State v. Barlow

1

NOT DESIGNATED FOR PUBLICATION

No. 120,166

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

THOMAS EUGENE BARLOW,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; MARITZA SEGARRA, judge. Opinion filed February 7, 2020.
Affirmed.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.

PER CURIAM: After a jury convicted Thomas E. Barlow of aggravated criminal
sodomy and indecent liberties with a child, the district court sentenced him to 104 months
in prison. Barlow raises five issues in this direct appeal. He argues the district court erred
(1) by denying his motion to suppress his confession, (2) by admitting evidence of prior
sexual misconduct, (3) by denying the admission of evidence concerning Kansas' rape
shield law, and (4) by improperly instructing the jury. He also argues that K.S.A. 2018
Supp. 60-455(d) violates his due process rights under the Kansas and the United States
Constitutions. Finding no error, we affirm.
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Factual and Procedural Background

Thomas Barlow and his ex-wife have five children together. H.B. is their oldest
daughter. In October 2016, when H.B. was 15 years old, H.B. told Mother that she no
longer wanted to live at home because Barlow had been molesting her. Mother dropped
H.B. off then went to the police station where she met with Officer Kyle Hagen. Once he
interviewed Mother, Hagen asked to speak with H.B.

H.B. told Hagan that Barlow began to touch her sexually when she was between 9
and 12 years old. At first, these encounters involved kissing, groping, and touching of the
areas around her breasts, thighs, and genitals. Later, these encounters progressed to oral
sex, digital penetration of H.B.'s vagina, and, once, penile penetration of H.B.'s vagina.
These encounters started when the family lived in Wichita and continued when they
moved to Geary County. The molestation usually occurred in the living room, in her
parents' bedroom, or in the family's shared bathroom. It happened multiple times a week,
normally when Mother was away at work. It stopped when, one week before H.B.
revealed this molestation, she told her father that she did not want him to touch her
anymore. In response, he threatened to withhold her Wi-Fi access or to increase her
chores.

After this interview, Hagen and Mother went to pick up the other children at the
family home to place them in protective custody. Barlow was there so Hagen asked if he
would go to the police station for an interview. Because Barlow complied, Hagen did not
arrest him or put him in handcuffs.

Hagen interviewed Barlow at the police station around 11 p.m. Hagen read Barlow
his Miranda rights, which Barlow waived. Hagen informed Barlow that someone had told
police that he had inappropriately touched H.B. Barlow denied the allegations and said he
had not touched her "other than normal affection, hugging, kissing on [the] forehead."
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Then Hagen told Barlow that H.B. had made the allegations. Barlow continued to deny
he had done anything wrong. Hagen asked more specific questions about Barlow's
physical contact with H.B., yet Barlow still denied that he had ever purposefully touched
H.B. inappropriately. Hagen then asked if Barlow could think of any reasons why H.B.
would make up these allegations. Barlow could not.

Hagen explained that the police take allegations of sexual misconduct seriously. If
H.B. had falsely accused Barlow, she could face a charge for giving a false statement and
that could lead to incarceration in jail, prison, or a juvenile detention facility. And it could
also complicate her admission into college. Hagen repeatedly asked Barlow to tell the
truth. Hagen told Barlow this was best for everyone and, if the allegations were true, the
police would find out eventually. Still, Barlow had nothing to add, so Hagen ended the
interview and took Barlow back to his house.

About two-and-one-half hours later, Barlow called the police department,
requesting that Hagen pick him up. Barlow told the dispatcher that he had been praying
and God told him he should confess. After Hagen picked Barlow up and returned to the
police station, Hagen reissued the Miranda warning and Barlow again waived it. Barlow
began by asking if his family could live their lives normally, even if he was not there.
Hagen stated that would depend on what he told him.

Barlow told Hagen that he had had 30 to 40 sexual encounters with H.B. These
encounters started out as tickling but progressed to sexual touching. He estimated the
encounters began around the time H.B. was 13 years old and continued until a week
before the interview. Barlow denied any penile penetration but admitted to digital
penetration. Sometimes, Barlow would perform oral sex on H.B. as well. H.B. had
touched his testicles, but he did not recall her touching his penis. These encounters
happened in his bedroom and in the shared bathroom, while his wife was at work. Barlow
stated that he never forced himself upon H.B. Instead, he insisted that she would give him
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affirmative signals to engage in the touching. He also told Hagen that he had been good
at denying these encounters in the past, but Hagen's words about telling the truth stuck
with him. After Barlow provided a signed, written confession, Hagen arrested him.

Before trial, Barlow moved to suppress his confession. The district court denied
that motion. Barlow also moved to introduce evidence pursuant to K.S.A. 2018 Supp. 21-
5502. The district court denied that motion as well. The State, however, moved to admit
evidence pursuant to K.S.A. 2018 Supp. 60-455(d), and the district court granted that
motion.

At trial, H.B., Mother, and Hagen testified for the State. The jury viewed the audio
and video recordings of Barlow's confession as well as his written statement. Hagen
testified that Barlow's confession generally corroborated H.B.'s allegations. But he noted
these discrepancies between the two accounts:

 the number of occurrences,
 any penile penetration of H.B.'s vagina,
 any oral sex performed on Barlow, and
 who initiated the sexual encounters.

Barlow called witnesses to establish foundation for pictures of Barlow's home, and
text messages between H.B. and her boyfriend. And Barlow testified that at the time of
H.B.'s allegations he had a hydrocele which caused one of his testicles to be greatly
enlarged.

The jury found Barlow guilty of one count of criminal sodomy and two counts of
aggravated indecent liberties with a child, but it acquitted Barlow of two counts of
aggravated indecent liberties and four counts of criminal sodomy. The district court
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sentenced Barlow to 104 months in prison, lifetime postrelease supervision, and sex
offender registration.

Barlow appeals.

Did the District Court Err by Denying Barlow's Motion to Suppress His Confession?

Barlow first argues that Hagen's statements during his interrogation overbore his
will, rendering his confession involuntary. Barlow points to Hagen stating that H.B. could
face prison time or the juvenile detention center if she made false allegations, and to
Hagen imploring Barlow to tell the truth. Barlow raised those claims in his motion to
suppress evidence of his confession, but the district court denied it.

Standard of Review

Our standard of review for a district court's decision on a motion to suppress has
two components. We review the district court's factual findings to determine whether
they are supported by substantial competent evidence. In reviewing the factual findings,
the appellate court does not reweigh the evidence or assess the credibility of witnesses.
State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389 (2014). But we review the ultimate
legal conclusion using a de novo standard. When, as here, the material facts supporting a
district court's decision on a motion to suppress evidence are not in dispute, the ultimate
question of whether to suppress is a question of law over which we have unlimited
review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

The Governing Law

The Fifth Amendment to the United States Constitution protects individuals' right
against self-incrimination. This protection is incorporated to the states through the
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Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d
653 (1964). Our Legislature has codified this right in K.S.A. 2018 Supp. 60-460(f). See
State v. Guein, 309 Kan. 1245, 1261-62, 444 P.3d 340 (2019). In effect, coerced
confessions should be inadmissible in a criminal trial. A confession is coerced when a
defendant's "will has been overborne and his capacity for self-determination critically
impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L.
Ed. 2d 854 (1973). In essence, the touchstone consideration is voluntariness. State v.
Palacio, 309 Kan. 1075, 1087, 442 P.3d 466 (2019).

When a defendant claims police coerced him or her into making incriminating
statements, the State bears the burden to prove, by a preponderance of the evidence, that
the defendant made the statements voluntarily. State v. Garcia, 297 Kan. 182, 188, 301
P.3d 658 (2013). Courts employ a case-by-case evaluation to determine (1) whether
impermissible coercion was present and (2) whether that coercion overbore the
defendant's free and independent will. Guein, 309 Kan. at 1260. This coercion can be
mental or physical. State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010). Courts make
this determination by considering the totality of the circumstances, aided by the following
nonexclusive factors:

"'"(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3)
the ability of the accused to communicate on request with the outside world; (4) the
accused's age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language." [Citation
omitted.]'" Stone, 291 Kan. at 21.

Unfairness Due to Threats

Barlow focuses on the fifth factor, alleging that Hagen threatened or coerced him
and thus overcame Barlow's will. He relies on three cases.

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Barlow argues that the first case establishes that a confession is involuntary when
an officer makes threats "regarding a suspect's children," citing Lynumn v. Illinois, 372
U.S. 528, 534, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963). In Lynumn, police had threatened to
withhold welfare benefits for the defendant's infant children and to take her children
away, under other coercive circumstances. The Court found that "a confession made
under such circumstances must be deemed not voluntary, but coerced." 372 U.S. at 534.

Barlow supplements Lynumn with a second case—State v. Brown, 37 Kan. App.
2d 726, 732-33, 157 P.3d 655 (2007). There, the Kansas Department of Social and
Rehabilitative Services did not recommend Brown's reintegration with his children, and it
persistently pressured Brown and his wife to admit how one of his children had been
injured. On the date set for relinquishment, Brown went to the sheriff's office and
confessed to causing the injuries, despite having previously denied it. The district court
found Brown may have been predisposed to falsely admit his guilt just to get his children
back. This court found "it was entirely appropriate for the district court to consider the
pressure placed on Brown by the CINC proceedings in considering the totality of the
circumstances surrounding his confession." 37 Kan. App. 2d at 732.

Barlow cites a third case to show that threats to bring additional charges against a
defendant are coercive—State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005). In
Swanigan, the police told Swanigan that if he did not confess to the crimes charged, they
would recommend that the county attorney charge Swanigan with additional crimes. The
court weighed this as one of the factors that could render a confession involuntary. 279
Kan. at 34-37.

Combining these three cases, Barlow concludes that Officer Hagen coerced him
into confessing "by linking responses to interrogation questions with H.B.'s future
freedom and opportunities." In other words, Barlow argues that if a threat involving a
defendant's children is coercive (Lynumn and Brown) and if a threat to bring charges
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against a defendant is coercive (Swanigan), then a threat to bring charges against a
defendant's child is coercive.

Lynumn and Brown

We disagree. Lynumn and Brown are not "of the same nature" as this case. Those
cases examined how the State's interference with a defendant's parental rights could
affect a defendant's Fifth Amendment right against self-incrimination. So, "explicit
threats to eliminate or interfere with a suspect's custody of a young child unless the
suspect provides satisfactory statements to the police are presumed to be coercive. The
same is true of threatening the child's support from the state or conditioning future
interactions on cooperation. [Citations omitted]." Janusiak v. Cooper, 937 F.3d 880, 891
(7th Cir. 2019) (explaining the lessons learned from Lynumn). But that is not the case
here. Hagen's alleged threats did not force Barlow to decide between two rights,
forfeiting one. And Hagen did not threaten to sever or negatively affect Barlow's parental
rights. Thus, Lynumn and Brown are distinguishable.

When considering an officer's statements about a suspect's children generally—
and not about the parent-child relationship particularly—a different rubric than Lynumn
and Brown helps guide our decision. As a general rule, "police are not forbidden from
talking about a suspect's children." Janusiak, 937 F.3d at 891. And a confession is not
involuntary merely because an officer speaks about the potential good-faith arrest of a
family member. Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986); Newland v.
Hall, 527 F.3d 1162, 1189 (11th Cir. 2008).

Nonetheless, we carefully scrutinize how an officer speaks about a suspect's
family members as part of the totality of the circumstances. See United States v. Hill, 340
F. Supp. 344, 350 (E.D. Pa. 1972) (stating in dicta "that to manipulate the defendant's
decision by prolonged emphasis on its effect on the fate of his wife is a dangerous course
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at best, in that there is a good possibility that some defendants, even innocent ones, might
under the circumstances make false incriminating statements to procure the release of a
loved one"); see also Stanton v. Commonwealth, 349 S.W.3d 914, 920-21 (Ky. 2011)
(stating, when police deliberately prey on parental instincts and insinuate only the
suspect's confession will save them, "officers run a grave risk of overreaching"). We
address these facts below, in examining the totality of the circumstances.

Swanigan

Barlow's reliance on Swanigan is unfounded. In Swanigan, the court disapproved
of the officer's apparent hypocrisy: "[W]e fail to see how law enforcement can be
required by Miranda to advise Swanigan of his right to remain silent, and then can be
allowed to warn him of punishment [of additional charges] for his 'noncooperation' when
he exercises that right." 279 Kan. at 37.

Yet, Hagen did not engage in this hypocrisy. Hagen's inference about potential
charges concerned H.B., not Barlow. While it is impermissible for police to penalize an
individual for exercising his Fifth Amendment privilege, that privilege is personal and is
only for the benefit of the person invoking that privilege. See Miranda v. Arizona, 384
U.S. at 468 n.37; Rogers v. United States, 340 U.S. 367, 371, 71 S. Ct. 438, 95 L. Ed. 344
(1951). So even if Hagen had threatened to penalize H.B. for Barlow's noncooperation,
Barlow cannot reap the benefit from a privilege that is not at play—that is, H.B.'s
privilege against self-incrimination. Moreover, "[w]ithout more, an officer's truthful
description of the family member's predicament is permissible since it merely constitutes
an attempt to both accurately depict the situation to the suspect and to elicit more
information about the family member's culpability." United States v. Hufstetler, 782 F.3d
19, 24 (1st Cir. 2015); see State v. Grimes, 23 Neb. App. 304, 317-18, 870 N.W.2d 162
(2015) (listing cases in which courts have found threats coercive when police did not
have probable cause for a family member's arrest).
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Unfairness Due to Exhortations to Speak the Truth

Barlow next contends that Hagen's repeated requests for Barlow to tell the truth
coerced him to confess. An officer's repeated exhortations to tell the truth combined with
insistence that the defendant must come up with an explanation for incriminating facts
can create "considerable pressure" for a defendant to come up with an explanation. See
Stone, 291 Kan. at 24. On the other hand, the "'mere exhortation or adjuration to speak
the truth, or the mere suggestion to an accused that he confess, will not exclude a
confession.' [Citation omitted.]" State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349
(1981); see United States v. Chalan, 812 F.2d 1302, 1308 (10th Cir. 1987) (finding
defendant's confession voluntary despite officer's exhortations to tell the truth).

Totality of Circumstances

We look at the totality of the circumstances surrounding Barlow's confession.
First, Barlow acknowledged that he understood his Miranda rights and decided to waive
them. This weighs heavily towards the voluntariness of a confession. See Berkemer v.
McCarty, 468 U.S. 420, 433 n.20, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

Second, Hagen did not make substantial misrepresentations to Barlow. If Barlow's
initial statements were true, then H.B.'s statements would not be true, so Hagen would
have had probable cause to charge H.B. with making a false statement to police, violating
K.S.A. 2018 Supp. 21-5904(a)(1)(A). See Allen, 804 F.2d at 1364. Although the picture
Hagen painted of the potential legal consequences H.B. could face was unlikely, it was
not false or misleading. See Hufstetler, 782 F.3d at 24. And his statements, though
exaggerated, did not appear to affect Barlow's ultimate decision to confess. See Frazier v.
Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969) (showing generally
courts have found misrepresentations by police insufficient to make an otherwise
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voluntary confession inadmissible). Hagen's statements concerning H.B.'s predicament if
she gave a false statement did not overbear Barlow's will.

Third, nothing about the manner and duration of the interrogation suggests
Barlow's confession was involuntary. During the conversation, Barlow did not appear to
be fatigued, confused, or exceedingly anxious. Hagen did not physically threaten Barlow
or put him in a physically or mentally demanding situation. The tone between Barlow and
Hagen was conversational, calm and casual, and never adversarial. Even Hagen's
statements about H.B.'s predicament were not presented in a threatening manner. The
manner and context in which Hagen made these statements did not overbear Barlow's
will by emotional manipulation. See Hill, 340 F. Supp. at 350.

Fourth, two-and-a-half-hours passed between Barlow's first interview and the
second. See Swanigan, 279 Kan. at 42. After the first interview, Barlow was taken back
to his home and was released. During that time Barlow decided to confess, based on his
own reasons.

Fifth, Barlow's statements about his spiritual need to confess point toward the
voluntariness of his confession. The impetus for his second interview and for his
confession was personal or spiritual, rather than because of anything Hagen said or did.
Barlow initiated the second interview and his confession.

Sixth, the record shows Barlow was of sound mental condition and was fluent in
English. Nothing about his age, apparent intellect, or background points toward the
involuntariness of his confession. See Stone, 291 Kan. at 21.

Under the totality of the circumstances, we find that the State met its burden to
prove, by a preponderance of the evidence, that Barlow's confession was voluntary. The
district court correctly denied his motion to suppress.
12

Is K.S.A. 2018 Supp. 60-455(d) Unconstitutional Under the United States and Kansas
Constitutions?

Barlow next argues that K.S.A. 2018 Supp. 60-455(d) violates due process under
the Kansas and United States Constitutions. That statute generally states that in a criminal
action in which the defendant is accused of certain sex offenses, evidence that the
defendant committed another act of sexual misconduct is admissible, and it may be
considered for its bearing on any matter to which it is relevant and probative. That
propensity rule contrasts with the general rule in K.S.A. 2018 Supp. 60-455(a) that
evidence a person committed a prior crime or civil wrong is inadmissible to prove that
person's disposition to commit a crime or civil wrong. Barlow contends the use of sexual
propensity evidence erodes the presumption of innocence and allows the State to shirk its
burden of proving every crime beyond a reasonable doubt.

Standard of Review

A statute's constitutionality is a question of law subject to unlimited review. State
v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016). This court presumes
statutes are constitutional and "must resolve all doubts in favor of a statute's validity."
State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). The party attacking the statute
bears the burden to prove the statute is unconstitutional. State ex rel. Schneider v. Liggett,
223 Kan. 610, 616, 576 P.2d 221 (1978). "Before a statute may be stricken . . . it must
clearly appear the statute violates the Constitution." Bair v. Peck, 248 Kan. 824, Syl. ¶ 1,
811 P.2d 1176 (1991).

Federal Constitution

Barlow's arguments about the federal Constitution are identical to those the
Kansas Supreme Court rejected in State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019).
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Boysaw upheld the constitutionality of K.S.A. 2018 Supp. 60-455(d) under both the
Kansas and United States Constitutions. The Boysaw court held that K.S.A. 2018 Supp.
60-455(d) does not violate federal constitutional protections:

"The history of the use of propensity evidence in Kansas, coupled with the
procedural safeguard of weighing the probative against the prejudicial effect of the
evidence, leads us to conclude that K.S.A. 2018 Supp. 60-455(d) does not offend any
principle of justice so rooted in the traditions and conscience of the people of this state
that it may be deemed fundamental. K.S.A. 2018 Supp. 60-455(d) does not violate federal
constitutional protections." 309 Kan. at 536.

"This court is duty bound to follow Kansas Supreme Court precedent absent some
indication that the court is departing from its previous position." State v. Meyer, 51 Kan.
App. 2d 1066, 1072, 360 P.3d 467 (2015). Because we find no indication of such a
departure, Barlow's argument that K.S.A. 2018 Supp. 60-455(d) violates due process
under the United States Constitution fails.

Kansas Constitution

Next, Barlow contends that because the Kansas Constitution may provide greater
rights than the United States Constitution, K.S.A. 2018 Supp. 60-455(d) is
unconstitutional under the Kansas Bill of Rights.

Although Boysaw did not decide that substantive issue, it established a procedural
requirement for future challenges under the Kansas Constitution to the admission of
propensity evidence:

"Boysaw points to nothing in the history of the Kansas Constitution or in our
caselaw that would suggest a different analytic framework for questions of fundamental
fairness, due process, or double jeopardy. . . . In short, Boysaw does not articulate
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grounds explaining why a different result should follow if state, rather than federal,
guidelines are to govern the constitutionality of propensity evidence.
. . . .
"We also note that section 18 of the Kansas Constitution Bill of Rights did not
create new rights but merely recognized systems of laws established prior to the adoption
of the Constitution.
"Historically, our courts have analyzed sections 10 and 18 as coextensive with
their federal counterparts.
"Any future challenge to the admission of propensity evidence under K.S.A.
2018 Supp. 60-455(d) that is based on state constitutional provisions will need to explain
why this court should depart from its long history of coextensive analysis of rights under
the two constitutions. [Citations omitted.]" 309 Kan. at 536-38.

Barlow fails to explain how the Kansas Constitution provides more expansive
protection for propensity evidence than does the United States Constitution. Instead, he
points to two appellate decisions from Missouri and Iowa: State v. Ellison, 239 S.W.3d
603, 607-08 (Mo. 2007), and State v. Cox, 781 N.W.2d 757 (Iowa 2010). But these are
the same cases the Boysaw court considered and rejected. 309 Kan. at 535-37. Barlow
also fails to explain "why this court should depart from its long history of coextensive
analysis of rights under the two constitutions." 309 Kan. at 538. Barlow's procedural
failings prevents us from reaching the merits of his contention that K.S.A. 2018 Supp. 60-
455(d) is unconstitutional under the Kansas Bill of Rights.

Did the District Court Err by Admitting Evidence of Barlow's Prior Sexual Misconduct?

Barlow next argues that the district court erred by admitting evidence of his prior
sexual misconduct—his sexual contact with H.B. in Wichita. Barlow argues that this
evidence was not relevant to the offenses charged in Geary County, and that its
prejudicial effect outweighed it probative value.


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Standard of Review

Appellate courts review a district court's decision to admit evidence using a two-
step process. First, we determine whether the evidence is relevant. Generally, all evidence
is admissible if relevant. K.S.A. 60-407(f). Evidence is relevant if it has "any tendency in
reason to prove any material fact." K.S.A. 60-401(b). This definition encompasses two
elements: whether the evidence is material and whether the evidence is probative.
Evidence is material when the fact it supports is in dispute and is significant under the
substantive law of the case. Evidence is probative if it furnishes, establishes, or
contributes toward proof. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016). We
review the materiality of evidence de novo, while we review the district court's decision
regarding the probative value of evidence for abuse of discretion. State v. Boleyn, 297
Kan. 610, 622, 303 P.3d 680 (2013).

Second, we consider the prejudicial effect of admitting the evidence. Even if
evidence is relevant, a district court may exclude it pursuant to K.S.A. 60-445:

"Except as in this article otherwise provided, the judge may in his or her
discretion exclude evidence if he or she finds that its probative value is substantially
outweighed by the risk that its admission will unfairly and harmfully surprise a party who
has not had reasonable opportunity to anticipate that such evidence would be offered."

Despite the statute's narrow language, the Kansas Supreme Court has broadly construed it
to mean that a district court may exclude relevant evidence if the court determines the
probative value of the evidence is outweighed by its potential for producing undue
prejudice. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). It thus reads the
statute as though it were identical to the Federal Rule of Evidence 403 ("The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger
of . . . unfair prejudice.").

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We review probativity for an abuse of discretion. Lowrance, 298 Kan. at 291. A
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the district 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). As the
party challenging the district court's decision, Barlow bears the burden of establishing the
district court's abuse of discretion. See State v. Woodring, 309 Kan. 379, 380, 435 P.3d
54 (2019).

Relevance

Under K.S.A. 2018 Supp. 60-455(d), "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." Evidence is relevant if it has
a "'tendency in reason to prove any material fact.' K.S.A. 2018 Supp. 60-401(b)." State v.
Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). "Relevance is established by a material
or logical connection between the asserted facts and the inference or result they are
intended to establish." State v. Phillips, 295 Kan. 929, Syl. ¶ 7, 287 P.3d 245 (2012). Our
Supreme Court has ruled many times that in sex offense cases propensity evidence is
relevant—i.e., it has a legitimate and effective bearing on the defendant's guilt. See
Bowen, 299 Kan. at 349.

The State admitted evidence of Barlow's sexual touching of H.B. when they lived
in Wichita. This evidence shows that Barlow began touching H.B. and that it continued
under similar circumstances when the family moved to Geary County. It shows that
Barlow had a propensity to engage in sexual touching of H.B, which makes it more
probable that Barlow committed the charged crimes. Thus, the evidence was relevant.



17

Probative Value v. Prejudicial Effect

The second step for the district court, when admitting evidence under K.S.A 2018
Supp. 60-455(d), is to determine whether the evidence is probative. Evidence is probative
if it "furnishes, establishes, or contributes toward proof." State v. Coones, 301 Kan. 64,
78, 339 P.3d 375 (2014).

Although the statute does not require a weighing of the probative value against the
potential prejudice, the Kansas Supreme Court continues to require that weighing.
Boysaw, 309 Kan. at 540. It has offered several factors for balancing the probative value
of propensity evidence in sex abuse cases against its potential for prejudice:

"'1) how clearly the prior act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
whether the government can avail itself of any less prejudicial evidence. When analyzing
the probative dangers, a court considers: 1) how likely it is such evidence will contribute
to an improperly-based jury verdict; 2) the extent to which such evidence will distract the
jury from the central issues of the trial; and 3) how time consuming it will be to prove the
prior conduct. [Citations omitted].'" Bowen, 299 Kan. at 350.

Barlow challenges the first factor. He contends that the State did not clearly or
sufficiently prove his prior sexual misconduct with H.B. because that evidence came
solely from H.B.'s testimony, instead of from a previous conviction. Because H.B.'s
allegations of prior bad acts in Wichita were neither proved beyond a reasonable doubt
nor admitted by Barlow, he contends the evidence has little probative value.

But K.S.A. 2018 Supp. 60-455(d) does not require that prior bad acts be proved
beyond a reasonable doubt. K.S.A. 2018 Supp. 60-455(d) does not differentiate evidence
of prior sexual misconduct based (1) on the form from which that evidence arises or (2) if
a prior fact-finder has found the evidence reached a certain burden of proof. Instead, the
18

statute states that "evidence of the defendant's commission of another act or offense of
sexual misconduct is admissible." It does not suggest that this evidence is limited to a
prior conviction. So relevance and probative value are the only express limiting factors
on admission of this evidence. The plain language of the statute does not distinguish
between a prior conviction and an allegation, as Barlow argues.

Evidence of Barlow's previous sexual contact was supported not only by H.B.'s
sworn testimony but also by Barlow's corroborating statements. Although H.B. was not
specific in exactly how and when the sexual contact began, she testified that it began in
Wichita. And Barlow's statements to Hagen confirmed his sexual acts with H.B. in
Wichita. Both independently provided some detail about Barlow's prior sexual
misconduct. Our Supreme Court has allowed admission of evidence of prior uncharged
sexual misconduct based solely on the victim's testimony. See, e.g., State v. Prine, 297
Kan. 460, 481, 303 P.3d 662 (2013); State v. Spear, 297 Kan. 780, 788-89, 304 P.3d 1246
(2013). We find the State clearly introduced the evidence for the purposes of its probative
value.

Next, Barlow argues that the evidence was unduly prejudicial because it likely
caused the jury "to conclude that because Mr. Barlow committed sexual misconduct in
the past, he likely committed the crimes charged in the present case." But this is exactly
what propensity evidence does. Accepting Barlow's argument would render K.S.A. 2018
Supp. 60-455(d) ineffective.

We find no abuse of discretion in the district court's conclusion that the evidence
of Barlow's prior sexual touching of H.B. was more probative than prejudicial.



19

Did the District Court Abuse Its discretion by Denying Barlow's Motion to Admit
Evidence Under the Rape Shield Law?

Barlow next asserts that the district court abused its discretion by denying his
motion to admit evidence of H.B.'s text messages with her boyfriend: one text stated her
first rapist "wore a mask"; other texts revealed her sexual relationship with her boyfriend.
The district court found this evidence irrelevant and excluded it under K.S.A. 2018 Supp.
21-5502. Barlow contends that no reasonable person could have made that conclusion.

Analysis

Barlow argues that the text messages were relevant to whether Barlow engaged in
sexual touching with H.B. He also argues that the district court's exclusion of H.B.'s text
messages with her boyfriend denied him his right to present his theory of defense.

A defendant is entitled to present his theory of defense. Excluding relevant,
admissible, and noncumulative evidence which is an integral part of the theory of defense
violates the defendant's fundamental right to a fair trial. The defendant's right to present a
defense, however, is limited by the statutory rules of evidence. State v. Holman, 295 Kan.
116, Syl. ¶ 5, 284 P.3d 251 (2012), overruled on other grounds by State v. Dunn, 304
Kan. 773, 375 P.3d 332 (2016).

K.S.A. 2018 Supp. 21-5502 is one such rule. It restricts the admission of evidence
of a sexual assault victim's prior sexual activity. State v. Atkinson, 276 Kan. 920, 926, 80
P.3d 1143 (2003). This rape shield statute "'serves to focus both judges' and attorneys'
attention upon the fact that the victim's prior sexual activity is not generally relevant,
reminding them that a victim's lack of chastity has no bearing whatsoever on her
truthfulness and generally has no bearing on the important issue of consent.' [Citation
omitted.]" 276 Kan. at 926. The district court concluded that the evidence Barlow sought
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to admit was exactly the type of evidence that Kansas' rape shield law was meant to
exclude.

Evidence of a victim's prior sexual conduct is admissible if proved relevant to any
fact at issue, "such as the identity of the rapist, the consent of the victim, and whether or
not the defendant actually had intercourse with the victim." 276 Kan. at 926.

"Relevancy . . . is the key consideration when applying the rape shield statute.
. . . In the past, this court has concluded that prior sexual conduct evidence may be
material if it is relevant to issues such as the identity of the rapist, consent of the
complaining witness, or whether the defendant actually had intercourse with the
complaining witness. The court has cautioned, however, that 'the legislature sent a clear
message to the courts that a rape victim's prior sexual activity is generally inadmissible
since prior sexual activity, even with the accused, does not of itself imply consent to the
act complained of.' [Citations omitted.]" State v. Berriozabal, 291 Kan. 568, 586, 243
P.3d 352 (2010).

Barlow contends the excluded texts were relevant to show that he had not had
intercourse with H.B. Barlow argues that her text that her "first rapist" wore a mask is
relevant because it tends to show that someone else abused H.B., or that she made other
false accusations in the past. But if someone had abused H.B. in the past, that would not
make it less likely that her testimony about Barlow's sexual misconduct is false. See
Atkinson, 276 Kan. at 926. And nothing shows the falsity of H.B.'s past accusation.
Further, the nature of a vague text message to her boyfriend about a masked rapist is
qualitatively different from a report to her mother and the police accusing her father of
molestation. Thus, this text message would have little bearing on H.B.'s credibility about
Barlow molesting her.

Barlow also argues that the text messages would have shown that H.B. had seen
her boyfriend's testicles during sexual encounters with him, so she would have had "a
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point of reference for comparison" to Barlow's enlarged testicle and would have
mentioned it to someone. That H.B. did not spontaneously mention his enlarged testicle,
Barlow reasons, discredits her testimony that he molested her. But that is mere
speculation.

As the district court found, admission of the text messages would have
accomplished precisely what the rape shield law was meant to prevent: showing the jury
that H.B. was unchaste because she was engaged in a sexual relationship with her
boyfriend. This is apparent from Barlow's counsel's statement when he proffered this
evidence:

"Specifically, we would have elicited testimony about the extent and nature of
their sexual relationship with her boyfriend that we heard about during the examination
. . . . And we would have done that for the express purpose of showing that she had
sexual experience sufficient to fabricate these types of claims, and also to show the extent
of the relationship and the motive to fabricate allegations against her father given the fact
that he had the ability to cut off the wifi time and limit her communication with her
boyfriend."

This evidence was minimally relevant to show whether Barlow sexually molested
H.B., but it is inconsistent with our rape shield law. We find that a reasonable person
could agree with the district court's decision to exclude the texts as protected by the rape
shield law.

Did the District Court Err by Instructing the Jury?

Barlow's last claim of error relates to a jury instruction. He contends the
instruction, "if you have no reasonable doubt, you should find the defendant guilty," was
legally inappropriate. Barlow argues that "should" is the same as "must" and improperly
conveys a moral obligation to convict. See State v. Lovelace, 227 Kan. 348, 354, 607
22

P.2d 49 (2014), overruled by State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485
(2014). Thus, Barlow contends, the instruction usurps the jury's inherent power of
nullification. Barlow objected to this instruction, asking to substitute the word "may" for
"should," but the district court denied his request.

The Kansas Supreme Court recently summarized the stair-step analysis for jury
instruction challenges:

"Generally, an appellate court reviewing a jury instruction challenge must
determine whether the issue was preserved; whether the instruction was legally and
factually appropriate; and whether any error was harmless." State v. Barrett, 309 Kan.
1029, 1036-37, 442 P.3d 492 (2019).

Barlow preserved this issue by his objection at trial. Barlow tacitly concedes the
jury instruction was factually appropriate. His only claim of error is that the jury
instruction is not legally appropriate. To determine whether a jury instruction is legally
appropriate, we exercise de novo review. State v. Plummer, 295 Kan. 156, 161, 283 P.3d
202 (2012).

The Kansas Supreme Court has held that this jury instruction is proper. See State
v. Carter, 305 Kan. 139, 160, 380 P.3d 189 (2016) (stating a jury instruction of similar
language was "a proper reasonable doubt instruction"). It has repeatedly found that while
"must" may be legally improper in such a jury instruction, "should" is less of an
imperative than "must" or "will." See Smith-Parker, 301 Kan. at 164; State v.
Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994). Should is a normative suggestion.
It is not a command. Our court has similarly rejected this claim, finding no mandatory
duty:

23

"Unlike the words 'must,' 'shall,' and 'will,' the word 'should' does not express a
mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of
action and encourages following the advised path. Accordingly, the reasonable doubt
instruction contained at PIK Crim. 4th 51.010, which states that if the jury has no
reasonable doubt as to the truth of each [of] the claims asserted by the State it 'should find
the defendant guilty,' does not usurp the jury's inherent power of nullification." State v.
Allen, 52 Kan. App. 2d 729, Syl. ¶ 5, 372 P.3d 432 (2016).

The instruction Barlow challenges was taken word for word from PIK Crim. 4th 51.010
(2017 Supp.), and is legally appropriate. See State v. Butler, 307 Kan. 831, 847, 416 P.3d
116 (2018) (strongly recommending the use of PIK instructions, "which knowledgeable
committees develop to bring accuracy, clarity, and uniformity to instructions"). The
district court did not err by giving this instruction.

Affirmed.