State v. Hart
242 P.3d 1230
Kan. Ct. App.2010Background
- Hart charged in May 2008 with two counts of aggravated indecent liberties; amended at trial to indecent liberties with a child (K.S.A. 21-3503(a)(1)) based on dates when C.H. would be 14–15; victims were C.H. (born 1990) and N.B. (born 1991).
- State sought to admit K.S.A. 60-455 prior-bad-acts evidence regarding C.H. and N.B.; Stacy's concerns about K.H. were excluded as too inflammatory.
- Trial court amended the complaint after C.H. testified to place the incident when she would be 14 (2005) and permitted the 21-3503(a)(1) charge; defense did not object to the amendment.
- C.H. testified she believed she was 13 at the time, but possibly 14; N.B. testified to ongoing abuse beginning at age 7; both recounted multiple touching incidents.
- Jury found Hart guilty on both counts; trial court imposed a controlling term of 80 months.
- On appeal Hart challenges sufficiency of evidence, prosecutorial misconduct, a broader-than-charging-document jury instruction, admissibility of 60-455 evidence (and retroactivity/ex post facto issues), and related arguments; the Court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of age evidence for C.H. | Hart contends C.H. was 13, not 14–<16, when the incident occurred. | Hart argues the evidence failed to prove the age required for 21-3503(a)(1). | Sufficient evidence supported conviction; amended charging date aligned with C.H.'s testimony and statutory scheme. |
| Prosecutorial misconduct in closing | Hart claims the prosecutor improperly vouched for credibility of C.H. and N.B. | Hart asserts improper personal opinions influenced the jury. | Only one comment fell outside wide latitude; it was not gross or prejudicial; no new trial required. |
| Jury instruction broader than charging document | Hart argues the jury instruction on indecent liberties was broader than the charging document. | Hart contends this prejudice his defense. | Not reversible; substantial rights not prejudiced; defenses remained intact. |
| Admission of K.S.A. 60-455 evidence | Hart asserts improper admission of prior acts to prove motive/intent/plan and relationship; preservation issues raised. | State argues amendments (2009) make such evidence admissible under 60-455(d). | Evidence admissible under 60-455(d) retroactively applied; no reversible error given relationship/probative value and preservation stance. |
| Ex post facto and use of 60-455[d] | Hart claims retroactive application of the 2009 amendment violates ex post facto. | State argues procedural change does not alter offense or punishment. | No ex post facto violation; change is procedural and does not affect elements or punishment. |
Key Cases Cited
- State v. Gunby, 282 Kan. 39 (2006) (guides admissibility of 60-455 evidence; proper limiting instructions)
- State v. Trautloff, 289 Kan. 793 (2009) (sufficiency review and age-related charging considerations)
- State v. Wade, 284 Kan. 527 (2007) (clear error standard for jury instructions; prejudicial impact)
- State v. McReynolds, 288 Kan. 318 (2009) (prosecutorial misconduct standard and plain error analysis)
- State v. Stone, 291 Kan. _ (2010) (prosecutorial closing argument latitude)
- State v. Prine, 287 Kan. 713 (2009) (discusses 60-455's role and probative value in sexual offenses)
- State v. Ivory, 273 Kan. 44 (2002) (requisition of how sentence-related facts must be proven)