Review of the judgment of the Court of Appeals in an unpublished opinion filed September 30, 2011.
Appeal from Jefferson District Court; GARY L. NAFZIGER, judge.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed and case is remanded.
BY THE COURT
In this case, the State's failure to adequately develop the record prevents this court from entertaining its argument on appeal.
Michael R. Serra, deputy county attorney, argued the cause, Caleb Stegall, county attorney, Joshua A. Ney, assistant county attorney, and Steve Six, attorney general, were with him on the briefs for appellant.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, argued the cause and was on the brief for appellee.
ROSEN, J., concurring. MORITZ, J., dissenting.
After the State charged James L. Simpson with aggravated indecent liberties with a child and aggravated child endangerment, Simpson requested a psychiatric evaluation of the complaining child witness. Although the district court ordered the evaluation, the child's mother refused to give the necessary consent, so Simpson filed a motion in limine seeking to suppress the child's testimony and statements. The district court granted Simpson's motion, and the State filed an interlocutory appeal. After analyzing potential legal justifications for suppression and concluding none supported the district court's ruling, the Court of Appeals panel reversed the district court's suppression order. State v. Simpson, 260 P.3d 1248, 2011 WL 4563106 (Kan. App. 2011) (unpublished opinion). We granted Simpson's petition for review.
Because we conclude the State's narrow argument to the Court of Appeals fails, we reverse the Court of Appeals' decision, affirm the district court's ruling, and remand for further proceedings.
[299 Kan. 991] Factual Background
Our resolution of this case requires only a brief factual recitation. The State charged
43-year-old James Simpson with aggravated indecent liberties with a child and child endangerment after 13-year-old K.S. told law enforcement Simpson touched her chest and vagina with his hand. Law enforcement also was given a note from K.S. to Simpson wherein K.S. wrote: " I'm mad at you but I stell Love you can stell do it with me" and " ps I (drawn heart) U baby boy."
Following a preliminary hearing at which K.S. testified, Simpson filed a motion seeking a psychiatric evaluation of K.S. Citing State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), Simpson argued the State's case hinged on K.S.'s credibility and because K.S. had " conveyed several extremely divergent accounts" of the contacts between her and Simpson, a psychiatric evaluation was appropriate. Simpson also suggested that K.S. suffered from a " mental disease or defect" based on K.S.'s intelligence quotient (IQ), which was in the .1 percentile for her age group. Finally, Simpson contended K.S. had a motive to lie " based upon her sister's conduct in a pending Douglas County case against her father."
The State urged the district court to reject Simpson's request for a Gregg evaluation, asserting K.S.'s low IQ demonstrated neither an inability to tell the truth nor a " mental instability." The State also argued that K.S. had consistently described Simpson's conduct and that an eyewitness corroborated Simpson's inappropriate conduct with K.S.
Ultimately, the district court granted Simpson's motion and ordered K.S. to submit to a psychiatric evaluation. In support, the court cited K.S.'s age and low cognitive abilities.
Approximately 1 month later, the parties informed the district court that G.I.S., K.S.'s mother, refused to consent to K.S.'s evaluation, believing it was not in K.S.'s best interest. Protracted proceedings followed, during which the district court considered but declined to decide whether it could order G.I.S. to consent to K.S.'s evaluation. At one point, the court warned the State that if G.I.S. maintained her refusal to consent, the court would suppress [299 Kan. 992] K.S.'s testimony and any discussion of ...