IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,406
STATE OF KANSAS,
Appellee,
v.
KEVIN W. GUNBY,
Appellant.
SYLLABUS BY THE COURT
1. When examining a challenge to a district court's admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish.
2. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.
3. The list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. Evidence of other crimes or civil wrongs committed by a criminal defendant is admissible if relevant to prove one of the eight material facts listed in the statute or some other material fact not listed in the statute, if the district judge determines (1) the relevance exists; (2) the material fact is in issue; and (3) the probative value of the evidence outweighs its prejudicial effect. In addition, to avoid error, the district judge must give a limiting instruction informing the jury of the specific purpose for admission. Any language to the contrary in previous opinions is disapproved.
4. Error in the admission of or instruction upon K.S.A. 60-455 evidence is not automatically reversible. Rather, it is to be evaluated on appeal under either K.S.A. 22-3414 or K.S.A. 60-261. Any language to the contrary in previous opinions is disapproved.
5. Res gestae is no longer an independent basis for admission of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.
6. A criminal defendant need not object to alleged prosecutorial misconduct at trial in order to preserve the issue for appeal. The same standard of review applies regardless of whether an objection was made.
7. An appellate court uses a two-step analysis when prosecutorial misconduct is alleged on appeal. It asks: (1) whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence; and (2) whether the remarks constitute plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial.
8. A deliberate misstatement of the governing law is outside the considerable latitude given to prosecutors.
9. Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct, but it does not have to be present before a fight, quarrel, or struggle begins. Death by manual strangulation can be strong evidence of premeditation.
10. On the facts of this case, any error injected into the trial by prosecutor's discussion of law of premeditation was harmless under the test of K.S.A. 60-261 and the test of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
11. A district judge's instruction that jurors must first consider premeditated first-degree murder and that, if they do not agree the defendant is guilty, they then must consider lesser included offenses is not error. Likewise, a prosecutor's description of Kansas' "top-to-bottom" consideration of possible offenses is not error. The instruction and the prosecutor's description do not nullify the presumption of innocence or other provisions of K.S.A. 21-3109.
12. Cumulative trial errors do not necessitate reversal if the evidence against a criminal defendant is overwhelming. Despite imperfections in the trial, no reversal is required on the facts of this case.
Appeal from Johnson district court; JAMES FRANKLIN DAVIS, judge. Opinion filed October 27, 2006. Affirmed.
Michelle A. Davis, assistant appellate defender, argued the cause and was on the brief for appellant.
W. Scott Toth, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Phill Kline, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: Defendant Kevin W. Gunby appeals his conviction and sentence in this premeditated first-degree murder case arising out of the strangulation death of his high school classmate, Amanda Rae Sharp.
Gunby raises four questions for this court's consideration: (1) Did the district court err in admitting evidence of prior violence between Gunby and Sharp? (2) Did the prosecutor commit reversible misconduct during closing argument? (3) Did the PIK Crim. 3d instruction on lesser included offenses and argument emphasizing it nullify the presumption of innocence in K.S.A. 21-3109? and (4) Does cumulative trial error require reversal of defendant's conviction?
The pertinent facts are these: Brad Jaynes, a senior at Shawnee Mission North High School, attended school with Gunby. When Jaynes' family moved out of the school district, Jaynes began living with the Gunby family so that Jaynes could finish high school where he had started it.
On the day of the crime, Gunby and Jaynes went to school together in Gunby's car. There they met with friends, including Sharp and Jackie Erwin. Gunby asked Sharp to come over to his house sometime that day, and the two left together before school started at 7:45 a.m. The pair would often skip school together and go to Gunby's house, where they smoked marijuana and occasionally had sex.
At 9 a.m., Jaynes and Erwin also left school to go to the Gunby house. Erwin called Gunby as she drove, and Gunby told her not to come over. They argued, and she hung up on him. She then dropped Jaynes off at the Gunby house about 9:20 a.m.
When Jaynes arrived, Gunby met him at the door. Gunby looked sweaty and agitated; he had a cut over his right eye and bite marks on his shoulder.
"Guess what I did?" Gunby said. "[Y]ou know how I talked about killing [Sharp]? Well, I did it."
After this revelation, Jaynes observed Sharp lying face down on a bed in a downstairs bedroom. Blood was coming from her nose, and she was pale and limp. Jaynes unsuccessfully tried to find Sharp's pulse.
Gunby told Jaynes that he and Sharp had gotten into an argument about sexual activity they had engaged in earlier. Gunby said he had gotten rough with her and started throwing her around. Sharp had said she was going to have her boyfriend, Nick Adriano, kill Gunby. At that point, Gunby said, he choked Sharp for about 10 minutes. Sharp, Gunby told Jaynes, "put up a pretty good fight." Jaynes also testified ultimately that Gunby kept repeating that he was "fucked" and did not know what he was going to do. Gunby nevertheless said he planned to take Sharp's body to Nall Park and dump it in the creek to "get the DNA off of the fingernails."
At this point, Jaynes borrowed Gunby's car to go get cigarettes. When he returned to the house, he found Gunby gesturing for him to back the car into the garage. Gunby then wrapped Sharp's body in blankets and tried unsuccessfully to move her. At Gunby's request, Jaynes helped Gunby move the body to the garage, where Gunby placed it in the trunk of his car.
Gunby also asked Jaynes to help clean blood off a concrete wall. Gunby then repainted the wall and told Jaynes: "You'd better watch your back."
After eating lunch, Gunby gave Jaynes a ride to a friend's house. Before leaving, Gunby went through Sharp's purse, found an identification card, stroked it, and said he was going to keep it to remember her by. When he dropped Jaynes off at the friend's house, Gunby told Jaynes to think "happy thoughts" and not to mention anything about Sharp's death to anyone.
Jaynes did exactly the opposite. He told the friend about Sharp's death and walked with the friend to Shawnee Mission West (West), where he met his girlfriend.
The girlfriend testified that Jaynes was crying when he met her at West. He told her that Sharp was dead and that Gunby had strangled her. The girlfriend then called her mother, who told the teens to report the crime to a person in authority.
Jaynes and his girlfriend approached Officer Robert Miller, the school resource officer at West. Both were crying, and Miller could not understand them immediately. The girlfriend still had her mother on a cell phone, and the mother told Miller that the two teens were witnesses to a homicide. Miller then interviewed Jaynes and his girlfriend.
Detective Scott Atwell was assigned to investigate. He interviewed Jaynes at the police station at 4 p.m. on the day of the crime and again 2 days later. Jaynes' two recitations of events were essentially the same, although he acknowledged during the second that his first account had omitted his trip to get cigarettes after seeing Sharp's body.
Detective Gary Borstelman was assigned to conduct surveillance at the Gunby house, with instructions to detain Gunby if he attempted to leave. At about 6:30 p.m. on the day of the crime, Gunby came out of the house and walked toward his car. Borstelman approached Gunby and identified himself and ordered Gunby to take his hands out of his pockets and step to the rear of the car. Seeing people in the house looking out the window, Gunby said: "Please don't let my mother know why you are here," and, on the way to the squad car, "You almost missed me. I was getting ready to leave."
Detective Kent Leiker secured Gunby's car after he was arrested, and Sharp's body was discovered in the trunk. The body had been wrapped in multiple layers of bedding with duct tape secured at the ankles, upper torso, and around the head. Sharp's jeans and underwear had been pulled down to just above her knees. At the time her body was found, Sharp was clothed in a leather collar, about 1.5 inches wide and .25 inches thick, with eight spikes. The collar had been set in the tightest position, which left it with some slack. Sharp also was wearing a chain around her neck, twisted at one end and double-wrapped underneath the collar, and a black leather belt or harness, secured just above her hips with nylon straps that clipped on in the front and the back.
Forensic neuropathologist Michael Handler performed an autopsy on Sharp's body the next day, observing evidence of homicidal strangulation. Petechial hemorrhages indicated a prolonged struggle with on-and-off ligature. There also were abrasions corresponding with the upper edge of the collar on Sharp's neck, which extended horizontally over the sides of the neck, consistent with a homicidal strangulation involving a ligature. In addition, multiple injuries in several layers of Sharp's neck muscles, including two large hemorrhages, indicated manual strangulation. Handler opined that the collar had been shoved up, abrading Sharp's skin, and that the pressure for manual strangulation was applied just below the collar on her neck.
Handler also testified that it appeared Sharp had struggled with her killer, that there was considerable force applied, and that the strangulation was prolonged. When strangling pressure is applied, he said, a victim loses consciousness within seconds, and brain tissue starts to die within 6 minutes. However, pressure must be continuous for at least 8 and possibly 12 minutes or longer after the victim loses consciousness for vital parts of the brain to die. Sharp's injuries, he said, were consistent with the application of constant pressure to her neck for a period of 10 minutes.
Handler also testified that he had seen two to three cases per year of accidental asphyxiation when ligature had been used during sex. He said the collar and the belt on Sharp's body were typical of items worn by participants in sexual asphyxiation cases.
Handler also observed blunt force trauma to Sharp's forehead, the back of her head, and the temporalis muscle, which moves the jaw. The first of these injuries was consistent with Sharp's head hitting a concrete wall, causing bleeding between the scalp and the skull.
About 2 years before the crime, Gunby and Sharp had run away together for a week before they were found by authorities in California and sent back home. Gunby's parents did not approve of Sharp, nor hers of him. Yet Gunby continued to provide material things for Sharp, and the two continued to engage in sexual activity.
Sharp also had a boyfriend, Adriano, in the months leading up to her death. Gunby was jealous about this relationship and would get angry with Sharp. Jaynes testified that Gunby called Sharp a "slut" and "whore" and said on numerous occasions that he wished he could kill her. In addition, Gunby had admitted to Jaynes that he had gotten rough with Sharp about 2 weeks before her death.
Adriano testified that Sharp had told him Gunby called him a "bum" and urged her to break up with him. He also testified that he and Sharp had a sexual relationship and that she had refused to allow him to tie her up.
Over objection, Adriano also repeated a story Sharp had related about a violent incident between her and Gunby a month before her death. Sharp told Adriano that she and Gunby had been hanging out and smoking marijuana at Gunby's house. When she was getting ready to leave, Gunby smirked and pushed her onto a bed, where he jumped on her and handcuffed her wrist to a bedpost. After she struggled with him for several minutes, Gunby began choking her, which he continued to do for a minute or two. After he let go, she said, he was afraid she was going to tell someone. When Sharp relayed this story, Adriano said, she was crying and had visible injuries on her wrist.
Sharp's best friend, Zoisha Malin, also testified over objection that Sharp had told her a couple of weeks before the murder that Sharp "was frightened because [Gunby] had talked her into doing another sexual favor . . ., and had tied her to a bed but would not listen to her. She was afraid he was going to molest her or do otherwise." It is unclear from the record on appeal whether the incidents between Sharp and Gunby before Sharp's death about which Adriano and Malin testified were the same occurrence or two occurrences.
Malin also testified about Sharp's sexual relationship with Adriano. According to her, Adriano had told her he choked Sharp during sex on one occasion. Malin said Sharp had told her she did not like it.
The district judge instructed Gunby's jury that, if its members "[did] not agree" Gunby was guilty of premeditated first-degree murder, "[they] should then consider" lesser included offenses. In his closing argument, the prosecutor said Kansas law provided for jury review of potential crimes of conviction from "top-to-bottom," i.e., the jury should make its decision on whether Gunby was guilty of premeditated first-degree murder before it moved on to consideration of any lesser crime. "[I]f you all agree that the defendant is guilty of premeditated first-degree murder, then you are not to consider any of these other lesser-included crimes," he said. "Once you find first-degree premeditated murder, you are not to consider these other instructions. . . . They are given to you only if you think that we failed to meet our burden."
The prosecutor also said during his closing argument:
"I'm telling you based on the definition given to you by the court, premeditation can occur after the chain of events start[s]. . . .
"It can mean that any point when the chain of events starts, if the defendant thinks beforehand and there is some thought put into the fact that 'I want to kill her,' that meets the definition of premeditation.
"It could very well mean that at some point after he started hitting her and strangling her that he made the conscious decision, 'I want to kill you.' When that goes through his mind, that's when he premeditates.
. . . .
"[T]his case is based on sound science, and the science of murder is this; you cannot intentionally strangle somebody to death without there being premeditation. It is the only type of murder that exists where you simply cannot perform it unless you are intending to kill your victim. . . .
". . . When you shoot somebody, the bullet is gone. When you set a house on fire, the fire rumbles. When you beat somebody with a baseball bat, the damage has been done. But if you strangle somebody, if you don't want that person to die, you let go and they will revive.
"It is impossible to intentionally strangle somebody to death without knowing, thinking and wanting that person to die. And ladies and gentlemen, that is all that is required for premeditation.
. . . .
"Ladies and gentlemen, that is the premeditation. A person simply cannot apply constant pressure to somebody's neck for a period of a minimum of six minutes, up to 12 minutes, without them [] wanting that person to die."
During its deliberations, the jury requested to hear the testimonies of Adriano and Malin again, and those portions of the transcript were read to the jury in open court.
The jury also sent a question to the district judge regarding the prosecutor's statements about premeditation: "Is it true that premeditation can occur during the act of strangulation?" The judge responded: "It is for you to determine this issue based on the facts as you find them and the law as given in the Court's instructions." Defense counsel had earlier objected to the premeditation instruction given by the court, PIK Crim. 3d 56.04(b), which read:
"Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life."
Gunby was convicted of premeditated first-degree murder and sentenced to life imprisonment.
Admission of Testimony Regarding Prior Violence
The district judge admitted Adriano's and Malin's testimonies about Sharp's stories of a previous violent incident or incidents between her and Gunby as "evidence of a discordant relationship preexisting the incident relating to death." In addition, the district judge said the incident or incidents qualified as "part of the res gestae of the situation." Defense counsel had challenged the testimony as unduly prejudicial but had made no hearsay objection.
On appeal, Gunby argues that admission of this testimony was not permissible under K.S.A. 60-455, or, in the alternative, if the evidence was admissible under K.S.A. 60-455, then the district judge erred by failing to give a limiting instruction to the jury. He also argues that one incident is insufficient to demonstrate a course of conduct and that the incident was too remote in time to qualify as res gestae. Finally, he urges this court to abandon its previous rulings permitting admission of other evidence independent of K.S.A. 60-455.
Generally, when considering a challenge to a district judge's admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999).
Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, we review the decision de novo.
Admissibility of Other Crimes or Civil Wrongs Independent of K.S.A. 60-455
K.S.A. 60-455 provides:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her 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 but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." (Emphasis added.)
Under the plain and unambiguous language of the statute, evidence of prior crimes or civil wrongs cannot be admitted to prove a criminal defendant's propensity to commit the charged crime, but it can be "admissible when relevant to prove some other material fact." K.S.A. 60-455.
Current case law requires certain safeguards. Before K.S.A. 60-455 evidence can be admitted, the district judge must determine that it is relevant to prove one of the eight material facts listed in the statute, that the material fact is disputed, and that the probative value of the evidence outweighs its potential for producing undue prejudice. See, e.g., State v. Drennan, 278 Kan. 704, 716-18, 101 P.3d 1218 (2004). In addition, we have required trial judges to give a limiting instruction informing the jury of the specific purpose for admission whenever K.S.A. 60-455 evidence comes in. See, e.g., State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 (2004). These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime.
Without these kinds of safeguards, we have recognized that at least three types of prejudice can follow from the admission of other crimes and civil wrongs evidence:
"'. . . First a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.'" State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973).
In this case, the testimony of Adriano and Malin about the previous violent incident or incidents between Sharp and Gunby was relevant to prove motive, intent, and lack of mistake or accident, all material facts listed in the statute. See State v. Anicker, 217 Kan. 314, Syl. ¶ 1, 536 P.2d 1355 (1975) (evidence of prior physical mistreatment of wife introduced to show motive and intent); State v. Patterson, 200 Kan. 176, Syl. ¶ 2, 434 P.2d 808 (1967) (same). All were directly in issue. Indeed, the challenged testimony ran directly contrary to the defense theory of the case, i.e., that Sharp's death occurred because Gunby was high and the strangulation was an unintentional, unexpected, and accidental artifact of rough sex. Compare State v. Sexton, 256 Kan. 344, 350-51, 886 P.2d 811 (1994) (evidence that defendant had engaged in sexual bondage with former wife relevant, admissible to show deliberate, rather than accidental, strangulation of girlfriend). As long as the prejudicial effect of the evidence did not outweigh its probative value, the district judge could have elected to admit the testimony under K.S.A. 60-455. Had he done so, a proper limiting instruction should have been given.
Under these circumstances, Gunby challenges the fairness of permitting the testimony of Adriano and Malin to instead be admitted independent of the statute–thereby avoiding the explicit relevance inquiries, the particularized weighing of probative value and prejudicial effect, and the prophylactic limiting instruction required to admit evidence under K.S.A. 60-455.
Gunby's challenge prompts us to review the development of our jurisprudence on admission of evidence of other crimes and civil wrongs. We conclude that our lines of cases allowing admission of such evidence independent of K.S.A. 60-455 are contrary to long-held common law and the text of the statute itself. The practice of admitting evidence independent of K.S.A. 60-455 also is unnecessary and carries the potential to violate a criminal defendant's fundamental right to a fair trial.
Before the 1963 enactment of K.S.A. 60-455, Kansas cases consistently held: "The well-recognized general rule prevailing in this and other jurisdictions is that evidence is inadmissible to prove that the accused has been convicted of another crime independent of, and unrelated to, the one on trial; it is not competent to prove one crime by proving another." See, e.g., State v. Myrick, 181 Kan. 1056, 1058, 317 P.2d 485 (1957).
This general rule was based upon the principle that evidence of an unrelated prior conviction is irrelevant and unduly prejudicial, and this court repeatedly stated that the rule should be strictly enforced. See Myrick, 181 Kan. at 1058; see also State v. Aldrich, 174 Kan. 335, 337-38, 255 P.2d 1027 (1953) (limiting instruction saves admission); State v. Palmer, 173 Kan. 560, 565-66, 251 P.2d 225 (1952) (testimony regarding previous offenses error); State v. Fannan, 167 Kan. 723, 726-27, 207 P.2d 1176 (1949) (admission approved in light of limiting instruction); State v. Winchester, 166 Kan. 512, 514-16, 203 P.2d 229 (1949) (safeguards required to admit evidence of other offenses); State v. Owen, 162 Kan. 255, 260, 176 P.2d 564 (1947) (admission of earlier conviction for murder error); State v. Frizzell, 132 Kan. 261, 267, 295 Pac. 658 (1931) (evidence of similar offense admissible; associate's involvement in other crimes not admissible); State v. Wheeler, 89 Kan. 160, 165-66, 130 Pac. 656 (1913) (evidence of relationship to other criminals ought not to have been received); State v. Reed, 53 Kan. 767, 774, 37 Pac. 174 (1894) (evidence of "criminal intimacy" with wife of murder victim relevant to motive; limitations appropriate).
Nevertheless, several distinct exceptions to the general rule developed at common law, exceptions "permitted from absolute necessity." Myrick, 181 Kan. at 1058. Evidence of an independent crime was admissible in the State's case in chief in the discretion of the court, under proper instructions, if relevant to prove identity of person or crime; scienter or guilty knowledge; intent; inclination or motive; plan, scheme, or system of operation; or malice. Such evidence also was admissible to rebut special defenses. Myrick, 181 Kan. at 1058-59; see Owen, 162 Kan. at 259 (evidence may be admissible to show identity, scienter or guilty knowledge, intent, motive, system, malice, or to rebut defense); State v. Grey, 154 Kan. 442, 444-45, 119 P.2d 468 (1941) (plan); State v. Gwynne, 142 Kan. 13, 15, 45 P.2d 849 (1935) (robbery of second bank in vicinity); State v. Caldwell, 131 Kan. 622, 624, 293 Pac. 389 (1930) (evidence of defendant's knowledge); State v. Turner, 128 Kan. 376, 377, 278 Pac. 58 (1929) (evidence of previous similar liquor offense); State v. Reuter, 126 Kan. 565, 567, 268 Pac. 845 (1928) (evidence may be appropriate to show identity, scienter, lack of mistake, plan); State v. Robinson, 125 Kan. 365, 367-68, 263 Pac. 1081 (1928) (knowledge, intent, method, absence of mistake); State v. Stanley, 123 Kan. 113, 115-16, 254 Pac. 314 (1927) (guilty knowledge); State v. King, 111 Kan. 140, 142-50, 206 Pac. 883 (1922) (collecting citations, permitting other crimes evidence to prove identity).
In particular, from at least 1893 on, Kansas courts admitted evidence of a discordant marital relationship when one spouse stood accused of killing the other. See State v. O'Neil, 51 Kan. 651, 665, 33 Pac. 287 (1893); see also State v. Rupe, 226 Kan. 474, 477-78, 601 P.2d 675 (1979); State v. Scott, 117 Kan. 303, 319, 235 Pac. 380 (1924), aff'd on rehearing 118 Kan. 464, 235 Pac. 380 (1925); State v. Cruse, 112 Kan. 486, 494, 212 Pac. 81 (1923). In the 1893 case, the court specifically wrote: "Ill treatment and previous assaults by husband on wife are admissible to prove motive, in cases of marital homicide." O'Neil, 51 Kan. 651, Syl. ¶ 2. (Emphasis added.)
Still, the prejudicial effect of other crimes and civil wrongs evidence remained a concern when any exception to the general rule of exclusion was invoked at common law, and trial judges were urged to weigh carefully whether the relevance or probative value of the evidence justified the potential for undue prejudice. In addition, juries received appropriate limiting instructions. See Myrick, 181 Kan. at 1059.
K.S.A. 60-455 became effective on January 1, 1964. It did not change the common law substantially. See, e.g., State v. Patchett, 203 Kan. 642, 643, 455 P.2d 580 (1969); State v. Wright, 194 Kan. 271, 274, 398 P.2d 339 (1965). Rather, it codified the historical concept that evidence of other crimes or civil wrongs could be admitted for certain limited purposes.
Several cases soon admitted such evidence when relevant to prove a material fact, if, in the court's discretion, its relevance outweighed its prejudicial effect and the jury was properly instructed. See, e.g., State v. Jerrel, 200 Kan. 415, 420-21, 436 P.2d 973 (1968) (attempted larceny of promissory note relevant in prosecution for possession of burglary tools); State v. Omo, 199 Kan. 167, 173, 428 P.2d 768 (1967) (grand larceny conviction admissible regarding larceny in connection with burglary); State v. Darling, 197 Kan. 471, 475-81, 419 P.2d 836 (1966) (evidence relevant to intent, plan); State v. Crowe, 196 Kan. 622, 625-26, 414 P.2d