State v. Prine

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,242

STATE OF KANSAS,
Appellee,

v.

JOHN PRINE,
Appellant.


SYLLABUS BY THE COURT

1.
An issue raised for the first time on appeal may be considered when consideration
of the claim is necessary to serve the ends of justice or to prevent the denial of
fundamental rights.

2.
Ordinary rules of evidence do not violate the federal Constitution's Ex Post Facto
Clause. Application of the 2009 amendment to K.S.A. 60-455 to trial of this case after the
amendment's effective date does not violate the constitutional prohibition on ex post facto
laws.

3.
Under the plain language of K.S.A. 2009 Supp. 60-455(d), the legislature carved
out an exception to the prohibition on admission of certain types of other crimes and civil
wrongs evidence to prove propensity of a criminal defendant to commit the charged
crime or crimes for sex crime prosecutions. As long as the evidence is of "another act or
offense of sexual misconduct" and is relevant to propensity or "any matter," it is
2



admissible, as long as the district judge is satisfied that the probative value of the
evidence outweighs its potential for undue prejudice.

4.
When evidence of another act or offense of sexual misconduct is admitted under
K.S.A. 2009 Supp. 60-455(d) in a sex crime prosecution, the district judge need not give
a limiting jury instruction.

5.
In this case, the district judge erred in admitting evidence of uncharged crimes
committed by the defendant against two other victims for intent, absence of mistake or
accident, and plan. However, because the applicable amended version of K.S.A. 60-455
applied, and because it would permit admission of the same evidence on retrial to
demonstrate the defendant's propensity to commit the charged crimes, his convictions are
not reversible. There has been no error affecting his substantial rights under K.S.A. 60-
261.

Appeal from Reno District Court; RICHARD J. ROME, judge. Opinion filed May 31, 2013.
Affirmed.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: This appeal returns to this court after retrial.
3




In 2009, we reversed defendant John Prine's 2004 convictions for rape, aggravated
criminal sodomy, and aggravated indecent liberties because the district judge had erred
by admitting evidence of Prine's sexual abuse of two victims other than the one making
the allegations underlying this case. State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009)
("Prine I"). The legislature responded to our decision by amending K.S.A. 60-455, see L.
2009, ch. 103, sec. 12. The district judge ostensibly applied the amended statute to admit
the same evidence at Prine's retrial. Prine now challenges his new convictions and his
sentence of 387 months' imprisonment. His primary argument is the same that entitled
him to reversal in 2009; it does not carry the day this time around.

FACTUAL AND PROCEDURAL BACKGROUND

Crimes and Investigation

J.C's babysitter fell through. J.C's then-fiancé (now husband), Anthony, had a best
friend: defendant John Prine. J.C. contacted Prine, who agreed to act as a backup
babysitter. She left Prine with her two babies and her 6-year-old stepdaughter, A.M.C.
Anthony, A.M.C.'s father, picked her up after lunch and took her to kindergarten. J.C's
mother, A.M.C.'s future grandmother, picked A.M.C. up from school to take her back
home, where Prine was still babysitting. On the way home, A.M.C. told her grandmother
that she did not want to go home because Prine had touched her. The grandmother
relayed this information to J.C., who immediately came home. J.C. told Prine he was free
to go, which he did after taking a shower. Then J.C. and Anthony took A.M.C. to the
doctor for a medical examination. The examination revealed no injury, but J.C. and
Anthony filed a police report, as the doctor suggested.

4



Detective John Taylor interviewed A.M.C. at the police station. The interview was
videotaped. They talked about truth and lies, and about good and bad touching. A.M.C.
told Taylor that "John" had given her "bad touches." She told Taylor that Prine had
touched her on her "front"—which she identified with "where she went pee from"—with
his fingers, his tongue, and his tummy. She demonstrated how he licked his two fingers
and touched her front, and she described how he "would pull my front open and lick
inside."

Taylor also interviewed Prine, who denied ever inappropriately touching A.M.C.
Prine became annoyed and left the police station, but he returned later to make a report
concerning illegal activity at a grocery warehouse where Anthony worked. Specifically,
he reported that Anthony was stealing from the warehouse.

Several weeks later, Taylor interviewed Prine again. At this time, Prine offered
information about unintentional conduct that might have formed the basis for A.M.C.'s
allegations. One time, he said, A.M.C. had a swimsuit on and slid down his arm and the
side of her swimsuit moved, exposing her vagina; on other occasions, Prine had
roughhoused with A.M.C. and his hand might have slipped; and one time A.M.C. got
peanut butter on her face, and Prine had licked his thumb and wiped it off. Prine also
suggested that A.M.C.'s father might have been the one who molested her.

Between the time that A.M.C. made her initial allegations about Prine and the time
that she was interviewed, J.C. called T.M. and informed her about A.M.C.'s accusations.
T.M. was Prine's ex-wife and had two children with him. She and defendant had been
involved in a bitter custody dispute. T.M.'s daughter, S.M., had previously made
allegations that Prine molested her. Taylor interviewed S.M. The interview was recorded.
At the time of her interview, S.M. was 9 years old. She stated that defendant—her
father—had sex with her when she was little. When she was 4 or 5 years old, he would
5



place her on top of his bare body and she would be naked from the waist down and she
could feel his penis on her vagina.

Taylor also interviewed Prine's younger sister, J.S., who had previously reported
being molested by defendant. At the time of her interview, J.S. was 27 years old. She
indicated that, from the time she was about 4 years old until she was 10 or 11, defendant
sexually abused her. He would lick two fingers and touch her vagina; touch his penis to
her vagina; put his mouth and lips on her vagina; and/or wipe saliva on her vagina. She
also described him forcing her to have oral sex with him by placing his penis in her
mouth. She stated that two of her brothers had, at least on one occasion, witnessed this
abuse. When J.S. was 15 years old, she filed a police report in her hometown in Montana,
detailing Prine's sexual abuse of her.

First Trial and Appeal

After Prine was tried and convicted by a jury on the evidence described above,
including the video of Taylor's interview of A.M.C., he appealed. He argued, among
other things, that the district judge erred in admitting evidence of his prior sexual abuse
of S.M. and J.S. A divided Court of Appeals panel affirmed the admission and his
convictions. See State v. Prine, No. 93,345, 2006 WL 3479017 (Kan. App. 2006)
(unpublished opinion).

On the K.S.A. 60-455 evidence, the majority stated that, despite a general rule that
evidence of prior crimes is inadmissible to show intent when it is obvious from the mere
doing of the charged act, such evidence should be admissible when a defendant has
created "an inference of innocent motive." 2006 WL 3479017, at *4. The majority also
relied on its view that, "[d]espite some difference . . . the defendant's conduct [with
A.M.C.] was sufficiently similar [to evidence of sexual activity with S.M. and J.S.] to
6



demonstrate a plan or common approach." 2006 WL 3479017, at *5. It also held that,
even though the probative value of Prine's intent was slight because of his general denial
of the charged crimes, "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." 2006 WL 3479017, at *5.

Judge Richard D. Greene dissented on the issue. He would have held that the
K.S.A. 60-455 evidence was not admissible to prove intent, absence of mistake or
accident, or plan, and that the erroneous admission of the evidence to show propensity
denied Prine a fair trial. Specifically, Judge Greene wrote that "there was no room for any
inference of innocent conduct." 2006 WL 3479017, at *6 (Greene, J., dissenting). In his
view, intent and absence of mistake or accident were not in issue, as Prine had not offered
an innocent explanation for the charged conduct. Judge Greene also wrote that the
allegations made by S.M. and J.S. were not sufficiently similar to those made by A.M.C.
for the uncharged crimes to prove plan or modus operandi. 2006 WL 3479017, at *6.

On Prine's petition for review, this court reversed the convictions and remanded
the case for retrial. In our opinion, we discussed the history of K.S.A. 60-455's
inconsistent application to child sexual abuse cases. We concluded that, here, although
potentially probative, the evidence of prior sexual abuse of S.M. and J.S. was not material
because intent was not in issue; the acts alleged were obviously criminal and not
innocent. We also concluded that the evidence was not relevant to prove absence of
mistake or accident; defendant's pretrial interview hypotheses for how the allegations
arose did not create a basis for the admission of the evidence because the theory of his
trial defense was categorical denial. Furthermore, after reviewing the inconsistent
application of a similarity standard for admission of other crimes and civil wrongs
evidence to prove "plan," we held that such evidence must be "so 'strikingly similar' in
pattern or so distinct in method of operation as to be a 'signature.'" Prine I, 287 Kan. at
7



735 (quoting State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 [2004]). Here, although
S.M. and J.S. were the same gender as A.M.C. and were abused at approximately the
same age, and although some of the activities defendant engaged in with each victim bore
some likeness, the behaviors were not so unusual or identical as to constitute a signature.
Having held that none of the bases for admission under K.S.A. 60-455 were sound, we
addressed harmlessness of the error. Ultimately, we concluded that, because the State's
entire case hinged on A.M.C.'s credibility, the error required reversal of Prine's
convictions. Prine I, 287 Kan. at 739-40.

In Prine I, we also noted that "evidence of prior sexual abuse of children is
peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A.
60-455 and, thus, convictions of such crimes are especially vulnerable to successful
attack on appeal." However, the "modern psychology of pedophilia" suggests that
propensity evidence may possess probative value for juries, because "sexual attraction to
children and a propensity to act upon it are defining symptoms of this recognized mental
illness." We suggested that the legislature could "examine the advisability of amend[ing]
K.S.A. 60-455." Prine I, 287 Kan. at 737.

K.S.A. 60-455 Amendment

Amend the legislature did, just 3 months after our decision was issued. K.S.A.
2009 Supp. 60-455 became effective April 30, 2009. L. 2009, ch. 103, sec. 12. The
amended statute's subsection (a) contains the original prohibition on admission of other
crimes or wrongs evidence. Its subsection (b) contains the earlier version's non-
exhaustive list of material facts that other crimes and civil wrongs evidence is admissible
to prove. The new subsection (c) states that, in any criminal action other than certain
listed sexual-offense prosecutions, such evidence is admissible "to show the modus
operandi or general method used by a defendant to perpetrate similar but totally unrelated
8



crimes when the method of committing the prior acts is so similar to that utilized in the
current case before the court that it is reasonable to conclude the same individual
committed both acts." K.S.A. 2009 Supp. 60-455(c). K.S.A. 2009 Supp. 60-455(d) reads
in pertinent part:

"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal
action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of
chapter 21 of the Kansas Statutes Annotated and amendments thereto, evidence of the
defendant's commission of another act or offense of sexual misconduct is admissible, and
may be considered for its bearing on any matter to which it is relevant and probative."

The statute requires the State to disclose such evidence and its intent to introduce it at
least 10 days before trial, K.S.A. 2009 Supp. 60-455(e), and instructs that the statute
"shall not be construed to limit the admission . . . of evidence under any other rule or to
limit the admissibility" of other crimes or civil wrongs evidence in actions other than
sexual offense criminal actions. K.S.A. 2009 Supp. 60-455(f). Subsection (g) lists the
included acts or offense(s) of sexual misconduct referenced in subsection (d). Finally, the
amended statute contains a severability provision. K.S.A. 2009 Supp. 60-455(h).

Retrial

At Prine's August 2009 retrial, A.M.C. again testified. She told the jury that Prine
touched her "private," on the inside and the outside, and with his fingers, his tongue, and
his stomach. She also said that he would lick his two fingers and touch her private parts.

Steve Edwards, a clinical social worker who had performed a sexual abuse
evaluation on A.M.C., testified that he interviewed her about good touching and bad
touching, and about body parts. She told Edwards that "John," her dad's friend, was
"doing it to her," and that it happened more than one or two times and in "lots of places"
9



in her house. A.M.C. told Edwards that Prine had touched her front part with his fingers,
his tongue, and his tummy.

In addition, on retrial, on the State's motion and over defendant's continuing
objection, the district judge allowed S.M. and J.S. to testify about Prine's uncharged
abuse of them. The judge apparently relied upon the freshly amended K.S.A. 60-455, but
the record before us contains neither a written ruling on the State's motion nor a transcript
of a proceeding in which the motion was heard and granted. The State's motion to admit
the evidence had argued it was admissible under the newly amended statute because
subsection (d) required it to be only "relevant and probative," not "strikingly similar"; and
the evidence was relevant and probative to prove intent, lack of mistake or accident,
and/or plan.

S.M., 14 at the time of retrial, testified that Prine would "tak[e] me into the
bedroom and tak[e] his clothes off, tak[e] mine off, and then [sit] me on the bed and then
hav[e] sex, basically." Edwards, the social worker, testified that he had counseled S.M.
and around February 2003 performed a sexual abuse evaluation on her. S.M. had told him
that "John," who was her biological father, would force her to come into a bedroom,
would put honey on his private part, and would force her to "get on his private." When
S.M. testified during the retrial, she said that she remembered telling Edwards about
honey but she did not remember "where it [fit] in."

S.M.'s mother testified about how she learned that S.M. had been molested, and
how it was that J.C. eventually contacted her.

J.S. testified that from about the time she was 4 years old until she was about 10,
Prine, who was her half-brother, would sexually abuse her. He would force her to
perform oral sex on him; he would perform oral sex on her; he would lick his fingers and
10



touch her between the legs; and he would rub his penis between her legs. She testified
that later, when she was 15, she made a report about this abuse to the police in Montana
where she lived. She testified that two of her brothers had witnessed at least one incident.

J.S.'s half-brother, M.S., testified that in 1983, when he was about 12 years old and
J.S. was about 6, he remembered looking through a bedroom door and seeing her
performing oral sex on defendant.

N.P., the other brother who had allegedly witnessed the 1983 incident, testified for
the defense. He denied witnessing Prine abuse J.S. and said M.S. had told him that no
abuse happened.

Prine also testified during his retrial. He described his family relationships and his
friendship with Anthony. He testified about his relationship with J.C., and how she began
making advances toward him, which he rebuffed. He testified about the events of
December 11, 2003, when he babysat J.C.'s and Anthony's children, and he denied
licking or inserting his fingers into A.M.C.'s vagina. He testified about having offered
possible explanations to the police about "where [such] an idea could end up coming
from"; again, a swimsuit malfunction, roughhousing, and a "spit bath." He testified that,
after these allegations arose, he reported that Anthony was stealing from the warehouse
where he worked, and that he did so because he was angry. He denied suggesting that
Anthony had molested A.M.C. He also denied sexually molesting either his daughter,
S.M., or his half-sister, J.S.

The jury was instructed that it could consider evidence of uncharged sexual
offenses "solely for the purpose of proving John Prine's intent, plan, absence of mistake
or accident." Prine did not object to the language of this instruction. Prine was again
convicted, and he was sentenced to 387 months' imprisonment.
11




Appeal

This appeal was transferred to this court from our Court of Appeals on our own
motion. Prine raises four claims of error. First, Prine argues that the district judge erred in
admitting evidence of his prior sexual abuse of J.S. and S.M. Second, he argues that
application of the amended version of K.S.A. 60-455 at his retrial violated the federal
constitutional prohibition on ex post facto laws. Prine's third and fourth claims challenge
his sentence. The arguments on both sentencing challenges have previously been
rejected, and we decline to depart here from our precedents. See, e.g., State v. Johnson,
286 Kan. 824, 851, 190 P.3d 207 (2008) (imposition of aggravated sentence in grid box
without factors proved beyond reasonable doubt to jury not constitutional violation);
State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002) (imposition of increased sentence
based on criminal history not proved to jury beyond reasonable doubt not constitutional
violation).

We will not further discuss Prine's third and fourth claims of error in the remainder
of this opinion. We address Prine's first and second claims of error in reverse order for
the sake of analytical clarity.

DISCUSSION

Ex Post Facto

Prine acknowledges that this issue was not raised before the district court. Issues
not raised below generally are precluded on appeal. See State v. Warledo, 286 Kan. 927,
938, 190 P.3d 937 (2008). This rule includes constitutional grounds for reversal. See
State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
12




But this preservation rule is not without exceptions. A constitutional question
raised for the first time on appeal may be considered when: (1) the newly asserted theory
involves only a question of law arising on proved or admitted facts and is determinative
of the case; (2) consideration of the question is necessary to serve the ends of justice or to
prevent the denial of fundamental rights; or (3) the district court is right for the wrong
reason. See State v. Herbel, 296 Kan. 1101, Syl. ¶ 5, 299 P.3d 292 (2013).

Prine urges us to address his ex post facto claim because the first and second
exceptions apply. We agree that this is an appropriate case for invocation of the second
exception. In Prine I, we concluded that the admission of evidence concerning prior
sexual abuse of S.M. and J.S. violated the pre-2009 statute, and the erroneous admission
of that evidence was not harmless. If retroactive application of the amended statute
violates the Ex Post Facto Clause of the federal Constitution, then Prine insists that his
convictions must again be reversed and the case remanded for a third trial because of
Prine I's analysis of the old version of K.S.A. 60-455. In short, the contours of our earlier
decision set up the possibility that today's ruling on the ex post facto issue claim could
lead to a violation of Prine's fundamental right to a fair trial. We therefore choose to
address this constitutional question under the second exception to our preservation rule.
See State v. Garcia, 285 Kan. 1, 10, 169 P.3d 1069 (2007) (argument that application of
amended statute of limitations violated ex post facto considered despite failure to raise
statute of limitations defense, ex post facto argument in district court).

The United States Supreme Court has set forth four categories of ex post facto
violations:

"'1st. Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a
13



crime, or makes it greater than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of the offence,
in order to convict the offender. All these, and similar laws, are manifestly unjust and
oppressive.'" Stogner v. California, 539 U.S. 607, 612, 123 S. Ct. 2446, 156 L. Ed. 2d
544 (2003) (quoting Calder v. Bull, 3 U.S. [3 Dall.] 386, 390-91, 1 L. Ed. 648 [1798];
law enacted after expiration of previously applicable statute of limitations period violated
Ex Post Facto Clause when applied to revive a time-barred prosecution).

Kansas decisions have restated the prohibition on ex post facto laws to require two
elements to be present: "(1) The law must be retrospective, applying to events occurring
before its enactment, and (2) it must alter the definition of criminal conduct or increase
the penalty by which a crime is punishable." Anderson v. Bruce, 274 Kan. 37, 43, 50 P.3d
1 (2002). In other words, the law must be retrospective and it must disadvantage the
offender affected by it. State v. Chamberlain, 280 Kan. 241, 247, 120 P.3d 319 (2005)
(citing, e.g., Stansbury v. Hannigan, 265 Kan. 404, 412, 960 P.2d 227, cert. denied 525
U.S. 1060 [1998]). The critical question in evaluating an ex post facto claim is whether
the law changes the legal consequences of acts completed before its effective date.
Weaver v. Graham, 450 U.S. 24, 31, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981); State v.
Armbrust, 274 Kan. 1089, 1093, 59 P.3d 1000 (2002).

Impermissible under the fourth Stogner category, implicated here, are laws that
reduce the burden of persuasion the prosecution must satisfy to win a conviction. Carmell
v. Texas, 529 U.S. 513, 530, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000) (amendment to
Texas statute authorizing conviction of certain sex offenses on victim's testimony alone
altered rules of evidence, required less evidence to convict; previous statute required
victim's testimony plus corroborating evidence); Hopt v. Utah, 110 U.S. 574, 590, 4 S.
Ct. 202, 28 L. Ed. 262 (1884) ("Any statutory alteration of the legal rules of evidence
14



which would authorize conviction upon less proof, in amount or degree, than was
required when the offence was committed" may run afoul of ex post facto prohibition.).

But ordinary rules of evidence generally do not violate the Clause. Carmell v.
Texas, 529 U.S. at 533 n.23 ("[S]uch rules, by simply permitting evidence to be admitted
at trial, do not at all subvert the presumption of innocence . . . [and] to the extent one may
consider changes to such laws as 'unfair' or 'unjust,' they do not implicate the same kind
of unfairness implicated by changes in rules setting forth a sufficiency of the evidence
standard.").

The United States Supreme Court has consistently held that

"'[s]tatutes which simply enlarge the class of persons who may be competent to testify in
criminal cases are not ex post facto in their application to prosecutions for crimes
committed prior to their passage; for they do not attach criminality to any act previously
done, and which was innocent when done; nor aggravate any crime theretofore
committed; nor provide a greater punishment therefor than was prescribed at the time of
its commission; nor do they alter the degree, or lessen the amount or measure, of the
proof which was made necessary to conviction when the crime was committed.'"
Carmell, 529 U.S. at 543 (quoting Hopt, 110 U.S. at 589).

Such a change does not qualify as ex post facto, "[e]ven though it may work to the
disadvantage of a defendant." Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53
L. Ed. 2d 344 (1977).

We find the case of Thompson v. Missouri, 171 U.S. 380, 18 S. Ct. 922, 43 L. Ed.
204 (1898), to be virtually indistinguishable from the one before us today. In that case,
George Thompson was tried and convicted for poisoning the sexton of a St. Louis church.
The evidence was entirely circumstantial. Key questions of fact included the authorship
15



of a prescription for strychnine and a certain letter addressed to the church organist that
contained threatening language about the sexton. Thompson denied writing either the
prescription or the letter. At trial, several personal letters written by Thompson to his wife
were admitted for purposes of handwriting comparison. The Supreme Court of Missouri
held this was error and reversed and ordered a new trial. Before the new trial was held,
the Missouri Legislature enacted a statute providing that "'comparison of a disputed
writing with any writing proved to the satisfaction of the judge to be genuine shall be
permitted to be made by witnesses, and such writings and . . . evidence . . . may, be
submitted to the court and jury as evidence of the genuineness or otherwise of the writing
in dispute.'" 171 U.S. at 381 (quoting Laws Mo. 1895 p. 284). At Thompson's retrial, the
letters were again admitted—this time pursuant to the new statute—for purposes of
comparing them with the strychnine prescription and letter to the organist. On appeal, the
Missouri Supreme Court rejected Thompson's ex post facto argument and affirmed his
conviction. The United States Supreme Court affirmed.

The Court's holding in that case is applicable here:

"[T]he statute of Missouri relating to the comparison of writings is not ex post facto when
applied to prosecutions for crimes committed prior to its passage. If persons excluded
upon grounds of public policy at the time of the commission of an offense, from
testifying as witnesses for or against the accused, may, in virtue of a statute, become
competent to testify, we cannot perceive any ground upon which to hold a statute to be ex
post facto which does nothing more than admit evidence of a particular kind in a criminal
case upon an issue of fact which was not admissible under the rules of evidence as
enforced by judicial decisions at the time the offense was committed. The Missouri
statute, when applied to this case, did not enlarge the punishment to which the accused
was liable when his crime was committed, nor make any act involved in his offense
criminal that was not criminal at the time he committed the murder of which he was
found guilty. It did not change the quality or degree of his offense. Nor can the new rule
introduced by it[] be characterized as unreasonable [so as to affect the accused's]
16



substantial rights . . . . The statute did not require 'less proof, in amount or degree,' than
was required at the time of the commission of the crime charged upon him." Thompson,
171 U.S. at 386-87.

Following the lead of Thompson, we hold that application of the amended version of
K.S.A. 60-455 at Prine's retrial did not violate the Ex Post Facto Clause.

Admission of Evidence

Before April 30, 2009, K.S.A. 60-455 provided:

"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."

The amended version of K.S.A. 2009 Supp. 60-455 states:


"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is in-admissible to prove his or
her such person's disposition to commit crime or civil wrong as the basis for an inference
that the person committed another crime or civil wrong on another specified occasion but,

"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, 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.

17



"(c) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, in any
criminal action other than a criminal action in which the defendant is accused of a sex
offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and
amendments thereto, such evidence is admissible to show the modus operandi or general
method used by a defendant to perpetrate similar but totally unrelated crimes when the
method of committing the prior acts is so similar to that utilized in the current case before
the court that it is reasonable to conclude the same individual committed both acts.

"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal
action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of
chapter 21 of the Kansas Statutes Annotated, and amendments thereto, evidence of the
defendant's commission of another act or offense of sexual misconduct is admissible, and
may be considered for its bearing on any matter to which it is relevant and probative.

"(e) In a criminal action in which the prosecution intends to offer evidence under
this rule, the prosecuting attorney shall disclose the evidence to the defendant, including
statements of witnesses, at least 10 days before the scheduled date of trial or at such later
time as the court may allow for good cause.

"(f) This rule shall not be construed to limit the admission or consideration of
evidence under any other rule or to limit the admissibility of the evidence of other crimes
or civil wrongs in a criminal action under a criminal statute other than in articles 34, 35 or
36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto.

"(g) As used in this section, an "act or offense of sexual misconduct" includes:

(1) Any conduct proscribed by article 35 of chapter 21 of the Kansas Statutes
Annotated, and amendments thereto;

(2) the sexual gratification component of aggravated trafficking, as described in
subsection (a)(1)(B) and (a)(2) of K.S.A. 21-3447, and amendments thereto;

18



(3) exposing another to a life threatening communicable disease, as described in
subsection (a)(1) of K.S.A. 21-3435, and amendments thereto;

(4) incest, as described in K.S.A. 21-3602, and amendments thereto;

(5) aggravated incest, as described in K.S.A. 21-3603, and amendments thereto;

(6) contact, without consent, between any part of the defendant's body or an
object and the genitals, mouth or anus of the victim;

(7) contact, without consent, between the genitals, mouth or anus of the
defendant and any part of the victim's body;

(8) deriving sexual pleasure or gratification from the infliction of death, bodily
injury or physical pain to the victim;

(9) an attempt, solicitation or conspiracy to engage in conduct described in
paragraphs (1) through (8); or

(10) any federal or other state conviction of an offense, or any violation of a city
ordinance or county resolution, that would constitute an offense under article 35 of
chapter 21 of the Kansas Statutes Annotated, and amendments thereto, the sexual
gratification component of aggravated trafficking, as described in subsection (a)(1)(B)
and (a)(2) of K.S.A. 21-3447, and amendments thereto; incest, as described in K.S.A. 21-
3602, and amendments thereto; or aggravated incest, as described in K.S.A. 21-3603, and
amendments thereto, or involved conduct described in paragraphs (6) through (9).

"(h) If any provisions of this section or the application thereof to any person or
circumstances is held invalid, the invalidity does not affect other provisions or
applications of this section which can be given effect without the invalid provisions or
application. To this end the provisions of this section are severable."

19



Even though both sides seem to agree that the district judge applied the amended
statute to admit the evidence about Prine's abuse of S.M. and J.S. on retrial, the parties'
merits arguments on the propriety of that admission—and, to the extent we can tell from
the incomplete record, the district judge's ruling—seem to have focused nearly
exclusively on language carried from the old version into subsections (a) and (b) of the
amended statute. In other words, this case continued to concentrate on whether the
evidence was admissible to prove intent, absence of mistake or accident, and plan. The
defense now argues that the district judge's ruling was just as erroneous at retrial as it was
at Prine's first trial. For its part, the State vociferously denounces Prine I's decision that
intent was not in issue and its requirement that 60-455 plan evidence requires a similarity
amounting to a "signature." The State also repeats its argument that Prine advanced
innocent explanations during the investigation of A.M.C.'s allegations, making absence
of mistake or accident relevant at trial. The State's only express reliance on subsection (d)
of the new statute comes in its brief's conclusory statement that the disputed evidence
meets the subsection's requirement that it be relevant and probative.

These circumstances demand that we examine both what could and should have
occurred under the amended statute compared to what did occur, and that we then
determine whether any variation from the new normal had a negative impact on Prine's
substantial rights or the reliability of his convictions.

The interpretation and, if necessary, construction of statutes raise questions of law
reviewable de novo on appeal. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
A logically necessary corollary of this rule is that this court is in as good a position as the
district judge to analyze the meaning and applicability of the language added to K.S.A.
60-455 in 2009.

20



The most fundamental rule of statutory interpretation and construction is that the
intent of the legislature governs if that intent can be ascertained. Arnett, 290 Kan. at 47.
We first attempt to ascertain legislative intent through the statutory language enacted,
giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219
P.3d 481 (2009). When a statute is plain and unambiguous, we do not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it. Where there is no ambiguity, we need not resort to statutory construction. Only if
the statute's language or text is unclear or ambiguous do we use canons of construction or
legislative history or other background considerations to construe the legislature's intent.
State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009). In doing so, we may look to
the historical background of the enactment, the circumstances attending its passage, the
purpose to be accomplished, and the effect the statute may have under the various
constructions suggested. See In re Tax Exemption Application of Lietz Constr. Co., 273
Kan. 890, 898, 47 P.3d 1275 (2002). We cannot delete provisions or supply omissions in
a statute. No matter what the legislature may have really intended to do, if it did not in
fact do it, under any reasonable interpretation of the language used, the defect is one that
the legislature alone can correct. See State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46
(2009).

The plain language of the amended statute retains the old version's general
prohibition on the use of propensity evidence in subsection (a). Subsection (b) contains
the old version's nonexclusive list of material facts other than propensity that may be
proved by other crimes and civil wrongs evidence. Meanwhile, the amended statute's new
language in subsection (c) responds to our Prine I ruling that other crimes or civil wrongs
admitted to show a nonpreparation type of plan must be so "strikingly similar" or so
similar as to constitute a "signature" when compared with the charged crime. This
subsection explicitly does not apply to the sex offense prosecutions such as this. New
subsection (d) does cover sex crime prosecutions; it permits evidence of other acts or
21



offenses of sexual misconduct to be admitted in such a prosecution "for its bearing on any
matter to which it is relevant and probative."

The basic prohibition contained in the original statute, now subsection (a), is
straightforward: Evidence that a defendant committed a crime or civil wrong on a
specified occasion is generally inadmissible to prove that person's disposition or
propensity to commit the charged crime. As a rule of exclusion, the prohibition on
propensity evidence is based on the principle that such evidence is irrelevant and unduly
prejudicial; and, historically, the rule has been strictly enforced. See State v. Gunby, 282
Kan. 39, 50, 144 P.3d 647 (2006) (citing cases).

But the legislature's intention to relax the prohibition on evidence of other acts or
offenses of sexual misconduct to show propensity, indeed, and "any matter to which it is
relevant and probative" in sex crime cases is explicit in the statute's new subsection (d).
This plain language could and should have governed the K.S.A. 60-455 issue on retrial of
this case.

We note that our interpretation of the plain language of subsection (d) is
reinforced by contemporaneous legislative committee minutes and testimony showing
that the proposed amendment was patterned after Federal Rules of Evidence 413 and 414.
See H.B. 2250; S.B. 44; Minutes from the House Judiciary Committee, February 9, 2009;
Minutes from the Senate Judiciary Committee, March 9, 2009, March 10, 2009; see also
Comment, How Similar is Similar? Confusing the Similarity Standard for the Admission
of Prior Crimes Evidence under the Plan Exception in Child Molestation Cases, 44
Washburn L.J. 157, 159-60 (2004) (urging legislature to "adopt a statute that codifies the
Federal Rules of Evidence 413 to 415, along with Kansas' common law practice of
liberally admitting prior crimes evidence in sex abuse cases . . . [to] permit the inference
22



that the defendant has a propensity to molest children, and thus is more likely to have
committed the charged crime in accord with this character trait").

Rule 413 states that, "[i]n a criminal case in which a defendant is accused of a
sexual assault, the court may admit evidence that the defendant committed any other
sexual assault. The evidence may be considered on any matter to which it is relevant."
Fed. R. Evid. 413(a). Rule 414 permits the same use for similar prior crimes evidence in
child molestation cases, stating "[i]n a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the defendant committed any other
child molestation. The evidence may be considered on any matter to which it is relevant."
Fed. R. Evid. 414(a). These federal rules have been interpreted to allow propensity
evidence in sexual assault and child molestation cases. See, e.g., Seeley v. Chase, 443
F.3d 1290, 1294 (10th Cir. 2006); United States v. McHorse, 179 F.3d 889, 903 (10th
Cir. 1999); United States v. Guardia, 135 F.3d 1326, 1332 (10th Cir. 1998); United States
v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998); see also United States v. Dillon, 532
F.3d 379, 387 (5th Cir. 2008); United States v. Julian, 427 F.3d 471, 486 (7th Cir. 2005);
United States v. Sioux, 362 F.3d 1241, 1244 (9th Cir. 2004); Johnson, 283 F.3d at 151;
United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001), cert. denied 534 U.S. 1166
(2002); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir. 1998). Subsequent
subsections in both Rule 413 and 414 set out pretrial disclosure requirements, as well as
pertinent directives and definitions similar to those contained in the amended K.S.A. 60-
455(e), (f), and (g). Federal Rule of Evidence 415 permits the same types of evidence in
civil cases involving sexual assault or child molestation. See, e.g., Johnson v. Elk Lake
School Dist., 283 F.3d 138, 150-52 (3d Cir. 2002).

Subsection (d) of the amended K.S.A. 60-455 still requires, as the State admits, a
district judge to perform a gatekeeping function. Under the language of the amended
statute, the evidence of the other act or offense of sexual misconduct the State desires to
23



admit must be "relevant and probative." This court's definition of those two terms makes
the "and probative" portion of that phrase redundant; the concept of relevance
encompasses both materiality and probative value. See K.S.A. 60-401(b); Prine I, 287
Kan. at 725. Materiality requires that whatever fact sought to be proved be in dispute or
in issue between the parties to the case. See Garcia, 285 Kan. at 14. The requirement of
probative value demands that the evidence have a logical tendency to prove the material
fact. See, e.g., State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).

Under our cases construing and applying K.S.A. 60-455 as it existed before the
2009 amendment, district judges were required to evaluate these concepts. See Prine I,
287 Kan. at 724-25 (under traditional rubric, admissibility of K.S.A. 60-455 evidence
depends on three factors: [1] evidence must be relevant to prove material fact; [2]
material fact must be disputed; [3] probative value of evidence must not be substantially
outweighed by risk of unfair prejudice); see also K.S.A. 60-403 (exclusionary rules
inapplicable to undisputed material facts, except district court may weigh probative
value, elect to exclude); State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001) (although
K.S.A. 60-445 requires district judge to balance probative value, prejudice only when
opposing party claims surprise, balance may require exclusion "as a rule of necessity"
when probative value substantially outweighed by the risk of unfair prejudice, regardless
of existence of surprise). Thus these concepts will be familiar as district judges apply the
amended statute.

Under the prior version of K.S.A. 60-455, we also required district judges to
balance the probative value of other crimes or civil wrongs evidence against the threat of
undue prejudice. See, e.g., State v. Vasquez, 287 Kan. 40, 49, 194 P.3d 563 (2008).
Neither side in this appeal has suggested that we abandon this judicially created
safeguard. We thus leave the question of whether the necessity of this weighing persists
under new subsection (d) to another day. Assuming that it does persist, federal cases
24



interpreting Rules 413, 414, and 415 on which subsection (d) was modeled provide
helpful guidance on how the weighing is to be conducted. See United States v. Meacham,
115 F.3d 1488, 1492 (10th Cir.1997) (Rule 403 applies to Rule 414 evidence); see also
United States v. Sturm, 673 F.3d 1274, 1284-85 (10th Cir. 2012) (four-factor analysis
under Rule 403 applies to prior crimes evidence: [1] how clearly prior act has been
proved; [2] how probative evidence is of material fact it is admitted to prove; [3] how
seriously disputed material fact is; and [4] whether government can avail itself of any less
prejudicial evidence); Enjady, 134 F.3d at 1433 (setting forth Rule 403 test for Rule 413
evidence; noting exclusion of relevant evidence under test should be infrequent,
reflecting Congress' legislative judgment that evidence of similar crimes should
"normally" be admitted in child molestation cases); Benally, 500 F.3d at 1090-91
(extending Enjady to Rule 414 evidence).

In addition, when evidence was admitted under the unamended statute, in order to
avoid the jury's consideration of the evidence for prohibited propensity, we required a
limiting instruction listing the material facts in issue for which the evidence could be
considered. See Prine I, 287 Kan. at 724-25. Although neither party challenges the
continuation of this judicially created safeguard, its obsolescence under the amended
statute is clear. In a sex crime prosecution governed by new subsection (d), there remains
no reason to tell jurors to ignore the bearing prior sexual misconduct may have on the
defendant's propensity to commit the charged crime or crimes. If other sex crimes or civil
wrongs are relevant, i.e., material and probative of propensity, the jury may consider
them for that. We no longer need the workaround the limiting instruction hoped to
ensure.

In this case then, on retrial, the State could and should have sought to admit the
evidence of Prine's abuse of S.M. and J.S. under new subsection (d) of K.S.A. 2009 Supp.
60-455. It could have avoided analysis of intent, absence of mistake or accident, and plan
25



completely, focusing only on whether Prine's other sexual misconduct was relevant and
probative of his propensity to abuse A.M.C. Had the State done so, the district judge
would still have been called upon to determine relevance, i.e., materiality and probative
value for propensity; and, as of today at least, he would still have needed to conduct a
weighing of probative value and undue prejudice. If the judge then ruled admission was
proper, he would not have needed to give a K.S.A. 2009 Supp. 60-455 limiting
instruction.

Having set out what could and should have been, we turn to what actually was.

As in the first trial, the State sought on retrial to admit evidence of Prine's abuse of
S.M. and J.S. to show intent, absence of mistake or accident, and plan. Prine is correct
that the evidence was no more relevant to intent or to absence of mistake or accident the
second time around than it was on the first. The State points us to no improvement or
other alteration in its case that would change our analysis of these two bases for
admission, and we will not repeat what we said in Prine I.

Admission for plan, however, merits a slightly more extended evaluation.

The State would like us to rule that subsection (c) of the amended K.S.A. 60-455
should have been applied to permit admission of the evidence to prove nonpreparation
plan. But this is contrary to the plain language of the subsection, which expressly
excludes its application in a sex crime prosecution such as this. See K.S.A. 2009 Supp.
60-455(c). The meaning and efficacy of the legislature's apparent effort to modify the
"strikingly similar" or "signature" standard enunciated in Prine I is simply not at issue
here. See K.S.A. 2009 Supp. 60-445(c).

26



The defense, recognizing subsection (c)'s inapplicability in this sex crime
prosecution, urges us to hold that Prine I sets the default similarity requirement for
subsection (d) relevance of this type of plan evidence. We agree. Subsection (d) did
nothing to change the "strikingly similar" or "signature" ruling of Prine I. The fact of
Prine's plan, or, really, his identity as A.M.C.'s abuser, was put in issue by Prine's general
denial. It thus was material, a quality whose existence we review de novo. See Vasquez,
287 Kan. at 50. Without a "strikingly similar" pattern or "signature" between that abuse
and the abuse of S.M. and J.S., however, the evidence of the other crimes was not
probative of the material fact; and we repeat our holding of Prine I that the district
judge's contrary ruling was an abuse of discretion. See Prine I, 287 Kan. at 725-28; see
also Vasquez, 287 Kan. at 50 (existence of probative value reviewed under abuse of
discretion standard). Admission of the evidence to prove plan was still error on retrial
under the amended version of K.S.A. 60-455.

The last question we must answer is: Did this error make any difference? We
ruled that it did in Prine's first trial and reversed. We make the opposite ruling now.

The problem for the defense is that subsection (d) necessarily changed our
calculus on reversibility of this error. As we have already observed, K.S.A. 60-455
evidence relevant to propensity—leaving aside any constitutionality question not argued
in this case—is admissible under new subsection (d). Because we have no doubt that, on
any third trial of Prine, the evidence of his abuse of S.M. and J.S. would again come
before the jury as propensity evidence, see Prine I, 287 Kan. at 737, and that its probative
value would be deemed more weighty than its threat of undue prejudice, no reversal is
required. Although the State's and the district judge's grasp of the import and workings of
the amended statute at retrial was tenuous, their efforts to protect Prine's rights at retrial
went beyond anything to which he would be entitled after a second reversal. This means
that we see no error that affects Prine's substantial rights under K.S.A. 60-261.
27




CONCLUSION

Although the district judge erred at defendant John Prine's retrial by admitting
evidence of Prine's uncharged sexual abuse of two victims, the certainty that the evidence
would come in as relevant to Prine's propensity to abuse the victim in this case under
K.S.A. 2009 Supp. 60-455(d) means reversal is not required. The judgment of the district
court is therefore affirmed as right for the wrong reasons.