State v. White ( 2021 )

No. 122,039
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOHNNY C. WHITE,
Appellant.
SYLLABUS BY THE COURT
1.
Although exclusion of evidence which is integral to a theory of defense may
violate a defendant's fundamental right to a fair trial, a defendant's right to present
relevant evidence is subject to reasonable restrictions.
2.
Without a stipulation by the parties, a trial court may not admit the results of a
polygraph examination, or that a polygraph examination was taken, or that an offer to
take that examination was made or refused. The rationale for exclusion is that polygraph
examinations are not generally accepted as reliable in the relevant scientific community,
and that juries may place undue weight on the results, usurping the role of the jury.
3.
The Kansas Supreme Court has not adopted a limited purpose exception to the
general rule excluding polygraph evidence, even when the rationale for inadmissibility is
absent. So even if evidence relating to a polygraph examination is an operative fact,
unrelated to the correctness of the results of a polygraph examination, the trial court must
exclude it, absent a stipulation.
1
4.
The State has considerable latitude in charging the time periods during which child
victims have been sexually abused. Time is not an indispensable ingredient of the offense
of indecent liberties with a child.
5.
The Kansas Supreme Court, by "judicial construct," requires courts to weigh
probity against prejudice and to find that the probative value of K.S.A. 60-455(d)
evidence outweighs its potential for producing undue prejudice.
6.
We review the erroneous admission of K.S.A. 60-455(d) evidence for harmless
error. Under this standard, the State must prove that there is no reasonable probability
that the error contributed to the outcome of the trial.
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed August 6, 2021.
Conviction affirmed, sentence vacated in part, and case remanded with directions.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., MALONE and GARDNER, JJ.
GARDNER, J.: Johnny C. White appeals his conviction of aggravated indecent
liberties with a child under the age of 14. He argues that the district court committed
reversible error by excluding polygraph examination evidence integral to his defense,
allowing the State to amend its charging document, admitting an unduly prejudicial video
of his confession to a prior crime, and committing cumulative error. White also argues,
2
and the State agrees, that the district court erred in sentencing him. We agree that White's
sentence must be corrected but find no error warranting the reversal of his conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2017, C.U. told her aunt, Malinda G., that she had been sexually abused in
2009. Although C.U. was sitting in the same room as Malinda, C.U. sent this information
to her through a text message. C.U.'s text said that when she was around eight years old, a
man named "John" touched her inappropriately when she was at a sleepover with her
friend, A.B. C.U. alleged this happened three times. Shannon B., A.B.'s aunt, owned the
home where the abuse occurred. Although she did not reference Shannon by name, C.U.
told Malinda that she thought "John" was A.B.'s aunt's father and lived in the basement of
the house.
C.U. and Malinda found on Facebook a picture of the person C.U. believed was
her abuser. Believing she knew her abuser's first and last names, C.U. found photos of
John B., which she thought showed similar "facial features" to the man who sexually
abused her. C.U. identified John B. as her abuser.
Unbeknownst to C.U., John B. was not Shannon's father but her father-in-law.
And John B. did not live or typically stay overnight in Shannon's home. Johnny C. White
is Shannon's biological father and he lived in Shannon's home for several years; his
bedroom was in the basement. And White had sexually abused Shannon's daughter, his
granddaughter, who was a similar age as C.U. and spent a lot of time with C.U. In 2014,
White pleaded guilty to aggravated indecent liberties with a child for his sexual abuse of
his 15-year-old granddaughter.
3
Investigation of C.U.'s Allegations
The morning after C.U. made her disclosure, Malinda called the police. She told
the responding officer about C.U.'s statements and showed him a picture of John B. The
officer reported the basic information Malinda provided, including C.U. and John B.'s
names, before leaving. After the officer left, C.U. reviewed the photo of John B. and
realized, possibly because of her Mother's persuasion, that she had misidentified him as
the person who abused her. She then identified White as her abuser.
Detective Dan Ribble investigated C.U.'s claims. C.U. told Ribble that White had
assaulted her, although she identified her abuser as Shannon's dad. When asked why the
police report listed John B., C.U. explained that she had misidentified John B. but had
since realized that White was her abuser. C.U. also told Ribble that she knew White had
sexually abused his granddaughter.
C.U., who was 15 or 16, also told Ribble that she was around 8 years old and in
the second grade when the crime occurred. She alleged that White had inappropriately
touched her twice but she remembered only one time. She recalled that White had walked
upstairs from his room in the basement, entered the living room where she was sleeping
on the couch, sat on the couch, pulled her underwear down, touched her vagina, and
forced her to touch his penis. C.U. believed she was lying on her side during the assault.
Interrogation, Polygraph Examination, and Confession
Ribble first interviewed White at the Hutchinson Correctional Facility on August
3, 2017. He advised White before he began questioning him that White did not have to
speak to him without an attorney present. White told Ribble that he remembered C.U. and
generally described what she looked like as a child. White also remembered seeing C.U.
at Shannon's home, sometimes sleeping on the couch in the living room. But White
4
denied having touched C.U. and said he never forced C.U. to do anything to him. Before
concluding the interview, Ribble asked White if he would later submit to a polygraph
examination to corroborate his claims, and White agreed.
Ribble returned to the Hutchinson Correctional Facility with Rick Atteberry, a
Kansas Bureau of Investigation investigator, to administer a polygraph examination on
August 17, 2017. Atteberry read White his Miranda warnings before administering the
examination. Ribble was not present when Atteberry questioned White and administered
the examination, which took around two hours. Throughout the examination, White
maintained that he did not touch or otherwise engage in any sexual activity with C.U. But
Atteberry concluded that the polygraph results showed White was being dishonest. And
when Ribble returned to the interview room, Atteberry told Ribble that White had failed
the polygraph examination, so Ribble began questioning White again.
During his renewed questioning, Ribble referenced White's previous conviction
and actions with his granddaughter. Ribble told White that he, not C.U., was lying and
that White needed to describe what he did to C.U. because she needed answers so she
could get some closure. White acknowledged his previous conviction and conceded that
he had sexually abused his granddaughter but continued to deny that he touched C.U. or
forced her to touch him. But around 20-30 minutes into Ribble's renewed questioning,
White ultimately admitted that C.U. "[was] not lying" and then confessed that he had
touched her sexually. White gave details, ultimately admitting that he had rubbed C.U.'s
vagina with his hand to make her feel good. But White denied that C.U. had touched him.
Pretrial Proceedings
The State charged White with two off-grid counts of aggravated indecent liberties
against a child under 14 years old. The first count charged that White touched C.U.'s
vagina and the second charged that White forced C.U. to touch his penis.
5
Before trial, White moved to suppress his 2017 confession, asserting it was
involuntary and coerced by the polygraph examination. The State argued that White's
confession was admissible but moved to exclude any mention of the polygraph
examination.
The State also moved in limine to admit a video of White's 2014 confession
related to his previous conviction as K.S.A. 60-455(d) propensity evidence. The 2014
video showed an interview by Detective Nathan Gerdsen, in which White confessed in
graphic detail to sexual acts with his 15-year-old granddaughter. White objected, arguing
the prejudicial effect of the 2014 video was huge, outweighing any probative value, and
that the 2014 and 2017 events were factually dissimilar.
The district court held evidentiary hearings on the parties' motions and ultimately
ruled for the State. The district court
• found White's 2017 video confession was voluntary and admissible;
• granted the State's motion to exclude all evidence related to White's polygraph
examination, including that he agreed to take the examination, that he took the
examination, or that he failed the examination; and
• granted the State's request to admit White's 2014 video confession as
propensity evidence under K.S.A. 60-455(d).
White's Stipulation
Before the district court swore in the jury, White signed a written stipulation that
he "was convicted of aggravated indecent liberties on June 10, 2014 in Sedgwick County
District Court for events occurring on March 1, 2014 with [C.N.B.]." C.N.B. was White's
15-year-old granddaughter, as the State emphasized in its opening statement, and as later
testimony established. White noted that he was not waiving his prior objection to the
6
admission of that conviction or of the 2014 video confession associated with that case.
The court accepted the stipulation, confirmed that White had waived no arguments
through the stipulation, and renewed its prior rulings on the admission of evidence under
K.S.A. 60-455(d).
Opening Statements
In his opening statement, White told the jury that C.U.'s allegations were not
credible as shown by the circumstances prompting her accusation, the length of the delay
in her disclosure, the lack of physical evidence, the inconsistencies in her disclosures to
Malinda and Ribble, and the initial identification of John B. as her accuser. White also
argued that the evidence would show that the police used coercive tactics to obtain his
false confession.
The State's opening referred to White's 2017 and 2014 confessions. The State told
the jury that it could consider the evidence involving White's granddaughter but clarified
that White was not on trial for those actions.
Exhibits
Shortly after making its opening statement, the State admitted and published the
video of White's 2014 confession. Throughout the confession, White openly admitted to
committing a sex offense—describing an act that most would characterize as rape—
against his teenage granddaughter. White cried throughout the interview and told the
interviewing detective that he hated himself and had attempted suicide because of his
crime.
The State also admitted photos of some of C.U.'s texts to Malinda, and the video
of White's 2017 confession. Although the jury heard evidence that Ribble had
7
interviewed White twice, the video showed only a redacted version of the August 17
interview in which White admitted that he touched C.U. sexually but denied that she
touched him in any way.
Testimony
The State presented testimony from Gerdsen, Malinda, Shannon, C.U., and Ribble.
White did not testify on his own behalf, referencing the district court's order precluding
testimony related to the polygraph examination. Still, White's defense counsel elicited
testimony from the State's witnesses highlighting the inconsistencies in C.U.'s allegations,
and the tactics Ribble had used to get White's confession.
C.U. testified that she was around eight years old when White touched her
inappropriately and thought it may have occurred in December. But C.U. conceded that
she did not know the exact date or even year that it occurred. C.U. testified that she was
sleeping on the couch while the other girls were sleeping on the living room floor when
White entered the living room. She woke up lying on her back with her pants and
underwear pulled down, and White was touching her vagina. C.U. explained that White
inserted his fingers inside her and when he stopped, he moved her hand and forced her to
masturbate his penis. C.U. testified that after White left, she went back to sleep.
During cross-examination, C.U. admitted that she had alleged three separate
incidents of abuse in her text messages to Malinda, yet had later told police that two
instances occurred, and at trial recounted only one event. C.U. also testified that she
incorrectly told Ribble that she was lying on her side when White touched her, agreeing
with defense counsel that the abuse she alleged could not have occurred in that position.
C.U. also acknowledged that, unlike her testimony, she had told Ribble that she did not
go back to sleep after the incident because she was unable.
8
Ribble described the August 3 interview in which White denied C.U.'s allegations.
Ribble also testified that during the August 3 interview, White explained that he had
moved out of Shannon's home at some point after losing his job and his unemployment
benefits, possibly sometime between 2008 and 2010.
Ribble also described his second interview with White on August 17. And on
cross-examination, Ribble agreed that White maintained his innocence throughout the
first interview and continued to assert his innocence until late in the second interview.
Ribble conceded that he used several interrogation techniques to secure White's
confession, including trying to get White to admit to an accidental or inadvertent
touching while drunk or while believing C.U. was his granddaughter. Ribble agreed that
he had stressed to White that his confession was necessary to give C.U. closure.
Both parties complied with the district court's order precluding testimony related
to the polygraph examination. So without mentioning that examination, Ribble testified
that the video of the August 17 interview was only part of the entire interview. And
Ribble agreed that another detective was present in the interview room, without saying
why.
Defense counsel asked Ribble whether he was in the room for White's entire
interview or if he could account for all the details of C.U.'s allegation that had been
disclosed to White before the confession. Ribble testified that he did not hear the entire
interview and thus could not account for every pre-confession detail. And Ribble
conceded that he had provided several details to White from C.U.'s allegation before
White used those details in his confession.
9
State's Motion to Amend Information
About halfway through the fourth day of trial, the State moved to amend the
information by adding about 11 months to the dates on which the alleged crimes
occurred, changing the date range from January 1, 2009, through December 31, 2009, to
January 25, 2008, through December 31, 2009. The State argued that the amendment was
necessary because C.U. had testified that the event had occurred when she was seven or
eight years old, but the information included only the timeframe when C.U. was eight.
White objected to the amendment, arguing it prejudiced his ability to present an alibi
defense because it essentially made it impossible to give an alibi for another year. White
also argued that the record showed that he did not live in Shannon's home and instead
lived in a rehabilitation center or with his mother for periods of time. White then moved
for a continuance to investigate the dates that he did not live in Shannon's house.
The district court denied the continuance, finding it could prejudice the State, and
allowed the State to amend the information. The court found that the State did not create
the need for the amendment because C.U.'s testimony that the lewd touching could have
occurred in 2008 had been elicited by defense counsel on cross-examination. The court
also noted that White had not filed a notice of alibi defense before trial and found that
even if he had filed notice, K.S.A. 22-3218 allowed the State to amend the information to
counter the dates provided in an alibi defense. So the amendment would not prejudice
White.
White's Motion for a Directed Verdict
After the State rested, White moved for a directed verdict based on insufficient
evidence. White alternatively moved to dismiss one of the two charges because C.U. had
testified that the abuse occurred only once. The State argued that the evidence was
sufficient and that the information's two counts stemmed from White's touching of C.U.
10
and his forcing C.U. to touch him, rather than events on two separate dates. The district
court denied White's motion, finding the State had met its burden of proof.
Deliberation and Verdict
During its deliberation, the jury submitted two questions to the district court. The
jury asked if it could have transcripts of the August interviews with White, and whether
"the interview on August 17th or [the second] interview with the two officers [was]
sworn testimony by the defendant." But the jury returned a verdict before the court
answered either question.
The jury convicted White of count one—alleging a lewd touching of C.U.—but
acquitted him of count two—alleging C.U. touched White.
Post-trial Motions and Sentencing
White moved for an acquittal and for a new trial. The district court denied both
motions.
White also moved for a departure sentence, but the district court denied that as
well. The district court sentenced White to lifetime imprisonment without the possibility
of parole for 25 years and ordered lifetime parole with electronic monitoring. The court's
journal entry of sentencing also required White to serve lifetime postrelease supervision.
White timely appeals.
11
I. DID THE DISTRICT COURT ERRONEOUSLY PRECLUDE EVIDENCE RELATED TO THE
POLYGRAPH EXAMINATION?
White first contends that the district court's order prohibiting the admission of his
polygraph examination results and any testimony related to his polygraph examination
precluded him from presenting a complete defense. That ruling, he contends, kept him
from telling the jury all the circumstances surrounding his confession.
Factual Background
White never proffered to the district court the specific testimony that he wanted
the jury to hear relating to the polygraph, other than that he had taken a polygraph
examination. But he now argues that he wanted to tell the jury the circumstances of his
2017 interview. For example, his interview was about 3.5 hours long—2 hours consisted
of the polygraph examination. And White asserts that during the polygraph examination
questioners repeatedly accused him of lying. Yet the jury saw only about 45 minutes of
the interview through the 2017 video, and it excluded all accusations of White's lying.
Thus, the jury could reasonably, yet erroneously, infer that no one had accused White of
lying during his interview and that it lasted less than an hour.
Although White does not tell us the relevance of the circumstances surrounding
his 2017 video confession, he suggests they were coercive. But the district court
specifically examined that issue in ruling on White's earlier motion to suppress. White's
motion to suppress asserted that his 2017 confession was involuntary and had been
coerced by the polygraph examination. At the hearing on that motion, White claimed that
although Atteberry had explained what the polygraph examination would entail, White
did not understand how it worked and thought it would exclude him as a suspect. White
also testified that he did not lie during the examination and was surprised when Atteberry
told him he had failed. Defense counsel argued that if the trial court admitted White's
12
2017 confession, it would also have to tell the jury that White's confession was because
of his polygraph examination. Defense counsel agreed, however, that the jury should not
be told the results. The district court reviewed the length of that interview, the
accusations of lying, and all other circumstances, and found the circumstances not
coercive. The court found White's confession voluntary and denied the motion to
suppress his 2017 video interview. White does not challenge that ruling on appeal, so we
do not revisit it.
Standard of Review and Basic Legal Principles
Admission of evidence involves several legal considerations. See State v.
Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010). The district court must first
determine whether the evidence is relevant. All relevant evidence is admissible unless it
is prohibited by statute, constitutional provision, or court decision. See K.S.A. 60-407(f);
Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d 647 (2019). Even if relevant, a
district court has discretion to exclude evidence when it finds its probative value is
outweighed by its potential for producing undue prejudice. See K.S.A. 60-445. An
appellate court reviews these determinations for an abuse of discretion. State v. Ingham,
308 Kan. 1466, 1469, 430 P.3d 931 (2018).
Whether a particular legal principle or statutory rule governs the admission of
specific evidence is a question of law subject to de novo review. A principle or rule,
however, is applied as a matter of law or as an exercise of the district court's discretion,
depending on the applicable rule. See State v. Miller, 308 Kan. 1119, 1166, 427 P.3d 907(2018). Whether an evidentiary ruling has violated the defendant's constitutional right to
present a defense is subject to unlimited appellate review. See State v. Seacat, 303 Kan.
622, 638-39, 366 P.3d 208 (2016).
13
Kansas Precedent Establishes That Polygraph Evidence is Inadmissible.
White argues that the trial court's exclusion of all evidence relating to the
polygraph examination deprived him of his right to present a complete defense. Fair trial
concepts, much like those in the United States Constitution, are incorporated in our state
constitutional provision pertaining to defense of the accused. State v. Hall, 220 Kan. 712,
714, 556 P.2d 413 (1976); see Kan. Const. Bill of Rights, § 10. "The [United States]
Constitution guarantees a fair trial through the Due Process Clauses, but it defines the
basic elements of a fair trial largely through the several provisions of the Sixth
Amendment." Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The United States Supreme Court has held that "whether rooted
directly in the Due Process Clause of the Fourteenth Amendment, . . . or in the
Compulsory Process or Confrontation clauses of the Sixth Amendment," the Constitution
guarantees criminal defendants "'a meaningful opportunity to present a complete
defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636(1986).
Still, "[a] defendant's right to present relevant evidence is not unlimited, but rather
is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308, 118 S.
Ct. 1261, 140 L. Ed. 2d 413 (1998). And as a matter of constitutional law, the right to
make a defense does not require admission of a lie detector examination. See 523 U.S. at
307-08 (determining that per se ban on polygraph evidence does not violate Fifth or Sixth
Amendment right to present a defense).
Applying similar principles, our Supreme Court has consistently held that "[a]
defendant must be permitted to present a complete defense in a meaningful manner," and
exclusion of evidence which is integral to a theory of defense violates a defendant's
fundamental right to a fair trial. State v. Green, 254 Kan. 669, 675, 867 P.2d 366 (1994);
State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). "[A] defendant's right to call
14
and examine witnesses is not absolute and on occasion will be overridden by 'other
legitimate interests in the criminal trial process.'" Green, 254 Kan. at 675. And the right
to present a defense is "subject to statutory rules and judicial interpretation of the rules of
evidence and procedure." State v. Banks, 306 Kan. 854, 865, 397 P.3d 1195 (2017).
Still, our Supreme Court has long expressed its hostility to the admission of
unstipulated polygraph evidence. It has consistently reaffirmed that absent a stipulation,
the results of a polygraph examination are inadmissible. See State v. Shively, 268 Kan.
573, 579, 999 P.2d 952 (2000); State v. Wise, 237 Kan. 117, 124, 697 P.2d 1295 (1985).
The rationale for inadmissibility is twofold:
"[F]irst, polygraph examinations are not generally accepted as reliable in the relevant
scientific community; second, juries may place undue weight on it because it stands as a
kind of witness in absentia on the question of whether a witness is telling the truth,
usurping the role of the jury." In re Care & Treatment of Foster, 280 Kan. 845, 862, 127
P.3d 277 (2006).
And it is not just the results of polygraph examinations that are inadmissible. Our
Supreme Court has also held inadmissible the fact that an examination was taken, or,
absent a stipulation, an offer was made or an offer was refused. State v. Webber, 260
Kan. 263, 276, 918 P.2d 609 (1996). Thus absent a stipulation, neither the refusal to
submit to such an examination nor the offer to do so is admissible. State v. McCarty, 224
Kan. 179, 182, 578 P.2d 274 (1978); State v. Roach, 223 Kan. 732, Syl. ¶ 1, 576 P.2d
1082 (1978). It is improper to permit the defendant to refer to the taking of a polygraph
test. See Wise, 237 Kan. at 123-24. And it is improper to admit opinions that are based on
the polygraph examination and results, either directly or indirectly. Foster, 280 Kan. at
864. So even if some polygraph evidence were an operative fact, unrelated to the
substantive correctness of the results of White's polygraph examination, the trial court
must exclude it absent a stipulation. Because the parties did not enter a stipulation here,
evidence about the polygraph examination was inadmissible.
15
White suggests that he was willing to stipulate, if necessary. But White cites no
record showing that he offered to stipulate to the admission of the polygraph evidence.
Besides, an offer to stipulate is insufficient—a stipulation is necessary.
White argues that his right to present a defense trumps any evidentiary concerns.
Yet we are not persuaded. Our Supreme Court has held that exclusion of polygraph
evidence does not violate a defendant's right to present a defense. See Shively, 268 Kan.
at 588. The right to present a defense is not unlimited and must yield to reasonable
restrictions, including those imposed by evidentiary rules and caselaw. See Banks, 306
Kan. at 865. And our longstanding rule requiring stipulations before admitting polygraph
evidence does not implicate constitutional guarantees. See State v. Engelhardt, 280 Kan.
113, 137, 119 P.3d 1148 (2005) (adopting Scheffer and rejecting claim that exclusion of
polygraph evidence violated Sixth Amendment right to present a defense); Shively, 268
Kan. at 588 (same).
The bottom line is that this court is duty bound to follow Kansas Supreme Court
precedent. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We thus
deny White's claim that he was denied the right to present a defense based on the
erroneous exclusion of polygraph evidence.
We Do Not Apply the Limited Purpose Exception.
White acknowledges that Kansas caselaw disfavors his position. But he tries to
distinguish his case by arguing that the twofold rationale for inadmissibility does not
apply here, so the general rule should not apply either. See Foster, 280 Kan. at 862(finding polygraph test results reliable enough to be admitted in probation revocation
proceedings). White contends that the lack of scientific reliability of polygraph
examinations does not matter here because he did not seek to admit polygraph evidence
to show the truth of the results but merely to show the circumstances of his examination.
16
And, he argues, merely admitting the circumstances surrounding the examination, rather
than its results, would not cause the jury to place undue weight on the results, usurping
the jury's role.
Because neither traditional rationale for excluding polygraph evidence applies,
White contends that the district court should have applied a limited purpose exception to
the general inadmissibility rule. White relies on a federal rule that polygraph evidence
may be admitted if it is for a limited purpose unrelated to the substantive correctness of
the results of the polygraph examination. See United States v. Miller, 874 F.2d 1255,
1261 (9th Cir. 1989). Thus, when polygraph evidence is not offered as scientific
evidence, no per se rule against admissibility applies. See United States v. Blake, 571
F.3d 331, 346 (4th Cir. 2009) ("Polygraph results are generally inadmissible. However,
'testimony concerning a polygraph examination is admissible where it is not offered to
prove the truth of the polygraph result, but instead is offered for a limited purpose such as
rebutting a defendant's assertion that his confession was coerced.' [Citations omitted.]").
Under the federal limited purpose exception, when polygraph evidence is not offered to
prove the truth of the polygraph results, and a defendant opens the door, such as by
attacking the nature of a criminal investigation or asserting that testimony was coerced,
the State may admit polygraph evidence (subject to probative value and prejudicial effect
considerations) for the limited purpose of rebutting a defendant's claim of a coerced
confession. United States v. Tenorio, 809 F.3d 1126, 1130-31 (10th Cir. 2015) (stating
that federal circuits have uniformly so held, before and after Daubert).
But White shows no cases applying the limited purpose exception under facts like
his, when a defendant seeks to admit the polygraph evidence in support of a claim of a
coerced confession, rather than when the State seeks to admit it to rebut a claim of
coercion. See United States v. Allard, 464 F.3d 529, 533 (5th Cir. 2006) (rejecting Rule
702's application where polygraph evidence provides a rebuttal account of the facts and
circumstances surrounding a confession); United States v. Johnson, 816 F.2d 918, 923
17
(3d Cir. 1987) ( "[C]ase law shows that evidence concerning a polygraph examination
may be introduced to rebut an assertion of coercion of a confession."); United States v.
Kampiles, 609 F.2d 1233 (7th Cir. 1979); Tyler v. United States, 193 F.2d 24, 31 (D.C.
Cir. 1951). And White's argument that his 2017 confession was coerced was nipped in
the bud by the district court's denial of his suppression motion based on the court's
finding that White confessed voluntarily.
Moreover, even if White sought to admit polygraph evidence merely to provide
context for his confession, the premise of his argument is flawed. White asserts that the
district court made a legal error by excluding all evidence related to the polygraph
examination because it relied on cases that require only the exclusion of results. See State
v. Mason, 238 Kan. 129, 131, 708 P.2d 963 (1985); State v. Blosser, 221 Kan. 59, 62, 558
P.2d 105 (1976). As a result, White invites us to interpret Kansas caselaw as permitting a
limited purpose exception.
But as we noted above, Kansas caselaw is broader than White wishes. See, e.g.,
Foster, 280 Kan. at 864; Webber, 260 Kan. at 276. For example, in Wise, our Supreme
Court determined it was "improper" not only to allow a defendant to refer to polygraph
results but also to allow a defendant to refer to the giving of a polygraph examination.
237 Kan. at 123-24. See Mason, 238 Kan. at 131.
True, our Kansas cases are far from recent, but the Kansas Supreme Court
reaffirmed in 2000 that results of a polygraph examination of a defendant are not
admissible, despite claimed advances in the computerization of polygraph technology and
scoring. Shively, 268 Kan. at 585-87. The court underscored the continuing validity of the
traditional rationales for not admitting polygraph evidence:
18
"[T]he common control question polygraph examination used in the present case is not
generally accepted as reliable in the relevant scientific community, despite the trial
court's ruling to the contrary.
"Moreover, the other concerns about polygraph evidence (that juries may place
undue weight on it and that it stands as a kind of witness in absentia on the question of
whether a witness is telling the truth, usurping the role of the jury) remain valid." 268
Kan. at 586.
The court also explained in Shively that it has never adopted exceptions to the
stipulation requirement, and it found even the "limited" polygraph evidence that the
district court had allowed for purposes of corroboration was inadmissible. 268 Kan. at
587. Its analysis shows the rationale for not admitting even limited polygraph evidence,
absent a stipulation:
"Shively also asserts that the usual concerns over polygraph evidence were
alleviated in this case by the trial court's 'precautions' (derived from United States v.
Piccinonna, 885 F.2d 1529 [11th Cir. 1989], and Crumby, 895 F. Supp. 1354) of only
allowing the polygraph testimony for corroboration and of only allowing Davis to testify
that Shively's exam was generally indicative of a truthful test outcome regarding the
relevant questions, without discussion of the specific questions, responses, or the
probable truthfulness or deception of the responses to particular questions. We disagree.
In fact, this method of limitation actually complicates the problem by requiring the jury
to speculate as to what Shively said during his pre-test interview and as to what was
asked in the test questions that Shively supposedly answered truthfully. Such evidence
gave the jurors the general impression that Shively's out-of-court version of events was
consistent with his in-court version, but the jury was never actually told this and was
therefore unable to directly evaluate exactly what Shively said when he was being
'truthful.' This served only to inject speculation into the trial, with little offsetting value as
to the quality of the information actually being conveyed. This court has previously held
that even the fact that an examination was taken or that there was an offer to take one is
not admissible, State v. Webber, 260 Kan. 263, 276, 918 P.2d 609 (1996), cert. denied
519 U.S. 1090, 117 S. Ct. 764, 136 L. Ed. 2d 711 (1997). The 'limited' polygraph
evidence that was allowed in this case was equally inadmissible." 268 Kan. at 587.
19
Similarly, arguments by counsel in White's trial show how admitting any evidence
relating to White's polygraph evidence could be problematic, creating jury speculation. In
a bench conference during Ribble's cross-examination, defense counsel asked the court
whether he could ask Ribble about the length of the interview that produced White's 2017
confession if he did not mention the polygraph. The State objected, reasoning that it
would then need to tell the jury about the polygraph examination to rebut White's
selective information suggesting that an extended interrogation produced a false
confession or that the officers had lied about the results of the polygraph when
interviewing White. The court denied defense counsel's request and prohibited the
testimony.
We recognize that the circumstances surrounding White's confession were less
related to the results of the polygraph examination than the evidence the defendant sought
to admit in Shively. Still, here, as in Shively, granting defense counsel's request would
have injected speculation into the trial, with little offsetting value as to the quality of the
information, particularly since the district court had examined those circumstances and
found White's confession was not coerced. And to counter that speculation, the State may
have needed to admit additional evidence. Those complications can often be foreseen by
the parties and addressed in a detailed stipulation, but absent a stipulation the district
court would invite speculation by admitting the evidence White desires.
The bottom line is that our Supreme Court, in Shively, essentially rejected the
limited purpose exception that White touts. Despite the logical appeal of that exception,
we are not free to carve out any exception to the broad per se inadmissibility rule that our
Supreme Court continues to follow. We thus reject White's assertion that the district court
should have adopted a limited purpose exception permitting him to show the
circumstances surrounding his voluntary confession. We find no error in the district
court's exclusion of evidence relating to White's polygraph examination.
20
II. DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ALLOWING THE STATE TO
EXPAND THE DATES IN THE CHARGING DOCUMENT?
White next contends that, over his objection, the district court erroneously allowed
the State to amend the information during trial, enlarging the timeframe from 12 months
to 23 months. Arguing that the amendment prejudiced his alibi defense and violated his
substantial rights, White asks us to reverse his conviction.
Standard of Review and Basic Legal Principles
Kansas appellate courts apply an abuse of discretion standard in reviewing a
district court's decision whether to allow an amendment to an information. State v.
Calderon-Aparicio, 44 Kan. App. 2d 830, 848, 242 P.3d 1197 (2010). A district court
abuses its discretion if its judicial action is arbitrary, fanciful, or unreasonable, or if its
judicial action stems from an error of fact or law. State v. Jenkins, 308 Kan. 545, 557,
422 P.3d 72 (2018). White bears the burden to establish an abuse occurred. See State v.
Holman, 295 Kan. 116, 145, 284 P.3d 251 (2012), overruled on other grounds by State v.
Dunn, 304 Kan. 773, 375 P.3d 332 (2016).
Analysis
The trial court may allow the State to amend an information at any time before a
verdict if it charges no additional or different crime and if substantial rights of the
defendant are not prejudiced. K.S.A. 22-3201(e). The State's amended information here
did not charge an additional or different crime—it changed only the date of the offenses.
So our analysis turns on whether that expansion of dates prejudiced White's substantial
rights.
21
In determining whether an amendment prejudices a defendant, we consider
whether:
• the date of the offense was a critical or material issue;
• the statute of limitations was involved;
• an alibi was a defense;
• time was an element of the offense; and
• the defendant was surprised by the amendment.
See Holman, 295 Kan. at 146-47; State v. Dickerson, No. 116,628, 2018 WL 5851444, at
*3-4 (Kan. App. 2018) (unpublished opinion).
The time and statute of limitations factors are not relevant here. See K.S.A. 2020
Supp. 21-5506(b)(3). But White maintains that the amendment was a surprise, that the
extension of time damaged his alibi defense, and that the length of time added was
unreasonable.
Relevant Facts
Unsurprisingly, C.U. did not recall the exact date of the sexual abuse, as it
occurred over eight years before she reported the incident. Before trial, she told Ribble
she thought she was around eight years old and in the second grade when the incident
occurred. Presumably based on C.U.'s January 2001 birthday, Ribble determined that
C.U. was sexually abused in 2009. In line with C.U.'s pretrial allegations, the State's
original information alleged that White committed two counts of aggravated indecent
liberties against C.U. between January 1, 2009, and December 31, 2009.
At trial, C.U. testified that she was eight years old when White abused her. During
the State's direct examination, she added that she believed it occurred in December. But
22
on cross-examination, defense counsel asked C.U. if she was seven years old in 2008 and
turned eight in 2009. Counsel also asked what grade C.U. would have been in 2008 and
2009, and C.U. agreed that her second-grade year was split between 2008 and 2009. This
line of questioning ended after defense counsel asked C.U. whether she could say with
certainty that she was "talking about 2008 or 2009," and she replied, "That's the age I
remember."
Besides Ribble's testimony that C.U. said she was in the second grade when White
abused her, Ribble testified that he believed C.U.'s second-grade year would have been
2009. But he also agreed with defense counsel that in December 2008, C.U. would have
been in the middle of her second-grade year.
The next day of trial, nearing the close of the State's case, the State moved to
amend the information to change the dates of the charged offenses from January 1, 2009,
through December 31, 2009, to January 25, 2008, through December 31, 2009. The State
argued that this change was necessary to conform to the evidence elicited by defense
counsel which showed C.U. was either seven or eight when the incident occurred and that
her second-grade year was in both 2008 and 2009. The State argued that the amendment
was appropriate because:
• the date was not critical;
• the amended dates would not raise a statute of limitations issue;
• White's theories of defense related to the identity of C.U.'s abuser and the
credibility of White's confession and thus would not be impacted by the
change; and
• White had not raised an alibi defense.
Defense counsel objected, maintaining it was unduly prejudicial and would
preclude him from effectively presenting his alibi or any other defense. But the district
23
court allowed the amendment, citing State v. Campbell, No. 113,005, 2016 WL 1274482(Kan. App. 2016) (unpublished opinion), a child sex offense case applying similar factors
to those above. The district court noted that although it was granting the amendment and
White had not filed a notice of alibi, White could still present alibi evidence by his own
testimony.
Significance of the Change and Surprise
Our appellate courts have typically afforded the State considerable latitude in
charging the time periods during which child victims have been sexually abused. See
State v. Rojas-Marceleno, 295 Kan. 525, 536-37, 285 P.3d 361 (2012). In State v. Nunn,
244 Kan. 207, 224, 227-28, 768 P.2d 268 (1989), our Supreme Court rejected a claim
much like the one White raises here. Nunn challenged the State's amendments to a
complaint charging him with indecent liberties with a child and aggravated criminal
sodomy. There, as here, the appellant argued that the amendment, which increased the
time in which the crimes were alleged to have occurred by almost 11 months, prevented
him from forming an adequate defense. The Nunn court found that "[t]ime is not an
indispensable ingredient of the offenses of indecent liberties with a child or aggravated
criminal sodomy." 244 Kan. 207, Syl. ¶ 19. The court explained that "'it is not unusual for
uncertainty as to dates to appear particularly where the memories of children are
involved.'" 244 Kan. at 227 (quoting State v. Sisson, 217 Kan. 475, 478, 536 P.2d 1369[1975]). As Kansas law recognizes, children experience the passage of time differently
than adults. See K.S.A. 2020 Supp. 38-2201(b)(4) (Revised Kansas Code for Care of
Children stating the policy of the state is to "acknowledge that the time perception of a
child differs from that of an adult").
Uncertainty about dates was apparent here. Not only were C.U.'s memories made
when she was around eight years old, they laid dormant in her mind for over eight years
before she told her aunt about the incident. And when objecting to the amendment,
24
defense counsel argued that the State's original information was already too broad. So
defense counsel knew C.U. was unclear about the exact date of the offense and thus
should not have been surprised that the relevant time might change. See State v. White, 1
Kan. App. 2d 452, 457, 571 P.2d 6 (1977) (when a defendant had actual or constructive
knowledge of the date of a crime, he or she is not prejudiced by imprecise dates).
Because time is not an essential element of the offense of indecent liberties with a
child, and White knew at pretrial that the State could establish only an approximate time
for the offenses, we cannot say that the district court abused its discretion in not finding
prejudicial surprise.
Alibi Defense
We next address White's claim that the amendment prejudiced his alibi defense.
White concedes that he did not file a notice of intent to rely on an alibi defense, but he
correctly asserts that he did not need to do so because he did not intend to call any
witnesses to present his alibi defense. See K.S.A. 22-3218(1) ("no such notice shall be
required to allow testimony as to alibi, by the defendant himself, in his own defense").
White also correctly asserts that he presented some alibi evidence at trial, although
he did not testify. White did so through cross-examination of the State's witnesses. Ribble
testified that during his August 3 interview, White told him that during some of the time
C.U. alleged she was sexually abused, he did not live in the house where she alleged the
abuse occurred. And the homeowner testified that White may have moved out of the
home as early as 2008, though it was more likely "towards 2009." The amended time
frame thus did not prevent White from introducing evidence concerning his whereabouts
during this time. We note that White asked for a continuance to gather additional
information to support his alibi defense, but the district court denied that request and
White does not challenge that denial on appeal, so he has waived it. See State v. Salary,
25
309 Kan. 479, 481, 437 P.3d 953 (2019) (issues not briefed deemed waived or
abandoned). Still, White does not give any specific reason he did not procure more
evidence before trial to support his alibi defense. And the record fails to show that the
amendment had any impact on his minimally developed alibi defense.
White has outlined no actual prejudice. Nor do we perceive any. Given that White
admitted his guilt at trial to Count I during his 2017 video confession, it is unclear how
the amendments to that Count, or to Count II, which allegedly occurred on the same date
as Count I, could have caused any prejudice.
We find that the district court applied the correct factors and did not abuse its
discretion in permitting the amendment.
III. DID THE DISTRICT COURT ERR BY ADMITTING WHITE'S 2014 CONFESSION AS
PROPENSITY EVIDENCE?
White next contends that the district court erred by admitting the video of his 2014
confession in which he admitted sexually abusing his 15-year-old granddaughter. White
argues that the district court committed factual and legal error in weighing the probative
value of that evidence against its prejudicial effect. White asks us to reverse his
conviction and remand for a new trial.
Relevant Facts
We recap the relevant facts. White first objected to the State's motion to admit his
2014 confession at a pretrial motion hearing. White argued that admitting the confession
would be extremely prejudicial and would outweigh any probative value. He also argued
that the circumstances of C.U.'s alleged offenses in 2008 and the circumstances involving
26
his granddaughter in 2014 were too dissimilar and too far apart in time to show
propensity.
On the morning of the third day of his trial, White offered his written stipulation to
his 2014 conviction, while clarifying that he did not waive any prior challenges to the
evidence. White stipulated that he "was convicted of aggravated indecent liberties on
June 10, 2014 in Sedgwick County District Court for events occurring on March 1, 2014
with [C.N.B.]." He then renewed his objection to admission of his 2014 video confession,
alleging it would be "redundant and unnecessary." White renewed his objection again
when the State offered the video into evidence, but the court denied that objection. White
contends that the district court erred by admitting the prejudicial 2014 video confession
after the court admitted his less prejudicial stipulation to that same crime.
The State asserts that choices regarding evidence are within its province as the
prosecutor, so it could elect the video as the evidence it wanted the jury to consider in
determining White's guilt. See State v. Thomas, 302 Kan. 440, 450-51, 353 P.3d 1134(2015) (finding choices regarding evidence "within the prosecutor's province"). The State
contends that it chose to show the video because the video gave the jury the information
necessary to show propensity while sparing White from the potentially more prejudicial
effect of calling his granddaughter to testify.
Standard of Review and Legal Principles
Because of the nature of the offense, many sex crime cases reduce to a "he said,
she said" battle in which credibility and corroboration are crucial. "[M]any sex crimes
lack concrete evidence that a crime was committed, and the propensity evidence therefore
is more demonstrative and necessary than propensity evidence in other kinds of
prosecutions." State v. Boysaw, 309 Kan. 526, 534, 439 P.3d 909 (2019) (citing State v.
Borchert, 68 Kan. 360, 362, 74 P. 1108 [1904]).
27
"It is well settled that, in prosecutions for a single act forming a part of a course of illicit
commerce between the sexes, it is permissible to show prior acts of the same character.
Such cases are sometimes (as in State v. Markins et al., 95 Ind. 464, 48 Am. Rep. 733)
said to form an exception to the general rule that one crime cannot be proved in order to
establish another independent crime. In fact, however, they fall within the rule already
stated. Such evidence is admitted not because it proves other offenses, but in spite of that
fact. Its justification is that it is corroborative of the direct evidence of the offense
charged. [Citations omitted.]" State v. Borchert, 68 Kan. 360, 361-62, 74 P. 1108 (1904).
The Kansas Legislature in 2009 recognized the unique nature of other crimes
evidence in sex offense cases by enacting K.S.A. 2009 Supp. 60-455 section (d). That
statute is expansive, as it "allows the admission of any propensity evidence that is
relevant and probative" in sex offense cases. Boysaw, 309 Kan. at 539. It states:
"Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal
action in which the defendant is accused of a sex offense . . . evidence of the defendant's
commission of another act or offense of sexual misconduct is admissible, and may be
considered for its bearing on any matter to which it is relevant and probative." K.S.A.
2020 Supp. 60-455(d).
This contrasts with the general rule in cases not charging a sex offense—in those
cases, "evidence that a person committed a crime or civil wrong on a specified occasion,
is inadmissible to prove such person's disposition to commit crime or civil wrong as the
basis for an inference that the person committed another crime or civil wrong on another
specified occasion." (Emphasis added.) K.S.A. 2020 Supp. 60-455(a). The Legislature
has thus recognized that propensity evidence in sex offense cases is different than
propensity evidence in other cases.
Because White was charged with a sexual offense and his 2014 confession was
evidence of another sexual offense, his 2014 confession was admissible under K.S.A.
2020 Supp. 60-455(d) to show White had the propensity to sexually abuse a child. Cf.
28
State v. Spear, 297 Kan. 780, 789, 304 P.3d 1246 (2013). The evidence was also
admissible to prove intent. See K.S.A. 2020 Supp. 60-455(b).
White recognizes this general law but asserts that given the contents of the video,
the court erred by insufficiently weighing its prejudicial nature, and by not finding that
less prejudicial evidence was sufficient to establish his 2014 crime.
As explained in Boysaw, "[t]he plain statutory language of K.S.A. 2018 Supp. 60-
455(d) appears to allow such evidence without requiring a weighing of probity versus
prejudice." 309 Kan. at 540. It is likewise true, as the State suggests, that the only Kansas
statute limiting this admissibility decision is K.S.A. 60-445, which allows discretionary
exclusion if the trial judge finds that the probative value of the evidence is substantially
outweighed by the risk that the evidence will "unfairly and harmfully surprise a party
who has not had reasonable opportunity to anticipate that such evidence would be
offered." But this statutory limitation addresses only unfair surprise.
Still our Supreme Court has, by "judicial construct," required courts to weigh
probity against prejudice and to find the probative value of K.S.A. 60-455(d) evidence
outweighs its potential for producing undue prejudice. See Boysaw, 309 Kan. 540-41;
State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006), holding modified on other grounds
by State v. Campbell, 308 Kan. 763, 423 P.3d 539 (2018). Although the plain statutory
language of K.S.A. 2020 Supp. 60-455(d) appears to allow such evidence without
requiring a weighing of probity versus prejudice, our Supreme Court continues to require
that weighing, reasoning that the exclusion of unduly prejudicial prior acts is necessary to
protect due process rights. Boysaw, 309 Kan. at 540. We review whether the probative
value of otherwise relevant evidence outweighs its potential for undue prejudice for abuse
of discretion. State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014).
29
Application
Boysaw teaches that in evaluating the probative value of evidence of other crimes
or civil wrongs, the district court should consider, among other factors: (1) how clearly
the prior act was proved; (2) how probative the evidence is of the material fact sought to
be proved; (3) how seriously disputed the material fact is; and (4) whether the
government can obtain any less prejudicial evidence. 309 Kan. at 541. The district court
properly considered Boysaw's factors and analyzed the probative effect in detail. The
court considered the video, the accompanying Miranda statement, and Gerdsen's
testimony from the pretrial proceeding in finding White's 2014 video confession to
sexually abusing his granddaughter highly probative.
The court's assessment of the prejudicial effect was more cursory, perhaps skirting
Boysaw's guidance that
"[i]n evaluating the possible prejudicial effect of evidence of other crimes or civil
wrongs, the district court should consider, among other factors: the likelihood that such
evidence will contribute to an improperly based jury verdict; the extent to which such
evidence may distract the jury from the central issues of the trial; and how time
consuming it will be to prove the prior conduct." 309 Kan. at 541.
White focuses his argument on two factors: "whether the government can obtain
any less prejudicial evidence," and "the likelihood that such evidence will contribute to
an improperly based jury verdict." 309 Kan. at 541 (citing United States v. Benally, 500
F.3d 1085, 1090-91 [10th Cir. 2007]).
But contrary to White's argument on appeal, the record shows that the district
court considered whether less prejudicial evidence was available. Yet it found none:
30
"There appears to be no less prejudicial evidence the State can utilize to prosecute its case
and present the evidence. I will note that the State in proffering and in telling me that the
State is not calling the victim as a witness in the 14 CR 538 case. The only live witness, I
understand, is Detective Gerdsen, and it is only to provide foundation for the only two
exhibits offered by the State, which I've already identified. To that end, I have reviewed
all of that proffered evidence other than the future testimony, but I have heard Detective
Gerdsen testify."
That was before White stipulated.
White stipulated mid-trial that he "was convicted of aggravated indecent liberties
on June 10, 2014 in Sedgwick County District Court for events occurring on March 1,
2014 with [C.N.B.]." And he renewed his objection to admitting the video of his 2014
confession to that same crime. Contrary to the State's pretrial statements, the State then
claimed that it would have subpoenaed White's granddaughter to testify if the court did
not admit that video. The court again found the video admissible, stating that the 2014
video, with Detective Gerdsen's foundational testimony and the stipulation, was "the least
prejudicial way to attain what the State desires."
The court appears to conclude that the video was less prejudicial to White than
calling White's granddaughter to testify. But the State never subpoenaed White's
granddaughter to testify, and the district court failed to state why Gerdsen's testimony,
coupled with White's stipulation, was not a less prejudicial way to admit the relevant
facts about White's prior sexual abuse of his granddaughter.
The court specifically considered whether the evidence was likely to contribute to
an improperly based jury verdict. It found that the evidence would not do so, stating only
that it presumes a properly instructed jury knows the law, and citing State v. Thurber, 308
Kan. 140, 420 P.3d 389 (2018). But despite the court's statement that it would counter
undue prejudice with a limiting instruction, it did not give the jury any limiting
31
instruction related to the video. Rather, the jury instructions are scant and do not give the
jury any guidance about White's 2014 video confession, his stipulation, or his 2017 video
confession.
Additionally, given the contents of the 2014 video, we find it difficult to conclude
that the district court gave due weight to the powerfully prejudicial effect that admission
of the video could have on White's defense. That video showed:
• White's confession to having raped his granddaughter and graphic details of his
repeated sexual acts with her;
• White was inconsolable, crying throughout the video;
• White repeatedly stated that he hated himself and had attempted suicide
because of his actions;
• The questioning and responses were repetitive—not merely asked and
answered but repeatedly revisited; and
• White's graphic descriptions of his acts and his characterization of the victim
are likely to provoke anger, resentment, or disgust in a reasonable juror.
Having viewed the video, we agree that it could easily inflame the passions or prejudices
of the jury. Yet appellate courts do not reweigh evidence. State v. Chandler, 307 Kan.
657, 668, 414 P.3d 713 (2018). In any event, we find it unnecessary to conclude whether
the court erred in admitting the 2014 video. Rather, we assume, without finding, that the
court so erred.
Harmless Error
The erroneous admission of K.S.A. 60-455 evidence does not automatically
compel a new trial. Rather, we review the erroneous admission of K.S.A. 60-455
evidence for harmless error. Under this standard, the State must prove that there is no
32
reasonable probability that the error contributed to the outcome of the trial. State v.
Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013); see K.S.A. 2020 Supp. 60-261.
To meet its burden, the State contends in a conclusory fashion that even without
White's 2014 confession, the jury would still have convicted White as they did based on
C.U.'s detailed testimony, White's admission to touching C.U., and White's stipulation
showing he was convicted in 2014 of a similar offense.
Our Supreme Court has recognized three types of prejudice that may result from
the admission of prior crimes evidence:
"'"First a jury might well exaggerate the value of other crimes as evidence proving that,
because the defendant has committed a similar crime before, it might properly be inferred
that he committed this one. Secondly, the jury might conclude that the defendant deserves
punishment because he is a general wrongdoer even if the prosecution has not established
guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might
conclude that because the defendant is a criminal, the evidence put in on his behalf
should not be believed."' [Citation omitted.]" Gunby, 282 Kan. at 48-49.
On close examination, we find none of these potentials for prejudice undermines our
confidence in the verdict.
The first potential prejudice—that a jury might infer that the defendant committed
this crime because the defendant committed a similar crime before—is not prohibited in a
K.S.A. 60-455(d) case, such as this one. In most cases, evidence that a person committed
a crime or civil wrong on a specified occasion is inadmissible to prove such person's
disposition to commit a crime or civil wrong as the basis for an inference that the person
committed another crime or civil wrong on another specified occasion. K.S.A. 2020
Supp. 60-455(a). Thus, in Gunby, a propensity inference was improper, and the district
court had to give a limiting instruction telling the jury the specific purpose for admitting
33
evidence of other crimes or civil wrongs. But the opposite is true in 60-455(d) cases, as
propensity evidence in sex offense cases is admissible and may be considered for its
bearing on any matter to which it is relevant and probative. K.S.A. 2020 Supp. 60-455(d).
The district court specified how White's 2014 confession was relevant and probative to
show propensity. So Gunby's first potential prejudice is not an issue.
Nor is Gunby's second potential prejudice shown here. The jury apparently did not
conclude that White deserved punishment because he is a general wrongdoer, since the
jury convicted White of only one crime, although the State charged him with two off-grid
counts of aggravated indecent liberties against a child under 14 years old. The jury
convicted White of Count I—alleging White's lewd touching of C.U.—but acquitted him
of Count II—alleging C.U. touched White. Had White's 2014 video confession to abusing
his granddaughter inflamed and prejudiced the jury against White, the jury likely would
have convicted White of both sex crimes, as charged.
Nor is the third potential prejudice shown here—the jury did not conclude that
because White is a criminal, the evidence he presented should not be believed. Rather,
the opposite is true. White did not take the stand but presented evidence on his behalf
through his 2017 video. In that confession, he admits having sexually touched C.U. yet
denies having had her touch him. The jury apparently believed White's 2017 confession
and his denial because it convicted White of the crime he admitted to in that 2017 video
(Count I), but acquitted him of the crime he steadfastly denied (Count II).
Lastly, without White's 2014 video confession, the jury would still have had
White's stipulation that he pleaded guilty in 2014 to aggravated indecent liberties with a
child. That stipulation is enough to show his propensity to engage in sexual acts with a
child. And the jury would have heard Gerdsen's testimony that White's 2014 crime was
committed against his 15-year-old granddaughter. So even had the court excluded
White's 2014 video confession, the jury would still have likely convicted White as they
34
did based on his stipulation, Gerdsen's testimony, and White's admission in his 2017
video to the only crime the jury found him guilty of. To have found White not guilty of
either crime, the jury would have had to disbelieve White's uncontradicted admission, as
well as the victim's testimony.
For those reasons, we are confident that the jury carefully based its verdict on the
evidence, rather than on passion, graphic details, and other powerful potentials for
prejudice in White's 2014 video confession. The State has thus met its burden to prove
there is no reasonable probability that the error contributed to the outcome of the trial.
IV. DID THE CUMULATIVE EFFECT OF TRIAL ERRORS VIOLATE WHITE'S RIGHT
TO A FAIR TRIAL?
White next asserts that cumulative error denied him a fair trial.
But when the defendant fails to show "two or more trial errors not individually
reversible, the cumulative error doctrine is inapplicable." State v. Hilt, 299 Kan. 176, 200,
322 P.3d 367 (2014). That is the case here. Even if we assume that the district court erred
in admitting White's 2014 video confession, we find only one error and we have rejected
White's other claims of error. We thus find no cumulative error and affirm White's
conviction.
V. DID THE DISTRICT COURT ERR IN SENTENCING WHITE?
Lastly, White asserts that the district court erred in sentencing him. Following the
statutory requirements, the district court ordered White to serve lifetime imprisonment
without the possibility of parole for 25 years with lifetime parole upon release from
confinement. But the district court also imposed the parole condition of electronic
monitoring. And the court's journal entry of sentencing says White is subject to lifetime
35
postrelease supervision instead of parole. White argues the district court lacked authority
to impose lifetime postrelease supervision and lifetime electronic monitoring.
The State does not address White's claim regarding electronic monitoring but
agrees that the district court should correct its journal entry of sentencing to reflect
lifetime parole instead of lifetime postrelease supervision.
Generally, when the district court announces a criminal sentence from the bench,
the district court lacks jurisdiction to later modify the sentence. State v. McKnight, 292
Kan. 776, 779, 257 P.3d 339 (2011) (citing State v. McCoin, 278 Kan. 465, 468, 101 P.3d
1204 [2004]). But under K.S.A. 2020 Supp. 22-3504(a), courts have jurisdiction to
correct an illegal sentence at any time. We review an illegal sentence under K.S.A. 2020
Supp. 22-3504(a) de novo. State v. Harsh, 293 Kan. 585, 588, 265 P.3d 1161 (2011).
A sentencing court cannot order lifetime postrelease supervision when, as here, a
defendant has been convicted of an off-grid crime. State v. Cash, 293 Kan. 326, Syl. ¶ 2,
263 P.3d 786 (2011). So the district court here lacked the authority to impose lifetime
postrelease supervision. A sentence is effective upon pronouncement from the bench, not
upon the filing of a journal entry. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707(2012). The district court correctly pronounced the sentence but incorrectly entered the
journal entry requiring lifetime postrelease supervision. We thus remand for the district
court to correct the sentencing journal entry through a nunc pro tunc order. See K.S.A.
2020 Supp. 22-3504(b); State v. Waggoner, 297 Kan. 94, 99-100, 298 P.3d 333 (2013).
Similarly, a district court lacks authority to impose parole conditions. See
Waggoner, 297 Kan. at 100. Under K.S.A. 2020 Supp. 22-3717(u), when the Prisoner
Review Board orders the parole of an inmate sentenced for an offense under Jessica's
Law, the Prisoner Review Board, not the court, must order lifetime electronic monitoring
as a condition of parole. Because the court pronounced the lifetime electronic monitoring
36
requirement from the bench, we vacate this portion of White's sentence. See Waggoner,
297 Kan. at 100.
Conviction affirmed, sentence vacated in part, and case remanded with directions.
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