State v. Barber, No. 106,911.

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation297 P.3d 1194
PartiesSTATE of Kansas, Appellee, v. William L. BARBER, Jr., Appellant.
Docket NumberNo. 106,911.
Decision Date29 March 2013

297 P.3d 1194

STATE of Kansas, Appellee,
William L. BARBER, Jr., Appellant.

No. 106,911.

Court of Appeals of Kansas.

March 29, 2013.

Appeal from Cherokee District Court; Oliver Kent Lynch, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, Assistant Solicitor General, for appellee.




William Barber was convicted of child abuse and aggravated battery after his 2–month–old daughter, Autumn, was hospitalized for head injuries consistent with nonaccidental shaking. William has appealed, arguing primarily that evidence of prior shaking shouldn't have been admitted and that the prosecutor committed misconduct during closing argument. He also raises several claims of other trial and sentencing errors.

But the evidence of prior shaking was properly admitted to show the relationship and continuing course of conduct between William and Autumn. And while some of the prosecutor's comments during closing argument may have been improper, they did not reach the level of plain error, which would be required to justify reversing the jury's convictions. We have found no error in the district court's handling of Barber's case, and we affirm his convictions and sentences.

Factual and Procedural Background

On the morning of February 7, 2008, 911 dispatchers in Baxter Springs, Kansas, received a call that a 2–month–old infant was suffering seizures. The infant, Autumn, was driven by ambulance to a nearby hospital and later flown by helicopter to Children's Mercy Hospital. Doctors determined that Autumn had suffered bleeding in the brain and retinal hemorrhaging. The doctors further determined that these injuries were consistent with nonaccidental abusive head trauma caused by shaking.

Autumn's father, William Barber, told police and doctors that he got home at 10:30 a.m. and that his wife, Karen Barber—Autumn's stepmother—had left him alone to watch Autumn at 11 a.m. Shortly thereafter, William said he suddenly heard Autumn screaming from her “bouncy seat” and found her limp and suffering seizures. William called 911 at 11:15 a.m. According to a doctor, both parents denied any history of trauma, stating that they had never shaken or hurt Autumn.

William was charged with aggravated battery under K.S.A. 21–3414(a)(l)(A) and child abuse under K.S.A. 21–3609. In a pretrial motion, the State sought admission of various prior events under K.S.A. 60–455, a statute allowing such evidence for limited purposes, and State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), a leading case interpreting K.S.A. 60–455. The State argued that this evidence was relevant to prove the disputed material facts of motive, intent, and a relationship and continuing course of conduct between William and Autumn. In a letter ruling, the district court decided that “[t]he only evidence set out in the State's motion which meets all of these [admissibility] tests is evidence of prior incidents of shaking and the witnesses' response thereto and evidence of [William's] reaction to the child's crying in the past.” The court's ruling did not specify which material facts the evidence would be admitted to prove.

A jury trial was held in February 2011. Jolene Brown, the sister-in-law of Karen Barber, testified at trial. The State introduced a written statement by Jolene describing an incident about 1 week before Autumn was hospitalized:

“Karen was going out to have a [cigarette] and Billy came in the bedroom with Autumn. She was fussing [and] crying and Billy got a little frustrated and began to shake her from front to back [and] side to side[.] It was not violent hard [shaking] but I was slightly concerned. I informed my in laws and they talked to him about it. That was all I had seen. He was also telling her to just shut up while [shaking]. The shaking lasted about 5–10 seconds.”

At the time, Brown said she was concerned that William needed to know that he couldn't be too rough with Autumn. William objected—based on the court's prior ruling about the admissibility of prior conduct—to any testimony about the prior incident and also to the reading of the statement, but the objection was overruled. Brown also testified that William was “a good dad” and that she had seen him respond to Autumn appropriately on many occasions. Brown later refused to characterize William's action as “shaking,” saying that he had just been trying to calm Autumn down.

Melisa Conner, a friend of Karen's, also testified that she had grown concerned after observing how William handled Autumn. Conner said she had talked to Karen about her concerns at least three times and had given her a pamphlet on shaken-baby syndrome. An officer testified that Conner told him that she had seen William “shake” Autumn four to five times. Unlike with Jolene Brown's testimony, William did not object to any of this evidence about his prior behavior.

The district court included a jury instruction limiting the use of prior-bad-acts evidence. The instruction stated: “Evidence has been admitted tending to prove that the defendant committed bad acts other than the present crimes charged. This evidence may be considered solely for the purpose of proving the relationship of the parties and a continuing course of conduct.” William did not request this instruction, but he did not object to its being given, either, after the court modified an initial version of the instruction as William requested.

As part of the State's closing argument, the prosecutor emphasized that witnesses had seen William shake Autumn before. William's objection for “improper argument” was overruled when the prosecutor argued that “[William] thinks he's the victim here.” But William's objections for “assum[ing] facts not in evidence” were sustained twice when the prosecutor argued that William thought shaking the baby was okay.

After a lengthy deliberation, the jury found William guilty of both aggravated battery and child abuse. When the judge asked whether the parties wanted to poll the jury, defense counsel declined. The judge did not explicitly ask the jury whether this was its verdict. At sentencing, the court gave William consecutive sentences for a total of 162 months in prison, granting an upward-durational-departure sentence for the aggravated-battery charge.

William has appealed to this court.

I. The District Court Did Not Err in Admitting Evidence of Previous Shaking of Autumn or in Instructing the Jury on How It Could Consider that Evidence,

K.S.A.2010 Supp. 60–455(a), the version of this statute in effect when William was tried, sets out rules limiting the situations in which evidence that a person has committed a crime or a “civil wrong” may be admitted when the person is on trial for a different crime. The statute provides that evidence of another crime or civil wrong can't be used to prove the defendant's “disposition to commit [a] crime or civil wrong.” Even so, the evidence may be admitted if it is “relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A.2010 Supp. 60–455(b). That list of material facts evidence of past crimes or civil wrongs may be admitted to prove is not an exclusive list-those are merely examples of how such evidence may be used. See Gunby, 282 Kan. at 56, 144 P.3d 647.

William argues that the district court should not have admitted evidence of prior incidents of William shaking Autumn. Because William failed to object during trial to the testimony from Melisa Conner, he cannot raise any issue about her testimony in this appeal. Even when the admissibility issue has been raised in pretrial motions, an objection still must be made when the evidence is offered at trial to preserve the issue for appeal. K.S.A. 60–404; State v. Harris, 293 Kan. 798, 813–14, 269 P.3d 820 (2012); State v. Trotter, 245 Kan. 657, 659, 783 P.2d 1271 (1989). William did object to Jolene Brown's testimony about one prior occasion on which she said she'd seem him shake Autumn, so we must consider whether the district court erred in allowing that evidence.

A three-part test governs whether evidence about a person's prior crimes or civil wrongs may be admitted under K.S.A.2010 Supp. 60–455:

“• First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.

“• Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.

“• Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.

“If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose).” State v. Torres, 294 Kan. 135, 139–40, 273 P.3d 729 (2012) (citing State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 [2011] ).

Brown testified that she had seen William get frustrated with Autumn when the baby was fussy and crying. She said she saw William “shake” Autumn in a manner that Brown didn't find violent but was rough enough to cause her concern.


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