State v. Moyer, 360 P.3d 384

Background

Defendant Steve Kelly Moyer was convicted of five sex offenses against his daughter J.M., based largely on J.M.’s intake interview, trial testimony, a shed audio recording, a points-agreement notebook, and DNA from a condom and rag.
Defense sought an independent forensic medical exam of the victim; the district court denied it after applying the McIntosh factors and noting available slides and evidence for defense experts.
During deliberations jurors inadvertently viewed an unredacted intake interview (excluded portions), the court removed the DVD, admonished jurors, and replayed the redacted version; the defense moved for mistrial and was denied.
The district court gave a unanimity instruction for Count 1 but not for Counts 2–5; prosecutor’s opening/closing tended to specify particular incidents for those counts and the court analyzed multiplicity and harmlessness.
Issues arose about trial judge recusal because the judge’s son assisted in the arrest and was initially an endorsed witness; the judge struck and redacted the son’s involvement and declined to recuse.
Defense counsel (Mason) had served as guardian ad litem in an unrelated CINC matter and identified a prospective defense witness (J.T.); the court inquired about potential conflict and witness availability but made no explicit finding on conflict; the Supreme Court remanded to determine whether Sixth Amendment counsel rights were violated.

Issues

Issue	Moyer's Argument	State's Argument	Held
Motion for independent physical exam of victim	Court should have ordered a second forensic exam by a medical doctor	SANE exam, slides and existing evidence made a second exam unnecessary	Denial affirmed—no abuse of discretion under McIntosh factors
Jurors viewed unredacted intake interview; mistrial requested	Viewing excluded prejudicial material required mistrial	Error curable by admonition; similar evidence was properly admitted	Denial of mistrial not an abuse—admonition and record made error harmless
Failure to give unanimity instructions on Counts 2–5	Needed unanimity because multiple acts were charged	Prosecutor effectively elected specific incidents in opening/closing; any error harmless	No reversible error; State’s election and general denial defense make error harmless
Limiting instruction under K.S.A. 60‑455	Instruction improperly limited jury from considering propensity evidence	2009 amendment allows prior sexual misconduct as relevant and probative	Any overly restrictive language favored defendant; error harmless/no relief
Prosecutorial misconduct in closing (statement about "always" much physical corroboration)	Comment amounted to personal opinion and facts not in record	Statement was an inference; isolated and not outcome-determinative	Isolated improper factual remark; harmless beyond reasonable doubt
Trial judge recusal (judge’s son involved in arrest/witness)	Family tie and son’s active role required recusal; presumed prejudice	Son was not called, judge struck/redacted son’s involvement; jury unaware	Statutory and Code-based claims denied (no affidavit/harmless); constitutional due process claim denied—no intolerable probability of bias given jury was unaware (majority). Justice Rosen would have recused and reversed
Counsel conflict of interest / ineffective assistance (Mason as guardian ad litem and defense counsel)	Mason’s dual role created conflict and possibly impaired defense (failure to secure J.T. witness)	Court inquired; witness likely unavailable due to medical condition; no deliberate failure	Case REMANDED to district court for Van Cleave proceedings to determine whether Sixth Amendment right to conflict-free/effective counsel was violated

Key Cases Cited

State v. Van Cleave, 239 Kan. 117 (Kan. 1986) (procedure for appellate remand to resolve ineffective-assistance/conflict claims)
State v. McIntosh, 274 Kan. 939 (Kan. 2002) (factors for compelling reason to order independent physical exam in sex cases)
State v. Ward, 292 Kan. 541 (Kan. 2011) (mistrial analysis; harmless-error standards)
State v. Waller, 299 Kan. 707 (Kan. 2014) (mistrial standard and two-step abuse-of-discretion review)
State v. Colston, 290 Kan. 952 (Kan. 2010) (multiplicity/unanimity analysis for multiple-act sex-offense prosecutions)
State v. Sawyer, 297 Kan. 902 (Kan. 2013) (framework for recusal claims: statutory, code of conduct, due process)
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (U.S. 2009) (objective due-process standard where probability of bias is intolerable)
State v. Vann, 280 Kan. 782 (Kan. 2006) (duty to inquire when potential counsel conflict becomes known)