State v. Page, 363 P.3d 391

Background

In Sept. 2008 Page, his 3-year-old son (D.T.), and a 15-year-old neighbor (J.S.) were involved in an incident leading to charges after D.T. was found with fresh bruises and witnesses heard J.S. describe sexual acts involving Page and D.T.
Page was charged with child abuse; alternative counts of aggravated criminal sodomy or aggravated indecent liberties; indecent liberties; and promoting obscenity to a minor. A jury convicted Page of child abuse, aggravated indecent liberties, aiding/abetting aggravated indecent liberties, and promoting obscenity to a minor.
At trial the State presented testimony from Page’s adult cousin describing sexual abuse by Page as a child; the district court admitted it as propensity evidence under the version of K.S.A. 60-455 in effect at trial.
The SANE/SART nurse who examined D.T. at the preliminary hearing (finding anal scarring consistent with penetration) was hospitalized during trial; the court admitted her preliminary hearing testimony after finding her unavailable based on a handwritten doctor’s note and prosecutor testimony.
J.S. testified he witnessed and participated in the abuse and that Page placed pornographic images on J.S.’s MP3 player; investigators recovered 212 pornographic images from the device.
On appeal Page challenged admission of prior-abuse testimony, sufficiency of evidence, nurse’s preliminary testimony (unavailability/confrontation), admission of pornographic images, cumulative error, and lifetime postrelease supervision portions of his sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior-sex-abuse testimony	Evidence admissible to show intent/motive and, under the trial-time statute, propensity	Page argued pre-2009 K.S.A. 60-455 controlled (no propensity) and evidence wasn’t relevant to intent/motive	Court applied statute in effect at trial (permits propensity); admission upheld and Page’s contrary arguments waived
Sufficiency of evidence for aggravated indecent liberties	J.S.’s testimony and physical injuries suffice to prove elements beyond a reasonable doubt	Page argued J.S. was not credible and evidence insufficient	Convictions sustained; accomplice/unreliable witness credibility is for jury, not appellate court
Admission of nurse’s preliminary-hearing testimony (unavailability)	Nurse unavailable; preliminary testimony admissible	Page argued the doctor’s note and prosecutor testimony were hearsay and insufficient to prove unavailability; raised Confrontation Clause concern	Trial court abused discretion by relying on inadmissible hearsay to find unavailability, but error was harmless beyond a reasonable doubt because jury convicted on aggravated indecent liberties and nurse’s sodomy-related testimony likely did not affect verdict
Admission of 212 pornographic images	Images relevant to grooming/intent and admissible	Page objected at trial on relevance; on appeal argued images were unduly prejudicial	Issue not preserved on appeal (different objection raised at trial); appellate review denied
Lifetime postrelease supervision attached to off-grid life sentences	State argued sentence component valid	Page argued court lacked authority to impose lifetime PRS on off-grid life terms	Court vacated lifetime postrelease supervision as unauthorized for off-grid life sentences

Key Cases Cited

State v. Williams, 298 Kan. 1075 (recognizing court cannot impose lifetime postrelease supervision with off-grid indeterminate life sentence)
State v. Cash, 293 Kan. 326 (same rule regarding lifetime postrelease supervision with off-grid life sentence)
State v. Prine, 297 Kan. 460 (discussing admissibility of prior sexual-misconduct evidence and propensity under the trial-time statute)
State v. Hart, 297 Kan. 494 (appellate courts apply evidentiary statutes as they exist at time of trial)
State v. Reed, 300 Kan. 494 (standard for sufficiency review and waiver of unbriefed issues)
State v. Lopez, 299 Kan. 324 (uncorroborated accomplice testimony can sustain conviction)
State v. Bennington, 293 Kan. 503 (harmless-error standard for constitutional claims)