The defendant argues that his absence from Kansas was not voluntary and, therefore, should not have tolled the running of the statute of limitations. However, most recently in State v. Lee, 263 Kan. 97, 105-08, 948 P.2d 641 (1997), we addressed the same question and resolved it adversely to the defendant's contention in this case. Lee contended that because he was incarcerated in the federal penal system, he was not absent voluntarily from the state and, therefore, the statute of limitations should not be tolled.

The Kansas Supreme Court affirmed Lee's convictions on direct appeal. State v. Lee, 263 Kan. 97, 114, 948 P.2d 641 (1997). In doing so, our Supreme Court set out a detailed summary of the underlying facts leading to his convictions:

We have held that the fact the State strikes a minority juror but fails to strike a white juror with similar characteristics is circumstantial evidence of purposeful discrimination. State v. Lee, 263 Kan. 97, 112-13, 948 P.2d 641 (1997). However, while this kind of circumstantial evidence may be sufficient to prove that the State's race-neutral reason was pretextual, it cannot be considered conclusive evidence in each case as a matter of law.

We have held that the fact the State strikes a minority juror but fails to strike a white juror with similar characteristics is circumstantial evidence of purposeful discrimination. State v. Lee, 263 Kan. 97, 112-13, 948 P.2d 641 (1997). However, while this kind of circumstantial evidence may be sufficient to prove that the State's race-neutral reason was pretextual, it cannot be considered conclusive evidence in each case as a matter of law.

Lee was convicted of first-degree murder, aggravated kidnapping, aggravated assault, and kidnapping. This court affirmed those convictions in State v. Lee, 263 Kan. 97, 948 P.2d 641 (1997). Lee then filed this post-appeal motion to modify his sentence that is now before us.

Lumley correctly notes that the court never ruled on the objection. In State v. Lee, 263 Kan. 97, Syl. ¶ 3, 948 P.2d 641 (1997), the court stated that "[a] trial court's decision concerning the admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion." In State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994), aff'd 260 Kan. 85, 917 P.2d 859 (1996), the court explained that the reviewing court must scrutinize each case "on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.

See, e.g., State v. Betts, 272 Kan. 369, 33 P.3d 575, 595 (2001) ("[T]he Equal Protection Clause forbids the challenging of potential jurors solely on account of race or on the assumption that the jurors of that race as a group will be unable to impartially consider the case." (emphasis added)), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317, 322 (2006); State v. Lee, 263 Kan. 97, 948 P.2d 641, 650 (1997) ("After hearing the State's explanations, and having observed the entire voir dire process, the trial court, under Batson, is to make a purely factual determination: Has the prosecution purposefully discriminated by exercising peremptory challenges against persons solely on account of their race?" (emphasis added to final phrase) (internal quotation marks omitted)), overruled on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006); State v. Walston, 256 Kan. 372, 886 P.2d 349, 353 (1994) (same).

He asks the court to find that "counts 3, 4, and 5 are void." It plainly appears from petitioner's allegations that he seeks to challenge his convictions of aggravated kidnaping, kidnaping, and aggravated assault entered in the State of Kansas in Case No. 95-CR-423 for crimes committed in January 1993. The court takes judicial notice of Kansas v. Lee, 263 Kan. 97 (Kan. 1997), which indicates the following. In 1995, Mr. Lee was convicted by a jury in the District Court, Sedgwick County of first-degree murder, aggravated kidnapping, aggravated assault, and kidnapping. He directly appealed, and the Kansas Supreme Court's (KSC) holdings included that the two-year statute of limitations on the non-murder charges "was tolled during the defendant's incarceration in another state."

And in Gunby, this court implicitly recognized that corroborating witness testimony could be a material fact subject to K.S.A. 60–455 scrutiny. 282 Kan. at 56, 144 P.3d 647 (citing State v. Lee, 263 Kan. 97, 104, 948 P.2d 641 [1997] ). This is further supported by State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006), in which this court, prior to Gunby, held that corroborating witnesses' testimonies were material when each witness had credibility issues.

While it is true that a defendant has a right to jury instructions on all lesser included offenses established by the evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court, that evidence must be substantial. State v. Lee, 263 Kan. 97, 99-100, 948 P.2d 641 (1997). Mere "tenuous evidence" supporting an instruction for a lesser crime does not require the trial court to give the jury such an instruction.