text:
    STATE of Kansas, Appellant, v. Juan QUINONES-AVILA, Appellee.
    No. 120,505
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Njeri Mwangi, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellant.
    Timothy Olson, of LeBaron-Ramos Law Firm LLC, of Kansas City, for appellee.
    Before Gardner, P.J., Green and Atcheson, JJ.
   MEMORANDUM OPINION

Gardner, J:

This is an interlocutory appeal by the State from the district court's pretrial exclusion of evidence in a rape case.

Factual and Procedural Background

On January 3, 2018, two law enforcement officers responded to a domestic disturbance call and spoke with Y.Q., who reported that her husband, Juan Manual Quinones-Avila had raped her that afternoon. Y.Q. went to The University of Kansas Medical Center where she spoke with two detectives before undergoing a sexual assault examination. Y.Q. reported having consensual sex with another partner the day before. She said that she was lying on the bed when Quinones pulled her clothes off and forcefully had sex with her without her consent. The sexual assault examination showed redness and evidence of sexual activity as well as bruising on her left hip. She was willing to speak with detectives at the hospital and gave a taped statement.

Meanwhile, the police took Quinones into custody. After being given his Miranda rights, Quinones gave police his version of events. He stated that he and Y.Q. had consensual intercourse that afternoon and that they were a playful couple who tend to hit each other playfully and wrestle. He said that he left after intercourse to get McDonald's and when he returned, Y.Q. was mad at him and he did not know why. Quinones was then charged with one count of rape, a severity level 1 person felony, in violation of K.S.A. 2018 Supp. 21-5503(a)(1)(A).

At the preliminary hearing in April 2018 the State called Y.Q. as a witness. She testified that she and Quinones married in 2011 and have three children together, ages six, five, and three. The couple started encountering relationship problems shortly after they got married. At the time of this incident, the family lived with Y.Q.'s mother in Kansas City, Kansas. Y.Q. testified that on January 3, 2018, she was sleeping in bed when Quinones woke her up by forcing her to have intercourse. Y.Q. said that Quinones got upset when she tried to tell him to stop and he accused her of cheating on him. Quinones completed the alleged rape of Y.Q. The altercation continued when Y.Q.'s phone alerted and Quinones got mad. Y.Q. testified that they yelled at each other and that Quinones "pulled [her] on the bed and spanked [her] three times really hard."

Y.Q. called her brother once Y.Q. left to run an errand. Her brother called their father, who came to the apartment and called the police. Y.Q. testified that she is afraid of Quinones and was afraid to call the police. She said that Quinones is abusive toward her and that years ago when she tried to call the police, Quinones threw her phone against the wall. She also said that this was not the first time Quinones sexually assaulted her, as the conception of their three-year-old daughter resulted from rape. At the end of Y.Q.'s testimony, the district court evaluated the evidence in a light most favorable to the State and found probable cause to bind Quinones over for trial. Quinones entered a plea of not guilty.

As the case proceeded, Quinones-Avila moved to admit evidence that Y.Q. had an affair to discredit her credibility and to show motive to fabricate the alleged rape. He also sought to present evidence of the couple's sexual history within their marriage, and sought to cross-examine Y.Q. about the timing of her divorce filing. The State moved to exclude evidence of Y.Q.'s sexual history, arguing that evidence of an extramarital affair was not relevant, was protected by the rape shield statute, and bore no relationship to whether Quinones raped her on January 3. It also argued that evidence of Y.Q.'s divorce filing and of the couple's sexual history was irrelevant and thus inadmissible.

The district court held a hearing on the motions. It ruled that evidence of Y.Q.'s affair was inadmissible, noting that sexual immorality has nothing to do with honesty or veracity of a witness and finding that its prejudicial effect would outweigh its probative value. It then ruled that evidence of the sexual history between Quinones and Y.Q. was admissible, finding that it was relevant and that it was more probative than prejudicial. The district court noted that with this evidence, Quinones can present evidence of the couple's prior sexual history and habits and their ways of showing consent because that was part of Quinones' viable defense, and that the State would have plenty of opportunity for cross-examination. Finally, the district court ruled that evidence of Y.Q.'s subsequent divorce filing was admissible but that the divorce petition itself was more prejudicial than probative and therefore inadmissible. Those rulings are not challenged on appeal.

In October 2018, the State moved to determine the admissibility of other crimes into evidence-namely, that the couple's youngest child had been conceived by rape and that Quinones had digitally penetrated Y.Q. without her consent while she was sleeping a few days before the alleged rape. Quinones filed two motions-one objecting to the State's motion to admit evidence of other crimes and another to admit evidence beyond rape shield relating to Y.Q.'s sexual activity with another partner.

The district held that Quinones could introduce evidence of Y.Q. having sexual intercourse with another person within 24 hours of the alleged rape only as an alternative explanation for the physical signs of intercourse observed on Y.Q.'s vaginal area and pain she reported during the physical examination.

Next, the district court excluded evidence of Quinones' prior sexual misconduct under K.S.A. 2018 Supp. 60-455(d). In doing so, it noted various problems with the allegation that Quinones had previously raped Y.Q., including that the prior act had not been charged or proven, that it was not recent but had occurred about five years ago, and that it would, in effect, cause Quinones to defend himself against two allegations of rape instead of one.

It then addressed the allegation that Quinones had told Y.Q. a few days before the alleged January 2018 rape that he had digitally penetrated her. The district court noted this statement was hearsay but found the admission against interest exception applied. It then found that although this evidence was relevant, it would be more prejudicial than probative because no physical evidence could help corroborate the claim, it would require Quinones to testify to defend himself fully, and it would open him up to other crimes. It held that those pieces of evidence were inadmissible under K.S.A. 2018 Supp. 60-455.

Finally, the defense asked the court to prohibit the State from presenting evidence of prior acts of domestic violence occurring in the relationship. The defense specified that they were not seeking to exclude evidence of events occurring on January 3, but sought to prohibit Y.Q. from testifying about any previous incidents. The court responded,

"Well, the State hasn't moved to admit that. At this point, I think it's a moot point. It fits into the whole narrative of the Court trying to narrow the focus as to what happened on this specific day with limited exceptions. I will caution the State, you're going to probably really drill her on making sure that she doesn't say things or let slip things that have been ruled against. Evidently she testified to this at the prelim where I did not preside over that. She also kind of seemed to volunteer that to the nurses at the [University of Kansas Medical Center]. So, please, just make sure she understands what she's allowed to talk about and what she's not."

After a break, the State announced its intent to file an interlocutory appeal of the district court's ruling excluding the 2018 Supp. K.S.A. 60-455 evidence, which stayed the proceedings. The State later moved the court to reconsider its prior rulings excluding prior acts of sexual misconduct by Quinones against Y.Q., and allowing Quinones to introduce messages from Y.Q. to Quinones saying that she wanted to leave with their children but prohibiting the State from offering an explanation for why she had sent the messages. The district court denied the State's motion for reconsideration, and the State filed an amended notice of appeal.

Does This Court Have Jurisdiction?

Quinones argues that this court lacks jurisdiction to hear the State's interlocutory appeal because the district court's rulings are mere "run-of-the-mill" pre-trial evidentiary rulings that do not substantially impair the State's ability to make a prima facie case.

Standard of Review

Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). Likewise, we have unlimited review over matters involving interpretation of a statute, a question of law. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

The substantial impairment rule

The State's right to appeal in a criminal case is strictly statutory, and this court has jurisdiction to entertain this kind of appeal only when it is taken within time limitations and in the manner prescribed by applicable statutes. State v. Snodgrass , 267 Kan. 185, 196, 979 P.2d 664 (1999). Interlocutory appeals by the State are permitted under K.S.A. 2018 Supp. 22-3603, which provides:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal." K.S.A. 2018 Supp. 22-3603.

Kansas courts have interpreted this provision broadly, meaning appeals under this statute "should include not only 'constitutional suppression' but also rulings of a trial court which exclude State's evidence so as to substantially impair the State's ability to prosecute the case." State v. Newman , 235 Kan. 29, 34, 680 P.2d 257 (1984). "If the exclusion of evidence does not substantially impair the State's ability to prosecute the case, the State cannot raise the issue as an interlocutory appeal." State v. Mitchell , 285 Kan. 1070, 1080, 179 P.3d 394 (2008) (finding no jurisdiction to address the State's appeal).

Although the Newman court rejected a more restrictive interpretation of K.S.A. 22-3603, it cautioned Kansas appellate courts against taking jurisdiction over interlocutory appeals "from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved." 235 Kan. at 35. Instead, appellate courts should exercise jurisdiction over interlocutory appeals only when the pretrial order suppressing or excluding evidence substantially impairs the State's ability to prosecute the case. State v. Griffin , 246 Kan. 320, 323, 787 P.2d 701 (1990) ; Newman , 235 Kan. at 35. A ruling need not technically foreclose prosecution to substantially impede it. State v. Huninghake , 238 Kan. 155, 157, 708 P.2d 529 (1985). This allows appellate courts to review trial court rulings on pretrial motions which may determine the case. Newman , 235 Kan. at 32.

The State argues that the district court's pretrial rulings substantially impair its ability to prosecute the case by excluding evidence of acts of domestic violence in the relationship and of Quinones' prior sexual assaults. It seeks to introduce evidence of Y.Q.'s allegations that Quinones raped her before the January 3rd incident and that Quinones claimed to digitally penetrate Y.Q. while she was sleeping a few days before the rape in question. The State claims this evidence is crucial because it shows Quinones' propensity to commit sexual offenses, even though the district court's ruling does not strictly foreclose prosecution. The State also seeks to present evidence of prior instances of domestic violence by Quinones, claiming that this evidence serves two purposes: (1) it counters Quinones' assertion that Y.Q. fabricated the rape charges so that she could get Quinones arrested and take their children away from him; and (2) it corroborates Y.Q.'s testimony that she did not immediately call 911 because she feared Quinones.

The importance of the excluded evidence

Because of the nature of the offense, many sex crime cases reduce to a "he said, she said" battle in which credibility and corroboration are crucial. "[M]any sex crimes lack concrete evidence that a crime was committed, and the propensity evidence therefore is more demonstrative and necessary than propensity evidence in other kinds of prosecutions." State v. Boysaw , 309 Kan. 526, 534, 439 P.3d 909 (2019) (citing State v. Borchert , 68 Kan. 360, 362, 74 P. 1108 [1904] ).

"It is well settled that, in prosecutions for a single act forming a part of a course of illicit commerce between the sexes, it is permissible to show prior acts of the same character. Such cases are sometimes, as in State v. Markins et al. , 95 Ind. 464, 48 Am. Rep. 733, said to form an exception to the general rule that one crime cannot be proved in order to establish another independent crime. In fact, however, they fall within the rule already stated. Such evidence is admitted not because it proves other offenses, but in spite of that fact. Its justification is that it is corroborative of the direct evidence of the offense charged. [Citations omitted.]" State v. Borchert , 68 Kan. 360, 361-62, 74 P. 1108 (1904).

The Kansas legislature in 2009 recognized the unique nature of other crimes evidence in sex offense cases by enacting K.S.A. 2018 Supp. 60-455 section (d). That statute is expansive, as it "allows the admission of any propensity evidence that is relevant and probative" in sex offense cases. Boysaw , 309 Kan. at 539. That statute states:

"Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense ... evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative." K.S.A. 2018 Supp. 60-455(d).

This stands in contrast to the general rule in cases not charging a sex offense-in those cases, "evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion." (Emphasis added.) K.S.A. 2018 Supp. 60-455(a). The legislature has thus recognized that propensity evidence in sex offense cases is categorically different than propensity evidence in other cases.

The evidence remaining to the State

To determine the importance of the excluded evidence to the State's ability to make its case, we assess the evidence that remains available to the State:

"[T]o determine whether a trial court order substantially impairs the State's ability to prosecute a case, the evidence available to the State must be assessed to determine just how important the disputed evidence is to the State's ability to make out a prima facie case. Newman and subsequent cases also indicate that evidence subject to a discretionary standard of admission is less likely to substantially impact the State's case. Cf. State v. Kleypas , 282 Kan. 560, Syl. ¶ 2, 147 P.3d 1058 (2006) (ruling made as a matter of law less likely to change at trial; therefore, if it is truly one which substantially impairs the State's case, it is proper for interlocutory appeal)." State v. Sales , 290 Kan. 130, 140, 224 P.3d 546 (2010) (finding appeal improvidently taken).

The following evidence that Quinones raped Y.Q. remains available to the State:

• Y.Q.'s testimony and prior statements about the events;
• Testimony of hospital employees to whom Y.Q. gave a taped statement before undergoing a sexual assault examination;
• Testimony of Y.Q.'s brother whom Y.Q. called after Quinones left the house;
• Testimony of Y.Q.'s father, who went to Y.Q.'s residence and called 911 after she reported the rape to family;
• Testimony of law enforcement officers who responded to the 911 call; and
• Results of the sexual assault examination, which corroborate Y.Q.'s reported soreness and pain.

The vast majority of this evidence is, however, based on Y.Q.'s statements. No question has been raised as to Y.Q.'s ability to perceive, recall, or communicate the events occurring on January 3. But the excluded evidence would corroborate her testimony and greatly strengthen the State's case by giving the jury more to consider than the credibility of the parties. The excluded evidence could also counter claims by Quinones that Y.Q. fabricated the rape charge and explain why Y.Q. feared Quinones.

Similar cases

We have previously held that exclusion of corroborating evidence in sex abuse cases can substantially impair the State's case even where, as here, the State had clear testimony from the victim. In State v. Bliss , 28 Kan. App. 2d 591, 594, 18 P.3d 979 (2001), the defendant was charged with two counts of aggravated indecent liberties with a 14-year-old child. The district court excluded evidence of other instances of sexual misconduct between the defendant and the alleged victim, prompting the interlocutory appeal. We found that we had jurisdiction because the evidence was "of substantial importance" to the State's case against the defendant. Because there were no eyewitnesses, the alleged victim's credibility was at issue-we found that the evidence was necessary to bolster the alleged victim's credibility, corroborate his testimony, and aid in establishing a course of conduct between the defendant and the alleged victim. Bliss , 28 Kan. App. 2d at 594. We found the exclusion substantially impaired the State's case and that this evidence was admissible. Those same factors are present here.

Similarly, in State v. Dearman , No. 110,798, 2014 WL 3397185, at *6 (Kan. App. 2014) (unpublished opinion), we found jurisdiction in a rape case where the district court excluded the four-year-old victim's videotaped testimony about ongoing abuse by the defendant:

"Here M.J.J.'s credibility is also at issue. As in Bliss , there are no eyewitnesses; it is M.J.J.'s word against Dearman's. And M.J.J.'s statements that the abuse was ongoing would corroborate the State's allegation that she was abused on February 14, 2011, as charged in the complaint. Additionally, because of M.J.J.'s age, the evidence of prior sexual abuse is particularly important. Since M.J.J. was only 4 years old at the time of the alleged abuse, it may be difficult for her to remember the particulars of what happened when she attended daycare at the Dearmans'. As a result, the video of her interview with DCF may be the only way to bolster her credibility. Without her statements from the video, the State's ability to prosecute its case would be substantially impaired. Accordingly, we have jurisdiction to consider the court's denial of the State's motion to admit the evidence under K.S.A. 2013 Supp. 22-3603." 2014 WL 3397185, at *6.

We found the exclusion substantially impaired the State's case.

Yet other cases decided after 2009, the year K.S.A. 60-455 section (d) was enacted, find that exclusion of corroborating evidence in a sex abuse case did not substantially impair the State's ability to proceed. In Sales , an aggravated criminal sodomy case, the district court granted the defendant's pretrial motion to exclude expert witness testimony on delayed reporting by child victims of sexual abuse. The Kansas Supreme Court analyzed the jurisdictional issue by assessing the State's case against the defendant with and without the disputed evidence:

"The State's case consisted primarily of the testimony of the victim about the abuse and that of the victim's aunt to whom she first made disclosure, combined with the testimony of Agent Hamilton concerning her interview of the victim. The victim's mother also testified to the events around the disclosure. None of this testimony was affected by the district court's pretrial ruling.
"The testimony of Agent Hamilton concerning delayed disclosure was brief, extremely general, and in essence boils down to one or two sentences indicating that it is not unusual for children who are in a relationship with their abuser to delay disclosing the abuse. The State still has the testimony of the victim, her aunt, her mother, and Agent Hamilton's interview testimony. Very little is lost with the removal of Agent Hamilton's testimony on delayed disclosure. Indeed, the need for expert testimony on the issue at all is disputed." Sales , 290 Kan. at 140.

The court found that the excluded evidence did not substantially impair the State's prosecution, that the interlocutory appeal was improvidently taken, and that it lacked jurisdiction.

Similarly, in State v. Guy , No. 116,983, 2017 WL 3202977 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1324 (2017), the court excluded evidence in a sex offense case. The State wanted testimony to corroborate that the defendant was "riding around in the country" with an underage girl and that something sexual had happened. The State wanted others to testify that the victim's demeanor toward the defendant changed after the incident. The district court excluded the testimony and the " 'testimony of any individual that relates to the victim's attitude or demeanor, other than on the day of the alleged offense.' " 2017 WL 3202977, at * 2. The State argued on appeal that the only evidence it had left to prove the crime was the victim's testimony. We disagreed, distinguishing Bliss and Dearman :

"[U]nlike the victim in Dearman , the victim here is not a 4-year-old child who may forget the details at trial, but a 14-year-old girl who reported what happened to her to her stepgrandfather, her aunt, her father, and the police at different times. Unlike the victim in Bliss , this is not a case with substantial corroborating evidence of an ongoing sexual relationship between the victim and the defendant that would corroborate the victim's testimony regarding situations in which only the victim and the defendant were present." Guy , 2017 WL 3202977, at * 3.

This issue presents a close question, but on balance we find that the district court's rulings did substantially impair the State's ability to prosecute Quinones. The State's burden to make a prima facie case is not merely to put on some evidence or a preponderance of evidence to meet every element of the crimes charged. Instead, the State's burden is to "present[ ] sufficient evidence from which a rational jury could find each of the crime's elements beyond a reasonable doubt." State v. Williams , 295 Kan. 506, 522, 286 P.3d 195 (2012). The evidence was necessary to bolster Y.Q.'s credibility, corroborate her testimony, and help establish a course of conduct between her and the defendant. We thus find we have jurisdiction to consider the State's interlocutory appeal.

Did the District Court Abuse Its Discretion by Excluding Certain Evidence?

We reach the question whether the district court erred in excluding under K.S.A. 2018 Supp. 60-455 the State's evidence of previous sexual assaults and other violence by Quinones during the couple's relationship.

Standard of Review

This court reviews a district court's exclusion of evidence for an abuse of discretion. K.S.A. 2018 Supp. 60-455 ; State v. Lowrance , 298 Kan. 274, 291, 312 P.3d 328 (2013). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015).

Analysis

When determining whether to admit evidence, a district court must determine whether the evidence is relevant. Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). State v. Page , 303 Kan. 548, 550, 363 P.3d 391 (2015). However, even if evidence is relevant, a trial court may exclude it when the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60-445. This court reviews determinations such as these for an abuse of discretion. See Lowrance , 298 Kan. at 291.

The Kansas Supreme Court has recently reviewed propensity evidence in sex crime cases. Boysaw found that K.S.A. 2018 Supp. 60-455(d) is expansive, as it "allows the admission of any propensity evidence that is relevant and probative." 309 Kan. at 539-40. "The plain statutory language of K.S.A. 2018 Supp. 60-455(d) appears to allow such evidence without requiring a weighing of probity versus prejudice." 309 Kan. at 540. This stands in contrast to the general rule in cases not charging a sex offense-in those cases, "evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion." K.S.A. 2018 Supp. 60-455(a).

The only stated exception to K.S.A. 2018 Supp. 60-455(d)'s general rule that sexual propensity evidence is admissible is K.S.A. 60-445. But that statute does not require a general weighing of the probative value against the prejudicial effect. Instead, it relates solely to unfair surprise, stating:

"[T]he judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered." K.S.A. 60-445.

No Kansas statute or rule expressly provides for the exclusion of unduly prejudicial evidence in the same way that Federal Rule of Evidence 403 does. Boysaw , 309 Kan. at 539. Rule 403 states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403 ; see State v. Moyer , 306 Kan. 342, 365, 410 P.3d 71 (2017) ("as long as it is 'relevant and probative,' " propensity evidence under K.S.A. 2013 Supp. 60-455 [d] is admissible in sexual abuse cases).

Nevertheless, the Kansas Supreme Court has continued to require a weighing of the probative value versus prejudicial effect. Boysaw , 309 Kan. at 540. See, e.g., Van Hoozer v. Farmers Insurance Exchange , 219 Kan. 595, 613, 549 P.2d 1354 (1976) ; State v. Davis , 213 Kan. 54, 57, 515 P.2d 802 (1973). This is not because any Kansas statute or rule requires it, but because the requirement has, admittedly, been added as a matter of "judicial construct." Boysaw , 309 Kan. at 540. The Kansas Supreme Court has added to the plain language of K.S.A. 60-445 the requirement in every case that the district court balance the probative value of any challenged evidence against its prejudicial effect before admitting it into evidence. So we apply the balancing test here.

In Dearman , we noted that evidence of prior sexual abuse should rarely be excluded in sex offense cases:

"[E]vidence of prior sexual abuse should rarely be excluded in cases involving sexual offenses. Benally , 500 F.3d at 1090 ; Enjady , 134 F.3d at 1433 ; Prine , 297 Kan. at 476-78 ; see, e.g., State v. Remmert , 298 Kan. 621, 628, 316 P.3d 154 (2014) (probative value of evidence of 20-year-old diversion for sexual abuse of a child outweighed undue prejudice to the defendant in a trial for aggravated criminal sodomy where the defendant denied abusing alleged victim)." 2014 WL 3397185, at *7.

Evidence of prior sexual abuse is not limited to prior convictions but extends to prior uncharged sex offenses:

"Consistent with congressional intent regarding the admission of evidence tending to show the defendant's propensity to commit sexual assault or child molestation, 'courts are to "liberally" admit evidence of prior uncharged sex offenses.' United States v. Meacham , 115 F.3d 1488, 1492 (10th Cir. 1997)." United States v. Benally , 500 F.3d 1085, 1090 (10th Cir. 2007).

Boysaw stated in detail the factors a district court should weigh in balancing probative value and prejudicial effect, apparently adopting the Tenth Circuit's approach in Benally :

"No set test exists for weighing probative value against prejudicial effect. The Tenth Circuit has suggested certain factors to be considered, such as the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of the prior acts, the presence or lack of intervening events, and the need for evidence beyond the testimony of the defendant and alleged victim. See, e.g., United States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998).
"In Prine II , 297 Kan. at 478, 303 P.3d 662, this court referred favorably to United States v. Benally , 500 F.3d 1085, 1090-91 (10th Cir. 2007), which incorporated other tests into the weighing test for propensity evidence in sex crimes. Citing prior decisions, the Benally court recommended considering specific factors in analyzing the two elements to be weighed.
"In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct. Benally , 500 F.3d at 1090-91." Boysaw , 309 Kan. at 541.

Boysaw found no abuse of discretion in district court's ruling that the probative value outweighed the prejudicial effect of the parties' stipulation to defendant's prior conviction of a crime of sexual assault of a child.

The district court did not have the benefit of Boysaw . Nonetheless, the record shows that it considered these same factors in reaching its decisions on the disputed evidence.

The alleged rape five years ago

The district court determined that although evidence of Quinones' 2014 rape of Y.Q. was somewhat relevant, it was more prejudicial than probative. It noted that little if any probative value was shown "because without specificity, there's no evidence that [it] would have been done in the same manner or same intent, same time, same place, specifics, whatever." The alleged rape happened five years ago and no police report, investigation, or other evidence existed to corroborate Y.Q.'s claim. Thus, admitting evidence of a crime that Quinones was never charged with would require Quinones to defend against two allegations of rape instead of one, as the prior rape was clearly disputed. The court found this would be "extremely prejudicial" to the defendant. We find no abuse of discretion in the district court's finding that the evidence was more prejudicial than probative.

The hearsay statement

Next, the district court excluded evidence that Quinones had told Y.Q. he digitally penetrated her a few days before January 3. Y.Q. had no independent recollection of the penetration. The district court noted that the evidence was hearsay but would likely be admissible as an admission against interest. See K.S.A. 2018 Supp. 60-460(j). It found the evidence relevant because of its close temporal proximity to the January 3 rape and because it tended to show Quinones' pattern or intent. But it found little probative value of the evidence because no physical evidence corroborated the claim, Y.Q. did not remember which day he told her this information, and no charges were filed. And it found the evidence would prejudice the defendant because the jury could see him as "creepy or perverted," and defendant would have to testify to refute the alleged crime and he had a right not to testify. The district court found, on balance, the prejudicial effect outweighed the probative value, although it was a much closer call than the uncharged rape from five years earlier. We find no abuse of discretion in the district court's finding that the evidence was more prejudicial than probative.

The domestic violence

The district court also excluded Y.Q.'s testimony, given at the preliminary hearing, that she called her brother and not the police because she was afraid of Quinones and that Quinones had thrown her phone against the wall the last time she tried to call the police, several years ago. The district court noted that the State had not sought to admit prior evidence of domestic violence, but that the court wanted to focus on the events of January 3.

After the district court ruled that the State could not introduce evidence of prior incidents of domestic violence, the State moved for reconsideration, including a proffer of the evidence it wished to introduce. The State argued that if the court admitted two 2017 messages in which Y.Q. had threatened to leave with the children, the State would need to present evidence to show the relationship between the couple to help explain why Y.Q. sent the messages. The State would offer Y.Q.'s testimony that Quinones was physically, verbally, and emotionally abusive of her and their children, including two instances of abuse from 2011 and the alleged rape in 2014. The district court denied the motion for reconsideration, stating it found no reason to change any of its prior rulings.

The excluded evidence is not sexual propensity evidence so we analyze it under K.S.A. 2018 Supp. 60-455's general principles. The State sought to admit this evidence under K.S.A. 2018 Supp. 60-455(b). That exception provides that evidence that a person committed a crime or civil wrong on a specified occasion, although not admissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion, "is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." The State contends that the excluded evidence is admissible to show plan, preparation, and motive-it counters defendant's assertions that Y.Q. fabricated the rape charge so that she could take away their children. Yet the State does not show how evidence of defendant's violence in 2011 or 2014 shows his plan, preparation, or motive to rape Y.Q. in January of 2018.

The limits of the district court's ruling here are not clear. It permitted the defendant to admit the two 2017 messages in which Y.Q. had threatened to leave with the children, but also permitted the State to go into the reasons why Y.Q. sent the messages, saying:

"[T]hat's something Mr. Olson can question the victim on and it's something that the State should have a good chance to redirect on to get better context or figure out if the victim was being serious or what her intentions were in making the statements. All the lovey-dovey stuff is out. There's two specific instances, this again on September 5th and December 1st, those chains of texts or messages can be allowed in and again because I think they are somewhat relevant, but the State can push back against the relevance, of course, through their questioning."

It appears that the district court granted the State some leeway on this topic, and its denial of the State's motion for reconsideration did not alter its rulings, which remain subject to clarification and revision at trial. Motions in limine are "used to invoke a trial judge's inherent power to control proceedings, to exclude inadmissible evidence, and to prevent undue prejudice." State v. Smith , 46 Kan. App. 2d 939, 943, 268 P.3d 1206 (2011). "A ruling on a motion in limine is temporary in nature and is subject to revision at trial in light of the evidence that is actually presented." 46 Kan. App. 2d at 943. So the issues raised here can also be raised at trial and are subject to revision. We find no abuse of discretion in the district court's rulings, as we cannot say that no reasonable person would take the view it adopted.

Affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Demetrius D.J. CARTER, Appellant.
    Nos. 120 327 120,328
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Demetrius D.J. Carter appeals the district court's decision to revoke his probation and order that he serve the underlying prison sentence on his convictions for possession of marijuana with the intent to distribute and possession of drug paraphernalia. Carter argues on appeal that the district court abused its discretion by not giving him another chance at probation. But the court had already given Carter plenty of chances to succeed on probation; it wasn't required to give him another.

In 2016, Carter pleaded guilty to possession of marijuana with intent to distribute and possession of drug paraphernalia. The district court sentenced Carter to 18 months of probation, with an underlying sentence of 18 months in prison that Carter would have to serve if he didn't successfully complete his probation. Between 2016 and 2018-before Carter's probation was finally revoked and he was sent to serve his prison sentence-the district court gave Carter several "second" chances at probation. The court ordered intermediate sanctions short of having Carter serve his full prison sentence four different times.

The first time Carter violated his probation by failing to attend his court-ordered drug-and-alcohol treatment and by using drugs. The district court ordered Carter to serve a 48-hour jail sanction for those violations.

A couple of months later, the district court ordered Carter to serve a 120-day sanction with the Kansas Department of Corrections for violating his probation by testing positive for drugs and alcohol. At that time, the court extended Carter's probation by 18 months.

When he finished the prison sanction and returned to probation, Carter again violated it, admitting to failing to abide by his curfew. The court ordered Carter to serve another two-day jail sanction for that violation.

Soon after that, Carter admitted that he had once again violated his probation by testing positive for drugs. The court ordered him to serve a 60-day sanction and extended his probation by an additional 18 months.

That brings us to the violation that triggered revocation of the probation and imposition of the prison sentence. Carter once again admitted to violating his probation by testing positive for drugs. The district court revoked Carter's probation and ordered him to serve his underlying sentence. Although Carter asked to be sent for drug treatment, the court said that based on Carter's repeated drug violations, "simply putting [Carter] back into Residential [treatment] doesn't make any sense."

Carter has appealed to our court that it was unreasonable for the district court to impose the underlying sentence instead of sending him back to drug treatment. But he hasn't shown that the district court made an error.

Traditionally, district courts in Kansas have had broad authority to revoke probation on any significant violation. A 2013 statutory change limited that discretion and required that intermediate sanctions generally be used before the court can revoke probation and impose the underlying prison sentence. But here the district court had already used these intermediate sanctions, so the district court had the discretion to revoke probation and impose the prison sentence on a further probation violation. See K.S.A. 2018 Supp. 22-3716(c).

When the district court has that option, its discretionary decision may be set aside only for abuse of discretion. A court abuses its discretion if its decision is based on factual or legal error or no reasonable person would agree with it. See State v. Schaal , 305 Kan. 445, 449, 383 P.3d 1284 (2016) ; State v. Brown , 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015).

Carter hasn't suggested a factual or legal error, and we conclude that a reasonable person could agree with the district court's decision. Although at the final revocation hearing both Carter and his community-corrections officer asked the court to give Carter another chance at probation by sending him back to residential drug treatment, the court ultimately denied that request because Carter's record "was littered with drug use after drug use" and his past efforts at treatment had been unsuccessful. Those facts provided a reasonable basis for the district court's decision, and we find no abuse of discretion.

On Carter's motion, we accepted this appeal for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). We have reviewed the record available to the district court, and we find no error in the district court's decision to revoke Carter's probation.

We therefore affirm the district court's judgment.


author: Per Curiam: Buser, J., concurring:

text:
    STATE of Kansas, Appellee, v. Derek J. EDMONDS, Appellant.
    No. 118,759
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Derek J. Edmonds appeals from his convictions for aggravated battery and abuse of a child. On appeal, Edmonds contends that the district court erred when it failed to give a unanimity instruction. Additionally, Edmonds contends that the district court erred when it denied his request to redact portions of a video of an interview that he gave to a police officer. Finally, Edmonds contends that the district court erred in imposing his sentence. For the reasons set forth in this opinion, we affirm Edmonds' convictions and sentence.

FACTS

On June 8, 2016, Edmonds and his wife had a baby girl. Because the baby was born prematurely, she remained hospitalized at Overland Park Regional Medical Center for approximately 6 weeks. While in the hospital, an ultrasound of the baby's head revealed some bleeding in the brain. The hemorrhage was deep inside the baby's brain and was evidently not of the same type caused by trauma. At the time of the baby's discharge from the hospital, a neonatologist-Lisa M. Castro, M.D.-examined the baby and found the results to be normal. However, due to the premature birth, the baby required follow-up visits with health care providers to make sure that she was meeting developmental milestones.

After returning home to Lawrence, Edmonds and the baby's mother took turns taking care of the baby and her older brother. Although family friends would watch the children occasionally, their parents usually provided care for them. On weekdays, Edmonds would normally watch the children during the day because he worked at night. In turn, the children's mother would normally watch the children at night because she worked during the day.

During the week of September 12, 2016, the baby struggled with constipation, was fussy, had difficulty sleeping, and often refused to eat. On September 15, 2016, the mother left for work around 9 a.m. and Edmonds watched the children. When the mother stopped by during her lunch break, she heard the baby crying as she entered the apartment. A family friend had also been at the apartment that morning but had evidently left by the time the mother returned home.

The mother saw Edmonds holding the baby around the ribs and holding her close to his face. The baby was crying and the mother could tell that Edmonds was frustrated. The mother saw that Edmonds was not supporting the baby's neck and was yelling at her-saying "What do you need?" and "What do you want?" The mother also saw Edmonds shake the baby back and forth "really fast" for ten to fifteen seconds as she continued to cry. Concerned, the mother took the baby from Edmonds and sat down on the couch. After Edmonds calmed down, the mother returned to work, leaving the baby with her husband.

When the mother returned home around 5:30 p.m., Edmonds yelled at her that he was going to be late for his night shift. About an hour later, the mother checked on the baby and noticed that she was "twitching" as if she was having a seizure. The mother called Edmonds and he told her that he had not noticed anything unusual about the constipation. Shortly thereafter, the baby had another seizure. After visiting Edmonds at work, the parents decided to take the baby to Lawrence Memorial Hospital. In route, the baby had another seizure.

An emergency department nurse, L'Erin Ogle, took the baby's vital signs and found them to be "abnormal" and found the baby to be inconsolable. In particular, Nurse Ogle found that the baby had a "[f]ast heart rate, [and] respiratory rate." The nurse also noticed that the baby refused to eat. In addition, Nurse Ogle noted periods where the baby would remain stiff and lacked focused eye movements while in the emergency room.

Dr. Anthony Goetting-an emergency medicine physician-examined the baby while she was at Lawrence Memorial. Dr. Goetting was informed that the baby's parents had brought her in because of "seizure activity" on the right side. Dr. Goetting noted that the mother was "tearful" and "very concerned" about the baby. He also noted that Edmonds was "quiet" and let the mother do "most of the speaking." About 45 minutes after arriving at Lawrence Memorial, Edmonds took the older child home.

Upon examining the baby, Dr. Goetting found that her eyes deviated to the right. Although the doctor knew that "tonic eye deviation" can be a symptom of pressure, the parents told him that her eyes deviated to the right "all along." According to Dr. Goetting, this statement caused him to be concerned. The doctor also noticed "increased intercranial pressure," which was evidenced by the baby's anterior fontanelle-or soft spot-being "firm and bulging." Dr. Goetting concluded that the situation was "serious" and contacted Children's Mercy Hospital in Kansas City, Missouri.

While Dr. Goetting waited for a specialist team to arrive from Children's Mercy, he ordered several lab tests and x-rays. The radiologist who read the x-rays called Dr. Goetting to tell him, "there's something serious going on.... Looks like there's an acute subdural hemorrhage on the right posterior brain and some hemorrhage left front brain." According to Dr. Goetting, this meant that two areas of the baby's brain had bled and that this was a potentially life-threatening condition. In the emergency room, the baby continued to have an increased heart rate and developed problems maintaining an appropriate oxygen saturation. Moreover, as the baby's health continued to decline, she became quieter.

In the early morning hours of September 16, 2016, the baby was transported to Children's Mercy Hospital by helicopter. At Children's Mercy, it was discovered that the baby also had one or more fractured ribs. It was estimated by the doctors at Children's Mercy that the rib fractures occurred about one week earlier. The mother called Edmonds at some point that day to report on the baby's condition. During the conversation, Edmonds told her that it was possible that he caused the injuries to the baby. Although the baby was admitted to Children's Mercy, Edmonds did not visit her there.

Dr. Sara Kilbride-a pediatrician at Children's Mercy Hospital-also evaluated the baby. Dr. Kilbride serves as a member of the Section of Child Abuse and Neglect (SCAN) team at, which attempts to identify prevent, and treat child abuse. Dr. Kilbride evaluated the baby on the morning of September 16, 2016. She found that the baby's soft spot "felt full" and too "elevated." Also, Dr. Kilbride found that the baby "had a red mark on the right side of her tongue" and a "circular bruise on her right hip." In addition, she reviewed several tests and found evidence of multiple retinal hemorrhages in the baby's eyes. According to Dr. Kilbride, these hemorrhages evidenced "an acceleration or deceleration type of movement" such as the baby's "head going forward and backward."

A skeletal survey showed a rib fracture that was currently healing. Dr. Kilbride estimated the fracture was between 7 to 10 days old. The doctor believed that the fracture was likely from "a violent squeezing, [or] a violent impact." A second test revealed a skull fracture that split into two fractures on the back of the baby's head. Dr. Kilbride was unsure when the skull fracture occurred, but stated that it could have occurred the day that the baby was brought to the hospital. Moreover, a CT scan showed that both sides of the baby's brain had bleeding. Neurosurgeons at Children's Mercy performed three surgeries to drain blood from the baby's brain and to install a shunt.

Ultimately, Dr. Kilbride believed that the baby's injuries were likely caused by "trauma" consistent with shaking or whiplash. In Dr. Kilbride's opinion, the brain and retinal hemorrhaging could have been fatal. She also opined that the baby's injuries would result in a continued need for physical and occupational therapy. Also, in Dr. Kilbride's opinion, the injuries would likely delay the baby's physical development.

As a result of the concerns expressed by the health care providers at Children's Mercy, a report of possible child abuse was made. On September 16, 2016, Detective Randy Glidewell of the Lawrence Police Department obtained and executed a search warrant for Edmonds' apartment. During the search, Detective Glidewell found an "onesie" by the bathtub covered in vomit.

Later that day, Detective Lance Flachsbarth interviewed Edmonds. Detective Flachsbarth taped the interview. On September 23, 2016, Edmonds was interviewed for a second time. This interview was also recorded. On September 26, 2016, the State of Kansas charged Edmonds with abuse of a child in violation of K.S.A. 2016 Supp. 21-5602(a)(2). Subsequently, the State amended the complaint to add a second charge of aggravated battery in violation of K.S.A. 2016 Supp. 21-5413(b)(2)(A).

A four-day jury trial commenced on May 15, 2017. At trial, the State presented the testimony of eight witnesses. In addition, the State introduced 15 exhibits that were admitted into evidence. The exhibits included the videos of Detective Flachsbarth's interviews with Edmonds. Both videos were shown to the jury. Although the defense introduced two exhibits that were admitted into evidence, it did not call any witnesses to testify.

In addition to the health care providers who had seen the baby at Lawrence Memorial Hospital and Children's Mercy Hospital following the incident on September 15, 2016, the State also called Dr. Keith Warren as a witness. Dr. Warren is an ophthalmologist and retina specialist who had seen the baby several times after she was born. Comparing scan's of the baby's eyes taken while she was at Children's Mercy in September 2016 with scans he had taken prior to that time, Dr. Warren opined that there were blotches that had not previously been present, that the blotches were "abnormal," and that the blotches indicated "blood in the ... retina." According to Dr. Warren, a shaken baby experiences increased pressure on the brain, which is transmitted to blood vessels. If these blood vessels burst, hemorrhages are visible in the retina.

After deliberation, the jury found Edmonds guilty of both charges. Following the jury trial, Edmonds filed a motion to dismiss. At a hearing held on July 28, 2017, the district court first considered the motion to dismiss. At the hearing, Edmonds' counsel argued:

"[T]he charge of abuse of a child and aggravated battery were the same thing. The evidence that was presented on the two counts was the same by the witnesses....
"And the defense's point is that the distinctions without a difference between the two counts as alleged and as charged as the evidence was presented and as the instructions were presented to the jury that you just simply can't divvy up the two. The one difference, as the State pointed out, is that the State has to prove the additional element in the abuse of a child, that the child was, in fact, under the age of 18. But that simply makes it, in our view, the dominant charge. If you're looking at the two being the same, it's the more specific charge, because it does require to prove the child was under the age of 18.
"But, otherwise, there is no way-given the way that the jury was instructed and as the jury found and as the evidence was presented, there is no way a person could be guilty of the aggravated battery without also being guilty of abuse of a child, assuming that the victim was under the age of 18."

Applying the plain language of K.S.A. 2016 Supp. 21-5602(c), the district court found that "the ... statute ... specifically states that a person who violates the provisions of this section may also be prosecuted for, convicted of, and punished for any form of battery or homicide." Accordingly, the district court denied Edmonds' motion to dismiss and proceeded to sentencing.

The district court sentenced Edmonds to 34 months of incarceration and postrelease supervision of 24 months for his abuse of a child conviction. For the aggravated battery conviction, the district court imposed a concurrent 34 month sentence. Thereafter, Edmonds timely appealed.

ANALYSIS

Three issues are presented on appeal. First, whether the district court committed clear error in failing to give a unanimity instruction. Second, whether the district court erred in denying Edmonds' request to redact one of the videos because it allegedly contained prejudicial and inadmissible evidence. Third, whether the district court violated Edmonds' constitutional rights as set forth in Apprendi v. New Jersey when it sentenced him to an aggravated sentence without requiring the State to prove aggravating factors to a jury.

Unanimity Instruction

Edmonds first asserts that the district court erred when it failed to provide a unanimity instruction. Although Edmonds admits that "the State told the jury to focus on the act of shaking in its closing arguments," he argues that the jury may have relied on two separate acts in convicting him of aggravated battery. Specifically, Edmonds argues that the jury could have relied on the evidence regarding the shaking of the baby on September 15, 2016, or evidence regarding the fracturing of the baby's ribs approximately a week before the shaking incident.

In his brief, Edmonds candidly admits that he did not raise this issue before the district court. As such, we review this issue under a clearly erroneous standard. See K.S.A. 2016 Supp. 22-3414(3) ; State v. Brown , 306 Kan. 1145, 1164, 401 P.3d 611 (2017). Under this standard of review, we first determine whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record. If error is found, the defendant has the burden to firmly convince this court that the jury would have reached a different result had there been no error. 306 Kan. at 1164. The party claiming a clear error has the burden to demonstrate prejudice. State v. McLinn , 307 Kan. 307, 318, 409 P.3d 1 (2018).

A unanimity instruction is required "when the State charges one crime but relies on multiple acts to support that one crime." State v. King , 297 Kan. 955, 978, 305 P.3d 641 (2013) (quoting State v. Sanborn , 281 Kan. 568, 569, 132 P.3d 1277 [2006] ). In such instances, "a unanimity instruction [is required], or the State must elect the particular act it relies on for conviction ." ( Emphasis added.) 297 Kan. at 978. Here, Edmonds recognizes that "the State told the jury to focus on the act of shaking" during closing arguments. Nevertheless, he argues that "the State implicitly undid any election of the specific act of shaking" by presented evidence regarding the rib fracture.

While the aggravated battery instruction given by the district court stated:

"The defendant is charged with aggravated battery. The defendant pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. The defendant recklessly caused great bodily harm to [the child].
2. This act occurred on or about the 15th day of September, 2016 in Douglas County, Kansas.
A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation."

Although the instruction did not list the conduct that was alleged to constitute aggravated battery, it did specifically state that the act complained of occurred on September 15, 2016. As the record reflects, that is the date of the shaking incident. The jury instructions did not mention any act that occurred prior to that time.

Moreover, the State was clear during its closing argument that the shaking of the baby was the act alleged to constitute both aggravated battery and abuse of a child. In fact, the State began its closing argument by saying: "May it please the court. 'Yes, I did shake her. I know for sure I did shake her. It was five seconds, ten max.' That's what [Edmonds] told Detective Flachsbarth could be the reason his daughter had a serious brain injury on September 15, 2016."

Throughout its closing argument, the State continued to focus on shaking of the baby:

• "And what did the evidence show you the defendant did? The evidence has shown you that he took that frustration out on [a] three-month-old [baby] by violently shaking her for five to ten seconds max. And based on that, the State believes that the evidence has shown beyond a reasonable doubt that [Edmonds] committed the crimes of abuse of a child and aggravated battery."
• "What did the evidence show you? That at 1:00 [PM], [Edmonds] admits that he shook his daughter for five to ten seconds. It is what [Edmonds] told Detective Flachsbarth in this interview on the following day. He admitted that at 1:00 [PM] he was frustrated . And instead of doing what the video told him; set your baby down and walk away, he shook his baby and then walked away." (Emphases added.)
• "The evidence has shown beyond a reasonable doubt that [Edmonds] shook his daughter, causing great bodily harm to [the baby]."
• "And, ladies and gentlemen, [Edmonds] admitted to shaking [the baby]. He even demonstrated and you had an opportunity to view that with the doll. He told Detective Flachsbarth that it was a hard shaking and that it was for five seconds, ten max."

The State also emphasized that it was the shaking of the baby when speaking about the aggravated battery charge:

"Again, the State believes the evidence has shown that the action of shaking caused the great bodily harm .... He talked about he knew what could happen if you shook a baby . You had to watch a video about it before leaving the hospital. [Edmonds] knew and disregarded the risk of shaking his daughter on September 15, 2016 . And because he disregarded that risk, he caused great bodily harm to [the baby]. And because of that, the State is asking that you find [Edmonds] guilty of abuse of a child and aggravated battery ." (Emphases added.)

Although Edmonds claims that the State inadvertently "undid" its election of specific conduct, we do not find this to be the case based on our review of the closing argument. Rather, we find that the State elected the shaking of the baby on September 15, 2016, as the basis for both the abuse of a child and aggravated battery charges. Furthermore, we find that the jury instructions expressly identified September 15, 2016-the date of the shaking incident-as the date of the aggravated battery. As such, we do not find that Edmonds has shown that the failure to give a unanimity instruction was erroneous. In addition, we do not find that Edmonds has shown-much less firmly convinced us-that the jury would have reached a different result even if the district court had erred in failing to give a unanimity instruction.

Failing to Redact Video

Next, Edmonds contends that the district court erred by admitting the video of Detective Flachsbarth's interview with Edmonds on September 16, 2016, without redaction of certain statements made by the detective during the interview. In particular, Edmonds objected to those portions of the video in which Detective Flachsbarth explained the baby's injuries to Edmonds and gave his thoughts on possible theories regarding the cause of the injuries. At trial, Edmonds objected to allowing the jury to hear these statements by the detective on the grounds that they were prejudicial and improper opinion testimony.

District courts have broad discretion as to whether to allow a witness to offer his or her opinion on a matter. State v. Lowrance , 298 Kan. 274, 293, 312 P.3d 328 (2013). Under K.S.A. 2016 Supp. 60-456(a), a lay witness may render an opinion if it is rationally based on the witness' perception, is helpful to understanding the witness' testimony, and is not based on scientific or technical knowledge. As long as the opinion testimony satisfies these criteria, it is admissible even if "it embraces the ultimate issue or issues to be decided by the trier of the fact." K.S.A. 2016 Supp. 60-456(d). If the district court admits opinion testimony, it must be "deemed to have made the finding requisite to its admission." K.S.A. 2016 Supp. 60-456(c) ; see State v. Sasser , 305 Kan. 1231, 1244, 391 P.3d 698 (2017).

Here, a review of the video reveals that Detective Flachsbarth repeatedly told Edmonds that he was not a doctor. Rather, the detective told Edmonds that he was stating his personal opinion based on what the health care providers who treated the baby had reported to law enforcement and on his experience as a law enforcement officer and father. During the interview, Detective Flachsbarth told Edmonds:

• "What I will tell you is that I am not a doctor by any stretch of the imagination . I'm a law enforcement officer.... There are people that go to school for years and years and years and they become physicians. On top of that, there are certain physicians that specialize in one thing and one thing only and that is child care. They treat children's injuries...." (Emphasis added.)
• "Kind of what you've explained to me about how you think these injuries could happen, I will tell you right now. After having done this for 25 years, and I will tell you that earlier in my career I specialized in child investigations -that would be the physical and sexual abuse of children-so I've had quite a bit of training in that, ... and what I will tell you is that when you're talking about infants, especially the age of [this baby]-the thing about infants that age, and I hate to say this, but it's kind of true, is they're very pliable. In other words, it takes-they're very resilient to a lot of different things, and I think that's God's way of making sure that the species continues is that babies are fairly hearty. It's like a car. If you put oil and gas in, the engine will run forever. Babies are kind of the same way. If you give them food and water, they'll live, you know what I mean? So what I'm telling you is that it takes a great deal of force to cause the type of injuries we're talking about. (Emphasis added.)
• "What you're describing to us, and again, I'm not a doctor , what is being described to me is that this is a multilayer brain bleed. And what the doctors there have told us is that it takes a great deal of force to cause this injury." (Emphases added.)
• "My thought is this -and this is just me -the type of injuries that [the baby] has are usually caused in one of two ways. One, is blunt force trauma.... And what we look for blunt force trauma is a crushing blow ... The other way that commonly happens is through shaken baby syndrome." (Emphasis added.)

Although the better practice would have been to redact the portions of video to which Edmonds objected prior to trial, we do not find that the district court abused its discretion in admitting the unreacted video into evidence. In other words, we cannot say that no reasonable district judge would have reached the same conclusion as the district judge in this case regarding the admissibility of the opinion testimony of Detective Flachsbarth that was based on his experience as a law enforcement officer or relating to Edmonds what the health care providers at Children's Mercy had reported.

Moreover, in light of the other evidence presented at trial, we do not find that the admission of this opinion testimony was unduly prejudicial to Edmonds. Unlike State v. Elnicki , 279 Kan. 47, 57, 105 P.3d 1222 (2005), in which the Kansas Supreme Court held that it was error for a detective's comments on the defendant's credibility during a taped interview to be played to the jury, Detective Flachsbarth did not call Edmonds a liar or use similar words. As our Supreme Court recognized, Kansas law indicates an "absolute prohibition" against one witness testifying on another witness' credibility. 279 Kan. at 53. In such cases, a district court "has no discretion on whether to allow a witness to express an opinion on the credibility of another witness; such evidence must be disallowed as a matter of law." 279 Kan. at 53-54.

Regardless, even if it was error to admit the opinions expressed by Detective Flachsbarth in the video, any such error committed by the district court would be harmless. In State v. Ingham , 308 Kan. 1466, 1476, 430 P.3d 931 (2018), the Kansas Supreme Court held:

"If the error infringes upon a right guaranteed by the United States Constitution, the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict. [ State v. ] Ward , 292 Kan. 541, Syl. ¶ 6 [256 P.3d 801 (2011) ]."

However, if the error does not implicate a constitutional right, an error by the district court may be declared harmless when the benefitting party demonstrates there is "no reasonable probability that the error affected the outcome of the trial in light of the entire record." State v. Moyer , 306 Kan. 342, 359, 410 P.3d 71 (2017) ; see K.S.A. 2018 Supp. 60-261.

Based on our review of the record on appeal, we find that any error relating to the failure to redact the video was harmless under either the constitutional or the state standard. In fact, we find the evidence presented by the State against Edmonds to be overwhelming. Of particular significance is the fact that Edmonds admitted to his wife and to the police that he had shaken the baby. He even demonstrated to the police-using a doll-how he had shaken the baby. Furthermore, he admitted that he knew the dangers of shaking a baby.

Multiple medical experts testified regarding the significant injuries suffered by the baby. In addition, a number of medical records where entered into evidence at trial, including CT scans, MRI imaging, and skeletal surveys. Likewise, multiple medical experts testified regarding a causal connection between shaking an infant and the type of injuries from which this baby suffered. In particular, Dr. Kilbride from the SANE program at Children's Mercy testified at trial that the baby's injuries were consistent with "an acceleration or deceleration type of movement or motion ... like a head going forward and backward." Ultimately, Dr. Kilbride believed that the baby's injuries were likely caused by "trauma" consistent with shaking or whiplash.

Accordingly, we conclude beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record.

Alleged Apprendi Violation

Finally, Edmonds contends that the district court sentenced him "to the aggravated number in [the] sentencing guidelines grid box for both convictions without submitting any aggravating factors to a jury." Specifically, he asserts that the district court violated his constitutional rights in the manner proscribed by Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Although Edmonds recognizes that the Kansas Supreme Court resolved this issue in State v. Johnson , 286 Kan. 824, 849-52, 190 P.3d 207 (2008), he contends that the case was wrongly decided.

In Johnson , our Supreme Court analyzed the text of K.S.A. 21-4704(e)(1) -which is now recodified as K.S.A. 2018 Supp. 21-6804 -and concluded that it "does not require a sentencing judge to cite to an aggravating or mitigating fact when determining which presumptive sentence to impose." 286 Kan. at 849. Moreover, our Supreme Court explained "that the legislature did not intend that specific findings must be placed on the record when the judge stays within the presumptive sentencing range, even if the longest term is imposed." 286 Kan. at 849. The Johnson court concluded that a district court has the "discretion to sentence a criminal defendant to any term within the presumptive grid block" and found no violation of the Sixth and Fourteenth Amendments to the United States Constitution or of the holding in Apprendi . 286 Kan. at 851.

Our court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We find no indication that our Supreme Court is departing from Johnson . Thus, we conclude that the district court did not err in sentencing Edmonds.

Affirmed.

Buser, J., concurring:

I concur in the panel's holding which affirms Edmonds' convictions and sentences. I write separately because I would find the district court's admission of Detective Lance Flachsbarth's unredacted interviews of Edmonds was erroneous.

As detailed by my colleagues, during the interviews, Detective Flachsbarth expressed numerous, lengthy, and detailed opinions regarding the cause and severity of the injuries to the baby. For example, after acknowledging that he was not a medical doctor, the detective informed Edmonds that the baby had sustained "a multilayer brain bleed," and the way that "commonly happens is through shaken baby syndrome." In short, without redaction or a limiting instruction, the jury improperly heard unsworn evidence from the detective that had all the indicia of a medical opinion on the critical issues of causation and the severity of the baby's injuries.

Under K.S.A. 2016 Supp. 60-456(b), if "scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion" if certain conditions are met. (Emphasis added.) As is readily apparent, the detective was never qualified as an expert in medical science and admitted it during the interview. Quite simply, Detective Flachsbarth was not qualified as an expert to opine regarding medical matters.

Under K.S.A. 2016 Supp. 60-456(a), a lay witness may render an opinion if it is rationally based on the witness' perception, is helpful to understanding the witness' testimony, and is not based on scientific or technical knowledge. See State v. McFadden , 34 Kan. App. 2d 473, Syl. ¶ 5, 122 P.3d 384 (2005) ("[A] lay witness is not competent to provide reliable testimony about medical matters beyond the common knowledge of laypersons, or those [matters] that are not readily apparent such as medical diagnoses or the effects of a possible medical condition."). Once again, the opinions expressed by the detective involved medical science and, by statute, were inadmissible as lay opinions.

Of course, Detective Flachsbarth's opinions which he expressed during the interviews were obviously designed not to provide expert testimony but to persuade Edmonds to admit to physical actions that injured the baby. While such persuasion may be permissible in the context of encouraging admissions by suspects during law enforcement interviews, without redaction or a limiting instruction, a jury may erroneously view such claimed expertise as substantive evidence to prove the critical elements of causation or great bodily harm at trial.

To be clear, as fully and carefully analyzed by my colleagues, I agree that in this case the district court's error was harmless and, therefore, not reversible. My concern is that in another one of these difficult cases, where the defendant does not essentially acknowledge his wrongdoing, and the expert testimony is not so compelling and uncontroverted as in this case, the erroneous admission of a similar recorded interview may constitute reversible error.


text:
    KDL, INC., Appellee, v. SINGH, LLC, Swarnjit Singh, and Surinder Pal Singh, Appellants, and Karan Gambhir and Khawar Ali, Defendants.
    No. 119,876
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    David R. Schapker, of Evans & Mullinix, P.A., of Shawnee, for appellants.
    Brandon T. Pittenger, of Pittenger Law Group, LLC, of Overland Park, for appellee.
    Before Buser, P.J., Pierron and Bruns, JJ.
    MEMORANDUM OPINION
   Per Curiam:

In violation of the two-garnishment rule in K.S.A. 2018 Supp. 60-733(g), KDL, Inc. (KDL) requested, and the district court issued, three orders of garnishment directed at three financial institutions against the five defendants. The district court quashed the third order of garnishment requested. Singh, LLC; Swarnjit Singh; and Surinder Pal Singh (the Singhs) appeal.

FACTS

On January 28, 2015, KDL petitioned the district court for damages against the Singhs, Khawar Ali, and Karan Gambhir for default on a commercial lease agreement. The court entered judgments in default against Ali and Gambhir for the amount of $142,596.64 in January 2016. In July 2016, the court granted summary judgment against the Singhs for the same amount.

On May 10, 2018, KDL submitted three requests for garnishment to the clerk of the district court; the first was directed to Bank of America, the second to Community America Credit Union, and the third to US Bank. The clerk issued the three requested orders of garnishment to the financial institutions in reverse order. Bank of America, the subject of the first order requested, but last order issued, indicated it was holding approximately $136,000 of the Singhs' money that was potentially subject to garnishment.

On May 31, 2018, Ali moved to quash the garnishments because K.S.A. 2018 Supp. 60-733(g) prohibits more than two garnishments to be issued by the same party seeking an order of garnishment applicable to the same claim against the same judgment debtor in any 30-day period. Ali argued the district court must quash all three orders of garnishment because KDL did not comply with the statutorily required procedures. The following day, he filed an amended motion to quash the garnishment orders to include his acknowledgement that K.S.A. 2018 Supp. 60-733(g) allows for a judgment creditor to file more than two garnishment requests after seeking and receiving an exemption from the district court. KDL failed to seek an exemption.

Nearly two weeks later, KDL filed a motion for leave of court to issue three garnishments. As required by K.S.A. 2018 Supp. 60-733(g), KDL certified that the garnishments had not been filed to harass the defendants and it had no reason to believe the garnishee had property or credits of the defendants that were exempt from execution.

The district court heard the motion to quash the garnishments on June 22, 2018. Ali and the Singhs argued the court should have quashed all three garnishments and made KDL start over because of its violation of the two-garnishment rule. KDL contended that in the past, situations like this had been resolved by the clerk of the court who filed the first two orders requested and not the third. It asserted the error did not require the court to reject all orders.

The district court concluded:

"Unfortunately, I don't have any clear precedent or case law to guide me. I've never had this issue come up in front of me before. I even asked around. I don't know that any other judges in this district have had this issue come up before, so here's where we are. And my ruling today is going to be based on a couple of principles. Obviously, the principle of fairness, but fairness both to the defendants that need protection from any kind of prejudicial garnishments or inappropriate garnishments, but also to plaintiffs who the Court is to help obtain their monetary judgment that was previously issued so I've got to balance that.
"And the second principle here is I want to do what I think is consistent with local practice and will set, because you're all in front of me for these kind of matters on a continuous basis, and I think that we need to set some consistency as to what the Court is going to do with these kinds of matters.
"There's a statute, there's a local rule on point, so here's what I'm going to do: I am going to grant the motion to quash but only as to one of the garnishments. I am quashing the third garnishment. The third garnishment in this instance will be the one that was sought third. I'm using the definition of seeking as I think [Ali] pointed out to me the statute uses. The last one sought is the one that gets tossed because that is what the Court is viewing in violation of the two garnishment rule."

The Singhs appeal. Ali and Gambhir are not parties to this appeal.

ANALYSIS

The Singhs contend the district court erred in interpreting K.S.A. 2018 Supp. 60-733(g) as prohibiting a judgment creditor from requesting more than two garnishments as the statute actually prohibits the court from issuing more than two orders of garnishment. They assert the district court lacked the authority to issue the third order of garnishment directed at Bank of America because it had already issued the orders to US Bank and Community America Credit Union. The Singhs claim the third order was issued with respect to statutory procedures but without statutory authority and so it is void and must be vacated for lack of jurisdiction.

Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). We must first attempt to ascertain legislative intent through the statutory language, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). Though only a part of the statute is being challenged, we must review the statute as a whole when considering legislative intent. See Vakas v. Kansas Bd. of Healing Arts , 248 Kan. 589, 596, 808 P.2d 1355 (1991) ("The general purpose of the legislation as shown by the statute as a whole is of primary importance.").

"Garnishment is a procedure whereby the wages, money or intangible property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order." K.S.A. 2018 Supp. 60-729(a). The procedure for obtaining an order is entirely statutory. Master Fin. Co. of Texas v. Pollard , 47 Kan. App. 2d 820, 822-23, 283 P.3d 817 (2012) (citing LSF Franchise REO I, LLC v. Emporia Restaurants, Inc. , 283 Kan. 13, 19, 152 P.3d 34 [2007] ). After 14 days following the judgment, a party may use garnishment as an aid to collect the judgment. K.S.A. 2018 Supp. 60-731(a). Garnishment is not a cause of action but is considered an ancillary or auxiliary proceeding. Associated Wholesale Grocers, Inc. v. Americold Corp. , 293 Kan. 633, 646, 270 P.3d 1074 (2011) (citing DeKalb Swine Breeders, Inc. v. Woolwine Supply Co. , 248 Kan. 673, 680, 809 P.2d 1223 [1991] ).

Under K.S.A. 2018 Supp. 60-733(g),

"No party shall seek an order of garnishment attaching funds, credits or indebtedness held by a bank, savings and loan association, savings bank, credit union or finance company except on good faith belief of the party seeking garnishment that the party to be served with the garnishment order has, or will have, assets of the judgment debtor. Except as provided further, not more than two garnishments shall be issued by a party seeking an order of garnishment applicable to the same claim or claims and against the same judgment debtor in any 30-day period."

The Singhs argue the statute provides two restrictions. First, it restricts a party seeking a garnishment order directed at a financial institution to only requesting such an order when the party has a good faith belief that the financial institution has or will have assets of the judgment debtor. Second, the statute restricts the district court from issuing more than two garnishment orders in any 30-day period sought by a party, applicable to the same claim and against the same judgment debtor. They claim the court's finding that KDL violated the two-garnishment rule misinterpreted the statute as the rule applies to the district court, not KDL. The Singhs assert that without the certifications, findings, and order required for an exemption, the court did not have the authority to issue the third order of garnishment directed to Bank of America because it was concerning the same claim, same judgment debtors, and filed the same day as the orders to US Bank and Community America Credit Union. They argue Kansas courts recognize orders entered under statutory procedures and without statutory authority are void and so the order of garnishment issued to Bank of America must be vacated.

KDL misunderstands the Singhs' argument as asking us to quash all orders of garnishment issued and argues the district court exercised sound discretion in compliance with the intent of the statute. The Singhs argued at the district court level that all three orders should have been quashed. Here, they only request that we quash the third order issued.

KDL claims K.S.A. 2018 Supp. 60-733(g) "contains a limitation on the amount of garnishments that can issue in a thirty day period" and the district court properly quashed the order for the third requested garnishment. It claims the court properly considered the principles of fairness and future direction for counsel and made the equitable decision by balancing the interests of both parties. KDL argues the district court may base its determinations on "its own good judgment or discretion as to what justice demands, in view of the facts pleaded and evidence adduced." Blair Constr., Inc. v. McBeth , 273 Kan. 679, 692, 44 P.3d 1244 (2002) (citing Nelson v. Robinson , 184 Kan. 340, 345, 336 P.2d 415 [1959] ).

We must first determine whether the second restriction in K.S.A. 2018 Supp. 60-733(g) prohibits action by the party seeking an order of garnishment or the district court. If the restriction prohibits the party, the district court properly quashed the third order requested as the party had no authority to request it. If the restriction prohibits the district court, the court lacked jurisdiction in issuing the third order and so it is void.

The first step in statutory interpretation is determining if the plain language of the statute provides legislative intent. The second restriction states: "[N]ot more than two garnishments shall be issued by a party seeking an order of garnishment applicable to the same claim or claims and against the same judgment debtor in any 30-day period." The Singhs assert that the use of the word "issued" requires application of the restriction toward court action. However, legislative intent cannot be gleaned through use of the single word because when viewing the phrase, it is ambiguous. If the Legislature intended "issued" to mean an action by the district court, the next word should have been "for" rather than "by" as the use of the term "by the party seeking" suggests the actor is the plaintiff. However, for that interpretation, the term "issued" should have been "requested."

Further lending to the uncertainty over legislative intent is the use of and meaning of "garnishment." The restriction refers first to a "garnishment" being issued and then to an "order of garnishment" being sought. Under K.S.A. 2018 Supp. 60-729(a), "[g]arnishment is a procedure whereby the wages, money or intangible property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order." According to Black's Law Dictionary 794-95 (10th ed. 2014), "garnishment," as applied here, may refer to, (1) the judicial proceeding in which the creditor asks the court to order a third party to turn over the debtor's property or, (2) the judicial order by which the property is turned over. In saying "not more than two garnishments shall be issued," the definition of garnishment meaning an order would make sense, as garnishment is issued, but an order is specifically referred to as the "order of garnishment" in the same sentence. In doing so, the Legislature left open the question of whether "garnishment" refers to the order or the procedure.

When reviewing the statute as a whole to determine legislative intent, the allowance for an exemption from the two-garnishment rule seemingly shows the rule applies to the party seeking the order of garnishment. To obtain an exemption, the party seeking more than two orders of garnishment must certify that the garnishment is not for the purpose of harassment and provide facts demonstrating to the satisfaction of the district court that there is reason to believe the financial institution has property or credits of the judgment debtor that are not exempt from execution. K.S.A. 2018 Supp. 60-733(g). When reading the statute as a whole, it appears the three parts of the statute-the two restrictions and the exemption-all provide instruction to the party seeking orders of garnishment.

We find the statute involved is not ambiguous. Even if we found the statute to be ambiguous, the result would be the same. We must consider various provisions of the garnishment act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Friends of Bethany Place v. City of Topeka , 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). K.S.A. 2018 Supp. 60-732 and 60-734 have similar roles as K.S.A. 2018 Supp. 60-733 as they pertain to the different types of property to which an order of garnishment may attach. K.S.A. 2018 Supp. 60-732 addresses orders of garnishment when the garnishment attaches to intangible property and other earnings, and K.S.A. 2018 Supp. 60-734 addresses orders of garnishment when the garnishment attaches to earnings.

All three of the statutes address orders of garnishment prepared by the party seeking orders which are then issued by the clerk of the court. The statutes provide instructions to the party seeking garnishment as to what information must be included in the order and on the answer form for the garnishee. The statutes also provide the effects of the orders of garnishment on the property listed and the responsibilities of the garnishee. Significantly, these statutes appear to be instructing the party seeking garnishment and the garnishee. The statutes refer to the orders of garnishment as the document submitted to the clerk of the court and only discuss action by the district court in specific circumstances requiring determinations beyond merely the issuance of the order.

Because the statutes similar to K.S.A. 2018 Supp. 60-733 that address the attachment of debtor's property instruct the parties as to the requirements and effect of orders of garnishments submitted by the party seeking garnishment, we interpret K.S.A. 2018 Supp. 60-733(g) as providing two restrictions to the party seeking garnishment. The Singhs argue the district court did not have statutory authority to issue the third order of garnishment; therefore, the third order issued was void. However, because the prohibition applies to the party seeking garnishment, KDL did not have the authority to submit the third request; therefore, the third request is void. KDL issued the request for US Bank third, and the district court properly quashed the garnishment order directed to US Bank.

Affirmed.