Fictional Victim, Real Error: Misstating Venue Law in Closing Arguments

State v. Hartman, No. 127, 354, 2025 WL 2552314, (Kan. Ct. App. Sept. 5, 2025)

Staff Editor Abby Brady

September 21, 2025

Issue:  Is it harmless error for a prosecutor to cite the wrong subsection of K.S.A 22-2619 to establish venue in closing arguments when venue could be established under another subsection?

Answer: No. The prosecutor’s misstatement of law—stating that venue could be based on the fictitious child’s residence—constituted reversible error. 

Facts: Hartman was charged with electronic solicitation of a child, among other offenses. The “victim” was a fictitious 14-year-old girl named Riley who was portrayed by an adult woman.  During closing arguments, the prosecutor claimed that venue for the electronic solicitation charge was proper in Shawnee County because Riley "resided" there, even though Riley was a fictitious person.  The State later conceded this was a misstatement of law but argued the error was harmless. 

Discussion: Under Kansas law, a prosecutor may not misstate the law because doing so could “offend a defendant’s right to a fair trial.” [1]  Here, the prosecutor told the jury that venue could be based on Riley’s residence, which is legally incorrect, since fictitious persons cannot have legal residences.

For prosecutorial error to be found harmless, the burden is on the State to show beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. [2]  Although there were other proper bases for venue under K.S.A. 22-2619(b)(1) and (3) (e.g., the location of Hartman or the adult posing as Riley during communications), the court found the error was not harmless.  The jury’s two questions during deliberation—one about whether Riley was the victim, and another about why the case was charged in Shawnee County—demonstrated confusion about venue.  This raised a reasonable possibility that the error influenced the verdict.

Because the State failed to prove the error was harmless, Hartman's conviction for electronic solicitation was reversed and remanded for a new trial.

Key Authorities: Kan. Stat. Ann. § 22-2619(b); State v. Coleman, 543 P.3d 61 (2024); State v. Sherman, 378 P.3d 1060 (2016); State v. Brown, 513 P.3d 1207 (2022); State v. Liles, 490 P.3d 1206 (2021); Chapman v. California, 386 U.S. 18 (1967).

[1] State v. Brown, 513 P.3d 1207, 1216 (2022).

[2] State v. Sherman, 378 P.3d 1060, 1063 (2016).

[3] Id.