State v. Horton: Each Layer of Double Hearsay Must Independently Fit an Exception, and Appellate Courts May Independently Assess Prosecutorial Error Despite Sustained Objections

1. Introduction

State v. Horton arose from a July 17, 2022 shooting at the Gateway apartments in Kansas City, Kansas, which left Printara Jackson dead and Cedrick Scott wounded. The State of Kansas prosecuted Terry D. Horton Jr. for aggravated battery (Scott’s injuries) and felony murder (Jackson’s death during the commission of the aggravated battery). With no known eyewitness testimony from Scott at trial and limited direct evidence, the State relied heavily on circumstantial proof: surveillance video, testimony from Booker Watson and a security guard, physical evidence at the scene, and extensive narrative testimony from the lead detective.

On appeal, Horton pressed three principal issues:

• Evidentiary/Procedure: whether the district court wrongly excluded allegedly exculpatory statements attributed to Scott (relayed through layers of police reporting), and whether Horton could raise new hearsay theories on appeal;
• Sufficiency: whether circumstantial evidence was adequate to prove Horton knowingly shot Scott (aggravated battery) and thereby committed felony murder;
• Prosecutorial error: whether the prosecutor misstated evidence or shifted the burden of proof—and, importantly, whether the Supreme Court could still evaluate “error” even though the district court sustained defense objections at trial.

2. Summary of the Opinion

The Kansas Supreme Court affirmed Horton’s convictions and held:

• Double hearsay: before double hearsay may be admitted, a statutory exception must apply to each layer of hearsay. Horton failed to preserve alternative exceptions at trial and could not raise them for the first time on appeal.
• Sufficiency: the evidence—though circumstantial—was sufficient for a rational juror to find Horton guilty beyond a reasonable doubt of aggravated battery and felony murder.
• Prosecutorial error framework: the appellate court may independently consider whether the prosecutor erred even if the district court sustained objections; on the merits, the challenged comments were permissible inferences or impeachment and did not shift the burden of proof.
• Cumulative error: with no errors found, the cumulative-error doctrine did not apply.

3. Analysis

3.1 Precedents Cited

A. Hearsay, double hearsay, and standard of review

• State v. Owens, 314 Kan. 210, 496 P.3d 902 (2021)
  Owens supplied both (i) the abuse-of-discretion framework for hearsay-exception rulings and (ii) the “double hearsay” method: each layer must independently satisfy an exception. The Horton court leaned on Owens to reject Horton’s attempt to treat “excited utterance” as a blanket solution for the entire chain of transmission.
• State v. Moore, 302 Kan. 685, 357 P.3d 275 (2015)
  Quoted via Owens for the three-part abuse-of-discretion test (arbitrary/unreasonable; error of law; error of fact), framing the appellate lens for the hearsay issue.
• State v. Evans, 313 Kan. 972, 492 P.3d 418 (2021)
  Used for the baseline proposition that hearsay is inadmissible unless it fits a statutory exception in K.S.A. 60-460. This reinforced the court’s insistence on statutory grounding rather than “exculpatory” impulse.
• State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007)
  Provided the definition/description of double hearsay (hearsay-within-hearsay) and supported the court’s structural treatment of Scott’s alleged statement as a multi-declarant, truth-offered chain requiring layered exceptions.

B. Preservation: the necessity of presenting the specific hearsay basis at trial

• State v. Tague, 296 Kan. 993, 298 P.3d 273 (2013)
  Central to the court’s preservation holding: a party seeking admission of hearsay must give the trial judge a specific basis to admit it, enabling considered ruling and avoiding reversible error. Horton’s appellate reliance on K.S.A. 60-460(a), (b), (c) failed because those theories were not argued when the evidence was offered.
• State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985)
  Quoted in Tague for the rule that unraised grounds cannot be asserted for the first time on appeal, anchoring the procedural bar applied to Horton.
• State v. Banks, 306 Kan. 854, 397 P.3d 1195 (2017)
  Horton invoked Banks to argue exclusion of exculpatory evidence violated his right to a fair trial. The court used Banks against him: even integral defense evidence must be “relevant, admissible, and noncumulative,” and the right to present a defense remains “subject to statutory rules” of evidence.

C. Sufficiency of evidence and the status of circumstantial proof

• State v. Coble, 312 Kan. 615, 479 P.3d 201 (2021)
  Established the controlling sufficiency standard: viewing evidence in the light most favorable to the State, could a rational fact-finder find guilt beyond a reasonable doubt?
• State v. Colson, 312 Kan. 739, 480 P.3d 167 (2021)
  Reinforced that appellate courts do not reweigh evidence/credibility and that circumstantial and direct evidence have equal probative value. This principle was decisive because the State’s case largely depended on video timing, clothing, witness identifications, and investigative inference rather than an eyewitness account.
• State v. Potts, 304 Kan. 687, 374 P.3d 639 (2016) and State v. Logsdon, 304 Kan. 3, 371 P.3d 836 (2016)
  Together supplied the doctrinal comfort that convictions—including for grave offenses—may rest entirely on circumstantial evidence and “reasonable inferences fairly deducible therefrom,” without excluding every other reasonable conclusion.
• State v. Kesselring, 279 Kan. 671, 112 P.3d 175 (2005) and State v. Doyle, 272 Kan. 1157, 38 P.3d 650 (2002)
  These cases were used to reject Horton’s reframing of “sufficiency” as “reliability.” The court emphasized that reliability/credibility are primarily for the jury; sufficiency review does not entail reassessing witness trustworthiness.
• State v. Lyman, 311 Kan. 1, 455 P.3d 393 (2020)
  Cited to distinguish admissibility (where reliability may matter, such as expert testimony) from sufficiency (where the jury’s credibility function predominates).

D. Prosecutorial error standards and impeachment boundaries

• State v. Coleman, 318 Kan. 296, 543 P.3d 61 (2024), State v. Brown, 316 Kan. 154, 513 P.3d 1207 (2022), and State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016)
  These cases supplied the modern Kansas two-step prosecutorial-error analysis: (1) did the prosecutor step outside wide latitude; (2) if so, was it harmless beyond a reasonable doubt? Horton is notable for adding a procedural clarification: the appellate court may still decide step one even where the district court sustained objections.
• State v. Martinez, 311 Kan. 919, 468 P.3d 319 (2020)
  Provided the caution that prosecutors generally cannot suggest defendants must prove innocence and cannot cross-examine about failure to provide exculpatory statements after being charged. The Horton court distinguished this case by characterizing the prosecutor’s questioning as impeachment by prior inconsistent statement rather than “duty to come forward.”
• State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985)
  The key impeachment precedent: it is not necessarily improper for the prosecutor to compare a defendant’s trial account with prior inconsistent accounts given to police. Horton extends Falke’s logic into the burden-shifting debate and expressly states that such comparisons do not necessarily shift the burden of proof.
• State v. Watson, 313 Kan. 170, 484 P.3d 877 (2021)
  Used to define improper argument as asserting facts or inferences with no evidentiary foundation. The court applied it to uphold the prosecutor’s statements as reasonable inferences (e.g., that Scott was shot; that Horton “refused” certain information), given trial testimony about gun casings, injuries, surgery, and the detective’s account of Horton’s noncooperation.

E. Cumulative error

• State v. Thomas, 311 Kan. 905, 468 P.3d 323 (2020) and State v. Johnson, 321 Kan. 357, 580 P.3d 20 (2025)
  These cases established the cumulative-error test and the threshold rule that cumulative error does not apply when there are none (or only one) errors.

3.2 Legal Reasoning

A. The double-hearsay holding: “excited utterance” does not automatically carry the chain

The contested evidence was a purported statement by victim Cedrick Scott to first-responding Officer Jonathan Tompkins that “his girl Tanesha” shot him and Jackson because he was cheating. Horton sought to get this statement into evidence through Detective Fowler (who allegedly learned it from Tompkins and referenced it in an arrest affidavit).

The Supreme Court treated the proffer as classic double hearsay:

• Layer 1: Scott’s out-of-court statement to Officer Tompkins;
• Layer 2: Officer Tompkins’ out-of-court statement (relaying Scott’s words) to Detective Fowler;
• At trial: Fowler would testify in court to prove the truth of Scott’s assertion (that Tanesha was the shooter).

The district court agreed Scott’s initial statement could qualify as an excited utterance under K.S.A. 60-460(d)(2), but ruled the second layer—Tompkins’ later report to Fowler—was not itself an excited utterance. Under the Kansas approach reiterated from Owens, Horton therefore needed a separate statutory exception for Tompkins’ relay. Horton did not identify one at trial.

On appeal, Horton attempted to supply new exceptions (K.S.A. 60-460(a), (b), (c)), but the Supreme Court invoked Tague/Haislip: evidentiary theories must be presented to the trial judge when the evidence is offered. The court also rejected the notion that “exculpatory” evidence is categorically admissible, using Banks to reassert that the right to present a defense operates within evidence rules.

B. Sufficiency: circumstantial proof and the jury’s inference-making role

Horton’s sufficiency claim attempted to exploit perceived gaps: no in-court testimony from Scott, no audible gunshots on video, and detective-heavy narration. The court applied the familiar sufficiency lens (Coble) and circumstantial-evidence principles (Colson, Potts, Logsdon) to hold that the jury could reasonably infer:

• Scott suffered bodily harm (blood at scene tied to Scott; testimony Scott was transported to hospital and underwent surgery);
• the harm was caused with a deadly weapon (gunshot wounds; .40-caliber casings; inference of a handgun in the fleeing person’s hand);
• Horton was the shooter and acted knowingly (motive theory tied to sister; Watson’s identification; matching clothing across separate videos; timing sequence showing separation and flight from crime-scene direction; security guard’s identification relayed by the detective).

Horton’s “reliability” critique of the detective’s conclusions was treated as a credibility argument barred by sufficiency review constraints (Doyle, Kesselring). The court stressed that the jury saw the underlying videos and evidence and could accept or reject the detective’s inferences.

C. Prosecutorial error: independent appellate assessment despite sustained objections

A notable procedural holding appears in the prosecutorial-error section: Horton argued the Supreme Court should “skip” deciding whether the prosecutor erred because he objected at trial and the court sustained the objections, and the State did not (and could not) appeal those rulings. The Supreme Court rejected that position and held it may independently evaluate whether the prosecutor’s conduct was error even if the trial court sustained objections.

On the merits, the court found no error:

• No burden shifting: the prosecutor’s comparison of Horton’s trial testimony (including the McDonald’s stop) with earlier inconsistent statements was characterized as permissible impeachment under Falke, and not a comment implying a duty to prove innocence under Martinez.
• No misstatement of evidence: calling Horton’s conduct a “refusal” had evidentiary footing in the detective’s testimony that Horton “did not want to give” certain information. Likewise, stating there was “no doubt” Scott was injured “in a shooting” was treated as a reasonable inference from the record (casings, blood, surgery, and the companion gunshot homicide).

Because the court found no prosecutorial error, it did not proceed to the constitutional harmlessness analysis under Sherman/Coleman.

3.3 Impact

A. Evidence litigation: double hearsay will require “exception mapping” at trial

Horton’s most concrete evidentiary impact is its emphatic operational rule: double hearsay requires a valid exception for each layer, and counsel must articulate those exceptions at the time of offer. This will likely push Kansas trial practice toward more explicit “exception mapping,” especially when defense counsel seeks to introduce third-party culpability statements relayed through police channels.

B. Appellate posture: sustained objections do not end the “error” inquiry

The syllabus principle that appellate courts may independently consider whether a prosecutor erred even if the district court sustained an objection has consequences for how parties brief prosecutorial-error issues:

• Defendants cannot assume a sustained objection will lock in a finding of “error” on appeal;
• The State may argue (as appellee) that the trial court’s ruling sustaining an objection was incorrect, even though it lacked a statutory path to appeal a conviction-related ruling.

C. Burden shifting vs. impeachment: more breathing room for prior-inconsistent comparisons

Horton’s third syllabus point—“A prosecutor does not necessarily shift the burden of proof by comparing a defendant's trial statement with earlier inconsistent statements”—signals a doctrinal boundary: prosecutors remain constrained from implying a defendant must prove innocence, but they are permitted to highlight inconsistency and the investigatory consequences of omitted details when supported by the record. Future litigation will likely focus on when such arguments become an impermissible “duty to come forward” rather than permissible impeachment.

4. Complex Concepts Simplified

• Hearsay: an out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless a statute provides an exception (here, K.S.A. 60-460).
• Double hearsay (hearsay-within-hearsay): a statement that contains another statement, with both offered for their truth. Each layer must fit an exception—one exception cannot “carry” both layers unless it truly applies to both.
• Excited utterance: a statement made while under the stress of nervous excitement caused by the event perceived (K.S.A. 60-460(d)(2)). In Horton, the victim’s initial statement could qualify, but the later police relay did not.
• Preservation: to complain on appeal, counsel must usually raise the specific legal basis at trial. Horton illustrates that simply saying “it’s an exception” is not enough if multiple hearsay layers exist; the proponent must identify the exception(s) needed.
• Sufficiency of evidence: not whether the appellate court believes the witnesses, but whether a rational juror could convict viewing evidence favorably to the State. Credibility disputes are for the jury.
• Prosecutorial error vs. sustained objection: even if a judge sustains an objection, the appellate court can still decide whether the prosecutor’s conduct was actually improper as a matter of law.

5. Conclusion

State v. Horton affirms convictions built primarily on circumstantial evidence while delivering three clarifications with broader doctrinal resonance:

• Layered hearsay demands layered exceptions—and those exceptions must be timely argued at trial;
• Appellate courts retain independent authority to determine whether prosecutorial conduct was erroneous, regardless of sustained objections below;
• Impeachment by prior inconsistency does not, by itself, shift the burden of proof, even when it highlights omitted details that could have been investigated.

In the broader Kansas criminal-law landscape, Horton functions as both a procedural warning (preserve and specify your hearsay theory for each declarant) and an advocacy guidepost (distinguishing impermissible burden-shifting from permissible impeachment and inference-based argument).