State v. Waisner
| Docket Number | 125,175 |
| Decision Date | 09 June 2023 |
| Parties | State of Kansas, Appellee, v. Christopher L. Waisner, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Jodi Litfin, deputy district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.
Christopher L. Waisner appeals his conviction for aggravated indecent liberties with a child, arguing the district court abused its discretion in admitting evidence of child pornography found on his computers under K.S.A. 2021 Supp. 60-455(d) in his third trial on this charge. Waisner also raises several claims of prosecutorial error based on statements during closing arguments. Finding no reversible error, we affirm.
Because many of the details about the sexual abuse are not necessary to our resolution of the issues on appeal, we adopt this summary of the facts from our panel's opinion in Waisner's earlier direct appeal:
State v. Waisner No. 107,728, 2013 WL 3970177, at *1 (Kan. App. 2013) (unpublished opinion).
This case began in 2009 when the State charged Waisner with rape, two counts of aggravated criminal sodomy, aggravated indecent liberties, and lewd fondling of a child under 14 years old, and sexual exploitation of a child. The State later amended its complaint to remove one aggravated criminal sodomy charge and add a charge for attempted rape of a child under 14 years old.
The State would eventually try Waisner for these crimes in three different jury trials. The first resulted in a hung jury. But the second trial resulted in Waisner's conviction of rape, attempted rape, criminal sodomy, and aggravated indecent liberties with a child. The district court sentenced Waisner to three consecutive life sentences for the rape, aggravated criminal sodomy, and aggravated indecent liberties with a child convictions, and 155 months imprisonment for the attempted rape. Waisner appealed, but this court affirmed his convictions and sentence. Waisner, 2013 WL 3970177.
Still, Waisner was later granted relief from his sentence and conviction after filing a successful K.S.A. 60-1507 motion showing he had received ineffective assistance of counsel. The district court thus ordered another new trial. The State appealed the district court's decision, but this court affirmed. Waisner v. State, No. 116,799, 2018 WL 671175 (Kan. App. 2018) (unpublished opinion).
Waisner's defense at his third trial, which gives rise to this appeal, was that T.G. made up the allegations against him and that she was driven by at least one of these reasons: (1) She wanted to live with Mother to get away from his strict parenting; (2) she disliked Stepmother and living with Stepmother; and (3) she enjoyed being, or at least playing, a victim. Waisner called several witnesses in support of his defense, including Stepmother, his stepfather, Stepmother's daughter (C.K.), one of T.G.'s childhood friends (A.R.), and one of his friends (Jennifer Stallbaumer).
The jury found Waisner guilty on only one charge-aggravated indecent liberties with a child. The jury reached no conclusion on the remaining charges, so the district court dismissed them without prejudice. The district court later sentenced Waisner to a hard 25 life sentence.
Waisner timely appeals.
Waisner first argues that the district court committed reversible error by admitting under K.S.A. 2021 Supp. 60-455(d) two images of child pornography taken from his computers during a search pursuant to a warrant. Waisner concedes that the images were relevant but maintains that they were overly prejudicial and thus inadmissible.
The State contends that the images and the website name strictdad.com tended to prove Waisner was interested in prepubescent females and "some sort of familial or father/daughter relationship" and was thus highly probative in proving Waisner committed sexual offenses against his 12-year-old daughter. The State notes that the district court admitted only 2 of over 60 images found on Waisner's computers, and argues that even if error occurred, it was harmless.
Before admitting evidence, trial courts make several determinations, including whether the evidence is relevant. See State v. Jones, 313 Kan. 917, 923, 492 P.3d 433 (2021). Evidence is relevant if it is material and probative: it has "any tendency in reason to prove any material fact." K.S.A. 60-401(b). All relevant evidence is admissible unless prohibited by statute, constitutional provision, or judicial precedent. But the district court may preclude the admission of evidence if it determines that the probative value of the evidence is substantially outweighed by the risk that the evidence will "unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered." K.S.A. 60-445.
The admissibility of evidence of "other crimes or civil wrongs" is, however, governed by the rules set out in K.S.A. 2022 Supp. 60-455. Its general rule states that this type of evidence cannot be used "to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion." K.S.A. 2022 Supp. 60-455(a). This type of evidence may be admissible only when used to prove other material facts. See K.S.A. 2022 Supp. 60-455(b) ().
Those general rules do not apply here though because in 2009, our Legislature created an exception to K.S.A. 60-455(a)'s general rule precluding use of other crimes evidence to prove propensity. See L. 2009, ch. 103, § 12, eff. April 30, 2009. This provision, K.S.A. 2022 Supp. 60-455(d), allows the State to use evidence of a person's acts or offenses of sexual misconduct as propensity evidence when the person is charged with certain sex offenses, provided the evidence is relevant and not unduly prejudicial:
"Except as provided in K.S.A. 60-445, [permitting exclusion of relevant evidence when the probative value is substantially outweighed by the risk of unfair and harmful surprise,] and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2022 Supp. 21-6104, 21-6325, 21-6326 or 21-6419 through 21-6422, and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative."
This statute applies here. See also K.S.A. 2022 Supp. 60-455 (g) (listing conduct that constitutes an "act or offense of sexual misconduct" as used in K.S.A. 2022 Supp. 60-455[d]).
"The plain statutory language of K.S.A. 2018 Supp. 60-455(d) appears to allow such evidence without requiring a weighing of probity versus prejudice." State v. Boysaw, 309 Kan. 526, 540, 439 P.3d 909 (2019). Still, our Supreme Court requires the analysis. Thus, before admitting evidence under K.S.A. 60-455(d), Kansas courts must "find the probative value of K.S.A. 60-455(d) evidence outweighs its potential for producing undue prejudice." State v. White, 60 Kan.App.2d 458, 481-82, 494 P.3d 248 (2021), aff'd 316 Kan. 208, 514 P.3d 368 (2022).
This court reviews a district court's admission or exclusion of evidence and balancing of probative value against prejudicial effect for an abuse of discretion. See K.S.A. 60-445; State v. Meggerson, 312 Kan. 238, 253, 474 P.3d 761 (2020); see also Jones, 313 Kan. at 923 (materiality reviewed de novo; probity reviewed for abuse of discretion). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Meggerson, 312 Kan. at 253.
The district court held several hearings spanning several years about the admissibility of the K.S.A. 60-455 evidence. Before Waisner's second jury trial in 2018, the State moved to admit evidence of child pornography found on Waisner's computers as evidence of other crimes under K.S.A. 2018 Supp 60-455(d). The State later withdrew its motion but filed a renewed motion before the third trial. The State argued that the evidence was relevant because the pornography showed that Waisner had an attraction to young girls and a willingness to act on that attraction. The State also maintained that Waisner's propensity to commit sexual offenses against a child was a...
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