*1 88,720 No. Kansas, Appellee, Jr., Appellant. Jones,
State v. Charlie M. (85 1226) P.3d filed Opinion March Curtis, defender, assistant the cause and Mary was on the appellate argued brief for appellant. Peterson, cause, Debra S. assistant district A. attorney, argued Lesley Isherwood, Foulston, assistant district Hola district and Phill attorney, attorney, Kline, were on the brief for attorney general, appellee. delivered the court was opinion M. Charlie conduct between Nuss, concerns sexual This case *2 J.: A con- and his natural and jury stepdaughter. daughter Jr., Jones, incest, of him two counts one count of victed of aggravated rape, child, a and one liberties with indecent count of one aggravated to a then incest. The count of sentencing separate jury proceeded a unanimous verdict and rendered finding presence phase later used as three of which were factual six aggravating allegations, of 32 months on an durational factors to upward departure impose The dis- convictions. incest for one of the sentence aggravated confinement. him to 840 months’ tiren sentenced trict court Jones in his direct raises four issues now appeal: evidence court err 1. Did the district regarding a child under the liberties with for indecent conviction plan 60-455? of K.S.A. exception 394, Gould, 271 Kan. State v. the time interval between
2. During K.S.A. 21- (2001), the 2002 amendments to an 4716, have did the district court authority upward impose if a found the existence sentence durational jury departure factors? aggravating to use a court was authorized
3. If district separate upward did such durational procedure sentencing procedure, departure the United Amendments to the Sixth Fourteenth violate Constitution? States when Clause Did the district court violate Double
4. Jeopardy a criminal score based on history sentencing rape Jones factual incest based on A and for finding jury’s aggravated a sexual that he was predator? 20-3018(c), transfer our to K.S.A.
Our pursuant jurisdiction a new trial the convictions and remand for own motion. We reverse 1, issues which makes the of error on issue because remaining moot.
FACTS in 1990 after from M.
Charlie Jr., paroled prison Jones, He with a child of indecent liberties convicted being M.W., W., Wichita, the mother of where he met Lorie moved to one of the victims this case. In October alleged Jones, M.W., old, Lorie and then 9 moved in years together. Jones Lorie considered their a common-law relationship marriage.
M.W. testified that after she turned 12 in shortly August to have sexual intercourse with her. She does not recall began Jones of sexual contact before that time. con- any type occurring Jones tinued to have sex with M.W. at least once week until July sometimes her bed and other times the bedroom he shared with Lorie. M.W. testified that she and also had sex in the Jones room of the house. Sometimes that M.W. living requested Jones and Lorie have sex with him in the same room at the same time. told her he loved and cared for her According very Jones much. She testified she still loved him much. very At the time the intercourse between alleged began M.W., Lorie and had two small children of their own and *3 Lorie was with a third. In after pregnant approximately activities, M.W., of sexual then told Lorie that years had Jones been sex with her. M.W. further testified that she heard her having mother tell conversation, about the but the activities contin- Jones ued.
In case, the other victim in this moved May S.J., alleged into the household. She is natural from a daughter Jones Jones’ and was born 1983. At the time she previous marriage May in, moved her mother was a sentence and her serving prison living with an aunt was not out. therefore arrangement working Jones obtained court testified custody through proceedings, though S.J. had not seen each other at least 6 When moved they years. S.J. in, she a M.W., shared bedroom with who 15was months younger. in, Two weeks after moved in a allegedly engaged S.J. Jones M.W., sex act with and Lorie in the room one group S.J., living after the three small children had been to bed. evening put S.J. testified that had her about a “little approached Jones cult . . . with that existed He witchery things” family. her initiation, told that oath, involved an an and then participation all three women would have sex with him. On that occa- specific sion, he first fondled M.W. while alone with vaginally S.J. them. to all three women then dressed in their According S.J., their turn and took i.e.,
“colors,” different colored having lingerie, he the couch while him seated on with pene- intercourse digitally afterward, told all the that M.W. testified trated the others. Jones occurred, M.W. was this At the time loved them. that he women 16. had turned 14 and just S.J. with her one to to have sex continued testified that Jones S.J. time until the 1999 incident this times week two up following per 2001 after the house moved out of According she turning July room, in the in sex acts to she was forced living engage S.J., with the bath- bedroom, the bedroom she shared shed, In addition to kitchen, and the room, camper. S.J.’s with to have sex continued M.W. testified testimony, in 2001. her 16th incident and after the sex her birthday past group — 30,2001, that S had moved the month On police July J. out — incident violence to a domestic involving responded Jones. S.J. over were she telephone arguing S.J., According of a end her “what business threatened to show when Jones irritated the comment testified she was was for.” She shotgun conversation, the time of the threats. At and sick of his S.J. mother, a her to file who with her police encouraged boyfriend’s officer, contacted the threat. When about by police report S.J. sexual also mentioned the threat but not ongoing alleged only the Ex- file a with told her to The officer abuse report by Jones. (EMCU) Police of the Wichita Child Unit and Missing ploited from EMCU met with detective That same day, Department. S.J. and described the abuse. ever M.W. denied resultant investigation, Initially during and would often but was sex extremely fragile Jones, having *4 Nevertheless, her interview on and break down July cry. following children the three took M.W. and authorities younger Jones October, and social In late into police custody. police protective The first 30 with M.W. another interview services conducted interview, then but she went much like minutes began July the interviewer’s abuse disclose the sexual by answering alleged me.” “where hasn’t he touched question abuse, M.W. had been the time of the caring alleged During home her children as the three by schooling permitted younger schedule. She testified if told her other found out people Jones about their sexual activities that the children would be taken away, which she did not want to After the authorities happen. July did not allow her to see them 2 months. After her except every October, interview late she was allowed to see them police every other week. 8,2001,
On November an amended information was eight-count filed Seven counts various against incorporated allegations Jones. of sexual abuse committed and which against Jones S.J. occurred at different intervals of time. allegedly
Prior trial, to the the State filed a motion January jury to K.S.A. 60-455 to introduce 1988 con- pursuant seeking Jones’ viction for indecent liberties with intent, a child to show his plan, The district court ruled the evidence was admis- preparation. sible for trial, At defense counsel renewed purpose plan only. his to the evidence and asked for a objection continuing objection. At defense counsel’s the district court in- request, gave limiting struction to the to the witness’ be- jury prior testimony again fore its deliberations.
The State introduced the indecent liberties evidence through the 1988 L.D., conviction and journal entry through testimony the victim. L.D. testified that she was bom in 1973 and that July mother, Loretta, her natural married when L.D. was ap- Jones 8-10 old. In when L.D. was proximately years May approx- old, child, Loretta birth to imately years gave S.J. L.D. testified that when she was began molesting approx- Jones 8 or 9 clothes, old. He did so off her touch- imately years by taking her with his hands and himself on her. ing penis, rubbing but never achieved sexual intercourse with L.D. She attempted masturbate, testified he would area, fondle her and breast vagina and tell her that he loved her. He also wanted her to she loved say him. L.D., these incidents occurred in her bedroom if
According home, no room, one was wherever” in the dining “just house. would come into her at room with her mother night in the next room and would also take her from school so sleeping he could molest her. She testified that on about four occasions
418 and once in a small her in a little bathroom stall molested
Jones lived. travel trailer where the family her mother about the abuse L.D. testified that she never told it a secret. She and that told her to eventually keep reported Jones one it, 1988 when L.D. was January pled guilty Jones with a child. count of indecent liberties cross-examination, counsel established that L.D.’s On defense and there was no talk never in those activities mother participated colors, rituals, values." of or “family he testified for the defense. denied Several flatly people Jones He also maintained that at the ever abused M.W. or sexually S.J. Lorie, his time sex incident of S.J., group involving — — and M.W.’s mother corrob- back was Lorie his wife injured. his denial that the M.W. and orated by testifying allegations S.J. false and that she had no were sexuallyabusing knowledge Jones’ witness, M.W. them. Another a and friend of neighbor S.J. in the home for home school- who was almost present daily Jones’ testified that she never observed or was told which ing, anything have indicated was M.W. would sexually abusing Jones testified that she was in the M.W.’s Additionally, grandmother a and never saw home on basis weekly any inappropriate touching that between and either M.W. or She further testified Jones S.J. M.W. times if was her and M.W. she asked several molesting Jones said “no”. testified beginning May Finally, employer — incident al- 1999 when the sex mid-July group through — occurred and the abuse of began taking legedly S.J. leave from work for a back injury. of the convicted juiy following charges: conduct involving For S.J.: I:
Count incest in violation of K.S.A. 21- Aggravated
3603(a)(2)(A), 5 level involv- severity felony person the victim then 16 but under 18 ing S.J., years age 29, 1999, between May years age, occurring 12, 2001. and May 21-3602, II:
Count Incest in violation of K.S.A. level severity the victim then felony S.J., person involving *6 13, of and 2001, between years age, occurring May 1, and 2001. July
For conduct involving M.W.:
Count IV: in violation of K.S.A. 2002 21-3502(a)(2), Rape Supp.
a level 1 the victim severity person felony involving M.W., then under 14 of and be- years age, occurring 22, 1997, tween 22, 1998. August August Count V: child, indecent liberties with a in violation Aggravated 21-3504(a)(l)
of K.S.A. a level 3 fel- severity person M.W., old, the victim then 14 ony involving years 23, 1998, between occurring August August 2000.
Count VI: incest in violation of K.S.A. 21- Aggravated
3603(a)(2)(A), the victim then 16 involving of but less than 18 of years age years age, occurring 23, 2000, between August June was found not of the three Count guilty remaining charges: III, criminal VII, threat criminal Count S.J.; involving aggravated M.W.; VIII, and Count criminal sodomy involv- involving sodomy M.W. ing
ANALYSIS
Issue: Did the district court err in evidence regarding conviction indecent liberties with a child under the plan KS. A. 60-455? exception of
Few areas of our
have been
to more con-
jurisprudence
subject
views and decisions than the
of K.S.A. 60-455.
flicting
application
Rucker,
State v.
816, 824,
(1999).
inAs
Rucker,
will not
this case solve
“[w]e
of the
any
problems
of
cases.”
wrong specified his or her to prove disposition commit crime or civil as the basis for an inference that the com- wrong person but, mitted another crime or civil on another occasion wrong specified subject K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove intent, motive, plan, preparation, material fact opportunity, some other including added.) K.S.A. mistake or accident.” or absence of (Emphasis identity knowledge, 60-455. 986 P.2d State v. Tiffany,
According
of evidence
review for the admission
(1999),
our standard
several
K. A. 60-455 contains
under
S.
misconduct
parts.
sexual
the facts
one of
relevant to
(1)
must be
The evidence
spec
prove
(3)
fact; and
statute; (2)
material
the fact is a
in the
ified
disputed,
out
to be admitted
the evidence
value of
sought
probative
met,
are
If these three
its
requirements
prejudice.
weighs
potential
the trial' court
whether
review is limited to
appellate
scope
is abused
State unrelated evidence the rationale describes prior admitting under K.S.A. 60-455: acts to show plan at least has been under under 60-455 to show upheld “Admission of evidence plan evidence, the crimes unrelated to charged, In one the two theories. though a defendant to method used modus or by admitted to show the general operandi crimes. but unrelated similar totally perpetrate under acts to show evidence of unrelated plan “The rationale for prior acts is so similar to method of 60-455 is that the committing prior K.S.A. the same individual that it is reasonable to conclude in the case tried utilized being to show the the evidence is admissible plan acts. In such cases committed both the defendant to and conduct utilized accomplish method of or operation crimes or acts. omitted.] [Citation crimes or acts is admissible held evidence of line of cases has prior “Another between direct or causal connection prior where there is some to show plan added.) and the crimes conduct charged.” (Emphasis
421 tests the first his claim that argument theory. Specifically, Jones’ conviction evidence was irrelevant to show rests on prior plan the contention that “the crime was not similar to sufficiently the crimes for which he was on trial.”
A number of decisions have
the admission of K.S.A. 60-
upheld
evidence
sex cases where the details of the
for the
plan
crime and the crime for which the defendant was on trial were
See,
Rucker,
similar.”
826-29;
267 Kan. at
“strikingly
e.g.,
Tiffany,
497-502;
267 Kan.
Damewood,
at
682;
Aldaba,
Kan. at
State v.
29 Kan.
189-92,
2d
(2002).
P.3d 149
In State v. Tol
App.
son,
(2002),
The facts of this case fail to meet either standard of similarity. for this conclusion is demonstrated support by comparing conduct L.D. to the later conduct involving involving each of the victims in this case. alleged we find some similarities. Both L.D. and
Beginning M.W. were the sexual abuse when were stepdaughters, began they *8 12 or the incidents in occurred various rooms younger, throughout house, would tell the he loved them. He ex- girls Jones told L.D. secret, the conduct a while he pressly keep implied to M.W. lose the three chil- secrecy by saying they might younger dren if revealed, the conduct was she did not want to something differences, have however, The were substantial. happen. Jones tried but never intercourse with L.D. but did so with accomplished M.W. at on least a basis for several his weekly years. Additionally, sexual encounters with intercourse, M.W. with while began directly to L.D.’s hers ended according testimony began essentially Moreover, with isolation, abused L.D. while fondling. only M.W., Lorie, one and on acts there were sex Jones, involving group occasion, S.J. involv- measured conduct
The conduct
against
involving S.J.
was
L.D. is even more dissimilar.
biological daughter
ing
S.J.
Jones’
old, not a
was 16
activities
when she
whose sexual
years
began
8 or 9
when she was
like L.D. whose abuse began
stepdaughter
inter-
activities
with sexual
old. Additionally,
began
years
S.J.’s
as with L.D. Further-
course in a
not fondling
private
group,
oc-
more,
the fold of sexual abuse
into
already
brought
S.J.
there was
M.W. under the
in the household against
guise
curring
rituals,
“colors,”
while L.D.
“cult”
witchery,
family
involving
with her.
the conduct
like this occurred
admitted
Finally,
nothing
intercourse one to two
consisted of sexual
involving
primarily
S.J.
L.D.,
week,
with the
while the conduct
times
exception
involving
similarities between
excluded intercourse.
only
attempts,
their
were
L.D. and
besides
the conduct
S.J.,
gender,
involving
them and
them to
them both he loved
told
subjected
Indeed, several of the sim-
activities in numerous locations.
sexual
with L.D. on the one hand and
ilarities between
conduct
other,
one
and various
and M.W. on the
e.g.,
gender,
S.J.,
locations,
scenarios. See
child sexual abuse
bemay
present many
Davidson,
rev.
v.
372, 384, 65 P.3d
State
2d
App.
denied
Compare
defendant
abused until
victims
puberty;
5-year-old stepchildren
lubricant,
areas with his
until
rubbed their vaginal
penis
applied
kill
if
threatened to
their
them they protested,
ejaculation, slapped
(similar
to entice
In there was insufficient evidence simply presented show a distinct method of that could be considered operation “sig- nature” or similar” or even “similar for K.S.A. “strikingly enough” 60-455 the district court erred admit- purposes. Consequently, conviction evidence under the con- ting plan exception tained in that statute.
Now that we have established that the evidence was not admis- sible to show we next consider whether the error was harm- plan, less. We discussed the harmless error rule in State v. recently (2002): Henry, Syl. ¶ the admission or exclusion of evidence is measured “Normally, harmless error rule. In if the erroneous admission or exclusion of evidence is determining harmless, the if court must consider it is inconsistent with substantial appellate i.e., and, not, affects the substantial of a defendant justice, if whether this rights little, court can declare a reasonable doubt that the error had if beyond any, likelihood of the result of the trial.” having changed We start that the absence of evidence of by observing physical abuse transformed this case into a batde. On the one credibility hand, testified and denied the His cor- allegations. employer Jones roborated that the time claimed the sex incident during group S.J. her, occurred and the abuse was on a 2-month began Jones leave from work for back wife and M.W.’s injury. Lorie—Jones’ her mother —corroborated husband’s denial. A who was friend girl to M.W. and was almost neighbor present daily S.J.—who home—testified that she never observed or was told which would have indicated was anything sexually abusing Jones M.W. M.W.’s testified that she was in the Finally, grandmother basis, home on never saw be- weekly any inappropriate touching tween and either M.W. or and when she asked M.W. S.J., her, several if said, times was M.W. “No.” molesting State, For the the two victims’ about the abuse testimony alleged witnesses, corroborated the accounts told other only by they Furthermore, M.W. was reticent in including police investigators. and, counsel, abuse as defense her disclosing alleged argued by initial disclosures of abuse in a interview conducted 3 police *10 her have been motivated interview after her first
months may with the small her would lead to the disclosures belief reunifying Indeed, after her October cared whom she children for deeply. much more often. disclosures, the children was allowed see she have been made Moreover, accusations as may argues, S.J.’s threats to show and in retaliation alleged against anger Jones’ end of a her “the business shotgun.” have be- of all the In jury testimony presented, might light the 1988 it not for the admission of version were lieved prior Jones’ evidence, it meet the That since failed to evidence. conviction plan 60-455, created the in K.S.A. have listed may unfairly exception the numerous had a to commit inference that disposition was the which he had been The conduct crimes for prior charged. mentioned at least four times in the State’s case was focal point “This in the statement: in its including following closing argument, [L.D.], and he had He molested defendant is not rehabilitated. with I ask sexual intercourse sexual intercourse [M.W.]. [S.J.], he is each of these counts ’cause that find him guilty.” you guilty we conclude the evidence unduly prejudicial, Accordingly, doubt that its are to declare reasonable and we unable beyond litde, if likelihood of erroneous admission had changed any, having Indeed, evi- trial. the result of the Syl. Henry, ¶ when, sexual dence of a defendant’s prior particularly misconduct— here, the conduct for which he is both the conduct and as convert to evidence on trial involve minors—can easily presently stated As court or other impermissible purposes. propensity Peden, 1992): (5th v. 961 F.2d Cir. in United States character, “[Ajdmission the defendant’s bad acts to show simply prior wrongful character is more to commit a that one of bad likely possessed notwithstanding not, and blind it to the real than one who is crime likely jury prejudice crime For whether the defendant is of the example, issue of guilty charged. case, that the its but decide feel unsure that the has government proven jury may wish to defendant is an evil who anyway. jury may person belongs prison act, that he even if are unconvinced the defendant for they punish Moreover, be unconvinced that the the act may committed jury charged. act, at least than committed committed either but he more likely defendant them and should be one of punished.” Therefore, case must be reversed and remanded for a new Jones’ trial. All issues concern errors remaining alleged sentencing
which are moot and should not arise of State v. Kes- again light sler, 202, 216-17, (2003).
Reversed and remanded. I with the J., dissenting: respectfully disagree majority Davis, of the defendant’s con- opinion regarding admissibility viction for indecent liberties with a I child. with the trial agree court’s admission of this conviction under the plan exception would, therefore, K.S.A. 60-455. I affirm the defendant’s convic- *11 in tions this case.
There can be no doubt that the evidence of sexual mis- prior conduct in this case related to the under K.S.A.60- plan exception the defendant denied sexual contact with Although having any his minor victims, or minor natural the in- stepdaughter daughter, victim, the crime testified that he had. The cluding prior question is whether the trial court abused its discretion in the presented admission of the defendant’s conviction. While the majority review, mentions this as the standard of briefly being appropriate standard, did not articulate the majority opinion fully following nor did the this standard: my opinion majority apply “The admission of evidence lies within the sound discretion of the trial court. An [Citation court’s standard of trial omitted.] review court’s appellate regarding evidence, rules, admission of is abuse of discretion. subject exclusionary Judicial fanciful, discretion is abused when or unreasonable. judicial If rea arbitrary, sonable could differ as to the of the action taken the trial persons propriety by court, then it cannot be said that the trial court abused its discretion. One who asserts that the trial court abused its discretion bears the burden such showing 1366, 1378, abuse of discretion. State v. [Citation omitted.]” Jenkins, (2002). P.3d 47
The cites to a number of our decisions majority opinion past Damewood, 676, 682, State v. 783 P.2d 1249 including (1989), which describes the rationales for evidence of admitting unrelated acts to show under K.S.A. 60-455. One such plan rationale advanced Damewood is as follows: “Admission of ev- idence under 60-455 to show has been under at least plan upheld evidence, unrelated to the crimes
two theories. In one
though
the modus
or
is admitted to show
operandi
general
charged,
un-
similar but
method used
totally
perpetrate
by defendant
added.)
Thus, the facts herein establish a of criminal pattern escalating sexual activities between the defendant and in his young girls living (L.D.) home. The facts in the conviction involved the de- fendant a woman with an 8-to The marrying 9-year-old daughter. home, defendant fondled L.D. on occasions in the out of the many else. Sexual intercourse did not occur. As to presence anyone M.W., the defendant moved with M.W. and her 9-year-old mother, as his common-law wife. He had sexual intercourse with M.W. in areas of the home while he and M.W. were alone. many After this had been on for several the defendant went going years, to court to secure of his natural custody daughter, S.J., age whom he had not seen for 6 after the defendant years. Shortly home, moved his into his his activities escalated into daughter himself, sex both and the common-law wife. group involving girls, All three victims were who became available to the young girls defendant in his residence his entered into having marriage with the mothers or his cus- relationships girls’ acquisition legal of his natural escalation the level of sexual tody daughter. with each new victim as the defendant became activity increasingly emboldened does not diminish the factual basis supporting 60-455; fact, under K.S.A. it the find- finding plan supports his the defendant was able to his increas- ing. Through plan, satisfy sexual desire for involved in a familial ing young girls relationship with him.
Some of the dissimilarities referenced in the majority opinion between L.D. and M.W. could be described as “acciden- primarily tal” or irrelevant to the similarities in the sexual abuse. The fact that the defendant but never intercourse attempted accomplished L.D., but achieved intercourse with M.W. and actually S.J., was not so much a dissimilar act as it was a failed to com- attempt a similar act. The crucial is that the defendant wanted plete point to have sexual intercourse with his stepdaughters daughter those desires. attempted satisfy
Furthermore, the fact that the defendant have may engaged sex with and his common-law wife but did not group S.J., *13 428 mother, L.D. and her who had no in sex with
participate group abuse, the sexual irrelevant whether of seemingly knowledge in abuse of his the defendant did fact both sexually stepdaughters His to add new variations while he was isolated with them. decision of to his or method of acts members sexual plan oper- family the defendant’s not discount the similarities between ation does true he was alone with his or tried and methods when daughter dissimilarities, these rather than the focus on stepdaughters. crimes, the between the is where I believe true similarities majority is wrong. dissimilarities, relies
In its focus the the majority part upon 383-84, 372, Davidson, Kan. 65 P.3d State v. 31 2d upon App. (2003), (now 276 971 in which rev. denied Kan. Judge Jus- Damewood, 676; tice) v. Beier discussed the State Rucker, (1999); Kan. and State v. 987 P.2d Tiffany, (1999), cases ex- plan regarding K.S.A. Davidson held that it was reversible under 60-455. ception bases, under error to admit 60-455 evidence various including However, in Davidson’s conduct and the plan. comparing crime, and, addition, court found some similarities charged acts do not several dissimilarities as of match “[m]ost charged in with the and the victims were dif- behavior engaged girls, However, in this Kan. 2d at case the ferent genders.” App. similar, defendant’s behavior and the victims were re- was quite and the same lated gender. instead of dissimilari-
An similarities example upon focusing is illustrated where defendant was with ties Tiffany, charged of a friend to masturbate him forcing 7-year-old granddaughter until he The district court admitted evidence ejaculated. crimes sex that the defendant had masturbated front uncharged his of his 5- or and made her rub until 6-year-old penis daughter his that his 8- had rubbed or daughter ejaculation, 9-year-old penis at and masturbated his that he had his request, exposed penis of a 13- or he was at the front boy hving 14-year-old time. this court noted that the evidence admitted lim-
On appeal,
as similar acts
ited to a
similar” method
“strikingly
operation,
*14
acts,
were
the
used to entice
victims into
the requested
performing
all
the victims were
about the
same
the criminal conduct
age,
in the same manner. The court concluded that
performed
Clements,
Damewood and State v.
Kan.
“
(1992),
case,
controlled the
as
method used . . .
‘[t]he general
is similar
to
a
show common
that is tantamount
enough
approach
”
Clements,
to a
Unlike in this court focused on the majority Tiffany similarities between the acts than rather the dissimilarities between and the acts crime. The court could have as prior charged just well said that the acts dissimilar were because involved they a defendant, victim to the related involved a of a victim different involved situation where victim did not mas- gender, actually defendant, turbate the involved victims from 5 ranging age such, to 14. acts, As the similarities between the rather than the dissimilarities, should be the main focus of the analysis.
Whether under the rationale of similar” or “similar “strikingly a wide of latitude is trial to the court to enough,” degree granted make a as decision to whether such evidence is similar to enough allow it into evidence under K.S.A. 60-455 to show As indi- plan. above, cated seems state our of standard review but majority resolves this case as matter that of law the evidence is not simply similar The ultimate is whether trial court enough. question abused its discretion the defendant’s indecent admitting liberties with a child conviction. In the decision of the my opinion, fanciful, trial and, court was not or unreasonable at the arbitrary, least, reasonable differ could as to the very persons propriety the action taken the trial court. by (PIK)
The Pattern Instructions for Kansas Comments relating crimes other note that this court taken a has more proof “liberal view” of K.S.A. 60-455 evidence sexual mis- 52.06, E, conduct PIK cases. See Crim. 3d II. Comment p. Our decisions set forth in this dissent and the de- majority stems, cision the PIK Comments. This liberal view supports my from the basic that similarities exist in lands of these cases opinion, and the modus which occur. The sexual acts operandi frequently of the and occur because visited minors
are relationship upon It is this basic the defendant in a familial cultivated trust setting. whether the conduct as to past inquiry similarity triggers ad- the crimes is when of the defendant charged compared Damewood, 245 Kan. at modus See missible to show operandi. 681-82. in sexual misconduct cases for this liberal view
Further support law. Federal Rule of Evidence found federal statutes case *15 is ac- 413(a) “In a criminal in which the defendant case provides: assault, of the an of sexual evidence defendant’s cused of offense ad- of sexual assault is of another offense or offenses commission missible, matter its on to and be considered for bearing any may Likewise, Rule of Evidence 414 ex- it is relevant.” Federal which in that rule to admit child molestation offenses tends prior prose- on matter. for molestation for its relevant cutions child bearing any Fed. R. Evid. 413 and statutes, the Tenth the of these
In constitutionality upholding existed for Court of noted that reasons Circuit Appeals plausible 414, interest of Rule the the enactment of legitimate including effective of sexual prosecution objective enhancing Congress’ need assaults the “particular corroborating government’s child of the in of sexual abuse of a because evidence cases highly sex often the nature of these crimes because secretive only child’s United available is the omitted.]” [Citation proof testimony. Castillo, (10th 1998). v. 140 F.3d Cir. While K.S.A. States crimes ev- is not as 60-455 permissive prior certainly admitting cases, the idence in sexual misconduct the reasoning enacting the more liberal con- federal statutes is persuasive supports cases in that this court has in those the struction applied types past. decisions, conclude, that the facts and
I consistent our past conduct in the circumstances defendant’s prior concerning to some of the instant conviction was similar his conduct enough it to warrant admission of as to charges, especially pertains with a child. the defendant’s conviction for indecent liberties prior similarities, it to con- is difficult I note given particularly elude that the trial court abused its discretion prior conviction evidence.
While K.S.A. 60-455
not
does
include “unfair
lan-
prejudice”
this court read “unfair
into K.S.A. 60-455 in State
guage,
prejudice”
Davis,
v.
54, 57,
(1973),
213 Kan.
Relying upon
may
necessity arising
decision,
out
above
the defendant claims the
crime
However,
evidence was
all evidence that is
unfairly prejudicial.
to a defendant
is
its nature
de
derogatory
prejudicial
fendant’s claim of innocence. Evidence that
or
actually
probably
about the
result under the circumstances of the case
brings
wrong
Clark,
State v.
460, 477,
931 P.2d
“unduly prejudicial.”
(1997).
chance,
In
there was litde
if
that the
my opinion,
any,
conviction evidence in
case
this
about the
result.
brought
wrong
Moreover,
can
60-455(b)
be minimized
K.S.A.
cases
prejudice
instruction,
if
by limiting
especially
given prior
testimony
See,
conviction and before deliberations.
concerning
e.g.,
Lane,
State v.
373, 391,
*16
(1997);
see also
Clements,
McFarland, in the dissent. C.J., joins foregoing