State v. Bobian: Kansas draws a bright line on “we know” prosecutorial rhetoric and reaffirms the low threshold for voluntary intoxication instructions

Introduction

In State v. Bobian (Kansas Supreme Court, Aug. 22, 2025), the court affirmed Kamahl Matthew Bobian’s convictions for premeditated first-degree murder, aggravated burglary, and violation of a protective order, but remanded for the district court to pronounce sentence on the murder count after finding no sentence had actually been orally pronounced. Along the way, the court addressed multiple trial issues central to homicide litigation: the availability of a voluntary intoxication instruction, when reckless lesser-included homicide instructions are factually appropriate, and the limits of prosecutorial rhetoric in closing arguments—most notably clarifying the impropriety of “we know” statements about contested facts while distinguishing “you know” phrasing.

The case arose from the September 25, 2021 killing of S.B., Bobian’s wife, shortly after a protection from abuse order barred his contact with her. The issues on appeal were:

Whether the district court erred by refusing a voluntary intoxication instruction.
Whether the court erred by refusing requested reckless lesser-included homicide instructions and by omitting an unrequested involuntary manslaughter instruction under K.S.A. 21-5405(a)(2).
Whether the prosecutor committed error in closing argument, including the use of “we know” statements and comments on the order of deliberating greater and lesser offenses.
Whether cumulative error warranted reversal.
Whether the sentencing was illegal because the court never pronounced the murder sentence.

Summary of the Opinion

Voluntary intoxication instruction: The court held the instruction was legally and factually appropriate and the district court erred by refusing it. The defendant offered evidence of both alcohol consumption and claimed impairment via repeated “blackout” statements. The court emphasized trial judges must not weigh credibility at the “factual appropriateness” stage. Harmlessness was assessed within cumulative error.
Reckless lesser-included instructions: The court assumed, without deciding, that instructions on reckless second-degree murder and reckless involuntary manslaughter were factually appropriate, reserving harmlessness for cumulative error analysis.
Unrequested involuntary manslaughter (K.S.A. 21-5405[a][2]): Not preserved. A general request for “all lessers” is insufficient under K.S.A. 22-3414(3). The omission did not constitute clear error; thus it played no role in cumulative error analysis.
Prosecutorial error: One error occurred: stating “We know Bobian intentionally killed [S.B.].” The court drew a clear line: “we know” phrasing used to draw inferences on contested issues exceeds prosecutorial latitude because it implies the prosecutor’s personal opinion. By contrast, “you know” formulations keep the focus on the jury and are not inherently improper. The autopsy-based “we know she had seven stab wounds” was permissible as it referenced uncontroverted evidence.
Order of considering greater/lesser offenses: No error. The prosecutor correctly argued jurors start with the greater offense (premeditated murder) and proceed to lessers only if they do not unanimously agree on the greater. This comports with the court’s approved instructions and does not conflict with K.S.A. 21-5108(b).
Cumulative error: Considering the single prosecutorial error and the assumed/identified instructional errors together, the State proved beyond a reasonable doubt that the cumulative effect did not affect the outcome, given overwhelming evidence of premeditation and lack of actual impairment.
Sentencing: The district court never actually pronounced the “hard 50” sentence for the murder conviction. Because context cannot supply what was never pronounced, the case was remanded to pronounce sentence.

Analysis

Precedents Cited and How They Shaped the Decision

The court’s holdings are anchored in a well-developed Kansas framework on jury instructions, prosecutorial latitude, harmless error, and sentencing pronouncements:

Instructional framework and harmless error: The four-step inquiry from State v. Plummer, 295 Kan. 156 (2012), guided review: preservation, legal appropriateness, factual appropriateness, and harmlessness (ordinarily under State v. Ward, 292 Kan. 541 [2011]).
Voluntary intoxication: Statutes K.S.A. 21-5108(c) (entitlement to defense instructions supported by competent evidence) and 21-5205(b) (voluntary intoxication may negate specific intent) are applied with State v. Craig, 311 Kan. 456 (2020), and State v. Green, 311 Kan. 960 (2020), holding voluntary intoxication can negate specific intent (e.g., premeditation) but not general intent. Factual appropriateness requires proof of consumption and consequent impairment (Green, quoting State v. Davis, 306 Kan. 400 [2017]). The court reiterated that judges may not weigh impairment evidence at this stage (State v. Moore, 287 Kan. 121 [2008]; Green; cf. State v. Gadelkarim, 247 Kan. 505 [1990]; State v. Arreola, 64 Kan. App. 2d 562 [rev. denied 2024]). Cases declining instructions where there was consumption without impairment (State v. Gallegos, 313 Kan. 262 [2021]; State v. Reed, 302 Kan. 390 [2015]; State v. Hernandez, 292 Kan. 598 [2011]; State v. Brown, 258 Kan. 374 [1995]) are distinguished from this record’s repeated “blackout” assertions; compare State v. Moore, 311 Kan. 1019 (2020), where two unexplained blackout comments were insufficient.
Reckless lesser-included homicides: The court applied State v. McCullough, 293 Kan. 970 (2012), and State v. James, 309 Kan. 1280 (2019), to explain that reckless homicide instructions fit where the act causing death is intentional, but the killing is unintentional and reckless. Reckless second-degree murder requires “extreme indifference” (K.S.A. 21-5403[a][2]); K.S.A. 21-5202(j) defines recklessness. Where the only inference is an intent to kill, reckless lessers are inappropriate (State v. Carter, 305 Kan. 139 [2016]). The court assumed factual appropriateness here to analyze cumulative error.
Unrequested lesser and preservation: Under K.S.A. 22-3414(3), a party must state distinctly the matter and grounds. State v. Waldschmidt, 318 Kan. 633 (2024), confirms unpreserved jury instruction claims are reviewed for clear error only and are excluded from cumulative error unless clearly erroneous. The court held a general request for “all lessers” lacks the specificity the statute demands. The omission of K.S.A. 21-5405(a)(2) was not clear error given the trial record and the jury’s rejection of intentional second-degree murder. Clear error standard applied (State v. Williams, 295 Kan. 506 [2012]).
Prosecutorial latitude and “we know” rhetoric: Prosecutors have wide latitude (State v. King, 308 Kan. 16 [2018]) and objections need not be contemporaneous (State v. Timley, 311 Kan. 944 [2020]). Yet “we know” is improper when used to draw inferences on contested facts (King; State v. Brown, 316 Kan. 154 [2022]; State v. Alfaro-Valleda, 314 Kan. 526 [2022]; State v. Blevins, 313 Kan. 413 [2021]). The court clarifies “we know” is a semantic proxy for “I know,” evoking the prosecutor’s personal opinion. By contrast, “you know” keeps the focus on the jury’s assessment and is not inherently improper (cf. State v. Douglas, 313 Kan. 704 [2021]; Carter, 305 Kan. at 150). The court also treated “I don’t know what does” wording as a permissible “I submit” style argument rather than personal opinion (cf. State v. Charles, 304 Kan. 158 [2016], cautioning against “I think”; abrogated on other grounds by State v. Huey, 306 Kan. 1005 [2017]).
Order of considering lesser offenses: The prosecutor’s “start at the top” guidance mirrors Kansas law. The court reaffirmed State v. Scott-Herring, 284 Kan. 172 (2007), and State v. Sims, 308 Kan. 1488 (2018), approving sequential consideration: jurors consider the greater offense first and reach lessers only if they cannot unanimously convict of the greater. This does not conflict with K.S.A. 21-5108(b)’s “lowest degree” clause, because only upon reasonable doubt on the distinguishing element (here, premeditation) do jurors move to the lesser (see State v. Stanley, 312 Kan. 557 [2020]).
Cumulative error and harmlessness: Where any error is constitutional—such as prosecutorial error—the State must prove beyond a reasonable doubt that cumulative error did not affect the outcome (Alfaro-Valleda, 314 Kan. at 551-52; see also State v. Mendez, 319 Kan. 718 [2024]; State v. Sherman, 305 Kan. 88 [2016]; federal harmlessness standard from Chapman v. California, 386 U.S. 18 [1967]).
Sentencing pronouncement: The failure to pronounce a sentence requires remand; context cannot supply what was never said. The court distinguished State v. Hill, 313 Kan. 1010 (2021), and State v. Juiliano, 315 Kan. 76 (2022), where sentences were actually pronounced. Illegal sentence challenges are reviewed de novo and may be raised at any time while serving the sentence (K.S.A. 22-3504; State v. Claiborne, 315 Kan. 399 [2022]).

Legal Reasoning: How the Court Reached Its Results

Voluntary intoxication (error to refuse instruction): The court underscored that factual appropriateness asks only whether some competent evidence would allow a rational juror to apply the defense. Bobian’s repeated “blackout” assertions—combined with undisputed heavy drinking—surpassed the minimum threshold. The district court erred by weighing credibility (pointing to purposeful conduct before and after the stabbing) rather than sending the impairment question to the jury.
Reckless lesser-included offenses (assumed error): Given testimony that the knife was displayed in the context of a dispute and that the fatal wound occurred during an interaction rather than a pre-formed plan, the court assumed factual appropriateness for reckless second-degree murder and reckless involuntary manslaughter (though it later explained why the jury could not have reasonably chosen them on this record).
Unrequested involuntary manslaughter, K.S.A. 21-5405(a)(2) (no clear error): Although the State conceded legal and factual appropriateness (tied to the contemporaneous violation of a protective order), the defense did not request it with the specificity K.S.A. 22-3414(3) requires. The omission did not meet the demanding “firmly convinced” standard for clear error, especially given overwhelming evidence of premeditation and the jury’s rejection of the already-given intentional second-degree lesser.
Prosecutorial rhetoric (one error): The statement “We know [he] intentionally killed [S.B.]” improperly suggested a personal view on a contested element. By contrast, “We know she had seven stab wounds” was tied to uncontroverted autopsy evidence and thus permissible. The court drew an express distinction between “we know” and “you know,” characterizing “we know” as a “semantic Trojan horse” for “I know,” while recognizing that “you know” keeps the focus on the jury’s own assessment of the evidence.
Order of considering lessers (no error): The prosecutor’s exhortation to begin with premeditated first-degree murder and proceed to lessers only if unanimity is lacking is correct under Kansas law and compatible with K.S.A. 21-5108(b). The jury instructions mirrored this sequential approach.
Cumulative error (no reversal): Despite one prosecutorial error and the (assumed/identified) instructional errors, the State carried its burden to show beyond a reasonable doubt that the cumulative effect did not affect the verdict. The court emphasized:
- Overwhelming evidence of premeditation (timing; location; lack of signs of struggle; seven wounds to vital areas; concealment; statements of spite; disposal efforts).
- Insufficient linkage between alleged intoxication and any reckless act that caused death; intoxication is not a defense to reckless homicides (State v. Claerhout, 310 Kan. 924 [2019]).
- The jury’s rejection of intentional second-degree murder strongly suggested it would not have descended further to reckless or involuntary forms.
Sentencing (remand required): Denying a departure to a hard 25 did not equate to pronouncing a hard 50. Because no sentence for the murder count was actually spoken, the case had to be remanded for pronouncement; appellate courts cannot infer a sentence from context if none exists.

Impact and Practical Consequences

State v. Bobian will influence day-to-day criminal trial practice in Kansas in several important ways:

Prosecutorial rhetoric—new clarity: The court’s explicit distinction between “we know” and “you know” provides concrete guidance. Prosecutors should:
- Avoid “we know” when addressing contested elements or drawing inferences; it risks implying personal belief.
- Reserve “we know” for uncontroverted facts (e.g., autopsy counts) or better yet say, “The evidence shows.”
- Prefer “you know from the evidence”/“the evidence shows” to keep the focus on the jury’s role.
Voluntary intoxication instructions—low threshold reaffirmed: “Blackout” assertions, when specific and repeated, can supply the necessary impairment evidence to send the question to the jury—even if other evidence strongly suggests purposeful conduct. Trial judges must not weigh credibility at the instruction stage.
Reckless lessers—when they fit: The court reiterates that reckless homicide lessers are available where the act is intentional but the killing is an unintentional, reckless outcome. Defense counsel should develop record evidence tying conduct to recklessness, not merely to intoxication.
Preservation of lessers—be specific: A blanket request for “all lesser included instructions” is insufficient. Counsel must identify the lesser by name and (ideally) statutory subsection and articulate grounds, or face clear-error review on appeal.
Sequential deliberation reaffirmed: Jury instructions and closing arguments may direct jurors to begin with the greater offense and consider lessers only if unanimity is lacking, without violating K.S.A. 21-5108(b).
Cumulative error framing: When any error is constitutional (e.g., prosecutorial), the State will bear the Chapman burden to prove harmlessness of the combined effect. Unpreserved, not-clearly-erroneous instruction omissions remain outside that calculus.
Sentencing: pronounce the sentence: Judges must articulate the sentence on each count. A denial of departure is not the same as pronouncing the required term. Failure to pronounce will prompt remand.

Complex Concepts Simplified

Voluntary intoxication defense: In Kansas, voluntary intoxication is not a defense to general intent crimes, but it can negate the specific intent needed for crimes like premeditated first-degree murder. To warrant the instruction, there must be evidence of both consumption and impairment (e.g., credible “blackout” testimony, severe cognitive deficits). The jury then decides whether intoxication prevented formation of the required intent.
Specific vs. general intent; premeditation: Specific intent crimes require a particular mental state beyond merely doing the act. Premeditation means the decision to kill was formed beforehand—even briefly—reflecting a process of thinking, not a mere instantaneous impulse.
Recklessness: Recklessness involves consciously disregarding a substantial and unjustifiable risk. For reckless second-degree murder, the disregard must occur under circumstances manifesting “extreme indifference to the value of human life.”
Legal vs. factual appropriateness of instructions: Legal appropriateness asks: Is this defense/lesser recognized by law for this charge? Factual appropriateness asks: Is there some evidence from which a juror could apply it? At the factual stage, the court does not decide who is more believable.
Harmless error standards: Under Kansas’s Ward standard, many trial errors are harmless unless there’s a reasonable probability the error affected the outcome. For constitutional errors (e.g., prosecutorial misconduct) or cumulative error including a constitutional error, the State must prove beyond a reasonable doubt the error(s) did not contribute to the verdict (Chapman standard).
Clear error (unpreserved instructions): If a party did not properly request an instruction at trial, appellate courts reverse only if firmly convinced the jury would have reached a different verdict if the instruction had been given.
Sequential consideration of lesser offenses: Jurors first decide guilt on the greater offense. Only if they do not unanimously agree that the State proved the greater do they consider the next lesser offense, and so on.
Pronouncing sentence: The judge must verbally pronounce the sentence on each count at the sentencing hearing. Silence or implication is not enough; a written journal entry cannot retroactively cure the absence of a pronouncement.

Conclusion

State v. Bobian is a consequential clarification in multiple corners of Kansas criminal practice. Most notably, it draws a crisp line condemning “we know” statements on contested issues as improper prosecutorial rhetoric while treating “you know” formulations as generally permissible. It also reaffirms the low threshold for giving a voluntary intoxication instruction—where evidence shows consumption plus impairment—while reminding trial judges to avoid weighing credibility at the instruction stage. On lesser-included offenses, the decision underscores both when reckless homicides may be factually appropriate and the necessity of making specific requests to preserve unrequested lessers (such as K.S.A. 21-5405[a][2]). The court re-endorses Kansas’ sequential approach to greater and lesser offenses and, finally, sends a practical but vital message on sentencing: pronounce the sentence on the record, or the case will be remanded.

The net effect is a set of procedural and rhetorical guardrails likely to shape closing arguments, jury instruction conferences, appellate harmless-error debates, and sentencing hearings across Kansas. While the court found no cumulative prejudice sufficient to overturn the verdicts here—given overwhelming evidence of premeditated murder—it ensured future trials will be conducted with sharper attention to instruction thresholds, closing-argument language, and the formalities of sentencing.

Key Takeaways

“We know” statements that draw inferences on contested facts are improper; “you know from the evidence” is acceptable if tied to the record.
Voluntary intoxication instructions are warranted with evidence of consumption plus impairment; judges must not weigh credibility at the factual-appropriateness stage.
Reckless homicide lessers may be appropriate where the act is intentional but the killing is unintentional and reckless; intoxication is not a defense to reckless crimes.
A general request for “all lessers” does not preserve a specific lesser-included instruction; be precise and cite subsections.
Sequential deliberation—start with the greater offense, proceed to lessers only if needed—remains the law in Kansas.
Cumulative error analysis applies Chapman harmlessness if any error is constitutional; unpreserved, not-clearly-erroneous instruction issues are excluded.
Judges must orally pronounce each sentence; denial of a departure is not itself a sentencing pronouncement.