State v. Kellner

Docket Number125,086
Decision Date19 January 2024
PartiesState of Kansas, Appellee, v. Timothy E. Kellner, Appellant.
CourtKansas Court of Appeals


Submitted without oral argument.

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge.

Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Kris W. Kobach, attorney general, for appellee.

Randall L. Hodgkinson, of Kansas Appellate Defender Office for appellant.

Before BRUNS, P.J., CLINE and HURST, JJ.



A jury convicted Timothy E. Kellner of aggravated indecent liberties with a child for his inappropriate touching of the six-year-old victim. He was sentenced to the statutory penalty of life imprisonment with a minimum of 25 years served before any possibility of parole. On appeal Kellner claims that his conviction should be reversed, and he is entitled to a new trial because trial errors from prosecutorial missteps to erroneous jury instructions deprived him of a fair trial. In the event this court was unpersuaded to reverse the jury's decision based on those alleged errors, he also argues that the district court abused its discretion by denying him a durational or dispositional departure from the presumptive sentence. Despite the litany of errors asserted, this court finds no reversible error and affirms Kellner's conviction and sentence.


On February 27, 2019, the State charged Timothy E. Kellner with two counts of aggravated indecent liberties with a child arising from his alleged abuse of a then six-year-old child on or between February 21 to 22, 2019, and sometime on or between December 25, 2018, and February 20, 2019. Although the State dismissed one of the counts, after a trial in January 2022 the jury found Kellner guilty of one count of aggravated indecent liberties with a child. Among Kellner's many allegations, he claims there was insufficient evidence to sustain his convictions, which requires this court to recite the relevant facts underlying his conviction.

At trial the victim testified that she told her mom that Kellner "had touched me in my private" and that her mom took her to talk to the police. The victim said that when she was in her bed in the basement Kellner "came in my room and laid beside me and started to pull down my pants. And then [he] had touched me" with his "arm and his hand" on the butt. She later testified that Kellner also pulled down her underwear at that time. On cross-examination the victim confirmed that Kellner touched her once in this manner.

The victim's mother testified that on the night of February 21, 2019, she and the victim, her daughter, had fallen asleep on the living room couches, but she awoke at about 12:30-1:00 a.m. and went to bed while her daughter continued to sleep on the couch. The next day, on February 22, 2019, the victim's mother and her friend were in the living room when the victim "described a scenario from the evening before, at which [Kellner] caressed in between her legs with . . . what she believes is his arm." The victim's mother and her friend took the victim to a police substation and met an officer who interviewed the mother and her friend. The Axon video footage of that police interview was admitted at trial. On cross-examination, the victim's mother testified that at that time she wanted to talk to Kellner because she did not want to jump to conclusions but confirmed the officer did not allow her to talk to Kellner.

The officer transported the victim and her mother to the Child Advocacy Center (CAC) where the victim was interviewed outside the presence of her mother. The officer later transported the victim and her mother to the hospital where nurses photographed and swabbed the victim.

The forensic nurse examined the victim at the hospital from 12:32 a.m. until after 1:30 a.m. and documented on a diagram admitted into evidence that the victim had "red, purple bruise with swelling" on the labia majora and "excess skin to the anal area" in the top part of her anus. The forensic nurse also confirmed that she took swabs from the victim's labia majora where the bruising was seen, her labia minora, anal area, and the space between her anus and vagina, as well as an oral swab so that they could gather the victim's genetic information and compare it to any genetic material found elsewhere on her body. The forensic nurse confirmed that she did not see any pubic hairs, lubricants, or clothing fibers on the victim. She also confirmed that it was possible for a man to discharge seminal fluid while sleeping.

On cross-examination, the victim's mother confirmed that at the time of the incident, the victim had a history of wetting the bed and that cleaning her up would generally require wiping between her legs and in her vaginal area. She also confirmed that Kellner would sometimes clean the victim and the victim would sometimes sleep in their bed or want to be close to them. Although she testified that the next morning Kellner told her that he had taken the victim to bed, she confirmed that Kellner did not report changing the victim the night of the incident.

The mother's friend also testified about the victim's disclosure and that the victim "came up to her mom and I, and told us that [Kellner] had touched her." After being asked, the victim said she was sure about what happened and then demonstrated that Kellner touched her on her butt. The friend estimated that about an hour passed between the victim's initial disclosure and getting to the police substation.

A detective interviewed the victim at the CAC at about 10:00 p.m. on February 22, 2019, and a video of the Exploited and Missing Child Unit (EMCU) interview of the victim was admitted at trial. During the EMCU interview, the detective stated that the victim disclosed that two incidents occurred-one after Christmas 2018 and one the night before the interview. During cross-examination, the detective confirmed that during the initial victim interview she described that Kellner was standing during the incident but testified at trial that he was laying down behind her. The detective also confirmed that a few days after the interview, he spoke to the victim again and she told him that she had a wreck on her bicycle and had been scratched by a cat.

The detective also interviewed Kellner late in the evening of February 22, 2019, and confirmed that Kellner was able to answer the initial personal information questions, appeared to understand the questions, and gave appropriate responses. At trial the detective recounted what Kellner said during the interrogation. The detective testified that Kellner said "he woke up around 3:00 in the morning. Went upstairs. Found [the victim] asleep on the couch . . . So he carried her back downstairs and placed her in bed." The detective stated that during the interrogation, Kellner was very talkative about things irrelevant to the case but that he did not seem overly nervous. Kellner stated that he pulled down the victim's pants and was "rubbing his penis in between her legs." After that disclosure, the detective testified that Kellner explained that when he was carrying the victim, she told him that she loved him and "that that's what set things in motion."

During the interrogation Kellner explained that he accessed a video on his phone from the internet that he characterized as a Japanese video with a young-looking girl whose father character in the video did something similar to the girl. The detective confirmed that Kellner was describing placing his penis between the victim's legs. After obtaining a search warrant for Kellner's phone, the detective was able to view the video Kellner described.

The detective confirmed that Kellner was not permitted to speak to his wife or other family during the interrogation. The detective also confirmed that during the interrogation he was not wearing a firearm and was wearing a badge that was likely covered by his jacket. However, the detective denied that Kellner was handcuffed and stated that Kellner "could have asked to leave" but confirmed that Kellner was placed in a locked interrogation room with no windows and no phone and would have needed assistance to leave. The detective testified that Kellner likely sat in the interrogation room prior to the interrogation for about an hour and 15 minutes. The detective confirmed that he continued to question Kellner despite knowing that he had a cold, had little sleep, and was tired.

The Video and Forensic Data

A digital forensic examiner with the Wichita Police Department EMCU, Internet Crimes Against Children Task Force, testified that she examined Kellner's cell phone and created a report. She found the video described by Kellner as the Japanese video in the phone's deleted area - meaning it had previously been stored on the phone. The digital forensic examiner confirmed that in searching Kellner's cell phone she identified that he had searched for pornography at 4:00 a.m. on the date of the alleged incident. The report showing Kellner's relevant internet searches were admitted at trial.

A KBI forensic scientist testified that she received a synopsis of the allegations and the victim's sexual assault kit. She explained that after swabbing the victim's labia majora and buttocks, she conducted two different tests for seminal fluid on the swabs. The first chemical indicator test was negative for the presence of seminal fluid, but when she viewed the swabs through a microscope she saw sperm indicating the presence of seminal fluid. She then conducted a DNA profile analysis of the seminal fluid on the swab which revealed that the DNA profile from the seminal fluid was consistent with Kellner's DNA...

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