State v. Ballou

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,252
STATE OF KANSAS,
Appellee,
v.
TERRY R. BALLOU SR.,
Appellant.
SYLLABUS BY THE COURT
1.
A prosecutor's actions or statements fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial when the prosecutor
presents an argument to the jury that misstates the law or argues a fact or factual
inference with no evidentiary foundation.
2.
Prosecutorial error is harmless if the State can show beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict.
3.
K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic
interview of an alleged child sexual abuse victim that does not include opinions or other
testimony based on scientific, technical, or other specialized knowledge.
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4.
Expert testimony is not necessarily required as a foundation for introducing a child
witness' interview into evidence, and an interviewer need not apply a specific formula or
follow a specific protocol when interviewing a child witness.
5.
Generally, litigants and their counsel bear the responsibility for objecting to
inadequate findings of fact and conclusions of law in order to give the district court the
opportunity to correct such inadequacies, and, without any objection, an appellate court
will not consider omissions in findings.
6.
An appellate court will usually not consider a pretrial objection to have been
timely interposed because an in limine ruling is subject to change when the case unfolds.
This rule acknowledges that different, more, or less evidence may come in at trial than
was admitted or proffered at a pretrial hearing. Or a district court judge may simply see
the issue in a different light after hearing additional arguments and evidence. A timely
interposed objection, as required by the plain language of K.S.A. 60-404, is one that
gives the district court the opportunity to make the ruling contemporaneous with an
attempt to introduce evidence at trial.
7.
Determining whether a criminal defendant is entitled to an independent
psychological evaluation of a witness requires a district court to consider six relevant
factors: (1) whether there was corroborating evidence of the complaining witness'
version of the facts, (2) whether the complaining witness demonstrates mental instability,
(3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar
charges by the complaining witness against others are proven to be false, (5) whether the
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defendant's motion for a psychological evaluation of the complaining witness appears to
be a fishing expedition, and (6) whether the complaining witness provides an unusual
response when questioned about his or her understanding of what it means to tell the
truth.
8.
An appellate court reviews a district court's application of the factors for
determining whether a criminal defendant is entitled to an independent psychological
evaluation of a witness and its ultimate decision to grant or deny a motion for a
psychological evaluation of a witness for an abuse of discretion. An abuse of discretion
occurs if: (1) no reasonable person would take the view adopted by the district court;
(2) the decision is based on an error of law; or (3) the decision is based on an error of
fact. The party asserting the district court abused its discretion has the burden to show
such an abuse of discretion.
9.
A single, nonreversible error does not establish reversible cumulative error.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 18, 2017.
Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed September 6, 2019. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed in
part and vacated in part.
Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.
Elizabeth H. Sweeney-Reeder, county attorney, argued the cause, and Julia Leth-Perez, assistant
county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
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The opinion of the court was delivered by
LUCKERT, J.: A jury convicted Terry R. Ballou Sr. of one count of rape and one
count of aggravated indecent liberties with a child. Ballou appealed, asserting five errors:
(1) The prosecutor erred when, in his closing argument, he expanded the time frame in
which the crime allegedly occurred; (2) the district court erred in admitting into evidence
a video of an interview of the child victim without ensuring compliance with K.S.A. 2018
Supp. 60-456(b) or conducting a taint hearing to determine its reliability; (3) the district
court erred by admitting evidence of alleged prior sexual misconduct by Ballou; (4) the
district court erred in not ordering a psychological evaluation of the child victim; and (5)
the cumulative effect of all errors warrants reversing his convictions. The Court of
Appeals rejected Ballou's arguments and affirmed his convictions and sentence. State v.
Ballou, No. 116,252, 2017 WL 3575610, at *1 (Kan. App. 2017) (unpublished opinion).
On review of that decision, we determine no reversible error occurred, and we affirm
Ballou's convictions. But we raise sua sponte the issue of whether the district court erred
in sentencing Ballou to postrelease supervision and we vacate that portion of the
sentence.
FACTS AND PROCEDURAL BACKGROUND
Ballou's convictions of one count of rape and one count of aggravated indecent
liberties with a child resulted from acts involving his then-six-year-old daughter. The
State originally alleged Ballou committed these crimes on or about April 13, 2014. On or
about that date, Ballou's long-time, live-in girlfriend, Virginia Norris, left the house to
run a few errands. She returned much sooner than expected to find Ballou rubbing his
erect penis on his daughter's vagina and anus while the daughter was face down on a
chair in the living room with her pants pulled down.
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Norris reported what she saw to her mother and her adult daughter, but she did not
report the incident to law enforcement authorities. Sometime later, Norris' adult daughter
reported the incident to the Kansas Department for Children and Families (DCF). After
receiving the report, the DCF began an investigation. Jennifer Stockard, a child
protection specialist, contacted Norris about the allegations, but Norris denied knowing
anything about the incident.
Stockard and a sheriff's detective contacted Ballou's daughter while she was at her
babysitter's house. Based on what the child said, they decided to take her into protective
custody and transport her to Safe Harbor, an interview room in the basement of the
Miami County courthouse. Stockard had some familiarity with the child because, two
years earlier, Stockard had interviewed her while investigating whether her brother had
abused her.
After Stockard and the detective decided to take the child to Safe Harbor to
continue their 2014 investigation, they contacted Norris. She came to the courthouse and
gave them details about an occasion when she came home earlier than expected and
found Ballou touching his daughter with his penis. Stockard then interviewed the child.
Stockard recorded the interview, which was later introduced at trial over Ballou's
objection. In the interview, the child revealed Ballou had penetrated her vagina and anus
with his penis before Norris came home and found them. The child also said Ballou had
committed the same or similar acts on multiple prior occasions.
Based on the child's allegations, Ballou was arrested and charged with and tried by
a jury on the charges of rape, aggravated criminal sodomy, and aggravated indecent
liberties with a child. During the trial, the State introduced evidence of the child's reports
of other uncharged sex crimes or instances of sexual misconduct. The State offered this
evidence under K.S.A. 2018 Supp. 60-455(d) to show Ballou's propensity to commit
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these acts. Ballou had filed a written pretrial objection to the admission of the evidence,
which the district court overruled. He did not renew his objection at trial.
Although the jury convicted Ballou of rape and aggravated indecent liberties with
a child, it acquitted him of aggravated criminal sodomy. The district court sentenced him
to a life sentence without the possibility of parole for 25 years on each count. The court
ordered consecutive sentences, for a total controlling sentence of lifetime imprisonment
without parole for 50 years. The district court also imposed lifetime postrelease
supervision for each charge.
Ballou timely appealed his convictions and sentence. The Court of Appeals
assumed one error—that the prosecutor committed error by expanding the time frame in
which the State alleged the crime occurred. But the panel held the assumed error was
harmless. It rejected all other claims of error. See Ballou, 2017 WL 3575610. We granted
Ballou's petition for review and the State's cross-petition seeking review of the panel's
decision to assume the prosecutor erred by expanding the time frame for the alleged
crimes. Additional facts are set forth as necessary below.
ANALYSIS
ISSUE 1: Harmless prosecutorial error occurred.
Ballou argues prosecutorial error occurred because the State, during its closing
argument, expanded the time frame in which it alleged the crime occurred. In the State's
initial complaint and two later amended complaints, the State alleged Ballou committed
the charged offenses "on or about the 13th day of April, 2014." In opening statements, the
State told the jury the "story that you're going to hear begins on April 13th, 2014." Later
in the trial, the State called Norris as a witness and she testified the crime occurred on
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April 13, 2014. But the States broadened the alleged time frame when, during its closing
argument, the prosecutor discussed the evidence about when the crime occurred and told
the jury "on or about" could encompass a four-and-one-half-month period:
"The act occurred on or about, very important words, 'or about' the 13th day of April
2014. There's been some confusion about the exact time that this happened, exact date
that this happened. There's been some argument about that. [Norris] said, well—at first,
she said I thought it might have been Easter, week before that, or week after that, maybe
Mother's Day, but she narrowed it down to what she thinks was April 13th. Okay. So
that's the evidence we have regarding that.
"And it's important that is says 'on or about.' Why does it say 'on or about'? Well,
sometimes you don't know exactly when a crime occurred. You go on vacation for four
weeks. You come home. Your house is burglarized. You can't say the day. You can't say
it actually happened on this time. Sometimes you can, you know, if the neighbor saw the
guy coming in and out and wrote it down, but a lot of times you can't. So it's not required
that you find that this happened exactly on April 13th. You certainly can. And I believe
the evidence presented is sufficient for that, but you just need to find that it occurred
about that time. Mr. Ballou testified that, I think, the four of them, [Ballou, his daughter,
his son, and Norris] had lived alone together in the house for about four and a half
months before that, so we know it occurred in that time frame."
Ballou objected to the State's comments and the district court overruled his objection.
On appeal, Ballou asserts the prosecutor erred by misstating the law defining the
phrase "on or about." For support he cites State v. Murr, No. 98,231, 2009 WL 596514(Kan. App. 2009) (unpublished opinion). Considering Ballou's argument, the Court of
Appeals panel concluded "the holding and facts from Murr are analogous and persuasive.
Thus, for the sake of argument, we will assume, for the present purpose only, that the
prosecutor's statements were a misstatement of the law and therefore amounted to error."
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Ballou, 2017 WL 3575610, at *7. But the panel concluded the assumed error was
harmless and did not require it to reverse Ballou's conviction. 2017 WL 3575610, at *8.
The State filed a conditional cross-petition asking this court to hold that the
prosecutor's comments were not a misstatement of law and no error occurred.
In considering a claim of prosecutorial error, we follow a two-step analysis. We
first determine whether an error occurred. Second, if an error has been found, we evaluate
the prejudice it caused to determine whether it was harmless. State v. Sherman, 305 Kan.
88, 109, 378 P.3d 1060 (2016). At the first step, error occurs if the appellate court
determines the prosecutor's actions or statements "fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. A
criminal defendant establishes the first prong by establishing the prosecutor misstated the
law or argued a fact or factual inferences with no evidentiary foundation. See State v.
Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018); State v. Hilt, 307 Kan. 112, 124, 406 P.3d
905 (2017).
1.1 The prosecutor erred.
Ballou mainly argues the prosecutor's expansive interpretation of "on or about"
amounted to a misstatement of the law. The Court of Appeals panel assumed the validity
of this argument and moved to the second step of evaluating the effect of the assumed
error. Ballou, 2017 WL 3575610, at *7. The State asks us to hold that the statement was
not outside the wide latitude permitted the prosecutor. It, like Ballou, focuses on the legal
meaning of the phrase "on or about." We do not reach these legal arguments, however,
because they depend on a fallacious assumption that the argument, whether it misstates
the law or not, fits the facts. But no evidence suggests the charged crimes occurred during
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a significant portion of the four-and-a-half months Ballou and his family lived in the
house prior to April 13, 2014. Thus, there is no factual support for the prosecutor's
argument.
To the extent there was any discrepancy in the time frame alleged, it related to the
possibility the crimes occurred after April 13, 2014. Ballou's cross-examination of Norris
revealed some uncertainty about the date of the incident. In Norris' earlier statements to
the investigators she expressed confusion about when the crimes occurred. She offered
Memorial Day (May 26, 2014), Mother's Day (May 11, 2014), or Easter (April 20, 2014)
as approximate times. On redirect, Norris testified she later determined the date because
she knew she had quit her job the day after Ballou committed the crimes and she had
verified the date by going through her paystubs to determine the date she quit. The State
admitted into evidence documents supporting the dates of her employment.
Yet no evidence suggested the incident charged in the complaint occurred before
April 13, 2014. In fact, before the State's closing argument neither allegations, arguments,
nor evidence showed the crimes occurred before April 13, 2014. The prosecutor thus
made an argument outside the evidence. And, as we have noted, a prosecutor commits
error by arguing a fact or a factual inference with no evidentiary foundation. See Wilson,
309 Kan. at 78.
1.2 The error did not prejudice Ballou.
Although the prosecutor erred, we hold the misdirection about the potential time
frame in which the crime occurred did not prejudice Ballou. In assessing the prejudice
caused by a prosecutor's error, an appellate court applies the traditional constitutional
harmlessness inquiry demanded by Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967). Under this test, prosecutorial error is harmless if the State can
9
show "beyond a reasonable doubt that the error complained of will not or did not affect
the outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011); see Sherman, 305 Kan. at 111.
To determine whether an error is harmless under Chapman, appellate courts must:
"consider any and all alleged indicators of prejudice, as argued by the parties, and then
determine whether the State has met its burden—i.e., shown that there is no reasonable
possibility that the error contributed to the verdict. The focus of the inquiry is on the
impact of the error on the verdict. While the strength of the evidence against the
defendant may secondarily impact this analysis one way or the other, it must not become
the primary focus of the inquiry." Sherman, 305 Kan. at 111.
Applying this test here, we conclude the State has met its Chapman burden of
establishing there is no reasonable possibility the error contributed to the verdict.
While Ballou's cross-examination of Norris revealed that she had at first offered
several possible dates, her initial uncertainty was replaced with a seeming assurance she
had pinpointed the correct date by tethering it to when she quit her job. And
corroborating evidence, including exhibits introduced by the State and admitted during
Norris' testimony, supported the pinpointed date—April 13, 2014—as the correct date.
To the extent Norris' early statements suggested a different date, Ballou had notice
of her statements, as evidenced by his questioning of Norris in which he tested the State's
evidence. His questioning reveals he was not misled into pursuing an inappropriate
defense based on the evidence established at trial.
10
Even so, Ballou focused on April 13 when he testified and put on multiple defense
witnesses. Through this evidence, he tried to establish his whereabouts and his own
timeline of events on April 13, 2014. And given Norris' testimony about why she
pinpointed April 13 and the focus on April 13 throughout the trial, this defense remained
relevant. But Ballou did not pursue an alibi defense. As the Court of Appeals noted,
Ballou did not dispute that he was with his daughter on April 13 in the house around the
time Norris stated the crimes took place.
Ballou's overall defense was that he did not commit the acts alleged regardless of
the specific date. Ballou testified about various motives Norris and her adult daughter
may have had for fabricating the allegations. The Court of Appeals correctly held Ballou
was not misled into pursuing an all-or-nothing, date-specific defense. See Ballou, 2017
WL 3575610, at *7-8.
Based on the context in which the prosecutor's comments were made, the nature
and strength of the evidence about the date, the timing and manner in which the evidence
was introduced, and the nature of Ballou's defense, we affirm the Court of Appeals'
ruling. See Ballou, 2017 WL 3575610, at *7-8. After "consider[ing] any and all alleged
indicators of prejudice, as argued by the parties, . . . the State has . . . shown that there is
no reasonable possibility that the error contributed to the verdict" Sherman, 305 Kan. at
111.
ISSUE 2: The district court did not err in admitting into evidence the child's interview.
Ballou actively litigated the admissibility of the child's interview through pretrial
proceedings. He filed two motions in which he asked the district court to exclude
evidence of Stockard's interview. In the first, Ballou moved to "exclude [the child's]
interview for improper interviewing techniques." In the second, he asked for a pretrial
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ruling that the interview and Stockard's testimony would constitute expert testimony
because Stockard used the Finding Words/ChildFirst protocol when interviewing the
child. Before discussing the specifics of these motions, we note the terminology attached
to the protocol. First named Finding Words, the protocol's name changed to ChildFirst
around 2013. The parties and witnesses use both names, as will we depending on which
term a party or witness used or we will use the term Finding Words/ChildFirst. But we
clarify that, regardless of the label, we are addressing only one protocol.
Ballou's first motion attacked the interview as "not reliable" because it resulted
from overly suggestive interviewing techniques. He argued any resulting disclosure was
not voluntary. Ballou supported his motion with cases decided under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. He argued these cases
stand for the principle that suggestibility in a forensic interview undermines reliability,
not simply credibility, and the issue should thus be determined pretrial so the jury does
not hear any tainted evidence. Ballou also cited an article and State v. Michaels, 136 N.J.
299, 642 A.2d 1372 (1994), for authority that a "taint hearing" should be conducted by
the district court.
In Michaels, the defendant showed "'some evidence''' that the victims' statements
were the result of suggestive or coercive interviewing techniques and, based on that
showing, the New Jersey Supreme Court held the trial court should have conducted a
taint hearing. 136 N.J. at 320-21. The New Jersey Supreme Court held that, at such a
hearing, the burden shifts to the State to prove the reliability of the proffered statements
and testimony by clear and convincing evidence. 136 N.J. at 321. Once the State meets
that burden, the statements may be admitted at trial and the jury must assess the
credibility of the statements. 136 N.J. at 323.
12
Ballou neither discussed nor cited State v. Gilliland, 294 Kan. 519, 276 P.3d 165(2012), in which this court declined to answer the question of "whether a trial court must
take on a gate-keeping role and determine reliability before allowing a child's statement
to be presented to a jury" and cautioned that "our discussion of the issue should not be
read to imply that outcome." 294 Kan. at 547. In doing so, we noted Michaels was
"controversial" and a majority of jurisdictions have rejected its holding. 294 Kan. at 547.
In response to Ballou's motion, the State distinguished the egregious
circumstances involved in the interviews at issue in Michaels. It also criticized Ballou's
reliance on Confrontation Clause cases involving hearsay statements by children alleging
sexual abuse because the reliability issues addressed in those cases concerned hearsay,
not purported problems with the interview leading to the hearsay statements. The State
argued the child's testimony should be governed by general rules of competency, citing
State v. Poole, 124 Idaho 346, 859 P.2d 944 (1993). It further argued whether an
interview is suggestive is a credibility issue that should go to the jury, citing State v.
Karelas, 28 So. 3d 913 (Fla. Dist. Ct. App. 2010).
Ballou's second motion asked the court to treat Stockard as an expert in testifying
about the Finding Words/ChildFirst protocol. Ballou argued the district court should
apply K.S.A. 2018 Supp. 60-456(b) and conclude Stockard's testimony did not meet its
requirements. K.S.A. 2018 Supp. 60-456(b) applies to the testimony of an expert witness
"qualified as an expert by knowledge, skill, experience, training or education" and states
that the expert may testify in the "form of an opinion or otherwise if: (1) The testimony
is based on sufficient facts or data; (2) the testimony is the product of reliable principles
and methods; and (3) the witness has reliably applied the principles and methods to the
facts of the case." Through this language, the Legislature intended to bring "the
requirements for admission of expert opinion into line with the United States Supreme
Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592-94, 113
13
S. Ct. 2786, 125 L. Ed. 2d 469 (1993)." State v. Sasser, 305 Kan. 1231, 1245, 391 P.3d
698 (2017). And Ballou argues the interview does not comply with Daubert's holding.
The State responded the interview itself is not expert testimony and thus not
subject to K.S.A. 2018 Supp. 60-456(b) or Daubert. It further posited Stockard would
testify as a fact witness, not an expert. The State also pointed out that if interviewing
techniques are treated as an area of expertise, every police detective is an "expert" and
that the Finding Words/ChildFirst protocol should not be subject to K.S.A. 2018 Supp.
60-456(b) because it is neither new nor novel.
The district court held a hearing on these motions at which Ballou's expert, Dr.
Robert Barnett, testified. He said he personally used his own method of interviewing that
was not based on any specific protocol but was based on his "education, training and
experience as well as keeping up in my field through reading and consultation with other
psychologists." Citing studies by the National Institute of Child Health and Human
Development (NICHD), he emphasized the importance of using nondirective
questioning. He criticized the Finding Words protocol as not being supported by data
about its reliability or validity. He cited an NICHD article that criticized Finding Words,
noting the article pointed out the biggest problem was that "Finding Words practitioners
are not following the protocol." He indicated not following the protocol could introduce a
higher error rate, which he defined to mean false positives and negatives. Barnett also
testified, "[Q]uite frankly, a lot of [the Finding Words] protocol is entirely valid and is
used by other people." But he criticized some aspects of Finding Words, including its use
of anatomically correct drawings and dolls. And then he reiterated that his "biggest
objection to the Finding Words protocol, based on the many interviews I've reviewed, is
that people typically don't follow the protocol."
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Barnett also addressed the specific deficiencies he observed in Stockard's
interviews of the child—both the interview two years earlier when the child had been
abused by her brother and the 2014 interview after Ballou had allegedly sexually abused
her. Barnett stated research suggests a child's responses in later interviews are impacted
by the first interview. He also cited confirmatory bias and noninvestigation of alternative
hypotheses as problems that can arise during an interview. He believed Stockard
approached the interview with the belief the child had been abused by Ballou and
therefore failed to explore alternative hypotheses. He also criticized her use of leading
questions, which the NICHD protocol advises only to use when an interviewer runs into
trouble during the interview. He identified specific questions that he described as
communicating the appropriate answers to the child. He said this skews the results,
according to "empirical research," but he failed to cite a particular source. Barnett
described reliability in this context: "If you did an interview this way and did an
interview with nonleading questions, the presumption is you would get two different
results; and so, therefore, no reliability." He cited no research testing that presumption.
Counsel then played both the interviews from 2014 (when Ballou was the alleged
perpetrator) and 2012 (when another family member was the alleged perpetrator).
Periodically, the videos were paused so Barnett could address a particular concern with
the interview.
After going through this process with the 2014 video, Barnett concluded the
Finding Words protocol was followed "in some regards, not in all." He testified the
protocol was not followed in these areas: "Investigation of truth or lie, leading questions,
confirmatory bias, lack of investigation of alternative hypotheses." He later identified
similar issues of concern with the 2012 interview. He also expressed concern about the
length of the 2012 interview and the child's distress during the interview. He criticized
the presence of the child's mother at points during the 2012 interview, observing that
15
some disclosure came from the mother rather than the child. Ultimately, however, Barnett
agreed that the child, not the mother, identified the place the child was touched and that
the child was able and willing to correct the interviewer when the interviewer got
something wrong. He also acknowledged the child resisted what might be seen as
pressure from authority figures to say someone else touched her inappropriately. Yet he
faulted repeated questions being asked on this issue, while acknowledging the child did
not change her response after repeated questioning.
Barnett was not asked, nor does the testimony he offered seem to imply, that he
found the results of the entire interview unreliable. Instead, he criticized particular
practices used during the interview and explained the potential issues those practices
created.
Stockard testified about her education, training, and interviews of the child.
On a different date, the State's expert, Kelly Robbins, testified. She detailed her
experience, training, and education. She also addressed the Finding Words/ChildFirst
protocol. Robbins described the interviews as "semi-structured" to allow the interviewer
to adapt to the child based on the child's developmental capacity and spontaneity. She
testified interviewers may customize their interviews based on the children, and she
emphasized the need for open questions to avoid issues of suggestibility.
Robbins addressed testability of the protocol. She pointed out absolute efficacy
could not be determined because it was impossible to know the truth of particulars the
child reported. But she cited the testing of the interviewing techniques that had led to the
development of best practices. She noted, however, that different children and
circumstances sometimes required use of different techniques. Robbins distinguished the
interviewing process from a scientific process in which an error rate can be established.
16
Robbins reviewed Stockard's 2014 interview of the child and concluded Stockard
appropriately followed the ChildFirst protocol. Robbins identified some leading questions
but noted the child resisted leading questions. Overall, Robbins concluded the interview
was not suggestive. Robbins reached similar conclusions after reviewing Stockard's 2012
interview. Robbins again noted some leading questions but observed that the child
resisted any suggestion she should adopt the premise of those questions. Robbins also
produced a report responding to the issues raised by Barnett through his report and
testimony.
In ruling on the motions, the district court prefaced its findings by stating it would
address the motions simultaneously because the issues were "closely tied together." The
district court agreed with the State's position that K.S.A. 2018 Supp. 60-456 did not
apply, reasoning Stockard was a fact witness. It analogized Stockard's testimony to that
of a treating physician:
"That the treating physician has specialized training, as used in the statute, his medical
degree does not, in and of itself, mean he is testifying as an expert. He is testifying about
what he saw, heard, observed, and what actions he took as a result. Here, Miss Stockard
is drawing no conclusions as to what did or did not happen between the defendant and
[the child]. She is merely gathering information from the complaining witness. That she
has chosen to use a specific technique to gather that information does not automatically
subject her—subject her fact gathering to a 60-456 analysis. Nowhere in the interview
does she offer an opinion as to the truth of the statements offered by [the child]."
The district court continued to explain why it found the discussion of the
purported science of child interviews a distraction:
"I think an attempt to get me to focus on the purported science of child interviews
serves only as a diversion from the statute itself. I would note 60-456 is testimony in the
17
form of opinion or inferences. Such do not exist in the context of the interview itself. The
statute is not intended to apply to a fact witness, nor should the reverse be true. The
opinion of an expert is not a fact. It is just an opinion regardless of that expert's training
or knowledge."
The district court did not explicitly address the reliability of the Finding
Words/ChildFirst protocol or Stockard's implementation of the protocol. But the district
court ruled the child's statement and Barnett's testimony attacking the weight and
credibility of Stockard's interview were admissible.
On appeal, Ballou attacked the Finding Words/ChildFirst protocol as not having
been shown to be reliable, analogizing the protocol to other areas of scientific inquiry.
Then he faulted any deviation from the protocol as violating K.S.A. 2018 Supp. 60-
456(b)/Daubert. He next argued if the interview was not expert testimony, it should have
nonetheless been excluded as unduly suggestive. He again relied on the Michaels
decision from New Jersey without acknowledging this court's discussion of that case in
Gilliland.
The Court of Appeals was not persuaded. It concluded Stockard's testimony was
not expert testimony. The panel characterized Ballou's arguments as "attempting to fit a
square peg in a round hole." Ballou, 2017 WL 3575610, at *10-11. It distinguished cases
that Ballou relied on, noting that while interviewing techniques may be outside the
understanding of the jury, the interviews produced by those techniques are not
necessarily inadmissible because the average juror does not understand the underlying
methods. The panel also noted that the interviewer, during an interview, does not offer an
opinion subject to K.S.A. 2018 Supp. 60-456(b). 2017 WL 3575610, at *10.
The panel next considered Ballou's Michaels argument. It distinguished Stockard's
interview from the problematic interviews that led to the Michaels opinion. The panel
18
concluded Stockard's techniques were not impermissibly suggestive, and therefore the
district court did not abuse its discretion by admitting the interview at trial. 2017 WL
3575610, at *11-12.
On review, Ballou asks this court to find the panel erred in concluding the
interview was not scientific evidence or subject to Daubert. He draws an analogy to
evidentiary requirements relating to testing for the crime of driving under the influence.
Because Stockard had been trained in a particular method for interviewing a child
believed to have been abused, Ballou argues K.S.A. 2018 Supp. 60-456 requires the State
to establish the scientific reliability of the method used in conducting the interview before
the jury can hear evidence about the child's statements. Ballou challenges the panel's
conclusion that the interviewing techniques were not unduly suggestive.
2.1 K.S.A. 2018 Supp. 60-456(b) does not apply to the interview.
Kansas rules of evidence are generally concerned with how a party presents facts
to the trier of fact. See K.S.A. 60-401. Typically, every person is qualified to be a witness
and provide testimony about relevant matters within their personal knowledge. K.S.A.
60-407; K.S.A. 60-419. But see K.S.A. 60-417 (witness disqualified if unable to be
understood by judge and jury or unable to understand duty to tell the truth). In other
words, most witness testimony is concerned with establishing facts.
K.S.A. 2018 Supp. 60-456 imposes some limitations on a witness' testimony,
however, and Ballou argues those limitations required the district court to rule that
Stockard's interview of the child was inadmissible. Appellate courts apply a multi-step
analysis when reviewing claims of evidentiary error. Ballou's argument about the
application of K.S.A. 2018 Supp. 60-456 places us at the second step in the multi-step
analysis where an appellate court undertakes a de novo assessment of which legal
19
principles apply. See State v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010)
(identifying tiered appellate analysis of [1] reviewing objections to relevancy; [2]
determining which rules of evidence or legal principles apply; [3] reviewing the trial
court's application of the rules).
To determine K.S.A. 2018 Supp. 60-456(b)'s applicability, we must determine
legislative intent. The plain language of the statute is the best means for discerning this
intent. Only if the statutory language is unclear or ambiguous will we move on to
consider other tools of statutory construction. State ex rel. Secretary of DCF v. Smith,
306 Kan. 40, 48, 392 P.3d 68 (2017).
K.S.A. 2018 Supp. 60-456(a) applies to lay witnesses and allows them to provide
testimony in the form of opinions or inferences that are rationally based on the witness'
perception; helpful to understanding the witness' testimony; and not based on scientific,
technical, or other specialized knowledge. Subsection (b) applies to witnesses who are
qualified as an expert. In full, K.S.A. 2018 Supp. 60-456(b) provides:
"If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is
qualified as an expert by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on
sufficient facts or data; (2) the testimony is the product of reliable principles and
methods; and (3) the witness has reliably applied the principles and methods to the
facts of the case." (Emphases added.)
The statute focuses on testimony. But Ballou does not focus on Stockard's
testimony. Instead, he focuses on the child's statement, arguing the district court should
not have admitted it. Yet K.S.A. 2018 Supp. 60-456(b) does not provide guidelines or
rules about the admissibility of out-of-court statements. And Stockard's testimony only
20
facilitated the admission of the child's statement by laying the foundation for when,
where, and under what circumstances the recording of the statement was made.
Stockard's role was that of interviewer, not as a witness to the crime. And she did not
offer an opinion during the interview. Given those circumstances, the statutory language
itself reveals the infirmities in Ballou's argument that the interview is governed by 60-
456(b).
The statute governs circumstances in which a witness may "testify." To "testify" is
"[t]o give evidence as a witness " or "to bear witness ." Black's Law Dictionary 1704 (10th ed. 2014). "Testimony" is "[e]vidence
that a competent witness under oath or affirmation gives at trial . . . ." Black's Law
Dictionary 1704 (10th ed. 2014). And a "witness" is "[s]omeone who sees, knows, or
vouches for something . 2. Someone who gives
testimony under oath or affirmation . . . ." Black's Law Dictionary 1838 (10th ed. 2014).
Because some of these terms rely on the word "evidence," we note that Kansas law
defines "evidence" as "the means from which inferences may be drawn as a basis of proof
in duly constituted judicial of fact-finding tribunals, and includes testimony in the form of
opinion, and hearsay." K.S.A. 60-401(a).
Our review of the interview reveals Stockard offered neither opinion nor factual
testimony. She did not give evidence or bear witness during the interview. Instead, during
the interview Stockard engaged in a fact-finding process to learn about what, if anything,
happened. To that end, she asked the child questions. She did make some factual
representations about other witness' statements. But each time, Stockard told the child
who had made the statement and the context sought to get information from the child.
Nothing Stockard said or did in the interview constituted testimony or testifying, nor did
any of her comments constitute an opinion as contemplated by K.S.A. 2018 Supp. 60-
21
456(b). K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic
interview.
2.2 Stockard's testimony and the interview were admissible.
Nor does the statute support excluding Stockard's trial testimony. By way of
introducing her, the State established Stockard's background, including her education as a
social worker, her training in the Finding Words/ChildFirst protocol, and her experience
in conducting interviews. This factual background has similarity to the foundation often
laid for expert testimony, but background alone does not make the entire testimony and
interview subject to a K.S.A. 2018 Supp. 60-456/Daubert process. As discussed, what
separates her testimony from that of an expert is that she never offered an opinion or
otherwise testified to anything based on her scientific, technical, or other specialized
knowledge. She simply testified to what she, the detective, Norris, or the child said or
did. This testimony was based on her personal observations. She did not offer an opinion
about the reliability of the child's statement or whether she found the statement believable
or truthful. She simply relayed the factual circumstances under which the statement was
taken.
Also, contrary to Ballou's argument, expert testimony is not necessarily required
as a foundation for introducing a child witness' interview into evidence. Ballou argues the
Court of Appeals panel held that expert testimony was required. But he misreads the
panel's analysis. Nor does his argument find support in the authorities he cites, which
were discussed by the panel—State v. Gaona, 293 Kan. 930, 270 P.3d 1165 (2012), and
State v. Huntley, 39 Kan. App. 2d 180, 177 P.3d 1001 (2008). See Ballou, 2017 WL
3575610, at *9-10.
22
In Gaona, 293 Kan. 930, an investigator trained in Finding Words interviewed the
child victim. The investigator testified, and the child's interviews were admitted into
evidence. The State also proffered an expert witness—the same expert used here,
Robbins. We classified Robbins' testimony in Gaona as addressing two general areas:
(1) the Finding Words protocol as a way to bolster the State's investigator who employed
the protocol and rebut the defense expert who criticized the investigator's interview, and
(2) to explain common characteristics of abused children and to explain how the child
victim in that case demonstrated those characteristics. 293 Kan. at 947.
We held Robbins was not qualified to offer the second category of testimony
about the child's behavior because Robbins, at that time, lacked training in psychology,
psychiatry, social work, or child development. See 293 Kan. at 947-48. In contrast, we
held the district court did not abuse its discretion in allowing Robbins to testify about the
Finding Words protocol and, more generally, about interviews of children who have
alleged sexual abuse. We noted: "Jurors do not possess this information, and Robbins'
testimony was helpful to their understanding of the case." 293 Kan. at 948.
But the decision did not go as far as Ballou suggests; it did not hold that an expert
must lay the foundation for an interview of a child victim. And, here, the district court
recognized the role of experts discussed in Gaona. The district court specifically ruled the
child's statement was admissible and that Ballou could present his expert testimony to the
jury, although he ultimately chose not to do so.
Likewise, in Huntley, 39 Kan. App. 2d 180, the Court of Appeals panel did not
hold an expert must lay a foundation about the reliability of the interview. Instead, it
considered whether the district court abused its discretion when it denied a continuance
after determining it would not admit the defense expert's testimony about whether
investigative techniques had been suggestive. Huntley argued the child's natural mother
23
was suggesting testimony to the child and the expert's testimony was relevant to
bolstering his theory of defense. The district court disagreed and concluded expert
testimony was unnecessary because a juror using common sense could assess whether a
mother had been instrumental in suggesting testimony to her child.
The Huntley panel reversed the district court and discussed caselaw from other
jurisdictions
"holding that the proper protocols and techniques used to interview child victim
witnesses is a matter not within the knowledge and understanding of the average
juror. . . . This caselaw seems to be in step with an emerging trend to recognize and
permit expert testimony on the impact of suggestive interviewing techniques on child
witnesses." 39 Kan. App. 2d at 188.
The panel concluded the district court made an error of law based on the district court's
legal conclusion that any defense expert testimony would be inadmissible. 39 Kan. App.
2d at 189. Again, however, the court did not hold that expert testimony about the efficacy
of a protocol used when conducting an interview of a child is necessary before the jury
can hear or view the interview.
Ballou finally attempts to bolster his argument by analogizing the interview to a
test for blood alcohol content. Before test results are admitted, we have held that a precise
step-by-step protocol must be followed and scientific reliability must be established or
test results are inadmissible. See Shadden, 290 Kan. at 823-25. And, in a supplemental
memorandum to the district court, Ballou compared the interview to horizontal gaze
nystagmus testing, citing this court's opinion in City of Wichita v. Molitor, 301 Kan. 251,
341 P.3d 1275 (2015). There, we held the test was scientific and its reliability must be
established before it could be admitted. 301 Kan. at 260-64.
24
Ballou's comparisons are inapt, however. An interview of a child witness is not the
type of scientific or technical process that is amenable to a precise, testable result.
Regardless of protocol, no expert can proclaim the accuracy of the result of the interview
or any conclusions to be drawn from it because no metric has been established of
assuring reliability or truthfulness. An interview is by its nature dynamic, where the
discussion may vary as information is revealed. It is unrealistic to expect the same step-
by-step process one can apply to some areas of scientific or technical inquiry to apply to
test a child's disclosure that he or she has suffered abuse. Robbins' testimony to the
district court supports these conclusions. And nothing in Ballou's expert's testimony
suggests a meticulous step-by-step process is required or that the failure to follow a step
negates the entire results of the interview. Indeed, Barnett testified he does not follow any
particular protocol. Barnett identified problems with the interview that may impact some
aspects of the interview. But nowhere in his opinion did he go so far as to say the entire
disclosure was rendered suspect or unreliable.
Unless some area of study can develop such a process, we are left with different
fields of inquiry, such as law enforcement, psychology, psychiatry, and social work,
developing ways to obtain information about alleged abuse. And to the extent that the
processes they develop are flawed, those flaws should be presented to a jury to weigh in
its analysis. Another case, State v. Howling, 310 Kan. __, __ P.3d __ (No. 116,524, this
day decided), slip op. at 3-7, shows a jury's ability to do just that. But to the extent that a
process yields an unreliable result because of improper suggestions during questioning,
Kansas law provides other potential avenues to explore that possibility and exclude the
evidence if appropriate.
In summary, expert testimony is not necessarily required as a foundation to
introducing a child witness' interview into evidence and no specific formula or protocol
need be followed when conducting an interview. Thus, the failure to present expert
25
testimony or for an interviewer to follow a specific protocol does not render the interview
inadmissible.
2.3 Ballou failed to preserve his argument about the need for a taint hearing.
As we have discussed, Ballou repeatedly invoked Michaels, 136 N.J. 299, which
held that New Jersey courts must hold a taint hearing in certain cases. In Gilliland, we
first considered Michaels and noted that "Kansas does not formally recognize pretrial
taint hearings." 294 Kan. at 545. And we did not do so in Gilliland and have not done so
since. In Gilliland, we noted that the district court had considered the ultimate finding
mandated in Michaels by concluding the questioning was not unduly suggestive or
leading and that the interview should be admitted. 294 Kan. at 546-47.
Ballou makes no attempt to explain why the evidentiary hearing conducted by the
district court did not constitute at least the functional equivalent of a taint hearing. He
received more process than did Vernon Ray Gilliland, who had been denied the ability
through the district judge's ruling to present his own expert's testimony. In Gilliland, we
recognized authorities allowing a defendant to present the issue of reliability without
convening a hearing formally called a "taint hearing." See 294 Kan. at 547-48 (citing out-
of-state cases "permitt[ing] an inquiry into suggestiveness through the use of competency
hearings").
Here, citing Michaels, Ballou argued the statements were tainted and unreliable.
He presented Barnett's testimony. After hearing Ballou's evidence, the district court
denied his motion. The court ruled the jury could hear the interview. It also ruled that
Ballou's expert could testify. Granted, the district court's rulings about reliability were not
as precise as those in Gilliland or as detailed as the Michaels court directed. But Ballou
had the obligation to request more precise or appropriate findings of facts and
26
conclusions of law. His failure to do so puts this issue beyond this court's review.
"Generally, litigants and their counsel bear the responsibility for objecting to inadequate
findings of fact and conclusions of law in order to give the trial court the opportunity to
correct such inadequacies, and, when there is no objection, omissions in findings are not
considered on appeal." McIntyre v. State, 305 Kan. 616, 618, 385 P.3d 930 (2016).
Finally, we note that the Court of Appeals panel considered the reasons the
interview was "not impermissibly suggestive" and, based on those reasons, held "the trial
court did not abuse its discretion in admitting the interview at trial." Ballou, 2017 WL
3575610, at *12. In Ballou's petition for review, he argues the panel "incorrectly
downplayed the suggestive nature of the interview and pressure applied by Norris" on the
child. But Ballou does not challenge the panel's holding that an abuse of discretion
standard applies and under that standard, as applied by the panel, he must show that no
reasonable person would agree that the interview was not unduly suggestive. He has
failed to meet that burden.
We hold the district court did not err in admitting the statement of the child.
ISSUE 3: Ballou failed to preserve his pretrial objection to the admission of prior acts of
sexual misconduct under K.S.A. 2018 Supp. 60-455(d).
Ballou argues the Court of Appeals panel erred in finding he failed to preserve his
objection to the admission of K.S.A. 2018 Supp. 60-455(d) evidence by not
contemporaneously objecting at trial. The panel noted Ballou filed a written pretrial
objection but did not renew his objection at trial when the State presented evidence about
uncharged acts of sexual misconduct. The panel held a timely objection under K.S.A. 60-
404 requires making a specific objection on the record contemporaneous with the
introduction of the evidence at trial and Ballou failed to make such an objection. See
27
Ballou, 2017 WL 3575610, at *13 (citing State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862,
cert. denied 137 S. Ct. 310 [2016]).
As Ballou essentially acknowledges in his petition for review, the panel's
reasoning relies on and follows this court's decisions. He argues, however, this court's
contemporaneous objection rule is inconsistent with the plain language of K.S.A. 60-404,
which states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."
Ballou asserts his written pretrial objection meets the dictionary definition of
timely, which he argues is different from contemporaneous. He cites dictionary
definitions for both, defining "timely" as "'coming early or at the right time,'" and
"contemporaneous" as "'existing, occurring, or originating during the same time.'" But he
does not explain how our caselaw is inconsistent with his cited definitions for timely and
contemporaneous. And we conclude no conflict exists.
We have explained a pretrial objection alone will not usually be considered timely
for purposes of K.S.A. 60-404 because "an in limine ruling 'is subject to change when the
case unfolds,' Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 83 L. Ed. 2d 443(1984)." State v. Inkelaar, 293 Kan. 414, 421, 264 P.3d 81 (2011), overruled on other
grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). This rule acknowledges
that different, more, or less evidence may come in at trial than was admitted or proffered
at a pretrial hearing. Or a district court judge may simply see the issue in a different light
after hearing additional arguments and evidence. And a "timely interposed . . . objection"
is required by the plain language of K.S.A. 60-404. (Emphasis added.)
28
"Interpose" means "to place between or in an intermediate position[;] to put forth
by way of interference or intervention[;] to introduce or throw in between the parts of a
conversation or argument." (Emphasis added.) Webster's Third New International
Dictionary 1182 (1993). A timely interposed objection, thus, comes between the
introduction of the evidence at trial and its admission. In other words, a timely interposed
objection is one that gives the district court the opportunity to make the ruling
contemporaneous with an attempt to introduce evidence at trial. See Inkelaar, 293 Kan. at
421. This is because "contemporaneous" means "occurring, or existing at the same time."
Black's Law Dictionary 397 (11th ed. 2019). Accordingly, our contemporaneous
objection rule tracks with the plain language of K.S.A. 60-404. See Dupree, 304 Kan. at
62. And to hold otherwise would not further the legislative intent of giving "'"the trial
court the opportunity to conduct the trial without using the tainted evidence, and thus
avoid possible reversal and a new trial"'" State v. King, 288 Kan. 333, 342, 204 P.3d 585(2009).
We thus affirm the Court of Appeals panel's conclusion on this point. We pause to
note our disagreement with one aspect of the panel's analysis, however. The Court of
Appeals alternatively found Ballou had waived the argument because after the State
admitted the complained-of evidence, he used it to discredit the child's testimony. See
Ballou, 2017 WL 3575610, at *13-14. In support of its analysis, the panel cited this
court's decision in State v. Berriozabal, 291 Kan. 568, 243 P.3d 352 (2010). Yet the
circumstances in Berriozabal are distinguishable from the facts here. Jesus Berriozabal
challenged the admission of evidence in a pretrial motion but failed to object
contemporaneously to its admission at trial. He then used the evidence throughout trial,
discussing it in his opening statement, using it to question multiple witnesses, and
generally relying on it in the overall theme and theory of his defense to the extent that we
29
determined his "defense strategy is inconsistent with the argument Berriozabal asserts on
appeal." Berriozabal, 291 Kan. at 580.
Ballou did not use the evidence as part of a broader argument or theory of defense.
Rather, Ballou merely responded to the State's reliance on the evidence through cross-
examination. Under the facts here, it would be, as Ballou argues, "unfair to now say [the]
evidence, which [he] had previously objected to, is untouchable and if he does address it,
he waives any objections he may have had to the evidence."
Reliance on Berriozabal was not essential to the panel's holding, however. And we
affirm its ultimate conclusion that Ballou did not properly preserve his objection.
ISSUE 4: The lack of an independent psychological exam was not error.
Ballou argues the district court and Court of Appeals erred in determining it was
appropriate to deny his pretrial motion for an independent psychological examination of
Ballou's daughter.
Here, the district court applied the appropriate factors for determining whether a
criminal defendant is entitled to an independent psychological evaluation of a witness.
We have identified six relevant factors:
"(1) whether there was corroborating evidence of the complaining witness' version of the
facts, (2) whether the complaining witness demonstrates mental instability, (3) whether
the complaining witness demonstrates a lack of veracity, (4) whether similar charges by
the complaining witness against others are proven to be false, (5) whether the defendant's
motion for a psychological evaluation of the complaining witness appears to be a fishing
expedition, and (6) whether the complaining witness provides an unusual response when
30
questioned about his or her understanding of what it means to tell the truth." Berriozabal,
291 Kan. 568, Syl. ¶ 5.
We review a district court's application of these factors—often called the Gregg
factors, see State v. Gregg, 226 Kan. 481, 489-90, 602 P.2d 85 (1979)—and its ultimate
decision to grant or deny a motion for a psychological evaluation of a witness for an
abuse of discretion. Berriozabal, 291 Kan. at 580. An abuse of discretion occurs if: (1)
no reasonable person would take the view adopted by the district court; (2) the decision is
based on an error of law; or (3) the decision is based on an error of fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the district court
abused its discretion has the burden to show such an abuse of discretion. State v.
Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015).
As to the first factor, the district court found there was corroborating evidence of
the child's allegations because Norris walked in as it was happening and her account of
the incident fit with the child's. As to the second and third factors, the district court found
there was no evidence presented that the child was mentally unstable or had problems
with veracity. As to the fourth factor, the district court found Ballou had presented no
evidence that the child had made similar accusations later proven false. As to the fifth
factor, the district court found Ballou's motion appeared to be a fishing expedition, and
his "suggestion that such an evaluation would, in fact, be good for the child [lends] no
support to his request." As to the sixth factor, the district court found the child did not
show any unusual or unexpected responses when asked to tell the truth and explain if she
understood what it means to tell the truth and why it was necessary to do so in her
interview with Stockard, in her testimony at the preliminary hearing, or in her testimony
at the pretrial motion hearing.
31
Ballou's argument on appeal seeks to undercut these findings. Each argument goes
to the weight and credibility of the evidence. He cites evidence and argues that evidence
supports a contrary conclusion. But Ballou fails to show that no reasonable person would
have taken the same position as the district court. "'"If reasonable persons could differ as
to the propriety of the action taken by the trial court, then it cannot be said the trial court
abused its discretion."'" State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
The Court of Appeals panel properly considered and rejected Ballou's arguments
within the standard of review for abuse of discretion. And the panel directly cited the
district court's findings on each factor. See Ballou, 2017 WL 3575610, at *14-16. Ballou
has shown no error in its analysis, nor has he shown an abuse of discretion by the district
court. Thus, he has not carried his burden on appeal. See Robinson, 303 Kan. at 90. In
summary, we find no abuse of discretion in the district court's denial of his motion for an
independent psychological evaluation of Ballou's daughter.
ISSUE 5: Cumulative error did not deprive Ballou of a fair trial.
Ballou argues that even if none of the errors he alleges are individually reversible,
cumulative error deprived him of a fair trial. But we have found only one error—an error
by the prosecutor in making an argument unsupported by the evidence. And we have held
that error was not reversible. A single, nonreversible error does not establish reversible
cumulative error. State v. Williams, 299 Kan. 509, 566, 324 P.3d 1078 (2014).
SUA SPONTE ISSUE: The postrelease supervision order is illegal.
Although not discussed by the parties, the district court's sentence for Ballou's two
off-grid life sentence included lifetime postrelease supervision. But, under Kansas
statutes, the life sentences for these crimes are followed by parole, not postrelease
32
supervision, and the imposition of postrelease supervision in this case makes the
sentences illegal. See K.S.A. 2013 Supp. 21-5503(b)(2); K.S.A. 2013 Supp. 21-
5506(c)(3); K.S.A. 2013 Supp. 22-3717(b)(5); K.S.A. 2013 Supp. 21-6627(a)(1)(B), (C);
see also State v. Ruiz-Ascencio, 307 Kan. 138, 146, 406 P.3d 900 (2017); State v.
Phillips, 295 Kan. 929, 950, 287 P.3d 245 (2012). This court may correct an illegal
sentence at any time and may do so sua sponte. See K.S.A. 22-3504; State v. Johnson,
309 Kan. 992, 997, 441 P.3d 1036, 1040 (2019); State v. Rogers, 297 Kan. 83, 93, 298
P.3d 325 (2013). Typically, we emphasize that an appellate court should not decide any
issue without input from the parties. See State v. Toothman, 310 Kan. ___, ___ P.3d ___,
(No. 114,944, this day decided), slip op. at 7. But we discern no possible
counterargument on this particular issue. And, in several cases, we have remedied the
illegality by vacating the lifetime postrelease supervision term imposed at sentencing, and
we do so here. See, e.g., State v. Conrad, 297 Kan. 76, 82, 298 P.3d 320 (2013); State v.
Seward, 296 Kan. 979, 991-92, 297 P.3d 272 (2013)."Whether parole eligibility will
eventually become an actuality is not for us to decide." Johnson, 309 Kan. at 998, 441
P.3d at 1040.
CONCLUSION
Ballou has failed to show reversible error in any of the issues raised on review. As
a result, we affirm his convictions. We vacate the portion of the district court's judgment
imposing postrelease supervision on Ballou's two hard 25 life sentences.
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed in part and vacated in part.
33
NUSS, C.J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,252
vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.
34