State v. Dean, 298 Kan. 1023

Background

Ten-year-old S.W. reported sexual touching by Donald Ray Dean, who was a family friend; a search of Dean’s home yielded ~140 videotapes including one showing two young girls exposing their genitalia. Dean was charged with rape, aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and sexual exploitation of a child.
The State gave notice under K.S.A. 2009 Supp. 60-455 of intent to introduce Dean’s 1984 conviction for indecent liberties with a child (and the PSI factual basis), testimony from the two women identified in the old video, and several other videotapes focusing on girls’ knees/genital areas.
The district court applied the 2009 amendment to K.S.A. 60-455, admitted the prior conviction and the PSI factual basis for various purposes (including propensity), and admitted three prosecution videos (two as evidentiary context, one forming the sexual-exploitation charge).
At trial S.W. gave limited live testimony but her forensic interview (played for jury) contained more explicit detail; other witnesses corroborated Dean’s close relationship/grooming behavior (rings, graffiti, games). Dean testified and denied sexual contact; he offered alternative explanations for the tapes.
The jury convicted Dean on all counts. The district court later granted a departure from Jessica’s Law but imposed an indeterminate 20 years-to-life sentence (instead of a guidelines departure sentence). Dean appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Dean)	Held
Admissibility under K.S.A. 2009 Supp. 60-455 of prior 1984 conviction and PSI factual basis	Evidence of prior sexual misconduct is admissible for any relevant, probative purpose (including propensity) under the 2009 amendment	Prior conviction, its factual basis, and videos were inadmissible because intent/knowledge were not at issue and the evidence was unfairly prejudicial	Court affirmed admission of the 1984 conviction and PSI factual basis under 60-455(d); district court reasonably limited extremely prejudicial detail and balanced probative value vs. prejudice
Admissibility of other evidentiary videos (focusing on knees/genitals; cuddling video)	Initially sought admission under 60-455 but State later argued some tapes were not prior crimes	Videos were improperly admitted as prior-wrong evidence	Court held the evidentiary videos were not prior-crime evidence subject to 60-455; it declined to treat the State’s initial 60-455 characterization as binding and upheld admission on conventional evidentiary grounds
Jury instruction limiting 60-455 evidence to intent/knowledge	Limiting instruction was appropriate to prevent misuse of prior-bad-act evidence	Instruction was erroneous because 60-455 evidence admitted broadly should have been limited to the sexual-exploitation charge	Court found the given limiting instruction gave Dean more protection than law required (not clearly erroneous) and affirmed
Admission of PSI excerpt (Confrontation Clause)	Admission of PSI factual basis was permissible and not objected to on confrontation grounds	Admitting testimonial statements in PSI without confrontation violated Sixth Amendment	Court held Dean waived Confrontation Clause challenge by objecting only on hearsay grounds; therefore not considered on appeal
Prosecutor misconduct in rebuttal (two remarks)	Prosecutor’s closing and rebuttal were within allowable argument; any errors were harmless	Prosecutor speculated about uncharged abuse of B.B. and expressed impermissible opinion, meriting reversal	Court concluded repeated “guilty” refrain was not improper when tied to evidence; statement that abuse of B.B. “hadn’t happened yet” improperly speculated but was isolated and harmless given overwhelming evidence; no reversal
Legality of sentence (departure from Jessica’s Law)	When departing from Jessica’s Law mandatory minimum, court must impose a guidelines departure sentence	District court properly imposed a lesser indeterminate term (20 years to life) after granting departure	State conceded and court held the sentence illegal: when departing from mandatory Jessica’s Law minimum the court must impose a guidelines sentence; sentence vacated and remanded for resentencing

Key Cases Cited

State v. Prine, 287 Kan. 713 (court observed prior-bad-act evidence in child-sex cases risks propensity characterization)
State v. Prine, 297 Kan. 460 (explaining relevance/probativeness analysis and 60-455 balancing principles)
State v. Spear, 297 Kan. 780 (admissions that prior sexual-misconduct allegations may be used to prove propensity under amended 60-455)
State v. Wells, 297 Kan. 741 (State’s initial characterization of evidence is not binding on appellate court)
State v. Brown, 295 Kan. 181 (standard for reviewing prosecutorial misconduct and harmlessness factors)
State v. Akins, 298 Kan. 592 (harmless-error standard; no reasonable possibility the error contributed to verdict)
State v. Mireles, 297 Kan. 339 (contextual reading of prosecutor comments can render statements non-error)
State v. Bennington, 293 Kan. 503 (isolated prosecutorial remarks not reversible when tied to evidence)
State v. Spencer, 291 Kan. 796 (when court departs from Jessica’s Law mandatory minimum it must impose a guidelines sentence)
State v. Jones, 293 Kan. 757 (vacating sentence can render related Eighth Amendment claims moot)
State v. McCaslin, 291 Kan. 697 (timely and specific objection required to preserve confrontation-clause claims)