1. An issue raised for the first time on appeal may be considered when consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights.
2. Ordinary rules of evidence do not violate the federal Constitution's Ex Post Facto Clause. Application of the 2009 amendment to K.S.A. 60-455 to trial of this case after the amendment's effective date does not violate the constitutional prohibition on ex post facto laws.
3. Under the plain language of K.S.A. 2009 Supp. 60-455(d), the legislature carved out an exception to the prohibition on admission of certain types of other crimes and civil wrongs evidence to prove propensity of a criminal defendant to commit the charged crime or crimes for sex crime prosecutions. As long as the evidence is of "another act or offense of sexual misconduct" and is relevant to propensity or "any matter, " it is admissible, as long as the district judge is satisfied that the probative value of the evidence outweighs its potential for undue prejudice.
4. When evidence of another act or offense of sexual misconduct is admitted under K.S.A. 2009 Supp. 60-455(d) in a sex crime prosecution, the district judge need not give a limiting jury instruction.
5. In this case, the district judge erred in admitting evidence of uncharged crimes committed by the defendant against two other victims for intent, absence of mistake or accident, and plan. However, because the applicable amended version of K.S.A. 60-455 applied, and because it would permit admission of the same evidence on retrial to demonstrate the defendant's propensity to commit the charged crimes, his convictions are not reversible. There has been no error affecting his substantial rights under K.S.A. 60-261.
Appeal from Reno District Court; Richard J. Rome, judge.
Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.
This appeal returns to this court after retrial.
In 2009, we reversed defendant John Prine's 2004 convictions for rape, aggravated criminal sodomy, and aggravated indecent liberties because the district judge had erred by admitting evidence of Prine's sexual abuse of two victims other than the one making the allegations underlying this case. State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009) ("Prine I"). The legislature responded to our decision by amending K.S.A. 60-455, see L. 2009, ch. 103, sec. 12. The district judge ostensibly applied the amended statute to admit the same evidence at Prine's retrial. Prine now challenges his new convictions and his sentence of 387 months' imprisonment. His primary argument is the same that entitled him to reversal in 2009; it does not carry the day this time around.
Factual and Procedural Background
Crimes and Investigation
J.C's babysitter fell through. J.C's then-fiancé (now husband), Anthony, had a best friend: defendant John Prine. J.C. contacted Prine, who agreed to act as a backup babysitter. She left Prine with her two babies and her 6-year-old stepdaughter, A.M.C. Anthony, A.M.C.'s father, picked her up after lunch and took her to kindergarten. J.C's mother, A.M.C.'s future grandmother, picked A.M.C. up from school to take her back home, where Prine was still babysitting. On the way home, A.M.C. told her grandmother that she did not want to go home because Prine had touched her. The grandmother relayed this information to J.C., who immediately came home. J.C. told Prine he was free to go, which he did after taking a shower. Then J.C. and Anthony took A.M.C. to the doctor for a medical examination. The examination revealed no injury, but J.C. and Anthony filed a police report, as the doctor suggested.
Detective John Taylor interviewed A.M.C. at the police station. The interview was videotaped. They talked about truth and lies, and about good and bad touching. A.M.C. told Taylor that "John" had given her "bad touches." She told Taylor that Prine had touched her on her "front"—which she identified with "where she went pee from"—with his fingers, his tongue, and his tummy. She demonstrated how he licked his two fingers and touched her front, and she described how he "would pull my front open and lick inside."
Taylor also interviewed Prine, who denied ever inappropriately touching A.M.C. Prine became annoyed and left the police station, but he returned later to make a report concerning illegal activity at a grocery warehouse where Anthony worked. Specifically, he reported that Anthony was stealing from the warehouse.
Several weeks later, Taylor interviewed Prine again. At this time, Prine offered information about unintentional conduct that might have formed the basis for A.M.C.'s allegations. One time, he said, A.M.C. had a swimsuit on and slid down his arm and the side of her swimsuit moved, exposing her vagina; on other occasions, Prine had roughhoused with A.M.C. and his hand might have slipped; and one time A.M.C. got peanut butter on her face, and Prine had licked his thumb and wiped it off. Prine also suggested that A.M.C.'s father might have been the one who molested her.
Between the time that A.M.C. made her initial allegations about Prine and the time that she was interviewed, J.C. called T.M. and informed her about A.M.C.'s accusations. T.M. was Prine's ex-wife and had two children with him. She and defendant had been involved in a bitter custody dispute. T.M.'s daughter, S.M., had previously made allegations that Prine molested her. Taylor interviewed S.M. The interview was recorded. At the time of her interview, S.M. was 9 years old. She stated that defendant—her father—had sex with her when she was little. When she was 4 or 5 years old, he would place her on top of his bare body and she would be naked from the waist down and she could feel his penis on her vagina.
Taylor also interviewed Prine's younger sister, J.S., who had previously reported being molested by defendant. At the time of her interview, J.S. was 27 years old. She indicated that, from the time she was about 4 years old until she was 10 or 11, defendant sexually abused her. He would lick two fingers and touch her vagina; touch his penis to her vagina; put his mouth and lips on her vagina; and/or wipe saliva on her vagina. She also described him forcing her to have oral sex with him by placing his penis in her mouth. She stated that two of her brothers had, at least on one occasion, witnessed this abuse. When J.S. was 15 years old, she filed a police report in her hometown in Montana, detailing Prine's sexual abuse of her.
First Trial and Appeal
After Prine was tried and convicted by a jury on the evidence described above, including the video of Taylor's interview of A.M.C., he appealed. He argued, among other things, that the district judge erred in admitting evidence of his prior sexual abuse of S.M. and J.S. A divided Court of Appeals panel affirmed the admission and his convictions. See State v. Prine, No. 93, 345, 2006 WL 3479017 (Kan. App. 2006) (unpublished opinion).
On the K.S.A. 60-455 evidence, the majority stated that, despite a general rule that evidence of prior crimes is inadmissible to show intent when it is obvious from the mere doing of the charged act, such evidence should be admissible when a defendant has created "an inference of innocent motive." 2006 WL 3479017, at *4. The majority also relied on its view that, "[d]espite some difference . . . the defendant's conduct [with A.M.C.] was sufficiently similar [to evidence of sexual activity with S.M. and J.S.] to demonstrate a plan or common approach." 2006 WL 3479017, at *5. It also held that, even though the probative value of Prine's intent was slight because of his general denial of the charged crimes, "the combined value of the prior bad acts evidence to prove intent, an absence of mistake or accident, and plan outweighed the potential prejudice to the defendant." 2006 WL 3479017, at *5.
Judge Richard D. Greene dissented on the issue. He would have held that the K.S.A. 60-455 evidence was not admissible to prove intent, absence of mistake or accident, or plan, and that the erroneous admission of the evidence to show propensity denied Prine a fair trial. Specifically, Judge Greene wrote that "there was no room for any inference of innocent conduct." 2006 WL 3479017, at *6 (Greene, J., dissenting). In his view, intent and absence of mistake or accident were not in issue, as Prine had not offered an innocent explanation for the charged conduct. Judge Greene also wrote that the allegations made by S.M. and J.S. were not sufficiently similar to those made by A.M.C. for the uncharged crimes to prove plan or modus operandi. 2006 WL 3479017, at *6.
On Prine's petition for review, this court reversed the convictions and remanded the case for retrial. In our opinion, we discussed the history of K.S.A. 60-455's inconsistent application to child sexual abuse cases. We concluded that, here, although potentially probative, the evidence of prior sexual abuse of S.M. and J.S. was not material because intent was not in issue; the acts alleged were obviously criminal and not innocent. We also concluded that the evidence was not relevant to prove absence of mistake or accident; defendant's pretrial interview hypotheses for how the allegations arose did not create a basis for the admission of the evidence because the theory of his trial defense was categorical denial. Furthermore, after reviewing the inconsistent application of a similarity standard for admission of other crimes and civil wrongs evidence to prove "plan, " we held that such evidence must be "so 'strikingly similar' in pattern or so distinct in method of operation as to be a 'signature.'" Prine I, 287 Kan. at 735 (quoting State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 ). Here, although S.M. and J.S. were the same gender as A.M.C. and were abused at approximately the same age, and although some of the activities defendant engaged in with each victim bore some likeness, the behaviors were not so unusual or identical as to constitute a signature. Having held that none of the bases for admission under K.S.A. 60-455 were sound, we addressed harmlessness of the error. Ultimately, we concluded that, because the State's entire case hinged on A.M.C.'s credibility, the error required reversal of Prine's convictions. Prine I, 287 Kan. at 739-40.
In Prine I, we also noted that "evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus, convictions of such crimes are especially vulnerable to successful attack on appeal." However, the "modern psychology of pedophilia" suggests that propensity evidence may possess probative value for juries, because "sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness." We suggested that the legislature could "examine the advisability of amend[ing] K.S.A. 60-455." Prine I, 287 Kan. at 737.
K.S.A. 60-455 Amendment
Amend the legislature did, just 3 months after our decision was issued. K.S.A. 2009 Supp. 60-455 became effective April 30, 2009. L. 2009, ch. 103, sec. 12. The amended statute's subsection (a) contains the original prohibition on admission of other crimes or wrongs evidence. Its subsection (b) contains the earlier version's non-exhaustive list of material facts that other crimes and civil wrongs evidence is admissible to prove. The new subsection (c) states that, in any criminal action other than certain listed sexual-offense prosecutions, such evidence is admissible "to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes when the method of committing the prior acts is so similar to that utilized in the current case before the court that it is reasonable to conclude the same individual committed both acts." K.S.A. 2009 Supp. 60-455(c). K.S.A. 2009 Supp. 60-455(d) reads in pertinent part:
"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative."
The statute requires the State to disclose such evidence and its intent to introduce it at least 10 days before trial, K.S.A. 2009 Supp. 60-455(e), and instructs that the statute "shall not be construed to limit the admission . . . of evidence under any other rule or to limit the admissibility" of other crimes or civil wrongs evidence in actions other than sexual offense criminal actions. K.S.A. 2009 Supp. 60-455(f). Subsection (g) lists the included acts or offense(s) of sexual misconduct ...