State v. Inkelaar

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,987

STATE OF KANSAS,
Appellee,

v.

NATHAN INKELAAR,
Appellant.


SYLLABUS BY THE COURT

1.
Under the circumstances of this case, the defendant preserved an evidentiary error
for appeal by filing a motion in limine, objecting during the State's proffer of the
evidence, and asking the trial court for a continuing objection to admission of the
evidence, even though the defendant did not object after the specific questions at issue.

2.
A trial court does not abuse its discretion by admitting evidence of prior crimes if
the evidence does not actually or probably bring about the wrong result under the
circumstances of the case.

3.
An overly broad limiting instruction on K.S.A. 60-455 evidence will be deemed
harmless error if the defendant was not prejudiced by the inclusion of more of the
statutory factors than were warranted by the evidence in the case.




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4.
A defendant preserves for appellate review a prosecutorial misconduct issue based
on evidentiary error by objecting to the lack of a legal or factual basis for a question.

5.
A defendant challenging the sufficiency of the charging document for the first
time on appeal must show the alleged defect either (1) prejudiced the defendant's
preparation of a defense; (2) impaired the defendant's ability to plead the conviction in
any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.

6.
Error in failing to instruct the jury on the element of the defendant's age as
required to prove the off-grid felonies of aggravated indecent liberties with a child and
attempted aggravated indecent liberties with a child under Jessica's Law, K.S.A. 21-
4643(a)(1)(C) and (G), was harmless when several witnesses confirmed the defendant
was older than 18 at the time of the offenses and this evidence was uncontested.

7.
The trial court did not abuse its discretion in denying the admission of third-party
evidence when the totality of facts and circumstances in the case did not connect the third
party to the crime charged.

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed October 21,
2011. Affirmed.

Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.
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The opinion of the court was delivered by

LUCKERT, J.: This is a direct appeal from Nathan Inkelaar's convictions for one
count of rape, one count of aggravated indecent liberties with a child, one count of
attempted aggravated indecent liberties with a child, and three counts of aggravated
criminal sodomy. He argues: (1) The trial court erred in allowing the State to introduce
K.S.A. 60-455 evidence of prior sexual abuse to show plan, intent, or absence of mistake
or accident; (2) the prosecutor committed misconduct during cross-examination of the
defendant's brother; (3) the trial court lacked jurisdiction to sentence the defendant under
Jessica's Law, K.S.A. 21-4643, because the defendant's age was omitted from the
complaint and from the jury instructions; and (4) the trial court abused its discretion by
excluding evidence of third-party guilt. We reject his arguments and affirm.

FACTS AND PROCEDURAL BACKGROUND

Inkelaar's convictions involve two victims, M.C. (a 9-year-old girl) and Z.C. (an
11-year-old boy), who are siblings. The children lived with their father, A.C., and their
stepmother, V.C. Inkelaar and A.C. were long-time friends.

Inkelaar would sometimes babysit the children, which included occasions where
they would spend the night at Inkelaar's home. On Friday, November 30, 2007, A.C. was
preparing to leave town for the weekend, and Inkelaar agreed to let M.C. and Z.C. spend
the night at his home. The next afternoon, V.C. called and spoke to the children and
Inkelaar by telephone, and Inkelaar asked if they could spend another night because he
was decorating for Christmas. V.C. agreed. Then, on Sunday, December 2, 2007, M.C.
called her stepmother and asked to come home. V.C. did not have a car, so she could not
go pick up the children. V.C. asked where Inkelaar was, and M.C. said he was still
asleep. V.C. told M.C. to wait until Inkelaar woke up and then ask him to bring her home.
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Later that afternoon, Inkelaar brought the children home. When M.C. got out of
the car, she was wearing a new pair of boots. V.C. was angry at Inkelaar for buying this
gift because it was close to Christmas (she had planned to buy the same boots for M.C.)
and because she had previously told him to stop spoiling the children with gifts. A.C. had
specifically told Inkelaar not to buy the children any shoes because of V.C.'s shopping
plans.

That night, after Inkelaar left, V.C. was sitting on the couch with the children
when M.C. revealed that Inkelaar made them play "strip Candyland" over the weekend.
When V.C. asked her if she knew what "strip" means, M.C. said, "Yeah, you have to take
your clothes off." M.C. said both she and Z.C. had to remove clothing during the game,
and Inkelaar removed clothing too.

V.C. did not call the police right away because she first wanted to talk to the
children's father, who had not yet returned from his trip. When A.C. returned a couple of
days later, V.C. told him about M.C.'s allegations. A.C. called law enforcement and
reported the suspected child molestation.

Detective Lori Werlein of the Exploited/Missing Children's Unit of the Sedgwick
County Sheriff's Department interviewed M.C. and Z.C. Although a DVD and a
transcript of the interviews were later admitted into evidence, neither of those exhibits
was included in the record on appeal (and it does not appear a request to have them added
was ever submitted). The detective's affidavit regarding the substance of the interview is
in the appellate record, however, and indicates that M.C. told the detective about the strip
Candyland game, that M.C. and Z.C. ended up with no clothing on, and that Inkelaar
rubbed his "'weenie'" on M.C.'s "'titties and crotch'" and also on Z.C.'s "'titties and
crotch."' M.C. said Inkelaar's clothing was off, his "'weenie' was 'big and hairy,'" and that
"'juice'" came out of it and went on M.C.'s and Z.C.'s skin.
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M.C. told the detective that Inkelaar started doing "'dirty stuff'" to her when she
was 5 years old. Inkelaar made her rub his penis when her brother was asleep, and
Inkelaar would take a shower with her. He also rubbed M.C.'s "'booty'" with his
"'weenie.'" M.C. told the detective Inkelaar locked her in the bathroom and made her
"'suck his dick'" and he also "'sucked [her] crotch.'" M.C. also said Inkelaar took off her
clothes and put his mouth on her crotch while she sat on the toilet. She said he stopped
because her brother came into the room. Sometimes Inkelaar would make her lick and
"'suck his dog's pussy.'" In the detective's affidavit, she also indicated M.C. told her about
Inkelaar making her watch pornography and having "'dirty magazines'" at his house.

With regard to Z.C.'s interview, the detective's affidavit indicated Z.C. said
"'things'" had been happening to his sister and himself. When asked to explain what he
meant by "'things,'" Z.C. said it was "'sexual harassment'" and it was not happening as
much to him as to his sister. Z.C. told the detective that Inkelaar, with his hands, touched
M.C.'s "'private'" while her pants were off. He also told the detective about the strip
Candyland game and indicated they had to take their clothing off and sit on the couch.
Z.C. said that Inkelaar touched M.C.'s face with his "'weenie'" and also put his "'weenie'"
in Z.C.'s face. According to the detective's affidavit, both children indicated Inkelaar
"told them not to tell what happened because if they did then he would go to jail."

At trial, M.C. testified Inkelaar touched her "crotch" with his "wiener" and rubbed
his "wiener" on Z.C.'s chest during the game of strip Candyland. Z.C. also testified they
played strip Candyland. Z.C. said Inkelaar touched his sister's "private" with Inkelaar's
finger, Inkelaar's "wienie" was out, and it was "big"; but Z.C. denied Inkelaar touched
either child with his "wienie." Z.C. testified that M.C. told him Inkelaar would touch her
at night and "make her watch movies and stuff." Z.C. remembered a time when his sister
was taking a shower and Inkelaar went into the bathroom with her, but Z.C. denied going
into the bathroom himself. Z.C. felt embarrassed when his sister told V.C. about what
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happened, and that is why Z.C. did not say anything. Z.C. testified Inkelaar told them not
to tell.

In addition to testifying about strip Candyland, M.C. claimed Inkelaar had been
inappropriately touching her since she was 4 years old. This happened at Inkelaar's home
while her brother was either asleep on the couch or playing outside with friends.
According to M.C., Inkelaar touched her "crotch" with his finger and his "wiener." She
described this happening when she was sleeping, sitting on the toilet, or taking a shower.
Inkelaar also stuck his "wiener" in her "butt" after making her bend over his bed. He
made M.C. watch pornographic movies while her brother slept on the couch. M.C.
performed oral sex on Inkelaar, who told her, "If you suck my wiener, I'll buy you
anything you would want." He also forced M.C. to perform oral sex on a dog and told
M.C. if she did not "do it, we won't go to Wal-Mart or get any breakfast." She also
indicated Inkelaar "would touch Z.C. on his titties with his wiener." M.C. testified
Inkelaar said if she told anybody in her family about these things he was doing, "he
would go to jail."

Inkelaar did not testify in his own defense. The jury watched a DVD of Inkelaar's
police interview, in which he made statements about the accusations of M.C. and Z.C. As
with the interviews of the victims, neither the DVD nor the transcript of Inkelaar's
interview was included in the record on appeal. According to Detective Werlein's
affidavit and the testimony of Detective William Riddle, Inkelaar was interviewed by
Detective Riddle and another detective, Don Story. Detective Riddle could not recall
whether Detective Werlein observed the interview from another room. Although
Detective Riddle testified at trial, he did not divulge the details of Inkelaar's statements;
thus, the trial transcript does not provide those details for this court. Detective Werlein's
affidavit, however, contains some particulars about Inkelaar's interview, such as
Inkelaar's explanation that on Saturday, December 2, 2007, M.C. and Z.C. started talking
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about "wanting to play 'Strip Candyland'" and M.C. started trying to take her clothes off.
According to Detective Werlein:

"[Inkelaar] stated that he wrestles and tickles with both kids a lot and it's not unusual for
them to 'slip' out of their pants or shirts. [Inkelaar] also admitted that he has gotten an
erection during the wrestling, but claims that when that happens he stops the play.
[Inkelaar] stated that during the wrestling with the victims he has possibly grabbed
private parts of their bodies. When asked about the dog, [Inkelaar] stated that he had
never had anyone 'act out a sexual fantasy' with a dog. [Inkelaar] maintained that
anything that happened to the victims was not intentional and he was very sorry.
Throughout the interview [Inkelaar] denied any intentional sexual activity with either
M.C. or Z.C."

In addition, the trial court allowed the State to introduce evidence of other crimes
or civil wrongs pursuant to K.S.A. 60-455. The 60-455 evidence related to accusations
that Inkelaar had sexually abused other children. The State introduced testimony from
two sisters, B.W. and K.M., who claimed Inkelaar had sexually abused them from the
time they were around 7 or 8 years old until they were around 12 or 13 years old. The
father of these two alleged victims also testified at trial and was permitted to speak at
Inkelaar's sentencing hearing. During the father's trial testimony, he indicated Inkelaar
had been his close friend and would babysit his daughters; they would occasionally spend
the night at Inkelaar's house. B.W. and K.M. claimed Inkelaar made them watch
pornography and paid them money in exchange for sex acts. According to B.W.'s and
K.M.'s testimony, Inkelaar engaged in or requested various sex acts over the years, such
as sexual intercourse in his bedroom or shower, anal sex, and oral sex. Inkelaar also
would engage in breast fondling and vaginal touching with his fingers or mouth, and he
would make them touch his penis. Through the testimonies of B.W. and K.M. and their
father, the jury learned these incidents had been reported to authorities in 1993 and
charges had been brought against Inkelaar but were ultimately dismissed. It was implied
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the charges were dismissed, in part, because the victims ran away from home due to the
trauma of the sexual abuse and the stress of a criminal prosecution.

In addition to presenting the defense of a general denial of any wrongdoing,
Inkelaar sought to raise a third-party defense involving A.C. by asserting there were prior
allegations that A.C. had sexually abused his children, M.C. and Z.C., when they were 2
and 3 years old, respectively. It was further alleged that A.C. engaged in sexual activity
with his younger half-brother a couple of times when A.C. was a teenager. The trial court
did not allow Inkelaar to present this evidence to the jury.

The jury convicted Inkelaar of one count of rape, in violation of K.S.A. 21-
3502(a)(2); one count of aggravated indecent liberties with a child, in violation of K.S.A.
21-3504(a)(3)(A); one count of attempted aggravated indecent liberties with a child, in
violation of K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A); and three counts of aggravated
criminal sodomy, in violation of K.S.A. 21-3506(a)(1). The offenses of aggravated
indecent liberties and attempted aggravated indecent liberties occurred after the effective
date of K.S.A. 21-4643, also known as "Jessica's Law," which increased the severity level
for completed and attempted indecent liberties with a child under 14 to an off-grid crime.
Inkelaar received a controlling sentence of life imprisonment without possibility of parole
for 25 years. He now timely appeals his convictions and sentence.

ISSUE 1: Did the trial court err by allowing the State to introduce K.S.A. 60-455 evidence
to show plan, intent, or absence of mistake or accident?

First, Inkelaar argues the trial court should not have permitted the State to
introduce evidence of other crimes or civil wrongs under K.S.A. 60-455, specifically,
Inkelaar's alleged prior sexual abuse of other children. According to Inkelaar, the prior
acts were not admissible on the bases given by the trial court, i.e., to prove plan, intent, or
absence of mistake or accident. To support this argument, Inkelaar contends intent and
absence of mistake or accident "were not material facts at issue in the case," and while he
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does not challenge the trial court's findings with regard to whether the prior allegations
were strikingly similar to show plan, Inkelaar argues evidence of plan, as well as intent
and absence of mistake or accident, was more prejudicial than probative.

Preservation of Issue for Appeal

As a preliminary matter, the State contends Inkelaar failed to preserve this
evidentiary issue for appeal because, according to the State, he failed to lodge a "timely
and specific objection" to the admission of the K.S.A. 60-455 evidence. More
specifically, the State argues Inkelaar "did not object on K.S.A. 60-455 grounds during
the testimony of the prior victims or their father."

As pointed out by the State, this court has recently emphasized, under K.S.A. 60-
404, "a party must lodge a timely and specific objection to the admission or exclusion of
evidence in order to preserve the evidentiary question for review." State v. King, 288
Kan. 333, 348, 204 P.3d 585 (2009). The goal of the rule requiring a timely and specific
objection is to give "'"the trial court the opportunity to conduct the trial without using the
tainted evidence, and thus avoid possible reversal and a new trial"' [Citation omitted.]"
King, 288, Kan. at 342. Because an in limine ruling "is subject to change when the case
unfolds," Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984),
a pretrial objection must be contemporaneously renewed during trial or preserved through
a standing objection. State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010).

Contrary to the State's argument, however, Inkelaar preserved this issue by
asserting a continuing objection after having voiced specific reasons the evidence was not
admissible. The specific reasons the evidence was inadmissible were first articulated in
Inkelaar's pretrial motion in limine in which he asked the trial court to exclude "any
statement or remark from any witness that Defendant has ever been accused previously of
something similar to the accusations in this case with other parties." The issue was also
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raised when the State filed a competing pretrial motion asking the court to allow it to
introduce evidence of prior sexual abuse allegations against Inkelaar. The court reserved
ruling on the motion.

Later, during the course of the State's case, outside the presence of the jury, the
trial court heard arguments and considered evidence regarding the K.S.A. 60-455 issue.
The State's proffer included the testimony of the two alleged prior child victims of
Inkelaar's sexual abuse, B.W. and K.M., and the testimony of their father, T.M. Counsel
for both sides presented arguments regarding the admissibility of the K.S.A. 60-455
evidence.

The State argued the evidence was admissible to show plan, intent, or absence of
mistake or accident. Defense counsel argued the evidence was inadmissible because the
concepts of intent and absence of mistake or accident were not substantially at issue and
because there were not sufficient similarities between the current charged acts and the
prior sexual abuse to show plan. Further, "[w]ith respect to prejudicial impact, the
prejudicial impact cannot be worse." The trial court found the evidence of prior sexual
abuse was admissible to show intent and absence of mistake or accident. However, the
trial court reserved ruling on whether "plan [was] involved" until the evidence had been
submitted. Later, during the jury instruction conference, the trial court found "there were
sufficient strikingly similar situations to allow for plan." Thus, the limiting instruction
ultimately included "intent, plan, and absence of mistake or accident."

Defense counsel not only objected to the admission of the evidence during the
State's proffer, he also voiced two additional objections to the evidence. The first
objection was made when the State questioned Detective Werlein regarding her
interviews of M.C. and Z.C. The pertinent colloquy began when the prosecutor asked the
detective if, during her investigation, she had located and interviewed other possible prior
victims of Inkelaar's improper conduct. The detective testified she had located B.W.,
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K.M., and their father, and she had asked B.W. and K.M. about what Inkelaar had
allegedly done to them as children. Then, defense counsel stated: "And, Your Honor, just
to lodge an objection contemporaneously to that information, if I could." The objection
was acknowledged by the trial court and, in context, clearly referenced the "information"
to be revealed to the jury during subsequent testimony, i.e, the details of the alleged prior
sexual abuse of B.W. and K.M.

The second objection came just before the testimony of T.M., B.W., and K.M.,
which immediately followed the testimony of Detective Werlein. T.M. testified first, and
before his direct examination began, defense counsel raised a "continuing objection to
this matter," which was acknowledged by the trial court. Although defense counsel raised
no objections during B.W.'s or K.M.'s testimony, the standing objection was sufficient to
apply to the admissibility of the prior sexual abuse evidence later presented by all three of
these witnesses—especially because just shortly before the testimony of these witnesses
was presented to the jury, defense counsel had argued such evidence should be excluded.

These circumstances satisfy the preservation requirement because the pretrial
objections were renewed during the trial, where the court was able to consider the
proffered evidence immediately before it was presented to the jury. And defense counsel
took the additional step of lodging a standing objection. See State v. Houston, 289 Kan.
252, 271, 213 P.3d 728 (2009) ("In the alternative, counsel should have asked for a
continuing objection and thereby eliminated the need for the later trial objection.").

Applicable Statute/Standards of Review

Finding that Inkelaar preserved this evidentiary issue for appeal, we begin our
discussion with the language of K.S.A. 60-455 and the applicable standards of review.

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The version of K.S.A. 60-455 in effect at the time of the alleged crimes and during
Inkelaar's trial is as follows:

"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." K.S.A. 60-455.

It should be noted that the legislature amended the statute effective April 30, 2009.
See L. 2009, ch. 103, sec. 12; K.S.A. 2010 Supp. 60-455. Neither party, however, argues
the amendment's relevance to the issues before this court. Thus, the amendment will not
be discussed.

As provided by K.S.A. 60-455, although evidence of prior crimes or civil wrongs
cannot be admitted to prove a criminal defendant's propensity to commit the charged
crime, it can be "'admissible when relevant to prove some other material fact.'" State v.
Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007) (quoting K.S.A. 60-455). Several steps are
required in determining whether evidence was properly admitted under the statute. See
State v. Wells, 289 Kan. 1219, 1226-27, 221 P.3d 561 (2009); State v. Warledo, 286 Kan.
927, 940-42, 190 P.3d 937 (2008); State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647
(2006).

"The court must determine that the fact to be proven is material, e.g., concerning intent,
motive, knowledge, or identity. In other words, the court must determine whether the fact
'"has a legitimate and effective bearing on the decision of the case."' State v. Garcia, 285
Kan. 1, 14, 169 P.3d 1069 (2007). Our standard of review for materiality is de novo. State
v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).

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"The court must also determine whether the material fact is disputed. Reid, 286
Kan. at 505; Garcia, 285 Kan. at 14 ('"[T]he element or elements being considered . . .
must be substantially at issue in the case."'). The court must also determine whether the
evidence is relevant to prove the disputed material fact, i.e., whether it has 'any tendency
in reason to prove' that fact. K.S.A. 60-401(b); Reid, 286 Kan. at 505. This court reviews
relevance—in particular, the probative element of 60-455—for abuse of discretion. Reid,
286 Kan. at 507.

"The court must next determine whether the probative value of the evidence
outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. Our
standard for reviewing this determination is also abuse of discretion. Reid, 286 Kan. at
512 (citing Garcia, 285 Kan. at 18). Finally, if the presented evidence meets all of these
requirements, then the trial court must give a limiting instruction 'informing the jury of
the specific purpose for [the evidence's] admission.' Garcia, 285 Kan. at 12." State v.
Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009).

Plan

One basis on which the trial court admitted evidence of Inkelaar's alleged prior
sexual abuse of other children was to prove plan under K.S.A. 60-455. Inkelaar, in his
appellate brief, concedes the evidence of prior sexual abuse was admissible to show plan,
acknowledging the "evidence of the nature of the crimes, the general age of the victims,
provision of gifts in exchange for sexual favors, and use of pornography before or during
sexual acts" constitute factors establishing a "similar pattern of conduct." Thus, Inkelaar
has abandoned any arguments regarding the relevance of the K.S.A. 60-455 evidence to
prove plan. See Berriozabal, 291 Kan. at 594 (party must present argument and support
that argument with pertinent authority or show why the argument is sound despite a lack
of supporting authority or in the face of contrary authority; otherwise, the argument will
be deemed abandoned).

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Inkelaar takes issue solely with the trial court's finding that the probative value of
the evidence of plan outweighed the prejudicial effect. He contends the presentation of
such "inflammatory" evidence was unduly prejudicial because it "focused the jury on
what may have occurred in the past and distracted the jury from a critical review of the
credibility of M.C. and Z.C.'s allegations."

The question of whether evidence is unduly prejudicial is determined by whether
its probative value is outweighed by undue prejudice. See Reid, 286 Kan. at 503.
Evidence of other crimes or civil wrongs is unduly prejudicial when it "'"actually or
probably brings about the wrong result under the circumstances of the case."'[Citation
omitted.]" Hollingsworth, 289 Kan. at 1259. On appeal, the trial court's assessment of this
question is reviewed for abuse of discretion. The burden of proof is on the party alleging
the court's discretion was abused. Garcia, 285 Kan. at 18-19. Judicial discretion is abused
if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an error of law, i.e.,
if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of
fact, i.e., if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011).

Applying this standard, we conclude the trial court did not abuse its discretion
when it determined the evidence of the alleged prior crimes was not unduly prejudicial,
i.e., it would not bring about the wrong result. First, the prior crimes evidence was
brought into question by the testimony of Inkelaar's ex-wife who testified one of the
alleged prior victims told her the allegations made by B.W. and K.M. against Inkelaar
were false. Second, although Inkelaar focuses on the potential for undue sympathy for
M.C. and Z.C., the jury was instructed it could only consider the evidence for the
purposes stated in the instruction, and we presume the jury followed the instruction. See
State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). Third, although there were
15

some inconsistencies in the statements of M.C. and Z.C., the evidence against Inkelaar
was strong. Further, M.C. and Z.C. were consistent in most material respects when
retelling their accounts to their father, stepmother, and law enforcement officers. Finally
and most significantly, the evidence was highly probative because the alleged prior
crimes were strikingly similar to the circumstances described by M.C. and Z.C. The prior
crimes testimony indicated Inkelaar was close friends with the father of B.W. and K.M.,
just as he was with A.C. While babysitting, Inkelaar would sexually abuse B.W. and
K.M. in his bedroom, in the shower, or in the living room while siblings were outside
playing or were sleeping.

Intent & Absence of Mistake or Accident

Because we determine the evidence was admissible on the basis of plan, we need
not consider Inkelaar's arguments regarding the propriety of admitting the evidence to
prove intent or the absence of mistake or accident. Even if the admission on those
grounds was erroneous, the evidence was properly before the jury. The only potential
prejudice would be because of including the additional grounds in the limiting
instruction.

This court has held "[a]n overbroad limiting instruction on K.S.A. 60-455
evidence will be deemed harmless error if the defendant was not prejudiced by the
inclusion of more material facts than were warranted by the evidence in the case." State v.
Edwards, 291 Kan. 532, Syl. ¶ 11, 243 P.3d 683 (2010). We discern no basis for the
additional factors to have caused jury confusion or other prejudice in this case, and the
instruction, even if overly broad, instructed the jury it could not infer guilt merely
because of Inkelaar's disposition to commit crimes. We conclude that even if error
occurred, it was harmless because there is not a reasonable probability the error affected
the outcome of the trial. See Ward, 292 Kan. at 564-65 (under harmless error test of
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K.S.A. 60-261 and K.S.A. 60-2105 appellate court must be persuaded there is no
reasonable probability error affected the outcome of the trial).

ISSUE 2: Did the prosecutor commit misconduct during cross-examination of the
defendant's brother?

Next, Inkelaar contends the prosecutor committed misconduct during cross-
examination of his brother, Tyrone, who testified on behalf of the defense. The
procedural background of the argument is that K.M., one of the victims of Inkelaar's
alleged prior sexual abuse, indicated she had also been sexually assaulted by Tyrone.
During cross-examination of Tyrone, the prosecutor questioned Tyrone about the statute
of limitations on the prosecution of these prior acts. Because the alleged acts of Inkelaar
and Tyrone involving K.M. occurred during the same time frame, Inkelaar now argues
for the first time on appeal that the prosecutor's questions about the statute of limitations
"clearly signaled to the jury that the State believed the law precluded prosecution of
[Inkelaar] for his past crimes" against B.W. and K.M. and "encouraged the jury to punish
[Inkelaar] in the present case for actions he may have committed in the past."


Standard of Review

A two-step analysis applies to Inkelaar's claim of prosecutorial misconduct:

"'In general, appellate review of an allegation of prosecutorial misconduct
involving improper comments to the jury follows a two-step analysis. First, the appellate
court decides whether the comments were outside the wide latitude that the prosecutor is
allowed in discussing the evidence. Second, the appellate court decides whether those
comments constitute plain error; that is, whether the statements prejudiced the jury
against the defendant and denied the defendant a fair trial. [Citation omitted.]

17

"'In the second step of the two-step analysis, the appellate court considers three
factors: "(1) whether the misconduct was gross and flagrant; (2) whether the misconduct
showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors. None of these three factors is individually controlling.'" State v. Adams,
292 Kan. 60, 66, 253 P.3d 5 (2011).

See State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).

Preservation of Issue

The State presents a preliminary argument regarding whether Inkelaar preserved
this issue. The State concedes the defense counsel objected to the statute of limitations
questions on several grounds, including that the questions were not relevant, they called
for legal conclusions, they assumed facts not in evidence, and they failed to fully state the
law. Nevertheless, the State complains Inkelaar failed to specifically raise the issue of
prosecutorial misconduct at trial. The basis for the State's argument is the rule that a party
cannot object to the introduction of evidence on one ground at trial and then assert
another ground on appeal. State v. McCaslin, 291 Kan. 697, Syl. ¶ 5, 245 P.3d 1030
(2011); State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).

Here, however, the defense raised the evidentiary objections required by K.S.A.
60-404. Prosecutorial misconduct is not itself an evidentiary objection, but misconduct
may occur when a prosecutor asks a question for which the prosecutor has no reason to
believe there is a foundation of fact or law. See State v. White, 284 Kan. 333, 340-44, 161
P.3d 208 (2007) (prosecutorial misconduct in the form of inappropriate questioning and
argument); see generally 21 Wright and Graham, Federal Practice and Procedure:
Evidence § 5042 (2d ed. 2005) (insulating jury from inadmissible evidence). Inkelaar
made the evidentiary objections that would serve as the bases for his argument of
prosecutorial misconduct, i.e., there was no legal foundation for the questions, by
18

objecting on the grounds the prosecutor did not fully state the law, the questions were
based on facts not in evidence, and the questions called for legal conclusions. He now
simply argues the error, which he pointed out to the prosecutor and judge by making his
objections, should be reversed because the error was more than an evidentiary error, it
was prosecutorial misconduct.

Under either an evidentiary analysis or a prosecutorial misconduct analysis, we
begin by determining whether the prosecutor's questions were proper. Within the scope of
a prosecutorial misconduct analysis, this inquiry would answer whether the questions
were within the latitude allowed the prosecutor. Then, in an analytical step unique to
prosecutorial misconduct analysis, an appellate court, in determining if the prosecutor's
conduct requires reversal, reviews (1) whether the misconduct was gross and flagrant, (2)
whether the misconduct showed ill will on the prosecutor's part, and (3) whether the
evidence was of such a direct and overwhelming nature that the misconduct would likely
have had little weight in the minds of jurors. Adams, 292 Kan. at 66.

We conclude Inkelaar made the necessary evidentiary objections to preserve his
current argument of prosecutorial misconduct.

Step One: Prosecutorial Misconduct

Inkelaar argues misconduct occurred because the prosecutor misrepresented the
legal effect of the statute of limitations relevant to the crimes at issue, K.S.A. 21-3106
(recodified at K.S.A. 21-5107, effective July 1, 2011, see L. 2010, ch. 136, sec. 7). At
issue are the following questions which the prosecutor asked Inkelaar's brother: "If you
were—if you learned that the statute of limitations was five years, would you agree with
me, sir, that you could not be brought to trial for that crime?"; "Isn't it true that you can't
be brought to trial if the statute of limitation is also five years?"; and "If you were told the
statute of limitations for sex crimes was five years, and you were accused of doing this in
19

1993, isn't it true that you could not be brought to trial for that today?" Inkelaar argues
that even though the time limitation is 5 years, there are tolling provisions and
exceptions, including an exception relating to crimes against children under the age of 15,
if certain specific conditions apply. K.S.A. 21-3106(5)(f) (recodified at K.S.A. 21-
5107(e)(6)(A), effective July 1, 2011, see L. 2010, ch. 136, sec. 7). He adds: "The irony
of the State's comments was that it had charged Mr. Inkelaar with crimes dating back to
2003, which would have been time barred under the prosecutor's description of a rigid
statute of limitations."

We agree the prosecutor's questions were not predicated on an accurate statement
of the law and were improper.

Step Two: Factors

As previously noted, in the second step of the prosecutorial misconduct analysis
we consider three factors: (1) whether the misconduct was gross and flagrant, (2)
whether the misconduct showed ill will on the prosecutor's part, and (3) whether the
evidence was of such a direct and overwhelming nature that the misconduct would likely
have had little weight in the minds of jurors. Adams, 292 Kan. at 66.

In assessing whether gross and flagrant conduct has occurred, appellate courts
should look to whether the prosecutor "repeated or emphasized the conduct." State v.
Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 (2009) (citing State v. Miller, 284
Kan. 682, 719-20, 163 P.3d 267 [2007]). Similarly, a prosecutor's ill will is usually
"reflected through deliberate and repeated misconduct or indifference to a court's
rulings." Madkins, 42 Kan. App. 2d at 961 (citing State v. Bunyard, 281 Kan. 392, 407,
133 P.3d 14 [2006]). Although the prosecutor asked several questions in a row, the
statute of limitations questions were not otherwise emphasized in the trial. Further,
although the first objection was sustained, when the prosecutor rephrased the question in
20

response to the objection, the trial court overruled all further objections. Consequently,
we do not find deliberate misconduct or indifference to the court's rulings.

Turning to the third factor, whether the evidence against the defendant was of such
a direct and overwhelming nature that the misconduct would likely have had little weight
in the minds of the jurors, in the past we frequently stated the third factor cannot override
the first two factors unless we are able to say the harmless error tests of both K.S.A. 60-
261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L.
Ed. 2d 705, 87 S. Ct. 824 (1967), reh. denied 386 U.S. 987 (1967) (conclusion beyond
reasonable doubt that the error had little, if any, likelihood of having changed the results
of the trial), have been met. See, e.g., Ward, 292 Kan. at 549; Adams, 292 Kan. at 66;
Tosh, 278 Kan. at 93.

Our recent opinion in Ward, 292 Kan. 541, brought about a modification in this
portion of the prosecutorial misconduct standard. Ward synthesized our caselaw on
harmless error and recognized the same standard applies regardless of whether we are
applying an analysis under K.S.A. 60-261 and K.S.A. 60-2105 or Chapman. That
standard is whether the error affected the substantial rights of the party as measured by
whether it affected the outcome of the trial. Ward, 292 Kan. at 553-55. The difference
between our state statutory standard and the federal constitutional standard is primarily
the level of certainty that applies. Ward, 292 Kan. at 555-56. (We also reserved a
question of whether there is a difference regarding which party has the burden of
production when the state statutory standard applies. Ward, 292 Kan. at 568-69.) Ward
recognized that the federal constitutional standard requires the party benefitting from the
error to prove beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record. Ward, 292 Kan. at 568-69.) In
contrast, if the fundamental failure does not infringe upon a constitutional right, an
appellate court should apply K.S.A. 60-261 and K.S.A. 60-2105 and determine if there is
21

a reasonable probability the misconduct affected the outcome of the trial. Ward, 292 Kan.
at 569.

Hence, satisfying the level of certainty imposed by both the state and the federal
constitutional harmless error standard, as we have required in our past cases, necessarily
means the State, as the party who has benefitted from the prosecutorial misconduct, bears
the burden to establish beyond a reasonable doubt that the error did not affect the
defendant's substantial rights, i.e., there is no reasonable possibility the error affected the
verdict. We have adopted this view in several recent decisions. This recognition simply
means the third factor cannot override the first two factors unless we are able to say the
Chapman constitutional error standard has been met. See State v. Naputi, 293 Kan. ___,
___, ___ P.3d ___ (2011); State v. Hall, 292 Kan. ___, Syl. ¶¶ 14, 15, 257 P.3d 272
(2011); State v. Hernandez, 292 Kan. 598, 603-04, 257 P.3d 767 (2011) State v. Stieben,
292 Kan. 533, 539, 256 P.3d 796 (2011);.

Even though the State's burden is more difficult to meet under this standard than
under the state statutory harmless error standard that applied to our analysis of Issue 1,
we conclude the State has met its burden. We note that Inkelaar's argument of prejudice
is based on inferences that were never argued to the jury; it would require the jury to
conclude Inkelaar has not been and will not be prosecuted for these crimes and the sole
reason for the lack of prosecution is the bar of the statute of limitations. Even assuming
the jury independently connected all of the necessary dots to get to this conclusion, which
seems unlikely, evidence was presented that the charges had been brought against
Inkelaar for these alleged crimes and those charges were subsequently dismissed. The
jury was aware one of the victims had recanted her accusations after the charges had been
dismissed. Consequently, even if the jurors were to infer there was not or would not be a
prosecution against Inkelaar because of his actions relating to K.M. and B.W., they were
aware charges had been filed within the statute of limitations. These circumstances
weaken any suggestion the jury would be inclined to believe Inkelaar could not be
22

prosecuted because of the statute of limitations or would be inclined to punish Inkelaar
for charges the State chose not to prosecute.

More important, there was strong evidence of the crimes against M.C. and Z.C.
that was independent of the alleged prior wrongs relating to K.M. and B.W. In addition,
M.C. and Z.C. gave consistent statements in most material respects throughout the
investigation and at trial. We hold there is no reasonable possibility the questions
regarding the statute of limitations affected the verdict in this case.

ISSUE 3: Did the trial court lack jurisdiction to sentence the defendant under Jessica's
Law, K.S.A. 21-4643, because the defendant's age was omitted from the complaint and
from the jury instructions?

Some of Inkelaar's charged crimes, such as those related to sodomy, were alleged
to have been committed before the July 2006 effective date of Jessica's Law, K.S.A. 21-
4643, but the two offenses charging aggravated indecent liberties with a child were
alleged to have been committed after the law's effective date. (On one of these counts, the
jury found Inkelaar guilty as charged and, on the other count, he was found guilty of the
lesser included offense of attempt.) Jessica's Law requires that a defendant be sentenced
to a term of imprisonment for life, with a mandatory minimum term of imprisonment of
not less than 25 years, if (1) the crime is committed on or after July 1, 2006, (2) the
defendant is 18 years of age or older, and (3) the defendant is convicted of certain
sexually violent crimes, including completed and attempted aggravated indecent liberties
with a child who is under the age of 14. K.S.A. 21-4643(a)(1)(C), (G).

Inkelaar essentially presents two arguments revolving around the issue of his age.
First, he contends the trial court did not have jurisdiction to sentence him under Jessica's
Law because the charging document did not state his age at the time of each alleged
charge of aggravated indecent liberties with a child. Second, because a defendant's age is
an essential element of a Jessica's Law crime, Inkelaar argues the court erred by failing to
23

instruct the jury to find he was 18 years of age or older at the time of each of these
offenses. Both contentions are raised for the first time on appeal, and neither contention
leads us to the conclusion that reversible error occurred.

Standard of Review

Inkelaar's overarching argument addresses jurisdiction, statutory interpretation,
and constitutional interpretation; therefore, this court's review is unlimited. See State v.
Martinez, 290 Kan. 992, 1017, 236 P.3d 481 (2010); State v. Gonzales, 289 Kan. 351,
365-66, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, 195-96, 211 P.3d 139 (2009)
(citing State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 [2007] ; Foster v. Kansas Dept. of
Revenue, 281 Kan. 368, 369, 130 P.3d 560 [2006]); and State v. Bryan, 281 Kan. 157,
159, 190 P.3d 85 [2006]. Separate standards of review apply to the two subissues argued
by Inkelaar.

Complaint

In the first subissue, Inkelaar challenges whether the complaint was sufficient to
confer subject matter jurisdiction. In Counts 6 and 7 of the second amended complaint,
Inkelaar was charged with committing aggravated indecent liberties with a child on or
about December 1, 2007. As acknowledged by the State in its appellate brief, the
complaint identified both counts as violations of K.S.A. 21-3504(a)(3)(A) and as being
off-grid felonies but did not specifically allege Inkelaar was 18 years of age or older. It is
well established that

"[t]he Sixth Amendment to the United States Constitution gives an accused the
right to 'be informed of the nature and cause of the accusation'; the Kansas Constitution
Bill of Rights, § 10 mandates that 'the accused shall be allowed . . . to demand the nature
and cause of the accusation against him.' Generally, if a complaint fails to include an
24

essential element of a crime charged, it is 'fatally defective, and the trial court lacks
jurisdiction to convict the defendant of the alleged offense.'" Gonzales, 289 Kan. at 366
(quoting State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 [2006]).

This court has repeatedly dealt with the same issue raised by Inkelaar. See, e.g.,
State v. Huerta-Alvarez, 291 Kan. 247, 254-56, 243 P.3d 326 (2010); Martinez, 290 Kan.
at 1017-18; Gonzales, 289 Kan. at 366-70; Bello, 289 Kan. at 195-200. A defendant
challenging the sufficiency of the charging document for the first time on appeal must
show the alleged defect either "(1) prejudiced the defendant's preparation of a defense;
(2) impaired the defendant's ability to plead the conviction in any subsequent
prosecution; or (3) limited the defendant's substantial rights to a fair trial. [Citation
omitted.]" State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009); see State v. Hall,
246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson
v. State, 276 Kan. 428, 78 P.3d 40 (2003); see also State v. McElroy, 281 Kan. 256, 261,
130 P.3d 100 (2006) (applying the post-Hall analysis).

Applying this test in Martinez and Gonzales, for example, this court held the
respective defendants were adequately informed of both the crime charged and the
penalty. In each case we determined it was sufficient that the complaint listed the
defendant's date of birth, stated the charge was for an off-grid person felony, and
otherwise specifically listed the elements of the crime—aggravated indecent liberties
with a child under the age of 14 in Gonzales, 289 Kan. at 369, and rape of a child under
14 years of age in Martinez, 290 Kan. at 1018. Further, this court found it significant in
both cases that neither defendant contended that the preparation of his defense or his right
to a fair trial were impaired. Nor did either defendant show his conviction in question
affected any subsequent prosecution. See Martinez, 290 Kan. at 1018; Gonzales, 289
Kan. at 368-69.

25

The same conclusions apply in this case. The two amended complaints listed
Inkelaar's date of birth (1963), stated the offenses in both aggravated indecent liberties
counts were off-grid person felonies, and otherwise listed the elements of aggravated
indecent liberties with a child, which was the only Jessica's Law crime at issue. Further,
Inkelaar has not argued the preparation of his defense was impaired. Nor has he shown
how his convictions—aggravated indecent liberties with a child and attempted aggravated
indecent liberties with a child—have affected any subsequent prosecution or affected his
right to a fair trial. Thus, Inkelaar was adequately informed of both the crimes alleged
and the penalty proposed. Consequently, we hold this challenge, which is raised for the
first time on appeal, fails to make the necessary showing that the trial court had no
jurisdiction to sentence Inkelaar for the off-grid offenses.

Jury Instructions

Inkelaar's second age-related challenge relates to the trial court's failure to instruct
the jury to determine whether Inkelaar was 18 years of age or older at the time of the
offenses of aggravated indecent liberties with a child. In raising this issue, Inkelaar relies
on several recent decisions involving Jessica's Law in which this court held the failure to
allege and instruct on the defendant's age was error under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See State v. Morningstar, 289 Kan.
488, 494-95, 213 P.3d 1045 (2009); Gonzales, 289 Kan. at 371; Bello, 289 Kan. at 199-
200. In those cases, the record contained no evidence on which a jury could have based a
finding about the defendant's age, even if the jury was properly instructed. Accordingly,
this court remanded the cases for resentencing under the Kansas Sentencing Guidelines
Act, K.S.A. 21-4701 et seq., rather than under the off-grid sentencing provisions required
by Jessica's Law. Inkelaar seeks the same sentencing relief in this appeal.

But, as aptly noted by the State in its letter of additional authority under Supreme
Court Rule 6.09(b) (2010 Kan. Ct. R. Annot. 48), this court subsequently considered, in
26

State v. Reyna, 290 Kan. 666, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010), whether
the failure to instruct the jury on this element of the crime was harmless error when the
trial record contained evidence of the defendant's age that would have permitted the jury
to make the appropriate finding, if properly instructed to do so. In doing so, this court
applied the federal constitutional harmless error standard of Chapman, 386 U.S. 18,
stating: "[T]his court will apply the harmless error analysis to the omission of an element
from the instructions to the jury when a review of the evidence leads to the conclusion
beyond a reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error." Reyna, 290 Kan. at 681 (citing Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.
2546, 165 L. Ed. 2d 466 [2006], and Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827,
144 L. Ed. 2d 35 [1999]). Other cases have followed suit. See, e.g., State v. Race, 293
Kan. ___, ___ P.3d ___ (2011); Martinez, 290 Kan. at 1019; State v. Garza, 290 Kan.
1021, 1031-32, 236 P.3d 501 (2010); State v. Colston, 290 Kan. 952, Syl. ¶¶ 12, 13, 235
P.3d 1234 (2010).

Our recent discussion of the federal constitutional harmless error standard in State
v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), reaffirms this standard must be applied to
an Apprendi based, i.e., a federal Constitution based, error. See Ward, 292 Kan. at 567
(citing Gamache v. California, 562 U.S. __, 131 S. Ct. 591, 178 L. Ed. 2d 514 [2010], to
explain that states must apply federal harmless error standard when reviewing claims
under the United States Constitution). Further, we note this standard is equivalent to the
standard this court applies to any claim of instructional error where no objection has been
made at trial. Compare Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123
L. Ed. 2d 353, reh. denied 508 U.S. 968 (1993) (quoting Chapman, 386 U.S. at 24, and
explaining Chapman standard means relief from error is required "merely because there
is a '"reasonable possibility"' that trial error contributed to the verdict"), with State v.
Bailey, 292 Kan. 449, 455, 255 P.3d 19 (2011) (explaining K.S.A. 22-3414[3] requires
party who fails to object to jury instruction to establish jury instruction is "clearly
27

erroneous," which means reviewing court must be "'firmly convinced there is a real
possibility the jury would have rendered a different verdict if the error had not
occurred'").

Applying the federal constitutional harmless error standard in Reyna and several
subsequent cases, we determined the failure to instruct the jury regarding the element of
the defendant's age did not require reversal of the defendant's Jessica's Law conviction. In
Reyna, the defendant testified at trial and stated his own age. Reyna, 290 Kan. at 679.
Similarly in Colston, sufficient evidence of the defendant's age was presented through
testimony of his son who was 29 years old and who testified he had a sister who was also
the defendant's child and who was 31. In addition, Colston's girlfriend testified she was
31 years old and Colston was about 20 years older. Colston, 290 Kan. at 974. In both
cases, this court determined there was sufficient evidence in the record establishing the
defendant's age such that any instructional error was harmless.

In Inkelaar's case, evidence of Inkelaar's age was presented to the jury. Inkelaar
did not testify in his own defense, but Detective Riddle testified Inkelaar was born in
1963. And the detective confirmed Inkelaar was over 18 years of age at the time of the
December 5, 2007, police interview. Additionally, Tyrone testified he was 39 years old at
the time of trial and Inkelaar was 6 to 8 years older. T.M. testified he was 46 years old at
the time of trial and had attended junior high and high school with Inkelaar, who entered
military service shortly after high school. M.C. testified Inkelaar had "been my dad's
friend for, I think, 28 years or so."

We conclude beyond a reasonable doubt that the omitted element was uncontested
and supported by overwhelming evidence, such that the jury verdict would have been the
same absent the error. Consequently, the error in failing to instruct the jury regarding
Inkelaar's age was harmless. Accordingly, we affirm Inkelaar's off-grid sentences under
Jessica's Law.
28


ISSUE 4: Did the trial court abuse its discretion by excluding evidence of third-party
guilt?

For Inkelaar's final argument, he contends the trial court deprived him of his right
to present a defense by denying his request to introduce evidence of a third party's guilt.
Inkelaar specifically complains about the court's refusal to permit evidence of prior
sexual abuse allegations against A.C., the father of the victims in this case. This
contention lacks merit.

Standard of Review

A trial court's decision under the third-party evidence rule at the heart of the
evidentiary question before this court is subject to an abuse of discretion standard of
review on appeal. See State v. Marsh, 278 Kan. 520, 531, 102 P.3d 445 (2004), rev'd on
other grounds Kansas v. Marsh, 548 U.S. 163, 123 S. Ct. 2516, 165 L. Ed. 2d 429
(2006). This standard of review places the burden of proof on appeal on the party alleging
that such an abuse of discretion occurred. State v. Brown, 285 Kan. 261, 303, 173 P.3d
612 (2007); State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006). The trial court's
decision may be an abuse of discretion if the decision does not rest on considerations
imposed by prior case law, i.e., is based on an error of law. See Ward, 292 Kan. at 550
(discretion is abused if decision [1] is arbitrary, fanciful, or unreasonable, i.e., if no
reasonable person would have taken the view adopted by the trial court; [2] is based on
an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or [3] is
based on an error of fact, i.e., if substantial competent evidence does not support a factual
finding on which a prerequisite conclusion of law or the exercise of discretion is based);
State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006) (trial court's discretion must
be guided by the considerations imposed by prior case law).

29

During the cross-examination of A.C., when he was testifying about his children's
allegations against Inkelaar in this case, defense counsel asked A.C. whether he had ever
"been accused of anything like this." The trial court sustained the State's objection based
on relevance. Then, outside the presence of the jury, defense counsel moved to present
evidence of prior allegations against A.C. by his younger half-brother, J.B. The trial
judge initially stated: "If it doesn't involve these particular children, I don't believe it's
admissible." The court further indicated it appeared as if defense counsel was engaging in
a "fishing expedition" and refused to allow Inkelaar to pursue the matter during A.C.'s
cross-examination. The court did indicate it would review the matter if the defense
presented a brief on the issue.

The next day, outside the presence of the jury, defense counsel proffered
testimony from J.B. The proffer stated that J.B. would testify A.C. raped him on one
occasion, and on another occasion forced J.B. and a cousin to perform oral sex upon him.
According to J.B., A.C. was a teenager at the time and J.B. was in "grade school" and
was at least 10 years old. He testified this happened before M.C. and Z.C. were born.

Before the jury returned to the courtroom, defense counsel also told the court he
had additional information, in the form of medical records, suggesting A.C. had allegedly
sexually abused M.C. and Z.C. when they were 2 and 3 years old, respectively. The
information indicated A.C.'s ex-wife, J.M., the biological mother of M.C. and Z.C., had
reported the alleged abuse. The trial court withheld a ruling on the admissibility of this
third-party guilt evidence in order to give defense counsel a chance to locate J.M. As for
the evidence involving J.B.'s allegations of sexual abuse by A.C., the trial court found it
was "very remote in time."

The following day, defense counsel was permitted to proffer the testimony of J.M.
Outside the presence of the jury, J.M. testified that in 2001, 2-year-old M.C. told her A.C.
"whipped out his weenie and wanted her to suck it." J.M. said she was bathing M.C. and
30

noticed "bruises on her behind." J.M. testified she took M.C. to the hospital, a nurse
"checked her out," and "SRS investigated" the matter. When asked if Z.C. ever indicated
his father had touched his "wee-wee," J.M. testified, "Not to my knowledge, no."

Defense counsel argued both J.B. and J.M. should be allowed to testify "as
defendant's claim of third-party defense." Defense counsel explained to the trial court:
"We're asking the jury to consider evidence that a third party [A.C.] . . . has a strong
motivation to try and make sure that [Inkelaar] is the person that is taken to Court for
these things so that he himself can avoid possible prosecution." The court considered and
excluded the evidence under the third-party evidence rule.

Third-Party Evidence Rule

Generally, evidence of the motive of a third party to commit the crime, standing
alone, is not relevant, but such evidence may be relevant if there is other evidence
connecting the third party to the crime. The trial court must evaluate the totality of facts
and circumstances in a given case to determine whether the defense's proffered evidence
effectively connects the third party to the crime charged. Brown, 285 Kan. at 303-04.

Inkelaar argues the third-party evidence in this case is "analogous" to the third-
party evidence in Marsh, 278 Kan. 520, and State v. Evans, 275 Kan. 95, 62 P.3d 220
(2003). (Although Marsh was reversed by the United States Supreme Court as to the
death penalty issue presented in the case, this court has explained that Marsh remains
good law as to the third-party evidence rule. See, e.g., Brown, 285 Kan. at 303.) In
Marsh, this court made it clear the admission of third-party evidence does not turn on the
sometimes hazy distinction between direct and circumstantial evidence. In that case,
Marsh was accused of killing a mother and her child, but there was also evidence a third
party, who was the husband and father of the victims, might have been involved. The
Marsh court found the defendant had proffered more than mere evidence of the husband's
31

motive, in part because there was evidence of a mixture of the husband's blood and the
blood of one of the victims on Marsh's shoes. As a result, this court held Marsh's right to
a fair trial had been violated by the trial court's exclusion of the third-party evidence.
Marsh, 278 Kan. at 533.

In Evans, the defendant tried to admit evidence that another person was seen
holding the murder weapon immediately after the fatal shot was fired. Evans, 275 Kan. at
105-06. There was also evidence that a third party admitted to the shooting and later
dumped the body. This court held the trial court erred in not admitting the third-party
evidence. Evans, 275 Kan. at 106.

Hence, in both cases there was evidence linking the third party to the crime. In
contrast, in this case there is no evidence that A.C. could have committed the crimes
charged against Inkelaar. In this regard, this case is more like State v. Adams, 280 Kan.
494, 505, 124 P.3d 19 (2005).

In Adams, the defendant was charged with the death of a small child in a shaken
baby scenario. Adams tried to admit evidence establishing the child's mother had abused
one of her daughters from a previous marriage and the divorce decree from that marriage
gave her only supervised visits with the children. Adams was trying to use this evidence
in conjunction with evidence of the mother's aggressive actions toward the child in the
weeks before the death to prove the mother caused the child's death. This court
determined these facts were distinguishable from those in Marsh or Evans in that none of
the evidence proffered by Adams could place the mother at the crime scene at the time
relevant to the child's injuries or death. Adams, 280 Kan. at 506-07. Without such
evidence, the Adams court found the defendant's "effort to pin blame on [the mother]
amounted to baseless innuendo. In such a situation, the district judge's decision to
exclude [the evidence] did not qualify as an abuse of discretion." Adams, 280 Kan. at
507; see State v. Hooker, 271 Kan. 52, 64-66, 21 P.3d 964 (2001) (trial court did not err
32

in excluding as hearsay proffered testimony that two other people had threatened to harm
murder victim, where defendant failed to provide any evidence to connect the two other
persons with victim's death and the State connected defendant with victim's murder
through eyewitness testimony).

Similarly, in this case, none of the evidence proffered by the defense connected
A.C. to the charged crimes. The allegations involving A.C.'s half-brother did not involve
the victims in this case and are alleged to have occurred before the victims were even
born. As for the allegations of A.C.'s sexual abuse of the victims, according to the
proffered evidence, J.M. reported the alleged incidents occurred when the children were
ages 2 and 3 years old, respectively. As observed by the trial court, the alleged sexual
abuse in the present case did not begin until approximately 2 years after those prior acts,
when M.C. was 4 years old. The incidents that led to the report of abuse—on or about
November 30 to December 2, 2007—occurred while the children were staying with
Inkelaar and A.C. was out of town. Finally, as the trial court pointed out, both children
only identified Inkelaar as the perpetrator of the sex acts in this case.

In summary, there is nothing tying A.C. to the charged crimes. Inkelaar's attempt
to show third-party guilt falls short, and we hold the trial court did not abuse its discretion
in denying the admission of the evidence.

Affirmed.

* * *

JOHNSON, J., concurring in part and dissenting in part: I agree with the majority's
ultimate decision to review the K.S.A. 60-455 evidentiary issue. However, given the
majority's extended discussion on the preservation of the issue, I want to confirm that I
do not read the plain language of K.S.A. 60-404 as requiring a defendant to reassert his or
33

her objection to the admission of specific evidence after the district court has
unequivocally ruled that the particular evidence is admissible. See State v. Hollingsworth,
289 Kan. 1250, 1260-61, 221 P.3d 1122 (2009) (Johnson, J., dissenting). In other words,
once the district court rules that certain evidence is admissible, K.S.A. 60-404 does not
require the defendant to, in essence, move for a reconsideration of the court's evidentiary
ruling each and every time a witness refers to the judicially admitted evidence. Such a
requirement, if it exists, is judicially manufactured and, in my view, unsupportable.

The majority apparently justifies its serial objection requirement on the possibility
that the evidence at trial will unfold differently than it did at the pretrial hearing. I submit
that there is a much less draconian solution to that potentiality. An appellate court
presented with a defendant's challenge to the district court's pretrial ruling allowing the
admission of contested evidence where the defendant did not reassert an objection at trial
could simply review the matter on the basis of the evidence presented at the pretrial
hearing. In other words, the defendant must have reasserted his or her objection at trial
and requested a reconsideration of the court's pretrial ruling in order to get an appellate
review based upon the evidence presented at trial. In that manner, the defendant gets an
appellate review of the precise ruling that he or she asked the district court to make, and
the district court cannot be overruled based upon evidence that the court did not consider
in making its ruling. On the other hand, the defense is relieved of the hypertechnical
requirement that it engage in acts of futility to preserve a challenge to a ruling that has
been made explicitly clear to everyone involved with the case.

Moving on to the principal purpose for my separate writing, I am still firmly
convinced that sentencing a person for a crime for which the person was neither charged
by the State nor convicted by the jury is just plain wrong—constitutionally, statutorily,
jurisdictionally, and morally wrong. Cf. State v. Reyna, 290 Kan. 666, 690-95, 234 P.3d
761, cert. denied 131 S. Ct. 532 (2010) (Johnson, J., dissenting); State v. Garza, 290 Kan.
1021, 1036-37, 236 P.3d 501 (2010) (Johnson, J., dissenting).
34


Ironically, the majority makes the point that the constitutional and jurisdictional
aspects are well-settled law. Quoting from State v. Gonzales, 289 Kan. 351, 366, 212
P.3d 215 (2009), the majority acknowledges that the state and federal Constitutions
require sufficient clarity in the charging document so that the accused is informed of the
nature and cause of the accusation. The complaint in this case contained the elements
which would constitute the severity level 3 version of aggravated indecent liberties with a
child. See K.S.A. 21-3504(c). The majority points to that circumstance—i.e., where the
complaint "otherwise specifically listed the elements of the crime"—as being sufficient to
adequately inform the defendant that he was being charged with the off-grid Jessica's
Law version of the offense. I confess that I am confused by that logic. For instance, if a
complaint contained the elements for second-degree intentional murder, I would not
opine that it adequately informed the defendant that he or she could be sentenced for
premeditated first-degree murder because, even though the complaint omitted the
premeditation element, it otherwise specifically listed the elements of intentional murder.
To the contrary, it is more misleading to a defendant where the elements listed in the
complaint constitute all of the elements of a lesser version of a crime, than where the
listed elements are incomplete to charge any crime. I would not find that the complaint in
this case passed constitutional muster with respect to the off-grid version of the crime.

The Gonzales quote selected by the majority also recites that a complaint that fails
to include an essential element of the crime charged is "'fatally defective, and the trial
court lacks jurisdiction to convict the defendant of the alleged offense.'" 289 Kan. at 366
(quoting State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 [2006]). There is no question
that the complaint in this case failed to include an essential element of the off-grid
version of aggravated indecent liberties with a child—that the defendant was age 18 or
older. Accordingly, the district court lacked subject matter jurisdiction to convict Inkelaar
of the Jessica's Law off-grid version of the crime. Given that the district court lacked
jurisdiction, there is no basis for us to exercise jurisdiction and declare Inkelaar guilty of
35

the uncharged crime. See State v. McCoin, 278 Kan. 465, Syl. ¶ 2, 101 P.3d 1204 (2004)
("If the district court's order was entered without jurisdiction, then an appellate court does
not acquire jurisdiction on appeal.").

The majority notes that Inkelaar raises the charging document issue for the first
time on appeal and, therefore, it employs the post-Hall analysis of essentially determining
whether the defendant has been prejudiced by the defective complaint. I cannot square
that approach with the rather fundamental principle that subject matter jurisdiction may
be raised at any time, whether for the first time on appeal or even on the appellate court's
own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Moreover, a party's
failure to challenge a district court's jurisdiction cannot create subject matter jurisdiction
where it did not already exist. State v. Hoffman, 45 Kan. App. 2d 272, 275, 246 P.3d 992
(2011) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a
failure to object to the court's jurisdiction does not invest the court with the requisite
subject matter jurisdiction). Indeed, as the majority's author very recently declared: "An
appellate court has no authority to create equitable exceptions to jurisdictional
requirements." Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. ___,
Syl. ¶ 3, ___ P.3d ___ (filed September 9, 2011). Accordingly, we lack subject matter
jurisdiction to engage in fact-finding to determine Inkelaar's guilt as to the off-grid
severity level of aggravated indecent liberties with a child.

Next, I would add that there is a statutory mandate, omitted from the majority's
analysis, which provides that "[u]pon prosecution for a crime, the defendant may be
convicted of either the crime charged or a lesser included crime, but not both." K.S.A.
21-3107(2). The statute does not permit the defendant to be convicted of a greater degree
of the crime charged.

Finally, it simply offends ones innate notion of fair play to have a defendant
charged with a specific crime, defend against that crime, and be convicted by the jury of
36

that crime, but then allow the sentencing judge to impose the sentence for a crime of
greater severity. If a person test-drove, selected, and took title to a subcompact
automobile, we would not allow a judge to make an after-the-fact order requiring the
purchaser to pay the dealership the sticker price on the most expensive luxury model on
the lot. I see no difference here and I would not permit it to happen.