494 P.3d 248
Kan. Ct. App.2021Background
- Victim C.U. reported in 2017 that she was sexually abused around age 7–8; she initially misidentified a different man then identified Johnny C. White. White had a prior 2014 conviction for aggravated indecent liberties with his granddaughter.
- Police interviewed White twice in August 2017; after a polygraph administered by KBI, White ultimately confessed in the August 17 interview to touching C.U., denying she touched him.
- Pretrial: White moved to suppress the 2017 confession as coerced by the polygraph; the court denied suppression but excluded any evidence of the polygraph (including that one was taken or failed). The court admitted the 2014 video confession as propensity evidence; White later stipulated to the 2014 conviction mid-trial.
- At trial the jury saw the redacted 2017 confession video and the 2014 confession video; testimony highlighted inconsistencies in C.U.’s recollection and interrogation tactics used by police.
- Jury convicted White of one count (lewd touching) and acquitted him of the second (forcing C.U. to touch him). Posttrial the court sentenced White to an off-grid Jessica’s Law sentence but the journal entry mistakenly ordered lifetime postrelease supervision and electronic monitoring.
- On appeal White challenged exclusion of polygraph evidence, the midtrial amendment of charging dates, admission of the 2014 video, cumulative error, and aspects of sentencing. The appellate court affirmed the conviction, found no reversible trial error, but vacated parts of the sentence and remanded to correct the journal entry.
Issues
| Issue | White's Argument | State's Argument | Held |
|---|---|---|---|
| Exclusion of polygraph-related evidence | Exclusion prevented a complete defense and hid coercive circumstances of confession | Polygraph evidence (and related facts) is inadmissible absent a stipulation; admitting it risks undue weight/speculation | Affirmed exclusion; Kansas precedent bars unstipulated polygraph evidence and rejects limited-purpose exception here |
| Midtrial amendment of charging dates (2009 → Jan 25, 2008–Dec 31, 2009) | Amendment prejudiced alibi defense and surprised him, denying substantial rights | Date was not an essential element; evidence at trial showed uncertainty about year; defense elicited the testimony supporting the change | No abuse of discretion; amendment did not prejudice substantial rights and time was not critical |
| Admission of 2014 videotaped confession as propensity evidence | Video was highly prejudicial and unnecessary after White stipulated to the 2014 conviction; less prejudicial proof existed | Admissible under K.S.A. 60‑455(d); video showed propensity and was probative; State chose video to avoid calling the prior victim | Assumed admission error for argument’s sake but found any error harmless given stipulation, Gerdsen’s testimony, and White’s 2017 admission; conviction affirmed |
| Cumulative error | Multiple evidentiary rulings together denied a fair trial | Errors were not shown or were harmless, so no cumulative prejudice | No cumulative-error reversal; only at most one (harmless) error existed |
| Sentencing (lifetime postrelease supervision; electronic monitoring) | Journal entry illegally imposed lifetime postrelease supervision and court-imposed lifetime electronic monitoring | State agreed journal entry should reflect lifetime parole rather than postrelease supervision; silent on monitoring | Court lacked authority to order lifetime postrelease supervision for off-grid offense and to impose electronic monitoring (Prisoner Review Board sets parole conditions); remanded to correct journal entry and vacate monitoring condition |
Key Cases Cited
- State v. Shively, 268 Kan. 573 (2000) (polygraph results and related evidence inadmissible absent stipulation; limited exceptions rejected)
- State v. Wise, 237 Kan. 117 (1985) (polygraph testimony and references to taking a polygraph are improper absent stipulation)
- United States v. Scheffer, 523 U.S. 303 (1998) (per‑se ban on polygraph evidence does not violate defendant’s constitutional rights)
- Crane v. Kentucky, 476 U.S. 683 (1986) (defendant has a right to present a meaningful opportunity to present a complete defense)
- State v. Boysaw, 309 Kan. 526 (2019) (framework for admitting K.S.A. 60‑455(d) propensity evidence and weighing probative value vs. prejudice)
- State v. Gunby, 282 Kan. 39 (2006) (requires limiting/prejudice analysis when admitting other‑crimes evidence)
- State v. Nunn, 244 Kan. 207 (1989) (date amendments by the State increasing timeframe for child‑abuse charges not necessarily prejudicial)
- State v. Cash, 293 Kan. 326 (2011) (court cannot impose lifetime postrelease supervision for off‑grid offenses)
- State v. Waggoner, 297 Kan. 94 (2013) (Prisoner Review Board, not the sentencing court, sets parole conditions such as lifetime electronic monitoring)