State v. Berriozabal, 243 P.3d 352

Berriozabal was convicted of one count of rape, one count of attempted rape, and two counts of aggravated criminal sodomy; he received two hard 25 life sentences for rape and attempted rape, plus concurrent sentences for sodomy.
The victim, M.V., was nearly 11 years old in mid-2005–July 2006 at the time of the alleged offenses and lived with Berriozabal and her mother.
The State sought to introduce evidence of Berriozabal's prior uncharged sexual conduct with M.V. under K.S.A. 60-455; the district court admitted the evidence subject to a limiting instruction.
Berriozabal moved for a psychological examination of M.V. and for rape-shield/other evidence; the district court denied both motions.
At trial, M.V. testified consistently about the alleged acts; the defense, however, used the prior-acts evidence to impeach credibility.
On appeal, the Kansas Supreme Court affirmed the convictions but vacated the rape and attempted rape sentences, remanding for new findings and resentencing; it also remanded for issues related to Eighth Amendment analysis and for the attempted rape sentence under the rule of lenity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of prior uncharged conduct	Berriozabal argues 60-455 error was preserved.	Berriozabal contends the district court abused discretion in admitting prior acts.	Error not preserved; issue waived; convictions affirmed despite admission
Psychological examination of the victim	Compelling circumstances warranted examination under Price factors.	Court abused discretion by denying examination.	No abuse of discretion; factors did not establish compelling need
Rape shield evidence of Eddie/uncle allegations	Evidence should be admitted to explain healed tear as prior abuse.	Evidence too vague and uncorroborated; admissible only if probative.	District court did not abuse discretion; Eddie evidence excluded
Cruel and unusual punishment challenge to hard 25 life sentences	Life sentences disproportionate under § 9 and the Eighth Amendment.	Statutorily mandated under Jessica's Law; no constitutional violation.	Remanded for adequate factual findings under Freeman/Gomez framework
Sentence for attempted rape under Horn/rule of lenity	Horn requires nondrug level 1 sentence for attempted rape.	Rule of lenity should apply; both statutes applicable; choose lesser.	Nondrug severity level 1 for attempted rape; remand for resentencing

State v. Gregg, 226 Kan. 481 (Kan. 1979) (compelling-reasons standard for psych examination; fishing-expedition concerns)
State v. Bourassa, 28 Kan. App. 2d 161 (Kan. App. 1999) (distinguishable facts; rape-shield consideration)
State v. Blackmore, 15 Kan. App. 2d 539 (Kan. App. 1991) (denial of independent psychiatric exam upheld)
State v. Lavery, 19 Kan. App. 2d 673 (Kan. App. 1993) (no compelling reason for psychiatric examination)
State v. Seward, 289 Kan. 715 (Kan. 2009) (remand for adequate Rule 165 findings for § 9 challenges)
State v. Gomez, 290 Kan. 858 (Kan. 2010) (Gomez framework for Eighth Amendment proportionality challenges)
State v. McIntosh, 274 Kan. 939 (Kan. 2002) (psychology/examination standards referenced in Price/Gregg context)
State v. McMullen, 290 Kan. 1 (Kan. 2009) (basis for admissibility and evaluation of evidentiary decisions)
State v. Stellwagen, 232 Kan. 744 (Kan. 1983) (rape-shield adjacency and prior sexual conduct considerations)
Graham v. Florida, 560 U.S. _ (2010) (Eighth Amendment proportionality framework for terms of years)
Gomez v. State, Gomez, 290 Kan. 858 (2010) (three-part Freeman test for § 9 challenges; need for factual findings)
Horn, State v. Horn (Kan. 2009) (rule of lenity requires lesser sentence when conflicting statutes apply to same offense)
Ewing v. California, 538 U.S. 11 (U.S. 2003) (categorical Eighth Amendment proportionality considerations)