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State v. Ballou

Supreme Court of Kansas

September 6, 2019

State of Kansas, Appellee,
v.
Terry R. Ballou Sr., Appellant.

         SYLLABUS BY THE COURT

         1. A prosecutor's actions or statements fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial when the prosecutor presents an argument to the jury that misstates the law or argues a fact or factual inference with no evidentiary foundation.

         2. Prosecutorial error is harmless if the State can show beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.

         3. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge.

         4. Expert testimony is not necessarily required as a foundation for introducing a child witness' interview into evidence, and an interviewer need not apply a specific formula or follow a specific protocol when interviewing a child witness.

         5. Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct such inadequacies, and, without any objection, an appellate court will not consider omissions in findings.

         6. An appellate court will usually not consider a pretrial objection to have been timely interposed because an in limine ruling is subject to change when the case unfolds. This rule acknowledges that different, more, or less evidence may come in at trial than was admitted or proffered at a pretrial hearing. Or a district court judge may simply see the issue in a different light after hearing additional arguments and evidence. A timely interposed objection, as required by the plain language of K.S.A. 60-404, is one that gives the district court the opportunity to make the ruling contemporaneous with an attempt to introduce evidence at trial.

         7. Determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness requires a district court to consider six relevant factors: (1) whether there was corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.

         8. An appellate court reviews a district court's application of the factors for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness and its ultimate decision to grant or deny a motion for a psychological evaluation of a witness for an abuse of discretion. An abuse of discretion occurs if: (1) no reasonable person would take the view adopted by the district court; (2) the decision is based on an error of law; or (3) the decision is based on an error of fact. The party asserting the district court abused its discretion has the burden to show such an abuse of discretion.

         9. A single, nonreversible error does not establish reversible cumulative error.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 18, 2017.

          Appeal from Miami District Court; Amy L. Harth, judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Elizabeth H. Sweeney-Reeder, county attorney, argued the cause, and Julia Leth-Perez, assistant county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          Luckert, J.

A jury convicted Terry R. Ballou Sr. of one count of rape and one count of aggravated indecent liberties with a child. Ballou appealed, asserting five errors: (1) The prosecutor erred when, in his closing argument, he expanded the time frame in which the crime allegedly occurred; (2) the district court erred in admitting into evidence a video of an interview of the child victim without ensuring compliance with K.S.A. 2018 Supp. 60-456(b) or conducting a taint hearing to determine its reliability; (3) the district court erred by admitting evidence of alleged prior sexual misconduct by Ballou; (4) the district court erred in not ordering a psychological evaluation of the child victim; and (5) the cumulative effect of all errors warrants reversing his convictions. The Court of Appeals rejected Ballou's arguments and affirmed his convictions and sentence. State v. Ballou, No. 116, 252, 2017 WL 3575610, at *1 (Kan. App. 2017) (unpublished opinion). On review of that decision, we determine no reversible error occurred, and we affirm Ballou's convictions. But we raise sua sponte the issue of whether the district court erred in sentencing Ballou to postrelease supervision and we vacate that portion of the sentence.

         Facts and Procedural Background

         Ballou's convictions of one count of rape and one count of aggravated indecent liberties with a child resulted from acts involving his then-six-year-old daughter. The State originally alleged Ballou committed these crimes on or about April 13, 2014. On or about that date, Ballou's long-time, live-in girlfriend, Virginia Norris, left the house to run a few errands. She returned much sooner than expected to find Ballou rubbing his erect penis on his daughter's vagina and anus while the daughter was face down on a chair in the living room with her pants pulled down.

         Norris reported what she saw to her mother and her adult daughter, but she did not report the incident to law enforcement authorities. Sometime later, Norris' adult daughter reported the incident to the Kansas Department for Children and Families (DCF). After receiving the report, the DCF began an investigation. Jennifer Stockard, a child protection specialist, contacted Norris about the allegations, but Norris denied knowing anything about the incident.

         Stockard and a sheriff's detective contacted Ballou's daughter while she was at her babysitter's house. Based on what the child said, they decided to take her into protective custody and transport her to Safe Harbor, an interview room in the basement of the Miami County courthouse. Stockard had some familiarity with the child because, two years earlier, Stockard had interviewed her while investigating whether her brother had abused her.

         After Stockard and the detective decided to take the child to Safe Harbor to continue their 2014 investigation, they contacted Norris. She came to the courthouse and gave them details about an occasion when she came home earlier than expected and found Ballou touching his daughter with his penis. Stockard then interviewed the child. Stockard recorded the interview, which was later introduced at trial over Ballou's objection. In the interview, the child revealed Ballou had penetrated her vagina and anus with his penis before Norris came home and found them. The child also said Ballou had committed the same or similar acts on multiple prior occasions.

         Based on the child's allegations, Ballou was arrested and charged with and tried by a jury on the charges of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. During the trial, the State introduced evidence of the child's reports of other uncharged sex crimes or instances of sexual misconduct. The State offered this evidence under K.S.A. 2018 Supp. 60-455(d) to show Ballou's propensity to commit these acts. Ballou had filed a written pretrial objection to the admission of the evidence, which the district court overruled. He did not renew his objection at trial.

         Although the jury convicted Ballou of rape and aggravated indecent liberties with a child, it acquitted him of aggravated criminal sodomy. The district court sentenced him to a life sentence without the possibility of parole for 25 years on each count. The court ordered consecutive sentences, for a total controlling sentence of lifetime imprisonment without parole for 50 years. The district court also imposed lifetime postrelease supervision for each charge.

         Ballou timely appealed his convictions and sentence. The Court of Appeals assumed one error-that the prosecutor committed error by expanding the time frame in which the State alleged the crime occurred. But the panel held the assumed error was harmless. It rejected all other claims of error. See Ballou, 2017 WL 3575610. We granted Ballou's petition for review and the State's cross-petition seeking review of the panel's decision to assume the prosecutor erred by expanding the time frame for the alleged crimes. Additional facts are set forth as necessary below.

         Analysis Issue

         1: Harmless prosecutorial error occurred.

         Ballou argues prosecutorial error occurred because the State, during its closing argument, expanded the time frame in which it alleged the crime occurred. In the State's initial complaint and two later amended complaints, the State alleged Ballou committed the charged offenses "on or about the 13th day of April, 2014." In opening statements, the State told the jury the "story that you're going to hear begins on April 13th, 2014." Later in the trial, the State called Norris as a witness and she testified the crime occurred on April 13, 2014. But the States broadened the alleged time frame when, during its closing argument, the prosecutor discussed the evidence about when the crime occurred and told the jury "on or about" could encompass a four-and-one-half-month period:

"The act occurred on or about, very important words, 'or about' the 13th day of April 2014. There's been some confusion about the exact time that this happened, exact date that this happened. There's been some argument about that. [Norris] said, well-at first, she said I thought it might have been Easter, week before that, or week after that, maybe Mother's Day, but she narrowed it down to what she thinks was April 13th. Okay. So that's the evidence we have regarding that.
"And it's important that is says 'on or about.' Why does it say 'on or about'? Well, sometimes you don't know exactly when a crime occurred. You go on vacation for four weeks. You come home. Your house is burglarized. You can't say the day. You can't say it actually happened on this time. Sometimes you can, you know, if the neighbor saw the guy coming in and out and wrote it down, but a lot of times you can't. So it's not required that you find that this happened exactly on April 13th. You certainly can. And I believe the evidence presented is sufficient for that, but you just need to find that it occurred about that time. Mr. Ballou testified that, I think, the four of them, [Ballou, his daughter, his son, and Norris] had lived alone together in the house for about four and a half months before that, so we know it occurred in that time frame."

         Ballou objected to the State's comments and the district court overruled his objection.

         On appeal, Ballou asserts the prosecutor erred by misstating the law defining the phrase "on or about." For support he cites State v. Murr, No. 98, 231, 2009 WL 596514 (Kan. App. 2009) (unpublished opinion). Considering Ballou's argument, the Court of Appeals panel concluded "the holding and facts from Murr are analogous and persuasive. Thus, for the sake of argument, we will assume, for the present purpose only, that the prosecutor's statements were a misstatement of the law and therefore amounted to error." Ballou, 2017 WL 3575610, at *7. But the panel concluded the assumed error was harmless and did not require it to reverse Ballou's conviction. 2017 WL 3575610, at *8.

         The State filed a conditional cross-petition asking this court to hold that the prosecutor's comments were not a misstatement of law and no error occurred.

         In considering a claim of prosecutorial error, we follow a two-step analysis. We first determine whether an error occurred. Second, if an error has been found, we evaluate the prejudice it caused to determine whether it was harmless. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step, error occurs if the appellate court determines the prosecutor's actions or statements "fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation. See State v. Wilson, 309 Kan. 67, 78, 431 P.3d 841 (2018); State v. Hilt, 307 Kan. 112, 124, 406 P.3d 905 (2017).

         1.1 The prosecutor erred.

         Ballou mainly argues the prosecutor's expansive interpretation of "on or about" amounted to a misstatement of the law. The Court of Appeals panel assumed the validity of this argument and moved to the second step of evaluating the effect of the assumed error. Ballou, 2017 WL 3575610, at *7. The State asks us to hold that the statement was not outside the wide latitude permitted the prosecutor. It, like Ballou, focuses on the legal meaning of the phrase "on or about." We do not reach these legal arguments, however, because they depend on a fallacious assumption that the argument, whether it misstates the law or not, fits the facts. But no evidence suggests the charged crimes occurred during a significant portion of the four-and-a-half months Ballou and his family lived in the house prior to April 13, 2014. Thus, there is no factual support for the prosecutor's argument.

         To the extent there was any discrepancy in the time frame alleged, it related to the possibility the crimes occurred after April 13, 2014. Ballou's cross-examination of Norris revealed some uncertainty about the date of the incident. In Norris' earlier statements to the investigators she expressed confusion about when the crimes occurred. She offered Memorial Day (May 26, 2014), Mother's Day (May 11, 2014), or Easter (April 20, 2014) as approximate times. On redirect, Norris testified she later determined the date because she knew she had quit her job the day after Ballou committed the crimes and she had verified the date by going through her paystubs to determine the date she quit. The State admitted into evidence documents supporting the dates of her employment.

         Yet no evidence suggested the incident charged in the complaint occurred before April 13, 2014. In fact, before the State's closing argument neither allegations, arguments, nor evidence showed the crimes occurred before April 13, 2014. The prosecutor thus made an argument outside the evidence. And, as we have noted, a prosecutor commits error by arguing a fact or a factual inference with no evidentiary foundation. See Wilson, 309 Kan. at 78.

         1.2 The error did not prejudice Ballou.

         Although the prosecutor erred, we hold the misdirection about the potential time frame in which the crime occurred did not prejudice Ballou. In assessing the prejudice caused by a prosecutor's error, an appellate court applies the traditional constitutional harmlessness inquiry demanded by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under this test, prosecutorial error is harmless if the State can show "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no ...


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