Donald M. Lavery appeals the jury’s guilty verdict on the charge of aggravated criminal sodomy pursuant to K.S.A. 21-3506. Lavery contends the district court erred in denying his motion for an order compelling a psychiatric examination of the complaining witness and his motion to admit evidence of previous sexual conduct of the complaining witness and by admitting purported evidence of prior sexual conduct between the complaining witness and Lavery. We reverse and remand for new trial.
K.R., a nine-year-old girl at the time, lived in the same neighborhood as Lavery. Prior to the summer of 1991, K.R. had a good relationship with Lavery’s family. K.R. and Lavery’s daughter, A.L., were close and played together on a regular basis. On a Memorial Day trip to the Lake of the Ozarks, Lavery came into K.R. and A.L.’s room and laid down between the girls. Lavery stuck his hand under the covers, pulled down K.R.’s panties, and touched her vagina. K.R. testified Lavery rubbed her vagina in circles for approximаtely two to five minutes. K.R. further testified she wanted to “scream and stuff” so Lavery would stop it, but she was too scared. Lavery told K.R. to keep the incident a secret.
After the Lake of the Ozarks incident, K.R. continued to see A.L. K.R. wanted to see A.L. and did not think Lavery would do anything like that to her anymore. However, another incident occurred between K.R. and Lavery in early July, which is the basis for this case. A.L. invited K.R. to spend the night at her house. A.L., Lavery, Lavery’s wife Patty, and K.R. watched movies. During the second movie, A.L. got up and went to bed. K.R. stayed in the living room and watched the rest of the second *675 movie with Lavery and Patty. When the movie was over, K.R. went into A.L.’s room to get her nightgown and then went into the bathroom to change because A.L.’s room did not have a door. While K.R. was in the bathroom, Patty had gone into her bedroom to watch television.
When K.R. exited the bathroom, Lavery grabbed her by the arm and told her to keep what was about to happen a secret. Lavery рulled her into the bathroom. Once inside the bathroom, Lavery lifted K.R.’s nightgown and pulled down her panties. Lavery rubbed her' vagina. Then Lavery laid her on the floor and pulled down his pants and his underwear. Lavery laid down on top of K.R. and rubbed his penis on her vagina. Lavery never penetrated K.R.’s vagina. Lavery then moved up and put his penis in K.R.’s mouth. After two to five minutes, Lavery told K.R. to keep what happened a secret and not to tell anyone. K.R. then went back into A.L.’s room and tried to go to sleep. She did not try to leave because the door was locked and A.L. had told K.R. the door was hard to unlock.
Several days later while playing with A.L. and a friend, M.K., at the Laverys’ house, K.R. told A.L. and M.K. what Lavery had done. M.K. talked A.L. into telling Patty what Lavery had done to .K.R. After A.L. went into the house to talk with her mother, Patty came outside, started to cry, and told K.R. to go back to her house. Lavery then walked out of the house, and K.R. could tell that he was mad. K.R. and M.K. started back to K.R.’s house. As they were walking, Lavery came down the street and told K.R., “[H]oney, it’s just between you and me.” Lavery then stated he needed to talk to K.R.
The girls ran into M.K.’s house screaming. M.K.’s mother testified that the girls said a man had been chasing them and that he had touched K.R. in the wrong places. Both girls were frantic, screaming, and crying. M.K.’s mother went outside and met Lavery running in the driveway. M.K. and K.R. had come outside and stood next to her. Lavery said, “Come on, [K.R.], honey. Come with me. We don’t need to get anyone elsе involved.” At this point, K.R. was acting scared to death. M.K.’s mother asked Lavery if he had touched K.R. in the way K.R. said he had. Lavery replied, “I was only playing. I didn’t mean to hurt anyone.” M.K.’s mother told Lavery to leave and that *676 she was going to call the police. M.K.’s mother did not have a phone, so she took the girls to K.R.’s house to call the police. Lavery showed up at K.R.’s door and was hollering for K.R. to open the door. He eventually left when no one answered.
1. Motion to compel psychiatric examination of K.R.
Lavery argues the court erred by denying his motion to compel K.R. to undergo a psychiatric examination. Lavery recognizes that
State v. Gregg,
In
Gregg,
the trial court denied the defendant’s motion for psychiatric examination of the complaining witness in a sex crime case.
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Wagner,248 Kan. 240 , 242,807 P.2d 139 (1991).
Lavery’s motion contended that K.R. had been inappropriately exposed to sex and that she was using that knowledge to falsely accuse him. He presented evidence that K.R. was unsupervised most of the summer, used foul language, was possibly sexually molested by Ronnie Forth, another individual in the neighborhood, and had told a false story about killers in the school basement to two neighborhood girls. The court also noted there was *677 an episode of K.R. “playing doctor” with other neighborhood children.
In making its decision, the court .reviewed all the testimony presented and found there was no evidence presented which would tend to indicate that K.R. was using any knowledge of sexual activity she may have gained through sexual conduct with Forth to fabricate an allegation against Lavery. The court stated the lack of supervision and use of vulgar language did not indicate any kind of mental aberration, flight of fancy, or a lack of truth or veracity. The court concluded that, taken individually or viewed as a whole, the еvidence presented did not reach the “compelling reason” standard set out in
Gregg.
See
In
Gregg,
the question of whether a trial court could order a psychiatric examination of the complaining witness was one of first impression.
In the instant case, there was no evidence indicating K.R.’s contact with Forth affected her mеntal stability or veracity. There was no evidence of similar charges by K.R. against other men proven to be false. There was one instance of K.R.’s telling -a falsehood. However, the falsehood did not involve the subject matter of this case. Based on the compelling reason standard Lavery had to meet, the trial court’s denial of his motion cannot be said to be an abuse of discretion.
Lavery also claims it was unfair for the trial court to allow the State to present the testimony of Barbara Charde while denying Lavery’s motion to compel a psychiatric examination. At the trial, Charde, a mental health professional, testified on behalf of the State. Charde, who specializes in child abuse cases, testified that *678 delayed reporting as occurred in the instant case was not uncommon. She further testified that, through the course of 18 counseling sessions she had with K.R., they had discussed K.R.’s desire to adopt A.L. As of the date of Charde’s testimony, K.R. had abandoned the notion of adopting A.L.
Lavery states in his brief that the State did not proffer Charde’s testimony prior to trial. However, the State told the court it intended to call Charde. The State informed the court that, although Charde had not performed a battery of psychiatric tests on K.R., Charde could provide answers with regard to K.R.’s mental state. Therefore, Lavery was on notice concerning Charde’s testimony.
In
State v. Reser,
Charde testified it is common for children who have been sexually abused to delay reporting the incident. Charde further testified, “In my experience I find that unusual in the fact of how quickly [K.R.] reported, that most of the children I see, the amount of time is longer in reporting.” There was no testimony by Charde that would lead to a conclusion that K.R. needed a psychiatric exam. Lavery cross-examined Charde concerning studies Charde had relied on in forming her opinions and about K.R.’s statement that K.R. wanted to adopt A.L.
Charde did not testify concerning K.R.’s mental stability or veracity. Lavery had notice prior to trial that Charde would testify and had an opportunity to cross-examine Charde; thеrefore, it was not an abuse of discretion to deny Lavery’s motion to compel a psychiati'ic examination of K.R.
2. Previous sexual conduct of K.R.
At a hearing on the motion for a psychiatric examination, La-very presented evidence alleging K.R. had been molested by Forth. Evelyn Davis, a neighbor of.the Laverys, testified that she observed K.R. and Forth together. On these occasions, Davis *679 saw K.R. hugging Forth tightly while riding on his bike and sitting with her legs wrapped around Forth. Davis observed K.R. and Forth going in and out of the house when no one was home. On cross-examination, Davis testified she thought the touching was of a sexual nature. Although she knew that this type of touching between a 23-year-old and a 9-year-old was unlawful, she did not contact the police or K.R.’s family.
Brenda Cupp, who is “real good friends with the Laverys,” also testified about conduct she witnessed between Forth and K.R. Cupp observed K.R. sitting on Forth’s lap, and he had his hand up her dress. It appeared to her that Forth was fondling K.R. Cupp was across the strеet when she saw the activity between K.R. and Forth. She also stated she saw Forth spin K.R. around, causing her dress to fly up. In response to defense counsel’s question, Cupp stated she saw Forth’s hand go up her dress and touch K.R.’s vaginal area; at the time this occurred, Cupp could not tell whether K.R. was wearing any panties. Despite all Cupp had observed, she did not contact the police or K.R.’s family.
Timothy Boyd testified that he happened upon K.R. trying to coerce his youngеst daughter into playing with his three-year-old son’s penis. Boyd also stated he heard K.R. using vulgar language and describing how babies are made. Boyd further testified that K.R. had scared his daughters by telling them about a killer that lived in the basement of their school. Boyd also saw Forth and K.R. together and, on one occasion, Forth had his hand up K.R.’s skirt. On cross-examination, Boyd admitted he never called the police concerning Forth and K.R. Boyd also stated that he had a conversation .with Lavery about Forth after K.R. made her allegations against Lavery. Brent Upton, who lives down the street from K.R., testified that K.R. stated her parents were going to adopt A.L. if she won the case against Lavery.
Lavery argues that the Forth evidence was highly probative because it explained an alternate source of K.R.’s sexual knowledge other than her contact with Lavery. In denying Lavery’s motion, the court held that, by passing K.S.A. 1992 Supp. 21-3525, the legislature indicated, generally, the sexual conduct of the victim is not relevant. The court further stated that K.S.A. 1992 Supp. 21-3525, commonly referred to as the rape shield *680 statute, is designed to preserve the privacy of the victim and to encourage persons to report crimes and to testify.
Once again, Lavery erroneously argues this court’s scope of review is unlimited. In
State v. Bressman,
“The rape shield statute (K.S.A. 1983 Supp. 21-3525) allows evidence of an alleged rape victim’s prior sexual conduct, if it is proved relevant to any faсt at issue, such as the identity of the rapist, the consent of the victim, and whether or not the defendant actually had intercourse with her. Decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, which should not be set aside absent a showing of abuse of discretion.”
The standard of review is abuse of discretion.
The Kansas rape shield statute is applicable to cases involving aggravated criminal sodomy. K.S.A. 1992 Supp. 21-3525(1)(d). The statute states that no reference may be made to evidеnce of the complaining witness’ previous sexual conduct with any person, including the defendant, unless, after an in camera hearing, the court finds the evidence is relevant. K.S.A. 1992 Supp. 21-3525(2).
Courts deciding whether evidence concerning the prior sexual experiences of a child complaining witness is admissible when offered to prove that the alleged victim in a sex offense case was able to describe sexual activity as a result of an experience other than the alleged offense have announced a number of rules on admissibility. Annot.,
Lavery urges this court to adopt the reasoning in
Summitt v. State,
In
Howard,
the defendant was charged with statutory rape for having sexual relations with a girl under the age of 13.
Lavery also cites
State v. Carver,
The State urges this court to uphold the approach taken by the trial court, that is, admitting evidence of prior sexual conduct only when it is reliable and there is a degree of commonality or similarity between the prior act and the act alleged.
The court in
State v. Oliver,
In
People v. Warren,
“Defendant relies on several decisions from foreign jurisdictions in which courts have held that the proscriptions of their rape shield statutes must fall where a showing is made by defendant that the youthful victim’s prior *683 sexual knowledge or conduct is relevant and its probative value outweighs its prejudicial effect. [Citations omitted.] We have reviewed these сases and others in which the admissibility of evidence of a victim’s prior sexual conduct was at issue and find that they do not support defendant’s position in this appeal. In each case in which the courts ruled that inquiry into the victim’s sexual history may be warranted, the defendant had made some preliminary showing that the victim’s prior experience was similar to the sexual conduct for which defendant had been tried.”
In the instant case, the court stated that, if the Forth evidence wаs relevant and would be of probative value to the trier of fact, it would be admitted, notwithstanding the public policy of the rape shield statute. The court further stated that, if the evidence of K.R.’s contact with Forth had been of “fellatio, attempted fellatio, intercourse, attempted intercourse, [or] anything of that nature” it would be admitted. The balancing of the probative value against the prejudicial effect of the Forth evidence is invited by K.S.A. 1992 Supp. 21-3525(2).
The only similаrity between the Forth evidence and Lavery’s actions was that they both had allegedly put their hands down K.R.’s pants. Lavery was convicted of aggravated sodomy. There was no evidence proffered that Forth had sodomized K.R. The Forth evidence was not relevant to the case at hand. Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The fact Forth allegedly put his hand in K.R.’s pants does not tend to рrove whether or not she was sodomized by Lavery.
Furthermore, the court admitted evidence that K.R. had access to pornographic material. The material contained graphic depictions of the kind of sex acts with which Lavery is charged. Consequently, the jury could not draw the inference that the only source of K.R.’s sexual knowledge was her contact with Lavery.
In all the cases cited by Lavery in support of his contention, the complaining witness’ previous sеxual conduct was similar to the acts with which the defendant was charged. It cannot be said that the trial court abused its discretion in disallowing evidence of K.R.’s previous sexual experience because it was not sufficiently similar to the acts charged.
*684 3. The Ozarks incident.
Once again, Lavery erroneously states that this court’s scope of review is unlimited. However, “[t]he admission of evidence lies within the sound discretion of the trial court subject to the exclusionary rules.”
State v. Carmichael,
Lavery argues the trial court erred by admitting evidence of his prior sexual touching of K.R. that occurred at the Lake of the Ozarks. Lavery argues that to admit the State’s prior acts evidence while rejecting his evidence of Forth’s alleged molestation of K.R. as an alternative source for her sexual knowledge was unfair.
The court found the Lake of the Ozarks incident evidence admissible pursuant to
State v. Crossman,
In Crossman, the court stated:
“We conclude that in cases of crimes involving illicit sexual relations or acts between an adult and a child, evidence of prior acts of similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather tо establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged.”229 Kan. at 387 .
The complaining witness in Crossman testified to the complex family relationships between herself, her mother, her siblings, and her stepfather. The sexual relationship between the complaining witness and defendant extended over several years.
To the contrary, in the present case, the Lake of the Ozarks incident is the only evidence of other sexual contact between Lavery and K.R. prior to the contact in this case. The one prior incident at the Lake of the Ozarks is neither sufficient to establish a relationship between K.R. and Lavery nor to prove a continuing course of conduct between the victim and the defendant.
The trial court erred in admitting evidence of the Lake of the Ozarks incident as establishing a course of conduct between La- *685 very and K.R. Based upon the holding in Crossman, the trial court abused its discretion by admitting evidence of the Lake of the Ozarks incident.
Reversed and remanded for a new trial.