BY THE COURT
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
appellate court reviews a sufficiency of the evidence
challenge to determine whether, after reviewing all evidence
in the light most favorable to the State, a rational
fact-finder could have found the defendant guilty beyond a
reasonable doubt. It does not reweigh evidence, resolve
evidentiary conflicts, or determine witness credibility while
engaging in this review.
of the judgment of the Court of Appeals in an unpublished
opinion filed October 13, 2017.
from Pratt District Court; Francis E. Meisenheimer, judge.
Kittel, of Kansas Appellate Defender Office, argued the cause
and was on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, argued the
cause, and Rachel L. Pickering, assistant solicitor general,
and Derek Schmidt, attorney general, were with her on the
briefs for appellee.
Howling challenges his conviction for aggravated criminal
sodomy by attacking the district court's admission of
videotaped testimony of the child, testimony about that
interview, and the sufficiency of the evidence. Like the
defendant in State v. Ballou, 310 Kan. ___, ___ P.3d
___ (No. 116, 252, this day decided), Howling challenged the
admissibility of the videotaped testimony as expert
testimony. Based on our decision in Ballou, and the
additional grounds discussed here, we affirm the district
court's decision to admit the evidence. We also reject
Howling's argument that the evidence presented was
insufficient to support the conviction.
and Procedural Background
State charged Howling with rape and aggravated criminal
sodomy based on allegations made by his then-four-year-old
daughter (the child).
State's charges arise out of the child's overnight
visit with Howling on Saturday, June 20, 2015. She stayed
with him at his then-residence in Pratt County, Kansas. Her
maternal grandfather picked her up to return her to her
mother the next day around 4 p.m.
Monday following her visit, while getting ready for a dance
class that started at 6 p.m., the child asked her grandmother
for medicine because her bottom was itching, tickling, and
hurting. Her grandmother and mother checked the child's
underwear and found blood. Her mother described the underwear
as "covered in blood." The grandmother asked the
child whether she had been scratching herself there. The
child said, "No." After dabbing the area with a
tissue, the grandmother determined the blood was coming from
the child's vaginal area. The child's mother asked
the child what happened, and the child replied that her dad
scratched her. The child explained Howling put medicine
inside her when she stayed with him over the weekend. The
child's mother and grandmother took her to the hospital
on the advice of the mother's attorney in a custody case.
The child's mother and grandmother testified to these
facts, including the child's statements about her
hospital, a Sexual Assault Nurse Examiner (SANE) examined the
child. When the SANE asked the child to explain why she was
there, the child replied, "[D]addy scratched me."
She said Howling put medicine on her, pointing to her vaginal
area and rectum or anus area. She said Howling put medicine
on her because she was bleeding a lot. The SANE told the
child's mother and grandmother that law enforcement
needed to be called. The SANE testified at trial about the
detective interviewed the child at the hospital and then, at
trial, testified about the statements. The child told the
detective she was in the hospital because her butt was
bleeding. The child at first said she did not want to explain
any more, but eventually reported Howling put his finger in
her butt while she was sleeping in his house. She pointed to
her bottom and her vaginal area to show where Howling put his
fingers. She told the detective that Howling put white
medicine from the refrigerator on her butt. She said she was
bleeding and had a lot of blood.
the detective completed her interview, the SANE again talked
with the child and conducted a physical examination. The
child reported her dad scratched her while she was asleep.
She described that he "put two fingers in her pee and
one in . . . what she called her butt." The child showed
with her hand using two fingers and her thumb to describe the
motion Howling made. The SANE noted abrasions to the
child's labia majora and minora, skin breakdown with
redness on the child's clitoral hood, and discoloration
in her rectum. The SANE testified the injuries observed were
consistent with the history given by the child. The SANE also
collected the child's underwear with blood on the crotch
area. The SANE agreed that medically it was possible the
child's injury did not bleed the entire time between when
the child claimed to be injured during her visit with Howling
and when her injuries were discovered on Monday. The SANE
explained the injury may have reopened because of the
child's activities, including swimming and showering, on
the day her mother and grandmother discovered it.
Corbett later conducted a forensic interview of the child.
Howling moved to exclude the video and Corbett's