State v. Genzel ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,602
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RONDAL GENZEL,
Appellant.
MEMORANDUM OPINION
Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed June 26, 2020. Reversed
and remanded with directions.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.
PER CURIAM: A jury in Riley County District Court convicted Defendant Rondal
Genzel of one count of rape for sexually molesting the seven-year-old daughter of his
live-in fiancée. Given the disputed and comparatively limited evidence of Genzel's guilt,
we find that improper testimony from the State's forensic expert on his analysis of DNA
samples combined with the prosecutor's unrelated and improper comments in closing
1
argument to the jury rendered the trial unfair and the verdict suspect. We, therefore,
reverse Genzel's conviction and remand to the district court for a new trial.
FACTUAL AND PROCEDURAL HISTORY
The morning of March 29, 2017, R.O., the victim in this case, made her usual trip
to elementary school with her two older brothers. Roseann Merrick, R.O.'s teacher,
quickly noticed the child seemed distracted and out of sorts. Merrick asked if anything
was wrong, and R.O. said she would like to speak to the school's social worker. Mona
Bass, a para-educator, accompanied R.O. to the social worker's office. The social worker
was gone, so Bass offered to talk with R.O. Initially, R.O. said little and began to cry.
R.O. kept telling Bass that all she wanted was a daddy. After a while, she confided that
Genzel, who she referred to as Ron, had touched her inappropriately. R.O. talked about
the touching only generally, but she seemed to suggest there had been repeated incidents.
At Bass' request, Merrick then spoke with R.O., who again provided no details about
what sounded like ongoing sexual abuse.
A school representative immediately contacted the Riley County Police
Department and the Kansas Department for Children and Families (DCF). A police
officer spoke with Merrick and Bass and had them write statements. A detective trained
in questioning young victims of sexual abuse transported R.O. to Manhattan to conduct a
recorded interview of her in a conducive setting at the Child Advocacy Center. A
videotape of the detective's 30-minute interview of R.O. was admitted as a trial exhibit
and played for the jury, so we outline the content.
R.O. initially spoke in general terms about the abuse. She indicated she frequently
snuck out of her bedroom at night to watch television and Genzel would lie on the couch
with her. When the detective attempted to elicit specifics about any inappropriate
2
physical contact, R.O. said Genzel touched her only twice and both those incidents
occurred the night before. R.O. explained she went into the living room to watch
television, as she often did. While she was lying on the couch, Genzel came out of his
bedroom and lay down on the couch behind her, facing the same direction. R.O. said
Genzel moved his hand under her shorts and digitally penetrated her vagina. R.O.
described leaving the couch, going into her mother's bedroom, lying down, and trying
unsuccessfully to wake her mother. Genzel followed R.O. into the bedroom, so she got up
and went back to the couch. Genzel followed her there and again sexually abused her in
the same way. R.O. told the detective she asked Genzel what he was doing and he replied
he thought she had something like toilet paper in her pants. R.O. said she reached for her
phone to call the police, but Genzel kept pulling her hand away. During the interview,
R.O. said she didn't like Genzel even before he touched her.
Another police officer then took R.O. to a Topeka hospital where a nurse trained
in conducting forensic examinations of sexual assault victims looked at her. During her
trial testimony, the nurse told the jurors that as she started the examination she asked if
R.O. knew why she had been brought to the hospital. R.O. replied that it was because
somebody had put his hands in her pants. During the examination, the nurse observed
some "increased redness" inside R.O.'s vagina. At trial, the nurse agreed the redness was
"inconclusive" of sexual abuse and could have been caused in many ways. But the nurse
testified child victims of sexual assault often have no injuries or other physical signs of
the abuse. The nurse used swabs to collect possible DNA evidence from R.O.'s hands and
vaginal area. She swabbed the inside of R.O.'s cheek to obtain what would be a known
sample of the child's DNA for comparison. The nurse also retained the underwear R.O.
had on the night before, so the garment could be tested for DNA.
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The detective who interviewed R.O. also spoke with Genzel and R.O.'s mother.
Genzel denied any inappropriate physical contact with R.O. He provided a DNA sample
and consented to have his hands and other parts of his body swabbed for DNA evidence.
While the criminal investigation continued, R.O. was removed from the household
and placed in emergency protective custody. The county attorney filed a child in need of
care case to determine who should have ongoing physical and legal custody of R.O. In
that case, DCF placed R.O. in the temporary physical custody of Merrick, her teacher.
R.O. began living with her natural father about seven months later. He had been residing
in Oregon and returned to Riley County. R.O.'s father had struggled with substance
abuse—a circumstance that, in part, prompted his move to Oregon and figures in the
issues on appeal.
On April 20, 2017, the county attorney charged Genzel with two counts of rape, an
off-grid felony. See K.S.A. 2019 Supp. 21-5503. As defined in the Kansas Criminal
Code, unlawful sexual intercourse constituting rape includes digital penetration of the
female genitalia. See K.S.A. 2019 Supp. 21-5501(a) (defining sexual intercourse); K.S.A.
2019 Supp. 21-5503(a)(3) (criminalizing sexual intercourse with child under 14 years of
age).
The five-day jury trial was held in mid-August 2018. R.O. testified and told the
jurors that Genzel had touched her vagina while she was lying on the couch. But her
recollection of some of the circumstances differed from what she had told the detective in
the forensic interview. Perhaps most significantly, R.O. testified that Genzel touched her
inappropriately only once rather than twice. She recalled asking Genzel what he was
doing and getting no response. R.O. described going to her bedroom and having Genzel
follow her there. She testified she went to her mother's room only after that and stayed
there until morning.
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We outline other trial evidence material to this appeal:
⦁ The State introduced Genzel's conviction in 2010 in Geary County on his plea of
guilty to a reduced charge of aggravated indecent solicitation of a child, a felony
violation of what was then K.S.A. 21-3511. Genzel touched the pubic area of his 11-year-
old stepdaughter while they were lying on a couch. Genzel and the victim's mother
divorced.
At the trial, Genzel and S.G., R.O.'s mother, testified they had talked with R.O.
and her brothers about the Geary County conviction well before R.O. disclosed what
happened to her. They did so by way of explaining why Genzel could not accompany
them to events or places where there might be other children. The explanation included a
general description of what Genzel had done.
⦁ Genzel testified that he never touched R.O. inappropriately. S.G. testified as a
defense witness and was supportive of Genzel. She testified that she and Genzel had told
the children they were planning to get married, confirming what R.O. had said in
response to questions from Genzel's lawyer. R.O. agreed with the lawyer that her mother
marrying Genzel would mean "a lot of change" and seemed "pretty scary." S.G. also told
the jurors R.O. recanted her accusations against Genzel during a family therapy session.
⦁ R.O. went to soccer practice after school on March 28, but the session was
rained out partway through. S.G. told the jurors that when she arrived, R.O. begged to
stay overnight at the coach's house. S.G. said she couldn't because it was a school night.
According to S.G., R.O. threw "a tissy fit" and went straight to her room, slamming the
door behind her when they got home.
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Later that evening, S.G. and Genzel went to a bar, along with Michael Marinella, a
friend of theirs. S.G. drank heavily and became upset, so Genzel took her home and
returned to the bar. S.G. testified that she checked on the children and went to bed. The
trial evidence showed Genzel and Marinella stayed until closing. Genzel then
propositioned the female bartender as she was getting ready to leave. She declined,
reminding Genzel she was married and he was engaged. When the prosecutor questioned
him about the incident, Genzel agreed he had suggested a liaison to the bartender but
probably on a different occasion.
⦁ Lance Antle, a forensic biologist with the KBI, testified that he made DNA
comparisons of evidence submitted in this case with the known DNA samples from R.O.
and Genzel. We recount the testimony in some detail because it provides the foundation
for one of the issues Genzel has raised on appeal. After explaining generally the method
for conducting a DNA comparison, Antle testified that he found DNA consistent with
R.O. on the swab taken from her vaginal area. In response to the prosecutor's questions,
Antle explained that female DNA contains no X chromosome and male DNA contains an
X chromosome and a Y chromosome. The test method he used showed no Y
chromosomes. The prosecutor then asked Antle if he could have used a different test. He
said he could have and didn't. Antle then seemed to qualify his earlier answer and started
to say that the testing he did showed that "[t]here was a tiny, tiny bit of male DNA found
in—" Genzel's lawyer cut off the answer with an objection. The district court responded
simply, "Sustained."
The prosecutor then asked Antle about the swabs from Genzel's hands. They had a
mix of DNA from Genzel and a second person. But the amount of DNA from the second
person was insufficient to match it to a known sample, such as the one from R.O. Antle
testified that the underwear had DNA consistent with only R.O.
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On cross-examination, Genzel's lawyer had Antle explain how one person can
leave trace DNA by touching an object and another person can pick up that DNA by
touching the same object. And, in turn, a swab of the second person's hand could include
DNA from both of them. During the lengthy cross-examination, Genzel's lawyer asked
Antle to confirm that he did not specifically identify male DNA on the swabs of R.O. He
replied that was correct as to swabs from her hands. Asked about "the other swabs" from
R.O., Antle said, "[T]here's a tiny bit of DNA detected on the—." The lawyer cut Antle
off with another question. The lawyer then challenged Antle with the report he prepared
on his DNA analysis, which he furnished to the State and was later turned over to the
defense. Antle agreed the report contained no reference to any male DNA on the swabs or
underwear obtained from R.O.
Immediately after Antle finished his testimony and the jury was dismissed for
lunch, Genzel's lawyer requested a mistrial because Antle had referred to male DNA
being present in the DNA samples from R.O.—information that was not included in his
final report the State produced before trial. Genzel pointed out that trial testimony from
expert witnesses called by one party typically cannot differ materially from the opinions
they have disclosed in their reports disseminated to opposing parties in pretrial discovery.
A contrary rule invites unfair surprise. See K.S.A. 2019 Supp. 22-3212(b)(2) (duty to
provide "summary or written report" of opinions expert witness expected to testify to at
trial); State v. Grey, 46 Kan. App. 2d 988, 998, 268 P.3d 1218 (2012) (admission at trial
of material opinion not disclosed in expert report State disclosed to defense created
reversible error); McGuire v. Wesley Rehab. Hosp., No. 99,204, 2009 WL 454941, at *3
(Kan. App. 2009) (unpublished opinion). The district court denied the motion.
At the close of the State's case, the district court granted Genzel's motion for
judgment of acquittal in part and dismissed one of the rape counts. The district court
found sufficient evidence to submit the other count to the jury. The district court's
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dismissal is the equivalent of a jury finding of not guilty, making it an unappealable
ruling except as a question reserved that would not affect the defendant's substantive
rights. See State v. Wilson, 261 Kan. 924, Syl. ¶ 2, 933 P.2d 696 (1997). The State has
not sought that limited review of the ruling. The jury convicted Genzel of the single
remaining count of rape. The district court denied Genzel's posttrial motions and in
December 2018 ordered Genzel to serve life in prison with his first parole eligibility after
25 years, reflecting the standard statutory sentence. Genzel has appealed.
LEGAL ANALYSIS
On appeal, Genzel raises three substantive points: (1) In her closing argument, the
prosecutor made two impermissibly prejudicial statements to the jury depriving him of a
fair trial; (2) the district court erred in denying his motion for a mistrial; and (3) the
district court refused to admit evidence that R.O. had made a false accusation that her
father was abusing alcohol and drugs after she was placed in his custody. Genzel has also
argued the cumulative effect of those errors so tainted his trial as to require reversal of the
conviction. We find the prosecutor's closing argument combined with the expert's
reference to detecting male DNA in the biological evidence taken from R.O. constituted
prejudicial error. The error cannot be discounted as harmless, given the other limited and
conflicting evidence of Genzel's guilt. Although we did not weigh the district court's
exclusion of R.O.'s accusation about her father in our determination of reversible error,
we discuss the point because it may come up in a retrial.
Prosecutor's Closing Argument
Genzel challenges two aspects of the rebuttal arguments the prosecutor delivered
to the jurors after his lawyer had concluded his remarks as to why they should return a
not guilty verdict. Because the State bears the burden of proof in a criminal case, the
8
prosecutor gets to open and close the final arguments to the jurors, thus surrounding the
defense lawyer's comments. The rebuttal argument can and ought to be a powerful tool of
persuasion, since it entails virtually the last words the jurors hear in the trial before they
begin their deliberations. Before turning to the prosecutor's precise statements, we outline
the principles governing the boundaries of proper jury argument and how to assess the
impact of a lawyer's potentially errant remarks.
Closing argument affords the lawyers the opportunity to discuss how the jurors
should evaluate the evidence and how that evidence guides their application of the law in
the district court's written instructions to reach a verdict. Advocates are expected to use
that opportunity to their respective client's advantage and have "wide latitude" in drawing
inferences from the evidence and in fashioning rhetorically striking arguments. State v.
King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting prosecutor's "'wide latitude'" in
arguing case for "'a just conviction'"); State v. Rodriguez, 269 Kan. 633, 643, 8 P.3d 712
(2000) (closing argument not improper simply because of "impassioned . . . oratory" or
"picturesque speech").
But arguments may not stray from settled rules designed to make the trial process
an exploration for the truth in service of a fundamentally fair result. Just as the lawyers
are bound by the rules of evidence in questioning witnesses and offering exhibits, they
may not intentionally mischaracterize the evidence in arguing to the jurors. See State v.
Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012). Nor should they refer to factual
information outside the admitted evidence. State v. Thurber, 308 Kan. 140, 162, 420 P.3d
389 (2018). They may not offer their personal opinions about the significance of specific
evidence and particularly who among the witnesses should be believed or disbelieved.
State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012). They may not misstate the law
or invite the jurors to disregard the law. State v. Tahah, 302 Kan. 783, 791, 358 P.3d 819
(2015). And they may not deploy oratorical bombast that does no more than vilify the
9
opposing side or invite sympathy for their own side. See Thurber, 308 Kan. at 162
(argument may not "'inflame the passions or prejudices of the jury'" diverting from facts
and law); Anderson, 294 Kan. at 463 (argument improper when designed to "obtain a
conviction based on sympathy"); State v. Gammill, 2 Kan. App. 2d 627, 631, 585 P.2d
1074 (1978) (referring to defendant as "an animal" in closing argument "definitely
improper"). Those constraints weigh perhaps most heavily on prosecutors, since their
ultimate duty calls for ensuring a fair adjudication of a criminal defendant rather than
simply racking up a conviction. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060
(2016) (wide latitude extended prosecutors must be exercised within duty "to obtain a
conviction in a manner that does not offend the defendant's constitutional right to a fair
trial"); State v. Pabst, 268 Kan. 501, Syl. ¶ 6, 996 P.2d 321 (2000) (overarching "interest"
of State, and its legal representative, in criminal prosecution "is not that it shall win a
case, but that justice shall be done").
In Sherman, the Kansas Supreme Court recalibrated how to assess prosecutorial
error in closing arguments. 305 Kan. at 109. The analytical model first considers whether
an error has occurred and then weighs any prejudice to the defendant resulting from the
error. Comments made during argument will be considered error if they fall outside that
wide latitude afforded a prosecutor in discussing the evidence and the law. 305 Kan. at
109. This simply transplanted the initial step in the former process, though substituting
the term "error" for "misconduct," a more pejorative label at least connoting a deliberate
violation of the rules even when there might be only an inadvertent mistake. 305 Kan. at
104-05. If an appellate court finds the challenged argument to be prosecutorial error, it
must then consider prejudice measured by the test set out in State v. Ward, 292 Kan. 541,
Syl. ¶ 6, 256 P.3d 801 (2011), for a constitutional wrong. The State, as the party
benefiting from the error, must demonstrate "'beyond a reasonable doubt'" that the
mistake "'did not affect the outcome of the trial'" taking account of the full trial record.
305 Kan. at 109 (quoting Ward, 292 Kan. 541, Syl. ¶ 6). That is, the appellate court must
10
determine if the error deprived the defendant of a fair trial—a constitutional protection
rooted both in due process and in the right to trial itself. 305 Kan. at 98-99, 109. The
prejudice analysis in Sherman replaced a multifactor standard that also considered the
prosecutor's bad intent or ill will—breaches of professional conduct the court concluded
could be more pointedly addressed in other ways. 305 Kan. at 114-15.
We apply those principles to what Genzel has alleged to be dual errors in the
prosecutor's closing argument. One of the prosecutor's comments is quite brief; the other
is an extended entreaty. We consider the shorter commentary first. In the rebuttal
argument, the prosecutor told the jurors:
"Ladies and gentlemen, the guilty people get charged with crimes that they did
do, and it's up to you to decide whether or not this defendant is guilty. The State has to
prove the case to you beyond a reasonable doubt and you decide if [R.O.] is believable or
not." (Emphasis added).
Genzel contends the italicized statement primarily amounts to an impermissible
expression of the prosecutor's personal opinion and secondarily denigrates the
presumption of innocence that attaches to criminal defendants. See Ward, 292
Kan. at 570 (presumption of innocence entails fundamental protection embedded
in Sixth Amendment right to jury trial and in Fourteenth Amendment due process
rights). On appeal, the State counters that the argument properly fell within the
bounds afforded prosecutors and simply invited the jurors to convict Genzel if the
evidence proved him guilty.
Although the precise meaning of prosecutor's remark isn't readily apparent,
we fail to see an obvious expression of personal opinion about the evidence
generally or Genzel's credibility particularly. By the same token, however, we fail
to see an entirely benign suggestion simply to find Genzel guilty should the
11
evidence warrant it. As rendered, the statement seems to trade on the notion that
criminal defendants are likely guilty because they have been charged or the related
notion that only guilty people get convicted. Either way, the remark does
impermissibly diminish the presumption of innocence and, therefore, reflects
prosecutorial error.
On appeal, the State suggests the prosecutor's statement was offered in
response to a comment Genzel's lawyer made in his closing argument to the effect
he "practice[s] law . . . to make sure that protocols are followed because when you
don't, innocent people get charged with stuff they didn't do." The comment from
Genzel's lawyer also comes across as at least problematic by raising the specter of
wrongful convictions in other cases, a recurring topic in the news media. But a
prosecutor's proper response to an improper defense argument is an objection—not
a similarly improper rebuttal argument. See State v. Sprague, 303 Kan. 418, 428-
29, 362 P.3d 828 (2015). So that doesn't undo the error.
Under Sherman's prejudice analysis, we are not prepared to say the
prosecutor's comment deprived Genzel of a fair trial. The remark was a fleeting
(and obscure) statement in an extended closing argument at the end of a lengthy
trial. As we have suggested and as the lawyers argued to the jurors, this case
pivoted on the credibility of R.O. and Genzel. This remark did not cause the tide to
turn one way or the other. It was not reversible error standing alone, but it should
be weighed in assessing cumulative error.
Genzel's other claim of prosecutorial error focuses on a more elaborate
pitch from the rebuttal argument that is unquestionably improper. The prosecutor
began that portion of her argument with a rhetorical question as to who knew
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about Genzel's 2010 conviction for sexually abusing his stepdaughter. She
continued this way:
"The mother did, and with that knowledge, [R.O.]'s mother failed to protect her.
Although she told Dana Wilson [a DCF caseworker] that she would do whatever was
necessary to protect [R.O.], [S.G.] did not protect [R.O.] when she allowed, actually,
when she invited a convicted sex offender to become a part of their family.
"Are you surprised that [R.O.] was then molested by the defendant?
....
"On March 29th, 201[7], [R.O.]'s father was in Oregon and not able to protect
her. [R.O.]'s mother . . . was being drunk and belligerent . . . , so she was in no condition
to protect [R.O.], and who is the mother protecting, the defendant.
"The mother testified that she takes care of herself, the mother's needs come first.
That she—but however, she cannot admit that she messed up to having a convicted sex
offender live in her home with her young daughter. She wants to say that they did all of
this to keep it from happening, but wouldn't it have been easier for the mother just to
decide not to date the defendant?
"Not to introduce him to her children; not to allow him to spend time alone with
[R.O.]?"
At that point, Genzel's lawyer interposed an objection that S.G. was not on trial. Without
directly ruling on the objection, the district court suggested to the prosecutor, "[L]et's
move on." The prosecutor didn't and finished that piece of the rebuttal argument:
"The mother put herself first instead of putting the child first, instead of putting
[R.O.] first.
"On March 29th, 2017, the defendant, [R.O.]'s father figure, failed to protect her.
He took advantage of her."
Genzel submits the prosecutor's remarks amounted to an extended request to the
jurors to protect R.O. with their verdict after the most prominent adults in her life
effectively abandoned or abused her. He characterizes the argument as an improper
13
appeal to the jurors' raw emotions rather than as a reasoned explanation of the facts or the
law. The State counters that the prosecutor did not ask the jurors to bring back a guilty
verdict because the adults around R.O. had failed to protect her. The remarks, therefore,
were appropriate.
As we have indicated, we do not see a proper purpose behind what the prosecutor
crafted as an extended rebuttal argument focusing on how R.O.'s mother and father
turned their backs to an obvious risk to her physical and emotional well-being. The
argument, however, has little to do with Genzel's guilt or innocence or the evidence
against him. The argument faults them for allowing Genzel, as a convicted sex offender,
to be around R.O. at all. But that fault neither tends to prove nor tends to disprove R.O.'s
accusation. Likewise, after R.O. accused Genzel, S.G. essentially backed him rather than
her daughter. Again, that choice isn't evidence of Genzel's guilt or innocence. So the
prosecutor's lengthy commentary on R.O.'s parents does not serve the proper purposes of
a closing argument in offering a reasoned analysis of the evidence or law as supporting
Genzel's guilt. Rather, the argument implies in a not very veiled manner that the jurors
will have failed to protect R.O. in much the same way as her parents—particularly her
mother—if they don't convict Genzel.
In State v. Tosh, 278 Kan. 83, 92-93, 91 P.3d 1204 (2004), the Kansas Supreme
Court found a comparable closing argument to be both improper and a material factor in
depriving the defendant of a fair trial on charges he had sexually assaulted his 16-year-
old daughter. In concluding the first part of his closing argument, the prosecutor in Tosh
told the jury: "'When [K.T.] was little, and even today, her father failed to protect her. He
raped her. You can protect her. You can find him guilty. Thank you.'" 278 Kan. at 92.
Without much elaboration, the court readily characterized the comment as an
impermissible appeal to the jurors' "sentiments" rather than an argument grounded in the
evidence or the law. 278 Kan. at 92-93. The court found that error in combination with
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another impermissible jury argument and highly improper questions the prosecutor posed
to the defendant on cross-examination rendered the trial fundamentally unfair. 278 Kan.
at 94-95. In coming to that conclusion, the Tosh court was particularly dismayed by the
cross-examination and applied a test for reversible error that has since been substantially
retooled in Sherman. But the court's treatment of the argument as improper remains
undiminished, and we consider Tosh for that reason.
On appeal, the State tries to distinguish the improper argument in Tosh in two
ways. First, the prosecutor in that case referred only to the defendant as failing to protect
the victim, while here the remarks concerned R.O.'s mother and father. But that effort
miscasts the argument in this case. To be sure, the prosecutor told the jurors R.O.'s
parents didn't protect her. But after the district court told the prosecutor to "move on"
with her closing comments, she specifically told the jurors that Genzel didn't protect R.O.
and "took advantage" of her. In its entirety, the argument not only replicated what Tosh
held objectionable but extended that improper theme.
Second, the State points out the prosecutor in Tosh explicitly implored the jurors
to protect the victim in that case by convicting the defendant and there is no identical
exhortation here. But, as we have indicated, the explicit (and extended) commentary
depicts the abandonment of R.O. by both of her parents and her abuse at the hands of
Genzel, who at least in the prosecutor's remarks is portrayed as a "father figure" to her.
The obvious, though implicit, message to the jurors is that they need to protect R.O. by
convicting Genzel and they, too, will have abandoned her if they don't.
Here, the prosecutor's comments were considerably more elaborate than those the
court found to be improper in Tosh. They rest on the ostensible indifference of R.O.'s
father and her mother's near complicity in the sexual abuse and conclude with Genzel's
betrayal of the child. Looking at the verbal picture the prosecutor painted for the jurors,
15
we find little to nothing in the way of a reasoned argument for conviction based on the
evidence or the law. The prosecutor constructed a theme—this was no off-hand aside—
advancing an impermissible emotional appeal to the jurors as guardian angels of
victimized children rather than as objective finders of fact determining whether to convict
a defendant. The argument was substantial, deliberate, and indisputably inappropriate. In
short, it was, by any measure, prosecutorial error.
The second step of the Sherman analysis poses the far more difficult question:
Whether the error so prejudiced Genzel as to undermine his right to a fair trial. We
choose not to decide if this improper argument standing alone rose to the level of
reversible error and offer our assessment as part of our consideration of cumulative error.
Denial of Mistrial
On appeal, Genzel contends the district court should have granted his request for a
mistrial because Antle twice mentioned finding a miniscule amount of male DNA in the
biological evidence taken from R.O.—information omitted from his pretrial report that
fairly might be considered a material qualification of his reported conclusion that Genzel
could not be linked to that evidence. We have already detailed Antle's testimony pertinent
to this issue and do not repeat it here.
Genzel sought a mistrial on the grounds Antle's mention of male DNA in the
swabs from R.O. constituted what the statute governing mistrials identifies as "prejudicial
conduct" making it "impossible" to continue the trial "without injustice" to him. K.S.A.
22-3423(1)(c). The statutory standard for granting a mistrial is, in a word, stringent. If
circumstances create prejudice that may compromise either side's interest in a just result,
the district court should first consider whether the damaging effects can be eliminated or
adequately mitigated with a curative jury instruction, an admonition, or some other
16
remedy short of a mistrial. If the harm cannot be fully erased, the district court must
determine whether the residual prejudice creates an injustice. Only then should a district
court declare a mistrial. State v. Moyer, 302 Kan. 892, 906, 360 P.3d 384 (2015).
As a general matter, a district court's ruling on a motion for a mistrial lies within
its sound judicial discretion. An appellate court reviews the ruling for abuse of discretion.
302 Kan. at 906. Judicial discretion is abused when the district court's decision rests on
either an error of law or unsupported facts or is otherwise arbitrary, fanciful, or
unreasonable, meaning no other judicial officer could have come to the same conclusion
in a comparable situation. State v. Williams, 303 Kan. 585, 595-96, 363 P.3d 1101
(2016). As the party asserting an abuse of discretion, Genzel bears the burden of
establishing his claim. See State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015).
Antle's references to having detected male DNA created a problem and prejudiced
Genzel. Given the context of those comments in his overall testimony, Antle was talking
about biological evidence retrieved from R.O.'s body other than her hands as the source
of the DNA, even though he never said precisely that. Moreover, given the evidence at
trial, Genzel would have been the only likely source of the male DNA. So the inference
was of DNA linking a man to biological evidence taken from R.O.'s vaginal area. That's
not exactly good for the defense in this case, since it corroborates some version of R.O.'s
account of being abused and undercuts Genzel's denial and the necessary corollary that
R.O. fabricated her accusation.
The district court sustained an objection from Genzel's lawyer to Antle's first
mention of finding male DNA. The district court did not specifically instruct the jurors to
disregard what they had heard immediately before the objection. But Genzel's lawyer
never asked the district court to so advise the jury as an alternative to his request for a
mistrial.
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Antle's two references to finding male DNA were brief and incomplete. He never
described fully exactly where the DNA was found, and he certainly never discussed what
significance he, as an expert witness, attached to that information. Conversely, Antle
testified that he did not find Genzel's specific DNA profile to be forensically consistent
with any DNA recovered from R.O.'s body or clothing.
In the abstract, we are not disposed to say the district court abused its discretion in
denying the motion for a mistrial. The district court understood the law and grasped the
testimony. We expect there are other district courts that would have ruled the same way.
All of that more or less fits within the wide berth for judicial discretion. Given our
ultimate decision to grant Genzel a new trial based on cumulative error, we need not and
do not definitively say the court erred.
As we have indicated, and as the State agrees on appeal, Antle should not have
testified about discovering male DNA in his examination of the biological evidence
because that opinion was not included in his report the prosecution furnished the defense
before trial. By statute, the pretrial disclosure must identify the opinions an expert
witness will offer at trial. K.S.A. 2019 Supp. 22-3212(b)(2); Grey, 46 Kan. App. 2d at
998. Deviation from that rule creates an impermissible trial by ambush, substantially
impairing the opposing party's ability to adequately prepare to confront an expert witness.
We, therefore, consider Antle's testimony in assessing cumulative error.
False Accusation Theory
On the second day of trial, Genzel's lawyer requested a hearing outside the
presence of the jury to obtain a prospective ruling from the district court on the
admissibility of evidence purportedly showing R.O. made a false accusation that her
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father had been drinking to excess and using illegal drugs after she had been placed in his
custody. The lawyer proffered to the district court that Merrick would testify that R.O.
had come to her house and reported that her father was intoxicated. Merrick reported this
to DCF. The agency promptly had R.O.'s father tested, and the results were negative for
both alcohol and drugs.
Based on the proffer, Genzel wanted to admit the evidence to show R.O.
deliberately made a false accusation about her father and that, in turn, supported the
defense theory she similarly made a false accusation of sexual abuse. Genzel suggested a
common motive. R.O. was angry with Genzel and her mother because she could not stay
over with her coach after soccer practice and more generally she disliked Genzel and
didn't want her mother to marry him. So an angry and manipulative R.O. falsely accused
Genzel of the same sort of conduct he had been convicted of seven years earlier. Later,
after R.O.'s father returned from Oregon and she went to live with him, she was unhappy
with the arrangement. R.O. falsely accused him of getting drunk and using illegal drugs,
which he had done in the past, in the hopes she would get to live with Merrick again.
The district court denied Genzel's request to present that evidence to the jury. The
district court concluded the accusation R.O. made about her father was, at best,
inadmissible evidence of a specific instance of her untruthfulness being offered to prove a
character trait for lack of honesty or veracity. Genzel has appealed the ruling and
contends the exclusion of the evidence amounted to reversible error.
The district court correctly recognized that the Kansas Code of Evidence limits the
ways a witness' character trait for "honesty or veracity or their opposites" may be proved.
K.S.A. 60-422(c). The proof is commonly confined to reputation or opinion evidence.
See K.S.A. 60-422(c), (d); K.S.A. 60-446. That is, a person with knowledge of what
others in the community say about the witness' reputation for veracity may testify to that
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reputation. Similarly, a person with substantial direct interactions with the witness may
offer an opinion of the witness' veracity derived from those dealings. But the rules
expressly exclude evidence of specific instances of the witness' conduct—that he or she
was truthful or untruthful on a particular occasion. K.S.A. 60-422(d). The reason is a
pragmatic one. Specific instance evidence may not be especially probative of a character
trait. Even characteristically truthful people sometimes tell lies, and conversely liars may
tell the truth from time to time. The proof of multiple specific instances of a witness'
truthfulness or prevarication would consume a great deal of time and become a sideshow
detracting from the central issues in a case.
But we don't understand the theory to be that R.O. was an inveterate liar. Rather,
Genzel says she was an exceptionally strategic liar, deliberately telling significant
falsehoods in rare instances to substantially alter her familial environment to be more to
her liking. That's something different from a general character trait for untruthfulness and
advances a theory rooted in a common scheme or motive. Evidence of specific instances
of conduct presumably would be admissible if those instances were probative of an
otherwise material scheme or motive.
Probative evidence has some "tendency in reason to prove a fact" and is one
component of relevance. We typically review a district court's determination of
probativeness for abuse of discretion. State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d
680 (2013). In turn, the evidence must be material, meaning it has some bearing on a
disputed fact having legal significance in the case. That's the other component of
relevance. We may assess materiality without deference to the district court. Boleyn, 297
Kan. 610, Syl. ¶ 1. And evidence may be admitted for a proper purpose even though it
may be inadmissible for some other purpose. K.S.A. 60-406 (recognizing admissibility of
relevant evidence for limited purpose). We think R.O.'s complaint about her father could
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be material if Genzel's theory behind it were established, since it would have some
circumstantial relevance to the veracity of the sexual abuse charge.
On appeal, Genzel relies, in part, on a decision of this court that recognized a
narrow rule allowing a putative victim in a sex crimes prosecution to be impeached with
evidence he or she had made false allegations of similar abuse on another occasion. State
v. Barber, 13 Kan. App. 2d 224, 227, 766 P.2d 1288 (1989). The court reasoned that in
sex crime prosecutions, a defendant's right to confrontation guaranteed in the Sixth
Amendment to the United States Constitution overrides the limitation in K.S.A. 60-
422(d) precluding specific instance evidence to prove the victim's character trait for
veracity or its opposite. 13 Kan. App. 2d at 226. Well into the twenty-first century, the
narrow impeachment rule announced in Barber rests on a disquieting judicial-thumb-on-
the-scales approach to sex crimes in which most victims are female. The impeachment
evidence in Barber really did not bear so much on the victim's general character trait for
veracity (or its opposite) but on her purported disposition to make false claims of sexual
abuse—the precise kind of claim at issue in the criminal case.
In any event, the Barber court affirmed the district court's ruling excluding the
proffered evidence because the defendant failed to show the victim's earlier allegations of
sexual abuse made on several occasion against the defendant and others were false. 13
Kan. App. 2d at 227. In other words, the other accusations were not probative of the
victim's untruthfulness, since they were not demonstrable lies. We read Barber as
fashioning a rule admitting evidence that the victim in a sex crimes prosecution had lied
about being sexually abused on some other occasion. The rule, then, does not apply here,
and we are not disposed to extend Barber by analogy to some different factual setting.
That brings us back to Genzel's proffer of R.O.'s representation about her father's
insobriety. As presented, the proffer shows R.O. was mistaken about her father being
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intoxicated when she spoke to Merrick. But nothing in the proffer showed R.O.
deliberately falsified her account, i.e., she lied about her father. That would be an
inference. Similarly, nothing showed that if R.O. lied, she did so to get away from her
father or to return to Merrick's custody. That would be another inference. The proffer
becomes probative of an improper scheme or motive only by indulging those sequential
inferences. And its benefit to Genzel then depends upon the ultimate sequential inference:
R.O. lied about Genzel to oust him from the household, just as she lied about her father.
From our vantage point, the proffer relied on too much inference and not enough
fact, especially as to why R.O. spoke to Merrick about her father. Genzel's theory then
superimposes pyramiding inferences upon the initial inference that R.O. must have lied to
Merrick. That looks to be impermissible inference stacking. See In re Estate of
Rickabaugh, 51 Kan. App. 2d 902, 910, 358 P.3d 859 (2015), aff'd 305 Kan. 921, 390
P.3d 19 (2017). Even if the proffer were minimally relevant, its heavily inferential
character might well render it unduly prejudicial and, thus, inadmissible. See State v.
Phillips, 295 Kan. 929, 948, 287 P.3d 245 (2012) (district court may exclude otherwise
relevant evidence if resulting undue prejudice outweighs probative value).
Given the record on this point, we are not prepared to say the district court came to
the wrong conclusion in excluding R.O.'s statement to Merrick about her father's
purported intoxication and the related evidence indicating he was sober, despite how it
framed and resolved the evidentiary issue. See State v. Smith, 309 Kan. 977, 986, 441
P.3d 1041 (2019). We, therefore, find no prejudicial error in the ruling.
That said, because we are remanding for a new trial, the district court may revisit
the question. We view that as particularly appropriate here because determining the
probativeness of proffered evidence is entrusted to the district court's sound discretion.
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Genzel's lawyer may renew the request to admit evidence related to R.O.'s report about
her father's insobriety, presumably buttressing the renewed proffer with provable facts.
Cumulative Error
As his final point, Genzel argues the cumulative effect of the errors in the district
court deprived him of a fair trial. Appellate courts will weigh the collective impact of trial
errors and may grant relief if the overall impact of the imperfections deprived the
defendant of a fair hearing even when the errors considered individually would not
necessarily require reversal of a conviction. State v. Harris, 310 Kan. 1026, 1041, 453
P.3d 1172 (2019); State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). An
appellate court examines the entire trial record to assess the aggregate effect of multiple
trial errors. 301 Kan. at 167-68. The assessment takes account 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." State v. Miller, 308
Kan. 1119, 1176, 427 P.3d 907 (2018).
Here, the evidence against Genzel was not overwhelming. Going into the trial, the
case essentially pitted the credibility of Genzel against the credibility of R.O. The State's
case was ostensibly bolstered with the propensity evidence of Genzel's conviction for a
factually similar sexual assault of his former stepdaughter. But Genzel suggested he and
R.O.'s mother had told R.O. and her brothers about the conviction. Genzel argued that
supplied R.O. with details to falsely accuse him out of spite, antipathy, and a desire to
torpedo his marriage to her mother. R.O. didn't reveal the sexual abuse in an overt way
and appeared reticent to discuss what happened. Her near contemporaneous accounts,
however, differed from her trial testimony, most notably as to the number of times
Genzel assaulted her. The State's forensic evidence disclosed to the defense and properly
admitted at trial, including the DNA analysis, did not corroborate (or disprove) R.O.'s
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accusation. Genzel, of course, consistently denied sexually assaulting R.O. and repeated
his denial from the witness stand during the trial.
As a gross generalization, the trial evidence presented a mixed bag. The evidence
did not tilt overwhelmingly in favor of either the State or Genzel. For a not guilty verdict,
Genzel simply had to generate a reasonable doubt about the State's key evidence.
Without repeating all that we have discussed thus far, we conclude that the
problems with the prosecutor's closing argument combined with the forensic expert's
improper reference to having found male DNA in the biological samples taken from R.O.
sufficiently undermined the fairness of the jury trial to call into question the verdict. The
prosecutor's extended description in closing argument of R.O. having been left
unprotected—abandoned—by the adults closest to her injected entirely improper and
highly corrosive emotional considerations. Though unspoken, the clear implication to the
jurors placed them in the position of either protecting or abandoning R.O. with their
verdict. That implication cannot be reconciled with the jurors' duty to impartially weigh
the evidence to determine what happened and to then apply the law to their factual
determinations. The dissonance between the prosecutor's pitch and the jurors' duty would
have been especially pronounced here with a charge of sexual abuse of a young child by
an adult well known to her.
The prosecutor's closing argument further eroded Genzel's right to a fair trial with
the reference to guilty people being charged with what they have done. The remark
improperly trod upon the presumption of innocence, a cornerstone of the criminal justice
process. The combined effect of those improper arguments substantially impaired the
fairness of the trial.
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The DNA expert's testimony generated a different sort of challenge to the fairness
of the trial by impermissibly introducing opinion evidence that should not have been in
front of the jury. The brief references to male DNA in the biological material collected
from R.O. constituted both undue surprise and tangible prejudice to the defense.
Although the district court took steps to mitigate the harm, the comments came with the
aura of a scientific foundation. They represented an anchor of factual reliability amidst
conflicting testimony and otherwise inconclusive forensic evidence. While we have
found the district court acted within its discretion to deny the motion for a mistrial, we
may (and should) consider the expert's remarks in assessing cumulative error.
We do not consider whether those comments and the district court's handling of
the objection to them created reversible error, since Genzel has not formally pressed that
point. The jurors heard the references to male DNA and may well have been swayed by
them, despite Genzel's objection and the district court's taciturn response sustaining the
objection.
So there were errors on two fronts—one infected the forensic evidence, and the
other infected the final closing argument from the prosecutor. Each, of course, favored
the State in a case that the prosecutor and Genzel's lawyer vigorously litigated on facts
that were both disputable and disputed. The trial record left the jurors with no simple task
in sorting out the evidence and arriving at a verdict, given the heavy burden of proof on
the State to convict. We believe the process faltered under the collective weight of those
errors—the trial ceased to be fair at the last when the prosecutor improperly exhorted the
jurors to find Genzel guilty, and the verdict, though rendered in good faith, cannot be
accepted as sufficiently reliable to meet the exacting standards required in a criminal
case.
Reversed and remanded with directions to grant Genzel a new trial.
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