State v. Cunningham: Admissibility of Pornographic Web Bookmarks to Prove Sexual Intent and the Limits of Golden Rule Arguments in Kansas

State v. Cunningham: Admissibility of Pornographic Web Bookmarks to Prove Sexual Intent and the Limits of Golden Rule Arguments in Kansas

I. Introduction

In State v. Cunningham, No. 125,865 (Kan. Dec. 5, 2025), the Kansas Supreme Court addressed two recurring and sensitive issues in criminal prosecutions for sexual offenses against children:

  1. When and how pornographic digital evidence—here, web bookmarks with highly inflammatory titles—may be admitted to prove a defendant’s sexual intent or propensity under Kansas evidence law; and
  2. The permissible scope of prosecutorial argument, particularly “golden rule”–type arguments inviting jurors to rely on their own experiences rather than the trial evidence.

Jason S. Cunningham was convicted by a jury of multiple counts of sexual misconduct against a minor, “Jane,” and related offenses, including aggravated criminal sodomy, aggravated indecent liberties with a child, promoting obscenity to a minor, and aggravated intimidation of a victim. On appeal, he challenged:

  • The admission of pornographic web bookmarks seized from his phone and computers, which contained incest/rape-themed titles involving fathers, daughters, siblings, and minors;
  • Aspects of the prosecutor’s closing argument—one allegedly vouching for the victim’s credibility and another allegedly constituting an impermissible “golden rule” argument; and
  • The cumulative effect of trial errors, particularly when combined with an evidentiary error already identified by the Court of Appeals (admission of a photograph of animated nudity on his television/Xbox).

The Supreme Court affirmed the convictions, largely agreeing with the Court of Appeals but clarifying several significant points:

  • Bookmarks to pornographic sites with incest/rape/teen themes are admissible when they are both material and probative of a defendant’s sexual intent, especially where intent to arouse or gratify sexual desires is an element of the charged offense.
  • Possession and deliberate bookmarking of such material can be relevant even absent proof the defendant actually watched the underlying videos.
  • Prosecutors remain prohibited from inviting jurors to base their verdict on extra-record speculation or personal experience (“how often has that happened to you?”), a form of golden rule error, though the error here was held harmless.
  • Pre–Sherman cases on closing argument (like Mann and Peppers) remain good law for defining permissible argument tethered to evidence, even though the “ill will” component of prosecutorial misconduct analysis has been discarded.

This commentary unpacks the factual background, the court’s holdings, the interaction with prior Kansas precedent, and the broader doctrinal and practical implications of Cunningham for evidence law and prosecutorial conduct in Kansas criminal practice.

II. Factual and Procedural Background

The prosecution arose after “Jane,” a child, disclosed to a school friend in March 2020 that Cunningham, then her mother’s fiancé, was raping her. Another student overheard and reported it to school staff, triggering a criminal investigation.

Key facts from the trial record as summarized by the Court:

  • Jane, in a recorded interview and at trial, alleged that Cunningham had sexually abused her beginning at age four and continuing until about two weeks before the interview.
  • She described multiple sexual acts, including an incident in which Cunningham covered his penis in chocolate syrup so she could pretend it was a popsicle (“the chocolate popsicle incident”).
  • She also testified that Cunningham showed her pornographic videos, including at least one with a father–daughter theme (referred to as a “Father’s Day present”), and a video of her mother having sex with another man.
  • The Kansas Bureau of Investigation (KBI) obtained a warrant and extracted digital data from Cunningham’s cellphone and computers using Cellebrite software.
  • KBI agents identified 11 pornographic web bookmarks on his phone with titles referencing incest, minors, and rape (e.g., “Daddy Teaching Daughter How to Suck and Fuck,” “Father Raping His Daughter,” “Little Sister Blow Job,” “Virgin Teen Getting Her First Cock,” “Real Rape”).
  • The State also introduced testimony from other female witnesses claiming Cunningham had sexually abused them as children in similar ways.

Cunningham testified and denied all allegations, presenting a motive-to-fabricate theory: his ex-fiancée (Jane’s mother) supposedly orchestrated false accusations to “ruin his life” and prevent him from obtaining custody of their shared child. He suggested Jane and the other child complainant were induced to lie, and that two additional witnesses testifying to prior abuse did so to help their sister in a custody dispute.

The jury convicted Cunningham of:

  • Two counts of aggravated criminal sodomy;
  • Two counts of promoting obscenity to a minor;
  • One count each of attempted aggravated sodomy, attempted aggravated indecent liberties with a child, indecent liberties with a child, aggravated indecent liberties with a child; and
  • One count of aggravated intimidation of a victim.

The district court imposed a controlling “Hard 50” life sentence (life without possibility of parole for 50 years), followed by a consecutive 32-month term.

On appeal, a Court of Appeals panel affirmed in an unpublished decision. It:

  • Upheld admission of the pornographic bookmark titles as relevant and not unduly prejudicial;
  • Found one evidentiary error (admitting a photo of Cunningham’s television showing naked animated women on an Xbox video game) but deemed it harmless; and
  • Rejected claims of prosecutorial error and cumulative error.

The Kansas Supreme Court granted Cunningham’s petition for review. Its jurisdiction was based on K.S.A. 20-3018(b) and 60-2101(b).

III. Summary of the Opinion and Key Holdings

A. Overall Disposition

  • The Supreme Court affirmed the Court of Appeals and the district court. Cunningham’s convictions stand.
  • The Court agreed with the panel that:
    • The pornographic web bookmarks were admissible under the usual relevance and prejudice framework;
    • No improper vouching for witness credibility occurred.
  • It disagreed with the panel on one point:
    • The prosecutor did commit a “golden rule”/extra-record error in closing argument by asking jurors, “How many of you have been accused of something inappropriate involving a popsicle?”
    • But this error was harmless beyond a reasonable doubt.
  • Because the panel had already identified one harmless evidentiary error (the Xbox nude-animation photo), the Supreme Court conducted a cumulative error analysis, aggregated the two errors, and held there was no cumulative prejudice.

B. Key Doctrinal Points

  1. Relevance of pornographic web bookmarks and 60-455(d) sexual-propensity evidence
    • Relevance requires both materiality (bearing on a fact in dispute that matters to the case) and probativity (a tendency to make that fact more or less likely).
    • Under State v. Scheetz, evidence of sexual interests (e.g., searches for or bookmarks of child/incest pornography) can be relevant when a defendant’s sexual desire for children or sexual intent is an element of the charged offense.
    • In Cunningham’s case, several offenses required proof that the acts were done “with intent to arouse or satisfy the sexual desires” of the defendant or another (e.g., K.S.A. 21-5506(b)(3)(A); 21-5513(a)(2)).
    • The incest/rape/teen-themed bookmark titles were both material (they bore on his sexual desires and intent) and probative (they tended to show he harbored interests aligned with the charged conduct).
    • The court emphasized that, for relevance, it was not necessary to show Cunningham actually watched the underlying videos; deliberate bookmarking sufficed.
    • The evidence’s probative value was not substantially outweighed by undue prejudice under K.S.A. 60-445, particularly given that the charged conduct itself was highly inflammatory.
  2. Prosecutorial error standards
    • Under State v. Wash, review of prosecutorial error is two-step:
      1. Determine whether the prosecutor’s conduct fell outside the wide latitude to argue the State’s case without infringing the defendant’s right to a fair trial.
      2. If error occurred, assess prejudice: did it affect the defendant’s fair trial right?
    • On alleged vouching, the Court held it is permissible for prosecutors to assert that the State believes the evidence proves the defendant’s guilt, so long as they tie that assertion to the evidence and do not personally vouch for a witness’s credibility.
    • On the “popsicle” remark, the Court found error: the prosecutor invited jurors to rely on their own life experience (“how many of you have been accused…”) and speculate outside the evidence about the rarity of such accusations. This was improper.
    • Still, the error was harmless beyond a reasonable doubt, given:
      • Strong evidence of guilt (Jane’s consistent accounts, corroborating witnesses, digital evidence);
      • Limiting instructions that counsel’s statements are not evidence; and
      • The marginal and passing nature of the improper remark.
  3. Cumulative error
    • Appellate courts review cumulative error claims de novo, considering:
      • The nature and number of errors;
      • Any interrelationship among them; and
      • The overall strength of the evidence.
    • Where any error is constitutional in nature (such as a prosecutorial error implicating fair trial rights), the harmlessness standard is constitutional: the State must show beyond a reasonable doubt that cumulative error did not affect the outcome.
    • Here, the two errors (the Xbox photo and the golden rule remark) were:
      • Conceptually distinct and unrelated; and
      • Minor when weighed against the strength of the State’s case.
    • The Court held there was no reasonable possibility the cumulative effect of the two errors denied Cunningham a fair trial.

IV. Detailed Analysis

A. Evidentiary Ruling: Pornographic Web Bookmarks

1. The factual dispute about “bookmarks” vs. “search terms”

On review, Cunningham first attacked the Court of Appeals’ factual characterization, arguing the panel had misdescribed certain items as pornographic “bookmarks” (implying he saved them for later) when they were only search terms. He claimed this supposed misstatement undermined the panel’s relevance analysis, because bookmarking suggests a more deliberate and persistent interest than a one-off search.

The Supreme Court rejected this factual premise. It carefully parsed the trial testimony of two KBI agents:

  • Agent Celeste used Cellebrite to extract raw data from the devices and “tagged anything that… might be of interest,” describing tagging as “like bookmarking a web page” within the Cellebrite interface, not within the browser.
  • Agent Hachmeister, using the Cellebrite report, distinguished between:
    • System categories: web history, web bookmarks, texts, calls, etc.; and
    • Cellebrite “tags” applied for investigative convenience.
  • When asked specifically about “web bookmarks,” Hachmeister:
    • Confirmed there were web bookmarks on the phone;
    • Read aloud 11 highly explicit titles (e.g., “Father Raping His Daughter,” “Sister Sucking Brother,” “Virgin Teen Getting Her First Cock”); and
    • Confirmed these were “each bookmarks on the cell phone.”

Later, when referring to Celeste’s internal Cellebrite tags, Hachmeister clarified that some items were “bookmarked” by Celeste “or tags that he had made.” The Court concluded the record clearly supported the panel’s original understanding: the 11 pornographic items in question were indeed browser web bookmarks, not mere search terms.

Cunningham’s failure to identify where any supposed factual misstatement actually affected the legal analysis led the Court to invoke the principle that arguments not fully developed are deemed waived or abandoned (State v. Baker).

2. The legal framework: relevance and 60-455(d)

Kansas evidence law begins from the premise that “all relevant evidence is admissible.” K.S.A. 60-407(f). Relevance itself has two components:

  • Materiality: whether the evidence relates to a fact “that has a legitimate and effective bearing on the decision of the case.” (State v. Scheetz, 318 Kan. 48, 64, 541 P.3d 79 [2024]).
  • Probativity: whether the evidence has any tendency in reason to prove or disprove a material fact. K.S.A. 60-401(b); State v. Alfaro-Valleda, 314 Kan. 526, 533, 502 P.3d 66 (2022).

Appellate courts review:

  • Materiality de novo, as a question of law; and
  • Probativity for abuse of discretion.

Separately, even relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion, or misleading the jury. K.S.A. 60-445.

Here, the State moved pretrial to admit the bookmark titles under K.S.A. 2021 Supp. 60-455(d), which allows certain evidence of uncharged sexual misconduct or sexual propensity to be admitted for limited purposes, including proof of sexual intent or desire, in sexual offense cases. The State’s express theory was that the bookmarks showed Cunningham’s “propensity” and were relevant to his “sexual interests.”

The district court concluded that:

  • The evidence was “relevant” and “disputed;”
  • The sexual themes in the bookmarks aligned with the “same pattern and similar sexual activity with young girls;” and
  • The bookmarks’ temporal proximity to the charged crimes enhanced their probative value.

3. Applying Scheetz: pornography and sexual intent as an element

Cunningham criticized the Court of Appeals’ reliance on State v. Scheetz, arguing that the panel interpreted Scheetz as creating a near-automatic rule that pornography is always admissible whenever a crime has a sexual intent element. He contended this approach would collapse the required materiality/probativity inquiry and effectively authorize an unqualified inference from pornography possession to sexual conduct.

The Supreme Court disagreed with that framing and clarified Scheetz’s actual holding:

  • Scheetz held that evidence of prior sexual misconduct or sexual interest “may be relevant to a person’s sexual desires when those desires are material facts necessary to prove an element of a charged offense.” (emphasis added).
  • In Scheetz, the crime of sexual exploitation of a child required proof that the defendant “sexually desired” children under 18. Internet searches such as “Sex at 9 years old” and “Step Dad started blowing me at age 5” were therefore material and probative of that desire.
  • Crucially, Scheetz did not create a pornography-specific exception. It simply reaffirmed that pornographic evidence, like any other kind of evidence, must be evaluated via the standard materiality-and-probativity test.

In Cunningham, intent to arouse or gratify sexual desires was an express element of several charged offenses:

  • Attempted aggravated indecent liberties with a child (Count 6), K.S.A. 21-5506(b)(3)(A): “Any lewd fondling or touching… done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender.”
  • Aggravated indecent liberties with a child (Count 8), same statutory language.
  • Lewd and lascivious behavior (Count 11), K.S.A. 21-5513(a)(2): exposing a sex organ “with intent to arouse or gratify the sexual desires of the offender or another.”

Thus, Cunningham’s sexual intent and sexual desires were themselves material facts. The question became whether the specific bookmarks—by their themes and content—had a logical bearing on those material facts.

4. Materiality of the bookmark titles

The Court examined the titles and concluded nine of the eleven were clearly material to sexual desire for underage and/or incestuous partners:

  • Titles referencing father–daughter sex:
    • “Daddy Teaching Daughter How to Suck and Fuck”
    • “Daughter Caught Fucking on Hidden Cam”
    • “Father and Daughter Having Sex”
    • “Father Fucking His Drunk Stepdaughter”
    • “Father Raping His Daughter”
  • Titles referencing sibling sexual acts:
    • “Little Sister Blow Job”
    • “Sister Sucking Brother”
  • Titles explicitly suggesting youth or virginity:
    • “Little Sister” (implying a younger female)
    • “Virgin Teen Getting Her First Cock”

These themes closely paralleled:

  • The State’s theory that Cunningham sexually abused Jane, a child; and
  • The statutory requirement to prove an intent to arouse/fulfill sexual desires in connection with the abuse of a minor.

Two additional titles—“Rape” and “Real Rape”—were material to showing desire for unlawful sexual acts. The Court expressly linked these to K.S.A. 21-5501(d), which defines “unlawful sexual act” to include rape, indecent liberties with a child, aggravated indecent liberties, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery, and aggravated sexual battery.

The seemingly out-of-context title “Glory Hole Cream Pie” might, at first blush, appear unrelated to child/incest themes. However, the Court found its materiality supported by Jane’s testimony that Cunningham had shown her a video called “Cream Pie” about “teens having affairs with their dads.” The term “cream pie,” in that testimonial context, became part of a pattern connecting pornography involving “teens” and incest to Cunningham’s conduct toward Jane.

5. Probativity of the bookmarks and the “access” argument

Turning to probativity, Cunningham argued the bookmarks’ value was low because there was no direct evidence he ever accessed the sites or watched the videos. The Court rejected this as an argument about weight, not relevance:

  • Under the relevance standard, the only question is whether the evidence has any tendency to make the material fact more or less likely.
  • Proof that he deliberately created and saved bookmarks to these sites reasonably supports an inference that he was interested in content involving underage/incest/rape themes, even if actual viewing was not documented.
  • Citing Scheetz, the Court noted that questions about usage or frequency of access go to the strength of the inference, not whether any inference at all can be drawn.

Thus, the titles were probative of his sexual interest and intent, especially in the context of charges involving children and incest-like dynamics.

6. Undue prejudice and balancing under K.S.A. 60-445

Even relevant evidence can be excluded under K.S.A. 60-445 if “its probative value is substantially outweighed by the risk” of undue prejudice. This standard is reviewed for abuse of discretion: the question is whether a reasonable person could agree with the district court’s decision.

Key principles articulated by the Court:

  • All inculpatory evidence is prejudicial to a defendant’s claim of innocence; “prejudice” alone is not enough.
  • Evidence is unduly prejudicial only when it:
    • Could improperly inflame jurors’ emotions to decide the case on a basis other than the evidence; or
    • Distracts from the central issues of the trial.

Cunningham argued that the vile and inflammatory nature of the titles (“Father Raping His Daughter,” etc.) would provoke such visceral disgust that jurors could not fairly evaluate the evidence. The Court responded:

  • The “vile” quality of evidence does not make it unduly prejudicial unless the verdict is likely to rest on that vileness rather than on rational evaluation of the entire record.
  • The charged crimes themselves were extremely offensive; in that context, the bookmark titles were unsettling but not categorically beyond what the jury was already grappling with.
  • State v. Horn, 278 Kan. 24, 91 P.3d 517 (2004), had already upheld admission of a pornographic magazine with incest/minor suggestions as probative of motive in a child sex case, despite similar inflammatory potential—even where motive, not an element, was at issue.
  • In Cunningham’s case, the bookmarks were even more central: they bore directly on the elements (intent to arouse/gratify sexual desires), not merely on an ancillary motive theory.

Weighing these considerations, the Court held that:

  • The bookmarks’ probative value was “exceptionally strong” because they went to the core elements of the charged sex offenses; and
  • Any risk that jurors would render a verdict based solely on distaste for Cunningham’s pornography was not so substantial as to require exclusion.

Accordingly, the district court did not abuse its discretion in admitting the bookmark titles, and the Court of Appeals correctly upheld that ruling.

B. Prosecutorial Error

1. The governing standard after Sherman and Wash

The Court reiterated the now-settled approach (post–State v. Sherman, 305 Kan. 88, 378 P.3d 1060 [2016]) for prosecutorial error:

  1. Error determination: Did the prosecutor’s act fall outside the “wide latitude” to conduct the State’s case in a manner that does not offend the defendant’s right to a fair trial?
  2. Prejudice determination: If so, did the error prejudice the defendant’s fair trial right?

Sherman rejected the earlier “particularized” harmless error framework (which emphasized whether the prosecutor acted in “ill will”) and made clear that a prosecutor’s subjective intent is no longer part of the harmlessness inquiry. However, Sherman did not overrule all prior precedent touching on proper vs. improper closing argument; it simply adjusted the analytical lens for assessing prejudice.

The Court therefore cited pre-Sherman cases like State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002), and State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012), for what they say about the substantive boundaries of permissible argument, but not for any ill-will-based harmlessness analysis.

2. Alleged vouching for the victim’s credibility

Cunningham argued the prosecutor impermissibly vouched for Jane’s credibility by saying, in closing, that the State “believes” the “chocolate popsicle incident” occurred and that the “evidence supports” that conclusion:

“As far as the charges, these are the charges where the State believes the evidence fits. In Count 1, the defendant is charged with aggravated criminal sodomy. The State believes this is shown to you what's been described or referred to as the chocolate popsicle incident… So if the event happened, which the State believes that it did and we believe that the evidence supports, you know that she had to have been less than 14.”

He claimed the Court of Appeals wrongly minimized this, calling it mere “filler language.”

The Supreme Court, however, evaluated the remark in context:

  • The prosecutor was walking the jury through the elements of aggravated criminal sodomy and the evidence purportedly satisfying them (including Jane’s age and description of the incident).
  • The statement framed the State’s argument that the evidence proved the elements: “the State believes that it did [happen] and we believe that the evidence supports [that].”

Citing Mann and Peppers as instructive:

  • Mann approved a prosecutor’s statement: “The State believes that [the victim] was killed with premeditation… and this is why,” where it was a set-up to discuss evidence.
  • Peppers disapproved a statement that the jury should tell the defendant, “you are guilty of murder… because he is,” which lacked a clear evidentiary anchor and sounded like raw personal opinion.

Applying that distinction, the Court concluded:

  • The phrase “the State believes” in this setting was akin to “our theory” or “our view of the evidence,” not a personal attestation to Jane’s honesty.
  • The comment was explicitly tied to the evidentiary discussion and did not assert that Jane was truthful or that the prosecutor had some special knowledge outside the record.
  • There was no attack on, or endorsement of, any witness’s credibility akin to the impermissible “he can look you in the eye and not tell you the truth” remark condemned in State v. Wash, 320 Kan. 646, 665–66, 571 P.3d 568 (2025).

Result: No prosecutorial error on the alleged vouching claim.

3. The “golden rule” / extra-record argument

The second challenged statement, however, crossed the line. In arguing that the “chocolate popsicle” incident was corroborated by an earlier similar accusation, the prosecutor told the jury:

“We found out yesterday from the defendant that he was accused of doing that before. How many of you have been accused of something inappropriate involving a popsicle that he says happened when she was four or five? That corroborates what [the witness] has described, that there was an incident with a popsicle.”

The Court of Appeals had treated this as a proper appeal to “common sense” about plausibility. The Supreme Court disagreed. It held:

  • A prosecutor in closing argument must confine the jury’s deliberations to the evidence and the reasonable inferences from that evidence.
  • By asking “how many of you have been accused of something inappropriate involving a popsicle,” the prosecutor:
    • Invited jurors to put themselves in Cunningham’s shoes; and
    • Urged them to rely on their own life experience about how unusual it is to be accused of such conduct, even though no evidence in the record quantified or even addressed that frequency.
  • This went beyond commenting on evidence, turning instead into an appeal to extra-record speculation and juror self-reference.

Whether or not one labels this precisely as a “golden rule” argument (which often refers to asking jurors to imagine themselves as the victim), the Court made two important points:

  • Formally, the argument was improper because it asked jurors to consider something outside the record—the frequency of such accusations in ordinary life.
  • Functionally, it had a golden rule flavor by putting jurors in the defendant’s position and inviting them to reason: “I have never been accused of this; therefore, if he has, it must be true.”

The Court therefore found prosecutorial error at step one of the analysis.

4. Harmlessness of the golden rule error

At step two, the Court applied the constitutional harmless error standard, under which the State must show beyond a reasonable doubt there is no reasonable possibility the error contributed to the verdict (State v. Coleman, 318 Kan. 296, 307, 543 P.3d 61 [2024]).

Drawing on State v. Lowery, 308 Kan. 1183, 427 P.3d 865 (2018)—where multiple prosecutorial errors (including a golden rule remark) were found harmless—the Court emphasized:

  • Strength of the evidence:
    • Jane consistently described the popsicle incident both in her initial interview and at trial.
    • The bookmark evidence strongly corroborated Cunningham’s interest in child/incest-themed sexual activity.
    • Two other witnesses testified to similar patterns of sexual abuse when they were 11 or 12 and living with Cunningham.
    • Jane’s friend testified about being touched by Cunningham (breasts and vagina) during a sleepover at Jane’s house.
    • Taken together, this was a substantial (and largely uncontradicted) pattern of sexual misconduct, strongly supporting the State’s case.
  • Nature and prominence of the remark:
    • The improper question was brief and not central to the structure of the State’s closing.
    • The prosecution’s argument relied far more heavily on the testimonial and digital evidence.
  • Jury instructions:
    • The trial court instructed jurors that statements and arguments of counsel are not evidence and that they must rely on the evidence as admitted.
    • Kansas cases have long treated such instructions as mitigating the potential prejudice from misstatements or improper rhetorical flourishes in closing.

On this record, the Court concluded there was no reasonable possibility that the single improper question in closing affected the verdict. Accordingly, the error was harmless beyond a reasonable doubt.

C. Cumulative Error

1. The additional evidentiary error: Xbox animated nudity

The Court of Appeals had already identified a separate, unrelated trial error: admission of a photograph of Cunningham’s television screen depicting naked animated women in a video game on his Xbox. The panel held that photo was erroneously admitted, but harmless, and neither party sought review of that ruling.

Under State v. Moler, 316 Kan. 565, 519 P.3d 794 (2022), unreviewed aspects of the Court of Appeals’ decision remain undisturbed. Thus, the Supreme Court accepted the Xbox photo as a settled instance of harmless error but still had to factor it in when assessing whether cumulative error denied Cunningham a fair trial.

2. Cumulative error standard

Under State v. Mendez, 319 Kan. 718, 741, 559 P.3d 792 (2024), and State v. Owens, 314 Kan. 210, 241, 496 P.3d 902 (2021), cumulative error review considers:

  • The number and nature of the errors;
  • Any interrelationship among them; and
  • The overall strength of the evidence against the defendant.

If any of the aggregated errors is constitutional (as prosecutorial error is), the State must show beyond a reasonable doubt that the combined effect did not affect the outcome.

3. Application in Cunningham

The two errors here were:

  1. Erroneous admission of the Xbox animated nudity photo (non-constitutional evidentiary error); and
  2. The improper golden rule / extra-record remark in closing (constitutional prosecutorial error).

The Court emphasized:

  • The errors were largely unrelated in nature:
    • The Xbox photo did not go to propensity to abuse children or any element of the crime;
    • The golden rule remark concerned the credibility of Jane’s account of the popsicle incident and invited extrarecord speculation.
  • Neither error was pervasive or central to the State’s case.
  • The State’s evidence, particularly the combined testimony of multiple complainants and the pornographic bookmarks, was very strong.

Given these factors, and applying the constitutional harmless error standard to the cumulative assessment, the Court held there was no reasonable possibility that the combined effect of the two errors denied Cunningham a fair trial. Therefore, no cumulative error warranted reversal.

V. Precedents Cited and Their Influence

Cunningham rests on and refines a line of Kansas cases across three main doctrinal areas: relevance and prejudice, sexual-propensity evidence, and prosecutorial error.

A. Relevance and prejudice cases

  • State v. Alfaro-Valleda, 314 Kan. 526, 502 P.3d 66 (2022)
    • Reiterated that relevance has two prongs (materiality and probativity) and delineated the respective standards of review.
    • Provided the basic analytical framework for assessing the bookmark titles.
  • State v. Perez, 306 Kan. 655, 396 P.3d 78 (2017)
    • Articulated that undue prejudice occurs when evidence risks improperly influencing a verdict or distracting from core issues.
    • Used in Cunningham to distinguish between mere prejudice (inevitable with probative evidence) and undue prejudice.
  • State v. Brown, 321 Kan. 1, 573 P.3d 237 (2025)
    • Observed that evidence probative of guilt is inherently prejudicial but not necessarily unduly so.
    • Framed how the Court evaluated the inflammatory nature of pornographic titles.
  • State v. Miles, 300 Kan. 1065, 337 P.3d 1291 (2014)
    • Reinforced the abuse of discretion standard—whether a reasonable person could agree with the trial court’s decision.
    • Guided the Court in reviewing the trial judge’s 60-445 balancing on the bookmark evidence.

B. Sexual-propensity and pornography cases

  • State v. Scheetz, 318 Kan. 48, 541 P.3d 79 (2024)
    • Central to the Court’s analysis; clarified that sexual-interest evidence (including internet searches for child/incest content) is admissible when sexual desire is an element of the crime.
    • Emphasized that pornography or search-term evidence must still pass the ordinary relevance test; it is not automatically admissible.
    • Cunningham uses Scheetz to justify treating pornographic bookmarks as material and probative of sexual intent under 60-455(d).
  • State v. Horn, 278 Kan. 24, 91 P.3d 517 (2004)
    • Allowed admission of a pornographic magazine suggesting incest with minors as evidence of motive.
    • Demonstrated Kansas courts’ willingness to admit disturbing sexual material where it logically relates to motive or sexual interest toward minors.
    • Provided a precedent that the inflammatory nature of the material does not necessarily render it unduly prejudicial.

C. Prosecutorial error cases

  • State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016)
    • Reconceptualized “prosecutorial misconduct” as “prosecutorial error” and abandoned the ill-will-focused harmless error test.
    • Clarified that the prosecutor’s subjective intent is not part of the prejudice analysis.
    • Cunningham applies Sherman by focusing only on objective error and its impact, not on whether the prosecutor acted in bad faith.
  • State v. Wash, 320 Kan. 646, 571 P.3d 568 (2025)
    • Restated the two-step prosecutorial error review standard presently in force.
    • Provided an example of improper credibility attacks (e.g., saying the defendant “can look you in the eye and not tell you the truth”).
    • Cunningham contrasts the prosecutor’s behavior here with the clearer misconduct identified in Wash.
  • State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002) and State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012)
    • Mann approved argument where “the State believes” the evidence proves guilt, because it was closely tied to evidentiary discussion.
    • Peppers disapproved a bare assertion of guilt (“because he is”) unmoored from evidence.
    • Cunningham treats these cases as still valid on what constitutes acceptable advocacy vs. impermissible personal opinion, independent of the discarded ill-will analysis.
  • State v. Lowery, 308 Kan. 1183, 427 P.3d 865 (2018)
    • Found multiple prosecutorial errors, including a golden rule argument, but held them harmless due to strong evidence, brief nature of improper remarks, and proper instructions.
    • Cunningham analogizes its harmless-error analysis to Lowery, reinforcing that not every golden rule misstep warrants reversal.
  • State v. Gardner, 264 Kan. 95, 955 P.2d 1199 (1998)
    • Held an improper closing remark about the location of key evidence was harmless, in part because it was made “in passing” and not central to the State’s case.
    • Cunningham invokes Gardner’s logic to discount the impact of the brief popsicle remark.

D. Cumulative error and harmlessness cases

  • State v. Mendez, 319 Kan. 718, 559 P.3d 792 (2024)
    • Clarified that the cumulative error doctrine does not apply if there is only one error; if there are multiple, courts aggregate them.
    • Specified that if any error is constitutional, the constitutional harmless error standard applies to the cumulative analysis.
  • State v. Owens, 314 Kan. 210, 496 P.3d 902 (2021)
    • Set out the factors for cumulative error review: nature, number, interrelationship of errors, and strength of evidence.
    • Cited in Cunningham as the governing framework for the cumulative analysis.
  • State v. Coleman, 318 Kan. 296, 543 P.3d 61 (2024)
    • Reiterated that, for constitutional errors, the State bears the burden to show beyond a reasonable doubt that there is no reasonable possibility the error contributed to the verdict.
    • Provides the standard the Court applied to the golden rule error.
  • Pieren-Abbott v. Kansas Department of Revenue, 279 Kan. 83, 106 P.3d 492 (2005)
    • Established that an appellate court may affirm a lower court’s result even if the lower court cited the wrong rationale or reasoning.
    • Used here to uphold the Court of Appeals’ ultimate relevance conclusion about the bookmarks, despite the panel’s relatively sparse analysis.
  • State v. Baker, 281 Kan. 997, 135 P.3d 1098 (2006)
    • Held that issues insufficiently briefed, or arguments not adequately supported, are deemed waived or abandoned.
    • Applied to dismiss Cunningham’s underdeveloped misstatement-of-fact claim about bookmarks.

VI. Complex Concepts Simplified

For clarity, several key legal concepts in the opinion can be explained in more straightforward terms:

1. Material vs. probative evidence

  • Material: Does this evidence relate to an issue the jury has to decide? If the fact it tends to prove would not affect the outcome, the evidence is not material.
  • Probative: Assuming the fact is relevant to the case, does this evidence make that fact even a little more or less likely to be true?

Both must be present for evidence to be relevant under Kansas law.

2. Undue prejudice

“Prejudice” here does not just mean the evidence is bad for the defendant; almost all prosecution evidence is. “Undue prejudice” means:

  • The evidence is so emotionally charged or misleading that there is a real risk the jury will decide the case on that emotional reaction or confusion rather than on a rational evaluation of the evidence as a whole.

3. 60-455(d) and sexual-propensity evidence

K.S.A. 60-455(d) (and related provisions) allow the State, in sex-crime prosecutions, to introduce evidence of the defendant’s other sexual acts or sexual interests (even if not charged) to show things like:

  • Sexual interest in children;
  • Intent to arouse or gratify sexual desires; or
  • Pattern or propensity relevant to the charged crime.

But such evidence:

  • Must still be relevant (material and probative); and
  • Must survive 60-445’s undue prejudice balancing.

4. Prosecutorial error and golden rule arguments

  • Prosecutorial error: When the prosecutor oversteps in argument or conduct in a way that infringes the defendant’s right to a fair trial (e.g., referencing excluded evidence, expressing personal belief in guilt untethered to evidence, asking the jury to rely on facts not in the record).
  • Golden rule argument: Traditionally, urging jurors to put themselves in the shoes of the victim (“how would you feel if…”). Kansas courts also condemn similar arguments that:
    • Ask jurors to put themselves in the defendant’s position; or
    • Ask them to rely on their own life experience about how often something happens, when there is no evidence about that frequency.

5. Harmless error vs. cumulative error

  • Harmless error: Even if the court finds a mistake (error), it will not reverse if that mistake likely did not affect the verdict.
    • For constitutional errors (like prosecutorial error), the State must prove beyond a reasonable doubt that the error did not influence the outcome.
  • Cumulative error: Sometimes many small errors, each individually harmless, add up to deny a fair trial when considered together. Courts:
    • Add up all the errors;
    • Look at how serious they are and whether they interact; and
    • Compare them against the strength of the State’s case.

VII. Impact and Significance

A. Evidentiary impact: digital pornography as proof of sexual intent

Cunningham reinforces and slightly extends Scheetz in the digital evidence context. Practical consequences include:

  • Broader use of digital pornographic evidence: Prosecutors are now on firm footing to:
    • Introduce bookmark titles, search terms, and similar digital artifacts that suggest attraction to minors, incest, or rape, when intent to arouse or gratify sexual desires is an element;
    • Argue that deliberate bookmarking implies sexual interest even absent proof of repeated viewing.
  • Focus on thematic nexus: Courts will scrutinize whether the thematic content (e.g., father–daughter, “little sister,” “virgin teen,” “rape”) logically connects to:
    • The age and relational status of the victim; and
    • The elements (intent, desire) of the charged crime.
  • High but survivable prejudice: The opinion signals that:
    • Even extremely disturbing pornography can be admitted where it squarely targets an element such as sexual intent;
    • Trial courts will be afforded broad discretion in weighing probative value against prejudice, especially in child sex cases where the underlying allegations are already graphic and inflammatory.

B. Prosecutorial conduct: narrowing the safe zone in closing argument

On prosecutorial argument, the opinion:

  • Clarifies vouching boundaries:
    • Prosecutors may say “the State believes the evidence shows…” as a preface to an evidence-based argument.
    • They may not assert that a witness is “telling the truth” or rely on personal assurances or information outside the record.
  • Polices golden rule analogues:
    • Arguments inviting jurors to use their personal life experiences about how often certain accusations occur are improper when there is no evidence on that point.
    • Such arguments risk transforming jurors’ subjective experiences into an unsworn evidentiary source, undermining the right to trial by evidence.
  • But affirms a high threshold for reversal:
    • Even plainly improper golden rule remarks will not automatically cause reversal when the overall evidence is strong, the remark is brief, and jurors are properly instructed.
    • This underscores that reversal remains a remedy for truly consequential prosecutorial missteps, not every rhetorical overreach.

C. Appellate practice and cumulative error

The case also offers guidance on appellate strategy:

  • Importance of fully developed arguments: The Court’s dismissal of the “misstatement of fact” claim under Baker highlights that bare assertions, without a specific showing of impact, will not suffice.
  • Role of unreviewed Court of Appeals errors: Under Moler, parties who wish to change or challenge intermediate court findings (such as evidentiary errors found harmless) must seek review. Otherwise, those determinations stand but can still factor into cumulative error analysis.
  • Cumulative error doctrine: Cunningham demonstrates that cumulative error remains alive, but it requires:
    • Multiple genuine errors; and
    • A demonstrable risk that, considered together, they undermined the fairness of the trial.

VIII. Conclusion

State v. Cunningham stands as an important Kansas Supreme Court decision at the intersection of digital evidence, sexual offense prosecutions, and prosecutorial conduct.

On the evidentiary front, the Court solidifies the principle that pornographic digital artifacts—here, web bookmarks with incest, teen, and rape themes—are admissible when they are both material to and probative of a defendant’s sexual intent or desire, particularly where those mental states are statutory elements of the offense. The opinion underscores that such evidence is evaluated under ordinary relevance and prejudice standards, not by any special carve-out, and that even very offensive material can be admitted when its probative force is strong and closely tied to the charged conduct.

On prosecutorial error, the Court draws a careful line: prosecutors may frame their arguments in terms of what “the State believes” so long as they immediately connect that belief to the evidence, but they may not invite jurors to resolve issues by relying on their own life experiences or speculating about facts not in the record. While the golden rule–type question about the likelihood of popsicle-related accusations was improper, the Court found it harmless in light of powerful evidence and limiting instructions, showing both a commitment to enforcing fair-trial norms and a reluctance to reverse where the error was marginal.

Finally, the Court’s cumulative error analysis reaffirms that even when multiple errors occur, relief is warranted only when, in context, they realistically could have changed the outcome. In Cunningham’s case, the substantial and corroborated evidence of sexual misconduct against multiple minors led the Court to conclude that neither the improperly admitted Xbox photo nor the flawed closing remark undermined the fundamental fairness of the proceedings.

In future Kansas sexual offense prosecutions, Cunningham will likely be a touchstone for:

  • Admitting—and challenging—digital pornography evidence to prove sexual intent under 60‑455(d); and
  • Policing, but not over-extending, the doctrine of prosecutorial error in closing argument, especially in relation to golden rule and vouching claims.

The decision thus refines Kansas law at the junction of evidence, constitutional fair trial rights, and modern digital criminal investigations.

Case Details

Year: 2025
Court: Supreme Court of Kansas

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