State v. Morris

NOT DESIGNATED FOR PUBLICATION
No. 125,537
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RICHARD MORRIS,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Submitted without oral
argument. Opinion filed June 28, 2024. Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Kris W.
Kobach, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and MARY E. CHRISTOPHER, S.J.
PER CURIAM: The State charged Richard Morris with aggravated indecent liberties
with a child. H.R. told her mother that Morris offered her candy in exchange for touching
his toy. At trial, after finding H.R. was an unavailable witness, the district court admitted
H.R.'s statement through her mother's testimony. The jury ultimately convicted Morris as
charged. On appeal, Morris argues the district court erred in admitting Mother's hearsay
testimony and complains the prosecutor erred when it made argument on the
admissibility issue. These arguments are not persuasive. Morris also makes two
constitutional challenges to the Kansas Offender Registration Act (KORA) for the first
1
time on appeal. For reasons stated in this opinion, we affirm Morris' conviction and
sentence.
FACTUAL AND PROCEDURAL HISTORY
Mother moved to a new home with her three children in December 2017. After
Mother obtained employment and was unable to find childcare, a family member
recommended Morris watch the children when needed. Mother and the family member
had known Morris for a long time, and Mother believed she could trust him to watch her
children. Morris agreed and watched the children for no compensation while Mother
worked for about seven months, from January of 2018 to August 17, 2018. Morris
primarily watched H.R., who was three years old at the time.
On August 17, 2018, Morris watched H.R. while Mother was at work. Only
Morris and H.R. were home during the day. After Morris left, Mother and H.R. went to
the grocery store and Mother bought H.R. some candy. When they settled back in the car,
H.R. said that Morris "told her that he would give her candy if she touched his toy."
Mother asked H.R. what Morris' toy was, and H.R. told her "'his toy'" was "long and
round." Mother asked H.R. about it again when they got home, and H.R. repeated her
comment.
H.R.'s statement concerned Mother, so she called H.R.'s dad and he suggested
Mother call the police. Police Officer Kevin Curry responded to Mother's call, and he
interviewed Mother in the parking lot of her apartment building. H.R. was out of earshot
when Mother spoke with law enforcement. Officer Curry suggested Mother schedule a
child interview at the Sunflower House, which provides forensic interview services
specifically designed for children. He also directed Mother not to speak with H.R. about
the events again.
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Upon reviewing Mother's sexual abuse report a few days later, Detective Brett
Hays contacted Mother and interviewed her about the events. Based on Mother's
consistent story, Detective Hays grew concerned and scheduled an interview at the
Sunflower House.
A social worker at the Sunflower House conducted a forensic interview with H.R.
nearly two weeks after the initial report, on August 29, 2018. H.R. did not make any
disclosures or repeat any allegations related to Morris during the interview. And
according to Mother's testimony at trial, H.R. did not say anything about it after.
The same day, Detective Hays called Morris and scheduled an interview.
Detective Hays drove to Morris' residence about 20 minutes later, and Morris met him
outside. Detective Hays made an audio recording of his interview with Morris, but he
explained at trial he did not get video footage due to his body camera malfunctioning.
The redacted interview was later published to the jury and admitted to the record at trial.
Upon making contact with Morris at his home, Detective Hays requested Morris
"have a seat" in his vehicle and introduced himself to Morris. Detective Hays proceeded
to inform Morris that he was not under arrest, he was not being detained, he did not have
to speak with Detective Hays, and he could exit the vehicle at any time. Detective Hays
asked Morris if he understood, and Morris responded, "Yes." Detective Hays then
questioned whether Morris was comfortable speaking with him in the car, and Morris
assured him it was fine.
After making small talk, Detective Hays informed Morris that he wanted to speak
with him because "on August 17th . . . [H.R.] went to the grocery store with her mom . . .
and made the comment that . . . Rick asked her to touch his toy in exchange for some
candy." Detective Hays asked Morris, "Do you know anything about that?" Morris
admitted to giving H.R. candy but denied knowing anything about the allegation.
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Detective Hays told Morris that H.R. described the toy as "long and round."
Detective Hays then asked Morris if there was a chance H.R. saw Morris use the
restroom. Morris said H.R. barged into the bathroom once, but he did not think she saw
his penis because he turned away. He denied showing H.R. his penis and denied ever
speaking with her about it.
Detective Hays then asked Morris if "there is any way that she could have just
accidentally touched your penis?" Then he questioned whether Morris asked H.R. to
touch his penis by suggesting H.R. may have been curious. Detective Hays implied that
Morris' behavior was indicating that something was "really bothering" him. Morris then
told Detective Hays that H.R. once touched his penis while sitting on his lap. Morris
explained that he tried to change the subject after it happened because it made him feel
uncomfortable and nervous.
Detective Hays proceeded to inform Morris that he would not get arrested that
day, regardless of what Morris told him. Detective Hays told Morris that he did not
believe Morris was a bad guy, but suggested Morris be honest about the moment when
H.R. saw his bare penis.
Morris explained that H.R. "asked what it was and I told her it was my toy." He
added, "I tried to, you know, get out of it . . . change the subject and stuff like that."
Morris told Detective Hays that H.R. then asked if she could touch his penis while she
was sitting on his lap, and he tried to change the subject again.
A little bit later, Morris told Detective Hays that he opened his pants and H.R. saw
his bare penis while she was sitting on his lap. H.R. then touched it "for not even a
second" and "that was it." Morris denied offering H.R. candy in exchange for touching
his penis.
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Morris told Detective Hays that the event was not planned. And he agreed with
Detective Hays' implication that he lost his judgment when H.R. touched his penis
because he became aroused. Morris denied taking H.R.'s hand to help her touch his penis.
He again claimed it was "just a touch," "for a short time," and "probably a minute, if a
minute." Morris told Detective Hays that H.R. did not stroke his penis, and he did not
give her any instruction or direction. He stated: "She just touched it and I'll admit it felt
good, but that . . . that's it."
Morris stopped the touching because he "felt guilty about it." And he denied
offering H.R. candy in exchange for her silence about touching his penis, although he
admitting to bribing her with candy in exchange for being silent about joining him
outside while he smoked cigarettes.
Morris also told Detective Hays that H.R. only touched his penis that day and
added that it happened "no more than three times" that day. Morris explained that he
showed her his penis one time, she touched his penis through his shorts one time, and she
felt his bare penis one time.
About one week after Detective Hays' interview, the State charged Morris with
one count of aggravated indecent liberties with a child, in violation of K.S.A. 21-
5506(b)(3). A two-day jury trial was held on February 10 and 11, 2020.
At trial, the State presented the testimony of four witnesses and introduced the
police interviews with Mother and Morris as evidence. Detective Hays testified as the
State's first witness. He provided details into his investigation, which included his
observation of the Sunflower House interview and his conversation with Morris.
The State called H.R., five years old at the time of trial, as its second witness. H.R.
testified to her name, her age, and her favorite color. And she identified the names of her
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friends and daycare teachers. Through a series of questions posed by the prosecutor, H.R.
demonstrated she could tell the difference between a truth and a lie. But H.R. testified
that she did not recognize anyone in the courtroom and did not remember somebody
named Rick when questioned by the State. Morris' counsel declined to cross-examine
H.R., and the State proceeded to call Mother to the stand.
Mother testified she had three children, including H.R. She explained when H.R.
was three years old, Mother had Morris watch H.R. because Mother did not have
childcare arranged yet. Mother explained she had known Morris a long time because he
was the ex-husband of a family member.
Before Mother continued with her testimony the prosecutor asked for a break, and
the jury was excused while the parties took up a matter outside the hearing of the jury.
The State requested Mother be permitted to testify to H.R.'s allegation under a hearsay
exception. The State moved the court to determine H.R.'s statement was admissible
hearsay based on her unavailability as a witness and the reliability of her statement under
K.S.A. 60-460(dd) (permitting hearsay statements in criminal proceedings when a child is
alleged to be a victim of the crime and the child is unavailable as a witness). Morris'
defense counsel objected to any admission of hearsay.
While the jury remained out of the courtroom, the State questioned Mother about
H.R.'s statements to Mother. Mother testified H.R. never made comments of a sexual
nature prior to their conversation in the car, and she had never previously described a
penis as a toy. Mother testified it was the candy, and not herself, that prompted H.R. to
make the statement about Morris. And Mother believed H.R. knew the difference
between right and wrong when the events occurred.
The State argued the fact it had tried to elicit an identification of the defendant
from H.R., which she was unable to do, indicating that she was unavailable for testimony
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regarding this incident. Therefore, any statement that H.R. made out of court to Mother
would be completely covered by the statutory exception to the hearsay rule. The State
also argued the statement was coming in through the testimony that was heard during
Detective Hays' interview of Morris and through his own statements, so the door had
already been opened to it.
After hearing arguments from the parties, the district court took a recess and made
its ruling. It determined H.R.'s statement was admissible hearsay under K.S.A. 60-
460(dd). The court specifically found under K.S.A. 60-460(dd)(1) the statement made by
H.R. was as the alleged victim of the crime. Under K.S.A. 60-460(dd)(2), the court found
for purposes of asking H.R. to recall the same information she disclosed when she was
three years old, H.R. was unavailable to testify as a witness. As to the other two prongs of
the three-prong test under K.S.A. 60-460(dd)(2), the apparent reliability of the statement,
the court noted the child was not induced to make the statement falsely with either threats
or promises. The court observed that the child was not at the time familiar with body
parts, Mother never had any indication that H.R. knew anything in particular about a
penis or any type of sexual statements, and H.R.'s statements were literally out of the
blue. There was no indication of or any reason why the child would make this story up.
The court concluded that K.S.A. 60-460(dd) provided a mechanism to allow for the out-
of-court statements by H.R. to her mother to be presented to the jury. The court also ruled
PIK Crim. 4th 51.120, "Hearsay Evidence of Child Victim Who is Unavailable or
Disqualified," would be used in the course of instructions to the jury and counsel would
be able to argue those facts in their case.
Mother testified to H.R.'s statements to her when direct examination resumed.
Officer Curry then testified as the State's final witness. He testified to his conversation
with Mother and his request to separate H.R. from Mother during the interview. Officer
Curry's body camera footage from his interview with Mother was then published for the
jury.
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After the State rested and Morris' motion for acquittal was denied, Morris testified
in his own defense on the second day of trial. Morris denied ever intentionally showing
H.R. his penis, but he testified to H.R. barging into the bathroom while he was urinating.
Morris then described an incident where H.R. jumped into his lap and felt his penis
through his shorts. He explained, "When she got on my lap, she felt something, and I
tried to, you know, blow it off, and I think I may have used toy, but that was . . . ."
Counsel interrupted and questioned, "So did you ever refer to your penis as a toy?" And
Morris responded, "Possibly without thinking."
Morris denied pulling his pants down or asking H.R. to touch his penis. Morris
also denied asking her to touch his penis and testified he never offered her candy for her
silence. Morris admitted to giving H.R. M&M's as a bribe for not telling Mother about
going outside to smoke cigarettes.
Morris addressed his interview with Detective Hays and testified he felt Detective
Hays was leading him or "putting words in my mouth." Morris testified that when he gets
nervous he babbles, and he did not know what to say when he was being interviewed by
Detective Hays. For example, Morris conceded his statements to Detective Hays
regarding how long the touching lasted were contradictory—at first he said just a
moment, but later it appeared he was agreeing it lasted longer. But Morris testified he
only said it was longer because Detective Hays "kept changing it on me." And he denied
H.R. touched his penis for an extended length of time.
The jury convicted Morris of aggravated indecent liberties with a child in violation
of K.S.A. 21-5506(b)(3), an off-grid person felony. The district court sentenced Morris to
a hard 25 sentence pursuant to K.S.A. 21-6627, with lifetime postrelease supervision and
an order to register as an offender.
Morris appeals.
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ANALYSIS
I. Admission of evidence of H.R.'s out-of-court statement
In his first issue on appeal, Morris argues the district court erred when it applied
K.S.A. 60-460(dd), finding Mother's testimony as to H.R.'s out-of-court statement was
admissible hearsay. But resolution of Morris' larger issue requires us to address multiple
questions of law.
Preservation
First, Morris addresses the preservation of this claim, contending we can consider
his arguments because he objected below, or alternatively, his arguments meet an
exception to the general rule against raising new claims on appeal. Second, he argues the
district court made a mistake of fact and law in applying K.S.A. 60-460(dd), finding H.R.
was a disqualified or unavailable witness who provided a reliable statement. Finally,
Morris argues the corpus delicti rule requires us to reverse his convictions with prejudice
because absent Mother's hearsay testimony, his extrajudicial confession alone is not
sufficient to sustain a conviction.
In response, the State does not appear to contest Morris' preservation of this issue.
But in addressing the merits of Morris' claims, the State argues Morris' claims are
contrary to the record and are unsupported by Kansas precedent.
This court is typically precluded from reviewing an evidentiary challenge absent a
timely and specific objection made on the record. See K.S.A. 60-404; State v. Dupree,
304 Kan. 43, 62, 371 P.3d 862, cert. denied 580 U.S. 924 (2016). Generally, any pretrial
objection to the admission or exclusion of evidence must be preserved by
contemporaneously objecting at trial, which can be accomplished through a standing
9
objection. See State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014). But see State v.
Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012) (characterizing contemporaneous
objection rule as a "prudential rather than jurisdictional obstacle to appellate review").
Kansas appellate courts have, on occasion, refused to strictly apply the contemporaneous
objection rule in some contexts upon finding the underlying purpose for the rule has been
satisfied. See State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013); State v.
Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012); State v. Breedlove, 295 Kan. 481,
490-91, 286 P.3d 1123 (2012).
The State filed a pretrial motion to determine the admissibility of H.R.'s out-of-
court statement to Mother under K.S.A. 60-460(dd). As the State mentions in its brief on
appeal, the motion is file stamped for the second day of trial. But during the trial, the
district court addressed the motion and noted it had been provided the week prior at a
pretrial conference. The record does not include any written objection by Morris to the
State's motion.
At trial, after the State called H.R. to the stand and she was unable to identify
Morris or provide any disclosures, it sought to introduce H.R.'s out-of-court statement
through Mother's testimony. When the State moved the court to rule H.R.'s out-of-court
statement was admissible under K.S.A. 60-460(dd), defense counsel immediately
objected, arguing, "[F]irst off, I would say I would object to any hearsay. I think that's
what starts it all off. I think the statute does require a hearing to determine whether the
child is disqualified or not." Based on that objection, the State argued the district court
could sua sponte determine a child's availability after the child has taken the stand. The
district court allowed the parties to proceed with questioning Mother about H.R.'s
statement, which included cross-examination by defense counsel, before the parties made
arguments on the issue out of the jury's presence. Morris' defense counsel argued that
H.R.'s statement was not admissible hearsay because it was unreliable.
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The district court ultimately concluded H.R.'s out-of-court statements to her
Mother were admissible hearsay under K.S.A. 60-460(dd). The district court asked
counsel if there was "anything else for the record with regard to these issues," and
counsel for both parties responded in the negative. Defense counsel did not lodge a
standing objection at any point after the district court ruled Mother could testify as to
H.R.'s out-of-court statements. Notably, defense counsel did not lodge any objections to
Mother's testimony generally when she provided it to the jury.
Morris argues he preserved his argument for appeal because his counsel "objected
to any hearsay when the prosecution attempted to admit [H.R.]'s hearsay statement solely
pursuant to K.S.A. 60-460(dd)." But as referenced above, Morris' objection was not
specific or contemporaneous. Defense counsel simply objected "to any hearsay" before
the hearing to determine whether H.R. was an unavailable witness. And defense counsel
lodged no other objections to Mother's testimony or any other evidence.
Morris alternatively argues the district court's mid-trial hearing to determine the
admissibility of this testimony served the purpose of the contemporaneous objection rule.
In State v. Randle, 311 Kan. 468, 480, 462 P.3d 624 (2020), our Supreme Court found it
could consider a defendant's challenge to the admissibility of evidence—despite defense
counsel's vague grounds for objecting—because the "purposes of the contemporaneous
objection rule under K.S.A. 60-404 were fulfilled." The Randle court reasoned that while
defense counsel "misspoke as to the specific grounds on which he was objecting," the
district court nevertheless "knew the issue associated with the video and had the
opportunity to rule on it." 311 Kan. at 480; see also State v. D.W., 318 Kan. 575, 578-79,
545 P.3d 26 (2024) (relying on Randle to find contemporaneous objection rule was
satisfied because a motion to exclude evidence was pending, the State argued relevance at
trial, and the district court ruled on relevance and undue prejudice).
11
In Spagnola, our Supreme Court similarly found it could consider an admissibility
claim despite the defendant's lack of contemporaneous objection because the purpose of
the rule was fulfilled. 295 Kan. at 1103. The Spagnola court relied on a much older case,
State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), which reasoned:
"Ordinarily, failure to make timely, specific objection to the admission of
evidence will bar consideration of the admissibility question on appellate review. Here,
the appellant's objection was not 'timely' in the strict sense, but there is no doubt the
district court was apprised of the issue before it rendered its decision . . . . What
transpired is consistent with the rationale underlying the contemporaneous objection
rule—i.e.[,] objecting to admissibility and stating the grounds therefore permits the court
to preclude improper evidence from affecting the decision. This was a trial by the court;
no jurors had been swayed by the improper evidence. The court had not rendered its
decision when the issue was raised, and we think under the circumstances of this case the
spirit if not the letter of the contemporaneous objection rule was satisfied. [Citations
omitted.]"
As in Gordon, there is no doubt that the district court was apprised of the issue of
admissibility before it rendered its decision to permit Mother's testimony reflecting H.R.'s
out-of-court statements. The State filed a pretrial motion to address this issue, and the
State raised the issue and requested the jury leave before making the argument to the
district court. And what transpired through the district court's sua sponte hearing was
consistent with the purpose identified in Gordon—permitting the district court to
preclude improper evidence from affecting the decision. 219 Kan. at 652. And like
Gordon, the spirit of the contemporaneous objection law was satisfied when the district
court held a hearing on the issue mid-trial and the parties were able to present arguments
and cross-examine Mother before the district court rendered a decision on admissibility.
As a result, we will consider Morris' admissibility claim despite his lack of
contemporaneous objection.
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The district court did not err in admitting H.R.'s out-of-court statements.
Morris argues the district court erred in admitting H.R.'s out-of-court statements
solely pursuant to K.S.A. 60-460(dd). Morris contends the court erroneously found H.R.
met the requirement of "disqualified or unavailable as a witness" and erred in finding the
statement was "apparently reliable." Thus, he claims the district court erred by allowing
the State to introduce hearsay, which did not fit a hearsay exception.
The rules regarding the admission or exclusion of evidence at trial may be applied
as either a matter of law or discretion "depending on the contours of the rule in question."
State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). An appellate court considers a
district court's determination that hearsay is admissible under a statutory exception using
an abuse of discretion standard, also reviewing to determine that the court's decision was
not guided by erroneous legal conclusions. State v. Kelley, 42 Kan. App. 2d 782, 787, 217
P.3d 56 (2009); see also Randle, 311 Kan. at 476. A judicial action constitutes an abuse
of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of
law; or (3) it is based on an error of fact. State v. Levy, 313 Kan. 232, 237, 485 P.3d 605(2021). The erroneous admission or exclusion of evidence is subject to review for
harmless error under K.S.A. 2023 Supp. 60-261.
Morris' brief hints at Mother's testimony as generally objectionable, but Morris
does not actually identify specific out-of-court statements he claims were erroneously
admitted into evidence. This lack of precision in other cases has led reviewing courts to
find that "without more specific guidance on which portions of [the] testimony were
allegedly hearsay, this court cannot even begin to engage in a proper analysis of whether
the court improperly admitted hearsay evidence." In re K.L., No. 124,873, 2022 WL
4391222, at *7 (Kan. App. 2022) (unpublished opinion); see also State v. Robinson, 293
Kan. 1002, 1027, 270 P.3d 1183 (2012) ("We will not speculate as to the statements
[defendant] seeks to challenge.").
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Within the record, however, the State's Motion to Determine Admissibility of
Evidence identifies two out-of-court statements H.R. made to her mother. First, H.R. said
that Morris said he would give her candy if she touched his toy. Second, when Mother
asked H.R. what the toy looked like, H.R. said it was long and round.
We begin our analysis by considering whether the out-of-court statements made
by H.R. constitute hearsay. As the late distinguished Professor James M. Concannon
advised, "Don't think great thoughts! Read the rule!" Concannon, Civil Code and Time
Computation Changes Effective July 1, 79 J.K.B.A. 20, 21 (June 2010). "Evidence of a
statement which is made other than by a witness while testifying at the hearing, offered to
prove the truth of the matter stated, is hearsay evidence." K.S.A. 60-460.
Hearsay evidence is inadmissible unless it fits within one or more of the statutory
exceptions listed in K.S.A. 60-460. If the out-of-court statement is offered for some
reason other than to prove the truth of the matter stated, it is not considered hearsay. The
theory behind the rule is that when a statement is introduced as evidence for the truth of
the matter asserted, the declarant's credibility is the basis for its reliability, and the
declarant must be subject to cross-examination. State v. Race, 293 Kan. 69, 76, 259 P.3d
707 (2011). If an out-of-court statement is offered for some other reason, it is not hearsay.
For instance, a statement offered to prove merely that the statement was made is not
hearsay. Randle, 311 Kan. at 476.
When a witness testifies at a hearing to an out-of-court statement made by
someone else, and the statement is not offered to prove the truth of the matter or is only
offered to show the effect on the listener, it is not hearsay.
"If a statement is offered not to prove the truth of the matter asserted but to prove
that the statement was made, it is not hearsay. State v. Harris, 259 Kan. 689, 698, 915
P.2d 758 (1996). 'If relevant, such a statement is admissible through the person who
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heard it.' Harris, 259 [Kan.] at 698 (citing State v. Getz, 250 Kan. 560, Syl. ¶ 2, 830 P.2d
5 [1992]). We also have held that statements offered into evidence not to prove the truth
of the matter asserted but 'to show their effect on the listener' do not constitute hearsay."
Race, 293 Kan. at 76.
Here, Mother testified concerning H.R.'s two out-of-court statements, so these
statements were made by someone other than the witness testifying at the hearing. H.R.
did testify briefly at the hearing, but the district court determined she was unavailable.
The issue is whether the statements were offered to prove the truth of the matter asserted.
Because the child used the word "toy," the statement arguably does not prove the truth of
the matter asserted, which was that Morris had committed aggravated indecent liberties.
The statements could be offered independently to show why Mother called the police,
however, which in turn led to the investigation and ultimately to Morris' confession.
H.R.'s out-of-court statements do not implicate the Confrontation Clause.
Not all hearsay implicates the Confrontation Clause and not all statements that
implicate the clause necessarily qualify as hearsay. State v. Williams, 306 Kan. 175, 199,
392 P.3d 1267 (2017). Hearsay and Confrontation Clause analyses are distinct.
"[I]n a criminal proceeding, [a] first step in analyzing whether a statement is
admissible hearsay is to determine whether the statement was testimonial," such as a
statement made to police during interrogation. Kelley, 42 Kan. App. 2d at 790; see also
State v. Brown, 285 Kan. 261, Syl. ¶ 15, 173 P.3d 612 (2007). If the statement is
testimonial, the Confrontation Clause applies and the declarant must testify at the hearing
for a hearsay statement to be admissible under K.S.A. 60-460(a). Kelley, 42 Kan. App. 2d
at 790.
15
Notably, in Ohio v. Clark, 576 U.S. 237, 247-48, 135 S. Ct. 2173, 192 L. Ed. 2d
306 (2015), the Supreme Court of the United States concluded statements of a three-year-
old child were not testimonial in nature and did not implicate the Confrontation Clause:
"Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few
preschool students understand the details of our criminal justice system. Rather, '[r]esearch on children's
understanding of the legal system finds that' young children 'have little understanding of prosecution.'
Brief for American Professional Society on the Abuse of Children as Amicus Curiae 7, and n. 5
(collecting sources). And Clark does not dispute those findings. Thus, it is extremely unlikely that a 3-
year-old child in L.P.'s position would intend his statements to be a substitute for trial testimony. On the
contrary, a young child in these circumstances would simply want the abuse to end, would want to protect
other victims, or would have no discernible purpose at all."
The Confrontation Clause applies to the states through the Fourteenth Amendment
of the United States Constitution. Based on the United States Supreme Court's opinion in
Clark, we find H.R.'s out-of-court statements did not implicate the Confrontation Clause.
See Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
The district court did not err in admitting the statements under the K.S.A. 60-
460(dd) hearsay exception.
Even if H.R.'s out-of-court statements meet the definition of hearsay, we find they
were properly admitted under K.S.A. 60-460(dd), which permits the admission of hearsay
statements during criminal proceedings when the out-of-court statement was made by a
child victim. Of relevance, the statute provides:
"Evidence of a statement which is made other than by a witness while testifying
at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and
inadmissible except:
....
"(dd) . . . In a criminal proceeding . . ., a statement made by a child, to prove the
crime . . . if:
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(1) The child is alleged to be a victim of the crime or offense . . .; and
(2) the trial judge finds, after a hearing on the matter, that the child is disqualified
or unavailable as a witness, the statement is apparently reliable and the child was not
induced to make the statement falsely by use of threats or promises." K.S.A. 60-460(dd).
Of these elements, Morris does not challenge H.R.'s age or status as a victim. And
he does not challenge whether H.R. was induced to falsely make the statement by use of
threats or promises. Morris' argument focuses on subsection (dd)(2), contending the
district court erred in finding H.R. was disqualified or unavailable as a witness and that
she provided a reliable hearsay statement.
The Kansas Legislature defines "'[u]navailable as a witness'" to include situations,
among others, where a witness is "disqualified from testifying to the matter." K.S.A. 60-
459(g). Relevant here, K.S.A. 60-417 provides two avenues for disqualifying a witness:
"A person is disqualified to be a witness if the judge finds that (a) the proposed
witness is incapable of expressing himself or herself concerning the matter so as to be
understood by the judge and jury either directly or through interpretation by one who can
understand him or her, or (b) the proposed witness is incapable of understanding the duty
of a witness to tell the truth."
See State v. Kuone, 243 Kan. 218, 224, 757 P.2d 289 (1988) ("Under K.S.A. 60-
459[g][2], a person may be unavailable as a witness where he or she has been disqualified
from testifying as incompetent under K.S.A. 60-417.").
As Morris points out, the Legislature's definition of "'[u]navailable as a witness'"
does not include a witness' age or inability to testify. See K.S.A. 60-459(g) (defining
"'[u]navailable as a witness'" to include five situations). But our Supreme Court has held
K.S.A. 60-459(g) provides an exemplary, rather than exclusive, list of situations where a
witness may be found unavailable. State v. Jefferson, 287 Kan. 28, Syl. ¶ 3, 38, 194 P.3d
17557 (2008) ("[T]he plain language of K.S.A. 60-459[g] permits situations other than
those listed to equal witness unavailability.").
Morris acknowledges this precedent but nevertheless argues the district court's
cited reasons for finding H.R. unavailable are not valid. Below, the district court directly
addressed subsection (dd)(2) and found:
"The second part under subsection (2) is after a hearing, whether the Court finds
the child is disqualified or unavailable as a witness. I believe the testimony elicited here
today with [H.R.], who is now five years old and was three years old at the time of her
statements about the alleged sexual abuse, I do not believe it's a question that [H.R.] is
not able today to understand the difference between right and wrong or truth or telling a
lie, the question being that she did not recall anyone named Rick, and in looking
throughout the courtroom during her testimony when [the prosecutor] asked if she
recognized anyone else in the courtroom, that she presumably saw Mr. Morris and passed
him and did not state that she recognized him.
"The fact of her age, both at the time of the alleged incident as well as her age
today, is a basis upon which to find that a child who did not remember the—as [defense
counsel] rightly points out, could not recall or restate the same information in the
Sunflower House interview 12 days after the initial disclosure, to expect now a five-year-
old for over 18 months, going on two years now, coming into court and asking her to
recall the same information, I will find that for these purposes, she is unavailable to
testify."
Morris argues the district court impermissibly relied on H.R.'s age to find she was
unavailable as a witness. As Morris argues, our Supreme Court has held "Kansas law
does not disqualify a witness simply because of age." State v. Thrasher, 233 Kan. 1016,
1018, 666 P.2d 722 (1983). The Thrasher court explained:
"Under K.S.A. 60-407, a witness, no matter how young, is presumed competent
to testify. The burden of establishing incompetency rests on the challenger. K.S.A. 60-
417, in turn, directs to the discretion of the trial court the disqualification of a witness for
18
any of the enumerated reasons. Thus, in order for a witness to be disqualified, the trial
court must be convinced the witness is incapable of expressing himself concerning the
matter so as to be understood by the judge and jury, or is incapable of understanding the
duty of a witness to tell the truth. [Citations omitted.]" 233 Kan. at 1018.
As noted above, our Supreme Court has since determined the enumerated
reasonings for disqualifying a witness under K.S.A. 60-417 is not an exhaustive list of
situations. Jefferson, 287 Kan. at 37-38. Thus, portions of this finding are not applicable.
Nevertheless, Morris argues the district court made an error of law when it relied
on H.R.'s age, rather than factors previously enumerated by our Supreme Court, to find
H.R. was an unavailable witness. The Kansas Supreme Court in Kuone delineated four
factors for courts to consider when determining unavailability to testify under K.S.A. 60-
460(dd). 243 Kan. 218, Syl. ¶ 2. In State v. Chisholm, 245 Kan. 145, 151-52, 777 P.2d
753 (1989), the Kansas Supreme Court summarized its holding in Kuone:
"We recognized the defendant's right of confrontation but determined that certain factors
could be used to determine whether a witness is 'unavailable,' under [K.S.A.] 60-
460(dd)'s exception to the hearsay rule, because of psychological trauma or disability.
The factors to be considered are: (1) the probability of psychological injury as a result of
testifying; (2) the degree of anticipated injury; (3) the expected duration of the injury; and
(4) whether the expected psychological injury is substantially greater than the reaction of
the average victim of a rape, kidnapping, or other violent act. Other factors may also be
relevant. We held there was sufficient evidence of 'unavailability' under these factors to
allow the statements. [Citation omitted.]"
Although Morris argues the district court failed to consider the factors mentioned
in Kuone, he simultaneously acknowledges that "other factors may also be relevant." See
243 Kan. 218, Syl. ¶ 2. Morris does not contend the district court was required to
consider the Kuone factors, and he does not explain why the Kuone factors would be
relevant here. As the State points out, the Kuone factors appear to be anticipatory—the
19
parties make a preemptive evaluation of the harm that could come to a child if the child
was forced to testify. It is impractical to suggest the district court should have considered
the "probability of psychological injury as a result of testifying" or "the degree of
anticipated injury" when H.R. had already testified. (Emphases added.) See Chisholm,
245 Kan. at 151.
Morris also presents a narrow view of the district court's findings by arguing it
solely relied on H.R.'s age to determine she was an unavailable witness. As stated above,
the district court found H.R.'s age was one factor to be considered. And given the facts of
this case, it was not unreasonable for the district court to consider H.R.'s age as a relevant
factor to unavailability. The district court also considered H.R.'s failure to repeat the
statement, as well as how much time had passed since she made the initial disclosure.
These factual considerations are supported by the record. Mother testified H.R. repeated
her statement about Morris the same night she made the initial disclosure, but H.R. has
not repeated it since. H.R. did not repeat the statement during the Sunflower House
interview, and she did not provide any testimony beyond identifying some friends and
family when she took the stand at trial.
Morris also argues the district court made an error of fact and law when it found
H.R. could not tell the difference between a truth and a lie because "it has been
longstanding law in this state that '[t]he witness' capacity to perceive or remember are for
the fact find[ers]—the jury—to consider in weighing the credibility of [the] testimony,
but they are not bases of exclusion.'" State v. Poulos, 196 Kan. 253, 264, 411 P.2d 694(1966). Upon reviewing H.R.'s testimony, Morris contends the district court's factual
finding regarding H.R.'s ability to tell the difference between a truth and a lie was not
supported by substantial competent evidence. See State v. Bilbrey, 317 Kan. 57, 63, 523
P.3d 1078 (2023) ("A judicial action constitutes an abuse of discretion if . . . it is based
on an error of fact, i.e., substantial competent evidence does not support a factual finding
on which a prerequisite conclusion of law or the exercise of discretion is based.").
20
Interestingly, both parties rely on the same quote by the district court to argue it
came to different conclusions. As noted above, the district court found:
"I believe the testimony elicited here today with [H.R.], who is now five years old and
was three years old at the time of her statements about the alleged sexual abuse, I do not
believe it's a question that [H.R.] is not able today to understand the difference between
right and wrong or truth or telling a lie."
Morris relies on this statement to argue the district court's finding that H.R. did not
know the difference between a truth and a lie was not supported by substantial competent
evidence. But the State relies on the same statement to contend that "Judge Ryan did, in
fact, find that [H.R.] knew the difference between a truth and a lie."
A review of the district court's findings does not provide definitive support for
either of the parties' interpretations of the district court's findings. The district court's
statement could be read as a double negative or read as the district court being certain that
H.R. did not know the difference between a truth or a lie. The statement also could be
read as the district court opining that it did not need to reach that question. It is not
possible to know based on the district court's phrasing. In any event, both parties appear
to make the same argument: that H.R. knew the difference between a truth and a lie and
therefore the district court could not disqualify her as a witness under K.S.A. 60-417(b).
Given neither party is arguing that H.R. was disqualified as a witness based on her
incapability of understanding her duty to tell the truth, it seems unnecessary for us to
make this determination on appeal.
Instead, the question becomes whether the district court made a legal or factual
error when it disqualified H.R. as a witness based on subsection (a), which disqualifies a
witness when the witness "is incapable of expressing himself or herself concerning the
21
matter so as to be understood by the judge and jury." K.S.A. 60-417(a). After careful
review, we find the district court's decision was proper.
The record shows H.R. was unable to express herself concerning the matter so as
to be understood by the judge and jury. While H.R.'s testimony showed she was capable
of expressing herself in some form—she did so when she stated her name, age, and the
names of her friends and family—she did not testify to anything concerning this criminal
action. As the district court found, H.R. did not recall anyone by Morris' name and did
not recognize Morris when prompted in the courtroom. And H.R. did not orally respond
to any of these questions—she simply shook her head. Thus, the record shows H.R. was
incapable of expressing herself concerning the criminal matter.
Morris' argument assumes the district court disqualified H.R. based on her
inability to tell the difference between a truth and a lie, but this view of the district court's
findings is too narrow. Morris' argument ignores the district court's legal authority—
which was supported by substantial competent evidence based on H.R.'s testimony—to
disqualify H.R. as a witness based on the child's inability to express herself on the matter.
As such, Morris has not shown the district court made a legal or factual error when it
disqualified H.R. as a witness under K.S.A. 60-417.
The district court did not err in admitting testimony concerning H.R.'s out-of-court
statements.
Our Supreme Court has delineated a nonexclusive list of factors for district courts
to consider when determining the reliability of a sexually abused child's statements:
"Though not an exclusive list, factors that properly relate to whether hearsay
statements made by a child witness in a child sexual abuse case are reliable include
spontaneity and consistent repetition, mental state of the declarant, use of terminology
unexpected of a child of similar age, and lack of motive to fabricate." State v. Bratt, 250
22
Kan. 264, Syl. ¶ 3, 824 P.2d 983 (1992), overruled on other grounds by State v. Davis,
283 Kan. 569, 158 P.3d 317 (2006).
See State v. Mercer, 33 Kan. App. 2d 308, 314, 101 P.3d 732 (2004) (delineating and
considering some Bratt factors), rev. denied 279 Kan. 1009 (2005).
Morris relies on an earlier case, State v. Myatt, 237 Kan. 17, 25, 697 P.2d 836(1985), where our Supreme Court found such determination should be made on a case-
by-case basis and considering similar factors:
"The determination of reliability and trustworthiness must be made on a case-by-
case basis. Such factors as the age of the child; his or her physical and mental condition;
the circumstances of the alleged event; the language used by the child; the presence of
corroborative physical evidence; the relationship of the accused to the child; the child's
family, school, and peer relationships; any motive to falsify or distort the event; and the
reliability of the testifying witness can be examined. Contrary to the defendant's
argument, the statute does not allow admission of the hearsay statements of a child victim
for the sole reason that the statement was made by a child. [Citations omitted.]"
Below, the district court addressed H.R.'s apparent reliability in a lengthy finding.
First, the district court recited the facts it believed relevant to the reliability of the
statement:
"The other two prongs of the three-prong issue under K.S.A. 60-460(dd)(2) is the
reliability, apparent reliability of the statement, and the child was not induced to make the
statement falsely by either threats or promises. I think the key there in the second prong is
that it doesn't merely state that the statement is reliable. Add the adverb to it of describing
what type of reliability, apparent reliability, and as the State argues here, the apparent
reliability of this was that, according to . . . her mother, that she was not at that time when
she was three in August of . . . '18, that she was not familiar with body parts. She could
point to them when asked, but she did not verbally state or understand or could identify
body parts, and that she knew her colors. And while [H.R.] was verbal at that age, she
23
had not ever had any indication that [she] knew about in particular here a penis. Also,
[Mother] testified that she had not heard any previous statements by [H.R.] of any type of
sexual nature. And then the incident itself, after coming out of the store and getting into
the car, [Mother] indicated that she had bought some candy in the store, and that totally
unsolicited and literally out of the blue that [H.R.]'s statement that '[Morris] said he'd give
me candy if I touched his toy,' and then the follow-up question to that by mother as far as
what she meant by that. "
The district court went on to apply these facts to the relevant factors to determine
H.R.'s statement was apparently reliable:
"The unique nature of a child with no previous history in three years of her life
having any statements that were made that were related to sex or sexual actions or parts
of the body, certainly not anything to do with a penis, tend to show that the statement
made by [H.R.] was apparently reliable. The fact that it was spontaneous and while not
repeated over and over, [H.R.]'s apparent connection would appear to be perhaps the
connection between the candy that was bought at the store with her mother and family
that made her recollect the basis of which she made her statement. Her mental state at
that time was in a family setting and certainly not from an inquiry by law enforcement or
medical personnel or any social worker; the fact that this terminology, even referencing
touching a toy, would not be in this context expected of a child that is three years old.
There is no indication of any reason why [H.R.] would make this story up as shown to
this point."
Morris argues the district court erred in making this finding "because there was
very little, outside the spontaneous nature of the statement, that would lend it to be
reliable." Instead, Morris believes the district court "appears to have fallen into a false
conviction that because a child made the statement it is inherently reliable, contrary to
Myatt's declaration otherwise." See Myatt, 237 Kan. at 25 ("[T]he statute does not allow
for admission of the hearsay statements of a child victim for the sole reason that the
statement was made by a child.").
24
Morris' argument is not persuasive because he has not shown the district court
made any sort of error. He attempts to argue the district court erred, distinguishing his
case from others that have permitted hearsay statements under K.S.A. 60-460(dd). Morris
contends the "'toy'" terminology used by H.R. "stands in stark contrast to the language
used in other cases." See Bratt, 250 Kan. at 266; State v. Clark, 11 Kan. App. 2d 586,
587-88, 730 P.2d 1104 (1986); State v. Wheeler, No. 117,687, 2019 WL 166645, at *1-2
(Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1070 (2019). And he opines that
"[o]nly by assuming that [H.R.] was describing a penis does the language in the statement
seem reliable."
Even though other cases may have used more explicit terms that did not require
assumption to find the language was sexual in nature, Morris' reference to these cases do
not show the district court made a factual error in finding H.R.'s statement was apparently
reliable. As the State argues, the district court's factual findings are supported by
substantial competent evidence to support its legal conclusion. And Morris' attempt to
distinguish the facts of his case are not persuasive under an abuse of discretion standard.
The district court found H.R.'s statement was spontaneous, used terminology
unexpected of a child that age, and was made in a family setting away from inquiry by
formal parties. Mother's testimony supports this finding. According to Mother, "[W]e
were in the car right after we got out of the store from getting her candy, and she just said
it." As noted, Mother testified H.R. "said that [Morris] said he would give her candy if
she touched his toy." And when Mother asked H.R. what Morris' toy looked like, H.R.
"said long and round." The prosecutor asked Mother if anything prompted H.R. to make
the statement, and Mother replied, "She had just got candy." Mother testified that prior to
this statement, H.R. had not made comments of a sexual nature about Morris, and she had
never described a penis as a toy.
25
The record shows the district court's factual findings are supported by substantial
competent evidence, which supports its legal conclusion that H.R.'s statement was
apparently reliable under K.S.A. 60-460(dd).
The district court had an adequate legal basis to find Mother's hearsay statement
was admissible. See Randle, 311 Kan. at 476. Thus, Morris has not shown the district
court made a legal or factual error in admitting Mother's hearsay testimony under K.S.A.
60-460(dd). And because Morris does not challenge the district court's decision as
unreasonable, we find the district court did not abuse its discretion in admitting Mother's
testimony about H.R.'s out-of-court statements. See Levy, 313 Kan. at 237.
Morris' argument for application of the corpus delicti rule
Morris additionally argues insufficient evidence requires a reversal of his
conviction under the corpus delicti rule. The State argues we should refuse to consider
Morris' claim for the application of the corpus delicti rule because Morris does not make
a claim based on harmlessness. Alternatively, the State argues the record shows the
corpus delicti rule was not violated and any error was harmless.
Our Supreme Court provided a detailed analysis of the corpus delicti rule in State
v. Dern, 303 Kan. 384, 399-411, 362 P.3d 566 (2015), where the defendant was also
convicted of aggravated indecent liberties of a child. Historically, the corpus delicti rule
was applied to prevent the conviction of someone solely based on an uncorroborated
confession. Courts have required some evidence, even if circumstantial, corroborating the
confession of a defendant. 303 Kan. at 401-02. In Kansas, the traditional rule of corpus
delicti may be bypassed by finding the confession to be trustworthy. 303 Kan. at 410.
26
In Dern, the Kansas Supreme Court found the evidentiary standard of review
applicable to sufficiency of the evidence claims also applied when determining if a
confession is trustworthy under the modern standard:
"The evidentiary standard for finding a confession or admission sufficiently
trustworthy to satisfy the State's obligation to present a prima facie showing of the corpus
delicti is akin to the standard of review applicable to sufficiency of the evidence claims—
i.e., it asks whether, viewed in the light most favorable to the prosecution, the totality of
the circumstances is such that a rational factfinder could, considering all of the evidence,
find beyond a reasonable doubt that the charged crime actually occurred. See [State v.
Cardwell, 90 Kan. 606, 608, 135 P. 597 (1913)] (applying a sufficiency of the evidence
standard). It must be noted that the State carries a higher burden when establishing the
corpus delicti through a trustworthy confession than it otherwise would if establishing the
corpus delicti through the traditional means of evidence entirely independent of the
defendant's statements. See, e.g., State v. Waddell, 255 Kan. 424, 433, 874 P.2d 651(1994) (When applying the formal corpus delicti rule, the State's burden is met if 'there is
some evidence which renders the corpus delicti more probable than it would be without
the evidence.') (quoting State v. Bradford, 254 Kan. 133, 139, 864 P.2d 680 [1993])."
Dern, 303 Kan. at 411.
The Dern court set forth a nonexclusive list of factors that could be considered in
determining the trustworthiness of a confession:
"A determination of the trustworthiness will depend on the totality of the
circumstances and may include a consideration of the following nonexclusive factors or
indicia of reliability: (1) independent corroboration of details or specific facts contained in
the confession; (2) the number of times the confession was made and the consistency or
lack thereof between different versions of the confession; (3) the circumstances of the
confession, including the identity of the person or persons to whom the confession was
made and the state of mind of the defendant at the time of the confession; (4) the
availability of the facts or details contained in the confession from sources outside the
defendant's personal knowledge; (5) the defendant's age, education, experience, and mental
health; and, (6) if the confession was made to law enforcement, then the overall fairness of
27
the exchange including whether there was deception, trickery, undue pressure or excessive
length." 303 Kan. at 410-11.
But the Dern court applied the trustworthiness rule to the defendant's case and
found the totality of the circumstances supported a finding that the defendant's statements
to police officers were sufficiently trustworthy to permit corpus delicti of the charged
crime to be shown through those statements. 303 Kan. at 411-12.
The State contends Morris fails to support his request to vacate his conviction
based on the corpus delicti rule with any pertinent authority. Nor does he show why his
request to vacate is sound despite a lack of supporting authority. See State v. Meggerson,
312 Kan. 238, 246, 474 P.3d 761 (2020) (failing to support a point with pertinent
authority or failure to show why a point is sound despite a lack of supporting authority or
in the face of contrary authority is like failing to brief the issue).
Generally, an erroneous admission or exclusion of evidence is subject to review
for harmlessness under K.S.A. 2023 Supp. 60-261. State v. Lowery, 308 Kan. 1183, 1235,
427 P.3d 865 (2018). Under K.S.A. 2023 Supp. 60-261, courts must disregard all errors
that do not affect a party's substantial rights:
"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."
Our Supreme Court considered a similar claim applying the harmless error
standard in State v. Noah, 284 Kan. 608, 162 P.3d 799 (2007). In Noah, the district court
preemptively disqualified the child victim as a witness and found the victim's hearsay
statements to her family were admissible under K.S.A. 60-460(dd). The Kansas Supreme
28
Court found the district court erred in admitting the victim's statements because it
violated the defendant's right to confrontation. 284 Kan. at 618-19. Notably, this was
before the guidance in Clark, 576 U.S. at 247-48, that statements by very young children
would not violate the federal Confrontation Clause. The Noah court concluded the
erroneous admission "was not harmless" because "we cannot conclude beyond a
reasonable doubt that the error had little effect on the result of the trial." 284 Kan. at 619.
Ultimately the Noah court disposed of the claim by reversing the defendant's convictions
and remanding the matter for a new trial. 284 Kan. at 619.
Morris does not submit a claim for relief under a harmlessness standard, and
instead, requests a disposition unsupported by, and contrary to, Kansas precedent. As
such, he does not present an argument for relief which the panel could grant. See
Meggerson, 312 Kan. at 246.
But even if Morris had submitted an argument under harmlessness, the State, as
the party benefiting from the error, has shown beyond a reasonable doubt that the error
would not or did not affect the outcome of the trial in light of the entire record. See
Williams, 306 Kan. at 202-03. As the State explains, the jury also heard H.R.'s statement
prior to Mother's testimony when Detective Hays repeated the statement during his
testimony and during his interview with Morris. At the start of his testimony, Detective
Hays stated he received a report that indicated "on August 17th . . . [Mother]'s daughter
had made a disclosure to her at Price Chopper. And this is [H.R.] had made the disclosure
that Rick had offered her candy to touch his toy." Detective Hays testified the report also
indicated "that the description of the toy from [H.R.] to her mother was that it was long
and round."
Then when the interview was published to the jury, the jury heard Detective Hays
inform Morris that he wanted to speak with him because "on August 17th . . . [H.R.] went
to the grocery store with her mom . . . and made the comment that . . . Rick asked her to
29
touch his toy in exchange for some candy." And the jurors heard Detective Hays tell
Morris that H.R. described the toy as "long and round." During the same interview, the
jury also heard Morris admit to telling H.R. his penis was his toy when H.R. asked what
it was. And they heard him admit to H.R. touching his bare penis, which he initially
stated only lasted a second, then later claimed it was less than one minute.
In addition, Morris himself testified to the statement when prompted by defense
counsel on direct examination. Defense counsel stated: "Let's talk about the words you
used. . . . Detective Hays mentions to you [H.R.]'s statement to her mother. Specifically,
he says to you, 'She made the comment that Rick asked her to touch his toy in exchange
for candy.'" Morris testified to remembering the conversation, denied knowing what H.R.
meant by her statement, and admitted to offering H.R. candy in exchange for her silence
about smoking cigarettes.
Thus, even without Mother's testimony regarding H.R.'s statement, the jury still
heard evidence that H.R. made the specific statement that Morris offered her candy in
exchange for touching his toy and that she described the toy as long and round. Any error
in admitting H.R.'s statement to Mother was harmless.
Alternatively, after careful review of the entire record and consideration of the
totality of the circumstances, we have no difficulty concluding that Morris' confessions
were supported by sufficient indicia of reliability to permit the charged crime to be shown
through his statements.
II. Did the prosecutor commit reversible error?
In his second issue on appeal, Morris contends the prosecutor committed
reversible error by misstating the law regarding the hearsay exception during the district
court's mid-trial hearing on the admissibility issue. The State argues the prosecutor did
30
not err in stating most of the law during the hearing but concedes the prosecutor did
misstate the burden of proof. Even so, the State argues the prosecutor's error was
harmless.
Morris specifically argues the prosecutor misstated the law with her "apparent
conflation of not available for cross-examination as used in K.S.A. 60-460(a) with
'unavailable as a witness' as that term is defined in K.S.A. 60-459 and used in K.S.A. 60-
460(dd)." And he argues the prosecutor's reliance on State v. Lomax & Williams, 227
Kan. 651, 655, 608 P.2d 959 (1980), and State v. Osby, 246 Kan. 621, 793 P.2d 243(1990), was misplaced because those cases analyze K.S.A. 60-460(a) and do not consider
the unavailability of a witness under K.S.A. 60-460(dd). Finally, Morris contends, and
the State concedes, the prosecutor misstated the burden of proving H.R.'s unavailability.
Preliminarily, Morris admits he did not object to the prosecutor's alleged errors
when she made them below, but he argues our Supreme Court "has not taken a position
as to whether any objection is required to preserve a claim of prosecutorial error in a
nonjury setting." Accordingly, Morris argues an objection is not required for us to
consider his claim.
As he argues, our Supreme Court opined on the existence of this issue in State v.
Wilson, 309 Kan. 67, 73, 431 P.3d 841 (2018), but it did not consider the issue because
the State did not raise the preservation claim in its petition for review:
"At the outset we must consider whether Wilson's prosecutorial error challenge is
preserved for our review. On appeal, the State pointed out Wilson did not object to the
alleged misstatements during the hearing, so it argued the issue was not properly
preserved. The panel rejected this contention because a contempora[neous] objection is
not required to claim prosecutorial error during closing argument before a jury, so it
reasoned that principle should extend to Wilson's sentencing proceeding before the judge.
[State v. Wilson, No. 114,567, 2016 WL 7324427, at *4 (Kan. App. 2016) (unpublished
31
opinion)]; see also State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011) (while a
contempora[neous] objection is required for review of an evidentiary prosecutorial error
claim, it is unnecessary to consider prosecutorial error during closing argument).
"In its petition for review, the State identified one issue for this court to take up:
Whether the prosecutor committed reversible error at the hearing on the State's motion to
correct illegal sentence? This advances only a merits based challenge to the prosecutorial
error question. As a result, we hold the State waived review of the panel majority's
conclusion on preservation. . . . We express no opinion whether a contemporaneous
objection or other posthearing remedial motion is required to appeal a prosecutorial error
claim arising from a nonjury setting."
The State does not argue against our ability to consider this claim on appeal,
despite Morris' lack of objection. Relying on this court's decision in Wilson, the State
agrees we can consider Morris' prosecutorial error claim for the first time on appeal.
As this court held in Wilson, other panels have addressed claims of prosecutorial
misconduct for statements made before a judge at preliminary hearings or sentencing.
Wilson, 2016 WL 7324427, at *4; see State v. Serrano-Garcia, No. 103,651, 2011 WL
4357804, at *3-4 (Kan. App. 2011) (unpublished opinion) (sentencing); State v. Roland,
No. 101,879, 2010 WL 1078454, at *1-3 (Kan. App. 2010) (unpublished opinion)
(sentencing); State v. Clelland, No. 93,001, 2005 WL 1805250, at *3-5 (Kan. App. 2005)
(unpublished opinion) (preliminary hearing).
In each of these cases, the panel considered whether the prosecutorial misconduct
standard that traditionally applies in jury trials should apply to nonjury settings.
Ultimately, the Wilson court held the traditional analysis should be applied to determine
whether the prosecutor erred by misstating facts during a hearing on the State's motion to
correct an illegal sentence. 2016 WL 7324427, at *4.
32
Morris has persuasively argued this court can consider his prosecutorial error
claim despite his lack of objection below.
Any prosecutorial error was harmless.
Appellate courts use a two-step process to evaluate claims of prosecutorial error:
error and prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).
"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of 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. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate '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.' [Citation omitted.]"
305 Kan. at 109.
See also State v. Fraire, 312 Kan. 786, 791-92, 481 P.3d 129 (2021).
The statutory harmlessness test also applies to prosecutorial error, but when
analyzing both constitutional and nonconstitutional error, appellate courts only need to
address the higher standard of constitutional error. Sherman, 305 Kan. at 109.
Morris makes two claims of prosecutorial error. First, he argues the prosecutor
misstated the law by conflating circumstances that would render a witness not available
for cross-examination, as used in K.S.A. 60-460(a), with circumstances that render a
child "disqualified or unavailable as a witness" under K.S.A. 60-460(dd). Morris believes
33
the prosecutor's reliance on Kansas precedent analyzing K.S.A. 60-460(a) was
inappropriate "[i]n confusing the concepts of unavailable as a witness and not available
for cross-examination, and then relying only upon that basis, the prosecution misstated
the law."
Morris' first claim of prosecutorial error is not persuasive. The prosecutor did not
misstate the law when she compared the subsections of K.S.A. 60-460. Instead, the
prosecutor analogized the terms as used in each subsection by comparing other
circumstances where witnesses are found unavailable. And certain cases included those
where an alleged unavailable witness made a previous statement. See Osby, 246 Kan.
632-33; Lomax & Williams, 227 Kan. at 658, 661-62. The prosecutor used analogous
Kansas precedent to support her argument for the introduction of the hearsay statement.
As the State persuasively points out, "This is, fundamentally, what attorneys do."
Second, Morris argues the prosecutor committed error when she misstated her
burden to prove H.R.'s unavailability as a witness. The State concedes this error. But
regardless of the State's concession on appeal, the transcript shows the prosecutor did not
necessarily misstate the burden.
At the hearing, the prosecutor appeared to argue Morris bore the burden of proving
H.R. should not be disqualified. If the prosecutor did make this argument, then it would
be a misstatement of the law. As the party seeking to introduce the statement of the
unavailable witness under K.S.A. 60-460(dd) at trial, the State had the burden to prove
the foundation of the addition of those hearsay statements. See State v. Johnson-Howell,
255 Kan. 928, 935, 881 P.2d 1288 (1994), abrogated on other grounds by State v.
Jefferson, 287 Kan. 28, 194 P.3d 557 (2008). As such, an improper burden comment by
the State would be outside of the wide latitude afforded to prosecutors. See Sherman, 305
Kan. at 109.
34
During the mid-trial hearing, the prosecutor seemed to fumble around the burden.
At first, she stated the burden was on Morris. But in the next sentence, she seems to
acknowledge the State's burden based on it being the party who sought to introduce the
hearsay statements:
"The burden is usually on—in this case it would be on the Defense, defendant;
however, the State has brought it up, Your Honor, so we're not interrupting testimony, we
can make a proffer, too, of evidence that would be elicited and do have a witness on the
stand who the statement was made to."
That said, the district court immediately replied with a statement seeming to
suggest that it believed Morris had some sort of burden:
"Don't we need to go into at least some information from what I understand
would be [Mother]'s testimony as to what [H.R.] told her to determine whether or not it
was reliable in any sense or it wasn't coerced in some way and then—
....
"—give the Defense a chance to cross-examine. I understand that part is
defendant's burden, but I think we've only touched on one of those three elements under
the statute as far as hearsay exception for allowing testimony as to what [H.R.] told other
people."
But despite making the vague statement about Morris' burden, the district court did
not act like it believed Morris carried any burden. Instead, it found the hearsay statements
had been previously introduced through the interview between Detective Hays and
Morris when Detective Hays told Morris about the statements made by H.R. and then
asked Morris if he was aware of the statements. The court simultaneously ordered the
State to make a proffer as to the reliability of H.R.'s statements and granted the State
permission to elicit testimony from Mother. And after Mother testified, the State made a
detailed argument and concluded, "I think the victim is unavailable as the Court has seen,
35
and we're asking for [the statement] to be admitted." In response, Morris' counsel made a
brief argument contending H.R.'s statement was not reliable.
A review of the transcript shows the parties seemed confused about who bore the
burden of proof—the words of the judge and the prosecutor would suggest that the
prosecutor misstated the burden. But the actions of the judge and the prosecutor show
both seemed to know the State bore the burden of showing H.R. was an unavailable
witness.
But regardless, even if the panel assumes the prosecutor erred, the State has shown
there is no reasonable possibility that the prosecutor's error contributed to the verdict. See
Sherman, 305 Kan. at 109.
The Kansas Supreme Court has held "[t]he trial court is presumed to know the
law." State v. Johnson, 258 Kan. 61, 65, 899 P.2d 1050 (1995). In Johnson, the defendant
was convicted at a bench trial, then argued the trial court erred by failing to consider
lesser included offenses. The Johnson court was not convinced: "Even if the evidence
had supported instructions on lesser included offenses in a jury trial, the trial court is
presumed to have followed such instructions in a bench trial." 258 Kan. at 65.
More recently, this court distinguished Johnson when it found a prosecutor's error
was not harmless in Wilson. 2016 WL 7324427, at *8. Like Morris, the defendant in
Wilson argued the prosecutor erred during a nonjury hearing. The panel cited the
presumption from Johnson but distinguished that rule from Wilson's claim because the
prosecutor's misstatement of facts misled the judge. The Wilson panel reasoned:
"We find no case applying that premise in circumstances comparable to this case—to vest
a district court with constructive knowledge that the crucial facts of an unreported
decision of the Court of Appeals are nothing like what the State represents them to be. A
36
district court can reasonably be misled by such conduct, just as a jury may be." 2016 WL
7324427, at *8.
The panel ultimately found the district court would have found differently if the
prosecutor had "compared the actual facts in Wilson's case to the actual facts in [the case
relied on by the State]." 2016 WL 7324427, at *9.
But as the State argues, the prosecutor's alleged errors here did not misstate the
facts. Instead, assuming Morris' argument is correct, the prosecutor made a misstatement
of the law by inaccurately stating the State's burden. But unlike Wilson, there is no
indication here that the district court was misled by the prosecutor's alleged erroneous
conduct. As noted, the parties acted as if the State carried the burden. If the prosecutor
and district court believed Morris carried any burden of proof under this issue, then
neither behaved accordingly—the district court focused the proceedings on the State's
arguments, proffers, and elicited testimony. Whereas Morris' defense counsel barely
participated in the admissibility proceedings. Defense counsel briefly objected "to any
hearsay," then asked Mother a single question on cross-examination. And defense
counsel's closing argument was minimal in comparison to the State's lengthy argument.
Given the actions of all parties, there is no reasonable possibility that the
prosecutor's error contributed to the verdict. See Sherman, 305 Kan. at 109. If the
prosecutor had correctly stated its burden, then the district court would have conducted
the hearing in the same manner and come to the same conclusion. We have already
concluded the district court did not err when it found H.R.'s statements admissible based
on her unavailability as a witness. As such, the prosecutor's alleged error in misstating the
burden was harmless because there is no reasonable possibility that the prosecutor's error
contributed to the verdict. See Sherman, 305 Kan. at 109.
37
As noted above, any error in admitting H.R.'s statement was harmless. Thus, even
if the prosecutor did err in presenting an argument on this issue, the error ultimately
would be harmless for the same reasons.
III. Does KORA violate Morris' rights?
For the first time on appeal, Morris argues the Kansas offender registration
scheme violates his rights under the First Amendment to the United States Constitution:
"Specifically, the registration process compels him to speak at the government's behest,
and K.S.A. 22-4907 denies him the ability to speak anonymously." He also claims KORA
violates his equal protection rights under the Fourteenth Amendment because it treats
some offenders differently than others.
The State argues we should refuse to consider Morris' challenges to KORA
because they are not preserved for appellate review. Alternatively, the State presents a
merits argument to both claims, arguing we should affirm KORA and Morris'
registration.
Preservation
Morris concedes he did not object to the district court's registration order when it
was imposed below. Generally, constitutional issues not raised before the district court
cannot be raised on appeal. State v. Valdez, 316 Kan. 1, 10, 512 P.3d 1125 (2022). But as
Morris argues, appellate courts recognize several exceptions to this general rule. See
State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020) (listing exceptions to general rule
that new legal theory may not be raised for first time on appeal). Morris argues two of
these exceptions apply here.
38
First, he contends his KORA challenge presents solely a legal question that
requires "no other factual development." See State v. Boettger, 310 Kan. 800, 803, 450
P.3d 805 (2019) ("Issues about the constitutionality of a statute present questions of law
over which this court has unlimited review."). Second, Morris argues this court should
consider his claim because it involves fundamental rights protected by the First
Amendment. See State v. Jones, 313 Kan. 917, 933, 492 P.3d 433 (2021) (recognizing
freedom of speech as fundamental right).
But the decision to review an unpreserved claim under any recognized exception is
a prudential one, and an appellate court has no duty to consider an unpreserved issue for
the first time on appeal. State v. Genson, 316 Kan. 130, 135-36, 513 P.3d 1192 (2022),
cert. denied 143 S. Ct. 1092 (2023); see also State v. Gray, 311 Kan. 164, 170, 459 P.3d
165 (2020) (declining to reach unpreserved claim and finding failure to present argument
to district court "deprived the trial judge of the opportunity to address the issue in the
context of this case and such an analysis would have benefitted our review").
Multiple panels of this court within the last two years have declined to review this
same constitutional claim for the first time on appeal. See State v. Spilman, 63 Kan. App.
2d 550, 575, 534 P.3d 583 (collecting cases), rev. denied 317 Kan. 850 (2023); State v.
McMillin, No. 125,589, 2023 WL 8520701, at *2-3 (Kan. App. 2023) (unpublished
opinion), petition for rev. filed January 8, 2024; State v. Harpe, No. 124,732, 2023 WL
5992237, at *8 (Kan. App. 2023) (unpublished opinion), rev. denied 318 Kan. ___(2024); State v. Miller, No. 125,213, 2023 WL 5811770, at *5 (Kan. App. 2023)
(unpublished opinion), petition for rev. filed October 10, 2023.
As to Morris' claim that his facial challenge would not require additional factual
development, panels have rejected this argument by finding review of a facial challenge
to KORA would require consideration of several unresolved factual questions:
39
"Identifying the compelling governmental interests KORA is meant to protect
and then determining whether it is sufficiently narrowly tailored to serve those interests
involves examining a host of issues best explored first at the district court level.
Analyzing the proportionality of KORA requires an in-depth balancing of its benefits and
costs, along with exploring potential alternatives to achieving those benefits and the
accompanying costs and anticipated effectiveness of those alternatives. It may even
involve evaluating KORA's effectiveness in protecting the compelling governmental
interests it is meant to serve, which could involve the presentation of evidence and
factfinding. And '[f]act-finding is simply not the role of appellate courts.' State v. Nelson,
291 Kan. 475, 488, 243 P.3d 343 (2010) (citing State v. Thomas, 288 Kan. 157, 161, 199
P.3d 1265 [2009])." State v. Pearson, No. 125,033, 2023 WL 2194306, at *1 (Kan. App.
2023) (unpublished opinion), rev. denied 318 Kan. ___ (2024).
In Spilman, the panel found that even if it assumed KORA registration constitutes
compelled speech under the First Amendment to the United States Constitution, the panel
would nevertheless be required to improperly develop facts outside of the appellate
record under the strict scrutiny standard:
"Even if we were to agree with Spilman that KORA registration constitutes
compelled speech within the meaning of the First Amendment to the United States
Constitution, the restrictions on Spilman's First Amendment rights are unconstitutional
only if those restrictions cannot survive strict scrutiny. See Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) ('Laws that
compel speakers to utter or distribute speech bearing a particular message are subject to
the same rigorous scrutiny' as laws that 'suppress, disadvantage, or impose differential
burdens upon speech because of its content.'); U.S.D. No. 503 v. McKinney, 236 Kan.
224, 235, 689 P.2d 860 (1984). Strict scrutiny requires the State to demonstrate a
compelling government interest justifying the restriction on the fundament[al] right in a
way that is narrowly tailored to achieve that interest. See Hodes & Nauser, MDs v.
Schmidt, 309 Kan. 610, 680, 440 P.3d 461 (2019). Those considerations require the
development of facts outside our appellate record. Thus, we decline from Spilman's
invitation to consider this issue for the first time on appeal." Spilman, 63 Kan. App. 2d at
575-76.
40
The Spilman panel refused to consider the defendant's claim under the Equal
Protection Clause for the same reason, finding his equal protection claim requires
additional fact-finding by invoking rational basis scrutiny:
"Under the rational basis test, similarly situated individuals may be treated differently
without violating equal protection so long as the classification used to distinguish them
bears a rational relationship to a legitimate governmental objective. '[A] classification
will survive a challenge based on equal protection "if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification."' Crawford v.
Kansas Dept. of Revenue, 46 Kan. App. 2d 464, 471, 263 P.3d 828 (2011) (quoting FCC
v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211[1993]). It is not sufficient to point to one set of facts in which the classification does not
advance the government interest. The party challenging the classification bears the
onerous burden of negating every reasonable basis that might support the classification.
Crawford, 46 Kan. App. 2d at 471-72." Spilman, 63 Kan. App. 2d at 576.
See also Harpe, 2023 WL 5992237, at *9 (refusing to consider KORA equal protection
claim); Miller, 2023 WL 5811770, at *6 (same).
The prior panels' reasoning is sound, and all the same is true here. Examination of
Morris' claims would require further factual development beyond the appellate record.
And given our Supreme Court has denied petitions for review on these claims, it would
seem the Kansas Supreme Court does not disagree with this court's discretion in refusing
to consider these claims for the first time on appeal.
Morris submits one argument regarding preservation that has been raised and
denied by the Kansas Supreme Court in a petition for review. He contends we should
consider his unpreserved constitutional challenge based on the United States Supreme
Court's decision in 303 Creative LLC v. Elenis, 600 U.S. 570, 143 S. Ct. 2298, 216 L. Ed.
2d 1131 (2023). In that case, a wedding website designer moved for an injunction to
41
prevent the state of Colorado from compelling her to create websites or design services
that were inconsistent with her religious beliefs. The district court declined the injunction
and entered summary judgment for the defendants. The United States Court of Appeals
for the Tenth Circuit affirmed the decision, but the United States Supreme Court
reversed, holding the First Amendment prohibits compelling a person "to speak [the
government's] message when he would prefer to remain silent or to force an individual to
include other ideas with his own speech that he would prefer not to include." 600 U.S. at
586.
Morris interprets 303 Creative to argue "the United States Supreme Court has
found the dangers inherent in compelled speech serious enough that it reached a
compelled speech challenge prospectively, even before any person had been compelled to
speak."
The defendant in McMillin made this same argument and has since filed a petition
for review. On appeal to this court, the panel was not persuaded 303 Creative was
applicable to reach McMillin's unpreserved claim because the procedural posture was
distinguishable from these appeals challenging KORA. First, the panel reasoned the
underlying issue in 303 Creative—standing to bring a declaratory, pre-enforcement action
to enjoin the State from compelling speech—was inapplicable to the KORA claim. 2023
WL 8520701, at *3. In fact, the McMillin panel reasoned that 303 Creative "serves as a
compelling reason not to reach the merits of McMillin's KORA challenge" because
unlike in these Kansas appeals challenging KORA, the parties in 303 Creative stipulated
to several facts that were necessary to address the constitutional arguments presented.
2023 WL 8520701, at *3; see 303 Creative, 600 U.S. at 582 (listing and applying
stipulations).
42
Second, the McMillin panel refused to consider the defendant's unpreserved claim
based on 303 Creative because the defendant did "nothing to explain how its holding may
apply here." 2023 WL 8520701, at *3.
We find the reasoning in McMillin to be sound. Morris does not explain how 303
Creative supports his argument, nor does he explain why his brief argument to this point
is sound in the face of the contrary authority. See Meggerson, 312 Kan. at 246 (failing to
support a point with pertinent authority or failure to show why a point is sound despite a
lack of supporting authority or in the face of contrary authority is like failing to brief the
issue). Morris simply suggests 303 Creative permits appellate review of prospective
challenges to compelled speech without providing any explanation as to why the holding
of that case would be applicable to the procedural posture and undeveloped factual
circumstances here.
For these reasons, we find the challenges to KORA should not be addressed for
the first time on appeal. See Spilman, 63 Kan. App. 2d at 576-77; McMillin, 2023 WL
8520701, at *3; Harpe, 2023 WL 5992237, at *8-9.
Affirmed.
43