IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 85,228
STATE OF KANSAS,
Appellee,
v.
CHARLES JONES,
Appellant.
SYLLABUS BY THE COURT
1. The provisions of K.S.A. 38-1636(c)(1), requiring that notice be given to a juvenile's parents in a proceeding requesting that the juvenile be prosecuted as an adult, are discussed and applied.
2. The standard for reviewing the decision to authorize prosecution of a juvenile as an adult is whether the decision is supported by substantial evidence. Substantial evidence is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.
3. K.S.A. 38-1636(e) does not require the trial court to mention the factors used in certifying a juvenile to be tried as an adult when rendering the decision. This court's standard for reviewing the certification applies to the evidence rather than to the analysis of the decision maker.
4. The presumption in K.S.A. 38-1636(a)(2) does not violate the procedural due process rights of a juvenile in a hearing to determine whether he or she is to be tried as an adult.
5. Procedural safeguards provided in the juvenile justice system, and specifically those safeguards in K.S.A. 38-1636, are sufficient to support a determination that certification proceedings of juveniles fall outside the dictates of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
6. The juvenile tried as an adult will be subjected to the statutory maximum sentence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt.
7. The appellate court reviews the trial court's decision to admit or exclude hearsay evidence under an abuse of discretion standard.
8. The appellate court applies the federal constitutional error rule when there is a violation of a constitutional right. Under the federal constitutional error rule, the appellate court must declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
9. The Confrontation Clause of the Sixth Amendment to the United States Constitution grants criminal defendants the right to cross-examination. Exposing a witness' motivation for testifying is a proper function of cross-examination.
10. The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, requiring reversal.
11. As a general rule, we would not consider a defendant's assertion of ineffective assistance of counsel before the trial court has had an opportunity to assess the performance of counsel. However, such assessment by the trial court is not necessary where the record on appeal is sufficiently complete for this court to decide the issue in a direct appeal.
Appeal from Wyandotte district court, MICHAEL GROSKO and JOHN J. MCNALLY, judges. Opinion filed May 31, 2002. Affirmed.
Randall L. Hodgkinson, deputy appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, were on the briefs for appellant.
Charles Jones, appellant, was on a separate brief pro se.
Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Charles Jones, age 16, was certified to stand trial as an adult on the charge of first-degree murder for the July 21, 1998, shooting death of Robert Trzok. The victim was shot three times in the back of the head, causing his immediate death. On appeal, Jones alleged he was denied due process based upon lack of notice to his parents, in violation of K.S.A. 38-1636(a), and improper procedures of the court in certifying him to stand trial as an adult. He further alleged that the presumption under K.S.A. 38-1636(a)(2) that he is an adult violated his due process rights under the United States Constitution. Finally he contends that other trial errors, including violations of his Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), require reversal of his conviction. Finding no reversible error, we affirm.
Facts
The State's theory at trial was that Jones had been robbed and injured by Trzok prior to the shooting. After identifying Trzok's parked car, Jones and his friend LaKevis Tensley entered the house where Trzok and four others, Jeffrey Fields, Ronald Haskins, S.W., and E.G., were drinking and consuming drugs. Jones and Tensley beat Trzok and drug him out of the house and onto the front porch where Jones shot Trzok three times in the back of the head.
Motive Evidence
Tracy Thomas, an emergency room nurse, testified that days prior to the shooting death of Trzok, she treated a male, who identified himself as Santos Metcalf, for a serious mouth laceration. The person purporting to be Santos Metcalf explained he was hurt by riding his bicycle into a clothes line. A doctor sutured the person's mouth and sent him home. Sandra Metcalf, Jones' cousin, testified that Santos Metcalf is her brother and that he had never had a laceration to his mouth. She testified it actually was Jones who had suffered the injury to his mouth.
LaKevis Tensley
Tensley testified regarding the events of July 21, 1998. Tensley was driving when he saw Jones walking and picked up Jones. They continued to ride around getting high by smoking marijuana. Tensley observed injuries to Jones mouth, which Tensley believed occurred while someone tried to rob Jones. Jones spotted the car belonging to the man who robbed him. Tensley testified he believed Jones merely wanted to beat the guy who had robbed him. Tensley and Jones carried guns as they walked to the house.
Jones entered the house first. By the time Tensley entered the house, Jones was already talking to Trzok. Both Tensley and Jones were wearing bandannas to conceal their identity. Jones asked Trzok to come outside and when Trzok refused, Tensley struck Trzok in the face and kicked Trzok before dragging Trzok out of the house. According to Tensley, when he reached the outside of the house he began running to his car. It was not until Tensley was running to his car that he heard shots. Tensley and Jones left in Tensley's car. Tensley dropped Jones off at his grandmother's house.
Jeffrey Fields
Fields testified that he had known Trzok for a few months before Trzok's murder. On the day of the murder, Trzok drove his own car to Fields' house, arriving at 9 a.m. Fields and Trzok began smoking crack cocaine at that time. E.G., S.W., and Haskins all arrived later. Those at the house drank alcohol and consumed crack cocaine and marijuana. According to Fields, Trzok purchased most of the crack, spending between $700 to $1,000.
Late in the evening, Haskins unlocked the front door and permitted two people to enter. Fields testified Jones entered first, and then a second person entered sometime thereafter. Fields testified he did not recognize Jones at first as one of the intruders, but said he had recognized him as someone whom he had seen previously in the neighborhood. Fields said Jones and Tensley wore bandannas over their faces. Trzok did not want to go outside with Jones and Tensley. Fields told Trzok to get up and go outside to take care of his business with Jones and Tensley because Fields did not "like confusion inside [his] home." Fields confirmed there was a struggle to get Trzok outside. Fields noticed Jones had a gun which looked like a revolver. When Jones and Tensley dragged Trzok out of the house, Fields shut and locked the door. Fields observed Jones bend down to shoot Trzok.
Later, during an interview at the police department, Fields identified Jones from a lineup as the man who shot Trzok. Fields denied that he, Haskins, S.W., or E.G. had anything to do with Trzok's murder.
Ronald J. Haskins, Sr.
Haskins, who is Fields' uncle, arrived at Fields' house around noon the day of Trzok's murder. Haskins confirmed that he drank alcohol and got high while at Fields' house. According to Haskins, he heard a knock, saw Jones outside, and yelled out to Fields to announce Jones' presence. Fields authorized Haskins to unlock the door for Jones. Haskins identified Jones as the person standing on the porch. Although Jones put on a bandanna when he entered the house, Jones was not wearing the bandanna when Haskins saw him standing outside the house.
Haskins testified that Jones entered the house and told Trzok to leave the house. Haskins confirmed that a second man then entered the house and both Tensley and Jones beat Trzok and drug him outside. After Jones and Tensley dragged Trzok outside, Haskins heard gunshots. Haskins also picked Jones out of a photo lineup.
S.W. and E.G.
S.W.'s testimony was consistent with Fields and Haskins regarding the events on the evening of the murder, but S.W. could not identify either of the intruders. E.G. also testified at trial. E.G.'s testimony confirmed the events leading up Trzok's murder. E.G. identified Jones as the first of the two intruders.
Investigation of Scene
Dr. Erik Mitchell, a forensic pathologist, performed the autopsy identifying three gunshot wounds to the back of Trzok's head. Trzok had cocaine, but no alcohol, in his blood at the time of his death. Dr. Mitchell also identified numerous other injuries to Trzok's shoulder, left arm, back of right hand, back of right elbow, and left lower back. The cause of death was the gunshots wounds to the head.
Don Garrett, a police officer, testified that he recovered three bullets from the scene: two were under Trzok's head and another lodged in the house next door. Dr. Mitchell removed a fourth bullet from Trzok's body.
William Newhouse, the chief criminalist with the firearms and toolmark section with the police department, analyzed the bullets from the scene. Newhouse testified the bullets were fired from the same gun, which had to be a .38/.357 caliber weapon.
Sophia Barajas, a police officer, testified she was immediately dispatched to the scene after shots were reported. Officer Barajas testified the red car parked in front of Fields' house belonged to Trzok.
Jones' Flight to Iowa
Jones' cousin Metcalf testified that Jones stayed with her on Wednesday night, which was the night after the murder. On Thursday evening, Metcalf and her boyfriend drove Jones to Des Moines, arriving early Friday morning. Metcalf and her boyfriend dropped Jones off at his mother's apartment.
Greg Trimble, an officer with the Des Moines police department, testified that he was called on Friday to help the Federal Bureau of Investigation in finding Jones. Officer Trimble arrested Jones. According to Officer Trimble, Jones continually questioned Officer Trimble about the purpose for the arrest. Upon learning of the allegations, Jones denied being responsible for any murder; however, his denial assumed that the murder was committed with a gun, a fact that had not been revealed to Jones.
Jan Bjurstrom, an officer with the Des Moines police department, testified that she noticed blood on Jones' shoe. Jones explained it was blood from his mouth injury. Officer Bjurstrom seized the shoes and gave them to Kansas detectives who had come to Des Moines to interview Jones.
DNA Evidence
Linda Netzel, a senior criminalist with the Kansas City, Missouri police department, testified about the DNA analysis of blood extracted from Jones' shoe. Netzel testified the blood on Jones' shoe matched Trzok's blood. Further, Netzel excluded Jones' own blood from possibly matching the stain. Netzel testified there was a 1 in 32 million chance of finding another person with DNA also matching the stain. Netzel also testified about a phenomenon in DNA analysis known as spillover, which could potentially render the test invalid. However, Netzel testified that spillover was not possible in her analysis.
Jones' Case in Chief
Dr. Dean Stetler, a professor at the University of Kansas, testified regarding the DNA analysis and how it is not impervious to human error. Dr. Stetler identified a particular type of error, cross-contamination:
"As I described, you have the tubes there. You're transferring volume from this tube and then next to it you are transferring a volume from the next tube. If you forget to eject the pipette tip or get the numbers mixed up, then there is a possibility you have cross-contaminated or that you've mixed them up. And that happens in the preparation or the setup of the restriction gel and during the preparation and performance of the restriction enzyme digestion."
According to Dr. Stetler, the process used by the State risked such cross-contamination.
Dr. Stetler also testified about spillover:
"This is the final step in the analysis and there is always a possibility of a spillover. That is, one tries to put all the DNA in this little well. Because of the nature of the procedure, it's possible that some of that DNA will end up in an adjacent well.
. . . .
"Q. What's the effect on your results potentially even if that's a little-bitty spillover?
"A. Well, if you have a known sample with a lot of DNA in it right next to an evidence sample with no or very little DNA in it, then it appears that this evidence sample had DNA from this individual."
Spillover invalidates the results of DNA testing. Dr. Stetler testified spillover "might have occurred" in the DNA analysis of the State.
On cross-examination, the prosecutor pressed Dr. Stetler on the issue of whether spillover occurred:
"Q. The answer would be, Dr. Stetler, then that you cannot testify beyond a reasonable degree of scientific certainty that spillover has occurred in this case?
. . . .
"A. I can't be certain one way or the other."
(1) Notice
Jones argues the trial court, in violation of the Due Process Clause of the United States Constitution, authorized the State to prosecute Jones as an adult without proper notice to his parents. K.S.A. 38-1636 governs the procedure for authorizing the prosecution of a juvenile under the adult criminal statutes. To begin the procedure, the State must file a motion with the court. K.S.A. 38-1636(a). K.S.A. 38-1636(c)(1) provides, in relevant part: "The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent."
The State filed a motion to authorize the prosecution of Jones, age 16, as an adult. At the hearing on the State's motion, Jones' attorney objected to the authorization to prosecute as an adult because Jones' parents had not received notification of the hearing. Jones' attorney admitted that he had been given notice. Jones' attorney asked the court to wait until the parents could be given notice.
The State argued in response that it neither knew who Jones' parents were nor how to find them. In ruling on the State's motion to prosecute Jones as an adult, the court relied on the State's representation: "The information I have from the State is they were not aware of the addresses of the parents and did not know how to contact them." The court declined Jones' request to postpone ruling on the motion, and authorized the State to prosecute Jones as an adult. At the close of the hearing the court noted:
"Further additions to the record . . . . After the hearing, I spoke with both Ms. Meyer, of the District Attorney's Office, and Mr. DeGraff, court- appointed counsel; and Mr. DeGraff told me that at the time he made his argument regarding notification of the parents, he was not aware that the mother of Mr. Jones was, in fact, in the courtroom, that she apparently came a little bit later. There were numerous relatives in the courtroom whom he spoke to ahead of time. Therefore, as I stated earlier, clearly a parent did receive some type of notice of this hearing, and I believe the statute was complied with."
The State knew Jones' mother lived in Des Moines, as Jerry Fiscus, a retired detective with the police department, drove to Des Moines to interview Jones. Another detective telephoned Jones' mother to get permission to interview Jones as required by Iowa law. During Officer Bjurstrom's testimony, she said she went to "315 S. E. McKinley, Apartment 42," Jones' mother's apartment, to arrest Jones. Thus, the State knew how to contact Jones' mother. Its statement to the trial court about lack of knowledge as to the whereabouts of Jones' mother was untrue. The prosecutor failed to check with the arresting office. In this appeal, the State concedes this point.
The State emphasizes the language "if possible" in K.S.A. 38-1636(c)(1) to argue the statutory mandate is not as emphatic as it might be. The State also implies with a quotation from State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985), that the interests at stake in a proceeding to authorize prosecution as an adult are not sufficiently critical that reversal is necessary if the parents do not have notice.
Jones cites In re Gault, 387 U.S. 1, 4, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), which reversed the Arizona Supreme Court's decision to affirm the dismissal of a habeas corpus action. Gault, a 15 year old, was adjudicated a juvenile delinquent and committed to a juvenile facility. The United States Supreme Court held that Gault was, in part, entitled to habeas corpus relief because the State of Arizona had failed to provide adequate notice of the charges against him. 387 U.S. at 31-34. The Gault court described the type of notice required:
"Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must 'set forth the alleged misconduct with particularity.' It is obvious, as we have discussed above, that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The 'initial hearing' in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described--that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. Nor, in the circumstances of this case, can it reasonably be said that the requirement of notice was waived." (Emphasis added.) 387 U.S. at 33-34.
This court discussed a due process argument based on Gault in Muhammad. Muhammad was not able to attend the hearing on the State's motion to prosecute her as an adult because the State arrested her, mistaking Muhammad for her sister. Muhammad was represented by an attorney at the hearing. The court in Muhammad framed the issue as to whether the defendant had been "denied due process of law when the court waived its juvenile jurisdiction over her, pursuant to K.S.A. 1984 Supp. 38- 1636(d), without her being present at the hearing." 237 Kan. at 851. This court discussed Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966), and Gault. After its discussion of the above cases, this court emphasized the civil nature of juvenile proceedings. 237 Kan. at 854. In its concluding paragraphs, this court rephrased the issue, emphasizing the fact that Muhammad was represented by counsel: "The critical question here is whether the court may conduct a hearing without a voluntary waiver of appearance by the juvenile if counsel is present and allowed to participate on the juvenile's behalf." (Emphasis added.) 237 Kan. at 856. The Muhammad court stressed that while the hearing
"involves a substantial right subject to the requirements of due process, it is not adjudicatory in nature in that it does not result in any determination of guilt or innocence or in confinement or punishment. It is merely a preliminary process to determine the type of adjudicatory procedure to be carried out at a later date. The only decision is dispositional in that the court determines whether further proceedings will be under the juvenile offenders code or under the Kansas criminal code. As indicated earlier the statutes require that the juvenile must be represented and that the attorney be present for the hearing. Under such circumstances, the defendant was not denied due process of law.
"We hold that when the provisions of K.S.A. 1984 Supp. 38-1636 requiring a hearing, notice and the right of the juvenile to be present and participate in the hearing are met, along with the statutory requirement of counsel, the 'essentials of due process and fair treatment' required by Kent are satisfied even though the juvenile fails to appear." 237 Kan. at 856.
The issue in this case is whether the defendant has been denied due process of law where the State has failed to comply with the provisions of K.S.A. 38-1636(c):
"(c)(1) Upon receiving a motion as established in subsection (a) [petition to prosecute as an adult], the court shall set a time and place for hearing on the motion. The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent. The motion shall be heard and determined prior to any further proceedings on the complaint. (Emphasis added).
While statutory notice to the parents was not given in accordance with K.S.A. 38- 1636(c)(1), and at least to this extent the provisions of K.S.A. 38-1636(c) were violated, we do not believe that the violation amounted to a denial of due process to the respondent. Jones was represented by counsel at both the detention hearing and at the hearing on the motion to prosecute him as an adult. Unlike In re Gault relied upon by Jones, the notice in this case did not deal with a failure to provide Jones, Jones' counsel, and Jones' parents with notice of the charges. Lack of notice of the charges strikes at the heart of due process for without such notice, preparation is impossible and the resulting hearing is meaningless. Jones' counsel agreed that both he and the respondent received adequate advance notice of the hearing and the purpose of the hearing. Jones was represented by counsel throughout the proceedings. Moreover, as this court noted in Muhammad, the hearing was not adjudicatory but dispositional. While a substantial right was involved, the hearing did not result in the determination of guilt or confinement. 237 Kan. at 856.
The trial court also noted in concluding the hearing that the notice provisions had been complied with based upon the mother's presence at the hearing. She received actual notice which served to satisfy the dictates of K.S.A. 38-1636(c)(1). Other than the notice provisions objection, Jones presented no evidence to rebut the presumption in K.S.A. 38- 1636(a)(2). There was no suggestion the failure to serve Jones' mother with notice caused Jones any prejudice, i.e., Jones does not argue his mother could have provided some evidence to rebut the presumption in K.S.A. 38-1636(a)(2) had she been served with notice.
Muhammad recognized that K.S.A. 38-1636 was based on the due process principles discussed in Kent. See Muhammad, 237 Kan. at 853 ("Our statute, based largely on Kent, provides numerous safeguards in the procedure for determination of whether a juvenile is to be prosecuted as an adult."). As the discussion of Gault in Muhammad shows, Jones was afforded the necessary protections of due process when he was present and represented by counsel at all critical stages of the proceedings. 237 Kan. at 853-54. Thus, the violation of K.S.A. 38-1636(c)(1) does not rise to the level of a violation of due process. To reverse the present case would not further the purpose of the statute as revealed in Muhammad, i.e., guaranteeing juvenile defendants due process.
(2) Trial court's consideration of K.S.A. 38-1636(c) factors.
Jones argues that the trial court failed to consider all the factors in K.S.A. 38-1636(e) when authorizing the State to prosecute him as an adult. K.S.A. 38-1636(e) provides:
"In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue. Subject to the provisions of K.S.A. 38-1653, and amendments thereto, written reports and other materials relating to the respondent's mental, physical, educational and social history may be considered by the court."
This court's standard of review is set forth in State v. Medrano, 271 Kan. 504, 506-07, 23 P.3d 836 (2001):
"The standard for reviewing the decision to authorize prosecution as an adult is whether the decision is supported by substantial evidence. [Citations omitted.] Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can be reasonably be resolved. [Citation omitted.] It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. [Citation omitted.]"
The State disputes that K.S.A. 38-1636(e) requires the court to mention all the factors for consideration. Further, the State argues there was sufficient evidence to support the court's decision.
At the hearing on the State's motion to prosecute Jones as an adult, the court first required that Jones either admit or deny (1) that Jones was 16 years old at the time of the crime; and (2) that the State was charging Jones with an off-grid person felony. According to K.S.A. 38-1636(a)(2)(A), the above facts trigger a presumption that the defendant should be prosecuted as an adult with the burden of proof to rebut the presumption placed on the juvenile. Jones' attorney admitted to both of the facts. The court then announced the burden shifted to Jones to rebut the presumption. Jones presented no evidence in rebuttal and limited his response to the issue of notice discussed above.
In Medrano, we said:
"K.S.A. 38-1636(e) does not require the magistrate to mention the factors used in certifying a juvenile to be tried as an adult when rendering the decision. The court's standard for certifying applies to the evidence rather than to the analysis of the decision maker. [Citation omitted.]
. . . .
"K.S.A. 38-1636(e) sets forth the factors to be considered when determining whether to treat a defendant as an adult or a juvenile. These factors must be considered by the court even where there is a presumption that the defendant is an adult under 38-1636(a)(2)." 271 Kan. at 507.
See also State v. Avalos, 266 Kan. 517, 521, 974 P.2d 97 (1999) (K.S.A. 38-1636[e] does not require the magistrate to mention the factors.) But consideration of the eight factors is required when the K.S.A. 38-1636(a)(2) presumption applies. Medrano., 271 Kan at 507. Once the presumption applies the burden to rebutt rests on the defendant: "The presumption can be overcome." State v. Coleman, 271 Kan. 733, ___, 26