State v. Berriozabal, 243 P.3d 352

Berriozabal convicted of rape, attempted rape, and two counts of aggravated criminal sodomy in Kansas Supreme Court case No. 100,291.
Victim M.V., almost 11 when incidents began in 2005–2006, alleged repeated sexual contact by Berriozabal at home with mother and sister absent.
District court admitted prior uncharged sexual conduct evidence under K.S.A. 60-455; defense sought psychological examination and rape-shield-related evidence.
Defense motions: to admit evidence of M.V.'s prior sexual behavior and to compel a psychological examination; both denied.
Trial included limited testimony about Eddie and A.U. conversations; testimony largely mirrored the pretrial evidence of sexual abuse by Berriozabal.
Judgment: guilty on all counts; sentenced to two hard 25 life terms for rape and attempted rape (Jessica’s Law) plus 330 months for sodomies; convictions upheld while sentences for rape and attempted rape vacated and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior uncharged conduct under 60-455	Berriozabal contends admission violated 60-455.	State asserts relevance to motive/intent/plan; court properly balanced probative value and prejudice.	Not preserved; appellate review declined.
Denial of psychological examination of the victim	Compelling circumstances warranted examination.	Totality of circumstances did not justify examination.	No abuse of discretion; denial affirmed.
Exclusion of evidence of prior sexual abuse by relative (rape shield)	Eddie/uncle evidence could explain old injury and was probative.	Evidence too speculative and uncorroborated; should be admitted under shield exceptions.	District court did not abuse discretion; evidence properly excluded.
Constitutional challenge to hard 25 life sentences	sentences violate Kansas Constitution § 9 and Eighth Amendment.	Gomez/Horn framework supports relief; length disproportionate.	Remanded for factual findings; life sentence remains pending review; Eighth Amendment arguments remanded for district court with guidance.
Attempted rape sentence under Horn/McAdam rules	Horn requires nondrug level 1 sentence for attempted off-grid crime.	Rule of lenity requires applying attempt statute.	Affirmed in part; remanded for resentencing to nondrug level 1 for attempted rape.

State v. Gregg, 226 Kan. 481 (1979) (compelling reasons for psychological examination standard; fishing expedition warning)
State v. Wright, 290 Kan. 194 (2010) (preservation requirements for objections at trial)
State v. Richmond, 289 Kan. 419 (2009) (objection preservation in evidentiary rulings)
State v. King, 288 Kan. 333 (2009) (preserving objections to evidentiary rulings)
State v. McMullen, 290 Kan. 1 (2009) (admissibility balancing under 60-455)
State v. Zuniga, 237 Kan. 788 (1985) (60-455 evidentiary framework and admissibility limits)
State v. Stellwagen, 232 Kan. 744 (1983) (rape shield limitations and prior conduct considerations)
State v. Bourassa, 28 Kan. App. 2d 161 (1999) (distinguishing weak prior-act evidence under rape shield)
State v. Gomez, 290 Kan. 858 (2010) (Gomez framework for Eighth Amendment/ Freeman analysis post-Graham)
State v. Seward, 289 Kan. 715 (2009) (necessity of adequate district findings for constitutional challenges)
State v. Horn, 288 Kan. 690 (2009) (lenity rule applying to conflicting sentences for attempted off-grid crimes)
State v. McAdam, 277 Kan. 136 (2004) (identical-elements sentencing doctrine)
State v. Lavery, 19 Kan. App. 2d 673 (1993) (denial of psychiatric examination not an abuse of discretion)