State v. Bliss ( 2021 )

Nos. 120,134
120,252
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant/Cross-appellee,
v.
CHRISTOPHER M. BLISS,
Appellee/Cross-appellant.
SYLLABUS BY THE COURT
1.
When a person has been charged in the alternative, he or she may be convicted and
sentenced on only one of the alternative offenses.
2.
A district court deciding whether to consolidate multiple cases for trial may take
into consideration any evidentiary complications that might arise from the consolidation.
But the fact that consolidating cases might render the admission of some evidence more
difficult, or require that its foundation be established through different methods, does not
render consolidation unreasonable as a matter of law.
3.
Kansas law requires a party to make a specific and timely objection at trial in
order to preserve evidentiary issues for appeal. The purpose of this objection requirement
is to allow the district court to act as an evidentiary gatekeeper—to rule on the
admissibility of evidence based on specific arguments raised at trial, with the context of
other evidence and testimony presented.
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4.
Though courts have recognized exceptions in some contexts that allow the
consideration of issues on appellate review that were not preserved by a specific
objection at trial, K.S.A. 60-404 does not allow those exceptions to come into play in the
context of the admissibility of evidence.
5.
A party seeking to admit evidence at trial must articulate a specific basis for that
admission. Consistent with the specific-objection requirement under K.S.A. 60-404, this
practice ensures that the trial judge has a chance to fully consider whether the evidence
should be admitted and to avoid any reversible error.
6.
A party may not seek to admit evidence on one ground at trial and then offer a
different ground for its admissibility on appeal. The practice of raising new evidentiary
arguments on appeal thwarts the purpose of the specific-objection requirement, deprives
the district court of the ability to fully analyze the admissibility of the evidence in
question, and deprives the reviewing court of the district court's evaluation of that
question.
7.
A party may not knowingly call a witness who intends to invoke the Fifth
Amendment's protection against self-incrimination for the purpose of having the jury
witness that invocation.
8.
Appellate review of a district court's decision to impose a departure sentence
follows a three-step framework. An appellate court first determines whether the ground
given for the departure can, as a matter of law, be considered as a mitigating factor under
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K.S.A. 21-6815. If it can, the appellate court next considers whether the cited ground is
supported by the record. Finally, the appellate court considers the reasonableness of the
district court's assessment that this ground, individually or when combined with other
circumstances considered, constituted a substantial and compelling reason to depart from
the presumptive sentence under the Kansas Sentencing Guidelines.
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed September 24,
2021. Convictions affirmed in part and reversed in part, sentence vacated in part, and case remanded with
directions.
Matt Maloney and Lesley A. Isherwood, assistant district attorneys, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellant/cross-appellee.
Peter Maharry and Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee/cross-
appellant.
Before MALONE, P.J., WARNER and HURST, JJ.
WARNER, J.: A jury found Christopher Bliss guilty of several crimes arising from a
violent argument with his wife. The appeal before us involves issues raised by Bliss and
by the State. Bliss challenges several rulings the district court made before and during his
jury trial, ranging from evidentiary claims to constitutional questions to the sufficiency of
the evidence supporting one of his convictions. And the State challenges the district
court's decision to impose a prison sentence shorter than the presumptive duration under
Kansas law. After carefully considering the parties' arguments, we affirm all but one of
Bliss' convictions, and we affirm the district court's departure sentence.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of March 12, 2017, M.B. arrived at Wesley Medical Center in
Wichita with her 12-year-old daughter A.B. The treating nurse noted M.B. had a cut
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requiring stitches on her right ring finger. Because M.B. primarily speaks Spanish, she
explained through an interpreter that she cut her hand when Bliss—her husband—threw a
plate at her. The nurse reported the injury to police, and Officers Jessica Helwi and Jesus
Soto of the Wichita Police Department responded to the call. After photographing M.B.'s
injury and discussing M.B.'s statement with the nurse, Officer Helwi interviewed A.B.,
and Officer Soto interviewed M.B.
During her interview, M.B. described a series of interactions with Bliss that began
the previous day. Late on March 11, M.B. was lying in bed with her one-year-old son
asleep next to her when Bliss sat down and said he wanted to have sex. After she
declined, Bliss got on top of her, kissing her neck and rubbing her over her clothing.
Although M.B. tried to scream, Bliss covered her mouth with his hand and told her he
would have sex with her whether she wanted to or not. They briefly struggled until the
baby woke up and started to cry; Bliss then left and slept elsewhere.
M.B. told the officer that she and Bliss were in their bedroom the next morning,
again arguing about having sex. Bliss was kissing M.B.'s neck and pulled down her pants
but stopped when he saw A.B. looking in the room. A.B. told Officer Helwi that she went
upstairs after hearing M.B. scream and saw M.B. with her pants pulled down. Bliss,
M.B., and A.B. then went downstairs, and A.B. went outside.
M.B. stated that at some point, she told Bliss that she was tired of arguing with
him in front of their children and no longer wanted to be with him. Bliss punched her in
the arm and stated that if he could not have her, nobody could. M.B. then took their baby
upstairs and started packing a suitcase; Bliss followed and threw the suitcase, and they
began arguing again. During this argument, M.B. noticed the baby had moved near the
staircase. Afraid he might fall, she went to pick him up; Bliss picked him up first and
closed the door, holding it shut for a few moments and trapping M.B. inside the bedroom.
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M.B. explained that when she eventually got out of the room and past Bliss, she
went downstairs to leave through the front door. Bliss reached the door and blocked
M.B.'s exit, telling her to go to the basement. She then began running to the back door,
hoping to move the refrigerator sitting in front of the door. But as she ran to the kitchen,
Bliss threw a plate at her. M.B. raised her arm to block the plate, and the plate cut her
finger. M.B. again attempted to go back to the front door, but in the living room, Bliss
grabbed her by the hair and threw her to the ground. He then began throwing items from
the mantle and threatened to kill her and their children. Eventually, M.B. opened a
window and told A.B.—who was still outside—to call A.B.'s aunt and, later, 911. Bliss
eventually allowed M.B. to go outside to calm the baby, who was crying.
The State charged Bliss with attempted rape, aggravated sexual battery,
aggravated battery, and two counts (charged in the alternative) of aggravated
kidnapping—one to facilitate the commission of attempted rape and the other to inflict
bodily injury on or terrorize M.B. During the pretrial proceedings, the district court
granted a protective order prohibiting Bliss from contacting M.B., and Bliss was released
on bond.
About a month after the incident in March, M.B. reported to law enforcement that
Bliss had called her on the phone, sent her social-media messages, and confronted her at
a local shopping center. The police department also learned that Bliss attempted to call
M.B. from jail, with these calls detailed in the jail's phone records. Based on this
information, the State charged Bliss in a separate case with violating and attempting to
violate a protective order.
M.B. initially cooperated with police officers during the investigation. She spoke
to the police and gave investigators permission to review her medical files. She informed
the police about Bliss' attempts to contact her. She also discussed her concerns with a
victim advocate at the police department. For instance, she described how Bliss' family
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came over to the house where she was staying in an effort to convince her to drop the
charges—actions that eventually led to charges against Bliss' mother. And because Bliss'
family threatened to have her deported—M.B. is not a U.S. citizen—the victim advocate
connected her with an immigration attorney.
M.B. testified at the preliminary hearing in June 2017. During the hearing, M.B.'s
testimony broadly confirmed her statements she provided to police at the hospital, though
M.B. could not recall several details. She also responded to inquiries about Bliss'
postarrest contact with her before indicating that she wanted to stop answering questions.
Bliss cross-examined M.B. regarding the March argument, but he did not inquire as to the
contacts made in violation of the court's protective order.
After the preliminary hearing, M.B. became less cooperative. And in August 2017,
M.B. provided a statement recanting her original accusations to the Sedgwick County
Public Defender's Office—the office representing Bliss. In this recantation, M.B. stated
that on March 11, she and Bliss had been arguing about money. She also stated that they
were going to have sex the next day, but A.B. interrupted them. And she explained that
after they went downstairs, she and Bliss began arguing about money again. She stated
she threw a plate at Bliss, cutting her finger, and her sister-in-law eventually drove her to
the hospital. M.B. went on to describe how she told the prosecutor that she did not want
to press charges but was told the judge would place her in jail and that Bliss would try to
hurt her.
Before trial, the State filed several motions, three of which are relevant to this
appeal:
• The State asked the court to consolidate the two pending cases against Bliss—the
first case arising from the incidents on March 11 and 12 and the second case
involving violations of the protective order. The State explained that the facts in
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both cases were tied together, as the protective order Bliss was charged with
violating in the second case was issued as a condition of his bond in the first case.
• The State indicated that it had been unable to locate M.B. and A.B. to serve
subpoenas for trial and sought a determination that both witnesses were
unavailable to testify. The State sought to admit M.B.'s preliminary hearing
testimony, her statements to police officers, and her conversations with the victim
advocate under various exceptions to the hearsay rule. The State also sought to
admit A.B.'s statements during her 911 call and her statements to Officer Helwi at
the hospital.
• The State requested that the court exclude any evidence of M.B.'s recantation. In
making this request, the State reiterated that M.B. was unavailable to testify. It
noted that the recantation did not fall into any hearsay exceptions.
The district court held a series of hearings to discuss the State's requests and Bliss'
objections. After considering the parties' arguments, the court granted all three motions.
As a result, both cases against Bliss were tried together. Neither M.B. nor A.B. testified
at trial. The jury heard evidence relating to M.B.'s statements to law enforcement at the
hospital and afterward, as well as A.B.'s 911 call and her statements to the officer at the
hospital. The district court also did not allow the jury to hear evidence regarding M.B.'s
subsequent recantation of her statements, though it informed the parties that it would
reconsider that ruling if M.B. appeared and testified at trial.
On the first day of trial, M.B. arrived with court-appointed counsel. Through an
interpreter, she indicated she wished to invoke her right against self-incrimination under
the Fifth Amendment to the United States Constitution. The court discussed this request
with the parties and M.B. outside the jury's presence. Bliss argued that M.B. should be
required to exercise her right against self-incrimination in front of the jury, but the court
7
disagreed based on longstanding Kansas caselaw. M.B. then provided limited testimony
to the court, declining to answer each question asked based on her right under the Fifth
Amendment.
At the close of the trial, the jury found Bliss guilty of aggravated sexual battery,
both counts of aggravated kidnapping, and the lesser-included offense of battery, as well
as violation of a protective order and attempted violation of a protective order. The jury
found that Bliss was not guilty of attempted rape.
Under the Kansas Sentencing Guidelines, Bliss' conviction of aggravated
kidnapping carried the longest presumptive sentence—a range of 203 to 226 months in
prison. Bliss requested both durational and dispositional departures from the guideline
sentence. The district court held a series of three sentencing hearings to hear evidence
and arguments regarding his requests.
During the first sentencing hearing, M.B. appeared and reiterated the statements
articulated in her August 2017 recantation. She also alleged that her statements to police
had been mistranslated, that translators had inserted their own comments in place of her
own, and that she had been intimidated by the prosecutor and detectives into not
testifying at trial. At the two subsequent hearings, the State presented the evidence of
several law enforcement witnesses as an effort to counter M.B.'s allegations.
At the third hearing, the court denied Bliss' request for probation but granted a
durational departure. It noted that Bliss lacked a violent criminal history and, though it
questioned M.B.'s motivation for changing her position articulated at the preliminary
hearing, it took her current wishes into consideration. The court found that the
combination of these two factors warranted a shorter prison sentence than the guidelines
set. The court ultimately imposed a controlling 84-month prison sentence, with the
sentences for all charges in both cases to be served concurrently.
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The State appealed, claiming the district court erred when it granted the sentencing
departure. Bliss then cross-appealed his convictions, raising multiple constitutional and
evidentiary challenges.
DISCUSSION
Though the State initiated this appeal, its challenges relate to Bliss' sentence.
Before we reach these arguments, we must consider Bliss' claims that several of the
district court's rulings—either individually or in combination—require reversal or a new
trial. We then turn to whether the district court erred when it granted Bliss' request for a
durational departure at sentencing. For the reasons we describe below, we affirm all but
one of Bliss' convictions, and we find the district court did not abuse its discretion when
it imposed the departure sentence.
CHALLENGES TO BLISS' TRIAL AND CONVICTIONS
1. The court erred when it entered a sentence against Bliss on both alternative charges
of aggravated kidnapping.
Bliss first argues the State presented insufficient evidence to convict him on one of
the two charges of aggravated kidnapping. He notes that there was no evidence presented
at trial that he constrained M.B. to facilitate his flight. The State concedes the evidence
was insufficient to support that conviction. We appreciate the State's candor on this issue.
But we pause before considering Bliss' remaining issues to underscore an additional and
fundamental error with that conviction: Because Bliss was charged with the two counts of
aggravated kidnapping in the alternative, he could not be convicted of and sentenced on
both charges.
The State charged Bliss with two alternative counts of aggravated kidnapping. At
trial, the district court instructed the jury that Bliss had been charged in Count 4 with
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confining M.B. with the intent "to facilitate flight" and in Count 5 with the intent "to
inflict bodily injury on [M.B.] or to terrorize" her. See K.S.A. 2020 Supp. 21-5408(a)(2),
(a)(3), (b). Despite the absence of evidence on Count 4, the jury's verdict found Bliss
guilty of both charges. The district court then entered judgments of conviction on Counts
4 and 5—treating them as independent, not alternative, charges—and imposed concurrent
sentences of 84 months' imprisonment for each conviction, with the sentence on Count 5
"held in abeyance."
When a person has been charged in the alternative, as Bliss was here, he or she
"may be convicted of only one of the alternative offenses." State v. Garza, 290 Kan.
1021, Syl. ¶ 5, 236 P.3d 501 (2010). This means that the district court could only enter a
judgment of conviction and impose a sentence for one count of aggravated kidnapping.
Bliss does not challenge the sufficiency of the evidence to support his conviction in
Count 5—the aggravated-kidnapping charge based on K.S.A. 21-5408(a)(3), (b). But
whatever the evidence presented, his conviction and sentence relating to Count 4 cannot
stand on its own. See 290 Kan. at 1035. Instead, the jury's verdicts in Count 4 and Count
5 are merged as a matter of law, resulting in only one conviction and sentence. See State
v. Vargas, 313 Kan. 866, 867, 492 P.3d 412 (2021).
We thus remand this case to the district court with directions to enter an amended
journal entry correctly reflecting that Bliss' conviction on Count 4 has merged into his
conviction for aggravated kidnapping on Count 5, which he does not challenge. This
action will result in a single conviction for aggravated kidnapping and a single 84-month
sentence, effectively reversing one of his convictions for that offense and vacating one of
his sentences. Having resolved this matter, we proceed to consider Bliss' other challenges
to his convictions.
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2. The court did not err when it consolidated the two cases against Bliss for trial.
Bliss also argues that the district court erred when it consolidated the two cases
against him for trial, alleging that this decision violated his constitutional right to
confront witnesses against him. Given the framing of Bliss' argument, some additional
background is necessary for context.
As we have previously explained, the district court granted the State's request to
consolidate the two cases against Bliss shortly before trial, finding the cases were
sufficiently factually connected to warrant trying them together. At trial, the State
presented evidence of Bliss' post-protection-order contacts with M.B. primarily through
the testimony of three witnesses.
• Officer Alejandro Avendano explained that he met with M.B. on April 11, 2017,
after she came to a Wichita police station to make a report. Officer Avendano
indicated that M.B. showed him several messages on her phone from Bliss, sent in
the previous two days. The State offered screenshots of these messages through
Officer Avendano's testimony, and the officer (who speaks Spanish) translated
them for the jury. The messages largely consisted of Bliss apologizing, expressing
frustration with the lack of response from M.B., and stating that he missed M.B.
and their children. Bliss asserted a continuing objection based on his pretrial
objections when the screenshots were offered; the court overruled his objection
and admitted them.
• Sergeant Bill Stevens later testified that he met with M.B. at the police station on
April 12. She told him that she had met Bliss at a shopping center and gave
Sergeant Stevens permission to download the contents of her phone. He also
testified that Bliss made three calls to M.B. from jail on April 16, though those
calls were not answered.
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• Captain Jared Schechter testified as a records custodian, allowing the State to
introduce a log of phone calls Bliss made from jail.
On appeal, Bliss points out that while there was a preliminary hearing in the first
case against him, involving his physical altercation with M.B., there was never a
preliminary hearing in the second case involving the protective-order charges. He claims
that the evidence presented to support the charges in the second case was based on
testimonial statements by M.B. to police officers, and as a result of the district court's
consolidation decision, he never had the opportunity to cross-examine M.B. about the
statements. Thus, Bliss asserts, the consolidation of those two cases for trial had the
practical effect of violating his constitutional right to confront witnesses against him.
Although Bliss frames his argument as a challenge to the district court's
consolidation decision, he actually raises two questions for our review. One involves the
court's decision to try the cases together; the other challenges the constitutionality of the
evidence supporting his convictions for violation of a protection order and attempted
violation of a protection order. These are independent questions involving different
standards and considerations, and we must analyze each question separately.
2.1. The district court did not abuse its discretion when it consolidated the two
cases against Bliss for trial.
An appellate court engages in a three-step analysis when reviewing a district
court's decision to consolidate multiple cases for trial.
• First, we determine whether K.S.A. 22-3203—which allows "multiple complaints
against a defendant" to be tried together "if the State could have brought the
charges in a single complaint"—permits consolidation of the cases. State v.
Hurd, 298 Kan. 555, Syl. ¶ 1, 316 P.3d 696 (2013). K.S.A. 22-3202 lists three
12
circumstances where charges for multiple offenses may be filed in a single
complaint, including when the charges are based on two or more acts "connected
together or constituting parts of a common scheme or plan." K.S.A. 22-3202(1).
Whether this condition, or one of the others listed in the statute, is satisfied
requires a mixed assessment, with the appellate court deferring to the district
court's factual findings when they are supported by substantial competent evidence
and exercising unlimited review over the district court's legal conclusions. 298
Kan. at 561.
• Second, when consolidation is authorized by Kansas statutes, we determine
whether the district court abused its discretion in determining whether
consolidation was appropriate in the case before it. After all, even when
consolidation is permissible under K.S.A. 22-3203, a district court is not required
to consolidate cases for trial. Rather, the language in K.S.A. 22-3202(1) is
permissive—stating crimes "may" be joined in a single complaint if one of the
criteria is met—meaning a district court has discretion to decide whether to
consolidate cases that meet the statutory criteria. We will only overturn this
decision if the district court renders a decision with which no reasonable jurist
would agree or bases its decision on an error of fact or law. 298 Kan. at 561.
• Third, if the district court erred in its consolidation decision, we must determine
whether that error affected the substantial rights of the parties. See K.S.A. 2020
Supp. 60-261; 298 Kan. at 561.
Here, the State moved to consolidate the two cases against Bliss before trial,
arguing that they were connected to one another and based on a common scheme or plan.
See K.S.A. 22-3202(1). In doing so, the State pointed out that the protective orders
central to the second case were issued by the court as a condition of Bliss' bond in the
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first case, given the charges of domestic violence against him. And both cases involved
potentially abusive interactions between Bliss and M.B.
Bliss opposed the consolidation. At the initial hearing on the State's motion, he
argued that because there had not been a preliminary hearing in the second case, he never
had the opportunity to cross-examine M.B. regarding her statements to law enforcement
involving the protection orders. At Bliss' recommendation, the court deferred its decision
on the State's motion until it held a hearing on the State's other pending pretrial motions
regarding the unavailability of M.B. and A.B.
After hearing evidence and argument about those issues at a second hearing, the
court found that the parties were essentially in agreement that M.B. and A.B. were
unavailable for trial. The court then heard argument on—and ultimately granted—the
State's consolidation request. The court observed, regardless of any evidentiary concerns,
that the allegations in the two cases against Bliss were sufficiently connected to allow for
consolidation under Kansas law. And though the court noted that it was "somewhat
concerned about the confrontation issue," it nevertheless found that consolidation was
appropriate. In particular, it noted that it was "the State's intention not to rely, at least not
solely, if at all, on the testimony of [M.B.] in order to prove" the allegations related to the
protective orders.
On appeal, Bliss does not contest that K.S.A. 22-3203 permitted consolidation of
these two cases. Instead, he argues that the district court abused its discretion when it
consolidated the cases because he did not have an adequate opportunity to cross-examine
M.B. regarding the protective-order allegations. As such, he argues, the consolidation had
the inevitable result of violating the Confrontation Clause of the Sixth Amendment to the
United States Constitution. We disagree.
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The district court consolidated the two cases shortly before trial—before any
testimony or other evidence was offered regarding any of the charges. Though the court
had found (and Bliss had conceded) that M.B. was unavailable for trial, it had not
admitted any evidence regarding Bliss' violations of the protective orders. Bliss was free
to object to the admission of that evidence on Confrontation Clause grounds during the
trial.
A district court deciding whether to consolidate multiple cases for trial may take
into consideration any evidentiary complications that might arise from the consolidation.
The district court did so here. But the fact that consolidating cases might render the
admission of some evidence more difficult, or require that its foundation be established
through different methods, does not render consolidation unreasonable as a matter of law.
We find the district court appropriately weighed these questions. It did not abuse its
discretion when it consolidated the two cases for trial.
2.2. Bliss' confrontation right was not violated, as he had a previous
opportunity to cross-examine M.B. about the protective-order questions.
Bliss claims that even if consolidation was not improper, this court should
nevertheless reverse his convictions for violation of the protective order and attempted
violation of the protective order. He asserts that the evidence offered to support these
convictions violated his confrontation rights under the Sixth Amendment. The State
counters that Bliss forfeited his right to raise this argument, as he attempted to persuade
M.B. to not appear for trial or to assert her Fifth Amendment rights, making it impossible
for him to cross-examine her. It also points out that although there was no preliminary
hearing in Bliss' second case, he had the opportunity to cross-examine M.B. on issues
relevant to the protection-order charges in the preliminary hearing in the first case.
Because we agree with this second argument—that Bliss did have an opportunity to
cross-examine M.B.—we need not consider the State's forfeiture argument.
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The Sixth Amendment guarantees a criminal defendant the right to "be confronted
with the witnesses against him." U.S. Const. amend. VI. The primary purpose of this
Confrontation Clause is to give a person accused of a crime "the opportunity for cross-
examination to attack the credibility of the State's witnesses." State v. Friday, 297 Kan.
1023, Syl. ¶ 19, 306 P.3d 265 (2013). In Crawford v. Washington, 541 U.S. 36, 54, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that the
Confrontation Clause only applies to "testimonial" statements. But the Clause prohibits
admission of those testimonial statements by a witness "who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination." 541 U.S. at 54; see also State v. Williams, 306 Kan. 175, 182, 392 P.3d
1267 (2017) (analyzing Crawford). Whether the admission of evidence violates the
Confrontation Clause is a legal question appellate courts review de novo. Williams, 306
Kan. 175, Syl. ¶ 1.
Crawford did not provide an extensive definition of what it means for a statement
to be testimonial. But in later cases, the United States Supreme Court has indicated that
statements are likely testimonial if the circumstances objectively indicate that the primary
purpose of the questioning is to establish past events that would be relevant in a criminal
prosecution. If those circumstances indicate the purpose is to help police address an
ongoing emergency, however, the resulting statements are likely nontestimonial. Davis v.
Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); see also
Michigan v. Bryant, 562 U.S. 344, 370-71, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)
(existence of emergency is an important but not dispositive circumstance bearing on
primary purpose of the statement); Williams, 306 Kan. at 182 (listing several factors
courts may consider when evaluating whether a statement was testimonial).
Bliss argues that M.B.'s statements to Officer Avendano and Sergeant Stevens
identifying his messages, calls, and meeting were testimonial. Bliss further asserts that
these testimonial statements were necessary to lay the foundation to admit the pictures of
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the messages he sent to M.B. and to show he intended to call her from the jail. And for
the attempted violation charge, Bliss notes that the State relied on M.B.'s statements to
prove it was her phone number Bliss tried to call from jail.
As a preliminary matter, the State argues that Bliss' continuing objection was
insufficient to preserve his challenge under the Confrontation Clause for appellate
review. See K.S.A. 60-404 (specific and timely objection necessary to preserve an issue
for appellate review). But though other claims in Bliss' appeal raise important
preservation questions, we have no such reservations here. Bliss' confrontation rights
with regard to the protection-order charges were central to the parties' discussion at the
hearing the day before trial. The court was aware of Bliss' concerns and granted a
continuing objection on that basis. See State v. Barber, 302 Kan. 367, 373-74, 353 P.3d
1108 (2015). And Bliss alerted the court to the continuing objection at trial during Officer
Avendano's testimony. Given this background, we are confident the district court had a
meaningful opportunity to consider Bliss' arguments under the Confrontation Clause and
was aware of those arguments when it allowed the officers to describe the background of
M.B.'s report regarding Bliss' postarrest contacts. See State v. Garcia-Garcia, 309 Kan.
801, 810, 441 P.3d 52 (2019) (describing the purpose of the objection requirement). His
argument based on the Confrontation Clause is preserved for our review.
But the officers' testimony regarding M.B.'s statements did not violate Bliss'
confrontation rights. Though we agree with Bliss that M.B.'s statements to the officers
were likely testimonial, a defendant's confrontation rights are only violated when he or
she had no opportunity to meaningfully cross-examine the declarant. See Williams, 306
Kan. 175, Syl. ¶ 2. Bliss had this opportunity at his preliminary hearing in the first case.
The preliminary hearing in that case took place on June 6, 2017—three months
after the incident giving rise to the charges stemming from the violent incident in March
and two months after Bliss' efforts to contact M.B. in violation of the protective order. At
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the hearing, the State asked M.B. about a range of issues on direct examination, including
Bliss' postarrest contact with her:
"Q. [By the prosecutor:] . . . When you told police, did Christopher go to jail
and then get released, and then go back to jail?
"A. [By M.B.:] Yes.
"Q. During the time period that Christopher was out of jail, did he send you messages?
"A. Yes.
"Q. Did he apologize?
"A. Yes.
"Q. Did Christopher try to get you to allow him back into a relationship with you?
"A. Yes.
"Q. Since Christopher has been in jail the second time, has he contacted your children?
"A. Yes."
After this exchange, M.B. indicated that she would like the State to stop with this
line of questioning. Bliss then had the opportunity to cross-examine M.B. regarding all
topics discussed during her examination. But while he asked several questions about her
description of the March argument, he asked no questions regarding his postarrest
contacts.
The Sixth Amendment's Confrontation Clause guarantees a defendant the
opportunity to cross-examine—and thus test the credibility of—the State's
witnesses. Friday, 297 Kan. 1023, Syl. ¶ 19; see also State v. Noah, 284 Kan. 608, Syl. ¶
5, 162 P.3d 799 (2007) (Confrontation Clause "guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish"). Our examination of the record shows that
Bliss had the opportunity to cross-examine M.B. regarding his unlawful postarrest
contacts during the preliminary hearing. He apparently chose not to discuss this issue
with M.B. at that time. But regardless of whether he availed himself of that opportunity,
18
the evidence submitted at trial about those contacts did not violate his rights under the
Confrontation Clause.
3. Bliss' other evidentiary challenges are not preserved for appellate review.
Bliss challenges two other evidentiary rulings in his appeal: the district court's
decision to admit A.B.'s out-of-court statements (during her 911 call and her discussion
with Officer Helwi at the hospital) and its decision to exclude evidence of M.B.'s
recantation. But the arguments Bliss raises on appeal regarding these rulings differ from
the parties' discussion of those issues at trial. In other words, the district court was never
given the opportunity to consider the admissibility of this evidence for the reasons Bliss
now offers. These arguments are therefore not preserved for appellate review.
3.1. Kansas law requires a timely and specific objection to a district court's
ruling admitting or excluding evidence before that ruling may be reviewed
on appeal.
Kansas law requires a party to "'make a specific and timely objection at trial in
order to preserve evidentiary issues for appeal.'" State v. Brown, 307 Kan. 641, 645, 413
P.3d 783 (2018) (quoting State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]). The
purpose of this objection requirement is to allow the district court to act as an evidentiary
gatekeeper at trial—to rule on the admissibility of evidence based on specific arguments
raised at trial, with the context of other evidence and testimony presented. See Garcia-
Garcia, 309 Kan. at 810. For this reason, the rule applies even when a court has
previously ruled on the defendant's objection during a pretrial hearing; the evidence
described there may differ from the evidence at trial. State v. Sean, 306 Kan. 963, 971,
399 P.3d 168 (2017). And as a corollary, a party cannot object to the admissibility or
exclusion of evidence on one ground at trial and then argue a different ground on appeal,
as such actions undercut the purpose of requiring a specific objection at trial. Garcia-
Garcia, 309 Kan. at 810.
19
Though appellate courts often describe "preservation for appeal" as one
overarching principle, our preservation rules derive from different sources. In some
contexts, the need for preservation is inherent to the appellate process and 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 courts through our decisions,
courts may also decide when it can give way to other priorities. Thus, Kansas courts have
crafted limited exceptions—largely motivated by procedural fairness and judicial
economy—to allow us to consider some new questions raised on appeal when our review
is otherwise possible and warranted. For example, an appellate court may decide to take
up an otherwise unpreserved issue if it involves a purely legal question, requiring no
factual development, that fully resolves that case. Or a court may choose to consider a
new argument, given a sufficient factual record, if it is necessary to protect a person's
fundamental rights. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
In contrast, when a party is challenging a district court's ruling admitting or
excluding 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." (Emphasis added.) Because this statute contains no exception to its
requirements, courts have recognized for over a decade 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).
Appellate review of challenges to a district court's exclusion of evidence is
governed by K.S.A. 60-405. This statute does not independently articulate a specific-
objection requirement. But the Kansas Supreme Court has indicated that—consistent with
20
K.S.A. 60-404—a party seeking to admit evidence at trial must articulate a specific basis
for that admission. In re Crandall, 308 Kan. 1526, 1543, 430 P.3d 902 (2018); see also
State v. Hillard, 313 Kan. 830, 839, 491 P.3d 1223 (2021) (noting Kansas statutes
"generally require contemporaneous objections to issues involving the erroneous
admission or exclusion of evidence"). Consistent with the specific-objection requirement
under K.S.A. 60-404, this practice ensures that the trial judge has a chance to fully
consider whether the evidence should be admitted and to avoid any reversible error. In re
Crandall, 308 Kan. at 1543. And K.S.A. 60-405 includes an additional requirement for
challenges to a ruling excluding evidence, conditioning review on whether a party
proffered the evidence that was being excluded—that is, whether "the proponent of the
evidence either made known the substance of the evidence in a form and by a method
approved by the judge, or indicated the substance of the expected evidence by questions
indicating the desired answers." K.S.A. 60-405.
These requirements—the need to articulate a specific basis for evidence's
admissibility and for a proffer describing the nature of the excluded evidence—make
practical sense. For a district court to exclude evidence from trial, a party must have
argued for its admission at some point before or during the trial. Just as a party must raise
a sufficiently specific objection to the admission of evidence to preserve the issue for
appellate review, a party who has unsuccessfully sought to introduce evidence must have
sufficiently articulated the basis for its admissibility at trial. And the statute's requirement
of a proffer ensures (among other things) that the district court had the opportunity to
understand the nature of the omitted evidence and thus fully consider the evidence's
admissibility. See Hillard, 313 Kan. at 839.
Since King, the Kansas Supreme Court has emphasized that courts cannot modify
the legislature's directive in K.S.A. 60-404 regarding the admission of evidence through
judicially created exceptions. See Brown, 307 Kan. at 645. As the court succinctly
explained in State v. Carter, 312 Kan. 526, 535, 477 P.3d 1004 (2020): "Exceptions exist
21
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."
K.S.A. 60-405 similarly contains no legislative exceptions to its preservation
requirement. Accord State v. Baumgarner, 59 Kan. App. 2d 330, 335, 481 P.3d 170(2021) ("A reviewing appellate court must take care to avoid adding something to
a statute or negating something already there."), rev. denied 313 Kan. 1043 (2021). But
though the rationale motivating the holding in King and its progeny appears to apply
equally to that statute, our Supreme Court's decisions render it unclear as to whether
appellate courts may employ judicially created exceptions to reach arguments involving
the exclusion of evidence without a specific objection and proffer.
In Hillard, our Supreme Court recently considered whether it should consider a
district court's ruling that limited the scope of cross-examination in the absence of an
objection and proffer. Hillard did not analyze whether the absence of a statutory
exception barred review. Instead, the court acknowledged that in some instances it has
considered parties' constitutional challenges—such as the Confrontation Clause challenge
raised in that case—that were not properly preserved. At the same time, it emphasized
that "'[t]he decision to review an unpreserved claim under an exception is a prudential
one.'" 313 Kan. at 840. Thus, courts have "'no obligation'" to consider an unpreserved
claim even when an exception might conceivably apply. 313 Kan. at 840. Exercising this
prerogative, the Hillard court "decline[d]" to reach the merits of the confrontation
challenge. 313 Kan. at 840.
Similarly, in State v. Tague, 296 Kan. 993, 298 P.3d 273 (2013), the court did not
reach the merits of a district court's ruling excluding hearsay evidence—but it did so for
prudential reasons, not based on the language of K.S.A. 60-405. The defendant in that
case argued for the first time on appeal that the evidence should have been admitted
22
based on a hearsay exception not argued at trial. Instead of indicating that the failure to
raise that argument at trial barred review, the court listed three exceptions it had
previously considered in deciding whether to take up other unpreserved claims. 296 Kan.
at 1000. It then explained that even when issues may implicate a defendant's "right to
present his or her theory of defense," including "improperly excluding evidence,"
appellate review is "subject to statutory rules and caselaw interpretation of the rules of
evidence and procedure." 296 Kan. at 1000. The court thus declined to review the
defendant's evidentiary challenge. 296 Kan. at 1001.
Based on this precedent, it is unclear whether appellate courts have discretion to
use judicially created exceptions to review otherwise unpreserved challenges to the
exclusion of evidence. Despite the language of K.S.A. 60-405, the Kansas Supreme Court
has continued to consider the possibility that an exception could potentially warrant
review of an unpreserved challenge to the exclusion of evidence, emphasizing instead the
appellate court's discretion in reviewing those questions. See Hillard, 313 Kan. at 840-41;
Tague, 296 Kan. at 1000. Though this practice is arguably inconsistent with its decisions
interpreting K.S.A. 60-404, we are bound by the Kansas Supreme Court's caselaw and
must follow its example.
Thus, consistent with the language of K.S.A. 60-404, the failure to raise a timely
and specific objection to the admission of evidence at trial acts as an absolute bar to
appellate review. Carter, 312 Kan. at 535. Appellate courts may have discretion to
consider unpreserved challenges to the district court's ruling excluding evidence, but they
are not required to do so. Hillard, 313 Kan. at 840; Tague, 296 Kan. at 1000. In fact, the
Kansas Supreme Court has rarely exercised that prerogative.
With these principles as our guides, we turn to Bliss' two remaining evidentiary
challenges.
23
• Bliss argues that the district court erred when it admitted evidence of A.B.'s
statements during her 911 call and at the hospital to Officer Helwi. He asserts that
both statements were testimonial in nature, and the admission of these statements
violated his Sixth Amendment right to confront witnesses, as A.B. was never
subject to cross-examination.
• Bliss argues the district court erred when it excluded evidence of M.B.'s statement
recanting her previous testimony. He asserts that though this recantation was
hearsay, the court should have admitted it as a statement against M.B.'s interest.
The district court's rulings that Bliss now challenges arose from two of the State's
pretrial motions. In one motion, the State argued that both A.B. and M.B. were
unavailable witnesses and presented officers' testimony during a hearing as to the efforts
the State had made to contact M.B. and her daughter. The State asserted that though
A.B.'s 911 call was hearsay, it was admissible under K.S.A. 60-460(d)(1)
(contemporaneous statement describing events), K.S.A. 60-460(d)(2) (excited utterance),
and K.S.A. 60-460(m) (business or other official records). It likewise noted that though
A.B.'s statements during her interview at the hospital were hearsay, they were admissible
under K.S.A. 60-460(d)(3) (out of necessity), as A.B. had recently perceived these
events, and her statements were made in good faith with no incentive to falsify or distort.
And finally, the State asserted that M.B.'s statements during her interviews with police
officers and her testimony at the preliminary hearing should be admitted under various
hearsay exceptions.
In a second motion filed on the eve of trial, the State indicated that Bliss planned
to offer M.B.'s recantation—which she provided to the Public Defender's Office—as
evidence during the trial and would be discussing that recantation during opening
statements. The State argued that the recantation was hearsay and did not fall within any
hearsay exceptions. In turn, Bliss argued that the recantation should be admitted under
24
K.S.A. 60-460(d) (contemporaneous statement and necessity) and K.S.A. 60-460(l)
(statements tending to show the declarant's state of mind).
The court granted both motions. Bliss now challenges the court's ruling admitting
A.B.'s statements, asserting that admission of these statements violated his right under the
Confrontation Clause. He also argues the court erred when it excluded M.B.'s recantation,
claiming that although it may not have been admissible for the reasons he urged at trial, it
should have been admitted as a statement against interest under K.S.A. 60-460(j). The
State argues that these arguments are not preserved for our review because Bliss did not
raise either evidentiary challenge at trial.
3.2. K.S.A. 60-404 precludes our review of Bliss' challenge to the admission of
A.B.'s statements.
We first consider Bliss' challenge to the district court's admission of A.B.'s
statements—her 911 call and her conversation with Officer Helwi at the hospital when
M.B. was being treated for her injuries.
At Bliss' request, the district court considered the State's motion concerning the
admissibility of A.B.'s and M.B.'s statements to law enforcement during two hearings in
the days leading up to trial. These were the same hearings when the parties discussed the
State's consolidation request (addressed in the previous section). The primary evidentiary
focus of the hearings was the State's assertion that A.B. and M.B. were unavailable
witnesses, while the predominate legal question the parties discussed was the effect of
consolidation on Bliss' right to cross-examine M.B. as to the protection-order charges.
During these two pretrial hearings, the State offered testimony of various
witnesses regarding M.B.'s and A.B.'s availability. At the second hearing, after these
witnesses testified, the court turned to Bliss and asked whether he would be presenting
any further evidence. His counsel responded:
25
"No, I think I can do it. Okay. So my concern, Judge, is that legally I don't think we have
an argument to deny that [M.B. is] unavailable. My concern, however, still is
consolidating the cases because of the foundational issues and hearsay issues having to
do with the e-mails, the phone calls, the PFA stuff."
The attorney then went on to argue at length about the issue we addressed in the previous
section—whether consolidation of the cases would result in a violation of Bliss'
confrontation right in the second case.
The district court then asked Bliss' attorney to clarify the arguments concerning
the State's evidentiary motion, stating the attorney had "talked about objections or no
objections to availability, then . . . talked about consolidation." The court continued, "I
want to make certain that I understand what your arguments are, which [motion] it
applies to." The following exchange then took place:
"[Defense attorney]: I just—I don't believe as an officer of the court I have a
legal argument against unavailability. I think the State has shown that through Officer
Call. I think it is Investigator Call.
"THE COURT: Yes.
"[Defense attorney]: My problem is having [M.B.] unavailable and consolidating
these cases means that I can't question her about all these alleged contacts that have never
been addressed, the PFA stuff that has never been addressed. The only times—
"THE COURT: With regard to the second case, not the first?
"[Defense attorney]: Right."
Shortly thereafter, the court again sought clarification that the "defense is questioning
about the first case but not the second? If we include the second, then it creates some
unfairness towards him?" Bliss' attorney responded, "Yes, sir."
26
Based on this exchange and the parties' arguments, the court noted that Bliss and
the State agreed that M.B. and A.B. were unavailable to testify. The State then explained
the nature of the evidence it was seeking to admit and exclude and the various hearsay
exceptions on which it relied. Bliss' argument related solely to the effect of the
consolidation on the second case relating to the protection orders; he did not challenge
the State's hearsay arguments or offer any additional hearsay exceptions that would allow
for the admission of M.B.'s recantation. Nor did he argue that admission of any of the
other statements by M.B. or A.B. would violate his right under the Confrontation Clause.
After taking a short recess to review K.S.A. 60-460 and the State's arguments in its
motions, the court granted the State's evidentiary requests. The court indicated it would
admit evidence relating to A.B.'s 911 call and her statements to Officer Helwi; it also
would admit M.B.'s statements to various law enforcement officials and her preliminary
hearing testimony.
Once the court issued its ruling, the hearing turned to a number of other pending
pretrial matters. The court granted the State's consolidation request, and then the court
and parties engaged in a lengthy discussion as to whether the State should be permitted to
amend various allegations in its complaint. After a recess to allow the parties to review
the State's proposed amendments, the parties discussed this matter further.
Once this discussion concluded, the court asked the parties if there were "any other
issues" that needed to be addressed. Bliss' attorney responded: "I don't know if I put my
objection on the record so I just want to do that now, the objection to finding [A.B.]
unavailable since she was never subject to cross-examination by the defense so I just
want to make sure that's on the record." The court responded that it had based its
unavailability ruling on the evidence presented during the hearing and overruled the
objection. Bliss did not ask for any clarification on this ruling and made no attempt to
address the matter further, and the hearing ended.
27
On appeal, Bliss argues that the admission of A.B.'s statements during the 911 call
and at the hospital violated his Sixth Amendment right to confront witnesses. He argues
that these statements were testimonial in nature and points out that A.B. was never
subject to cross-examination. The fundamental problem with this argument is that Bliss
never gave the district court the opportunity to consider it.
Bliss argues that his attorney's statements at the close of the pretrial hearing were
sufficient to alert the district court to the confrontation challenge he now raises on appeal.
He points out that his counsel referenced the fact that A.B. was "never subject to cross-
examination," which is the central focus of the Sixth Amendment's Confrontation Clause.
We do not find the context or the content of that comment to be sufficient to alert the
district court to this concern.
From a contextual standpoint, we note that the focus of the parties' discussion
during the pretrial hearing was on M.B.'s statements to law enforcement—particularly her
statements regarding Bliss' conduct subject to the protection orders. Given this focus, we
find that Bliss' counsel offered her statement at the end of the hearing merely to
emphasize Bliss' objection to A.B. also being declared an unavailable witness. The
attorney did not seek any additional findings by the court, but merely indicated she was
making sure the objection was "on the record."
The content of Bliss' objection also indicates he was objecting to the unavailability
finding, not raising a different concern under the Confrontation Clause. Notably, Bliss'
attorney did not ask the district court to find that A.B.'s statements were testimonial—the
threshold finding for confrontation challenges. See Crawford, 541 U.S. at 53-54;
Williams, 306 Kan. at 182. Nor did Bliss offer any argument as to the circumstances in
which A.B. offered her statements, to determine whether their primary aim was to
establish past events or help address an emergent need. See Davis, 547 U.S. at 822.
28
Instead, Bliss' attorney only stated Bliss was objecting to the court's "finding [A.B.]
unavailable since she was never subject to cross-examination by the defense"—a
necessary consequence of her unavailability.
This case illustrates the need, as our Supreme Court has emphasized, to articulate
a specific objection at trial—particularly in the context of a confrontation or hearsay
question. The court discussed this point at length in State v. McCaslin, 291 Kan. 697,
708-09, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan.
395, 402, 324 P.3d 1046 (2014):
"[T]here may be some overlap of objections based upon hearsay and confrontation.
Indeed, it might be argued that all statements violating the Confrontation Clause are also
necessarily hearsay. But . . . their overlap does not satisfy the specificity requirement of
the objection. . . .
....
"The specificity requirement is particularly important when a Confrontation
Clause objection is warranted because the trial court would then be on notice of its
obligation to follow the multistep analysis detailed in Crawford, and to give the
prosecutor the opportunity to meet Crawford's requirements. See 541 U.S. at 68 (whether
statement is testimonial and, if so, whether witness is unavailable and defendant had prior
opportunity to cross-examine). Similarly, when a hearsay objection is warranted, the
evidence proponent could argue that the statement is not hearsay because it is not being
'offered to prove the truth of the matter stated.' See K.S.A. 60-460. Or, if the statement is
hearsay, the proponent could argue that one or more of the numerous exceptions applies.
See K.S.A. 60-460(a)-(ee). But if a different ground had been raised by the objecting
party and analyzed by the trial court, the appellate court obviously has no trial court
analysis in the record to review in its determination of the newly alleged hearsay or
confrontation error."
Applying these principles here, we conclude that Bliss' ambiguous objection at the
end of the pretrial hearing—an objection made simply for "the record"—was not
sufficiently specific to alert the district court to whether he was raising a challenge to
29
A.B.'s unavailability, or based on a hearsay analysis, or under the Confrontation Clause.
We find Bliss' failure to request any factual findings necessary to determine whether
A.B.'s statements were testimonial to be particularly telling; the Kansas Supreme Court
has explained that without these findings, courts are "handcuffed" in our confrontation
analysis. State v. Jones, 295 Kan. 1050, 1057, 288 P.3d 140 (2012).
In sum, Bliss did not raise a sufficiently specific objection before the district court
to allow it to "consider as fully as possible whether the evidence should be admitted" in
light of his Confrontation Clause challenge and "therefore reduce the chances of
reversible error." State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). Thus, this
question was not preserved for appellate review.
Bliss argues that even if his objection at trial did not alert the district court to his
Confrontation Clause claim—as we conclude here—this court should nevertheless
analyze this question to protect his fundamental rights under the Sixth Amendment. But
as we have previously indicated, appellate courts may not use judicially created
preservation exceptions to consider unpreserved questions involving the admission of
evidence. See K.S.A. 60-404; Carter, 312 Kan. at 535. The Kansas Supreme Court has
consistently indicated that even confrontation challenges are subject to this procedural
requirement. McCaslin, 291 Kan. at 709; Richmond, 289 Kan. at 437.
Bliss' challenges to the admission of A.B.'s statements under the Confrontation
Clause were not preserved for appellate review.
3.3. Bliss' challenges to the district court's exclusion of M.B.'s recantation are
not preserved for appeal.
Bliss also argues that the district court erred when it ruled, based on the State's
second evidentiary motion, that M.B.'s recantation was inadmissible.
30
This second motion, filed the evening before trial, indicated that the State had
learned that Bliss would be seeking to introduce M.B.'s statement recanting her previous
testimony as evidence at trial and also would be discussing this recantation during his
opening statement. The State argued that M.B.'s recantation was hearsay, and Bliss had
not shown that this recantation was admissible as an exception to the hearsay rule. In
response, Bliss argued that the recantation should be admitted out of necessity under
K.S.A. 60-460(d)(3) or as a statement regarding M.B.'s physical or mental condition
under K.S.A. 60-460(l).
The district court ruled that neither of the hearsay exceptions Bliss argued applied
to the recantation. The court therefore granted the State's motion and ruled that Bliss
could not introduce evidence of M.B.'s statement at trial. At the same time, the court
indicated that it would reconsider its ruling if M.B. were to show up to testify.
Neither party provided the actual recantation for the court's review at the pretrial
hearing. Instead, the parties discussed M.B.'s written statement in general terms. The
State explained that it was "a written statement that [M.B.] made to the Public Defenders'
investigator" sometime after the preliminary hearing. The State indicated the written
statement was given in "early August 2017" and was made in Spanish and translated by a
court reporter. But during trial, Bliss proffered M.B.'s written recantation and its
translation to be included in the appellate record.
In his appeal, Bliss has abandoned his previous arguments regarding the
admissibility of M.B.'s recantation under K.S.A. 60-460(d)(3) and (l). He argues instead
that the district court should have admitted the recantation as a statement against interest
under K.S.A. 60-460(j).
Kansas courts have long recognized that a party may not seek to admit evidence
on one ground at trial and then offer a different ground for its admissibility on appeal.
31
See Tague, 296 Kan. at 999-1000; Richmond, 289 Kan. at 428; State v. Engelhardt, 280
Kan. 113, 127, 119 P.3d 1148 (2005); see also State v. Patchett, 203 Kan. 642, 645, 455
P.2d 580 (1969) ("The specification of an objection to evidence on one ground waives or
estops the objector from making an objection on any other ground."). The practice of
raising new arguments on appeal thwarts the purpose of the specific-objection
requirement and deprives the district court of the ability to fully analyze the admissibility
of the evidence in question. It also deprives the reviewing court of the district court's
evaluation of that question. Because Bliss never argued K.S.A. 60-460(j) as a basis for
admitting M.B.'s recantation, the district court had no opportunity to issue a ruling on that
question that we may review. Thus, the issue has not been preserved for appeal.
Bliss acknowledges in his brief that he never argued K.S.A. 60-460(j) as a basis to
admit M.B.'s written statement at trial. But he asserts that the applicability of that section
should have been so apparent that the district court should have raised the issue of its own
initiative. And he now asks us to reach the merits of this argument, arguing that it
involves a legal question (the hearsay statute) and implicates his fundamental right to
present his theory of the defense. There are several reasons why we do not find these
arguments persuasive.
First, the fact that an evidentiary determination may ultimately turn on a legal
question—such as the applicability of an exception under K.S.A. 60-460—does not mean
it is appropriate for consideration in the first instance on appeal. Instead, courts have
recognized that, in some instances, purely legal questions may be raised for the first time
on appeal. In such cases—when "'the newly asserted theory involves only a question of
law arising on proved or admitted facts'"—appellate review will be less hindered without
a trial record. (Emphasis added.) Richmond, 289 Kan. at 429.
32
We do not believe that the admissibility of evidence under K.S.A. 60-460(j)
involves this type of legal analysis. Under this exception, hearsay evidence may be
admitted if the trial judge finds the out-of-court statement was
"at the time of the assertion so far contrary to the declarant's pecuniary or proprietary
interest or so far subjected the declarant to civil or criminal liability or so far rendered
invalid a claim by the declarant against another or created such risk of making the
declarant an object of hatred, ridicule or social disapproval in the community that a
reasonable person in the declarant's position would not have made the statement unless
the person believed it to be true." K.S.A. 2020 Supp. 60-460(j).
K.S.A. 60-460(j) thus requires the district court to make a number of factual findings
regarding the context of the statement, its impact, and the declarant's interests and
motivations. These findings can rarely be made on a written record. And the district court
had no opportunity to make those findings here.
Second, courts have traditionally limited their review of even purely legal
questions raised for the first time on appeal to instances where the legal issue is "'finally
determinative of the case.'" 289 Kan. at 429. Evidentiary allegations rarely meet this
standard, as evidentiary errors are subject to a harmlessness inquiry. See K.S.A. 2020
Supp. 60-261 (inconsistent with substantial justice); Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (conclusion beyond reasonable doubt that the
error had little, if any, likelihood of having changed the results of the trial). The Kansas
Supreme Court has expressed skepticism as to whether these kinds of questions are
sufficiently determinative to warrant consideration for the first time on appeal. See
Richmond, 289 Kan. at 429.
Third, while it is true that a defendant has the right to present his or her defense
theory at trial, virtually all adverse evidentiary rulings may be phrased as implicating this
consideration. See State v. Love, 305 Kan. 716, Syl. ¶ 5, 387 P.3d 820 (2017). And courts
33
have long recognized that this right is not absolute; rather, it is subject to Kansas statutes
and caselaw interpreting the rules of evidence and procedure. 305 Kan. 716, Syl. ¶ 5.
Kansas courts have held that when someone fails to comply with the specific-objection
requirement by offering a new basis for admitting evidence on appeal, consideration of
that new argument is not "necessary to serve the ends of justice or to prevent the denial of
a fundamental right." Tague, 296 Kan. at 1001. To hold otherwise would allow the
judicially created exceptions to swallow our rules requiring preservation.
And fourth, we are not swayed by Bliss' argument that the district court should
have independently considered whether K.S.A. 60-460(j) applied in this case. When the
State sought to exclude evidence of M.B.'s recantation before the start of trial, M.B. had
not sought to invoke her Fifth Amendment rights. Neither party indicated that M.B.'s
recantation was motivated by any concerns for providing a false report to the police;
Bliss, who possessed the written recantation and translation of that statement, could have
provided this information if he thought it was relevant to the court's analysis. And no
one—not Bliss, not the State, not the court—mentioned the possibility that K.S.A. 60-
460(j) might apply, belying Bliss' assertion on appeal.
For all of these reasons, we find Bliss' argument that M.B.'s recantation should
have been admitted under K.S.A. 60-460(j) was not preserved for our review, and we
decline to consider this new argument for the first time on appeal.
4. The court did not err when it allowed M.B. to invoke her Fifth Amendment rights
outside the presence of the jury.
Bliss next claims the district court violated his constitutional right to present a
defense when it allowed M.B. to assert her Fifth Amendment right against self-
incrimination outside the presence of the jury.
34
As we have previously discussed in this opinion, the day before the trial began, the
district court found—based on the evidence presented at two pretrial hearings and the
parties' subsequent agreement—that M.B. was an unavailable witness. And the next day,
before the parties' opening statements, the court ruled that M.B.'s recantation was
inadmissible, though the court indicated it might be willing to reconsider its ruling if
M.B. were to appear and testify as a witness.
Later that day, as one of the State's witnesses was testifying, M.B. came into the
courtroom. At M.B.'s request, the court appointed an attorney to represent her. Then, with
the advice of counsel and the assistance of an interpreter, M.B. informed the court she
wished to assert her Fifth Amendment right against self-incrimination. (On appeal, the
parties indicate, largely based on M.B.'s recantation and her subsequent statements at
sentencing, that M.B. believed her testimony would lead to her being prosecuted for
making a false police report.) Bliss objected to the State's request to have M.B. testify
outside the jury's presence, arguing the jury should know about M.B.'s decision to invoke
the Fifth Amendment. Relying on State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982),
the court overruled Bliss' objection. M.B. subsequently testified—and invoked that
right—while the jury was out of the courtroom.
The Sixth Amendment to the United States Constitution and section 10 of the
Kansas Constitution Bill of Rights grant a criminal defendant the right to present a
witness to establish a defense. State v. Hensley, 298 Kan. 422, 433, 313 P.3d 814 (2013);
State v. Suter, 296 Kan. 137, Syl. ¶ 1, 290 P.3d 620 (2012). This right to present
testimony (often called compulsory process) is fundamental to a fair trial, but it is not
absolute. Rather, it may in some circumstances give way to other interests. 296 Kan. 137,
Syl. ¶ 1; State v. Delacruz, 307 Kan. 523, 533, 411 P.3d 1207 (2018).
One such interest is the Fifth Amendment, which protects a person from testifying
if doing so would expose the person to criminal liability. State v. George, 311 Kan. 693,
35
707-08, 466 P.3d 469 (2020). This protection, which is also included in section 10 of our
Kansas Constitution Bill of Rights, may be invoked when a response would create a
reasonable apprehension of prosecution and applies not only to a witness' inculpatory
responses but also to answers that would lead to incriminating evidence. Delacruz, 307
Kan. at 534 (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed.
1118 [1951]); State v. Durrant, 244 Kan. 522, Syl. ¶ 6, 769 P.2d 1174 (1989).
The Kansas Supreme Court addressed these conflicting interests in Crumm. There,
James Crumm killed his stepbrother upon the urging of his mother. At his first-degree
murder trial, Crumm called his mother as a witness to support an insanity defense. Her
attorney informed the district court that she would not testify about any events leading up
to the murder, and the court ordered the parties not to ask her any questions that would
require her to invoke the Fifth Amendment.
The Kansas Supreme Court approved of the district court's handling of the
situation. Citing to cases from other states, the court explained that a party may not
knowingly call a witness who intends to invoke the Fifth Amendment's protection against
self-incrimination for the purpose of having the jury witness that invocation. Crumm, 232
Kan. at 257. The court reasoned that a jury might give undue weight to a witness
exercising his or her constitutional right, interpreting it as "'high courtroom drama of
probative significance.'" 232 Kan. at 260. But in reality "'[b]ecause the impact of a
witness's refusal to testify outweighs its probative value,'" a jury may not draw any
inferences from the decision to exercise the Fifth Amendment right. 232 Kan. at 260.
Thus, calling a witness for the sole purpose of invoking this privilege does not comport
with the purpose of compulsory process—to have a witness provide testimony. 232 Kan.
at 258-60; see also State v. Lashley, 233 Kan. 620, 626, 664 P.2d 1358 (1983) (as jury
may give undue weight to claim of privilege, claims of privilege should be determined
outside the jury's presence).
36
Bliss questions Crumm's rationale and argues this court should weigh the
protections of section 10 of the Kansas Constitution Bill of Rights differently from the
protections under the Fifth and Sixth Amendments. But the Kansas Supreme Court has
consistently held that these provisions provide "the same protection." George, 311 Kan.
at 707-08. This court is duty-bound to follow Kansas Supreme Court precedent. State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). Bliss does not argue that this
state's high court has altered its position, nor has he explained why the history or
language of section 10 indicates it should be analyzed independently. Accord State v.
Boysaw, 309 Kan. 526, 537-38, 439 P.3d 909 (2019) (noting that a litigant arguing for an
independent reading of the Kansas Constitution from its federal counterpart must
articulate why the history and text of the two documents lead to different protections).
Thus, Crumm and its progeny control our analysis.
Bliss also argues that the district court overread Crumm's holding. He notes that
the analysis and the existence of a privilege—including the constitutional privilege
against self-incrimination—are fact-dependent. Thus, he argues, the court should have
required M.B. to testify in the jury's presence and merely exclude questions that would
have broached her Fifth Amendment privilege.
Practically speaking, Bliss' allegations are not borne out by the record. In fact,
when M.B. testified, she exercised her privilege against self-incrimination by declining to
answer every question asked during direct and cross-examination. Neither party asserts
that she was not entitled to do so; all questions asked of M.B.—about contacting police in
March and April 2017—concerned topics that implicated her Fifth Amendment right.
And nothing prevented Bliss from calling M.B. to testify before the jury and asking her
questions that did not implicate that right. But he did not do so.
Our review of the record shows that Bliss wished to have M.B. invoke her
privilege against self-incrimination so the jury could infer her motivation for not
37
testifying—that is, that she "must have something to hide." State v. Turner, 300 Kan. 662,
680, 333 P.3d 155 (2014). This is the very inference decried by the Kansas Supreme
Court in Crumm and its later cases. The district court did not err when it allowed M.B. to
invoke her constitutional right against self-incrimination outside the presence of the jury.
5. Bliss has not shown that cumulative error deprived him of a fair trial.
For his final argument challenging his convictions, Bliss asserts that even if his
arguments do not individually require reversal, the combined effect of the district court's
rulings deprived him of a fair trial. While we acknowledge that the district court in this
case faced several interesting legal questions, we have found only one error—the
improper conviction and sentence for the alternative count of aggravated kidnapping. As
we have indicated, the proper remedy for that error is to reverse that conviction and
vacate his sentence for one of the aggravated-kidnapping offenses. That error does not
cause us to lose confidence in the court's other rulings. See State v. Miller, 308 Kan.
1119, 1176, 427 P.3d 907 (2018) (claims of cumulative error involve an assessment of
"how the trial judge dealt with the errors as they arose; the nature and number of errors
and their interrelationship, if any; and the overall strength of the evidence"). Bliss' claim
for cumulative error is without merit.
To summarize our conclusions regarding Bliss' trial and convictions, we reverse
Bliss' conviction and vacate his sentence for aggravated kidnapping under Count 4 in the
State's complaint as that offense was charged in the alternative of the other aggravated-
kidnapping offense. Because Bliss has not otherwise apprised us of any error leading up
to or during his trial, we affirm Bliss' remaining convictions for aggravated kidnapping,
aggravated sexual battery, battery, violation of a protective order, and attempted violation
of a protective order.
38
CHALLENGES TO BLISS' SENTENCE
In light of his conviction for aggravated kidnapping and his criminal history score,
Bliss faced a presumptive sentence of at least 203 to 226 months in prison under the
Kansas Sentencing Guidelines. Before sentencing, Bliss moved for a dispositional
departure—seeking probation—or, in the alternative, a durational departure to reduce the
term of his prison sentence. Bliss argued that his lack of violent criminal history
warranted a departure. And M.B. also appeared and stringently implored the court to
impose a more lenient sentence so Bliss could return home to M.B. and their children.
The parties presented testimony on these sentencing requests over the course of three
hearings.
After hearing this testimony and the parties' arguments, the court indicated it was
"concerned" about the change in M.B.'s testimony between preliminary hearing and
sentencing, noting the State had questioned whether M.B.'s current request for leniency
had been influenced by Bliss or his family members. At the same time, the court
acknowledged M.B.'s desire for Bliss to return home. The evidence presented at
sentencing showed that M.B. did not speak English and was without economic support
and was living in a homeless shelter with her baby, while A.B. was living with her
grandmother. M.B. did not deny that the couple had argued or that the argument had
gotten "out of hand," but she nevertheless asked for a more lenient sentence.
After considering this evidence, as well as additional statements by M.B. and
Bliss, the court denied Bliss' request for probation. But it granted Bliss' request for a
durational departure and imposed a controlling 84-month prison sentence, citing M.B.'s
request for leniency and the fact that—other than the current cases—Bliss did not have a
history of committing violent crimes.
39
The State appeals this sentence. It argues that the district court erred when it
granted the durational departure, asserting that neither explanation given for the court's
decision was a substantial or compelling reason that can warrant a departure under
Kansas law. We disagree.
A district court may deviate from the presumptive sentence imposed by the Kansas
Sentencing Guidelines when there are substantial and compelling reasons that warrant a
departure. K.S.A. 2020 Supp. 21-6815(a). Broadly speaking, a reason offered to justify a
departure sentence may be "substantial" if it is "real, not imagined, and of substance, not
ephemeral." State v. Hines, 296 Kan. 608, Syl. ¶ 5, 294 P.3d 270 (2013). A reason is
compelling if it "forces the court, by the facts of the case, to abandon the status quo and
to venture beyond the sentence that it would ordinarily impose." 296 Kan. 608, Syl. ¶ 5.
The Sentencing Guidelines provide a nonexclusive list of potential mitigating
factors that might justify a departure sentence. See K.S.A. 2020 Supp. 21-6815(c)(1).
Courts may also consider factors not included in the statutory list as long as the
legislature has not "already taken the factor into account" through "the sentencing grid."
State v. Montgomery, 314 Kan. ___, ___ P.3d ___, 2021 WL 3824858, Syl. ¶ 1 (2021). In
some instances, a single factor that is substantial and compelling may justify a departure.
State v. Brown, 305 Kan. 674, 694, 387 P.3d 835 (2017). Or the culmination of several
sufficiently substantial factors may compel a court to depart, even if none of the factors
would independently warrant a departure. 305 Kan. at 694. In either case, the inquiry
remains the same—whether the reason or reasons provided are substantial and
sufficiently compelling to warrant a departure from the Sentencing Guidelines.
Appellate review of a district court's decision to impose a departure sentence
follows a three-step framework. An appellate court first determines whether the ground
given for the departure can, as a matter of law, be considered as a mitigating factor under
K.S.A. 21-6815. If it can, the appellate court next considers whether the cited ground is
40
supported by the record. Finally, the appellate court considers the reasonableness of the
district court's assessment that this ground, individually or when combined with other
circumstances considered, constituted a substantial and compelling reason to depart from
the presumptive sentence under the Kansas Sentencing Guidelines. State v. Morley, 312
Kan. 702, 711, 479 P.3d 928 (2021).
The first of these analytical steps presents an issue of law over which appellate
courts' review is plenary. Under the second step, we must determine whether the district
court's findings are supported by substantial competent evidence in the record. And we
review the district court's analysis under the third step for an abuse of discretion. 312
Kan. at 711.
Our review shows that the district court did not err when it concluded the
combination of M.B.'s request for leniency and Bliss' lack of violent criminal history
warranted a durational departure sentence. We are fully cognizant—as was the district
court in this case—of the dangerous and often complicated dynamics in relationships
involving domestic abuse. The facts of this case illustrate this reality. M.B.'s initial
reports to law enforcement and testimony at the preliminary hearing painted one picture
of Bliss' behavior. But her later actions, seeking to recant her previous statements and
requesting that Bliss be granted probation for his offenses, at times downplayed Bliss'
conduct in favor of reuniting her family. Our review of the record shows that the district
court was carefully attempting to sift through M.B.'s conflicting statements, as well as the
various people who may have influenced her behavior. The court explained that—having
observed M.B. throughout the case—it found her earlier statements more credible
regarding the nature of Bliss' conduct. But it also noted that M.B. was "strident" in her
request for leniency, particularly given her reliance on Bliss for support.
The State attempts to sidestep these weighty considerations, arguing that—under
the first step in our analysis—the district court erred as a matter of law when it
41
considered M.B.'s request for leniency as a potential reason to depart. The State argues,
based on the Kansas Supreme Court's decision in Hines, that a victim's request for
leniency should never serve as a substantial or compelling reason to depart from a
presumptive sentence in a case involving domestic violence. We do not read Hines so
broadly.
In that case, the defendant pleaded guilty to attempted second-degree murder and
aggravated battery after he strangled and cut his wife's throat. At sentencing, his wife
asked the court to impose probation, stating that her husband had not really been trying to
harm her and that he was a loving father and husband. The district court imposed a
durational departure sentence based on the victim's request for leniency. On appeal, the
Kansas Supreme Court affirmed the Court of Appeals' reversal. 296 Kan. at 624. The
Supreme Court explained that given the facts of the case, there was little to support the
wife's assertions, so the district court abused its discretion. 296 Kan. at 622-23. In other
words, the Hines court decided that the district court's findings were not supported by
evidence in the record—the second step in our appellate analysis. See Morley, 312 Kan.
at 711.
At the same time, however, the Hines court rejected the State's argument in that
case that a victim's request for leniency can never be a substantial or compelling reason
warranting a departure. 296 Kan. at 619. Instead, "if a victim's request for leniency is
substantial, then the request for leniency can, in and of itself, justify a sentencing court's
decision to impose a departure sentence." 296 Kan. at 619.
Our review of the record in this case shows the district court here conducted the
careful analysis the Kansas Supreme Court described in Hines. Though the court
acknowledged that M.B.'s statements at sentencing likely downplayed the harmful nature
of Bliss' conduct, that did not render M.B.'s request for leniency entirely unreasonable.
Instead, as both M.B. and Bliss pointed out at sentencing, M.B. relied on Bliss to provide
42
for her and her children—a very real, or "substantial," consideration. The court then
weighed this factor, along with Bliss' lack of other violent history. Though the court
found these circumstances did not warrant probation (as advocated by M.B.), it found the
combination sufficiently compelling to impose a durational departure.
The State also asserts that the absence of violent criminal convictions can never
justify a departure because a defendant's criminal history score already accounts for prior
convictions. It is true that a district court may not justify a departure solely based on a
criminal history score or factors the Sentencing Guidelines already have taken into
account, such as "the difference in character between a defendant's past offenses and the
present offense." Montgomery, 2021 WL 3824858, Syl. ¶ 2. But a court may consider a
defendant's lack of violent history, in conjunction with other potentially mitigating
factors, to determine whether the reasons given "'when considered as a whole, constitute
substantial and compelling circumstances justifying departure.'" 2021 WL 3824858, at *7
(quoting State v. Favela, 259 Kan. 215, 239, 911 P.2d 792 [1996]). That is precisely what
the district court did here.
This was an exceptionally difficult case. The district court did not err when it
considered M.B.'s request for leniency, particularly when viewed against the backdrop of
Bliss' lack of violent criminal history, as a mitigating factor that warranted a departure
sentence. The district court's findings are supported by evidence in the record. And given
the careful manner in which the district court approached the parties' concerns at
sentencing—shown by, among other things, the lengthy testimony provided by multiple
witnesses on those questions—we do not find the court's decision to impose a departure
sentence was inherently unreasonable. The district court did not abuse its discretion when
it imposed a controlling sentence of 84 months' imprisonment.
43
For the reasons we have discussed in this opinion, we reverse one of Bliss'
convictions for aggravated kidnapping and vacate the sentence for that conviction. We
affirm Bliss' other convictions and sentence.
Convictions affirmed in part and reversed in part, sentence vacated in part, and
case remanded with directions.
44