respondent was admitted pro hac vice for the purpose of representing the defendant in State v. H.R.I. in Johnson County District Court. The respondent’s local counsel was Stephen Patton. “16. The respondent represented H.R.I. in that case from March 8, 2012, to December 27, 2012. The case went to a jury trial. The defendant was found not guilty of the two felony charges against him and was found guilty of a lesser-included misdemeanor and a separately charged misdemeanor. “17. On May 2, 2013, the respondent submitted a verified application to appear pro hac vice on behalf of the defendant in State v. S.L.S., Wyandotte County District Court, case number 2013-CV000070. “18. Just as with the verified application the respondent submitted in the Johnson County District Court case, the respondent did not disclose his Kansas bar admission, did not disclose that his license was not in good standing in Kansas, and did not disclose that his Kansas license was suspended. “19. The court granted the respondent’s application and tire respondent was admitted pro hac vice for the purposes of representing S.L.S. in Wyandotte County District Court. The respondent’s local counsel was Ruth B. Sanders. “20. In early July 2013, the respondent consulted with a prospective client, B.R., concerning representing B.R. in a shoplifting case pending in Overland Park Municipal Court. B.R. gave the respondent a check in the amount of $450.00, dated July 8, 2013. On July 11, 2013, the check was returned due to insufficient funds in the account to pay the check. When the respondent notified B.R. that the check had bounced, B.R. told the respondent he had appeared pro se, had entered into a diversion, and no longer needed an attorney. “21. On August 1, 2013, Ms. Sanders filed a complaint with the disciplinary administrator based upon her belief that the respondent’s license to practice law was inactive and that the respondent planned to appear on behalf of B.R. in the Overland Park Municipal Court. “22. On August 6, 2013, Ms. Sanders was allowed to withdraw as counsel in State v. S.L.S. On August 14, 2013, the respondent filed a motion for leave to withdraw in State v. S.L.S. In that motion, the respondent stated: ‘2. Counsel sought admission pro hac vice on the basis of his active Missouri Bar License. Counsel believed, in good faith, that seeking admission in this court on a pro hac vice basis with local counsel was permissible. However, counsel has been advised that, because his Kansas Bar License was actually suspended in 1996 for failure to pay dues when counsel was an employee of the Missouri State Public Defender System, he may not be allowed to practice in the State of Kansas on any basis, including pro hac vice with local counsel. Counsel had previously believed, in error, that his Kansas Bar license was merely, “inactive.”’ “23. The court allowed the respondent to withdraw as counsel for S.L.S. Ms. Sanders and the respondent refunded the full attorney’s fee that had been paid on S.L.S.’s behalf. “24. The respondent remains licensed to practice law in Missouri and is an active member of the federal bars in the Western District of Missouri and the District of Kansas. The respondent has an active private practice in the area of criminal defense in Kansas City, Missouri. “Conclusions of Law “25. Based upon the respondent’s stipulations and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 3.3(a)(1), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 208, as detailed below. [Footnote: The respondent stipulated that he violated KRPC 3.3(a), KRPC 8.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 218. In addition, the disciplinary administrator also alleged that the respondent violated KRPC 5.5(a). The healing panel concludes that the respondent did not engage in the unauthorized practice of law in the State of Kansas. Thus, the hearing panel concludes that file respondent did not violate KRPC 5.5(a). Further, because the portion of Kan. Sup. Ct. R. 218 which the disciplinary administrator was relying on, (c)(1), is directly tied to KRPC 5.5, the hearing panel rejects the stipulation that the respondent violated Kan. Sup. Ct. R. 218. Accordingly, the hearing panel dismisses the allegations that the respondent violated KRPC 5.5 and Kan. Sup. Ct. R. 218.] “KRPC 3.3(a)(1) “26. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly make a false statement of material fact or law to a tribunal.’ The respondent made false statements of material fact to the court twice when he failed to disclose in the verified applications for admission pro hac vice that he had been admitted to the practice of law in Kansas and that his license was suspended. Because the respondent provided false information to the Court, the hearing panel concludes that tire respondent violated KRPC 3.3(a)(1). “ICRPC 8.4(c) “27. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved a misrepresentation when he failed to disclose in the verified applications for admission pro hac vice that he had been admitted to the Kansas bar and that his license to practice was suspended. As such, the hearing panel concludes that tire respondent violated KRPC 8.4(c). “KRPC 8.4(d) “28. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to die administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he obtained admission pro hac vice improperly as the respondent was not eligible for admission pro hac vice. Nonetheless, the respondent was admitted in two district courts and represented criminal defendants. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d). “Kan. Sup. Ct. R. 208 “29. ‘All attorneys . . . admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, on or before the first day of July, register with the Clerk of the Appellate Courts’ and ‘shall pay an annual fee.’ Kan. Sup. Ct. R. 208. Additionally, ‘[ajttorneys may register as: active; inactive; retired; or disabled due to mental or physical disabilities. Only attorneys registered as active may practice law in Kansas.’ “30. In this case, the respondent failed to register with the clerk of the appellate courts for years. Additionally, the respondent failed to pay the annual fee for years. Finally, the respondent obtained admission pro hac vice improperly. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 208. “American Bar Association Standards for Imposing Laioyer Sanctions “31. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “32. Duty Violated. The respondent violated his duty to the legal profession to understand and abide by the licensing and professional practice rules of the Kansas Supreme Court. “33. Mental State. The respondent negligently violated his duty. “34. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to the administration of justice. “35. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: ‘a. A Pattern of Misconduct. For 16 years, the respondent failed to pay the annual registration fees to maintain his license to practice law. As such, the hearing panel concludes that the respondent has engaged in a pattern of misconduct. ‘b. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 3.3(a), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 208. Accordingly, the hearing panel concludes that the respondent committed multiple offenses. ‘c. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1988 and the Missouri Supreme Court admitted the respondent to practice law in tire State of Missouri in 1989. At the time of the most serious misconduct, the respondent had been practicing law for more than 20 years.’ “36. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: ‘a. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined. ‘b. Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The respondent immediately withdrew from his representation of S.L.S. Additionally, the respondent immediately refunded the entire fee paid on behalf of S.L.S. Further, the respondent also called the disciplinary administrator to report his conduct immediately after realizing his pro hac vice application misrepresentations. ‘c. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to die violations. Finally, die respondent stipulated diat he violated KRPC 3.3(a)(1), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 208. ‘d. Previous Good Character and Reputation in the Community Including Any Letters from Clients. Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Kansas City, Missouri. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by the testimony of his peers as well as evidenced by several letters received by the hearing panel. Further, the respondent has given back to the profession by providing pro bono representation on many occasions. ‘e. Remorse. At the hearing on this matter, the respondent expressed genuine remorse, embarrassment, and shame for the misconduct. ‘f. Additional Consideration. An additional factor considered by the hearing panel relates to a change in Supreme Court Rule 217. At the time the respondent took inactive status, the rule did not allow for tire surrender of license — the respondent had to choose between registering as an active attorney or an inactive attorney. Each status carried with it annual registration requirements. However, since that time, the rule has changed and attorneys have an additional option to consider. (c) Voluntary Surrender of License When Attorney is Not Under Investigation for Misconduct and Investigation is Not Anticipated. (1) Voluntary Surrender. If an attorney voluntarily surrenders the attorneys license to practice law when the attorney is not under investigation for attorney misconduct and an investigation is not anticipated, the attorney’s name is stricken from the roll of attorneys. The attorney must be in good standing at the time of surrender.’ Kan. Sup. Ct. R. 217. Thus, if this rule had existed at the time the respondent took inactive status, the respondent would have had a third option. The hearing panel considers this to mitigate the respondent’s misconduct.’ “37. In addition to the above-cited factors, tire hearing panel has thoroughly examined and considered the following Standards: '5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyers fitness to practice law. ‘6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. ‘6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. ‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system. ‘7.3 Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’ “Recommendation “38. The disciplinary administrator recommended that tire respondents license be suspended for a period of 60 days. The disciplinary administrator also noted what the respondent would have to do to have the administrative suspension lifted. “39. The respondent recommended that the respondent be censured and that the censure be published in the Kansas Reports. “40. The hearing panel is persuaded by the significant mitigating factors presented in this case. Clearly, the respondent is a well respected member of the Kansas City, Missouri, criminal defense bar. Because of the significant mitigating evidence, the hearing panel recommends that the respondent be censured and the censure.be published in the Kansas Reports. “41. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion The Disciplinary Administrators office appeals the panels dismissal of two claims brought against respondent — purported violations of Supreme Court Rule 218(c)(1) and KRPC 5.5(a) — pursuant to Kansas Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). The Disciplinary Administrator also argues that the panel assigned respondent tire wrong mental state and considered an inappropriate mitigating circumstance. Standard of review In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The Disciplinary Administrator appeals the dismissal of the alleged Supreme Court Rule 218(c)(1) and KRPC 5.5(a) violations as matters of law But neither he nor respondent has taken exceptions to the panels findings of fact. Thus, we admit those findings as un disputed under Kansas Supreme Court Rule 212(c) and (d) (2015 Kan. Ct. R. Annot. 369). Issue: The hearing panel erred in concluding that respondent did not violate Kansas Supreme Court Rule 218(c)(l) and KRPC 5.5(a). The Disciplinary Administrator argues that the facts show respondent engaged in the unauthorized practice of law in violation of Supreme Court Rule 218(c)(1) and KRPC 5.5(a). Respondent counters that during the time he represented clients in Kansas, he had been admitted pro hac vice and, thus, he was not engaged in the unauthorized practice of law. He contends that, although the two pro hac vice admissions by court order were obtained in violation of the rules, the violations do not invalidate the pro hac vice orders. Analysis In a footnote to the final hearing report, the panel concluded that respondent did not engage in the unauthorized practice of law under Supreme Court Rule 218(c)(1) and KRPC 5.5(a). We hold the panel erred for two reasons: (1) Respondent stipulated to violating Kansas Supreme Court Rule 218; and, (2) respondents undisputed conduct violated the plain language of Kansas Supreme Court Rule 218(c)(1) and KRPC 5.5(a). Kansas Supreme Court Rule 218(c)(1) (2015 Kan. Ct. R. Annot. 401) states: “It is the unauthorized practice of law and a violation of KRPC 5.5 for: (1) a suspended... attorney to practice law after the Supreme Court enters an order suspending . . . the attorney.” And KRPC 5.5(a) (2015 Kan. Ct. R. Annot. 641) provides: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” The parties entered into stipulations filed with the panel, including that respondents conduct violated Supreme Court Rule 218. In other words, he admitted violating Rule 218(c)(1) and, by necessity, KRPC 5.5(a). More important than respondents stipulation, clear and convincing evidence shows that his conduct violates the plain language of the two rules — i.e., practicing law while on a suspended license constitutes the unauthorized practice of law. In 1990, respondent went on inactive status in Kansas and then, in 1996, failed to pay the inactive fee. Due to his failure to pay the fee, this court ordered an administrative suspension of his license. In 2003 and 2009, respondent called the office of the Clerk of the Appellate Courts to learn what steps he could take to reinstate his license. But he failed to complete the necessary steps. Respondent’s administrative suspension qualifies as a suspension for Rule 218(c)(1) purposes. See In re Thompson, 301 Kan. 428, 433, 343 P.3d 108 (2015) (an administrative suspension was sufficient to constitute a violation of Kansas Supreme Court Rule 218 for failure to notify clients, opposing counsel, and the courts of a suspension). Respondent claims that despite his administrative suspension, he did not engage in the unauthorized practice of law because he was authorized through his pro hac vice admissions. In 2012, respondent submitted two applications to appear pro hac vice on behalf of two separate clients. On both applications, he failed to fist his Kansas bar admittance, inform the court his license to practice law in Kansas was not in good standing, or inform die court his license in Kansas was on administrative suspension. Subsequently, respondent was admitted pro hac vice in bodi cases. The panel merely found respondents pro hac vice admission invalid: “Respondent obtained admission pro hac vice improperly as the respondent was not eligible for admission pro hac vice.” The Disciplinary Administrator correctly points out that, under Kansas Supreme Court Rule 116 (2015 Kan. Ct. R. Annot. 222), only out-of-state attorneys who are not admitted to practice in Kansas are eligible for pro hac vice admission. That rule states: “An attorney not admitted to practice law in Kansas may be admitted on motion to practice law in a Kansas court or administrative tribunal — for a particular case only[.]” In the instant case, respondent was admitted to practice law in Kansas and therefore could not be admitted pro hac vice. Additionally, at oral argument the Disciplinary Administrator referred to Supreme Court Rule 208(e), which states, in pertinent part: “It shall be the duty of each member of the judiciary of this state to prohibit any attorney who has been suspended from the practice of law from appearing or practicing in any court, and it shall be the duty of each member of the bar and judiciary to report to the Disciplinary Administrator any attempt by an attorney to practice law after his or her suspension. The practice of law after suspension constitutes a violation of Kansas Ride of Professional Conduct 5.5.” (Emphasis added.) (2015 Kan. Ct. R. Annot. 343). The Disciplinary Administrator points out that under this rule all courts have a duty to prohibit a suspended lawyer from practicing law in Kansas. Therefore, his office argues, the district court certainly would have no authority to grant respondents pro hac vice admissions to practice law while on suspension. We agree with the Disciplinary Administrator. Respondents administrative suspension simply does not allow his pro hac vice admission while a member of the Kansas bar. See In re Swisher, 285 Kan. 1084, 1092, 179 P.3d 412 (2008) (noting a suspended attorney remains a member of the Kansas bar, subject to the provisions of rules of professional conduct). Per these authorities, the district court orders granting him pro hac vice admission were void ab initio. They therefore could not empower him to practice law in Kansas. Accordingly, we conclude respondent engaged in the unauthorized practice of law in violation of Supreme Court Rule 218(c)(1) and KRPC 5.5(a). The panel erred in concluding otherwise. Issues of Discipline At the panel hearing, the Disciplinary Administrator’s office recommended that respondents license to practice law be suspended for a period of 60 days. Respondent and the panel recommended published censure. At oral arguments before this court, the Disciplinary Administrator again recommended that respondents license to practice law be suspended for a period of 60 days. And respondent reiterated his recommendation for published censure. The panel’s recommendation is advisory and does not prevent this court from imposing a greater or lesser punishment. In re Harrington, 296 Kan. 380, 387, 293 P.3d 686 (2013) (citing Supreme Court Rule 212[f]). In determining the appropriate sanction, this court considers the facts and circumstances of the case as well as aggravating and mitigating factors. 296 Kan. at 387 (citing In re Swanson, 288 Kan. 185, 214-15, 200 P.3d 1205 [2009]; Supreme Court Rule 211[f]). Although not required or mandated by our rules, “this court and disciplinary panels ‘historically turn to the ABA'Standards for Imposing Lawyer Sanctions to guide the discipline discussion.” In re Hawkins, 304 Kan. 97, 140, 373 P.3d 718 (2016). The ABA Standards provide four factors to consider in assessing punishment: (1) the ethical duty violated by the lawyer; (2) the lawyer’s mental state; (3) the actual or potential injury resulting from the misconduct; and (4) the existence of aggravating and mitigating circumstances. 304 Kan. at 140 (citing ABA Standard 3.0). The Disciplinary Administrator argues that the hearing panel erred in its assessment of the appropriate sanction for two reasons related to the ABA factors: (1) it wrongly concluded respondent negligently, rather than knowingly, violated the rules; and, (2) it wrongly concluded recent amendments to Supreme Court Rule 217 (Kan. Ct. R. Annot. 390) constituted a mitigating factor. Respondent generally refutes the Disciplinary Administrators arguments and asserts that the panel properly considered the amendment to Supreme Court Rule 217 as a mitigating factor and the evidence supports he acted negligently rather than knowingly. The hearing panel erred in concluding respondent negligently violated the KRPC and Kansas Supreme Court Rules. The Disciplinary Administrator contends that respondents violation of the KRPC and Supreme Court Rules arose from knowing, not negligent, conduct as the panel concluded. Respondent concedes that certain violations — KRPC 3.3(a)(1), KRPC 8.4(c), and Supreme Court Rule 208 — involve knowing acts. But, he argues, the panel determined his mental state was a misunderstanding and misinterpretation of the rules, i.e., negligence-based, not a knowing act of excluding his Kansas status from his pro hac vice applications. ABA Standards identify three mental states: “intent,” the highest culpable mental state; “knowledge,” the intermediate culpable mental state; and “negligence,” the least culpable mental state. Hawkins, 304 Kan. at 140. A lawyer acts with knowledge when acting “with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.” A lawyer acts negligently when failing “to be aware . . . that a result will follow 304 Kan. at 141; see also ABA Compendium of Professional Responsibility Rules and Standards, at 462 (2012). The panel concluded that respondent violated KRPC 3.3(a)(1), which states that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal . . . .” (Emphasis added.) (2015 Kan. Ct. R. Annot. 601). The panel also concluded respondent violated KRPC 8.4(c) (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”) and KRPC 8.4(d) (“It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”) (2015 Kan. Ct. R. Annot. 672). Finally, the panel concluded that respondent violated Supreme Court Rule 208 — attorneys admitted in Kansas must pay an annual fee and register, and only attorneys registered as active may practice law in Kansas. (2015 Kan. Ct. R. Annot. 342). And additionally, we have concluded that respondent violated Supreme Court Rule 218(c) (1) and KRPC 5.5(a). Again, Rule 218(c)(1) states that “[i]t is the unauthorized practice of law and a violation of KRPC 5.5 for . . . a suspended . . . attorney to practice law after the Supreme Court enters an order suspending” that attorney. (2015 Kan. Ct. R. An-not. 401-02). Finally, KRPC 5.5(a) provides: “A Jjawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” (2015 Kan. Ct. R. Annot. 641). At least one of respondents violations — KRPC 3.3(a)(1) — clearly establishes “knowingly” as the culpable mental state for making a false statement to a tribunal. See In re Kline, 298 Kan. 96, 125-26, 311 P.3d 321 (2013) (violation of KRPC 3.3[a][l] requires actual knowledge of falsity). He concedes two others — KRPC 8.4(c) and Supreme Court Rule 208 — also involved knowing acts on his part. Respondent’s violations and tire record both reveal he acted with knowledge. But respondent argues he was acting negligently when he applied for pro hac vice status. He contends at the time of his application he believed he was not suspended in Kansas, but simply on inactive status. This argument fails for two reasons. First, the record indicates that respondent had actual knowledge of his suspension. Twice he received letters from this court specifically informing him of his suspension and the procedure for reinstating his license. And twice he called the courts clerk to inquire how to reactivate his license. Even with this knowledge, he still submitted two pro hac vice admissions where he failed to include his Kansas suspension, as required by the application. Second, the argument that he negligently believed he was inactive in Kansas does not explain his failure to include his Kansas bar admission on the verified application for pro hac vice admission. The application required respondent to list all “[b]ars to which tire applicant is admitted, the dates of admission, and tire applicable attorney registration number(s).” Even if respondent had acted under the belief he was simply on inactive status, he was still a lawyer admitted to the Kansas bar and listed as such with the Office of Attorney Registration. Respondent also argues that the panels conclusion that he acted with a negligent mental state was associated with his “duty to the legal profession to understand and abide by the licensing and professional practice rules of the Kansas Supreme Court.” In other words, he negligently failed to understand the rules. But the factual basis for the majority of respondents violations was the knowingly made false statements to a tribunal. As the Disciplinary Administrator correctly notes, respondent could not knowingly make a false statement negligently under KRPC 3.3(a)(1). The circumstances surrounding respondents pro hac vice applications and admissions establish a level of culpability beyond mere negligence. We conclude that respondent acted with a knowing mental state and therefore knowingly violated his duty. The hearing panel did not err in considering Kansas Supreme Court Rule 217 as a mitigatingfactor. The Disciplinary Administrator also argues that the panel erred in considering an amendment to Supreme Court Rule 217(c)(1) as a mitigating factor. Prior to the enactment of the amendment, the rule allowed attorneys involved in a disciplinary investigation to voluntarily surrender their license to practice law. In 2012, Supreme Court Rule 217 was amended to give even attorneys in good standing the option to voluntarily surrender their license: “If an attorney voluntarily surrenders the attorney s license to practice law when the attorney is not under investigation for attorney misconduct and an investigation is not anticipated, the attorney’s name is stricken from the roll of attorneys. The attorney must be in good standing at the time of the surrender.” (2015 Kan. Ct. R. Annot. 390). Utilizing this change in the rule, the panel concluded: “An additional factor considered by the hearing panel relates to a change in Supreme Court Rule 217. At the time tire respondent took inactive status, the rule did not allow for the surrender of license — the respondent had to choose between registering as an active attorney or an inactive attorney. Each status carried with it annual registration requirements. However, since that time, the rule has changed and attorneys have an additional option to consider. “Thus, if this rale had existed at the time tire respondent took inactive status, the respondent would have had a third option. The hearing panel considers this to mitigate the respondents misconduct.” As the panel correctly concluded, the amended provision was not in effect at the time respondent’s license was suspended and respondent did not have the option to voluntarily surrender his license. Rather, this court suspended his license after he failed to pay the inactive attorney’s fee. The Disciplinary Administrator argues that bécause neither party presented evidence related to Supreme Court Rule 217, the panel should not have considered it as a mitigating factor. Respondent replies that, although the issue was not addressed at the hearing, there was no rule prohibiting the panel from considering the rule as a mitigating circumstance. Unlike the standard for proving attorney misconduct, the panel does not need clear and convincing evidence to consider aggravating and mitigating factors. See In re Walsh, 286 Kan. 235, 248, 182 P.3d 1218 (2008). In Walsh, the respondent argued the panel erred in considering a letter presented as compelléd due to terms of a settlement, rather than voluntary, because there was no clear and convincing evidence to conclude the letter was compelled. We stated: “The Respondent is correct that ‘[a]ny attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.’ [Citation omitted.] However, the Respondent cites no authority for his position that each aggravating and mitigating factor must be supported by clear and convincing evidence. Rather, the panel must consider tire evidence presented with respect to aggravating and mitigating circumstances and determine how much weight to assign to each in arriving at an appropriate discipline.” (Emphasis added.) 286 Kan. at 248. While the panel is not required to support aggravating and mitigating circumstances with clear and convincing evidence, some evidence of those circumstances still must be presented for weighing. See Hawkins, 304 Kan. at 141 (“The panel must consider the evidence presented as to aggravating and mitigating circumstances and determine the weight to be assigned to each in arriving at an appropriate discipline.”); see also In re Barker, 299 Kan. 158, 167, 321 P.3d 767 (2014) (same); Harrington, 296 Kan. at 387 (same). Additionally, the formal complaint provides that “all evidence of aggravating and mitigating circumstances shall be presented at the hearing.” In the instant case, the record supports the panels finding that, had tire option been available, respondent may have voluntarily surrendered his license. Respondent testified that he went inactive and was ultimately suspended because of monetary concerns and he did not want to pay the fee in Kansas when he did not practice here. But the reason for respondents administrative suspension— i.e., his financial reasons for failing to pay the attorney registration fee — is not at issue in this disciplinary action. Rather, at issue is respondents candor toward the tribunal when applying for pro hac vice admission and his unauthorized practice of law after that admission was granted on misleading facts. So, it is unclear why respondents potential surrender of a legal license would mitigate those violations. Regardless, in assigning discipline tire panel considered five other mitigating circumstances and did not assign weight to its consideration of each. In addition to considering Supreme Court Rule 217, the panel also found: absence of prior discipline, timely good faith effort to rectify consequences of misconduct, full coopera tion with disciplinary process, previous good character and reputation in the community, and remorse. As for aggravating factors, the panel found: a pattern of misconduct for 16 years, multiple offenses — violations of KRPC 3.3(a), KRPC 8.4(c), KRPC 8.4(d), and Rule 208 — and substantial experience in the practice of law. Accordingly, tire panel may have given very little weight to Rule 217 as a mitigating factor when weighing it against the totality of the mitigating and aggravating circumstances presented to it. We conclude the panel did not err in considering Supreme Court Rule 217 as a mitigating circumstance because some evidence of respondents wish to voluntarily suspend his license was presented. However, we also conclude that the reasoning behind respondent’s administrative suspension from the practice of law does not mitigate his current rule violations — i.e., candor toward the tribunal and the unauthorized practice of law. Thus, we assign little weight to the current availability of a voluntary surrendering of a law license under Supreme Court Rule 217. Appropriate Discipline Given our conclusions that respondent additionally violated Rule 218(c)(1) and KRPC 5.5(a), that he acted with a knowing mental state, and that the panel properly considered evidence of mitigating circumstances, the only remaining issue before us is to determine the appropriate discipline for respondent’s violations. The ARA Standards provide guidance for appropriate sanctions. See In re Mintz, 298 Kan. 897, 912, 317 P.3d 756 (2014) (ABA Standards are guidelines to assist the court and disciplinary panels). For violations of duties owed to the legal system — e.g., misrepresentation— and violations of other duties owed as a professional — e.g., the unauthorized practice of law — tire ABA recommends: “6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. “6.22 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or party, or causes interference or potential interference with a legal proceeding. “7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, tire public, or the legal system.” Considering botli the panels findings and our legal conclusions, a majority of the court holds that respondent is to be suspended from the practice of law in the state of Kansas for a period of 60 days. A minority of this court would impose a greater sanction. Additionally, respondent must comply with Supreme Court Rule 218. The costs of the proceedings shall be assessed to respondent. Conclusion and Discipline It Is Therefore Ordered that Kenton M. Hall be and is hereby suspended from the practice of law in the state of Kansas for 60 days in accordance with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293), effective on the fifing of this decision. It is Further Ordered that respondent comply with Supreme Court Rule 218. It Is Further Ordered that die costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.	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Denied. Unpubhshed	[ 19, -3, -28, -67, -120, -128, 19, 30, 15, -105, 119, 119, -17, -10, -108, 107, 60, 111, -91, -38, -39, 18, 127, -31, 114, 91, -78, 117, -15, -18, -7, 56, -50, -78, -102, -107, 84, -64, -83, -40, -120, 6, 57, 76, -79, -45, 37, 3, 89, 15, 17, -108, 113, 62, 26, 65, -120, 100, -59, -67, -64, -33, -71, 3, -9, 92, -62, 84, -48, 9, -62, 126, -112, -111, 1, -8, 114, 102, -122, 117, 11, -39, -91, -24, 47, 33, 44, -68, -84, -89, 19, 62, 45, -90, -45, 33, 74, 43, -77, -3, -88, -45, 47, -24, 11, -60, 45, 108, 34, -82, -12, -93, 93, 60, 12, -119, -9, 86, 19, 49, -49, -15, -36, 114, -71, -34, -42, -80 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
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Denied. Unpublished	[ -105, 125, -51, 62, -88, 33, 18, 30, -98, -113, 103, 119, -49, -29, -116, -37, -83, 103, -92, 91, 77, 51, 127, -27, 98, 91, -94, -3, -15, 111, -8, 48, 76, 56, -102, 117, -62, -120, -115, 88, -122, 7, -103, -116, -111, 65, 36, 99, 104, 15, 17, -44, -15, -82, 30, 65, -64, 102, -59, -83, -64, -35, -111, 31, -65, 84, -62, 85, -48, 11, -62, 110, 16, -80, 37, -24, 118, -26, -106, 85, 11, -7, -76, 32, 10, 32, 44, -91, 40, 60, 27, 78, 45, -92, -5, 41, 75, 57, -110, -3, 16, -107, 39, 58, 98, -60, 45, 104, 46, -17, 116, -93, 31, 40, 12, -119, -13, 118, 18, 52, -49, -43, -36, -78, 53, -114, -58, 48 ]
Per Curiam,-. This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Lyle Louis Odo, of Platte City, Missouri, an attorney admitted to the practice of law in Kansas in 2007. Respondent was admitted to the practice of law in Missouri in 1975. On August 10, 2015, the office of tire Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on September 2, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 4, 2015, where the respondent was present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.7(a)(2) (2015 Kan. Ct. R. Annot. 519) (conflict of interest); 1.8(a) (2015 Kan. Ct. R. Annot. 530) (conflict of interest); 1.8(e) (2015 Kan. Ct. R. Annot. 530) (providing financial assistance to client); 1.9(a) (2015 Kan. Ct. R. Annot. 539) (duties to former clients); 1.15(d) (2015 Kan. Ct. R. Annot. 556) (preserving client funds); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court: “Findings of Fact “8. On June 24, 2011, C.M. and L.F. filed a complaint against the respondent with the disciplinary administrators office. C.M. and L.F. also filed a complaint with the Missouri Office of Disciplinary Counsel. “9. In August 2013, a Missouri disciplinary hearing panel conducted a hearing. In December 2013, the disciplinary hearing panel issued its written decision. The hearing panel made the following findings of fact: TO. On November 6, 2009, [C.M.] was a passenger in a vehicle driven by [L.F.], which was involved in a collision with a vehicle driven by an employee of Alan Cummings. The accident occurred in Atchison County, Kansas. Tl. As a result of the accident, [C.M.] sustained a fractured hip and was life-flighted to a hospital where he was hospitalized for six days. T2. On December 2, 2009, [L.F.] and [C.M.] both executed a written attorney-client agreement with Respondent for legal representation of them regarding their respective injury claims arising out of the motor vehicle accident. T3. Respondent’s law firm is located in Missouri. [C.M.] and [L.F.] met with Respondent several times at Respondent’s Missouri law office. Since there was no lawsuit filed by Respondent with respect to the personal injury claim, virtually all work performed by Respondent relative to that claim occurred in Missouri. Other legal work performed by Respondent for [C.M.] involved legal proceedings before a Missouri tribunal, e.g. Circuit Court of Platte County, Missouri or the City of Tracy, Missouri Municipal Court. T5. [L.F.j’s personal injury claim was setded by Respondent on January 14, 2011. T6. [C.M.] terminated Respondent’s services in the personal injury claim on May 10, 2011, and retained Roger D. Fincher. T7. [C.M.j’s personal injury claim was settled in late 2011. ‘Findings of Fact Relating to Count I: Prohibited Transactions [Rule 4-1.8(a)] T8. Beginning about February 2010, [C.M.] was unable to work and was experiencing financial distress. He investigated the possibility of obtaining loans as an advance against his anticipated personal injury settlement, and inquired of Respondent as to this possibility. T9. Respondent advised [C.M.] that he could arrange for him to receive loans on better terms than the sources he had investigated. ‘20. Respondent recommended [C.M.] borrow funds from Kristen Nicole Properties, Inc. (KNP). ‘21. KNP is a closed corporation which Respondent incorporated in 1994. He is President and registered agent of the corporation, and the only officer, employee, or representative it has ever had. KNP has the same address, telephone number, and email address as Respondent’s law office. ‘22. At the time of its incorporation Respondent was the sole owner of KNP, but in 2005 Respondent transferred all the shares of KNP to his daughter, Kristen Nicole Odo, who is now the sole shareholder and beneficiary. ‘23. At all times in question Respondent was the registered agent of KNP, as well as its sole director and officer, and was the only person through whom [C.M.] or anyone else deals with KNP. ‘24. Respondent testified that the primary purpose of KNP is to invest in and manage real estate properties. ‘25. Respondent testified that no one receives any salaries, dividends, or income from KNP. The sole benefit of its economic activities is tire appreciation of its value. Respondent testified that he transferred ownership of KNP to Kristen Nicole Odo as an estate planning action, so that she would benefit from tire wealth it created upon his death or cessation of business. However, Respondent is still the only person who operates or represents KNP. ‘26. Although Respondent is not tire technical owner of KNP, he still derives benefit from profits earned by tire company, as according to his own testimony such profits enhance the value of his estate, and thus Respondent has an ownership, possessory, security, or other pecuniary interest in transactions with KNP for purposes of Rule 4-1.8(a). ‘27. The acts of KNP in loaning money to Respondent’s client are tire acts of Respondent himself since Respondent was the only officer, director and agent of the lender and controlled tire checking account used to consummate tire loans and personally signed each loan check. Respondent controlled each aspect of the transactions without tire independent assistance of any other person. Respondents daughter Kristen Nicole Odo had no knowledge of tire loan transactions between KNP and [C.M.]. ‘28. During the period from February 2010 to May 2011, Respondent arranged sixteen separate loan transactions between [C.M.] and KNP. [L.F.] signed twelve of the loan documents as a guarantor or co-signer. ‘29. Respondent served as counsel for KNP in the loan transactions, and also had an active client-attorney relationship with [C.M.] and [L.F.] at all times during the loan transactions. Respondent testified that he went through tire loan documents with [C.M.] and [L.F.], answered their questions, and generally advised them as their attorney as to the loan transactions. ‘30. Respondent did not advise [C.M.] and/or [L.F.] in writing of the desirability of seeking independent legal counsel on the transaction, as required by Rule 4-1.8(a)(l). ‘31. Respondent did not fully disclose and transmit the transaction and terms on to the [sic] [G.M.] and [L.F.] in writing in a manner that can be reasonably understood by the client, as required by Rule 4-1.8(a)(2). ‘32. [C.M.] and [L.F.] did not give informed consent, in a writing signed by them, to the essential terms of the transaction and Respondents role in the transaction, including whether Respondent was representing them in the transaction, as required by Rule 4-1.8(a)(3). ‘33. These business transactions were secured loan transactions, documented in each case by a “Note, Disclosure and Security Agreement” (Exhibit 4) jointly executed by [C.M.] as the borrower and [L.F.] as guarantor or co-signer. Under these loan agreements, Kristen Nicole Properties, Inc. (“KNP”) was identified as the lender. ‘34. Each of the sixteen loan agreements contained the following provision: “To secure the obligations of this Loan Agreement, I give you a security interest in the Property described below. Sufficient portion of the proceeds of an injury claim against Alan Cummings which occurred November 6, 2009 to satisfy this note.” ‘35. Each of the sixteen loan transactions was secured by a lien on tire proceeds of [C.M.j’s personal injuiy settlement, in the matter in which Respondent represented [C.M.]. ‘36. Respondent, representing KNP, charged [C.M.] a transaction fee of $75 for each loan transaction, amounting to $1,200 for the sixteen transactions. ‘37. The interest rate for the loans was 180% for the first month, and 38.8% per annum, a rate the Panel finds excessive, burdensome, and possibly illegal. [Footnote: The hearing panel in the instant case concurs with the Missouri disciplinary hearing panel that in addition to the rule violations, the hearing panel also concludes that the interest rate charged by the respondent is excessive and burdensome. Further, if the transaction had occurred in Kansas, it would be illegal. See K.S.A. 16-207.] ‘38. Respondent advised and required [L.F.] to co-sign for the loans although she acquired no interest in the loan proceeds, which were not terms fair and reasonable to [L.F.]. ‘Findings of Fact Relating to Count II: Financial Assistance to a Client [Rule 4-l-8(e)] ‘39. From Respondent’s own funds, during the course of the representation, Respondent paid various bills for medical treatment received by [C.M.]. Respondent twice paid $500 each for [C.M.] s epidural treatments to relieve his pain. Respondent admits that such payments were for actual medical treatment received by [C.M.]. ‘40. Respondent also paid $4,079 for an MRI on [C.M.J’s behalf. Respondent’s amended answer characterizes this payment as a payment of “medical evaluation” rather than for “medical treatment,” but in his testimony Respondent did indeed admit that the $4,079 payment was “diagnostic” for his client’s “medical treatment,” and also included pharmaceutical analgesic. ‘41. On these occasions Respondent advanced payments for medical treatments to his client. ‘42. Respondent has expressed his regret for this violation of the Rule, and testified that his motivation was compassion for his client who was in pain and unable to pay medical expenses. ‘Findings of Fact Relating to Count III: Representation of a Client Involving a Concurrent Conflict of Interest [Rule 4-1.7(a)(2)] ‘43. During the relevant period at issue, Respondent simultaneously served as the lawyer for [C.M.] and [L.F.]; the lawyer for KNP; the sole officer and director of KNP; and a father who desired to leave an inheritance to his daughter and the namesake of KNP. ‘44. Respondent’s own actions often failed to distinguish between his different roles. In March 2011, Respondent sent to [C.M.] on law firm letterhead (Exhibit 10) an accounting of the loan balances with accrued interest while in April 2011, Respondent send [sic] the copies of the loan documents on KNP letterhead (Exhibit 3) as president of KNP. ‘45. Respondent simultaneously represented KNP as creditor and [L.F.] and [C.M.] as borrowers in connection with the administration of the loans. ‘46. There was a significant risk that Respondent’s representation of [C.M.] and [L.F.] would be materially limited by Respondent’s personal interests as their creditor through his absolute control of the finances of KNP. Likewise, there was a significant risk that Respondent’s representation of KNP would be materially limited by Respondent’s responsibilities to [C.M.] and [L.F.]. ‘47. [C.M.] testified that he became concerned that Respondent’s interest in loaning him money was deterring Respondent from fifing a lawsuit on his behalf or proceeding with settlement of the matter. ‘48. Respondent simultaneously represented KNP as creditor and [L.F.] and [C.M.] as borrowers in connection with the administration of the loans. ‘49. There was a significant risk that Respondent’s representation of [C.M.] and [L.F.] would be materially limited by the Respondent’s personal interests and divided loyalty as their creditor through his pecuniary interest in and representation of KNP. ‘50. While Respondent did not delay handling [C.M.] ’s case for an amount of time that violated Rule 4-1.3 regarding diligence, the regular pattern of brokering loans from KNP to [C.M.] compromised Respondent’s full loyalties were [sic] with his client. ‘Findings of Fact Relating to Count IV: Disclosure of Client Information [Rule 4-1.6(a)] ‘51. On May 20,2011 Respondent filed a civil lawsuit in the Circuit Court of Platte County, Missouri against [C.M.]. The case was captioned as Lyle Odo P.C. v. [C.M.], Case No. 11AECV01722 (the “Odo v. [C.M.] Lawsuit”). ‘52. The Petition in the Odo v. [C.M.] Lawsuit was prepared, signed and filed by Respondent. Respondent did not seek to file the Petition under seal. ‘53. Respondent attached as exhibits to the petition documents regarding his representation of [C.M.] and [L.F.], including detailed activity logs showing everything he did on their behalf. ‘54. [C.M.] appeared by counsel in the action, and did not file a motion to seal the documents. ‘Findings of Fact Relating to Count V: Representation Adverse to a Former Client [Rule 4-1.9(a)] (Febbo Matter) ‘55. [C.M.J’s injury claim was settled in the latter half of 2011. In connection with the settlement, [C.M.], through his new counsel, filed an action to apportion the settlement proceeds between disputed liens and [C.M.j’s share of recovery. The action was filed in the District Court of Atchison County, Kansas on October 24, 2011, captioned as [C.M.] v. Cummings et al., Case No. 2011CV123. ‘56. Respondent appeared in the Atchison County case, adversely to [C.M.], on his own behalf, relating to his attorney fees and expenses, and also on behalf of two clients who asserted claims against [C.M.] — KNP Properties, and Dr. Theresa Febbo. ‘57. During the course of his representation on the personal injury claim, Respondent referred [C.M.] to Dr. Theresa Febbo, a chiropractor, for treatment of pain. ‘58. Dr. Febbo treated [C.M.] for pain, and also provided a chiropractic report for use in the personal injury case. ‘59. In February 2012, Respondent contacted Attorney Hudnall and advised him that Dr. Febbo was a “long time client” who needed to file a collection case, which Respondent could not do because of a conflict. ‘60. Respondent prepared the lawsuit petition on behalf of Dr. Febbo against [C.M.]. Respondents legal assistant notarized Dr. Febbo’s signature on the lawsuit petition. Respondent paid the filing fee for the lawsuit and arranged to have it filed at tire Courthouse. ‘61. Febbo v. [C.M.] was docketed as No. 12AE-CU00155 in the Circuit Court for Platte County, Missouri. ‘62. William Hudnall was counsel of record for Dr. Febbo in Febbo v. [C.M.]. However, Respondent appeared on behalf of Dr. Febbo on two occasions: a. On February 16,2012, Respondent appeared in place of Mr. Hudnall at a hearing on the matter. b. On April 5, 2012, Respondent appeared in place of Mr. Hudnall at a hearing on the matter. ‘63. Mr. Hudnall kept Respondent informed about the progress of the Febbo case, although he testified Respondent told him he had a conflict. ‘64. The subject matter of Febbo v. [C.M.] was substantially related to the subject matter of the personal injury claim in which Respondent represented [C.M.], as the injuries for which Febbo was to treat [C.M.] arose out of the same accident as the personal injury claim, and Febbo was expected to supply a report for use in tire personal injury claim. ‘65. For the same reasons, the subject matter of the Febbo claim in [C.M.] v. Cummings was substantially related to the subject matter of the personal injury claim in which Respondent treated [C.M.]. ‘Findings of Fact Relating to Count IV: Representation Adverse to a Former Client [Rule 4-1.9(a)] (KNP Matter) ‘66. As previously found, [C.M.] terminated Respondents services in the personal injury matter on May 10, 2011. ‘67. On June 1, 2011, Respondent, on his law firm letterhead, wrote a letter to [C.M.] which stated: Enclosed you will please find a document entitled “Irrevocable Instructions To Deduct Payment From Settlement Proceeds” for your notarized signature together with a self-addressed stamped envelope for you to return same within ten (10) days from the date of this letter. Notes #1, #2 and #3 are due and payment must be made unless you comply with this request. If I did not receive the above document as requested, my client will initiate all steps necessary to protect its interests in collection same [sic]. ‘68. The letter also included a Federal debt collection notice. ‘69. In the letter of June 1, 2011, Respondent clearly represented the interests of KNP, who he referred to as “my client,” adversely to the interests of [C.M.]. ‘70. The subject matter of the letter of June 1, 2011, collection of some of the loans Respondent had brokered between KNP and [C.M.], was substantially related to the subject matter of Respondent’s representation of [C.M.] in both the loan transactions and the personal injury claim. ‘71. Respondent represented KNP as its legal counsel of record against [C.M.] in the Atchison County, Kansas proceeding captioned as [C.M.] v. Cummings to enforce KNPs purported security interest under the loan documents upon [C.M.] ’s settlement proceeds. ‘72. As previously found, on May 20, 2011 Respondent filed the “Odo v. [C.M.] Lawsuit” against [C.M.] in Platte County. ‘73. On June 27, 2011, Respondent filed a First Amended Petition in Odo v. [C.M. ], in which he added claims on behalf of KNP to tire lawsuit, adversely to [C.M.]. ‘74. Respondent continued to represent KNP in the matter, and filed pleadings and motions on behalf of KNP until KNPs claims were dismissed by tire court. ‘75. The subject matter of tire claims asserted in Odo v. [C.M.] by KNP was substantially related to tire subject matter of Respondent’s representation of [C.M.] in both the loan transactions and the personal injury claim. ‘Findings of Fact as to Count VII: Conduct Prejudicial to the Administration of Justice [Rule 4-8.4 (d)] ‘76. [C.M.] fired Respondent by letter dated May 10, 2011, which Respondent likely received in the mail tire next day. ‘77. On or about May 13,2011, a member of Respondent’s office staff, under his direct supervision, sent an email to Tammy Glick, the guardian ad litem of [C.M.] s children in his custody case, requesting tire name of a drug testing agency which had done a drug test on [C.M.]. ‘78. The email stated that the staff person needed to refer someone to the agency. Respondent admitted in his testimony that he knew [C.M.] had undergone a drug test, but could not remember the name of the agency. He caused his staff person to contact Glick in hopes of obtaining the result of the drug test. ‘79. The testing agency refused to supply Respondent’s office with the results of the drug test without a release from [C.M.]. ‘80. Respondent admitted in his testimony that he knew [C.M.] might file a malpractice claim and/or disciplinary complaint against him, and he wanted the drug test results for evidence to defend himself. ‘81. Informant argued that Respondent violated Rule 4-8.4(d) in a variety of other ways, including: a. Filing the Odo v. [C.M.] lawsuit against [C.M.] and revealing information relating to the representation through attachment of exhibits containing client information; b. Making a demand for payment of notes to KNP, although the notes had not yet matured; c. Attending a debtor examination held by Dr. Febbo’s counsel (although he did not attend as counsel in the case); and d. Generally attempting to annoy, harass and intimidate [C.M.] in retaliation for [C.M.] ’s termination of the attorney-client relationship and [C.M.] ’s initiation of a bar complaint.’ “10. Based upon the hearing panel’s decision, on September 30, 2014, the Missouri Supreme Court issued an order suspending the respondent’s license to practice law indefinitely for having violated the Missouri Rules of Professional Conduct. Specifically, the Court concluded that the respondent violated Rules 1.7(a)(2), 1.8(a)(1), 1.8(a)(2), 1.8(a)(3), 1.8(e), 1.9(a), and 8.4(d). "11. In its order, the court permitted the respondent to file a petition for reinstatement after a period of 1 year. At the time of the hearing on the instant formal complaint, .the respondent had not yet filed a petition for reinstatement in the State of Missouri. The respondent, however, planned to file a petition for reinstatement a week or two later. “Conclusions of Law “12. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.7, KRPC 1.8, KRPC 1.9, KRPC 1.15(d), and KRPC 8.4, as detailed below: “KRPC 1.7' “13. The rules do not permit lawyers to represent clients with conflicting interests without taking certain steps. KRPC 1.7 provides the requirements in this regard, as follows: ‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2)there is a substantial risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. ‘(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing-’ The respondent’s representation of both KNP and C.M. and L.F. in the loan transactions presented a substantial risk that his representation of C.M. and L.F. would be materially limited by his responsibilities to KNP or by his personal interest. Neither C.M. nor L.F. gave written informed consent. Thus, the hearing panel concludes that the respondent violated KRPC 1.7(a)(2). “KRPC 1.8 “14. Generally, lawyers may not enter into business transactions with clients. See KRPC 1.8(a). In order to enter into a business transaction with a client or otherwise acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, the attorney must establish that: ‘(1) the transaction and terms on which the lawyer acquires die interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and ‘(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on die transaction; and ‘(3) the client gives informed consent, in a wilting signed by die client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.’ The respondent charged C.M. extraordinary interest rates and included burdensome terms in the loan transactions. Additionally, die respondent failed to inform C.M. in writing of die desirability of seeking independent legal counsel. Finally, the respondent did not seek and obtain written informed consent from C.M. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.8(a). “15. Attorneys may not advance funds to clients. ‘(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on tire outcome of tire matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.’ In this case, on multiple occasions, the respondent paid medical bills on behalf of C.M. which were not for purposes of the litigation. As such, the hearing panel concludes that the respondent violated KRPC 1.8(e). The hearing panel notes, however, that the respondents motive for extending financial assistance to C.M. was to assist his client. The respondent’s motive in this regard mitigates the misconduct. “KRPC 1.9 “16. In addition to duties owed to current clients, lawyers also owe duties to former clients. See KRPC 1.9. Specifically, KRPC 1.9(a) prohibits lawyers from representing a current client [in] the same or a substantially related matter in which a current client’s interests are materially adverse to the interests of the former client without first obtaining written informed consent from the former client. “17. The respondent represented Dr. Febbo in an action against C.M. which was based on services performed by Dr. Febbo on referral from the respondent for treatment and evaluation related to C.M.’s personal injury case. Dr. Febbo’s claims were the same or substantially related to the subject matter of the respondent’s representation of C.M. Therefore, the hearing panel concludes that the respondent violated KRPC 1.9(a). “[KRPC 1.15(d)] “18. Lawyers must not commingle client funds with funds belonging to the lawyer or the lawyer’s firm. KRPC 1.15(d). The respondent produced his trust account records and admitted to commingling clients’ funds with his funds, by using this trust account as an operating account. As such, the hearing panel concludes that the respondent violated KRPC 1.15(d). “KRPC 8.4(d) “19. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he repeatedly engaged in conduct which amounted to conflicts of interest with his clients. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d). “American Bar Association Standards for Imposing Lawyer Sanctions “20. In malting this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “21. Duty Violated. The respondent violated his duty to his client to refrain from engaging in conflicts of interest. “22. Mental State. The respondent knowingly violated his duty. “23. Injury. As a result of tire respondent’s misconduct, the respondent caused actual injury to C.M. “24. Aggravating and Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: [Footnote: While tire hearing panel is unable to find by clear and convincing evidence that the respondent was motivated by dishonesty and/or selfishness, the hearing panel is troubled by the respondent’s motivation. The respondent attempted to obtain the results of a drug test of a client, in an unrelated matter, to use against his client. The hearing panel cannot fathom a good motivation for malting such an attempt. Additionally, the respondent attended a hearing in Febbo v. C.M., when he knew he had a conflict and had no legitimate reason for attending. The hearing panel is seriously troubled by the respondent’s conduct.] “25. Prior Disciplinary Offenses. The respondent has been previously disciplined on one occasion in the State of Missouri; in 2006, the respondent was informally admonished. “26. Multiple Offenses. The respondent violated KRPC 1.7, KRPC 1.8, KRPC 1.9, KRPC 1.15(d), and KRPC 8.4. Accordingly, the hearing panel concludes that the respondent committed multiple offenses. “27. Vulnerability of Victim. Because C.M. and L.F. were experiencing financial difficulties when they sought the assistance from the respondent, C.M. and L.F. were vulnerable to the respondent’s misconduct. “28. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 2007. The Missouri Supreme Court admitted the respondent to the practice of law in 1975. At the time of the misconduct, the respondent has been practicing law for more than 35 years. “29. Indifference to Making Restitution. To date, the respondent has not made restitution to his clients. Currently, a claim is pending before the Missouri Client Protection Fund to reimburse his clients for their loss. “30. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its rec ommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: “31. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to tire violations. Finally, the respondent admitted that he violated the Kansas Rules of Professional Conduct. “32. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent presented four letters from friends and neighbors who spoke favorably of him. “33. Imposition of Other Penalties or Sanctions. The respondent has experienced other sanctions for his conduct. The respondents license to practice law in the State of Missouri was suspended indefinitely. The Missouri Supreme Court’s order provided that the respondent would be permitted to apply for reinstatement after 1 year. “34. Remoteness of Prior Offenses. The discipline imposed in 2006 is remote in character and in time to the misconduct in this case. “35. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: ‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. ‘4.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.’ “Recommendation “36. The disciplinary administrator recommended that the respondent be suspended for a period of 1 year. The respondent recommended that the hearing panel immediately suspend the respondent from the practice of law. (It is worth noting here that the hearing panel is without the ability to effectuate the respondent’s request. The hearing panel is charged with making findings of fact, conclusions of law, and recommendations as to discipline to be imposed.) The respondent further recommended that he be reinstated to the practice of law in Kansas at the time Missouri Supreme Court reinstates the respondent to the practice in Missouri. “37. In considering the appropriate discipline, the hearing panel has considered many factors. During the proceedings in Missouri, the respondent did not express remorse or regret or take responsibility for a majority of the misconduct. The Missouri disciplinary hearing panel commented as follows: ‘22. For the most part, Respondent did not show remorse or express regret for his conduct. He continued to defend the loan transactions on the technical ground that he had no interest in KNP because he had transferred an ownership interest to his daughter, and continued to assert there was no substantial relationship between the Febbo and KNP representation and his representation of [C.M.]. He did express regret for having advanced medical costs to [C.M.]/ In the intervening time period, the respondent has come to understand the wrongful nature of his conduct. However, tire respondent continued to fail to demonstrate remorse for C.M. and L.F. at the hearing on the formal complaint in Kansas. “38. It is important for tire hearing panel to note that the clients in this case are Kansas residents and the personal injury cases arose as a result of an accident which occurred in Kansas. Had the respondent filed litigation on behalf of L.F. and C.M., he would have filed it in Kansas. Because the misconduct related to Kansas clients and in representation in a Kansas matter, this is not simply a reciprocal discipline case. The respondent harmed Kansas clients. The hearing panel must consider what discipline is appropriate to recommend, independent of tire discipline imposed in Missouri. “39. Accordingly, based upon the findings of fact, conclusions of law, and the Standards fisted above, the hearing panel unanimously recommends that the respondent be suspended for an indefinite period of time. Prior to reinstatement, the hearing panel recommends that the respondent be required to establish that he has made restitution to C.M. and L.F. Additionally, the hearing panel recommends that the respondent be required to establish that he fully cooperated with the Missouri Client Protection Fund Commission and repaid tire commission or his clients as directed. In the event the Kansas Client Protection Fund also initiates an investigation and prosecution, the hearing panel further recommends that the respondent be required to establish that he fully cooperated with the Kansas Client Protection Fund Commission and repaid the commission or his clients as directed. Finally, the respondent should establish that he provided C.M. and L.F. with a sincere apology for the misconduct and the harm it caused. If the respondent makes full restitution and foiwards a sincere apology to C.M. and L.F., the hearing panel recommends that the respondent be allowed to apply for reinstatement after a period of 1 year suspension. “40. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.” Discussion In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.”’” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2015 Kan. Ct. R. Annot. 369). The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.7(a) (2) (2015 Kan. Ct. R. Annot. 519) (conflict of interest); 1.8(a) (2015 Kan. Ct. R. Annot. 530) (conflict of interest); 1.8(e) (2015 Kan. Ct. R. Annot. 530) (providing financial assistance to client); 1.9(a) (2015 Kan. Ct. R. Annot. 539) (duties to former clients); 1.15(d) (2015 Kan. Ct. R. Annot. 556) (preserving client funds); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions. The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before the panel, die office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. Respondent recommended the hearing panel immediately suspend him and that he be reinstated to the practice of law in Kansas at the time the Missouri Supreme Court reinstates him to the practice of law in Missouri. The hearing panel recommended suspension for an indefinite period of time no less than 1 year. Further, the hearing panel recommended that prior to reinstatement, respondent must establish that he has made restitution to C.M. and L.F.; that he has fully cooperated with the Missouri Bar Client Security Fund Committee; that, in the event the Kansas Client Protection Fund Commission initiates an investigation and prosecution, he establish he fully cooperated with the Kansas Cli ent Protection Fund Commission and repaid tire commission or his clients as directed; and that he provided C.M. and L.F. with a sincere apology for the misconduct and harm it caused. After the panel hearing, on December 30,2015, respondent filed with the Disciplinary Administrator’s office a second answer which included an executed mutual total release and settlement agreement between C.M., L.F., and respondent dated February 22, 2012, which arose out of lawsuits filed in Platte County Missouri, Lyle L. Odo, P.C. v. [C.M.], No. 11AE-CV01722, and in Atchison County, Kansas, [C.M.] v. Alan Cummings, et al., No. 2011 CV 123. The purpose of the release and settlement agreement was to “fully settle and compromise any and all claims, demands, liens or causes of action any one party to this Agreement may have against any other party or combination of parties to this Agreement.” After reviewing the agreement, the Missouri Bar Board of Governors concluded that C.M.s claim for compensation from the Missouri Bar Client Security Fund Committee “did not qualify for compensation under the rules which govern the Fund.” At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 1 year with respondent being automatically reinstated at the end of that. year. Respondent requested that he be suspended in Kansas until such time as he is reinstated in Missouri. We hold that respondent is to be suspended from the practice of law in the state of Kansas for a period of 1 year effective as of the date of the filing of this opinion. Before reinstatement is allowed, respondent shall comply with Kansas Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401) and Rule 219 (2015 Kan. Ct. R. Annot. 403), including a required appearance before a hearing panel for a reinstatement hearing. In its final hearing report, the panel recommended that respondent make full restitution to C.M. and L.F. However, the panel did not acknowledge the mutual total release and settlement agreement dated February 22, 2012. The court holds that when future hearing panels make a recommendation of restitution, the panel must malm a supportive factual finding and include such finding in its final hearing report. Conclusion and Discipline It Is Therefore Ordered that Lyle Louis Odo be and is hereby disciplined by suspension from the practice of law in the state of Kansas for a period of 1 year, in accordance with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293), as of the date of this order. It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 and Rule 219 before reinstatement is allowed. It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.	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The opinion of the court was delivered by Stegall, J.: A jury convicted Tyrone Walker of first-degree premeditated murder for the killing of Janis Sanders. We affirm Walker’s conviction and sentence and hold: (1) any error by the district court in failing to provide a lesser included instruction was harmless; (2) the State did not err during closing argument; (3) while the district court should have suppressed Walker’s statements from the interrogation after he invoked his right to remain silent, the error was harmless; (4) cumulative error did not deny Walker a fair trial; and (5) Walker’s hard 50 sentence is not unconstitutional. Factual Background On June 4,2011, Janis Sanders’ body was discovered in the overgrown grass behind a vacant home near the intersection of Washington and Lincoln streets in Wichita, Kansas. Sanders’ body was unclothed and had visible ligature wounds on the neck. Nearby, law enforcement officers found a string later identified as a shoelace and a kitchen knife stuck into the ground. Forensic analysis would later indicate that the shoelace was consistent with Sanders’ neck wounds. Sanders’ clothing — torn and stained with blood— along with her personal effects were then discovered in a nearby dumpster. The investigation eventually led investigators to Charles Williams. Williams explained that he had been driving through the intersection of Washington and Lincoln the night before when a passenger in his car, Tyrone Walker, spotted Janis Sanders and de manded that Williams stop the car. Walker got out of the car and approached Sanders as Williams drove away. Another passenger in the car, Suzana Hernandez, provided corroborating statements. At trial, the jury also heard from a detective about an interview he and his partner conducted with Thomas Wilson, an inmate who had been at the Sedgwick County jail with Walker after Sanders’ killing. Wilson told detectives that Walker had shared with Wilson tire story of Sanders’ killing, detailing the events as follows. Walker was in possession of some crack cocaine while he was riding in Williams’ car. Walker spotted Sanders and decided to leave Williams and join Sanders because they had previously smoked crack cocaine together and Sanders owed him a favor. After Walker and Sanders met on the street, Sanders took them to a nearby empty house where they could smoke. During this time, Walker repeatedly propositioned Sanders for sex, but she rebuffed him. This angered Walker. He eventually pinned Sanders to the ground and told Wilson that he thought about using the kitchen knife he had with him, but because he did not want to “get blood all over himself’ or leave fingerprints, he decided to strangle Sanders with a shoelace instead. Walker told Wilson that he had been concerned that Sanders had scratched him during the fighting. Additionally, the State presented DNA evidence from three different DNA samples: (1) scrapings under Sanders’ fingernails; (2) DNA traces on the shoelace; and (3) the handle of the kitchen knife. Walker could not be excluded from any of the three crime scene DNA samples. Other forensic experts testified that the autopsy revealed bruises on Sanders’ face, indicating she was beaten with “at least seven or eight distinctive, separate blows.” There were at least five ligature marks on Sanders’ neck consistent with repositioning, which can occur during strangulation when the victim attempts to loosen the ligature and causes the assailant to tighten the ligature in a new position. Visible scratch marks on Sanders’ neck were characteristic of a victim scratching at her own neck in an attempt to move or release the ligature. The States expert opined that Sanders could have remained conscious for 50 to 60 seconds of struggle or possibly longer depending on the time between.'.repositioning. The expert testified that once consciousness is lost it taires approxi mately 2 more minutes of pressure for irreversible brain damage to begin and approximately 3 to 4 minutes of constant pressure before death. The juiy also heard about a prior strangulation homicide committed by Walker. Walker stipulated that he was initially charged with murder in the first degree of Tamara Baker and eventually pled guilty to second-degree murder. Evidence was introduced to establish similarity between the crimes. Baker went missing on Halloween day in 1989, and her body was discovered in the spring of 1990 in a wooded area. The autopsy indicated Baker had been killed by manual strangulation. Baker’s body was discovered virtually unclothed. Walker eventually confessed to investigators that he strangled Baker with his hands and then left her body in the wooded area. Walker claimed he became angiy after the two had been kissing in his car and Baker told him that he needed to give her money or she would tell his wife what they were doing. Walker now appeals his conviction and sentence. Analysis The district court’s failure to give the lesser included instruction was not clear error. Walker’s first claim on appeal is that the district court committed clear error by failing to instruct the juiy on a lesser included crime of second-degree intentional murder. With Walker’s agreement, the district court instructed the juiy only on the charge of first-degree premeditated murder. The State initially argues Walker invited this error, preventing appellate review. “The doctrine of invited error precludes a party from asking a district court to rule a given way and thereafter challenging the court’s ruling on appeal.” State v. Soto, 301 Kan. 969, 983, 349 P.3d 1256 (2015). If the defendant invites error in the juiy instructions, the court need not determine whether the juiy instruction is clearly erroneous. State v. Jones, 295 Kan. 804, 812, 286 P.3d 562 (2012). However, “[a] party must do more than simply fail to object to a district court’s proposed juiy instruction to risk application of the invited error doctrine as a bar to appellate review of that instruction.” State v. Dern, 303 Kan. 384, Syl. ¶ 4, 362 P.3d 566 (2015). At the instructions conference, the district court discussed with the parties its duty to instruct on lesser included crimes and opined that a second-degree murder instruction was inappropriate because the testimony on the length of time required to kill by strangulation showed premeditation. The district court then noted that Walkers counsel had not requested any lesser included instructions, and Walker’s counsel confirmed that was still the case. Under similar facts, we have regularly declined to apply the invited error rule. For example, we did not hold there was invited error in Soto, where the State, defense, and district court agreed there was no evidence to support lesser included instructions for the first-degree murder charge. 301 Kan. at 983-84. We noted: “[Djefense counsel made no affirmative request to omit a second-degree murder instruction nor did defense counsel decline an offer by the court to give the instruction.” 301 Kan. at 984. The opinion concluded: “Defense counsel acquiesced to the trial judge s ruling rather than requested the instruction not be given. Under these facts, we decline to apply the invited error rule.” 301 Kan. at 984. As in Soto, so too here. Walker merely acquiesced to the district court s ruling; he did not invite it. Our standard of review of alleged jury instruction errors is well-established: ‘“When reviewing the failure to give a lesser included instruction, (1) first, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless.’ State v. Soto, 301 Kan. 969, Syl. ¶ 9, 349 P.3d 1256 (2015). “When a defendant challenges the district court’s failure to give a lesser included offense instruction for the first time on appeal, the reviewing court applies the clearly erroneous standard provided in K.S.A. 2014 Supp. 22-3414(3), requiring that the defendant demonstrate ‘that the failure was clearly erroneous, i.e., the defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in the verdict.’ Soto, 301 Kan. 969, Syl. ¶ 10.” State v. Cooper, 303 Kan. 764, 769-70, 366 P.3d 232 (2016). The State concedes that second-degree intentional murder is a lesser included offense of first-degree premeditated murder and is correct to do so. See, e.g., Soto, 301 Kan. at 985 (intentional second-degree murder is a lesser included offense of premeditated first-degree murder). However, the parties dispute the appropriateness of the instruction in this case. We find it unnecessary to address this factual dispute because, even assuming the instruction was factually appropriate, we conclude there is no reasonable possibility the error affected the verdict. See Cooper, 303 Kan. at 771 (assuming the instruction was factually appropriate and proceeding directly to clear error analysis). To establish clear error, “the defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in die verdict.” Soto, 301 Kan. 969, Syl. ¶ 10. Our analysis of the question in this case turns on the State s evidence of premeditation. “Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; radier, premeditation indicates a time of reflection or deliberation.” 301 Kan. at 988-89. Circumstances giving rise to the inference of premeditation include: ““‘(1) the nature of the weapon used; (2) lack of provocation; (3) tire defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after tire deceased was felled and rendered helpless. [Citation omitted.]”'" 301 Kan. at 989 (quoting State v. Kettler, 299 Kan. 448, 467, 325 P.3d 1075 [2014]). At trial, the State presented significant evidence supporting premeditation'. In sum, the State’s evidence showed Walker killed Sanders after she refused his repeated propositions for sex. Walker said he decided to strangle Sanders, despite having a kitchen knife, to avoid getting blood on himself. He used a ligature to avoid leaving fingerprints. These statements reflect a calculating, planning state of mind indicative of deliberation. Walker strangled Sanders to death with a ligature, a process which, according to expert testimony in this case, can take 3 to 4 minutes. We have noted many times that death by strangulation presents strong evidence of premeditation. See State v. Lloyd, 299 Kan. 620, 634, 325 P.3d 1122 (2014); State v. Gunby, 282 Kan. 39, 64-65, 144 P.3d 647 (2006); State v. Jones, 279 Kan. 395, 403, 109 P.3d 1158 (2005); see also State v. Scott, 271 Kan. 103, 111, 21 P.3d 516 (2001) (when finding premeditation jury could conclude defendant’s state of mind changed during the violent episode, including at any time during the strangulation); State v. Brown, 234 Kan. 969, 972-73, 676 P.2d 757 (1984) (evidence of premeditation sufficient when severely beaten victim was killed by strangulation). In view of the truly overwhelming evidence of premeditation here, much of it from the defendant s story as reported by Wilson, Walker has failed to firmly convince us that the lesser included instruction would have made a difference in the verdict. The State did not err during closing argument. Walker next claims the State erred in closing argument by telling the jury that Sanders’ body (as well as a prior victim’s body) were “left like trash without dignity.” Notably, Walker’s brief limits its argument to these statements, and we deem any other allegations of prosecutorial misconduct abandoned. See State v. Bowen, 299 Kan. 339, 355, 323 P.3d 853 (2014) (arguments not adequately briefed deemed abandoned). Specifically, Walker argues the challenged statements inflamed the passions of the jury or explained the evidence in a repugnant manner. See State v. McCaslin, 291 Kan. 697, 723, 245 P.3d 1030 (2011) (Prosecutor’s particularly repugnant statements, despite being useful in explaining the case, were erroneous and demonstrated ill will, lack of good faith, and were gross and flagrant.); State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006) (“Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.”). We disagree. The prosecutor’s comment was made in direct response to the defense attack on Sanders’ character. During closing argument, Walker’s counsel chose to accuse the victim of “chasfing] the rock by selling herself for the rock.” In rebuttal, the State responded: “The law protects us all. We mentioned — we want to mention that she was chasing the rock. We want to mention that she was a hooker, to now attack her character that she’s dead. I submit to you, you saw her at 5:15 or whatever it was that day. Someone had got her a QuikTrip. Someone had paid for that. She’s barefoot, seemingly happy, and now we find her without any of this, without the things, her papers, that tell who she is. She was left without her bag that she carried over her shoulder. She was — her clothes were ripped from her body and taken from her body, so that she was left like trash, just like Tamara Baker, just like Tamara Baker, left like trash without dignity.” (Emphasis added.) The first step in reviewing a claim of prosecutorial misconduct is to determine whether the statement or statements were outside the wide latitude that a prosecutor is allowed in discussing the evidence. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012). Walker relies heavily on McCaslin, 291 Kan. at 722-23, in which we disapproved of two comments by the prosecutor in closing argument: “First, evidence showed that A.D.’s body was set ablaze after she was doused with citronella oil. When explaining why there was no citronella oil on McCaslin, the prosecutor argued to the jury: “ ‘You’ve all maybe lit a barbecue. Did you get barbecue lighting fluid on you when you are lighting a barbecue? No, it goes on the charcoal, and Angela Duran was his charcoal and he was through.’ “Second, when explaining to the jury why there was no soot on McCaslin’s clothing, the prosecutor remarked: “ “We’re not saying he hung around and cooked s’mores. We’re saying he lit the fire and left. The fire was burning. You would not have soot, you would not have ash, you wouldn’t have smoke at the time.’ ” We found the prosecutors statements, “while picturesque,” to be “particularly repugnant.” 291 Kan. at 723. We further concluded: “[Tjhese remarks not only constituted prosecutorial misconduct but also demonstrated ill will, lack of good faith, and were gross and flagrant.” 291 Kan. at 723. The prosecutors statements here are not akin to the “repugnant” imagery we condemned in McCaslin. To the contrary, they came in direct response to Walkers blame-shifting, attack-the-victim argument that specifically disparaged Sanders’ character. Moreover, the State used imagery directly connected to the evidence — i.e., Sanders’ clothes and belongings were literally discovered in the trash and her naked body was disposed of in long grass behind a vacant house. We find these statements, in this context, to be well within the wide latitude afforded prosecutors when discussing the evidence. The district court erred by failing to suppress the evidence obtained after Walker invoked his right to remain silent; however, the error was harmless. Walker next argues the district court erred when it denied his motion to suppress the statements Walker gave to Wichita detectives. Walker claims both that he unequivocally invoked his right to remain silent under the Fifth Amendment to the United States Constitution which was violated by the continued interview and that his statements to detectives were rendered involuntary due to his alcohol consumption and sleep deprivation. We first address Walker’s claim of voluntariness or lack thereof. ‘When challenged, the prosecution must prove by a preponderance of the evidence the voluntariness of a defendant’s inculpa-tory statement to a law enforcement officer.” State v. Gibson, 299 Kan. 207, 214, 322 P.3d 389 (2014). In determining voluntariness trial courts look at the totality of the circumstances surrounding the statement by considering six nonexclusive factors: “(1) tire accused’s mental condition; (2) the manner and duration of the interview; (3) the accused’s ability to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the officer’s fairness in conducting the interview; and (6) the accused’s fluency with the English language.” 299 Kan. at 214. Walker claims his mental condition was impaired due to alcohol and sleep deprivation. The district court disagreed, and we find substantial competent evidence supports the district court’s findings. See State v. Betancourt, 301 Kan. 282, 290, 342 P.3d 916 (2015). The only evidence presented at trial of Walker’s actual statements to law enforcement officers from the interview was presented through the testimony of interrogating officer Detective Timothy Relph. But at the suppression hearing, both Walker and Detective Relph testified concerning Walker’s mental state during the interrogation. Detective Relph testified he conducted the interview with Walker at approximately 3:19 in the morning on June 18, 2011. Detective Relph testified Walker was picked up around 11:45 p.m. and held in custody until the interview. The video of the interrogation shows Walker was alone in the room, possibly sleeping, for at least 2 hours and 40 minutes prior to the interview. Once the interview began, Walker told Detective Relph he had 12 or 13 32-ounce cans of beer during the day before he was picked up. Detective Relph testified that Walker did not show signs of intoxication. Detective Relph acknowledged he was surprised when Walker mentioned drinking that many beers because “I certainly didn’t smell it,” and Walker did not exhibit signs of someone consuming that much beei'. When asked if Walker displayed slurred speech, Detective Relph replied, “No. I mean, he was tired, 3:00 o’clock in the morning, but certainly didn’t have any trouble recalling his relatives or anything like that.” Detective Relph testified that Walker gave appropriate answers to questions and appeared to understand what was going on. While Detective Relph acknowledged that both he and Walker were sleepy, he did not observe signs of sleep deprivation. Walker testified that he had approximately a dozen 32-ounce beers while playing cards with friends from about 1 p.m. until he was arrested at 11:45 p.m. When asked if he was under the influence of alcohol, Walker said, “It’s land of hard to say, because police make you nervous, so I don’t know.” When asked if he was inebriated, Walker replied, “I knew I was — I don’t want to say drunk, but I knew I was — I guess that’s the words you want to say, yeah.” Counsel then asked, “You was what?” to which Walker replied, “Buzzed, high, whatever you want. I don’t know how you say it.” Walker replied, “[n]o,” when asked if he felt sober. Following testimony, the district court stated it would watch the interview video before ruling. The district court denied Walker’s motion to suppress, finding his statement was knowingly and voluntarily given. The court found that “it’s quite apparent that [Walker] was in control of his faculties.” Based on both his observations of the interview video and the testimony at the suppression hearing, the district judge found, under the totality of the circumstances, that Walker made “a knowing, intelligent, freely voluntaiy waiver of his rights.” Notably, the court found “there is just absolutely no indication that [Walker] was under the influence of drugs or alcohol at the time of the interview.” “The fact that an accused had been drinking or using drags does not per se establish involuntariness of tire accused’s confession. All circumstances surrounding the giving of the statement must be examined to determine if the intoxication prevented the accused from voluntarily making a statement.” State v. Gilliland, 294 Kan. 519, Syl. ¶ 5, 276 P.3d 165 (2012). “To make this assessment, in past cases we have noted a variety of factors that provide substantial competent evidence regarding a trial court’s determination that drug or alcohol use did or did not prevent an accused from making a voluntary statement. These factors have included such tilings as whether there were manifestations of intoxication, the opinions of those who interacted with the accused about whether the accused seemed intoxicated, the trial court’s independent evaluation based on observing or hearing the accused in a video or audio recording of the statement, the accused’s familiarity with the police’s interview procedures, and the accused’s familiarity with the Miranda rights. Courts have noted markers such as whether an accused’s answers were precise, normal, rational, or responsive; whether the accused was coherent and wide awake; and whether there was a detectable odor, swaying, bloodshot eyes, slurred speech, or other physical signs of intoxication. If the trial court has relied on some of these factors in ruling a statement was voluntary, an appellate court examines only whether there is substantial competent evidence to support the trial court’s findings; an appellate court does not reweigh the evidence or independently reach our own determination of voluntariness.” 294 Kan. at 529-30. Applying this analysis, substantial competent evidence supports the district courts conclusion here. Detective Relph testified Walker showed no signs of intoxication. Detective Relph even found Walker’s claim regarding how much he had to drink surprising given the absence of alcohol odor and the lack of signs of intoxication. Walker, for his own part, testified inconsistently, saying first, “It’s land of hard to say,” whether he was under the influence but also that he was not sober. Substantial competent evidence supports the courts decision as both the testifying officer and video of the interview show Walker was not impaired by intoxication or sleep deprivation. Accordingly, the trial court did not err in denying Walkers motion to suppress on die grounds of involuntariness. Walker’s claim that the district court should have suppressed his statements because officers violated his Fifth Amendment right to remain silent is more compelling. As a preliminary matter, both the State and Walker concede that the interview was custodial. Walker also does not challenge the facts that he was properly advised of his rights and that he initially agreed to talk to detectives. Walker argues, and the district court considered, three possible points during the interrogation when Walker may have invoked his right to end the interview. The first alleged invocation occurred approximately 30 minutes into the interview. Detective Relph was pressing Walker on a point when Walker said, “Man, you know what, I’m done, I’m through talking, man, ‘cause you gonna keep trying to talk to me and act, I mean, just ask me what you need to ask me them questions.” A second detective, Detective Dan Harty, then rephrased the question, and the interview continued normally. The second alleged invocation occurred approximately 14 minutes after the first. Detective Relph first told Walker that Williams and Hernandez had seen Walker exit the car and approach Sanders. The following exchange then occurred: “Walker: Well if that’s what you think, then that’s .... “Relph: That’s what I think. “Harty: How about.... “Walker: How about we’re done because he’s just accused me of lying. “Relph: Accused you of what? I didn’t accuse you of lying. I told you what they said. “Walker: Okay, well. “Harty: Can I talk to you about something else? ‘Walker: Sure.” The interview then continued. The final alleged invocation occurred approximately 8 minutes later. At that point, Detective Relph began asking pointed questions — i.e., whether Walker killed Sanders. Walker denied that he did. The following exchange then occurred: “Relph: You’re the last person that I know that saw [Sanders] alive. Okay. The last woman you ever saw alive in 1989 is dead. Okay. I’m not so foolish to not have done my homework. “Walker: Did they tell you I was in prison for murder? “Relph: Yeah. ‘Walker: Okay, now I’m telling you this conversation is over ‘cause you just accused me. “Relph: Yeah, I did. I think you’re involved with it. [Statements overlap with Walker’s] “Walker: Okay, well, I’m done. I’m done. Now, I’m done. [Overlapping Relph’s prior statement] “Relph: Okay. [Ten second pause in conversation occurs] “Relph: “I asked you if you did it, that’s diff. — far different from accusing you. [Ten second pause] “Walker: [Directed at Relph’s notes] You put down that little statement that you made just before you did that too. “Relph: I did, because I’ve done my homework. ‘Walker: No. “Relph: That you were the last person that saw her. What statement do you want me to write down? Walker: No. None. “Relph: That you were the last person that saw that girl in 1989? You want me to write that down too? "Walker: [Directed at Harty] Sir ... . “Relph: No wait, you want me to ... . ‘Walker: [Directed at Harty] Can you take me to a cell now? I’ll talk to you, I’ll talk to the investigators, alright. “Relph: You’re gonna go to jail. You’re gonna go to jail, don’t worry about it. “Harty: I understand you’re getting pissed off, I mean, but the thing is is that ‘Walker: No, tire way he does what he does. I know the good cop, bad cop, whatever, however [inaudible], it doesn’t really matter like that, it’s not, no no, I’m not playing no game either, what I’m saying is, there’s a difference in how, we treat you at the job you do. And I understand that, you know, but, it’s also .... “Relph: Is there a nice way to ask you that that you wouldn’t have reacted that way?” The interrogation continued for some time after this exchange, going approximately another hour and 40 minutes, including a 40-minute break. ‘When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge’s decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard. An appellate court does not weigh evidence to find facts.” State v. Ransom, 289 Kan. 373, Syl. ¶ 1, 212 P.3d 203 (2009). When the material facts underlying a trial court’s decision on a motion to suppress are not in dispute, the question of suppression is a matter of law over which we exercise unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). We have recently discussed at length the legal rules and analytical path governing Walkers claim. In State v. Aguirre, 301 Kan. 950, 954-58, 349 P.3d 1245 (2015), we said: “The rules governing an accused’s constitutional rights during a custodial interrogation are well established: ‘The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent.’ State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda[ v. Arizona], 384 U.S. [436,] 479[, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]). Moreover, in Kansas, ‘[n]o person shall be a witness against himself [or herself].’ Kan. Const. Bill of Rights, § 10. ‘[A] suspect’s invocation of his or her right to remain silent must be scrupulously honored and cuts off further interrogation elicited by express questioning or its functional equivalent.’ State v. Scott, 286 Kan. 54, 69-70, 183 P.3d 801 (2008) (citing State v. Carty, 231 Kan. 282, 286, 644 P.2d 407 [1982]). “... The argument is founded upon a long-standing rale of law: If a suspect invokes the right to remain silent during questioning, that interrogation must cease. Michigan v. Mosley, 423 U.S. 96, 100, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (quoting Miranda, 384 U.S. at 473-74). Thereafter, ‘the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.’” Mosley, 423 U.S. at 104. “More recently, law enforcement’s duty to scrupulously honor a suspect’s decision to invoice his or her Miranda rights has been conditioned upon the suspect’s ability to communicate that decision without any ambiguity or equivocation. See Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (suppression only required for denial of unambiguous invocation of Miranda rights; objective inquiiy). This court has said that we test the clarity of a Miranda rights invocation by determining whether a reasonable police officer under the circumstances would understand the suspect’s statement as an assertion of a Miranda right. State v. Cline, 295 Kan. 104, 113, 283 P.3d 194 (2012). “[O]ne potential common coloring fact is that the suspect continued to answer questions after the alleged rights invocation, as occurred here. The trial court in this case stated that it was partially influenced by [defendant’s] responses to the detectives’ post-invocation questions in which he said he was still willing to talk to them. But the United States Supreme Court has held ‘drat, under the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.’ Smith v. Illinois, 469 U.S. 91, 100, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). In odrer words, if the interrogators simply ignore the suspect’s invocation of rights and continue to ask questions, the suspect’s compliance with the further questioning does not invalidate or render equivocal the prior invocation of rights.” The Aguirre court then reiterated that courts must “assess what a reasonable law enforcement officer under the circumstances would have understood [the defendant’s] statement to mean at the time it was made.” 301 Kan. at 958. We concluded that tire defendant’s statement, “ ‘This is — I guess where I, I’m going to take my rights and I want to turn in David to his family and I’ll be back here. I mean, I would like to keep helping you guys I just want to — ,’ ” was a facially unambiguous invocation of his rights. 301 Kan. at 960. But see 301 Kan. at 967-68 (Biles, J., dissenting) (“Given [defendant’s] internally inconsistent statement about ‘takfing] my rights’ and wanting to ‘keep helping’ the officers, the officers quite reasonably followed up to determine whether [defendant’s] concerns had to do with David or whether he intended to invoke the right to remain silent.”). Applying this analytical framework, we find that Walker’s first and second alleged invocations were not unambiguous invocations of Walker’s right to remain silent. In the first instance Walker said in one sentence, “I’m through talking, man, . . . just ask me what you need to ask me.” By the basic language of the statement, Walker invited further questioning and did not unambiguously invoke his right to remain silent. The second alleged invocation occurred when Walker told detectives, “How about we’re done because he’s just accused me of lying.” Walker correctly points out that there are many instances of other courts interpreting some form of “I’m done” as unequivocally invoking the defendant’s rights. See, e.g., Munson v. State, 123 P.3d 1042, 1046 (Alaska 2005) (“ ‘Well, I’m done tallón’ then,’ ” invoked right to silence); Deviney v. State, 112 So. 3d 57, 78 (Fla. 2013) (defendant’s six “ ‘I’m done’ ” statements, along with attempts to leave, invoked right); Mack v. State, 296 Ga. 239, 242-43, 765 S.E.2d 896 (2014) (“‘I’m done. I have no more to say. I’m done. Let’s ride,’” invoked right); State v. Rogers, 277 Neb. 37, 69, 760 N.W.2d 35 (2009) (“‘No, I’m not. I’m done. I won’t,’ ” along with “‘I’m not talking no more,’” invoked right); State v. Kramer, No. C5-00-1195, 2001 WL 604955, at *7-8 (Minn. App. 2001) (unpublished opinion) (statements such as, “(1) T gave you my statement’ and that he wanted to go home, (2) 1 don’t want to talk/ and (3) I’m done talking/” unambiguously invoked the right to remain silent). Here, however, Walkers comment was quickly followed by Detective Harty asking, “Can I talk to you about something else?” We have previously said: “[W]here a suspect makes a statement which may be ambiguous as to whether he or she is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify or may continue questioning without clarifying.” State v. Scott, 286 Kan. 54, 69-70, 183 P.3d 801 (2008). Detective Harty’s question, immediately following Walkers statement, was in this case an attempt to ascertain whether Walker was ending the interview. Even though appellate courts look only to the statement made, not postrequest responses, interviewing officers have also been told they may ask clarifying questions regarding ambiguous invocations. Here, Detective Harty asked for clarification, and Walker said they could talk about something else. Given this context, a reasonable law enforcement officer would not have understood Walkers statements to be an invocation of his right to end the interview. We do find, however, that Walker unequivocally invoked his right to remain silent during the third exchange. Walker’s statements, “Okay, now I’m telling you this conversation is over ‘cause you just accused me,” and, “Okay, well, I’m done. I’m done. Now, I’m done,” demonstrate a clear and unambiguous invocation of the right to remain silent and an attempt to end the interview which is far more explicit than the previous two exchanges. A reasonable officer would view those statements as an invocation of Walker’s rights. Furthermore, Walker’s subsequent statements reinforce his efforts to end the interview. After Detective Relph’s statement breaking the silence, and another pause, Walker directed Detective Relph to write down his “little statement” to note it happened. Finally, Walker turned to Detective Harty and asked, “Can you take me to a cell now?” Collectively, Walker’s statements would have made, it clear to reasonable law enforcement officers that Walker was invoking his right to remain silent under the Fifth Amendment and that they were obligated, at that point, to “scrupulously honor” Walker’s request. In this respect, the district court erred in denying Walkers motion to suppress. As such, any evidence of any of Walker’s statements during the post-invocation portion of the interview was inadmissible. A thorough review of the record reveals that the only evidence admitted at trial from the interview after what we have now determined to be Walker’s invocation of his right to remain silent (in other words, the only evidence admitted erroneously in violation of Walker’s Fifth Amendment rights against self-incrimination) was Detective Relph’s testimony that Walker admitted to being in Williams’ car that night but that he denied getting out of the car. It was error to allow these statements into evidence. However, at that point in the trial, other witnesses had already testified that Walker was a passenger in Williams’ car, and Williams had already testified that when he had later asked Walker about getting out of the car the night of Sanders’ death, Walker had outright denied getting out of the car. Thus, evidence that Walker was a passenger in Williams’ car and evidence that Walker had denied getting out of Williams’ car had already been permissibly presented to the jury. Given this, the State argues that any error in the admission of Walker’s statements was harmless. We agree. When a defendant’s constitutional rights have been violated, the State must “carry the burden of proving ‘beyond a reasonable doubt that die error complained of . . . did not affect the outcome of the trial in fight of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.’” Aguirre, 301 Kan. at 962 (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]). Given the limited evidence erroneously introduced and the fact that the evidence had already been properly presented to the jury through other witnesses, the State has met its burden. Cumulative error did not deny Walker a fair trial. Walker next contends that cumulative error denied him a fair trial and requires reversal. The test for cumulative error is “ whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009]). Here, we have assumed that failing to instruct the jury on second-degree murder was error and we have determined that it was error to admit evidence obtained in violation of Walkers Fifth Amendment rights. We found both the assumed error and the actual error to be harmless. As described above, the State’s evidence of Walkers guilt was overwhelming. Further, the errors were unrelated to each other and were unrelated to the ultimate question of guilt. There is no reasonable probability that, even assuming error on the jury instruction question, cumulative errors affected the verdict or denied Walker a fair trial. Walkers hard 50 sentence does not violate Alleyne because the sentence relied only on the fact of a prior conviction. Finally, Walker argues the trial court violated Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013), by imposing a hard 50 sentence based solely on the finding of the aggravating circumstance that the “defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.” K.S.A. 21-4636(a). At trial Walker stipulated to his prior conviction for second-degree murder. Following Walker’s conviction, the State filed notice of its intent to pursue a hard 50 sentence for Walker. Prior to tire sentencing, however, the United States Supreme Court decided Alleyne, calling the hard 50 sentencing system into doubt. The State filed a bench brief arguing Alleyne was inapplicable when a hard 50 sentence was based on the aggravating circumstance described in K.S.A. 21-4636(a), that “[t]he defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another,” because prior convictions are excluded under Alleyne and Apprencli. The district court agreed and imposed a hard 50 sentence relying on Walker’s stipulated-to prior conviction of second-degree murder to support the aggravating circumstance described in K.S.A. 21-4636(a). F olio wing Alleyne, we have held the hard 50 sentencing scheme in effect at die time of Walkers crime violated the Sixth Amendment to the United States Constitution because it “permitted a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.” State v. Astorga, 299 Kan. 395, 397-98, 324 P.3d 1046 (2014). Citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), however, the Alleyne Court made it clear that tire Constitution does not require that the fact of a prior conviction be determined by a juiy. See Alleyne, 133 S. Ct. at 2160 n.1 (In Almendarez-Torres, “we recognized a narrow exception to this general rule for the fact of a prior conviction.”). Walker now argues the Almendarez-Torres exception does not apply here because the aggravating circumstance contained in K.S.A. 21-4636(a) requires a finding of an additional “fact” — that the prior felony conviction involved the infliction of “great bodily harm, disfigurement, dismemberment or death on another.” “Interpretation of a statute is a question of law over which appellate courts have unlimited review.” State v. Morrison, 302 Kan. 804, 813, 359 P.3d 60 (2015). At trial, Walker stipulated to his prior conviction for second-degree murder. Walker asks us to characterize as a further “factfinding” the determination that this prior felony involved the infliction of death on another. But we need not parse the statutory language that finely here, as we can comfortably conclude — as a matter of law, not factfinding — that a conviction for second-degree murder involved the infliction of death on another. Therefore, the trial court did not engage in any unconstitutional factfinding on its way to using the aggravating factor of a prior conviction to impose a hard 50 sentence on Walker. Affirmed.	[ 17, -18, -3, 30, 61, 66, 42, 88, 114, -79, -92, 83, 41, -49, 73, 121, 51, -19, 85, 105, -41, -73, 39, 65, -74, -13, -6, -43, -73, 73, -4, -10, 77, 112, -118, -43, 38, 74, -41, 94, -120, 23, -120, -16, 82, 19, 32, 43, -34, 15, -15, -82, -93, 42, 26, -61, 105, 41, 91, -81, 72, -79, 73, -105, -39, 54, -77, -96, -66, -89, -40, 36, -111, 56, 8, -24, -13, -124, 70, -12, 109, -119, -92, 102, 99, 33, 125, -19, 40, -103, 78, 119, -91, -89, 24, 56, 65, 1, -105, -35, 122, 52, 46, -14, -9, 95, 61, -28, -119, -50, -110, -79, 109, 56, 6, -15, -21, -59, 32, 97, -57, -30, 84, 117, 81, 27, -113, -107 ]
Granted. Unpubhshed	[ -105, -23, -124, 125, -120, 32, 27, -98, 70, -97, 103, 91, 99, 112, -10, 96, -74, -19, -91, 87, -24, 3, 119, -55, -14, 83, -69, 71, 81, -14, -82, 109, 102, -94, -118, -76, 78, -60, -19, -56, -126, 68, 57, -116, -16, 67, 33, 11, 81, 11, 83, 20, 113, -86, 24, 81, -88, 34, -51, -81, 65, -37, -71, 3, -17, -116, -126, 16, 60, -21, -62, 110, -99, 25, 1, -56, 82, -28, -122, 116, 15, -37, -84, -16, 38, 48, -83, -4, -84, -77, 103, -18, -83, -90, -115, 73, 72, 107, -81, 121, -120, 16, 42, -24, -13, -124, 44, 108, 43, -98, -58, -89, 93, 60, 30, 10, -1, 92, -77, 33, -58, 118, -52, 114, -66, -57, -46, -69 ]
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The opinion of the court was delivered by Luckert, J.: On the evening of December 14,2011, in Wichita, a group of four men carried out a burglary of a home, stealing tele visions among other things. In the process, one of the men murdered Markez Phillips, a young man who was in the residence. The four men were eventually identified as Reginald Dupree, Daniel Dupree, Malek Brown, and Francis Dupree. The instant defendant, Nicholas Dupree, was also quickly linked to the crime. The State s theory at trial was that he was a fifth member of the group and, as stated by one witness, the “mastermind.” A juiy accepted the State s theoiy and convicted Dupree of multiple crimes, including felony murder. Dupree raises five challenges in this direct appeal, none of which requires the reversal of his convictions. His statutoiy speedy trial claim is foreclosed by our recent decision in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015). Dupree’s Batson challenge is unpersuasive, and he failed to adequately preserve his appellate challenge to the voluntariness of an admission made during a custodial interview. Additionally, we conclude the district court did not abuse its discretion in admitting autopsy and crime scene photos. Finally, we find no cumulative error in this case. We, therefore, affirm Dupree s convictions and sentences. Factual and Procedural Background Just before Phillips was murdered, he was watching a movie with his girlfriend Regina Stuart while Stuart cared for her infant nephew at her mother’s house. The couple heard a knock, and Phillips got up from the couch to answer the door. Stuart heard him ask who it was before two men tried to push the door open. She watched from the living room as Phillips began to fight the men. Then she heard what sounded like a firecracker and saw Phillips fall to the ground. He never got up. Two men she had never seen before walked towards her. One pointed a black handgun at her and asked for her cell phone, which she gave him. As she pleaded for her life, they asked her where the safe was; her family did not have a safe. The men then walked Stuart at gunpoint to her mothers room, which the men ravaged, again demanding to know the location of a safe. After the men searched the house in vain for the safe, all the while threatening to kill Stuart, Stuart told them to take the televisions. The men then forced Stuart to lie down on the living room floor next to her nephew. One of the men made a phone call for a truck so they could load the televisions. Shortly thereafter, another man came into the house and said, “You weren’t supposed to kill nobody.” Stuart recognized the man as Daniel Dupree, whom she had met through her sister. Stuart’s sister had recently ended a relationship with a man related to Daniel — Nicholas Dupree. The men removed three televisions from the home while Phillips lay bleeding on the floor. Later that night, Phillips died in the hospital as a result of the .45 caliber gunshot wound to his head. Nicholas Dupree’s name came up quickly in the investigation. Stuart initially suspected Dupree’s involvement for two reasons. First, he had been repeatedly harassing her sister since their breakup. Apparently, Dupree believed the infant child was his, and he had been angiy since Stuart’s sister told him the child was not. Second, none of die odier men Stuart saw that night had ever been to her house. Yet, they seemed to know how to best gain access and where to look for things. Dupree, unlike the men in the house on that December evening, had been in the-house numerous times. Stuart also looked at photo arrays, and she quickly identified Daniel. She was also able to identify Malek Brown as the man who shot Phillips and Reginald Dupree as the man who accompanied Brown into the house. In the hours of the night following the crime, Stuart’s sister received multiple restricted calls to her cell phone and two unrestricted calls that displayed as coming from Dupree. She answered one of the restricted calls and recognized Dupree’s voice. He told her: “Just like that slob nigga just got done, you and your boyfriend about to get done.” He also texted her twice, saying, “I hope your kids aren’t at home,” and, “Where are you at?” Stuart’s family told the case detective about the threats. Dupree would later admit to investigators, and also testify at trial, that he made those statements. After Dupree’s arrest, detectives interviewed him. He denied any involvement in the burglary and murder, but he did admit to calling Stuart’s sister multiple times that night and threatening her. Detectives also spoke with Marjorielle Evans, Daniel’s girlfriend. After some hesitation, she told detectives what she knew, and she testified accordingly at trial. Evans lived with her lads, her mom, Daniel, Nicholas Dupree, and her brother and sister. Her room was downstairs, as was Duprees. The day before the crime, she overheard Dupree talking to Brown about committing a burglary at the Stuart house. When Brown asked what was in the house, Du-pree listed televisions and an Xbox. Evans provided investigators with the names of the five men involved in the crime, and all were eventually taken into custody. Investigators also discovered that after hearing about Phillips’ murder, Evans got into a conversation with Stuart on Facebook about the crime. Evans wrote that Dupree showed the others where to go and told them to get the televisions. She said Phillips was in tire wrong place at the wrong time. She said Dupree “was the mastermind of this whole thing,” and she hoped they would catch Brown, who “had no reason to kill [Phillips].” The jury also viewed video captured by a security camera located on a school district maintenance shed near the Stuart home. The images showed an SUV pulling up a short distance from the Stuart home and three men exiting. Reginald and Brown proceeded to the house; the other — Francis—walked up the street. The SUV, driven by Daniel, left the house, but it soon returned. Police officers located an SUV that belonged to Brown’s girlfriend and matched the one on the video. Brown’s girlfriend testified Brown had used her SUV the night of the murder. She also testified Evans told her, the day after Phillips’ murder, that Brown had shot someone. Notably, the jury heard that one shell casing found on the scene of the crime and one shell casing found in the backseat of the SUV were both fired from the same Hi-Point .45 caliber handgun. A bullet fragment taken from Phillips’ head was also fired from that same gun. Dupree testified at trial in his defense. He told jurors he knew nothing about the crime and had nothing to do with it. According to Dupree, he first learned about Phillips’ murder when his half-sister called and told him. (She denied doing so.) Dupree said he felt bad Phillips was murdered because Phillips was his friend — and indeed they had lived together for a few months. While he admitted that he threatened Stuart’s sister and called Phillips a “slob nigga” (he could not explain why he would refer to his friend in such a derogatory way), he said he made the threat (1) because Stuarts sisters boyfriend threatened him first and (2) because he was angry that he was not allowed to see the child he thought was his son. Nevertheless, for reasons Dupree could not explain, none of the calls about which he testified showed up in his phone records. After trial, the jury found Dupree guilty on all charged counts: first-degree felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, aggravated assault, and criminal threat. The district court later sentenced Dupree to life plus 142 months, and it denied his motion for a departure. Dupree timely filed a direct appeal to this court, which has jurisdiction under K.S.A. 2015 Supp. 22-3601(b)(3). Additional facts will be provided as relevant to tire analysis of Du-pree’s appellate arguments. Analysis Issue 1: Duprees convictions are not reversible under the speedy trial statute. A defendant can assert a speedy trial claim in two ways — one statutory and one constitutional. See, e.g., State v. Smallwood, 264 Kan. 69, 74-76, 955 P.2d 1209 (1998) (analyzing a statutory speedy trial challenge differently than a constitutional challenge). Here, Dupree only presents a statutory challenge under K.S.A. 22-3402 and because he did not allege a constitutional speedy trial violation, he has abandoned the constitutional argument. See State v. Williams, 298 Kan. 1075, 1083-84, 319 P.3d 528 (2014) (issues not argued or briefed are abandoned). Dupree’s statutoiy argument presents a question of law subject to unlimited review. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009) (“[T]he computation of days to be assessed against die so-called speedy trial clock — requires some level of statutory interpretation and thus is reviewed de novo.”); State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007) (same). We begin with the statutory language upon which Dupree bases his claim. Under K.S.A. 22-3402(1): “If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such persons arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.. . .” (Emphasis added.) The State bears the responsibility to ensure a defendant is afforded a speedy trial in compliance with K.S.A. 22-3402; a defendant does not need to take any affirmative action to ensure a speedy trial. Adams, 283 Kan. at 369. Arraignment triggers the State’s obligation to bring a defendant to trial within the statutory limits. State v. Sievers, 299 Kan. 305, 307, 323 P.3d 170 (2014). Du-pree’s arraignment occurred on February 6, 2012. So the State had 90 days from that date to bring Dupree to trial. The original date for Duprees trial was April 2, 2012, which amounted to a period of 56 days chargeable to the State. From that point, except a period of 14 days, all continuance requests came from the defense. Under the plain language of this statute, a continuance resulting from a defense request stays the statutory speedy trial calculations. Vaughn, 288 Kan. at 151. Dupree does not dispute that his defense attorney requested continuances, and, generally, “defense counsel’s actions are attributable to the defendant.” State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002). One exception to this general rule is relevant in Dupree’s case: We have recognized for speedy trial purposes that an attorney cannot continue a case over a defendant’s objection. See State v. Hines, 269 Kan. 698, 704, 7 P.3d 1237 (2000); see also Vaughn, 288 Kan. at 144 (defense counsel’s actions attributable to defendant “unless the defendant timely voices” disagreement); State v. Arrocha, 30 Kan. App. 2d 120, 126, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (Essentially, Hines created “a unique exception [to the rule attributing defense counsel’s actions to defendant] for circumstances when defense counsel and the defendant openly disagree about setting a trial date beyond the statutory time limit.”). Dupree claims he was not consulted about the continuances and never acquiesced to any continuance. In addition, we recently confirmed a defendant must have an opportunity to be present to express disagreement with a continu- anee because a defendants disagreement matters in the statutory speedy trial analysis. See State v. Brownlee, 302 Kan. 491, 508, 354 P.3d 525 (2015) (agreeing that a defendant should be present at a hearing on a defense motion to continue); see also K.S.A. 2014 Supp. 22-3208(7) (stating defendants right to be present at a motion hearing); State v. Taylor, No. 104,455, 2011 WL 3795481, at *4 (Kan. App. 2011) (unpublished opinion) (discussing Hines and Arrocha and recognizing that “[a] criminal defendant must be afforded a reasonable opportunity to object to a continuance affecting his or her speedy trial rights”). Accordingly, Duprees claim, if true, could indicate his right to a speedy trial was violated because he never personally waived his statutory right. Even if defense counsel did not consult with Dupree, Dupree may not be entitled to relief under the majority holding in Brown-lee, which interpreted and applied 2012 amendments to K.S.A 22-3402. As of July 1, 2012: Tf a defendant, or defendant’s attorney in consultation with the defendant, requests a delay and such delay is granted, the delay shall be charged to the defendant regardless of the reasons for making the request, unless there is prosecutorial misconduct related to such delay. If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay shall not be considered against the state under subsection[] (a) .. . and shall not be used as a ground for dismissing a case or for reversing a conviction unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay.” (Emphasis added.) K.S.A. 2014 Supp. 22-3402(g). In Brownlee, the members of this court disagreed about whether the first sentence of subsection (g) sets up a precondition for application of the second sentence. The dissenters concluded the first sentence defines and limits the circumstances under which the second sentence can operate. 302 Kan. at 526 (Luckert, J., dissenting; Johnson, J., joining). Under that view, Dupree would be entitled to relief because he did not request, and his attorney did not consult with him before requesting, the delays at issue. That view did not prevail, however, and a majority of this court held the two sentences in subsection (g) are not “contingent upon each other.” Rather, “[t]he second sentence is much broader in its application. It involves situations where ‘a delay is initially attrib uted to the defendant ] but is subsequently charged to the state for any reason . . . .’ (Emphases added.) K.S.A. 2012 Supp. 22-3402(g).” 302 Kan. at 510. That holding, if it retroactively applies to Dupree’s case, controls — because Dupree does not dispute the State’s assertion that the language of the second sentence of subsection (g) means he is not entitled to dismissal. Indeed, the sentence fits: The district court initially attributed the delays to Du-pree and, even if further investigation into Dupree s claim resulted in those delays being charged to the State, the second sentence of K.S.A. 2014 Supp. 22-3402(g) leaves us with no grounds to reverse Dupree’s convictions and dismiss the case against him. “Under subsection (g), the legislature, which created the statutory right [to speedy trial], has decided to eliminate the remedy for its violation in certain circumstances.” Brownlee, 302 Kan. at 511. The question remains, however, whether the newly amended version of K.S.A. 22-3402 applies to this case. At Dupree’s February 6, 2012, arraignment, K.S .A. 22-3402 did not contain subsection (g). Subsection (g) first appeared in K.S.A. 2012 Supp. 22-3402, which became effective July 1, 2012. We recently held in Brownlee that “K.S.A. 2012 Supp. 22-3402(g) is a procedural provision, and it can be retroactively applied to [a defendant’s] case.” 302 Kan. at 509-10. In an attempt to distinguish his case from Brownlee, Dupree argued in a letter of additional authority that, unlike Brownlee, the time limit for his statutory speedy trial right had expired prior to the effective date of K.S.A. 2014 Supp. 22-3402(g). In Brownlee, the 90-day time limit expired on December 11, 2012 — after the July 1, 2012, date on which subsection (g) became effective. Here, the State’s 90 days expired on May 6, 2012 — before the July 1, 2012, effective date. As discussed below, that distinction does not matter because Dupree did not have a vested right to dismissal of charges as of May 6, 2012. Essentially, Dupree contends that tire expiration of the statutory speedy trial time limit provided him with a “vested” right to dismissal, meaning he was entitled to dismissal and subsection (g) and Brownlees interpretation of it could not retroactively apply to his case. Certainly, “[e]ven where the legislative intent is clear, courts must still consider whether retrospective application of legislation will affect vested or substantive rights.” (Emphasis added.) Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73 P.3d 753 (2003). A vested right is one “so fixed that it is not dependent on any future act, contingency or decision to make it more secure.” Board of Greenwood County Comm’rs. v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 (1980). Initially, we do not view Duprees speedy trial claim as fitting the definition of a vested right because a defendant ordinarily can only obtain relief under the speedy trial statute by (1) asserting the claim at the district court level and winning or (2) losing the claim at the district court level, appealing, and then persuading a future appellate court to reverse the district court s findings of fact. See State v. Crawford, 46 Kan. App. 2d 401, 408-09, 262 P.3d 1070 (2011) (recognizing that a speedy trial claim is waived if not raised before the district court). But see State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007) (court sua sponte raised speedy trial issue on appeal under the unusual circumstances of the case). In other words, dismissal of Duprees case depended on both his own future acts and other contingencies. Although Dupree s claim does not seem to fit the general definition of a vested right, and even though there are no similar exceptional circumstances in this case, we do not reject his argument out of hand in light of Adams. Also, further consideration seems warranted since we have recognized that the concept of vested rights is inherently difficult to define and apply. See Owen Lumber, 276 Kan. at 221 (citing Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 364-65, 892 P.2d 497 [1995], and discussing the difficulty in defining a “vested right” and applying the concept). Likewise, in Owen Lumber, we set out three factors to be considered in determining whether a statute deals with a vested right: “‘(1) the nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the rights were affected (e.g., were the rights partially or completely abolished by the legislation; was any substitute remedy provided), and (3) the nature and strength of the public interest furthered by the legislation.’ ” 276 Kan. at 222. Typically, the concept of vested rights has been discussed by this court in the context of civil cases, such as Owen Lumber, which in volved legislation that sought to retroactively eradicate a mechanics hen. 276 Kan. at 227-28. Although less frequently, at least some discussion of vested rights has appeared in criminal cases. See, e.g., State v. Hunt, 198 Kan. 222, 226-27, 424 P.2d 571 (1967); State v. Montgomery, 34 Kan. App. 2d 511, 515-16, 120 P.3d 1151 (2005); see also State v. McDaniels, 237 Kan. 767, 770, 703 P.2d 789 (1985) (“ ‘The right to an appeal is neidier a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.’”). One case from the Court of Appeals, In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 82 P.3d 861 (2004), presented an issue similar to Dupree’s, although it arose as a civil matter in the context of the Sexually Violent Predator Act (SVPA). In re Hunt involved individuals committed to the SVPA treatment program who argued they were entitled to discharge because their trials did not begin within 60 days of a probable cause hearing, as required by statute. Prior caselaw had labeled the 60-day statutory limit as jurisdictional; but in response to that caselaw, the legislature amended a statute to make clear that the 60-day period was not jurisdictional and that violation of the 60-day period should not result in discharge. Like here, the question becomes whether the amendment retroactively applied. The In re Hunt court applied the Owen Lumber factors to determine whether the legislature sought to retroactively remove an individuals vested right to discharge. 32 Kan. App. 2d at 362. On the first Owen Lumber factor — the nature of the rights at stake (procedural, substantive, or remedial), In re Hunt cited precedent from this court noting that the 60-day limit was similar to a statute of limitations or criminal speedy trial provision. 32 Kan. App. 2d at 363 (citing In re Care & Treatment of Searcy, 274 Kan. 130, 142, 49 P.3d 1 [2002] [“The mandatory language of K.S.A. 2001 Supp. 59-29a06 is analogous to the statutory right to speedy trial in criminal cases”]). Because a statute of limitations can be waived, lost, or extended by statute, it does not typically create a vested right. In re Hunt, 32 Kan. App. 2d at 363-64. But see State v. Noah, 246 Kan. 291, 294-95, 788 P.2d 257 (1990) (noting procedural nature of statute of limitations but once expired the limitations cutoff provides a vested and complete defense; holding legislature cannot amend a criminal statute to lengthen the period after it has expired). That is in contrast to a statute of repose, which is substantive because it “abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992); see also Owen Lumber, 276 Kan. at 223 (noting distinction between statute of limitations and statute of repose); In re Hunt, 32 Kan. App. 2d at 364 (same). The In re Hunt court found this first factor to be in equipoise. It noted that prior cases had treated the 60-day limit as jurisdictional, which was more like a substantive statute of repose. The court also recognized, however, that the 60-day limit could be waived and extended, much like the more procedural statute of limitations. 32 Kan. App. 2d at 364. Here, in contrast, the speedy trial statute weighs heavily on the procedural side. Indeed, rather than establishing a new substantive right, the speedy trial statute is merely a procedure that works to protect an existing substantive right: “The purpose of K.S.A. 22-3402 is to implement tire accused's constitutional right to a speedy trial. It is the State’s obligation to insure that an accused is provided a speedy trial.” State v. Green, 252 Kan. 548, 550, 847 P.2d 1208 (1993). The speedy trial statute is not a “substantive criminal law, which either defines a crime or involves the length or type of punishment.” State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). Rather, the speedy trial statute is procedural because it “provides or regulates the steps by which one who violates a criminal statute is punished.” State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980); see Easterwood v. State, 273 Kan. 361, 372, 44 P.3d 1209 (2002). The speedy trial statute puts an obligation on the State to bring a person to trial within 90 days; it regulates how the State goes about punishing a person for violating a criminal statute. Because the legislature enacted the speedy trial statute as a procedural mechanism to protect a substantive constitutional right, the statutory speedy trial time limit has long been subject to a number of exceptions: It can be extended as a result of a defendant’s delay, for a defendant’s incompetence, because of the unavailability of material evidence, because of a crowded court docket, or as a result of actions on appeal. See K.S.A. 22-3402(2), (5). Thus, we conclude the first factor weighs in favor of retroactive application of a nonvested right. See State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010) (procedural rule typically operates retroactively unless it prejudicially affects the substantive rights of a party), overruled in part on other grounds State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). As to the second Owen Lumber factor — how the right was affected— the In re Hunt court noted that a person facing commitment had a complete defense prior to the SVPA statute amendments. There, retroactively applying the statute completely abolished the defense without providing any substitute remedy. 32 Kan. App. 2d at 364; see also Noah, 246 Kan. at 294-95 (criminal statute of limitations, once expired, cannot be retroactively lengthened because it abolishes a complete defense). Here, for two reasons, the 2012 amendments to the speedy trial statute do not affect the right as severely as the In re Hunt statute. First, K.S.A. 2014 Supp. 22-3402(g) only removes the remedy for a statutory speedy trial violation and does so in only some circumstances, stating: “If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay . . . shall not be used as a ground for dismissing a case or for reversing a conviction.” Granted, removal of the remedy in those limited circumstances undercuts the statutory right, but “the general rule is that there are no vested rights in a particular remedy or method of procedure.” Owen Lumber, 276 Kan. at 222; see also McDaniels, 237 Kan. at 770 (right to appeal is neither vested nor constitutional). Second, the statute does not affect the statutory remedy in circumstances not covered by subsection (g) and preserves a remedy even under subsection (g) for a constitutional speedy trial violation, which we have said is the ultimate objective of the statute, or if there has been prosecutorial misconduct. K.S.A. 2014 Supp. 22-3402(g) (no dismissal or reversal of conviction on appeal “unless not considering such delay would result in a violation of the constitutional right to a speedy trial or there is prosecu- tonal misconduct related to such delay”). Unlike in In re Hunt, the statutory speedy trial defense is not completely abolished. The third Owen Lumber factor — the nature and strength of the public interest furthered by the legislation — weighed heavily in favor of retroactivity in In re Hunt. “The public has an enormous interest in seeing that persons who qualify as sexually violent predators are removed from society and treated in appropriate facilities.” Ultimately, the In re Hunt court found that the factors (particularly the public s interest) tipped the scale towards retroactive application, meaning the SVPA committees did not have a vested right to discharge. 32 Kan. App. 2d at 364-65. Here, too, we find the third factor weighs heavily in favor of finding a nonvested right. The legislature restricted the defendant s remedy only under limited circumstances: when an initial decision attributing a delay to the defendant is reversed and charged to the State. Whether this reversal occurs at the district court or appellate level, it likely happens due to some factual or legal error. Notwithstanding the speedy trial statute as it was worded before the amendments at issue, in other contexts, only rarely does such a judicial error result in the outright dismissal of a case. Rather, the Kansas Legislature has generally directed that “[a] t every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” K.S.A. 2014 Supp. 60-261; see K.S.A. 60-2105 (criminal conviction typically will be reversed only when an error “ha[s] prejudicially affected the substantial rights of the party complaining”); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (test under 60-261 is whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record”). Thus, the previous language of the speedy trial statute created an extraordinary remedy for judicial error somewhat at odds with general legislative policy. Subsection (g) merely limits the reach of that extraordinary remedy. Indeed, subsection (g) specifically preserves the remedy for a constitutional speedy trial violation, i.e., when substantial rights are prejudiced. Properly attributing the delay leads to a correct application of the speedy trial statute and does not affect any party’s substantial rights. See 2014 Supp. K.S.A. 60-261. The current statute still serves its fundamental purpose of expeditiously resolving criminal matters because the State still has an obligation to bring a defendant to trial within the time frames of statutory speedy trial. To be sure, if the district court correctly attributes delays and the State fails to bring a defendant to trial within the statutory limits, the district court must dismiss the case. The amendment furthers the social interest of seeing that those accused of crimes are both prosecuted and given a fair trial by limiting the extraordinary remedy of dismissal and maldng it inapplicable to judicial errors that would otherwise not affect substantial rights. See, e.g., K.S.A. 2014 Supp. 60-261. In other words, the third factor suggests Dupree did not have a vested right. Thus, the speedy trial statute does not create a vested right; K.S.A. 2014 Supp. 22-3402(g) is procedural and retroactively applies to Dupree’s case. Because we cannot grant Dupree any relief for his alleged statutory speedy trial claim, we do not decide whether the district court was wrong to attribute the delays against Dupree given that Dupree does not suggest his constitutional rights were violated or that the delays resulted from prosecuto-rial misconduct. See K.S.A. 2014 Supp. 22-3402(g); Brownlee, 302 Kan. at 511. Issue 2: The district court properly overruled Dupree’s Batson challenge. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution “applies to the States privilege to strike prospective jurors through peremptory challenges.” State v. Kettler, 299 Kan. 448, 461, 325 P.3d 1075 (2014). We use a three-step analysis in recognition of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when considering a challenge that the State exercised its peremptory strikes based on purposeful racial discrimination. See Kettler, 299 Kan. at 461; State v. Hood, 242 Kan. 115, 122-23, 744 P.2d 816 (1987). A distinct standard of review governs each step of the analysis: “First, the party challenging the strike must malee a prima facie showing that the other party exercised a peremptory challenge on the basis of race. Appellate courts utilize plenary or unlimited review over this step. [Citation omitted.] “Second, if a prima facie case is established, the burden shifts to the party exercising the strike to articulate a race-neutral reason for striking the prospective juror. This reason must be facially valid, but it does not need to be persuasive or plausible. The reason offered will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The opponent of the strike continues to bear the burden of persuasion. [Citation omitted.] “Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. This step hinges on credibility determinations. ‘[U]sually there is limited evidence on the issue, and the best evidence is often the demeanor of the party exercising the challenge. As such, it falls within the trial court’s province to decide, and that decision is reviewed under an abuse of discretion standard.’ [Citations omitted.]” Kettler, 299 Kan. at 461-62. A district court abuses its discretion when it makes a decision that is based on an error of law or fact; or when it makes a decision that is otherwise arbitrary, fanciful, or unreasonable. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015). The parties here do not contest that there was a prima facie showing that the State exercised a peremptory challenge on the basis of race. Rather, they focus on whether the district court (1) erred in finding that the State had articulated a race-neutral reason for striking two African Americans, D.W. and K.B., and (2) abused its discretion in concluding that Dupree had not established purposeful discrimination. Neither argument is persuasive. Turning first to D.W., the State claimed it struck her because her answers about felony murder were troubling. During voir dire, the prosecutor spoke about the concept of felony murder, explaining a person can be guilty of murder even without pulling die trigger. D.W. said she would have a problem finding someone guilty of murder if he or she were not the person directly responsible for the murder. But she said she understood that she would have to follow the law, and she conceded she would not break her oath as a juror. However, she also told the prosecutor to “[t]ake somebody else” because she could not “morally and conscientiously” convict someone for felony murder. The next day, the defense attempted to rehabilitate D.W. Again, D.W. expressed her disapproval of the concept of felony murder. But she did reiterate that she would follow the law, even if she did not want to, and would not break her oath. The State carries a relatively low burden to provide a race-neutral reason for a strike — the justification must be facially valid, but it need not necessarily be plausible or persuasive. Kettler, 299 Kan. at 462. Here, our review of the record reveals that the State’s reason was more than facially valid; it was plausible and persuasive. D.W. told the prosecutor she could not morally convict someone of felony murder. She later told the defense, reluctantly and somewhat to the contrary, that she would follow the law regarding felony murder even if she did not agree with it. Regardless of which of these competing principles D.W. would ultimately follow, we agree that D.W. s hesitation provided the State with a race-neutral reason to strike her from the jury panel. Moreover, the State also struck two other jurors, who were not African American, for the same reason. See Angelo, 287 Kan. at 274 (a court can consider whether State struck white potential jurors for the same reason as an African American). Thus, we conclude the district court did not abuse its discretion in finding no purposeful discrimination as to D.W. Turning to K.R., the prosecutor remembered him from a prior case — K.B.’s girlfriend had been a witness. Additionally, K.B. revealed he was a self-employed co-owner of a barbershop. When the defense asked if missing work for a week to serve on a jury would hurt him financially, K.B. replied, “It will be a challenge, but Ill get through it.” Later, the State used a peremptory strike on K.B., resulting in Dupree’s Batson challenge. The State responded with several race-neutral reasons. First, it noted drat after the conclusion of voir dire, K.B. h'ad contacted the court assistant and disclosed that he thought he graduated with Du-pree or at least had a class with him — something K.B. did not mention during voir dire. Second, the prosecutor remembered K.B. from the prior case because K.B. and his girlfriend were evasive as witnesses. Third, the prosecutor noted that as a self-employed person it would be hard, financially, for K.B. to serve on a jury trial that was likely to span a week. Concerned about K.B.’s post-voir dire disclosure that he might know Dupree, the court called K.B. into chambers. K.B. told the court that it had just occurred to him the previous night that he might know Dupree. He claimed his knowledge of Dupree would not make him biased. Before leaving chambers, K.B. added that he also knew two Wichita police officers. K.B. did not explain why he waited to disclose this information. Indeed, the panel of potential jurors during voir dire answered questions about both their knowledge of Dupree and their relationships with police officers. In response to the State’s reasons for its strike, Dupree said he did not remember K.B. from school, and the defense argued K.B. had been forthcoming. Nonetheless, the court found K.B. to be less than forthcoming in his answers to voir dire questions. The court also found the State’s reasons were race-neutral and that Du-pree had not shown purposeful discrimination. This left two African Americans on the panel- — the defense struck one, and the other was selected as the alternate juror. Although not determinative, the court can consider that other members of the same race as the defendant were not struck. Angelo, 287 Kan. at 274. On appeal, Dupree primarily argues that the district court abused its discretion as to K.B. by providing its own reason to strike K.B. rather than by accepting the State’s proffered race-neutral reasons. We are not persuaded by Dupree’s argument because it is premised on an unfair reading of the record. A district court resolves a Batson challenge by ultimately determining if the attorney exercising the peremptory strike did so for legitimate or discriminatory ends. Likewise, the decision rests heavily on an assessment of the credibility and demeanor of the challenging attorney. Appellate courts give significant deference to those sorts of credibility findings. Angelo, 287 Kan. at 272; see State v. Brooks, 297 Kan. 945, 951, 305 P.3d 634 (2013) (“appellate courtfs] will not determine the credibility of witnesses”). Here, one of the prosecutors race-neutral reasons was that he knew K.B. and believed him to be evasive and less than forthcoming. Notably, this court has affirmed peremptory strikes based on lesser reasons like body language and a prosecutor’s intuition. Angelo, 287 Kan. at 274-75. In this case, it so happened that the district court did not have to rely solely on the prosecutor’s subjective beliefs about K.B.’s nature. The district court was able to judge whether K.B. had been forthcoming during voir dire when he came forward with directly relevant information after voir dire had ended. Contrary to Du-prees claim, the district court did not generate its own reason when it expressed its concern over K.B. s inexplicably delayed disclosure of information. More accurately, the court provided a bit of explanation why, under the circumstances, it found one of the State’s race-neutral reasons appropriate. Furthermore, die case Dupree cites, Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004), to support his argument is distinguishable. There, the defense raised a Batson challenge but, before the defense could finish explaining the reasons for its challenge, the district court interrupted with speculation about why the prosecutor exercised peremptory strikes. The court never gave the prosecutor a chance to explain its strikes, which clearly contravened the steps of the Batson analysis. See also State v. Knighten, 51 Kan. App. 2d 417, 424, 427, 347 P.3d 1200 (2015) (district court told parties it was “ ‘not asking for a race, gender or any kind of neutral explanation at this point,’ ” resolving the matter with “its own notes and experiences . . . without first requiring the State to produce race-neutral reasons”). Indeed, the crux of a Batson analysis is whether the State’s actual reason for a strike is discriminatory. So it is error to fail to provide the State with an opportunity to explain its reason even if the court can come up with a good reason why the State might have justified the strike. Paulino, 371 F.3d at 1089-90. This simply did not happen here. Here, the record is clear that the district court 'found a prima facie case, asked for and considered the State’s reasons for tire strikes, and in light of those reasons ultimately concluded that Du-pree failed to prove purposeful discrimination. The district court did not abuse its discretion in overruling Dupree’s Batson challenges. Issue 3: Dupree failed to preserve an issue regarding the volun-tariness of his statements during a postarrest custodial interview. Next, Dupree argues the district court should have suppressed a statement he made during a custodial interview after Dupree was first arrested. He specifically focuses on his admission to making the following statement to Stuart’s sister over the phone: “Just like that slob nigga about got done, you and your boyfriend going to get done.” After a pretrial hearing, the district court concluded this admission was admissible. On appeal, Dupree argues his admission was involuntary, and thus inadmissible, for two reasons. First, he claims the interviewing officer deceived him into admitting that he made the above statement to Stuart’s sister. Second, he argues his admission was involuntary under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), and that the State failed to prove otherwise. We conclude Dupree failed to preserve these arguments for our review because he did not lodge a timely objection to the evidence regarding his admission before the district court. Generally, to preserve an evidentiary issue for appellate review, the complaining party must have lodged a timely and specific objection at trial. K.S.A. 60-404; State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Even when the district court rules on the admissibility of evidence pretrial, a party must still make an objection at trial before the admission of the evidence because the unfolding of a case may require a reevaluation of the reasons for the initial ruling. State v. Richard, 300 Kan. 715, 720-21, 333 P.3d 179 (2014). Here, Dupree did not object at any point during the testimony of the interviewing detective who told tire jury that Dupree admitted to having made the phone call (1) because he was angry and (2) with the understanding that his statement could be taken as a threat. Instead, in a recess following the testimony, Dupree’s counsel asserted he had “two continuing ongoing objections to these statements . . . based on the previous motions we argued.” Now, on appeal, Dupree claims the district court granted him a continuing objection during the pretrial ruling on admissibility. However, the record reflects that Dupree’s counsel never requested a continuing objection during the pretrial hearing. The colloquy following the ruling on voluntariness proceeded as follows: “[DEFENSE COUNSEL]: And I presume that the Court’s going to give me leave to object; at the time when these statements are coming out and state something to the matter of for the reasons previously argued or something like that? “THE COURT: I will allow you to make your record to — to the extent that we don’t go back and start arguing what we’ve already argued here this morning. “[DEFENSE COUNSEL]: Sure. Understood.” (Emphasis added.) Despite defense counsels request to make a contemporaneous record during trial when the statements were admitted into evidence, counsel did not contemporaneously object during the lengthy direct examination in which the statements came into evidence. He objected only during a recess after the jury already heard the evidence. The State is correct that Dupree never lodged a timely objection, which leaves his argument about voluntariness unpreserved for appeal. See Richard, 300 Kan. at 720-21. Issue 4: The district court did not abuse its discretion by admitting photographs. Dupree next argues the trial court erred in admitting certain photographic exhibits on the basis that the photographs were gruesome, duplicative, and meant to ignite the juiys sympathies. Specifically, Dupree challenges the admission of three groups of photos on appeal: emergency room photos, autopsy photos, and crime scene photos. We find no error in the admission of the photographic evidence. At the outset, Dupree concedes that photographs of the extent, nature, and number of wounds are usually relevant in murder trials. State v. Hickles, 261 Kan. 74, 85, 929 P.2d 141 (1996) (citing State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 [1978]). Nevertheless, he argues the district court abused its discretion in admitting the photos in this case. We find no merit in his various arguments. Dupree first challenges the relevancy of photographs of Phillips’ emergency room treatment. The test for relevancy is whether the evidence has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b); State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). This definition requires the evidence to be material and probative. Evidence is material when the fact it supports is in dispute or in issue in the case. Review for materiality is de novo. 299 Kan. at 348. Evidence is probative if it has any tendency to prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). Appellate courts review the district courts assessment of the evidence's probative value under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014). As to materiality, photographs showing tire jury tire manner of death are material in a murder trial. See State v. Backus, 295 Kan. 1003, 1013, 287 P.3d 894 (2012). Here, the photographs are probative of this material fact in that they show the manner of Phillips’ death — a gunshot to his head, and the unfortunately unsuccessful attempt to save his life. Moreover, it was Dupree who, through cross-examination, suggested that not enough was done to save Phillips’ life. When a defendant discusses an area of evidence that would otherwise be forbidden the State can respond by presenting evidence in that formerly forbidden area. See State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013). So even if the emergency room photographs were for some reason initially irrelevant, the State here properly presented the photographs to the jury as a rebuttal to Duprees suggestion that no one tried to save Phillips. Based on our de novo review of the record, we hold that the emergency room photographs were material and that the district court did not abuse its discretion in weighing the probative nature of the photographs. See Bowen, 299 Kan. at 348. Dupree next challenges the autopsy photographs. At its core, Dupree s argument attacks the relevance and the cumulative nature of the photographs. As to relevance, “photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death.” State v. Verge, 272 Kan. 501, 515, 34 P.3d 449 (2001). In Duprees trial, the coroner testified about the gunshot wound to Phillips’ head and concluded that it was the cause of his death. The district court correctly determined tire photographs were relevant. In arguing about the cumulative nature of the autopsy photographs, Dupree suggests one photograph rather than four was sufficient, noting that the coroner did not even need to reference some of the photographs. As we explained in Hickles, 261 Kan. at 88: “Cumulative evidence is evidence of the same kind to the same point, and whether it is cumulative is to be determined from its land and character, rather than its effect.” A district court may in the exercise of discretion refuse to admit cumulative evidence. 261 Kan. at 88; see also State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (on appeal, abuse of discretion standard applies to cumulative error complaint). Here, each of the photographs corroborated the coroners testimony by showing Phillips’ body at different angles and distances. As we said in State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012), the photographs depicted the “injuries in a way that [the coroners] mere words could not. In this way, they had additional relevance. In addition, they were not repetitious of each other, because each was taken from a different angle.” Finally, Dupree challenges the crime scene photos and again argues the photos were cumulative. However, the detective testified that she tried to get a panoramic view of the kitchen where Phillips was shot “the hard way” with single camera shots. Further, the photos served to corroborate Stuarts and the detectives’ testimony about the circumstances of Phillips’ murder. Verge, 272 Kan. at 515. Rarely has this court found an abuse of discretion in the admission of photographic evidence in a murder trial; here too, we conclude the district court did not abuse its discretion in admitting the photos. Issue 5: The cumulative effect of errors in Dupree’s case does not require reversal of his convictions. Dupree argues this court must reverse his convictions because multiple trial errors, considered together, resulted in an unfair trial. Cumulative trial errors can require the reversal of a conviction if the totality of the circumstances substantially prejudiced the defendant and resulted in an unfair trial. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012), overruled in part on other grounds State v. King, 297 Kan. 955, 305 P.3d 641 (2013). If there is no error or only a single error, however, there is no error to accumulate and no basis to reverse a conviction. See State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 (2012). We do not find any errors in Dupree’s case, however. At most, we assume a possible violation of the speedy trial statute, although we conclude Dupree does not have a right to a remedy. Because there is only one assumed error, there are no errors to accumulate. Affirmed.	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Denied. 51 Kan. App. 2d 971	[ 21, 107, -19, 60, -116, -64, 3, 31, 1, -71, 117, 115, -17, -46, 4, 121, -18, 47, 49, 120, -51, -78, 127, -56, 82, 91, -38, -35, -8, 111, -11, -76, 76, -16, -86, -43, -58, -54, -115, 88, -116, 4, 25, 77, 17, -126, 52, -25, 122, 7, 49, -108, -13, 44, 26, -63, -63, 108, -53, -67, -23, -39, -71, 23, 124, 84, -30, 20, -48, 69, 64, 126, -112, -112, 32, -24, 115, 38, -122, 116, 67, -103, -123, -19, 98, 34, 40, -19, -88, -82, 30, 30, -115, -122, -45, 9, 75, 9, -106, -67, 113, 22, 11, -6, 107, -124, 71, 108, -118, -17, -8, -77, -117, 56, 12, 17, -1, -108, -112, 49, -33, -16, 78, -41, 49, -101, 118, -76 ]

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