BY THE COURT
considering the legal basis for a district judge's
admission of evidence, the review is de novo.
Hearsay is evidence of a statement which is made other than
by a witness while testifying at a hearing, offered to prove
the truth of the matter stated and is generally inadmissible.
jury instruction issues, the progression of analysis and
corresponding standards of review on appeal are: (1) First,
the appellate court should consider the reviewability of the
issue from both jurisdiction and preservation viewpoints,
exercising an unlimited standard of review; (2) next, the
court should use an unlimited review to determine whether the
instruction was legally appropriate; (3) then, the court
should determine whether there was sufficient evidence,
viewed in the light most favorable to the defendant or the
requesting party, that would have supported the instruction;
and (4) finally, if the district court erred, the appellate
court must determine whether the error was harmless,
utilizing the test and degree of certainty set forth in
State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011),
cert. denied 565 U.S. 1221 (2012).
admitting prior crime evidence under K.S.A. 2015 Supp.
60-455, the district court first determines whether the fact
to be proven by the evidence is material, then considers
whether the evidence is relevant to a disputed fact, and,
finally, decides whether the probative value of the evidence
outweighs the potential for undue prejudice.
appellate court reviews a district court's decision that
the probative value of evidence outweighed the potential for
undue prejudice for an abuse of discretion.
district court abuses its discretion when: (1) no reasonable
person would take the view adopted by the judge; (2) a ruling
is based on an error of law; or (3) substantial competent
evidence does not support a finding of fact on which the
exercise of discretion is based.
Prior crime evidence that is material and relevant to a
disputed fact is admissible only if its probative value
outweighs the potential for undue prejudice.
risk of undue prejudice turns not on whether the evidence is
damaging but on whether the evidence is likely to contribute
to an improper jury verdict or distract from the central
issues at trial.
When prior misconduct involves the same victims and the
conduct at issue was of the same character as that underlying
the charged crimes, the misconduct is unlikely to contribute
to an improper jury verdict, as long as the jury is properly
When an instructional error is raised for the first time on
appeal, this court reviews whether the instruction was
clearly erroneous. To establish a clearly erroneous
instruction error, the defendant must firmly convince the
court the jury would have reached a different result without
Because prior crime evidence is generally not admissible to
show the defendant's propensity to commit the charged
crime, when it is admitted, the trial judge must provide a
limiting instruction to ensure that the jury does not
consider it as propensity evidence.
Under K.S.A. 2015 Supp. 60-455(d), evidence of prior sexual
misconduct is admissible to be considered for any matter to
which it is relevant and probative, including propensity,
when the defendant is charged with a sex crime. Because the
evidence is admissible for any purpose, no limiting
instruction is required regarding prior sexual misconduct
when the defendant is charged with a sex crime.
from Sedgwick District Court; Joseph Bribiesca, judge.
Michelle A. Davis, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
A. Isherwood, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
Perez takes this direct appeal from his convictions for
first-degree premeditated murder; sexual exploitation of a
child; eight counts of rape; seven counts of aggravated
criminal sodomy; three counts of aggravated assault; and
eight counts of making false information. On appeal, Perez
raises four arguments for why his convictions cannot stand:
(1) the district court erred by admitting inadmissible
hearsay testimony; (2) the district court erred by failing to
instruct the jury on assisting suicide as a lesser included
offense of first-degree premeditated murder; (3) the district
court erred by admitting prior crime evidence that was more
prejudicial than it was probative; (4) the district court
provided clearly erroneous limiting instructions in regard to
the prior crime evidence; and (5) the cumulative effect of
these errors deprived him of a fair trial. Finding no
reversible error on the part of the trial court, we affirm.
and Procedural Background
discussion of the facts, we will refer to the witnesses and
victims by first name because many of them share surnames or
changed surnames after marriage. Sometime before the
mid-1990s, Perez was living in Texas. There, he met a woman
named Patricia Gomez (Trish) and the two began a sexual
relationship. Trish later married and took the surname
but sometime before April 1996, Perez met another woman named
Marilynn. Perez let Marilynn, her son, and her 14-year old
daughter, Michelle, stay with him for a few weeks while
Marilynn readied her family to move to Amarillo. Michelle
testified that during that time and again after she had moved
away from Perez, Perez forced her to have sex with him on
several different occasions. Marilynn testified that Texas
filed charges against Perez for the alleged rape but that the
case was dismissed because Perez had been found dead in
Mexico. Perez testified that he had in fact pled guilty to
these charges in exchange for probation but on his way to
sentencing he was abducted by four uniformed men who beat him
and left him for dead in either Texas or Mexico. Detective
Ron Goodwyn, the lead detective on Perez' case, confirmed
at trial that Perez had been convicted on these charges but
testified that the convictions had been dismissed because
Perez was believed to be dead.
testified that Trish found him where the uniformed men had
left him for dead and took him to people who cared for his
injuries. Perez testified that he went to Corpus Christi,
Texas, after he healed from his injuries.
the summer of 1996, Perez was in North Dakota. There, he met
15-year-old K.L. Perez was about 46 years old at the time but
led K.L. to believe he was much younger. The two developed a
romantic and sexual relationship. Perez convinced K.L. that
he had powers that allowed him to make it rain; to see
someone's past, present, and future; and to receive
information from "the other side."
and Perez testified that after 3 months of their
relationship, law enforcement authorities picked Perez up at
K.L.'s house, took him away in handcuffs, and deported
him to Mexico. It is not clear this is actually what happened
because Perez testified that he is a United States citizen.
Nonetheless, Perez did not return to North Dakota after he
was apprehended at K.L.'s house. K.L. stayed in contact
with Perez over the next year by phone but was not sure where
in 1996 or 1997, Perez was living in an apartment complex in
Corpus Christi, Texas, and going by the name "Lou
Castro." During this time, Perez met a woman named Mona
Griffith who was living in the same complex with her
daughter, Lindsey, and her son, Cody. Eventually, Mona, her
family, Perez, and Trish moved into an apartment in a
different complex. After a few months, Mona, Lindsey, Perez,
and Trish all moved to Wichita, Kansas. Cody stayed behind
with his father.
the group relocated to Wichita, K.L. reunited with Perez.
K.L. quickly became jealous of Perez' affectionate
relationship with Lindsey, who was then 14 years old. After 2
weeks in Wichita, K.L. returned to North Dakota to finish
school. While K.L. was away, the group moved to South Dakota.
In South Dakota, Trish met Brian Hughes and the two began
dating. At some point, Mona became engaged to a man named
in South Dakota, Perez, Trish, and Mona went to an insurance
office where Mona purchased a policy on her life in the
amount of $750, 000 and named Lindsey as the beneficiary and
Trish as Lindsey's caregiver.
the life insurance policy was purchased, a plane that Mona,
Jim, and Lindsey had been on went missing. Perez and Trish
tried to procure the death benefit from Mona's life
insurance policy, but, because Mona's body had not been
recovered, the insurance agency would not pay the benefit.
Perez and Trish visited the insurance agency multiple times
while the search for the plane was underway. Eventually, when
the remnants of the plane were recovered and death
certificates were issued for Mona, Lindsey, and Jim, the
insurance agency paid Trish the death benefit.
the summer of 2001, Trish, Brian, their new baby, Nicole;
Perez; and K.L. moved to Lee's Summit, Missouri. A real
estate agent named Jennifer Hutson helped the group find a
house, which the group purchased in K.L.'s name. After 3
months, the group sold the house and moved back to Wichita,
where they settled in some townhomes while they awaited more
permanent arrangements. Jennifer, who had become friends with
Perez, moved with the group to Wichita. She took her two
daughters with her-E.H., age 10, and S.H., age 17. Over time,
the group built three houses for themselves next door to each
other in Sedgwick County, Kansas. The group was living in
these homes by spring 2002 and referred to them collectively
as "Angel's Landing."
the conduct for which Perez was convicted occurred while the
group was living at Angel's Landing. We describe this
aggravated criminal sodomy, and aggravated assault of E.H.
and S.H.; aggravated assault of K.L.; and sexual exploitation
began sexually abusing E.H. and S.H. almost as soon as they
joined the group in 2001. The girls testified that between
2001 and when Perez went to jail in the spring of 2010, Perez
forced them to have sex with him "hundreds of
times." Both girls testified that they believed Perez
was "special" and had certain powers. Perez had
told them that he was hundreds of years old and was often
inhabited by one of three different angels-Arthur, Daniel,
and the angel of death named Amber-and that the angels needed
sex from young girls to survive. The State focused on a few
specific instances of this forced sex, described here.
the group moved to Angel's Landing, E.H. moved into the
master bedroom with Perez. She was 10 years old at the time.
Perez told E.H. that she needed to share his bed because he
was a "seer" who needed a "pure"
person-meaning a young, female virgin-to take care of him, or
he would die. A few weeks after E.H. began staying with
Perez, in January of 2002, Perez began forcing E.H. to have
oral, vaginal, and anal sex with him.
instance occurred in 2007. Early one morning, around 2 a.m.,
S.H. awoke E.H. and told her to get dressed and go outside to
the shop because Perez was angry. K.L. and Perez were in the
shop when the girls arrived. Perez grabbed E.H. and S.H. by
the throats and told them he could kill them if he wanted to.
Perez ordered the three girls to undress and began waiving a
gun around. Perez used the gun to shoot at a computer tower
in the shop. After he fired the shots, Perez ordered the
girls to go to the master bedroom of one of the houses. In
the bedroom, Perez ordered E.H. and S.H. to the bed and K.L.
to the corner. Perez then inserted his beer bottle into
S.H.'s and E.H.'s vaginas and then made K.L. drink
from the bottle. Perez then made K.L. leave the room so he
could "feed." Perez then forced S.H. and E.H. to
perform oral sex on each other and on him and to engage in
vaginal and anal sex with him.
different time in 2007, Perez called another meeting with
S.H., E.H., and K.L. During this meeting, Perez told the
girls that Jennifer was going to die and so K.L. needed to
step up. Perez told K.L. that if she did not step up, she
would be the one to die. After this discussion, Perez forced
E.H. and S.H. to have oral, vaginal, and anal sex with him.
also testified regarding a time when Perez became violent and
raped her after E.H. tried to prevent the rape. S.H.
testified about a time when Perez forced her to have oral and
vaginal sex with him under a threat that he would kill her
father if she did not comply.
after August 2006, a woman named Sherri Cox began visiting
Angel's Landing with her daughter, C.C. On one of these
occasions, when C.C. was approximately 8 years old, Perez
directed C.C. to sit provocatively in her swimsuit while he
took photos of her. Perez also directed S.H. to plant a video
camera in the bathroom to secretly record C.C. while she
changed from her clothes to a swimsuit.
was also convicted of making false information in connection
with applications for life insurance and car loans. When the
group moved to Wichita, Trish took out a $1 million insurance
policy on her life that included an accidental death rider.
She named Brian, by then her husband, as the beneficiary, and
K.L. as the co-beneficiary. Brian, K.L., Jennifer, and a
woman who joined the group in 2004, Megan Harbert, also took
out insurance policies on their own lives. Perez was present
each time one of the members took out a policy and directed
who would take out the policy, what the amount would be, and