1. It is improper for prosecutors to offer juries their personal opinions on the credibility of witnesses. The prosecutor's statement in this case that she thought the jury should believe a victim witness was error. In context, the prosecutor's two other statements did not amount to improper expressions of the prosecutor's personal opinion on the witnesses' credibility, and the single identified error was not reversible.
2. An elements instruction should not be broader than the language in the charging document. The elements instruction given in this case was erroneous because it was overbroad, but the error did not prejudice the defense and was not reversible.
3. To assess whether a trial error occurred, an appellate court applies the statutory law on evidence as it was at the time; thus the version of K.S.A. 60-455 that preexisted amendment to the statute in 2009 controls in this case. The Court of Appeals interpretation and application of the amended statute was error and has no force or effect as precedent.
4. Preservation through contemporaneous objection under K.S.A. 60-404 is a prudential rather than jurisdictional bar to appellate review. In this case, the State's stipulation to preservation is accepted.
5. Under the version of K.S.A. 60-455 in effect at the time of trial of this case, the district judge erred in admitting evidence of uncharged sexual abuse of the victims by the defendant for inclination, which is synonymous with propensity. However, the error was not reversible.
6. The K.S.A. 60-455 limiting instruction given by the district judge in this case was not erroneous for failure to define motive, intent, plan, lack of mistake or accident, inclination, or method.
7. The evidence in this case was sufficient to support the defendant's convictions on two counts of indecent liberties with a child.
8. Although this court identifies three errors in the trial of this case, each was relatively minor and they do not collectively require reversal under the cumulative error doctrine.
9. Neither the record of the sentencing in this case nor this court's precedent supports the defendant's challenge to his sentences under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Review of the judgment of the Court of Appeals in 44 Kan.App.2d 986, 242 P.3d 1230 (2010). Appeal from Elk District Court; John E. Sanders, judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Kendra M. Oakes, legal intern, of office of attorney general, was with him on the brief for appellee.
Defendant Randy Dean Hart was convicted by a jury of two counts of indecent liberties with a child. This case arises on petitions for review from both parties after the Court of Appeals affirmed Hart's convictions and sentences, in State v. Hart, 44 Kan.App.2d 986, 242 P.3d 1230 (2010).
Hart raised eight issues in his brief to the Court of Appeals, including a challenge to the district judge's admission of prior bad acts evidence under the 2008 version of K.S.A. 60-455. Although the panel concluded that Hart's K.S.A. 60-455 challenge was not preserved for appeal, it further addressed it, concluding in dicta that a 2009 amendment to K.S.A. 60-455 should be applied retroactively and would have doomed Hart's challenge. On the way to that outcome, the Court of Appeals rejected the State's argument that K.S.A. 2009 Supp. 60-455(d) created an exception to Kansas' traditional prohibition of propensity evidence.
We first conclude that the State's petition for review on the correct interpretation of K.S.A. 2009 Supp. 60-455(d) was improvidently granted. The State has no quarrel with the Court of Appeals panel's ultimate decision in its favor, that is, the panel's affirmance of Hart's convictions and sentences. Only a party that is "aggrieved by a decision of the Court of Appeals" is eligible to file a petition for review. Rule 8.03(a) (2012 Kan. Ct. R. Annot. 72). The State does not qualify merely because it would have preferred a different rationale to support its victory.
On Hart's petition for review issues, we conclude that neither the prosecutor's single instance of misconduct nor the district judge's overbroad elements instruction require reversal; that any error in the justification for admission of evidence under the 2009 version of K.S.A. 60-455 was harmless; that the limiting instruction given on K.S.A. 60-455 evidence was not clearly erroneous; and that the evidence was sufficient to support Hart's two convictions. We also reject Hart's cumulative error argument for reversal and his challenge to his sentences.
Factual and Procedural Background
For many years, Hart was married to Stacy, now Stacy Taylor. Hart has a daughter, C.H., and three sons from a previous relationship. He and Stacy together have a daughter, K.H. In addition, Stacy and her mother, Belinda Brown, have always taken care of Stacy's cousin, N.B. N.B has muscular dystrophy and is confined to a wheelchair.
In May 2008, Hart was charged with two counts of aggravated indecent liberties with a child in violation K.S.A. 21-3504(a)(2)(A), a severity level 4 felony. Count I alleged that, between January 1, 2006, and July 1, 2006, Hart fondled or touched the breasts of C.H., then age 15, while she was in the shower. Count 2 alleged that, between May 2005 and September 2005, Hart fondled or touched the breasts of N.B, then age 14.
Before Hart's trial, the State moved to admit prior crimes evidence. Specifically, the State sought to admit testimony explaining how the charged allegations came to the attention of law enforcement and testimony concerning many other occasions when Hart improperly touched the victims or had them touch each other. Defendant opposed admission of any evidence other than the victims' testimony about the fondling charged.
The district judge ruled that evidence concerning defendant's prior uncharged conduct with C.H. and N.B. was relevant to establish lack of mistake or accident, motive, plan, method, "inclination, " or "system of operation, " and that its probative value was not outweighed by any prejudicial effect. He denied the State's motion in part, however, ruling that certain evidence relating to then 4-year-old K.H. was "significantly different" and would be "too inflammatory."
At Hart's October 2008 trial, Perry Russell of the Elk County Sheriff's Department testified that he was contacted by another department regarding allegations of sexual assault against C.H. and N.B. The girls were taken to Sunlight Child Advocacy Center in El Dorado, Kansas, where Nicole Stump, a child advocate, interviewed them. The girls then went to a Wichita hospital for a physical examination, the results of which were inconclusive.
C.H., who was 18 at the time of trial, testified on its first day that she had begun living with her father when she was about 5 years old and had continued to live with him until May 2008. For most of that time, Hart was married to Stacy. The family moved around quite a bit. C.H. testified about at least five different towns in which she and her father had lived, along with Stacy and various siblings. When C.H. began to have difficulty talking about her May 2008 disclosure of her father's sexual abuse, a break was taken in her testimony.
N.B., who was 17 at the time of trial, testified that she lived with Hart and C.H. from the time she was about 4 until she was about 10, and again for a year or so a bit later. She had since lived with her aunt, Brown. N.B. said she talked with police in May 2008 because she "didn't want this happening" to the "younger girls" in her family. N.B. described how, beginning when she was about 7 years old, Hart would come into her room at night and touch her between her legs. When she "was older . . . [and] started getting boobs, " he started touching her breasts as well. She described a specific incident that occurred when she was 14 years old, which her aunt had witnessed. N.B. had just changed after going swimming; she was not yet in a wheelchair but needed help walking. Hart responded to her call for assistance but, rather than help her walk, defendant got behind her and "grabbed [her] boobs." N.B. testified that Brown was not the only one who knew about the inappropriate touching. C.H. also knew "because it was happening to her too." N.B. said that sometimes it was just her, C.H., and Hart present; the two girls shared a bed; and Hart would come in and touch them.
C.H. then returned to the witness stand and attempted to complete her testimony. In response to the prosecutor's leading questions, which the court allowed over defense counsel's objection, C.H. said that Hart had touched her breasts; that she talked to Stump about the experience; and, specifically, that she had told Stump about an incident that occurred in the shower. C.H. was unable to continue with her testimony, and the district judge adjourned court for the day.
On the second day of Hart's trial, C.H. again returned to the stand and testified about an incident that occurred when she was in "sixth or seventh grade, " age "13 or 14." She was in the shower, and Hart came into the bathroom, opened the shower curtain, reached in, and touched her breast. She testified that this touching had been happening ...