BY THE COURT
of a peremptory strike to remove venire members solely
because of their race or ethnicity violates the Equal
Protection Clause of the United States Constitution.
Batson analysis is composed of three steps: (1) the
defendant must make a prima facie showing that a peremptory
challenge has been exercised based on race or ethnicity; (2)
if the defendant makes this showing, the State must offer a
race-neutral reason for striking the minority venire member
in question; and (3) in light of the defendant's and the
State's submissions, the trial court must determine
whether the defendant has shown that the State's stated
reason is pretextual.
illegitimate grounds like race or ethnicity are in issue, the
State must stand or fall on the initial reason or reasons it
provided to the trial court for striking a minority venire
court is required to limit its inquiry to the reason
originally offered by the State during voir dire for its
peremptory strike of a minority venire member. Thus, if the
State later attempts to offer a substitute reason or another
reason for striking the minority venire member, the trial
court is barred from considering the substitute reason or
another reason for striking the minority venire member.
K.S.A. 2015 Supp. 60-455(d), evidence of alleged prior sexual
misconduct is admissible to show the defendant's
propensity to commit the crime charged. The probative value
of alleged prior sexual misconduct evidence is admissible so
long as it outweighs the prejudicial value of the alleged
prior sexual misconduct evidence. Probativity is often
determined by comparing the circumstances surrounding the
alleged prior sexual misconduct to the crime charged.
prior sexual misconduct evidence is inadmissible to establish
absence of mistake unless the defendant has actually argued
that he or she committed the crime charged by mistake.
reviewing sufficiency of the evidence, appellate courts will
uphold a defendant's conviction if a rational factfinder
could have found the defendant guilty beyond a reasonable
doubt. Appellate courts must view all the evidence in the
light most favorable to the State, and appellate courts must
not reweigh the evidence or the credibility of witnesses.
from Lyon District Court; Merlin G. Wheeler, judge. Reversed
and remanded with directions.
Christopher S. O'Hara, of O'Hara & O'Hara,
LLC, of Wichita, for appellant.
L. Miser, assistant county attorney, Marc Goodman, county
attorney, and Derek Schmidt, attorney general, for appellee.
Malone, C.J., Green and Leben, JJ.
a jury trial, Jose Alberto Gonzalez-Sandoval was convicted of
aggravated indecent liberties with a child. On direct appeal,
Gonzalez-Sandoval argues that he is entitled to reversal of
his conviction and a new trial for the following reasons: (1)
the trial court erred when ruling on his Batson
challenge; (2) the trial court erred when denying his motion
for new trial based on newly discovered evidence; (3) the
trial court erred when it allowed the victim to testify about
his alleged prior sexual misconduct with her; and (4) the
State's evidence was insufficient to support his
conviction. Of these four issues, we find the first issue to
be meritorious. We therefore reverse Gonzalez-Sandoval's
conviction, vacate his sentence, and remand the case for a
10-year-old female, and J.G., a 9-year-old male, were
friends. Sometimes J.G. would invite D.H. to go swimming at
the local public pool. Gonzalez-Sandoval, who was J.G.'s
41-year-old father, would then drive D.H. and J.G. to the
the pool, D.H., J.G., and Gonzalez-Sandoval would play a game
called "sharks." This game consisted of one person
pretending to be a shark. The shark's goal was to catch
the other people by grabbing them for several seconds. When
Gonzalez-Sandoval was the shark, he would typically grab D.H.
and J.G around the chest, hold them for several seconds, and
then release them. The person who was caught by the shark
became the new shark, and the game started over again.
Sunday, May 4, 2014, D.H. played shark with J.G. and
Gonzalez-Sandoval. Jordan Sosa was the lifeguard on duty that
day. D.H., J.G., and Gonzalez-Sandoval were the only people
in the pool. After they finished swimming, Gonzalez-Sandoval
took D.H. home as usual.
7, 2014, while at school, D.H.'s friend, a female
student, told D.H about problems that she had been
experiencing at home. The friend told D.H. that she could not
"hang out" with her father anymore because he was
doing inappropriate things of a sexual nature with her. D.H.
came home from school and told C.H., her father, about what
her friend had been experiencing. C.H. then asked D.H. if
anything like what had happened to her friend had ever
happened to her. D.H. responded, "Well, kinda
[sic]." C.H. asked D.H. what she meant. D.H.
told her father that Gonzalez-Sandoval had placed his hand
down her swim-shorts and touched her "private
parts" while playing sharks that past Sunday.
contacted D.H.'s mother, M.H. He told her that she needed
to speak with D.H. C.H. and M.H. had been divorced about a
year and a half at that time. C.H. also contacted Carla
Fessler, who was D.H.'s school counselor. Fessler then
contacted the Department for Children and Families (DCF) and
the police. D.H.'s case was assigned to Detective David
Holmes. Detective Holmes setup an interview for D.H. at the
Child Advocacy Center (CAC). Kayla Delgado, a DCF special
investigator, interviewed D.H. at the CAC. Again, D.H.
alleged that Gonzalez-Sandoval put his hand down her
swim-shorts while playing sharks.
D.H.'s interview with Delgado, Detective Holmes
interviewed Gonzalez-Sandoval at the police station.
Gonzalez-Sandoval voluntarily came to the police station.
During the interview, Gonzalez-Sandoval adamantly denied that
he did anything inappropriate with D.H. while playing sharks.
State charged Gonzalez-Sandoval with one count of aggravated
indecent liberties with a child, an off-grid person felony in
violation of K.S.A. 2015 Supp. 21-5506(b)(3)(A).
Gonzalez-Sandoval's preliminary hearing, C.H., D.H., and
Detective Holmes testified on behalf of the State. During
D.H.'s testimony, D.H. testified that when she swims,
including the last time she went swimming with J.G. and
Gonzalez-Sandoval, she wears underwear, swim-shorts, and a
long t-shirt. D.H. testified that her long t-shirt goes over
her shorts. D.H. further testified that when
Gonzalez-Sandoval put his hand down her swim-shorts, he also
put his hand under her underwear and "inside the
line" of her "private parts."
did not present any evidence at his preliminary hearing. The
trial court bound Gonzalez-Sandoval over on the one count of
aggravated indecent liberties with D.H.
the preliminary hearing, the State moved to admit evidence of
Gonzalez-Sandoval's prior sexual misconduct under K.S.A.
2015 Supp. 60-455(d). During D.H.'s interview with
Delgado, D.H. had stated that Gonzalez-Sandoval put his hand
down her swim-shorts on two or three other occasions while
playing shark at the pool. The State wanted D.H. to be able
to testify about the alleged earlier incidences of
inappropriate touching. The State argued that this evidence
should be admitted to establish Gonzalez-Sandoval's
propensity to commit sex crimes against D.H. The State
further argued that because Gonzalez-Sandoval mentioned
during his police interview that if he ever touched
D.H.'s genitals, it was an accident, the evidence should
also be admitted to establish absence of mistake.
trial court held a hearing on the State's motion. At the
hearing, the State reiterated the arguments within its
written motion. Gonzalez-Sandoval countered that the trial
court should not allow this statement into evidence because
it was very prejudicial, not probative, and highly disputed.
Gonzalez-Sandoval emphasized that D.H.'s statements about
the alleged prior inappropriate contacts were very vague.
trial court decided to allow D.H. to testify about the
alleged prior sexual misconduct. The trial court concluded
that although the statement was prejudicial and highly
disputed, the evidence was relevant as to
Gonzalez-Sandoval's propensity to commit the crime and
absence of mistake.
jury trial was held on May 18 and 19, 2015. Laura Miser and
Amy Aranda represented the State. Vernon Buck represented
jury selection began, there were three potential Hispanic
jurors: T.R., K.M.S., and V., a venire member known only by
her last name, which began with the letter V. V. was
immediately dismissed for cause because she asserted that she
had been a victim of a sex crime and could not be fair and
impartial. Miser, who conducted voir dire, had limited
interaction with venire members T.R. and K.M.S. When Miser
asked T.R. whether people can remember events that are
significant more clearly than normal with the passage of
time, T.R. responded, "Yes." Moreover, when Miser
asked the venire members whether anyone swam in swim-shorts
and a t-shirt as opposed to a typical swimsuit, T.R.
responded that she swims in a t-shirt and K.M.S. responded
that she swims in swim-shorts and a t-shirt. At another
point, T.R. tried to answer a question about working with
children in an official capacity, but the trial court told
her she could not answer that question given that Miser had
directed the question to other venire members. The preceding
is the extent of Miser's interaction with T.R. and K.M.S.
Neither T.R. nor K.M.S. responded to Buck's questions.
Miser asked if any of the venire members had "been a
witness, such as . . . questioned during an investigation or
you had to appear in court as a witness on a sex crime
case?" Nobody responded to this question. Then, Miser
asked, "Has anybody been a witness, just in any kind of
case where you had to answer questions to a law enforcement
officer?" T.R. did not respond to this question.
jury selection, Miser used a peremptory challenge against
venire member T.R. Citing Batson v. Kentucky, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Buck requested
that Miser provide explanation why she was using a challenge
against T.R. The trial court asked Miser for her response.
Then, the following exchanged occurred:
"MS. MISER: Yes, Your Honor. As far as Juror [T.R.],
Your Honor, the State put questions to the jury about whether
they had been a witness in a case or whether they had been
questioned by the police involved in any way. [T.R.] was a
witness in Arzate, an endorsed-we believe she was an endorsed
witness in the Arzate case and had questions asked of her. We
also have her in an investigation about her son where she was
questioned some in her-her son-in-law, I'm sorry Judge,
about the use of her own personal cell phone. And so we have
knowledge of her, but she did not respond to our questions in
regards to whether she'd been questioned before or a
potential witness, either answering questions of law
enforcement. Also, she avoided a lot of eye contact, Your
Honor. Noticing that she was looking away a lot of times,
especially in questions that I felt perhaps should have
elicited a response, and both of the times that she was a
witness-or questioned about being involved in allegations.
"THE COURT: Mr. Buck, any comments?
"MR. BUCK: Well, I don't think that looking away is
a good enough reason to strike someone of the same culture or
ethnic heritage of the defendant. I don't know what the
Arzate case is or what that involves, but it doesn't
sound like she's done anything except maybe not being as
cooperative as the State had hoped in an investigation. It
has nothing to do with this. I don't think it qualifies
as legitimate reasons for the Batson decision.
"THE COURT: Let me note for the record that it
would-that based upon the surnames that [T.R.] does appear to
be of the same ethnicity as the defendant. The State's
principal challenge here to this individual that I would
consider to be a racially-neutral challenge would be
information-that it had information as to this individual
that she did not disclose in response to direct questions and
should have disclosed. That was one of those questions being
whether she had been questioned or involved with prior
investigations or other investigations. I'm not sure
that, standing alone, the question of whether a potential
juror avoids eye contact would be a basis-a racially-neutral
basis, but the indication that the witness was not being
truthful in her response, in my opinion, or at least candid
in her response would, in my opinion, be a racially-neutral
response. And so, I'll therefore allow the peremptory
challenge over the defense's objection."
additionally used a peremptory challenge against venire
member K.M.S. Again, Buck lodged a Batson challenge.
Then, the following exchange occurred:
"MS. MISER: Judge, in seeing [K.M.S.] today, it seemed
that maybe that would just be a surname. It does not appear
that she is of a Hispanic culture. I'm not sure.
"THE COURT: I cannot tell. K.M.S. [has] a hyphenated
surname. I cannot tell just from observation what her
ethnicity would be, but I think I'll just error on the
side of caution and ask the State to express a
racially-neutral reason for her selection.
"MS. MISER: May I have a moment to review her
"THE COURT: You may.
"(Thereupon, an off-the-record discussion was had, after
which the following proceedings were had:)
"MS. MISER: Your Honor, the-I understand the Court's
ruling, but the State would reassert again that there's
no-from [K.M.S.'s] appearance here today, other than a
hyphenated name, no indication that she would be of Hispanic
nature; however, with the Court's ruling, what the State
would submit is that this has been a bit of a long discourse
this morning with potential jurors, watched their reactions,
and while [K.M.S.] was on the-she was here on the front row
of the gallery where I could clearly see her, at some point
in time-although, I-she remained alert and attentive for the
most part, it seems sometimes she may-just based upon my
watching and responses to the questions, she didn't
respond very much to any of the questions. Now, I understand
she may not have any answers, but also the fact that it just
sometimes didn't seem that she was engaged in the process
as some of the other potential jurors.
"THE COURT: Mr. Buck, you want to make an argument here?
"MR. BUCK: Well, it seems too subjective for striking
someone. I don't know what her ethnic background is. The
name '[S.]' at least that portion of the surname
indicates Hispanic nature of some sort. I think it's just
very subjective and doesn't really qualify as a
"THE COURT: I'm going to disallow the peremptory
challenge at this point in time. I simply don't think
that not engaging in responses is appropriate since we
don't know or have any indication to indicate that she
would have had any responses. So, the State may exercise a
peremptory challenge on another juror."
lodged no other Batson challenges. The 12-person
jury was selected. Then, the court held a recess for lunch.
After this recess, the following exchange occurred out of the
presence of the jury:
"THE COURT: Let the record reflect that we're
reconvening out of the presence of the jury panel this
morning-this afternoon, I guess it is now. Ms. Miser, I
understand that you have something that you'd like to
take up out of the presence of the jury?
"MS. MISER: Yes, Your Honor. I need to make sure I
clarify for the Court in regards to the juror-Prospective
Juror [T.R.]. The State had indicated to the Court that we
had two cases where she had been involved as a witness and
had been questioned regarding those. If the Court would
recall, the State moved to strike her based upon-and provided
that reason for striking her based upon her non-response to
certain questions regarding being a witness.
"Ms. Aranda had double-checked those cases and it was
actually indicated in one case, which would have been the
Arzate case, that it was a different [T.R.]. Our notes that
we had from the investigator had the wrong [T.R.]. However,
her involvement in the second case that we indicated to the
Court, regarding her son-in-law being questioned about the
phone, that was the correct information that we provided to
the Court. She still had been involved as a witness, had to
answer questions, but did not respond to the State when I had
asked about anyone's involvement as a witness or anyone
being questioned by the police. So, we wanted to make sure we
brought that to the Court's attention.
"THE COURT: Mr. Buck, I take it your objection would
remain the same?
"MR. BUCK: Well, Your Honor, I didn't realize the
State's questions extends simply to a police officer
stopping someone on the street and asking questions about it.
I thought it was more of an informal setting than what was
"THE COURT: I understand. My ruling will remain the
Gonzalez-Sandoval's jury trial began. On the second day
of trial, however, the State brought up T.R. again, which
resulted in the following exchange between Aranda, Buck, and
the trial court:
"MS. ARANDA: Judge, I just had one thing that I wanted
to bring up with the Court and I know that yesterday during
the voir dire and peremptory challenges, Mr. Buck lodged a
Batson challenge to one of the jurors that we I
believe it was Juror [T.R.] was her name. I had a hand in
giving Mrs. Miser some information that she advised the Court
was incorrect, and I just wanted to be candid with the Court
and let he Court know that I did go back downstairs and check
to make sure. I did also talk with Ms. Miser and she advised
me that she advised the Court that the notes that we had from
investigations regarding Juror [T.R.] were incorrect as
listing her as a witness in the Arzate case.
"Ms. Miser indicated that she advised the Court after
the lunch recess that the second case involving the cell
phone, that that was correct; however, I had not been up
there yet to advise her that that was probably her sister and
not Juror [T.R.] that was on the cell phone, so I wanted to
be candid with the Court and counsel, let everybody know that
we were mistaken about her on that case as well. However, we
did-I did see reference in our Spillman Police System to her
being named a witness in that system in a 2011 investigation
of several auto-I believe they were auto burglaries.
They're listed in there as non-force, non-residential
burglaries, which leads me to believe that they were auto
burglaries, and then there was a connected sex offense case.
She was also listed as a victim on a criminal damage to
property case in that system. So, just so that counsel and
the Court is aware of that information. I don't want
anybody misled and I wanted to be candid that we had some
misinformation when we lodged or attempted to lodge our
race-neutral grounds for the Batson challenge.
"THE COURT: So, if I understand what you're telling
me is, the two instances that you gave me as being the
"MS. ARANDA: Correct.
"THE COURT: -did not turn out to be true, but in the
investigation, you found at least one and possibly two other
instances that she should have disclosed in response to a
"MS. ARANDA: I believe so, correct.
"THE COURT: Okay. All right. Mr. Buck, I assume you want
to keep your challenge in place under-even under these
"MR. BUCK: Yes, Your Honor. We keep getting farther and
farther away from the reasons that she was challenged in the
first place. Now, we go back to 2011. How far back do we go,
simply that, we don't know the substance of and who's
to say that this is something that she should have disclosed.
I would like a continuing objection to it.
"THE COURT: All right. I think the question was broad
enough that it would have required a response to something
occurring in 2011. I don't think that's so far back
that a witness would have completely forgotten about-or a
juror would have forgotten about involvement or being
identified in that respect; therefore, I'll continue the
same ruling, but note and appreciate the candor of counsel. I
think counsel honestly believed what they represented to the
Court, it just turned out to be incorrect."
Jury Trial-The State's Case
trial, the State presented testimony from the following
people: C.H., M.H., Fessler, Delgado, Sosa, Detective Holmes,
testified that when he and M.H. were married, they used to be
neighbors with Gonzalez-Sandoval, which is how D.H. and J.G.
became friends. In regards to the event in question, C.H.
explained that D.H. had a good friend from school who could
no longer see her father anymore because he was saying and
doing inappropriate things. According to C.H., on May 7,
2014, when he picked D.H. up from school, D.H. brought up the
problems her friend was having with her father. C.H. was
unsure exactly what the father had done to D.H.'s friend.
testified that after D.H. told him about her friend's
problems, he asked her "[h]ad that ever happened to
her?" C.H. testified that D.H. responded, "Well,
kinda [sic]." C.H. testified that when he asked
D.H. what that meant, D.H. responded that Gonzalez-Sandoval
had put his hand down her swim-shorts and touched her
"private zone" while they were playing sharks at
the pool. C.H. testified that when he asked D.H. how long
Gonzalez-Sandoval had his hand in her swim-shorts, she told
him 3 minutes. C.H. further testified that after D.H. told
him this, he took her to a local restaurant for ice cream to
see if he could learn more information.
testified that he did not want to press the issue too hard
because he believed that D.H. may be more comfortable talking
to her mother since she was female. C.H. explained that he
immediately called M.H. and told her what D.H. had told him.
He encouraged M.H. "to spend time together [with D.H.]
in case there were details about what [D.H.] told [him] . . .
she wasn't comfortable telling [him]." C.H. also
explained that he called Fessler the next day, told her what
had happened, and she reported D.H.'s allegations to the
testified that D.H. and J.G. went swimming together many
times for about 2 1/2 years. M.H. testified that D.H. never
told her that she did not want to go swimming with J.G.
anymore. M.H. testified that she remembered D.H. going
swimming with J.G. and Gonzalez-Sandoval on May 4, 2014. She
testified that she believed D.H. came home a little later
than normal, but D.H. was otherwise acting normally. M.H.
further testified that she had no idea anything was wrong
until she received a phone call from C.H. the evening of May
7, 2014. M.H. explained that after she got home from work
later that day, she went over to C.H.'s place to pick