State v. Alcorn

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NOT DESIGNATED FOR PUBLICATION

No. 116,399

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SARAH B. ALCORN,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 3,
2017. Reversed and remanded with directions.

Sarah Ellen Johnson, of Capital Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and HEBERT, S.J.

PER CURIAM: Sarah B. Alcorn appeals from her conviction by a jury of
aggravated battery. She argues the district court committed reversible error in excluding a
line of questioning which could have established potential bias on the part of the
complaining witness and revealed a motive to fabricate testimony against Alcorn.

We agree the district court erred in excluding the evidence, and we further find the
error was not harmless under the circumstances of the case. Accordingly, we reverse the
conviction and remand for a new trial.

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Factual and Procedural Background

On November 19, 2014, Alcorn became engaged in a domestic dispute with her
boyfriend, Skylar Jump. Alcorn and Jump were involved in a "whirlwind relationship"
and lived together at Jump's grandmother's house. At the time of the dispute, Alcorn was
pregnant with Jump's child. Alcorn and Jump were home alone during the dispute, and
their accounts of what happened differ. Ultimately, Alcorn was arrested for cutting Jump
with a kitchen knife. The State charged Alcorn with aggravated battery, domestic battery,
and criminal threat. The State did not charge Jump.

At Alcorn's trial in 2016, Jump testified that on the day of the dispute, he was
playing a video game when he and Alcorn began to have a "small argument." Jump
testified Alcorn went into the bathroom and he followed because he was afraid she would
harm herself or the baby. The argument soon became a "screaming match." When Alcorn
kept yelling, he tried to give her a hug to calm her down, but she pushed him onto the
couch and started hitting him in the face with her fists. Jump testified he did not hit
Alcorn, only tried to push her off of him and that this was the only time he made physical
contact with Alcorn. Alcorn then allegedly spit in Jump's face and went to the kitchen
where she grabbed a large knife. Jump was still on the couch when Alcorn came towards
him with the knife, threatened to kill him, and attempted to stab him. Jump said he put
out his hand in self-defense and the knife sliced the top of his finger off. At this point,
Jump's grandmother and mother returned home and Jump's mother called the police.
Jump's mother and grandmother testified at trial that Jump told them Alcorn stabbed him.

Alcorn maintained at trial that she cut Jump out of self-defense. She testified that
on the day of the dispute, she was at Jump's grandmother's house with Jump and had
morning sickness due to her pregnancy. Alcorn and Jump began to argue, and Alcorn
decided to take a bath. As she began to undress in the bathroom, she heard Jump
"charging toward the door." Alcorn testified that Jump began pounding on the door and
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shoved it open. Alcorn stated she found her phone to call for help, but Jump took the
phone and smashed it. She ran because she was scared, but Jump hit her in the face,
wrapped his arms around her, and used his legs to trip her. Alcorn then ran for the kitchen
and grabbed a knife. Alcorn testified that Jump then reached for the blade of the knife
and cut his hand.

Before trial, Alcorn gave birth to Jump's child, Stormy. Stormy lived with Jump.
On cross-examination of Jump, defense counsel questioned Jump about the custody of
Stormy:

"Q: Correct? [Stormy] lives with you?
"A: Yes.
"Q: And you want it to stay that way, don't you?
"A: Yes.
"Q: And you're aware that [Alcorn] wants Stormy to live with her?
"A: I know it's not possible."

Defense counsel later asked Jump, "If [Alcorn]'s convicted that would probably
seal the deal that your daughter will stay with you." The State objected. The district court
judge replied, "Well, counsel approach. 'Cause we're going to open doors we ought to be
aware of what we're doing." The judge sustained the objection. At a later bench
conference, the judge stated that he "did not want to open the door as to issues involving
custody which would have brought out . . . the defendant being in the Department of
Corrections [which] caused custody to be with the father plus all of the other convictions
that [Alcorn] has." The judge specified that he sustained the objection on the basis the
line of questioning was "irrelevant[,] finding the prejudicial value outweigh[ed] any
probative value."

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The jury convicted Alcorn of aggravated battery and acquitted her of domestic
battery and criminal threat. The judge granted Alcorn a downward durational departure
and sentenced Alcorn to 12 months in prison and 12 months of postrelease supervision.

Alcorn timely appeals her conviction.

Exclusion of Child Custody Evidence

Alcorn argues on appeal that the district court committed reversible error by
sustaining the State's objection to the defense questioning Jump regarding the issue of
child custody. Alcorn argues she was seeking to discredit Jump's testimony by
establishing a motive for Jump to fabricate or embellish his testimony in order to secure
Alcorn's conviction, and consequently maintain custody of their child. The State asserts
the trial court did not err by excluding the line of questioning proposed by the defense as
being irrelevant.

Issue Preservation

The State first raises a threshold issue by arguing that Alcorn did not properly
preserve the issue for appeal. K.S.A. 60-405 generally precludes appellate review of an
evidentiary challenge absent a timely and specific objection made on the record:

"A verdict or finding shall not be . . . reversed, by reason of the erroneous
exclusion of evidence unless it appears of record that the proponent of the evidence either
made known the substance of the evidence in a form and by a method approved by the
judge, or indicated the substance of the expected evidence by questions indicating the
desired answers."

Here, Alcorn proposed a question to Jump to which the district court sustained the
State's objection. Although the ensuing discussion at trial occurred out of the hearing
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distance of the court reporter, the trial court's explanation during the subsequent bench
conference clearly indicated it was aware of the type of evidence that defense counsel
was attempting to pursue—the impact of child custody on the complaining witness'
testimony. The judge commented that he "did not want to open the door as to issues
involving custody."

We find that it was not necessary for Alcorn to further "object" to the court's
ruling sustaining the State's objection. The question asked of Jump by defense counsel
indicated the substance of the expected evidence—i.e., that Jump wished to secure a
felony conviction of Alcorn in order to maintain custody of their child. The in-court
proceedings and the bench conference fulfilled the purpose of K.S.A. 60-405 and provide
an adequate record for this court to review the merits of Alcorn's claim that the trial court
erroneously excluded the evidence. See State v. Swint, 302 Kan. 326, 328-34, 352 P.3d
1014 (2015). See also In re Acquisition of Property by Eminent Domain, 299 Kan. 37, 41,
320 P.3d 955 (2014).

Relevance

The district court specifically ruled the proposed line of questioning regarding
child custody was "irrelevant[,] finding the prejudicial value outweigh[ed] any probative
value."

Generally speaking, all relevant evidence is admissible. K.S.A. 60-407(f). K.S.A.
60-401(b) defines relevant evidence as evidence having "any tendency in reason to prove
any material fact." Relevant evidence is: (1) material, meaning the evidence must pertain
to a disputed fact or issue; and (2) probative, meaning it has a tendency to prove a
material fact or issue in the case. State v. Boleyn, 297 Kan. 610, 622, 303 P.3d 680
(2013). Evidence is material when the fact it supports is in dispute and is significant
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under the substantive law of the case. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543
(2016).

The appellate standard of review for materiality is de novo. State v. Page, 303 Kan.
548, 550, 363 P.3d 391 (2015). "'Evidence is probative if it furnishes, establishes, or
contributes towards proof. Probativity is reviewed for abuse of discretion.' [Citation
omitted.]" McCormick, 305 Kan. at 47. A judicial action constitutes an abuse of
discretion if (1) no reasonable person would take the view adopted by the trial court; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015).

The State argues in its brief that the evidence was irrelevant because "[a] child
custody dispute, that occurred after the birth of the child, was irrelevant to crimes
committed before the child was born." The State argues that, on the date of the dispute,
Jump did not yet have a motive to fabricate his story, so any evidence of a dispute was
irrelevant. But the State's argument is misplaced. Whether Jump had a motivation to
fabricate his story when he reported the crime to police is not at issue: Instead, the issue
is whether Jump had a motivation to fabricate his testimony before the jury at trial in
2016.

In this case, Alcorn contends the district court's exclusion of the evidence was
improper because evidence of bias is relevant. Kansas courts agree and have held that
"'proof of bias is almost always relevant because the jury, as finder of fact and weigher of
credibility, has historically been entitled to assess all evidence which might bear on the
accuracy and truth of a witness' testimony.' [Citation omitted.]" State v. Ross, 280 Kan.
878, 886, 127 P.3d 249 (2006).

The defense sought to discredit Jump's testimony at trial by pointing out a
potential motive he had to secure a felony conviction against Alcorn—child custody. The
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fact Jump wanted to secure a felony conviction against Alcorn is relevant because it has a
"tendency to prove" Jump had a motive to lie in his testimony. The evidence is material
because it pertains to a disputed issue—whether Alcorn was acting in self-defense. The
evidence would help to establish the weight of credibility of Jump's testimony that Alcorn
intentionally attacked Jump. "The reliability of a witness is an essential jury
consideration, one upon which guilt or innocence may ultimately rest." State v. Sean, 306
Kan. App. 2d 963, 399 P.3d 168, 188 (2017). Even under an abuse of discretion standard,
the evidence is probative.

Evidence to help establish the credibility of Jump was especially probative in this
"he-said, she-said" case. Alcorn maintained at trial that she cut Jump in self-defense, and
Jump testified that Alcorn cut him in anger. There were no witnesses to dispute because
Alcorn and Jump were home alone. The outcome of this case, and Alcorn's conviction,
ultimately depended on whether the jury believed Jump's or Alcorn's version of the story.
The child custody dispute between Alcorn and Jump—a potential motivation for Jump to
fabricate or embellish his testimony—was clearly relevant and the trial judge erred in
finding otherwise.

Prejudice

Under K.S.A. 60-445, a trial court has discretion to exclude relevant evidence
upon a finding that its probative value is outweighed by its potential for producing undue
prejudice. However, it is error to exclude a proffer of evidence that is relevant,
admissible, and noncumulative when it is an integral part of the defendant's theory of
defense. State v. King, 293 Kan. 1057, 1068, 274 P.3d 599 (2012). K.S.A. 60-420 allows
a party to attack or support the credibility of a witness:

"Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting
the credibility of a witness, any party including the party calling the witness may examine
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the witness and introduce extrinsic evidence concerning any conduct by him or her and
any other matter relevant upon the issues of credibility."

"One of the methods or techniques for attacking the credibility of a witness is to
show partiality, including bias, motive, and interest in the outcome." State v. Scott, 39
Kan. App. 2d 49, 56, 177 P.3d 972 (2008). Bias may always be shown in order to place
the witness' testimony in proper perspective, and a party should have wide latitude in
establishing bias of a witness. State v. Akins, 298 Kan. 592, Syl. ¶ 1, 315 P.3d 868
(2014). Where, as here, the determination of the main issue at trial—whether Alcorn was
acting in self-defense—depended entirely on the credibility of Jump and Alcorn, a wide
range of cross-examination should have been permitted. Scott, 39 Kan. App. 2d 49, Syl. ¶
7. Since Jump had an "interest in the outcome" of the trial, Alcorn was entitled to have
"these matters exposed to the jury." Scott, 39 Kan. App. 2d at 51.

Here, the district court's explicit reason for excluding the testimony sought by
Alcorn was to avoid "opening the door" to evidence that she was in custody of the
Department of Corrections and had a long prior history. However, a district court may not
exclude evidence of bias or motive just because it is concerned about exposing evidence
of prior criminal activity. See Scott, 39 Kan. App. 2d at 58-60 (citing State v. Bowman,
252 Kan. 883, 850 P.2d 236 [1993]; State v. Wesson, 247 Kan. 639, 802 P.2d 574, cert.
denied 501 U.S. 1236 [1991]; State v. Loveland, 8 Kan. App. 2d 196, 653 P.2d 472
[1982]).

The decision to exclude the evidence to prevent prejudice to Alcorn, the proponent
of the evidence, was quite simply not the district court's decision to make. Whether the
defense was willing to pursue a line of questioning knowing it might open the door to
other possibly prejudicial information regarding Alcorn was a strategic decision for the
defense to make. Alcorn was entitled to bring in evidence that illustrated Jump's social
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relationship with her which may have indicated his bias or prejudice in the current
controversy. See Scott, 39 Kan. App. 2d at 58-59.

Harmless Error Analysis

"Although the failure to allow a party to cross-examine a witness about a possible
bias or motivation for testifying is error, the error may be harmless and does not
automatically result in reversal." Scott, 39 Kan. App. 2d at 62. The erroneous exclusion
of evidence is subject to review for harmless error under K.S.A. 2016 Supp. 60-261,
which provides:

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights."

In State v. Hills, 264 Kan. 437, 450, 957 P.2d 496 (1998), our Supreme Court
applied harmless error analysis to the improper denial of a defendant's opportunity to
impeach a witness for bias. The party benefitting from the error—here the State—bears
the burden of proving it harmless. See State v. Logsdon, 304 Kan. 3, 39, 371 P.3d 836
(2016). Where, as here, the error implicates only a statutory right, the State need only
persuade the reviewing court that there is no reasonable probability that the error affected
the outcome of the trial. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012);
see State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).

In State v. Burnett, 300 Kan. 419, 434-35, 329 P.3d 1169 (2014), the court
reiterated several factors which an appellate court can consider in reviewing the
erroneous exclusion of evidence for harmless error: "[T]he importance of the witness'
testimony, whether the testimony was cumulative, the presence or absence of evidence
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corroborating or contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and the overall strength of the case.' [Citation
omitted.]"

Applying these factors, the State cannot meet its burden of persuasion in this case.
Jump's testimony was of vital importance, since this was a "he-said, she-said" case. There
were no other witnesses to corroborate his testimony, and the entirety of the State's case
rested on his testimony and credibility. The State raises no argument that the proposed
evidence was cumulative, nor does it suggest that other cross-examination was sufficient
to achieve the defense purpose of discrediting Jump's testimony. If the defense had been
able to successfully undermine Jump's credibility by establishing bias and a motive to
fabricate or embellish his testimony, it cannot be said that the State had any other
evidence so strong that the jury would still have convicted Alcorn. The jury should have
been allowed to hear all the relevant evidence and make its evaluation of the weight and
credibility to be accorded to each of the parties' testimony.

The State, apparently overconfident in its position that no error occurred,
essentially offered no alternative argument as to why any error was harmless and has thus
failed to persuade us that there was no reasonable probability that the error in disallowing
the evidence of bias or motive affected the outcome of the trial. We are unable to find,
with the requisite degree of certainty, that the error was harmless and, accordingly, we
reverse Alcorn's conviction and remand the case for new trial.

Reversed and remanded with directions.