In re K.L.

NOT DESIGNATED FOR PUBLICATION

No. 121,057

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of K.L.,
a Minor Child.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; DANIEL CAHILL, judge. Opinion filed November 22,
2019. Affirmed.

Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant natural father.

Daniel G. Obermeier, assistant district attorney, and Mark A. Dupree Sr., district attorney, for
appellee.

Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.

LEBEN, J.: The district court terminated Father's parental rights after seeing a video
in which Father committed a sexual offense against his seven-year-old daughter. Father
appeals based on a single argument—that the district court shouldn't have admitted the
video into evidence because no one had directly testified about how it had been made.

But the State presented the testimony of a police detective who had seen several
fairly unique objects shown in the video in Father's home. And the detective had also
shown some still shots from the video and other photos from the home to the daughter;
she too identified objects that were later seen in the video, including her pajamas and the
fingernail polish she wore. We find no abuse of discretion in the admission of the video
and affirm the district court's judgment.

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FACTUAL AND PROCEDURAL BACKGROUND

An investigation of Father began after a person whose name wasn't revealed
showed a police detective, Cot Mendez, a video on a cell phone. The source, who was
allowed to maintain anonymity, told Mendez that the video showed Father and his
daughter, K.L. Based on what Mendez saw on that video, he got a search warrant for
Father's home.

Father answered the door when Mendez and other officers arrived. The officers
seized several electronic devices, including computers, hard drives, and phones. They
also took K.L. into protective custody.

The State sought child-in-need-of-care protection for K.L. and eventually sought
to terminate Father's parental rights. K.S.A. 2018 Supp. 38-2269(b)(2) allows for
termination when a parent's conduct toward their child is "of a physically, emotionally or
sexually cruel or abusive nature."

Mendez was the State's only witness at the trial on termination of Father's parental
rights. He testified about two sets of exhibits.

First, he talked about 11 photographs that had been shown to K.L. during an
interview with Sunflower House, a child-advocacy center that has trained interviewers to
talk with children who may have been victims of abuse. Second, he talked about a video
that had been taken from one of the devices seized through the search warrant.

The photos were admitted only for the purpose of demonstrating what had been
shown to the child. Mendez explained that K.L. had identified some objects in some of
the photos, as well as Father and herself. Among the things she identified were:
 A tattoo on Father's stomach;
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 A camouflage comforter;
 A ring on her hand;
 The fingernail polish on her fingernails; and
 A pair of her pajamas with a red sleeve.
The photos were taken from the devices seized through the warrant and included some
still shots taken from the video. In some of the photos that were shown to K.L., though,
she didn't identify anything in them.

The key to the case, as Father recognizes, was the video. It showed a portion of
Father's body, including his stomach (with the identifiable tattoo) and penis, and two
arms coming out from under a camouflage comforter. One of the hands is masturbating
Father, and there's a red-sleeved pajama on the arm, a ring on the finger, and fingernail
polish like what K.L. had identified in the photos. Father is heard giving instructions. As
Mendez summarized, "He is yelling at her, telling her to do things a certain way. She is
crying in the background. And [he] tells her that she needs to get this done."

Mendez testified that the pajama sleeve shown in the video was the same as one
K.L. was wearing in a photo; that the same ring was seen in a photo and the video; that
the fingernails are similarly painted; and that there's a mark on her hand that's also shown
in both a photo and the video. Mendez said he had seen several of the items seen in the
video, including a camouflage comforter that was in the house when Mendez was there,
and Father's tattoo (which Mendez had seen when interviewing Father). Mendez also said
that the video was found on several of the seized devices.

The court admitted the video over Father's objection. Based on the video, the court
then terminated Father's parental rights. Father has appealed to this court, challenging the
admission of the video.

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ANALYSIS

Father's objection is that the foundation for admission of the video was
insufficient. We review a district court's decision on evidentiary foundation requirements
only for abuse of discretion. That means that its decision is upheld unless no reasonable
person would agree or the decision was based on a legal or factual error. State v. Ernesti,
291 Kan. 54, 64-65, 239 P.3d 40 (2010).

Father argues that the district court should have applied a seven-factor test that the
Kansas Supreme Court has applied to the admission of audio recordings. That test was set
out in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984). But Father only argued
about one of those factors in the district court—the "authenticity and correctness" of the
photographs and video. See 235 Kan. 485, Syl. ¶ 2.

The State argues that it needed only to prove that the photos and video were what
they purported to be. That's another way of talking about a test for authenticity, so
ultimately both parties are talking about the same thing.

Although Father generally objects to admission of both the photos and the video,
the photos were only admitted to show what K.L. had seen during her interview at
Sunflower House. Whether the district court properly terminated Father's parental rights
depends on whether the video was properly admitted.

Videos, like photos, are "writings" under Kansas evidence rules. See K.S.A. 60-
401(m). So they must be authenticated with "evidence sufficient to sustain a finding of
[their] authenticity." K.S.A. 60-464; see 3 Hayden & Mulligan, Kansas Law and Practice:
Lawyer's Guide to Kansas Evidence § 1:11 (5th ed. 2019).

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The State did that here. Mendez testified that the video was found on more than
one of the seized devices; that several items seen in the video matched things K.L.
identified in the photos; and that the tattoo on Father's stomach matched the one in the
video. The hand seen in the video had a ring like K.L.'s, was attached to an arm adorned
by a red sleeve like K.L.'s pajamas, had a mark on the hand like K.L.'s, and had fingernail
polish like K.L.'s. And Mendez also testified that when he interviewed Father and told
him that police had a video of these acts, Father said, "'Well, I must have been drunk at
the time,'" and "'I made a huge mistake.'" We find no abuse of discretion in the admission
of the video.

The district court's judgment is therefore affirmed.