IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,345
STATE OF KANSAS,
Appellee,
v.
JOHN PRINE,
Appellant.
SYLLABUS BY THE COURT
1. Under K.S.A. 60-455, a court must determine that proposed evidence is relevant to prove a material fact. The court must also determine that the material fact is disputed and that the probative value of the evidence outweighs its potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission.
2. The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard.
3. The admission of K.S.A. 60-455 evidence without explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or a prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. It may be harmless under K.S.A. 60-261.
4. On the record of this child sexual abuse prosecution, the existence of criminal intent was not actually in issue at trial; and prior bad acts of the defendant could not be introduced into evidence to prove it.
5. On the record of this child sexual abuse prosecution, absence of mistake or accident was not actually in issue at trial; and the defendant's prior sexual abuse of two other children could not be introduced into evidence to prove it. Although the defendant had hypothesized during his law enforcement interview that the child victim may have become confused by certain other instances of nonsexual contact, this was not his defense at trial, and the State could not open the door for itself.
6. One of the avenues through which evidence of prior crimes or civil wrongs can be probative of plan or modus operandi–satisfying the first component of relevance, an ability to shed some light on a contested fact–is similarity. Before a district judge admits evidence of prior bad acts to prove plan or modus operandi under K.S.A. 60-455, the evidence must be so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature.
7. On the record of this case, the district judge's error in admitting evidence of prior bad acts to prove intent, absence of mistake or accident, and plan requires reversal.
8. When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
9. Under K.S.A. 21-3501(1), sexual intercourse for purposes of rape includes any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.
10. On the record of this case, there was sufficient evidence to support defendant's conviction of rape.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 1, 2006. Appeal from Reno district court; RICHARD J. ROME, judge. Judgment of the Court of Appeals affirming in part and dismissing in part is reversed. Judgment of the district court is reversed. Opinion filed January 16, 2009.
Kerry E. McQueen, of Sharp, McQueen, McKinley, McQueen & Dodge, P.A., of Liberal, argued the cause, and Stephen C. Griffis, of the same firm, was on the brief for appellant.
Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: Defendant John Prine was convicted of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child because of his conduct with a 6-year-old girl. He petitioned for our review of the Court of Appeals decision affirming his convictions in State v. Prine, No. 93,345, unpublished opinion filed December 1, 2006. We address K.S.A. 60-455 and sufficiency issues.
Factual and Procedural Background
Prine's sufficiency claim requires more elaborate discussion of the troubling case than might ordinarily be necessary.
As E.K. was taking her 6-year-old granddaughter, A.M.C., home from kindergarten on December 11, 2003, A.M.C. told her that "John" had touched her in ways he should not have touched her. E.K. notified A.M.C.'s stepmother, J.C., who came home from work and immediately took A.M.C. to the doctor. An examination revealed no injuries. J.C. had asked Prine to babysit A.M.C. and her baby brother and sister that morning; he had babysat for the family before. Prine was the best friend of A.M.C.'s father.
J.C. filed a police report. That day, Sergeant John Taylor of the Hutchinson Police Department's Juvenile Detective Bureau videotaped an interview of A.M.C. Taylor asked A.M.C. about truth and lies, and A.M.C. indicated she understood the difference. Taylor talked about good touching and bad touching, and A.M.C. said that John always gave her bad touches. A.M.C. was able to identify body parts and understood that some were private. She knew a private part on a girl is the chest. She described her bottom and referred to her vagina as her "front." She referred to a penis on a boy as a "front" too.
A.M.C. told Taylor that Prine had touched her "lots of times" when he was babysitting and her parents were gone. She said this had happened in the living room; in the laundry room by the dryer; in her parents' room; and once in the playroom while her brother and sister were present. A.M.C. said Prine touched her between her legs with his fingers, his tongue, and his tummy.
Taylor asked A.M.C. what Prine would do with his fingers when he would touch her between the legs. A.M.C. took her index and middle finger, put them up to her mouth, acting like she had licked them, and then swiped them down between her legs. She said he licked his fingers and put them between her legs. A.M.C. said, "I know what that is. It's a bad touch." She said the fingers went inside and outside.
A.M.C. also said that Prine sometimes used his fingers to pull her front apart and would lick inside. She said, "I don't know why he did that." She said she had asked him why he would do stuff like that to her, and he would not listen; she said he thought what he was doing was fun and funny.
A.M.C. also said that once she was lying on the floor with her clothes on, but with her pants down past her bottom, and Prine put his tummy between her legs and scooted her. She explained that she was on her back, her legs were almost over her head, apart, and John's exposed tummy was touching her. When asked where Prine's tummy was touching her, A.M.C. stood up and pointed to her vagina. Taylor asked her if this was on the inside or out, and A.M.C. said, "I told you, on the inside and outside."
Steve Edwards, a clinical social worker at Horizon Mental Health Center, who interviewed A.M.C. on December 18, 2003, had been working for many years with S.M., Prine's 9-year-old daughter, through a school program. Police interviewed S.M. in late December 2003, and she stated that her father had often given her bad touches. She said she was little when he had sex with her. When asked what she meant, S.M. said Prine would be naked; that he would yell at her; that he would remove her pants; and that he would set her on top of him as he lay in bed. She said she felt his penis on her vagina, but he never did anything with it, and she never saw it. S.M. thought this had happened two or three times, but she did not remember how old she was; when pressed, she suggested it was when she was 4 or 5.
The State charged Prine in four counts. The first three counts related to incidents involving A.M.C.: rape; aggravated criminal sodomy; and aggravated indecent liberties with a child. A second count of aggravated indecent liberties with a child, Count IV, was based on his alleged sexual abuse against S.M.
At Prine's preliminary hearing, the district judge granted a defense motion to dismiss Count IV, because there was no evidence the prosecution of that count had been commenced within 5 years of the commission of the crime. Prine was bound over for trial on the first three counts.
The State moved to admit evidence of other crimes or wrongs pursuant to K.S.A. 60-455. The defense opposed admission of any evidence relating to sexual abuse allegations made against Prine by S.M. or by J.J.S., Prine's half sister. The State argued the evidence was relevant to prove the material facts of intent, plan, and absence of mistake or accident. Each involved a girl about 5- or 6-years-old and simulation of a sex act without penetration by the penis; two of the cases involved oral sodomy and digital penetration. The defense responded that if the allegations had any probative value, it was far outweighed by potential prejudice; that the allegations were not similar enough to the charged crimes; that any similarities that did exist were common to many sexual abuse allegations; and that the evidence was too remote in time to be probative. The district judge decided that the evidence would be admissible at trial to prove intent, plan, and absence of mistake or accident.
At trial, A.M.C. testified about the three events she had previously described to Taylor. She said that Prine pushed her pants and underwear down, licked his fingers, and touched her front; he spread her legs, put his tongue on her front, and "was just licking it like some dog"; and, one time when she was on the floor and part of her pants were off, Prine pulled her legs apart in the air, put them over his shoulders, and scooted her with his front touching her front. She said the first event happened in the living room, the play room, in her parents' room, and in the laundry room; the second event happened in the living room; and the third event happened in the living room. The first event happened lots of times, she said, almost every day that her parents were not home. She also testified that no one had told her to say these things; rather, "it really happened." She further testified that when she asked Prine to stop and asked him why he did these things, he said it was funny to him. A.M.C. said she told her grandmother about Prine because she did not want these things to happen anymore.
A.M.C.'s trial testimony deviated from her initial interview with Taylor in one respect. She testified that Prine's fingers touched her only outside, rather than the inside and outside which she had spoken about with Taylor.
Edwards testified concerning his initial interview with A.M.C., in which she related the same incidents involving Prine that she had told police about earlier. She had demonstrated Prine's licking of his fingers in the same manner, and she had used anatomically correct dolls to demonstrate where and how Prine had touched her. Edwards further testified that he had seen A.M.C. more than a dozen times since her initial interview, and she remained extremely consistent in her disclosures. He also testified that, although A.M.C. had not experienced a traumatic event such as a tornado, a fire, or seeing someone die, she exhibited signs of posttraumatic stress disorder, including recurring nightmares, sleep disturbance, and exaggerated fear of Prine.
Over a defense objection, Edwards also testified that, before his initial meeting with A.M.C. in December 2003, he had performed a sexual abuse evaluation on then 8-year-old S.M. S.M. told Edwards that Prine would force her to go into his bedroom, would put honey on his private part, and would force her to "get back on him." She told Edwards defendant would laugh at her when she tried to wash away the honey that had gotten on her private part.
Also over a defense objection, 9-year-old S.M. testified that Prine had touched her in a bad way. She testified specifically that Prine had taken her clothes off and gotten on top of her. She testified that, when she was 3 or 4, he put honey on his private part and got on top of her. He laughed at her when she tried to wash off the honey that had gotten on her. S.M. also said that Prine "smacked" her.
S.M.'s mother testified over objection that, in December 2002, S.M. had told her she had been naked and defendant had laid her on top of him. S.M. had asked her mother if that act was sex.
J.J.S., Prine's 27-year-old half sister, testified that Prine had sexually abused her when they lived in the same house in the 1980's. Specifically, J.J.S. said that, when she was 4 or 5 years old and Prine was 17, he forced her to perform oral sex on him; he performed oral sex on her; he put his penis between her legs and rubbed it on her vagina; and he put his pointer and middle fingers inside her vagina after wetting them in his mouth. J.J.S. performed the same action that A.M.C. had performed to demonstrate. J.J.S. also testified that once, two of her other half brothers had witnessed her performing oral sex on Prine.
M.S., Prine's stepbrother, testified that, when he was about 12 years old, he saw his 5- or 6-year-old half sister, J.J.S., performing oral sex on Prine.
The district judge also admitted, over objection, a 1993 police report J.J.S. had filed about Prine's sexual abuse.
Nick Prine, the defendant's other brother, was the sole witness presented by the defense. Nick denied ever witnessing any sexual acts between Prine and J.J.S.
Pursuant to an earlier Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), hearing and ruling, the State also introduced evidence from KBI Special Agent Ricky Atteburry, who testified that Prine voluntarily made statements to the police concerning A.M.C.'s allegations in an interview on January 7, 2004. In that interview, Prine denied A.M.C.'s general allegations of sexual abuse, but he suggested that three innocent incidents might explain her stories. He suggested that, on one occasion, he had been roughhousing with A.M.C. and had picked her up with one arm under her crotch. He also said that, during the previous summer, he and A.M.C. were swimming and the bottoms of her swimsuit had moved to one side, exposing her vagina, and that she had slid down his arm, thus rubbing her vagina against his arm. On another occasion, Prine said he was looking at pornography on his computer when A.M.C. came into the room. Because she had peanut butter and jelly on her face, he licked his thumb and wiped the peanut butter and jelly off of her face.
J.C. testified that A.M.C. did not have a swimsuit at the place and during the time frame about which Prine testified.
The State also introduced evidence that Prine had tried to blackmail A.M.C.'s mother into dropping the charges against him by threatening to tell police that her husband, A.M.C.'s father, was stealing from his workplace.
Finally, Taylor testified concerning his involvement in the case and his initial interview with A.M.C. The videotape of the interview was played for the jury, but the video tape was not included in the record on appeal.
The jury was given a limiting instruction on the prior sexual abuse evidence involving S.M. and J.J.S. It read: "Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant's intent, plan, absence of mistake or accident."
During deliberations, the jury asked the district court to "elaborate on what constitutes penetration. If a finger or fingers or tongue touch only the clitoris, does that constitute a penetration of the female anatomy or labia, or vaginal opening, or simply if someone touches the clitoris, would that constitute penetration?" The court responded by directing the jury to reread Instructions No. 3 and No. 7. Instruction No. 3 told the jury to determine the weight and credibility to be given each witness and to use its common sense, knowledge, and experience in evaluating testimony. Instruction No. 7 set out the elements of rape and defined sexual intercourse as "any penetration of the female sex organ by a finger or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse."
Two and ½ hours after initially retiring for deliberations, the jury returned a verdict of guilty on each of the three counts.
At sentencing, the district judge denied Prine's motions for judgment of acquittal, new trial, and downward departure. Prine argued that he had been set up because he had rejected a romantic proposition from A.M.C.'s mother, his best friend's wife. He then accused the district judge of failing to be impartial, of unfairly favoring the prosecution. After the judge advised Prine to "keep the cussing to [him]self," Prine launched into a tirade of abusive language that earned him eight counts of direct criminal contempt. Each count added a consecutive 6 months to his sentence.
Based on a criminal history score of G for a prior felony failure to pay child support conviction, Prine received a 203-month sentence for rape; a 123-month sentence for aggravated criminal sodomy; and a 61-month sentence for aggravated indecent liberties with a child. Each was consecutive to the others, as well as to the multiple contempt sentences.
Prine argued four issues to the Court of Appeals: (1) There was insufficient evidence of penetration to support his conviction of rape; (2) the district judge erred in admitting evidence of his prior activities with S.M. and J.J.S.; (3) the district judge erred in admitting a photograph of him with a mustache, which matched A.M.C.'s description of him; and (4) the district judge erroneously denied his request for a downward departure sentence.
A majority of the Court of Appeals' panel affirmed in part and dismissed in part. Prine, slip op. at 13. On the sufficiency claim, one of the two issues before this court, the majority noted that, contrary to Prine's assertion, actual penetration of the vagina is not required to establish sexual intercourse, and "any penetration, however slight, is sufficient." Slip op. at 6-7. The majority wrote: "[P]enetration of the vagina or rupturing of the hymen is not necessary; penetration of the vulva or labia is sufficient" to establish sexual intercourse. Slip op. at 6-7 (citing K.S.A. 21-3501(1) and, inter alia, In re B.M.B., 264 Kan. 417, 434, 955 P.2d 1302 [1998]). The majority concluded that the record contained sufficient evidence that "the defendant penetrated at least the victim's vulva or labia with his lubricated fingers" and that, based on this evidence, "a rational factfinder could have found the defendant guilty of rape beyond a reasonable doubt." Prine, slip op. at 7.
On the K.S.A. 60-455 issue, the majority set out its standard of review as abuse of discretion. It noted that two of the three material factors the prior sexual abuse evidence was admitted to prove–absence of mistake and the presence of intent–were related concepts. Slip op. at 9 (citing State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 2, 65 P.3d 1078, rev. denied 276 Kan. 971 [2003]). Although Prine categorically denied A.M.C.'s allegations against him, he had offered possible innocent explanations for them. The majority held that when a defendant creates "an inference of innocent motive," evidence of a prior bad act sufficiently similar to the alleged crime becomes relevant and material to the jury's determination of guilt. Slip op. at 9-10 (citing State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 [1994]; State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268 [1989]; State v. Kackley, 32 Kan. App. 2d 927, 930, 92 P.3d 1128 [2004]). This was true, despite the general rule that evidence of prior crimes is inadmissible to show intent when intent is obviously proved by the mere doing of the charged act. See Nunn, 244 Kan. at 212.
Moreover, the majority observed, when the facts of a prior act and an alleged crime are "strikingly similar," the prior act is admissible to demonstrate that defendant had a plan or employed a distinct method of operation. Prine, slip op. at 10-11 (citing State v. Jones, 277 Kan. 413, 421, 85 P.3d 1226 [2004]). The majority said there were "a number of specific similarities" between the crime charged and the evidence of Prine's behavior with S.M. and J.J.S.: "All victims were extremely young, 4-6 years of age, when the abuse occurred." Prine, slip op. at 11. In both S.M.'s and A.M.C.'s cases, the defendant laughed at the victims; in A.M.C.'s and J.J.S.'s cases, defendant had licked his fingers and rubbed them on the victims' genital areas. "Despite some difference . . . the defendant's conduct was sufficiently similar to demonstrate a plan or common approach. Therefore, the prior bad acts were relevant and material to demonstrate a plan or a common course of conduct by the defendant." Slip op. at 11 (citing Kackley, 32 Kan. App. 2d at 932).
The majority acknowledged that a determination of relevance, i.e., the existence of probative value, and the existence of materiality to an actual issue, formed only part of the K.S.A. 60-455 analysis; a district judge also must weigh any probative value against potential prejudice to the defendant. In this case, the majority held that the probative value of evidence of Prine's intent was slight because of his general denial, but "the combined value of the prior bad acts evidence to prove intent, an absence of mistake or accident, and plan outweighed the potential prejudice to the defendant." Slip op. at 11-12. The majority was "firmly convinced" that the district court did not abuse its discretion in admitting the prior sexual abuse evidence under K.S.A. 60-455. Slip op. at 12.
Court of Appeals Judge Richard Greene dissented, suggesting that an abuse of discretion standard does not come into play on a K.S.A. 60-455 issue unless and until a reviewing court determines that "(1) the evidence was relevant to prove one of the facts specified in K.S.A. 60-455; (2) the fact being proven is a disputed, material fact; and (3) the probative value of the evidence sought to be admitted outweighs its potential prejudice." Slip op. at 14 (Greene, J., dissenting). According to the dissent, application of the precedent cited by the majority required the opposite conclusion: The prior sexual abuse evidence was not admissible to prove intent, plan, or absence of mistake or accident. Slip op. at 14-15.
Judge Greene relied on the general rule that prior sexual conduct is inadmissible to show intent when criminal intent is obviously proved by the mere doing of the charged act. Slip op. at 14 (citing Dotson, 256 Kan. at 413; Nunn, 244 Kan. at 212; Kackley, 32 Kan. App. 2d at 930.) He concluded: "[T]he allegations of defendant's conduct toward A.M.C. were so egregious that there was no room for any inference of innocent conduct, thus eliminating any need for evidence of intent." Prine, slip op. at 15 (Greene, J., dissenting).
Judge Greene also suggested that absence of mistake or accident was not a basis for admissibility unless a defendant had offered an explanation of mistake or accident for the criminal acts alleged in the case. Slip op. at 15. Here, he argued, the defendant did not claim that he accidentally touched A.M.C. "at the times and places charged, but offered an explanation that he may have accidentally touched her at other times and places. This does [not] place in dispute . . . mistake or accident. . . ." Slip op. at 15 (citing Davidson, 31 Kan. App. 2d at 379-83).
Judge Greene also took issue with the degree of similarity between the allegations made by A.M.C. and those made by S.M. and J.J.S. In his view, the differences were marked. The only similarities–the relative age of the victims and Prine's amusement at their degradation–were not enough to demonstrate modus operandi or plan. Slip op. at 15-17. As in Jones, 277 Kan. at 423, Judge Greene wrote:"'[T]here simply was insufficient evidence presented to show a distinct method of operation that could be considered "signature" or "strikingly similar" or even "similar enough" for K.S.A. 60-455 purposes.'" Slip op. at 17.
Judge Greene ultimately would have held that reversal was necessary on the K.S.A. 60-455 issue, because the State's case rested entirely on the victim's testimony, what she had told others, and the evidence of prior sexual abuse. Slip op. at 17-19 (Greene, J., dissenting).
K.S.A. 60-455 Evidence of Prior Sexual Abuse
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."
In State v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008), we review the current requirements for admission of evidence of prior crimes or civil wrongs under K.S.A. 60-455 and the standards of appellate review applicable to each facet of the analysis. Vasquez relies on our recent decision in State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008), stating:
"'[T]he K.S.A. 60-455 analysis requires several steps. . . . [T]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in.' [Citations omitted.]" Vasquez, 287 Kan. at 49.
We observe in Vasquez that Reid refined and extended our earlier ruling in State v. Gunby, 282 Kan. 39, 47-48, 56-57, 144 P.3d 647 (2006):
"'While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the rule in question, this particular determination only occurs "[o]nce relevance is established." 282 Kan. at 47. Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence.
"'[T]he legislature has defined "relevant evidence" as "evidence having any tendency in reason to prove any material fact." This statutory definition bears some resemblance to one found in Federal Rule of Evidence 401: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
"'Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.' Reed, 286 Kan. at 504." Vasquez, 287 Kan. at 49.
Vasquez then continues:
"Our Reid decision then observed that materiality merged into the federal rule on relevancy through inclusion of the '"requirement that the fact proved must be 'of consequence to the determination of the action.' . . . Determining whether evidence is 'consequential' depends on the applicable substantive law."'" 286 Kan. at 504-05 (quoting Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 [2d ed. 1999]; citing 1 Federal Rules of Evidence Manual, § 401.02[2] [9th ed. 2006] ['Both traditional requirements of relevance analysis–that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues–are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.'])." Vasquez, 287 Kan. at 50.
Vasquez explicitly recognizes that Kansas law, K.S.A. 60-401(b), mirrors federal law on the two components of the relevance concept. See Vasquez, 287 Kan. at 50 ("As Reid stated: '"Evidence having any tendency in reason to prove" suggests the probative element, while "any material fact" suggests the materiality element.'); 286 Kan. at 505." Moreover, we say in Vasquez that "both elements have a place under K.S.A. 60-455 because of the statute's references to both relevance– i.e., probativeness–and materiality. Reid, 286 Kan. at 505. In other words, the concept of relevance under Kansas law includes both whether evidence is probative and whether it is material." Vasquez, 287 Kan. at 50.
Vasquez also addresses the applicable standards of review on appeal:
"On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Reid, 286 Kan. at 507-09. With respect to relevance overall, Reid concluded: 'Obviously, if either the probative or materiality element's standard is not met, then the evidence is inadmissible. If both standards are met, then the appellate court proceeds to the next step(s) in the [K.S.A.] 60-455 analysis established in Gunby.' Reid, 286 Kan. at 509.
"The second step under K.S.A. 60-455, i.e., whether the fact was in issue at trial, is judged on appeal under a de novo standard. An appellate court is as capable of discerning whether a particular fact was in issue from a cold record. The third step, the district judge's weighing of probative value and prejudicial effect, is reviewed on appeal for abuse of discretion, a more deferential standard. See Reid, 286 Kan. at 512.
"If evidence qualifies for admission under K.S.A. 60-455 but no limiting instruction was given, the standard of review should match that applied to other jury instruction issues. If the defense requested a limiting instruction and was refused or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K.S.A. 60-261; to be reversible, the error must be inconsistent with substantial justice. See Gunby, 282 Kan. at 48, 57-59. If th