State v. McFadden ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,838
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ERIC E. MCFADDEN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN and ERIC WILLIAMS, judges. Opinion
filed September 3, 2021. Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant, and Eric E. McFadden,
appellant pro se.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: Eric E. McFadden appeals from his jury convictions of five counts
of child abuse, two counts of aggravated indecent liberties with a child, and one count of
rape, all of which occurred while McFadden lived with his girlfriend, K.M., and her
children. Following the verdicts, the district court sentenced McFadden to three
consecutive life sentences, each one a Hard 25, plus an additional 179 months'
imprisonment. McFadden raises three issues on appeal: 1) the district court abused its
discretion when it admitted the children's videotaped interviews during trial, 2) the
1
district court erred when instructing the jury regarding the burden of proof, and 3) the
district court erred by giving the jury verdict forms that listed "guilty" before "not guilty."
After a careful review of the record, we find that none of McFadden's claims are
meritorious and therefore we affirm his convictions and sentences.
FACTS
Around March or April of 2017, McFadden moved in with his girlfriend, K.M., in
a house in Wichita. K.M. had 10 children, 3 of whom she had with McFadden. All the
children, except T.A., K.M.'s oldest child, lived with McFadden and K.M. This case only
involves six of the children––T.J.H., J.M.H., A.L.H., E.S.S., J.J.H., and K.H.M.
During the time period from January through April of 2018, K.M. worked from
approximately 3 or 4 p.m. until 9 p.m. or 12 a.m. five or six days per week. While she
worked, McFadden would watch the children or the older children would watch the
younger children. On April 13, 2018, some of the children devised a plan for T.J.H., one
of K.M.'s older children, to go to the police station while K.M. was at work. The other
children told McFadden that T.J.H. ran away and pointed McFadden in the opposite
direction so T.J.H. would have time to reach the police station.
When T.J.H. reached the nearby police station, he told police officers that
McFadden had physically abused him and his siblings. T.J.H. said that McFadden hit him
and his siblings with belts and extension cords nearly every day once the children got out
of school. T.J.H. also told officers that McFadden had sexually abused his twin sisters,
J.M.H. and A.L.H.
While T.J.H. was talking to police, McFadden went to K.M.'s work and asked her
if she had seen T.J.H. K.M. told McFadden she had not seen him. The two then left
K.M.'s work, but police arrived before they could leave the parking lot. McFadden was
2
placed under arrest, and police informed K.M. that one of the children reported that
McFadden had been abusing the children physically and sexually.
Police officers also went to McFadden and K.M.'s home and took the children to
the Wichita Children's Advocacy Center so they could be interviewed. Police and social
workers recorded the interviews. After those interviews, forensic nurses examined the
children.
On April 17, 2018, the State charged McFadden with five counts of abuse of a
child, all severity level 5 person felonies; three counts of aggravated indecent liberties
with a child, all off-grid person felonies; two counts of rape, both off-grid person
felonies; and one count of aggravated criminal sodomy, also an off-grid person felony.
Counts 1, 2, 3, and 4––aggravated indecent liberties with a child, rape, aggravated
sodomy, and rape, respectively––concerned J.M.H., who was 11 years old at the time.
Counts 5 and 6, both aggravated indecent liberties, concerned A.L.H., who was also 11
years old. Counts 7-11, all abuse charges, concerned T.J.H., J.M.H., E.S.S., J.J.H., and
K.H.M., respectively. McFadden pled not guilty to all charges and requested trial by jury.
During the jury trial, T.J.H. testified about the abuse he faced from McFadden.
Similarly, J.M.H. testified about McFadden's abuse. She also testified about McFadden
asking her if she wanted to make "deals," which meant that she could elect to perform
sexual activities instead of being hit with the belts and extension cords. J.M.H.
specifically described the first time McFadden touched her genital area, as well as
another time McFadden made her have intercourse with him. She could not specifically
remember whether McFadden made her have sex with him on the day T.J.H. went to the
police, but she did remember being examined by a nurse at the hospital.
The forensic nurse testified about her examination of J.M.H. She said that J.M.H.
described the way in which McFadden had sexually assaulted her. The nurse located
3
abrasions in J.M.H.'s genital area, which was indicative of blunt force trauma. The
forensic nurse also collected swabs from various parts of J.M.H.'s body as part of the
examination. A forensic scientist testified to the statistically extremely high probability
that the DNA found on J.M.H.'s genital area and abdomen was McFadden's.
Each of the other children also testified to how McFadden abused them.
Additionally, A.L.H. testified about the times McFadden made her perform sexual acts on
him. Like J.M.H., McFadden also made "deals" with A.L.H.––she could either get hit or
perform sexual acts. The same forensic nurse that examined J.M.H. also examined
A.L.H. Like with J.M.H., the forensic nurse testified that A.L.H. had an abrasion in her
genital area. The nurse said A.L.H. described to her the times McFadden touched her and
attempted to have sex with her, as well as how McFadden physically abused her.
Law enforcement officers also testified about what the children told them.
Additionally, the State admitted the videotaped interviews from T.J.H., J.M.H., A.L.H.,
E.S.S., J.J.H., and K.H.M. McFadden did not object to any of these videotaped interviews
being shown to the jury.
At the conclusion of the trial, the jury found McFadden guilty on all five counts of
abuse of a child. The jury also found him guilty of one count of aggravated indecent
liberties with a child and one count of rape regarding J.M.H. The jury convicted
McFadden of one count of aggravated indecent liberties with a child regarding A.L.H.
However, the jury acquitted him on all remaining counts. The district court subsequently
sentenced McFadden to three consecutive life sentences, each a Hard 25, for his two
aggravated indecent liberties with a child and rape convictions, and an additional
consecutive 179 months' imprisonment for his child abuse convictions.
McFadden has timely appealed his convictions and sentences.
4
ANALYSIS
Admission of the videotaped interviews with the children
In his first issue on appeal, McFadden argues that the district court erred when it
allowed the videotaped interviews of the children to be played before the jury.
Specifically, McFadden contends that the videotaped interviews were cumulative and
served only to bolster the children's testimony. As such, he believes the videotaped
interviews prejudiced his case.
McFadden admits he is raising this issue for the first time on appeal. As we have
noted, McFadden did not object to admission of the videotapes at trial. Generally, issues
not raised before the district court cannot be raised on appeal. See State v. Kelly, 298
Kan. 965, 971, 318 P.3d 987 (2014). However, there are several exceptions to the general
rule that a new legal theory may not be asserted for the first time on appeal, including the
following: (1) the newly asserted theory involves only a question of law arising on
proved or admitted facts and is finally determinative of the case, (2) consideration of the
theory is necessary to serve the ends of justice or to prevent denial of fundamental rights,
and (3) the district court was right for the wrong reason. State v. Johnson, 309 Kan. 992,
995, 441 P.3d 1036 (2019). McFadden relies on the second exception.
However, beyond stating that consideration of the issue would serve the ends of
justice, McFadden fails to explain why the issue was not raised below and why we should
consider it for the first time on appeal, as required by Supreme Court Rule 6.02(a)(5)
(2021 Kan. S. Ct. R. 35). See Johnson, 309 Kan. at 995. In State v. Williams, 298 Kan.
1075, 1085, 319 P.3d 528 (2014), and State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d
1068 (2015), our Supreme Court warned that Supreme Court Rule 6.02(a)(5) would be
strictly enforced, and litigants who failed to comply with this rule risked a ruling that the
5
issue is improperly briefed, and the issue will be deemed waived or abandoned. See State
v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).
Moreover, K.S.A. 60-404 generally precludes appellate courts from reviewing
evidentiary challenges when the party challenging the admission of the evidence failed to
lodge a timely and specific objection on the record. See State v. Dupree, 304 Kan. 43, 62,
371 P.3d 862 (2016). For these reasons, we clearly would be justified in dismissing
McFadden's claim as unpreserved and improperly briefed.
However, in light of the severity of the charges McFadden has been convicted of
and the extremely long sentences he received (totaling approximately 80 years before his
earliest possible release), we choose to address McFadden's claim on the merits, and thus
will determine whether the district court erred by admitting the videotaped interviews.
Admission of evidence involves several legal considerations: determining
relevance, identifying and applying legal principles including rules of evidence, and
weighing prejudice against probative value. See State v. Shadden, 290 Kan. 803, 817-18,
235 P.3d 436 (2010).
First, a court must determine whether the evidence is relevant. All relevant
evidence is admissible unless it is prohibited by statute, constitutional provision, or court
decision. See K.S.A. 60-407(f); Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d
647 (2019). K.S.A. 60-401(b) defines relevant evidence as "evidence having any
tendency in reason to prove any material fact." See State v. Lowery, 308 Kan. 1183, 1226,
427 P.3d 865 (2018).
McFadden does not dispute the relevancy of the videotaped interviews. Instead, he
asserts the evidence was cumulative. Our Supreme Court has previously defined
cumulative evidence as "'evidence of the same kind to the same point, and whether it is
6
cumulative is to be determined from its kind and character, rather than its effect.'" State v.
Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012). We apply an abuse of discretion
standard when determining whether evidence is cumulative. 295 Kan. at 1156.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). As the movant, McFadden bears
the burden of showing such abuse of discretion. See State v. Thomas, 307 Kan. 733, 739,
415 P.3d 430 (2018).
In Kansas, there is a general rule that "prior statements of a witness, consistent
with his testimony at trial, are not admissible in corroboration of his testimony unless the
witness has been impeached and then only for the purpose of rehabilitating him." State v.
Whitesell, 270 Kan. 259, 290, 13 P.3d 887 (2000) (citing State v. Fouts, 169 Kan. 686,
696, 221 P.2d 841 [1950]); see State v. Kackley, 32 Kan. App. 2d 927, 935, 92 P.3d 1128(2004). In Kackley, a panel of our court set forth the rationale for the rule:
"'When the witness has merely testified on direct examination, without any
impeachment, proof of consistent statements is unnecessary and valueless. The witness is
not helped by it; for, even if it is an improbable or untrustworthy story, it is not made
more probable or more trustworthy by any number of repetitions of it. Such evidence
would ordinarily be both irrelevant and cumbersome to the trial and is ordinarily
rejected.'" 32 Kan. App. 2d at 935 (quoting 4 Wigmore on Evidence § 1124 [Chadbourn
rev. 1972]).
However, an exception to this rule exists in rape prosecutions, "where evidence of
the complaint of the prosecutrix is permitted for the express purpose of corroborating her
testimony through the testimony of other witnesses." 32 Kan. App. 2d at 935. In State v.
Washington, 226 Kan. 768, 770, 602 P.2d 1377 (1979), our Supreme Court recognized
this exception and explained that it exists because the failure of a rape victim to
7
complain, or of a delay in making the complaint, tends to discredit the victim's testimony.
And in Kackley, our court extended the rule to child sex abuse cases and noted that in
child sex crime prosecutions, admission of repetitious testimony is characteristic and
generally draws no objection. 32 Kan. App. 2d at 934-35.
Here, the State admitted the videotaped interviews from the six children––T.J.H.,
J.M.H., A.L.H., E.S.S., J.J.H., and K.H.M. And, as we have noted, McFadden did not
object to any of these videotaped interviews being shown to the jury. Additionally, the
police officers also recounted what the children told them when they were interviewed, as
did the forensic nurse, all without defense objections.
The presentation of evidence in this case is similar to what occurred in State v.
Harwood, No. 114,476, 2017 WL 945767 (Kan. App. 2017) (unpublished opinion).
There, a young child accused Harwood of putting his genitalia in her mouth when
Harwood babysat her. The child told her parents, who eventually took her to a hospital
for examination. The child also told a detective something similar when the detective
interviewed her. During trial, the child testified to a consistent account of what occurred.
A forensic biologist also testified about Harwood's DNA being found on the shirt the
child wore the day the sexual assault occurred. At the conclusion of trial, the jury
convicted Harwood of aggravated criminal sodomy.
Harwood raised multiple issues on appeal, including that the district court abused
its discretion by allowing multiple witnesses to testify about what the child told them.
Specifically, Harwood objected to testimony from the child's father, testimony from the
nurse that swabbed the child's mouth, and a videotaped interview of the child's interview
with a detective. His theory of defense was either the crime did not occur or someone else
perpetrated it.
8
Relying on Kackley, the Harwood panel found that the testimony from the
individuals was admissible because the testimony was used to corroborate the child's
testimony. The court also found that the recorded interview was admissible under
Kackley because it was used as evidence that the child made the complaint against
Harwood within days of the crime. Similarly, our court concluded that the district court
did not abuse its discretion by allowing the nurse to testify about what the child told her
because the nurse usually obtained a history of her patients to guide her examination.
Additionally, the nurse's testimony was not introduced as independent evidence of the
aggravated criminal sodomy. 2017 WL 945767, at *4-5.
A comparable series of events occurred here. Just as in Harwood, McFadden's
theory of defense was that A.L.H. and J.M.H. fabricated their stories. See 2017 WL
945767, at *4. However, in our case the children themselves testified about what
occurred, and multiple others recounted what the children told them when they were
being interviewed and examined. The videotaped evidence as well as the statements of
police and the forensic nurse which were presented to the jury were used for the purpose
of corroborating the children's testimony, not as independent evidence of the charged
crimes. As such, we conclude that the district court did not abuse its discretion when it
allowed the videotaped interviews of the children or the testimony from the police
officers and nurses about what the children told them. By logical extension, this means
that the corroborating testimony could not be considered as cumulative.
However, even if we were to conclude that admission of the additional evidence of
which McFadden complains was erroneous as cumulative, we would need to determine
whether the district court's error was harmless. When an error infringes upon a party's
federal constitutional right, a court will declare a constitutional error harmless only where
the party benefiting from the error persuades the court "beyond a reasonable doubt that
the error complained of will not or did not affect the outcome of the trial in light of the
entire record, i.e., proves there is no reasonable possibility that the error affected the
9
verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]). The State, as the party
benefiting from the error, bears the burden of proving harmlessness. See 292 Kan. at 568-
69. To do so, the State argues:
"[The] admission of the videotaped interviews was harmless at best as the strength of the
remaining evidence was sufficient to sustain defendant's convictions. That is, reversal is
not warranted when defendant's convictions did not rise and fall on the videotaped
interviews. Rather, the evidence before the jury still included the testimony from each of
the children regarding what defendant had done to each of them and their siblings, the
forensic nurses who examined the children, the detectives, and the forensic scientist who
analyzed the DNA evidence. And, even more telling, the jury acquitted defendant on
three of the sex-crime charges."
We find the State's arguments to be persuasive. Even without the videotaped
interviews, the testimony from the children and other witnesses adequately demonstrated
that McFadden was guilty of the crimes for which he was convicted. Each of the children
testified about the abuse they suffered from McFadden. A.L.H. and K.H.M. also testified
specifically about instances where McFadden made them perform sexual acts with or on
him in exchange for not hitting them with belts or extension cords.
Similarly, the forensic nurse that examined A.L.H. and J.M.H. located abrasions in
the genital areas of both J.M.H. and A.L.H. She also testified about the swabs collected
from J.M.H., and the forensic scientist testified to the statistically extremely high
probability that the DNA found on J.M.H.'s genital area and abdomen was McFadden's.
Additionally, it is significant that the jury acquitted McFadden on one count of
aggravated indecent liberties with a child, one count of aggravated criminal sodomy, and
one count of rape, indicating that they gave careful consideration to the evidence as it
related to each individual child victim.
10
In sum, the State's evidence at trial, independent of the videotaped interviews,
demonstrated McFadden's guilt beyond a reasonable doubt. If an error occurred, we
believe there is no reasonable probability the error affected the verdicts. See Ward, 292
Kan. at 569. In short, we find no merit to McFadden's first argument on appeal.
The jury instruction on burden of proof
For his second point on appeal, McFadden argues that the district court erred when
instructing the jury on the burden of proof. The disputed portion of the instruction states:
"If you have no reasonable doubt as to the truth of each of the claims required to be
proved by the State, you should find the defendant guilty." (Emphasis added.) McFadden
contends the phrasing of the instruction discouraged the jury from exercising its power of
nullification.
Our Supreme Court has outlined the methodology we are to use when confronted
with a complaint about a jury instruction:
"'When analyzing jury instruction issues, we follow a three-step process: "(1)
determining whether the appellate court can or should review the issue, i.e., whether there
is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." [Citation omitted.]'" State v. Keyes, 312 Kan. 103, 107, 472 P.3d 78 (2020).
At the first step, we must assess issue preservation. Once again, McFadden
acknowledges he did not request his preferred version of the burden of proof instruction
during trial but contends that we should still review the issue.
K.S.A. 2020 Supp. 22-3414(3) states, in part, that "[n]o party may assign as error
the giving or failure to give an instruction, including a lesser included crime instruction,
11
unless the party objects thereto before the jury retires to consider its verdict . . . unless the
instruction or the failure to give an instruction is clearly erroneous." Thus, McFadden is
correct that this court can review the issue, but under K.S.A. 2020 Supp. 22-3414(3), his
failure to request the instruction at trial "limits appellate review to a determination of
whether the instruction was clearly erroneous." State v. Knox, 301 Kan. 671, 680, 347
P.3d 656 (2015).
At the second step, we must consider whether the "'instruction was legally and
factually appropriate, employing an unlimited review of the entire record.'" State v.
McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018) (quoting State v. Williams, 295 Kan. 506,
Syl. ¶ 4, 286 P.3d 195 [2012]). At the third step, we are required to assess reversibility.
Applying the clear error standard, this court "will only reverse the district court if an error
occurred and we are 'firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred."'" McLinn, 307 Kan. at 318. McFadden, as
the party claiming clear error, has the burden to demonstrate the necessary prejudice. See
307 Kan. at 318.
The instruction the district court gave the jury mirrored Pattern Instructions for
Kansas (PIK) Crim. 4th 51.010 (2020 Supp.), which is the standard instruction regarding
the burden of proof. As our Supreme Court has previously stated, "while '[t]he use of PIK
instructions is not mandatory,' it is 'strongly recommended' because they 'have been
developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to
jury instructions.'" State v. Buck-Schrag, 312 Kan. 540, 552-53, 477 P.3d 1013 (2020)
(quoting State v. Dunn, 249 Kan. 488, 492, 820 P.2d 412 [1991]).
McFadden specifically objects to the use of the word "should" in the instruction,
arguing the word discouraged the jury from exercising its power of nullification. Instead,
McFadden contends the district court should have instructed the jury that it "may" find
12
the defendant guilty if it has no reasonable doubt. Stated differently, McFadden is
arguing the instruction was not legally appropriate.
However, as McFadden acknowledges, our Supreme Court rejected an identical
argument in State v. Kornelson, 311 Kan. 711, 721-22, 466 P.3d 892 (2020). There, our
Supreme Court held:
"Kornelson claims the jury should have been instructed that it 'may' convict him
absent reasonable doubt. He asserts the instruction given misstated the law. But this
argument lacks merit.
"In [State v. Patterson, 311 Kan. 59, 68-69, 455 P.3d 792 (2020), cert. denied
141 S. Ct. 292 (2020)], the court held that a similar reasonable doubt instruction did not
undermine the jury's nullification power, and, therefore, was legally appropriate. Telling
the jury it '"should" convict absent reasonable doubt' is appropriate because it is improper
to tell the jury it may nullify. Similarly, the instruction does not 'raise the "directed
verdict" concerns' underlying the court's disapproval of an instruction that did foreclose
nullification as a possibility by mandating that the jury '"'will enter a verdict of guilty'"'
absent reasonable doubt.
"We hold it was not a misstatement of the law to tell the jury: 'If you have no
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find Grady Kornelson guilty.' [Citations omitted.]" 311 Kan. at 721-22.
McFadden asserts Kornelson was wrongly decided but fails to elaborate as to why.
We are duty-bound to follow Kansas Supreme Court precedent unless there is some
indication that it is departing from its previous position. State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017). Neither Patterson nor Kornelson indicate any such
departure is likely. As such, we find McFadden's argument to be without merit. We hold
that the district court did not err when it gave the jury PIK Crim. 4th 51.010.
13
The verdict forms
For his final point on appeal, McFadden argues that the district court erred when it
gave the jury its verdict forms. Specifically, McFadden contends the district court
committed reversible error when it failed "to provide the jury with a verdict form listing
'not guilty' before 'guilty.'"
In previous cases, our Supreme Court has held that "'[w]hile a verdict form is not
technically a jury instruction, it is part of the packet sent with the jury which includes the
instructions and assists the jury in reaching its verdict. It is appropriate to apply the same
standard of review applicable to review of instructions.'" State v. Fraire, 312 Kan. 786,
795, 481 P.3d 129 (2021) (quoting Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1197-98,
221 P.3d 1130 [2009]). Thus, the same three-step standard of review set forth in Keyes,
312 Kan. at 107, is also applicable to this issue.
During the instruction conference at trial, McFadden requested that the not guilty
option appear before the guilty option on the verdict forms, which the district court
denied. By making such a request, he has preserved the issue for appellate review, thus
complying with the first step.
Proceeding to the second step, we must determine whether the instruction was
legally and factually correct, using an unlimited standard of review of the entire record.
Fraire, 312 Kan. at 796.
Instead of listing not guilty before guilty on the verdict forms as McFadden
requested, the district court used the standard version for all 11 counts on the verdict
forms. McFadden acknowledges that our Supreme Court previously decided the issue
adversely to his position in State v. Wesson, 247 Kan. 639, 652, 802 P.2d 574 (1990),
superseded on other grounds by statute as stated in State v. Rogers, 282 Kan. 218, 225,
14
144 P.3d 625 (2006). There, when considering whether the verdict form that listed guilty
before not guilty violated the defendant's presumption of innocence, our Supreme Court
held:
"A defendant is presumed innocent and the jury is so instructed. The purpose of a trial is
to determine if the accused is guilty. We see no prejudice to the accused and, in any
event, instruction 16 would cure any possibility of error. Instruction 16 reads, in pertinent
part:
'The State has the burden of proving the defendant is guilty. The
defendant is not required to prove he is not guilty. You must assume the
defendant is not guilty unless the evidence convinces you of the
defendant's guilt.'" 247 Kan. at 652.
Here, the district court instructed the jury in the same manner regarding the burden
of proof and presumption of innocence with Instruction 20. McFadden also acknowledges
that our Supreme Court reaffirmed the Wesson holding in State v. Wilkerson, 278 Kan.
147, 159, 91 P.3d 1181 (2004). Nonetheless, he argues that both cases were wrongly
decided. But, as the State points out, our Supreme Court recently once again considered
and rejected a nearly identical argument in Fraire. There, our Supreme Court held:
"Fraire argues that Wesson and Wilkerson were incorrectly decided. He contends
the Wesson court was wrong when it stated that the purpose of a trial is to determine
whether a defendant is guilty. He points to Duncan v. State of La., 391 U.S. 145, 155, 88
S. Ct. 1444, 20 L. Ed. 2d 491 (1968), where the court stated that criminal defendants have
the constitutional right to a jury trial 'in order to prevent oppression by the Government.'
"While the purpose of a jury trial in different contexts may be debated, Fraire
makes no showing at all that the order in which the verdict form presents the options has
any bearing on the likelihood of a jury reaching one verdict or the other. Realistically,
jurors are probably not closely examining the verdict form before they begin their
deliberations, and it is unrealistic to suggest they change their collective conclusion when
the foreperson starts to fill out the form. In the absence of any showing of real prejudice,
15
Fraire gives this court no reason to depart from Wesson and Wilkerson." Fraire, 312 Kan.
at 796.
As we have noted, we are duty-bound to follow Kansas Supreme Court precedent
unless there is some indication that the Kansas Supreme Court is departing from its
previous position. Rodriguez, 305 Kan. at 1144. Our Supreme Court's decision in Fraire
does not indicate a departure from its previous position. Instead it indicates an adherence
to the rule previously pronounced in Wesson and reaffirmed in Wilkerson. Consequently,
McFadden's position on the issue must be rejected for the same reasons our Supreme
Court rejected the same contention in Fraire. We find that the district court did not err
when it gave the jury verdict forms that listed guilty before not guilty.
Affirmed.
***
WARNER, J., concurring: I agree with the majority opinion's analysis of the second
and third claims in Eric McFadden's appeal and concur in the judgment. I write separately
because I do not believe the first claim of error—the admission of the children's recorded
interviews from the Wichita Children's Advocacy Center—is properly before us.
Appellate courts are courts of review. This means we ordinarily only consider
claims that were preserved in earlier proceedings—i.e., claims that were first presented to
the district court. This preservation requirement serves several practical purposes. Most
notably, it allows the district court the opportunity to consider and rule on the parties'
claims, thereby reducing the chance of reversible error and the need for a new trial. And
it allows the parties the opportunity to create a comprehensive trial record, ensuring a
more meaningful review on appeal.
16
Though appellate courts often discuss "preservation" of issues as an overarching
principle, it derives from different sources. Sometimes, the need for preservation is
inherent to the appeal process itself and is defined through caselaw. See, e.g., State v.
Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018) (discussing general rule that
constitutional claims cannot be raised for the first time on appeal). Because this type of
preservation is developed by the courts, courts may also decide when it may give way to
other priorities. Thus, Kansas courts have crafted limited exceptions—largely motivated
by procedural fairness and judicial economy—to allow consideration of some questions
raised for the first time on appeal when that review is otherwise warranted. See State v.
Johnson, 309 Kan. 992, 995, 331 P.3d 1036 (2019); slip op. at 5 (listing the three
judicially created exceptions to the preservation requirement discussed in Johnson).
In other instances—such as when a person is challenging the admission of
evidence—the scope and manner of the preservation requirement is defined by statute.
Under K.S.A. 60-404, "A verdict or finding shall not be set aside . . . by reason of the
erroneous admission of evidence unless there appears of record objection to the evidence
timely interposed and so stated as to make clear the specific ground of objection." Over a
decade ago, the Kansas Supreme Court held that under "the plain language of K.S.A. 60-
404, evidentiary claims . . . must be preserved by way of a contemporaneous objection
for those claims to be reviewed on appeal." State v. King, 288 Kan. 333, 349, 204 P.3d
585 (2009).
Since King, the Supreme Court has clarified that because K.S.A. 60-404's
preservation requirement is statutory, courts cannot modify its directive through
judicially created exceptions. See State v. Brown, 307 Kan. 641, 645, 413 P.3d 783(2018). As the court succinctly explained in State v. Carter, 312 Kan. 526, 535, 477 P.3d
1004 (2020): "Exceptions exist for raising issues on appellate review without expressing
an objection to the trial court, but K.S.A. 60-404 does not allow those exceptions to come
into play in the context of the admissibility of evidence."
17
Here, the majority concludes that even though McFadden did not object to the
admission of the children's recorded interviews at trial, our consideration of that issue is
warranted "in light of the severity of the charges McFadden has been convicted of and the
extremely long sentences he received." Slip op. at 6; see Johnson, 309 Kan. at 995. I
appreciate the majority's qualitative assessment. I agree that, if this claim had been
properly preserved, it would not require reversal for the reasons the majority discusses.
But this court is duty-bound to follow Kansas Supreme Court precedent. State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). And the Kansas Supreme Court
has held that the judicially created exceptions listed in Johnson do not apply in the
evidentiary context.
McFadden did not object to the admission of the children's recorded interviews at
trial. Based on the Kansas Supreme Court's decisions in King and its progeny, I would
find that the evidentiary challenge McFadden now raises for the first time on appeal "is
not properly before the court." Carter, 312 Kan. at 535.
18