State v. Barber, 353 P.3d 1108

Background

Two-month-old Autumn Barber suffered acute seizures and was hospitalized with subdural hematoma, retinal hemorrhages, and diffuse brain bleeding; treating physicians testified injuries were consistent with shaken baby syndrome and symptoms would appear immediately after injury.
William Barber, Jr. was the sole caregiver when Autumn became symptomatic; he denied shaking her.
Two witnesses (Jolene Brown and Melissa Conner) reported prior episodes where they saw Barber handle or shake Autumn; those statements were elicited at trial (including via an investigating officer).
Barber was convicted by a jury of aggravated battery and child abuse; the district court imposed an upward departure sentence for aggravated battery.
On appeal, Barber challenged (inter alia) admission of prior bad-act evidence under K.S.A. 2010 Supp. 60-455, the sufficiency of a limiting jury instruction, several instances of alleged prosecutorial misconduct during closing, a procedural defect under K.S.A. 22-3421 regarding the verdict inquiry, cumulative error, and an Apprendi-style sentencing argument.
The Kansas Supreme Court affirmed the Court of Appeals and the district court: it upheld admission (or found any admission harmless), sustained the limiting instruction, found some prosecutorial remarks improper but harmless beyond a reasonable doubt, rejected the K.S.A. 22-3421 challenge as unpreserved, found no cumulative prejudice, and declined to revisit precedent on criminal-history scoring.

Issues

Issue	Plaintiff's Argument (Barber)	Defendant's Argument (State)	Held
Admissibility of prior bad-act testimony under K.S.A. 60-455	Prior-shaking testimony was propensity evidence and inadmissible; trial objection preserved only for Brown	Evidence was admissible for material facts (relationship/continuing course) and some objections were unpreserved; even if error, other unchallenged evidence made it harmless	Trial objection to Brown preserved via incorporation of pretrial briefing; even assuming error, admission was harmless because other testimony (Conner, officer) provided same or greater prejudice
Limiting instruction content	Instruction permitting consideration of "relationship" and "continuing course of conduct" allowed impermissible propensity inference	Instruction followed PIK form (modified) and directed jury to limited purposes; juries presumed to follow instructions	Instruction was legally appropriate; not clearly erroneous; no reversible error
Prosecutorial misconduct in closing	Multiple prosecutor statements (attacking Barber personally, stating facts not in evidence, calling timeline "garbage") were improper and prejudicial	Prosecutor largely stayed within reasonable inference; some statements crossed line but were not flagrant and did not affect outcome given strong evidence	Court found several remarks misconduct (some sustained by trial court); but misconduct was not gross/ill-willed and was harmless beyond a reasonable doubt given overwhelming evidence and jury admonitions
Verdict form / K.S.A. 22-3421 compliance	Trial court failed to perform required inquiry whether read verdict was jury verdict; failure requires reversal despite no contemporaneous objection	Issue was not preserved; Cheffen bars raising K.S.A. 22-3421 compliance for first time on appeal	Unpreserved; Cheffen controls; not reviewable on appeal

Key Cases Cited

State v. Inkelaar, 293 Kan. 414 (Kan. 2011) (test and review standards for admission of other-crimes evidence under K.S.A. 60-455)
State v. Gunby, 282 Kan. 39 (Kan. 2006) (framework for admitting other-crimes evidence and need for limiting instruction)
State v. Richmond, 289 Kan. 419 (Kan. 2009) (specificity requirement for trial objections to preserve error)
State v. Williams, 295 Kan. 506 (Kan. 2012) (standards for reviewing jury instruction errors and preservation impact)
State v. Plummer, 295 Kan. 156 (Kan. 2012) (instruction review principles)
State v. Armstrong, 299 Kan. 405 (Kan. 2014) (two-step prosecutorial-misconduct analysis and factors for prejudice)
State v. Ward, 292 Kan. 541 (Kan. 2011) (harmless-error standard under constitutional review)
State v. Cheffen, 297 Kan. 689 (Kan. 2013) (K.S.A. 22-3421 challenge cannot be raised for first time on appeal)
State v. Ivory, 273 Kan. 44 (Kan. 2001) (criminal-history scoring and Apprendi challenges rejected)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (constitutional rule limiting facts that must be found by a jury to increase punishment)