State v. McNellis

NOT DESIGNATED FOR PUBLICATION

No. 118,420

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KEVIN WILLIAM MCNELLIS,
Appellant.

MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed July 26, 2019.
Affirmed.

Kevin W. McNellis, appellant pro se.

Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., GREEN and POWELL, JJ.

PER CURIAM: Kevin McNellis, who represents himself on appeal, appeals his
conviction and sentence for battery against his wife, Kara. We will summarize the rulings
we are making on the many issues McNellis has raised before explaining our decision in
more detail. In McNellis' brief on appeal, he lists 19 separate issues. We have reorganized
them a bit—now showing 11 issues—but have addressed the points he raised.

First, McNellis complains about the record on appeal and his access to it. He
complains that the district court didn't properly handle motions he filed to add items to
the appellate record and that the district court didn't send him a paper copy of its records.
2
But some items he wanted in the record couldn't properly be included—his
correspondence with his attorneys may relate to an ineffective-assistance-of-counsel
claim that he could raise in a later habeas corpus proceeding but no habeas claim is now
before us. And we cannot identify any other document that hasn't been included in the
record that might reasonably affect resolution of the issues he has raised on appeal. As for
the availability to him of a paper copy of the record, the district court clerk made the record
available to him electronically at the courthouse. McNellis suggests that because he lives
hundreds of miles away, the clerk's efforts here are not ideal. But McNellis was also
represented for a time by an attorney who had the full record, and McNellis acknowledges
that his former attorney's assistant sent McNellis "the last known record on appeal dated
November 2017, with all items on record attached accordingly with PDF files, or
similar . . . ." Since the full record at that time was provided to McNellis by his former
attorney and the clerk made the full trial-court record available (even if only at the clerk's
office), we find no reversible error here in the handling of the record.

Second, McNellis addresses alleged errors involving the withdrawal of his trial
attorney. But McNellis doesn't show how this had any impact on the trial. McNellis
represented himself at trial, and he hasn't suggested he provided inadequate representation.
With no connection between this claim and the trial outcome, McNellis hasn't shown a trial
error involving his prior attorney.

Third, McNellis raises a series of issues related to the State's grant of immunity to
Kara at the preliminary hearing. But he once again doesn't show how this affected his trial
and he didn't object at the preliminary hearing to the State's grant of immunity to Kara.
Because he didn't raise the issue in the district court, he cannot raise it on appeal.

Fourth, McNellis claims that the court erred by allowing officer Matt Pfrang to
refresh his memory by looking at his police report—which McNellis calls a script—while
testifying at the preliminary hearing. But a witness who has an independent recollection
3
of the subject matter can use a document to refresh memory, so the court didn't err in
allowing the officer to do so.

Fifth, McNellis raises arguments that the attorneys who represented him were
ineffective. But we usually will not consider an allegation of ineffective assistance of
counsel for the first time on appeal because the factual basis for the claims hasn't been
developed in the trial court. We see no reason to deviate from that rule here.

Sixth, McNellis claims that the district court erred by not letting him call Kara
McNellis to testify at trial by electronic means while she remained in Illinois. Although
Kansas law allows for witnesses to testify from another place under special circumstances,
McNellis hasn't shown that the compelling circumstances required to allow such testimony
existed. So he has not shown that the district court abused its discretion by denying the
request.

Seventh, McNellis argues that the district court erred by not removing potential
jurors who had "self-admitted conflict[s] of interest." But McNellis didn't raise this issue
in the district court and doesn't cite any exception to the general rule that issues must be
raised first in the trial court to be considered on appeal. We therefore decline to take up
this claim of error.

Eighth, McNellis claims that the district court failed to keep jurors and the
prosecutor from using the same public restroom during the trial. But jurors are instructed
at the start of a trial not to talk about the case to anyone or let anyone talk to them about
it. We presume that the jurors followed that instruction and find no error in letting jurors
use the public restroom in the hallway of a courthouse.

Ninth, McNellis claims the prosecutor erred by presenting evidence from officers
and hotel employees about what Kara told them at the hotel. But McNellis didn't object to
4
the admission of this evidence at trial, and a trial objection is needed to preserve an
evidentiary issue for appeal.

Tenth, McNellis says there wasn't sufficient evidence to support his conviction.
But the State had to prove only that McNellis hit Kara at least one time that night in
anger. Several witnesses at trial who testified that McNellis injured Kara, describing
blood dripping from her ear, red marks on her neck, and Kara's statements about her
injuries. There was more than sufficient evidence to supports McNellis' conviction for
battery.

Last, McNellis claims the district court erred by issuing two arrest warrants while
he has been on probation. He objects that the first warrant was issued before he was given
a chance to "appear and defend." But a warrant is issued on probable cause, not after a
contested trial. The court followed the proper procedure, and McNellis has the right to
defend against the allegation after arrest. McNellis argues that the second bench warrant
apparently was issued against him in retaliation for proper conduct. But he has not shown
that he raised that issue in the district court or any reason why it may be raised for the
first time on appeal.

With that overview, we will go on to review the case and issues on appeal more
fully.

FACTUAL AND PROCEDURAL BACKGROUND

McNellis, who represents himself on appeal, appeals his conviction for battery
against his wife, Kara.

In May 2015, an employee at the Bluemont Hotel in Manhattan called 911 after a
guest—Kara—reported that "her husband assaulted her and hit her multiple times." When
5
officers arrived at the hotel room where the incident had occurred, officers found Kara
being treated by emergency medical personnel.

We start with the facts set out in Kara's written statement to the police. She said that
she and McNellis had driven from their home in Chicago to Manhattan to visit family. She
said they argued for the "majority of [the] car ride."

After the couple arrived at the Bluemont Hotel, Kara checked into the hotel and
McNellis went to a bar. He returned to the hotel about an hour later, but the two kept
arguing. McNellis left again and "went out drinking for the rest of the evening." He
returned to the hotel room around 11 p.m.

Kara said that she and McNellis were in separate beds when "he became agitated."
She then said that McNellis started to restrain her in her bed, "held his hands around [her]
neck and was squeezing, [and] repeatedly put [her] in a chokehold position and was twisting
[her] neck to the point of pain." Then Kara said he hit her three to four times on the left side
of her face.

Kara said that at that point she "was able to get away, off [the] bed into the corner
of the room[, but] he restrained [her] again around [her] neck and struck [her] 2-3 more
times and spit in [her] face." Kara described "screaming throughout this ordeal." Finally,
McNellis left the hotel room with Kara's phone and car keys.

One officer who responded to the incident, Michael Wagenblast, interviewed
Kara, and that interview was recorded on his body camera. He also took photos of the
injuries Kara sustained, including a cut ear, bruised eyelid, and marks on her neck.

According to an email hotel employee Ashley Arth wrote to her supervisors, Kara
called the front desk around 11:35 p.m. "and said that her husband had physically abused
6
her by hitting her in the head and choking her." The email also said Kara "thought she
needed to be check[ed] out because at one point in time she blacked out during the
abuse." Arth said she called the police as soon as she got off the phone with Kara.

The State charged McNellis with one count of aggravated battery. Before trial,
though, the State amended the charge to simple battery, a misdemeanor. The elements of
battery charged here were (1) physical contact (2) done in a rude, angry, or insulting
manner. See K.S.A. 2018 Supp. 21-5413(a)(2).

McNellis was first represented by attorney Colt Knutson, who later withdrew
because of "complete and irreconcilable differences" and because "[c]ommunication and
dialogue between [McNellis] and counsel ha[d] ceased to exist." The district court then
appointed Gary West to represent McNellis. West later withdrew, also because of
"[i]rreconcilable differences." The court tried to appoint a third attorney, Brenda Jordan,
to represent McNellis. McNellis rejected that appointment and, "[a]fter being fully
advised, [McNellis] waive[d] his right to counsel and refuse[d] stand-by counsel."

McNellis represented himself at trial. The jury heard from Wagenblast, two hotel
employees (Arth and Severance Hill), and McNellis. Kara wasn't able to come to Kansas
for the trial due to a high-risk pregnancy, so the State read to the jury testimony that she
had given at an earlier hearing.

The jury found McNellis guilty of battery. The district court sentenced him to 12
months of probation with an underlying term of 6 months in jail that McNellis would
have to serve if he didn't successfully complete probation.

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ANALYSIS

I. McNellis Hasn't Shown Error Regarding the Record on Appeal.

McNellis makes two basic complaints about the record on appeal. First, he
complains that the district court either refused to add items he wanted in the record or
failed altogether to act on some of his requests. Second, he argues that he didn't have
sufficient access to the record to work on his appeal.

We begin by considering the purpose of the record on appeal—it allows us to
consider the issues properly before us on appeal. Here, we need to determine whether
McNellis got a fair trial and whether evidence used against him at trial was properly
admitted. But McNellis is trying to weave other issues into his appeal with broad claims
of "Public Corruption riddled throughout nearly all aspects" of his case. We do not have
sweeping investigatory powers over public corruption. In a criminal case that resulted in
conviction, like this one, we decide whether errors require reversal of that conviction.

It appears to us that most of the records McNellis points to as not being in our
record simply don't affect the issues that are properly before us. For example, McNellis
wants us to see communications between him and the attorneys who represented him at
different times. But there were no evidentiary hearings in the trial court about whether
any of his attorneys provided inadequate representation; normally, we don't consider that
issue on direct appeal unless those hearings have happened. See State v. Dull, 298 Kan.
832, 839, 317 P.3d 104 (2014); State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580
(1986). Instead, issues of ineffective assistance of counsel are usually first raised in a
later habeas proceeding under K.S.A. 2018 Supp. 60-1507 only after the defendant's
conviction is affirmed on direct appeal. If the conviction isn't affirmed, of course, there
would be no need to look at the adequacy of the representation; the defendant would
either get a new trial or have the charges dismissed altogether. Since McNellis'
8
communications with his attorneys weren't part of the district court's proceedings, they
wouldn't properly be part of the record for this appeal. See Supreme Court Rule 3.01
(2019 Kan. S. Ct. R. 19).

McNellis also wants us to see emails with his probation officer, with the trial
judge, and with the prosecutor. Once again, those weren't part of a district court hearing
or filing. And McNellis doesn't provide any reasonable link between those materials—or
others excluded from the record—and any of the issues properly before us. We could not
identify any document not included in the record that might reasonably affect resolving
those issues.

McNellis also argues that he has been wrongfully deprived of a copy of the record
and is entitled to a "proper free copy for all of the needed and requested items of record
with audio . . . in their full and non-redacted form."

We agree that McNellis had a right to access the appellate record. K.S.A. 22-4509
provides for that access:

"Whenever it is determined that a transcript of all or some part of the trial or other
proceeding is necessary to enable a person who is entitled to appeal, or to pursue another
post-conviction remedy, to present such person's cause adequately and it is further
determined that the appellant or petitioner or movant is financially unable to pay for the
preparation of such transcript, the district court shall order that the transcript be supplied to
the appellant or petitioner or movant by the official reporter of the district court."

But at the beginning of this appeal, McNellis was represented by an appointed attorney. In
fact, that attorney filed a brief on McNellis' behalf before, at McNellis' request, our court
struck that brief and allowed McNellis to file his own brief, raising many more issues.

9
As for the record, though, McNellis agrees that his former attorney's assistant sent
McNellis "the last known record on appeal dated November 2017, with all items on record
attached accordingly with PDF files, or similar . . . ." He also concedes that the district
court clerk's office made the record available to him electronically at the Riley County
Courthouse.

McNellis argues that access at the Kansas courthouse is of little value to a litigant
who would have to travel 1,300 miles roundtrip to view it. From the perspective of serving
litigants and the public, McNellis makes a fair point. But on the facts here, he hasn't shown
a violation of due process or fundamental fairness; nor has he shown prejudice. The full
appellate record as it stood in November 2017 (the record his appointed attorney used to
file a brief) was provided to McNellis, and the full district court record was available to
him at the courthouse. McNellis' appellate brief cites appropriately to the trial transcript,
and he hasn't shown that lack of better access to the record prejudiced him in any way in
preparing his 60-page brief. With no showing of prejudice, any error that took place would
be considered harmless. See State v. Salary, 309 Kan. 479, 487, 437 P.3d 953 (2019). We
therefore find no reversible error here in the handling of the record.

II. McNellis Has Not Shown Reversible Error Regarding the Withdrawal of His Trial
Counsel, Colt Knutson.

McNellis next claims error over the withdrawal of his trial counsel, Colt Knutson.
Before trial, Knutson asked the district court to let him withdraw as McNellis' attorney,
citing irreconcilable differences and lack of communication with McNellis. The court
granted Knutson's motion, concluding in a written order that "after being duly advised, [it
found] that just cause exist[ed]" to allow Knutson to withdraw.

McNellis complains that no hearing took place. He also alleges that Knutson had
conflicts of interest.
10

But this is another area in which McNellis doesn't tie his general allegations of
misconduct to the trial, which caused the conviction that is now on appeal. As we have
already explained, there's no claim of ineffective assistance of counsel properly before us.

And McNellis ultimately represented himself at trial. On appeal, McNellis hasn't
argued that he did an inadequate job of representing himself at trial or that the district
court failed to advise him of the risks of doing so before he made that choice. McNellis
had the right to represent himself at trial, see State v. Jones, 290 Kan. 373, 376-77, 228
P.3d 394 (2010), and he did so. He has shown no impact on the trial from Knutson's
earlier representation. McNellis therefore has not shown error on this point.

III. McNellis Didn't Preserve for Appeal Any Complaints About the State's Grant of
Immunity to His Wife.

McNellis raises a series of issues related to the State's grant of immunity to Kara at
the preliminary hearing, which provided the testimony read to the jury at trial. Most of
these claims have to do with McNellis' claims that the State violated Kara's rights, not his
own rights. So it's once again hard to see how these claims (such as the failure to involve a
victim coordinator for Kara on the hearing record or the failure of police to give Miranda
warnings to Kara) would in any way impact McNellis' trial. In any case, he didn't object at
the preliminary hearing to the State's grant of immunity to Kara. Since McNellis didn't raise
this objection when the grant of immunity was made in the district court, he cannot raise the
issue on appeal. See State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013).

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IV. The District Court Didn't Err by Allowing Officer Pfrang to Refresh his Recollection
by Referring to His Police Report While Testifying at the Preliminary Hearing.

McNellis claims that the court erred by letting Officer Matt Pfrang refresh his
memory by looking at his police report—which McNellis calls a script—while testifying
at the preliminary hearing. There are two problems with this argument.

First, of course, the testimony occurred at the preliminary hearing, not at trial. "As
a general principle, after an accused has gone to trial and has been found guilty beyond a
reasonable doubt, any error at the preliminary hearing stage is considered harmless unless
it appears that the error caused prejudice at trial." Jones, 290 Kan. at 381. McNellis hasn't
shown how allowing Pfang to refresh his memory by looking at his report during the
preliminary hearing affected Pfang's trial testimony.

Second, even if it had some effect on the trial, we review a district court's decision
to allow a witness to use memoranda or other items to refresh the witness' recollection
only for an abuse of discretion. See State v. Stinson, 43 Kan. App. 2d 468, 478-79, 227
P.3d 11 (2010); State v. Kelly, 19 Kan. App. 2d 625, 627, 874 P.2d 1208 (1994). A court
abuses its discretion when its decision is based on an error of law or fact, or when no
reasonable person could agree with the decision. See State v. Brown, 51 Kan. App. 2d
876, Syl. ¶ 4, 357 P.3d 296 (2015).

It is a well-established rule that "'[a] witness while testifying, or prior thereto,
may refresh his recollection by reference to any memoranda relating to the subject matter,
provided he then has an independent recollection of the subject matter.'" Stinson, 43 Kan.
App. 2d at 478 (quoting Barbara, Kansas Law and Practice, Lawyer's Guide to Kansas
Evidence § 9.13, p. 309 [5th ed. 2007]). Based on the transcript of the preliminary hearing,
that's precisely what happened here.

12
While McNellis was cross-examining Pfrang at the preliminary hearing, McNellis
asked Pfrang if he was reading from a report. Pfrang responded that the report was in his
lap and confirmed that he read parts of the report but not the entire thing. Based on that
testimony and the long-standing rule that allows a testifying witness to refresh his or her
recollection by looking at a report, there was no abuse of discretion in letting Pfrang keep
using his report. The officer's initial practice of having it in his lap, apparently hiding its
use, is not a good one; the use of a document to refresh recollection should be done
transparently, not in a secretive way. But a witness who has an independent recollection
of the subject matter may use a document to refresh memory. Since a reasonable person
could agree with the district court's ruling, we find no abuse of discretion.

V. We Do Not Reach the Merits of McNellis' Claims that He Received Ineffective
Assistance of Counsel.

McNellis next claims this the attorneys who represented him after Knutson were
ineffective. McNellis claims that trial attorneys Gary West and Brenda Jordan and
appellate attorneys Blake Robinson and Bobby Hiebert were ineffective.

McNellis wrote the district court a long letter in which he alluded to ineffective
assistance from West. But other than that letter, the record shows that McNellis didn't
formally raise ineffective assistance of counsel to the district court, and the district court
never heard arguments or made findings of facts or conclusions of law about McNellis'
claims.

As we have already noted, we usually do not consider an allegation of ineffective
assistance of counsel for the first time on appeal. Dull, 298 Kan. at 839. While "'there are
circumstances when no evidentiary record need be established, when the merit or lack of
merit of an ineffectiveness claim about trial counsel is obvious,' and an ineffectiveness
claim can therefore be resolved when raised for the first time on appeal, these
13
circumstances are 'extremely rare.'" Dull, 298 Kan. at 839 (quoting Rowland v. State, 289
Kan. 1076, 1084-85, 219 P.3d 1212 [2009]).

Here, there weren't proceedings in the district court to hear McNellis' claims on
ineffective assistance of counsel. At least some of McNellis' claims—like his claim that
Jordan allegedly refused to defend his case, or that West didn't do any investigative work—
would require an evidentiary hearing to resolve. Likewise, an evidentiary hearing would be
required to resolve his claims that Robinson failed to investigate the case and that Hiebert
didn't do anything to help McNellis "stay the judgment and or punishment."

We see no indication that McNellis requested an evidentiary hearing on these
matters in the district court. On this record, we decline to reach the merits of McNellis'
ineffective-assistance-of-counsel claims for the first time on appeal. If ineffective
representation by any attorney representing McNellis affected the outcome of his trial,
i.e., the guilty verdict, he may seek habeas relief under K.S.A. 2018 Supp. 60-1507.

VI. The District Court Didn't Abuse Its Discretion by Denying McNellis' Request to Have
Kara Testify Electronically.

McNellis' next claim is that the district court erred by not calling Kara McNellis to
testify at trial by "'face-time,' Skype, or common programs used in all of American
Courts." We review the district court's decision on this trial-procedure question for an
abuse of discretion. A court abuses its discretion when its decision is based on an error of
fact or law, or when no reasonable person could agree with the decision. See State v.
Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

At trial, the district court ruled that McNellis' wife, Kara, was unavailable to
testify as a witness. The State then read Kara's prior testimony from the December 4,
2015 preliminary hearing. After that, McNellis asked the district court to let Kara testify
14
by Facetime or a conference call. The court denied McNellis' request because McNellis'
argument "has not been accepted by our Supreme Court as a valid method to testify in
court . . . ."

The trial court was wrong on that legal point. One rule, Supreme Court Rule 145
(2019 Kan. Ct. R. 217), provides for the use of electronic communication in proceedings
other than a trial: "The court may use a telephone or other electronic conference to conduct
any hearing or conference other than a trial on the merits." (Emphasis added.) For trials on
the merits of the case, though, the rule points to K.S.A. 2018 Supp. 60-243(a), which
allows electronic communications for testimony in compelling circumstances: "At trial, the
witness' testimony must be taken in open court, unless otherwise provided by law. For
good cause in compelling circumstances and with appropriate safeguards, the court may
permit testimony in open court by contemporaneous transmission from a different
location."

That the trial court based its decision on a proposition that was legally in error
doesn't end the inquiry, though, because "appellate courts may affirm a district court as
right for the wrong reason if an alternative basis exists for the district court's ruling." State
v. Smith, 309 Kan. ___, 441 P.3d 1041, 1047 (2019). So we still must consider whether the
district court's ruling was correct under K.S.A. 2018 Supp. 60-243(a).

To get permission to present Kara's testimony electronically under that statute,
McNellis had to show that compelling circumstances required letting Kara testify from
Illinois. But Kara had come to Kansas and provided testimony at the preliminary hearing.
McNellis didn't show the district court any reason to believe her testimony would be
different at trial or that she hadn't been appropriately questioned at the earlier hearing. On
appeal, McNellis has cited no way in which her electronic testimony at trial would have
differed from the sworn testimony she had given at the preliminary hearing. In that case,
McNellis didn't show compelling circumstances required that Kara's testimony be taken at
15
trial by electronic means while she remained in Illinois. The district court did not abuse its
discretion when it denied McNellis' request.

VII. McNellis' Claim of Jury Tampering Is Unpersuasive.

McNellis next argues that the district court erred by not removing potential jurors
who had "self-admitted conflict[s] of interest." McNellis seems to object generally to the
way the jury panel was selected.

To consider this issue, we first review the district court's factual findings to ensure
they are supported by substantial evidence. We then have unlimited review over the
district court's legal conclusions. See State v. Lewis, 38 Kan. App. 2d 91, 93, 161 P.3d
807 (2007).

McNellis says the court should have removed four women—one because of her
relationship with the State's attorney, and three others he didn't specifically name,
because of their relationships with Riley County police officers. But McNellis didn't raise
this issue at the district-court level, so the district court never had a chance to make either
findings of fact or form legal conclusions based on those findings.

Generally, a party is precluded from raising an issue for the first time on appeal.
State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). And if a party raises an issue for
the first time on appeal, it must explain which exception to the preservation rule applies.
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); see Kansas Supreme Court
Rule 6.02(a)(5) (2009 Kan. S. Ct. R. 34). McNellis doesn't explain why this issue is
properly before this court when raised for the first time on appeal, and he doesn't cite an
exception that would let us consider the issue. 301 Kan. at 1043. We conclude that the
issue is not properly before us for consideration.

16
Even if McNellis had properly preserved the issue for appeal and shown some
error, though, the error would be harmless. That's because none of the potential jurors
who McNellis says had conflicts of interest ultimately served on the jury.

VIII. McNellis Has Not Shown Error in the Lack of a Trial Order that Potential Jurors
and the State's Attorney Could Not Use the Same Restroom.

McNellis next objects that the district court failed to remedy the situation created
when Kendra Lewison, the State's attorney, and the female potential jurors used the same
public restroom. But McNellis fails to explain how this caused him prejudice, and he
doesn't say what the court should have done to address the situation.

The situation is a common one in courthouses throughout the country. Many
courthouses don't have separate restrooms set aside for jurors. So members of the public,
attorneys, witnesses, and jurors may well end up in the restroom down the hall from the
trial courtroom at the same time. Of course, chance encounters can occur in parking lots
near the courthouse, at the courthouse entrance, and in other places.

Because this is a common issue, it's covered in pattern jury instructions. At the
start of the case the court tells jurors not to communicate with anyone about the case and
not to let anyone communicate with them about it, either. See PIK Crim. 4th 50.010. The
judge in McNellis' case gave a similar instruction to the jury, telling it before the lunch
break on the first day of the two-day trial that "it's your duty not to converse with or
allow yourself to be addressed by any person . . . on any subject of this trial." The judge
told the jurors that "if anyone does attempt to discuss this case with you, you should
notify [the bailiff] immediately." And the judge repeated that instruction when court
adjourned for the day.

17
We presume that jurors follow the instructions, State v. Thurber, 308 Kan. 140,
194-95, 420 P.3d 389 (2018), so there's no reason to think that any improper discussions
took place. In addition, of course, attorneys know that they are not to talk with the jurors
during the trial. McNellis has not shown error in the trial court's failure to keep jurors
from using the same restroom as the prosecutor.

IX. The Prosecutor Didn't Err by Presenting Kara's Preliminary Hearing Testimony to
Be Read at Trial.

Next, McNellis raises another issue about testimony presented about statements of
his wife, Kara. The State presented not only her preliminary-hearing testimony but also
statements she made to others, like officers or hotel employees. For those statements, the
State presented the evidence through the testimony of those other witnesses. McNellis
argues that this was hearsay evidence and that the prosecutor was "taking advantage of
the Defendant's lack of knowledge of the law." McNellis frames this issue as one
involving prosecutorial misconduct, but the true issue is the evidentiary issue of whether
the district court properly admitted the hearsay evidence at trial.

The district court first determined Kara was unavailable to testify at McNellis' trial
and permitted the State to present hearsay evidence (her testimony from the preliminary
hearing) rather than have her testify in person. McNellis doesn't challenge the court's
decision to admit Kara's testimony from the preliminary hearing. Rather, he says the
prosecutor erred by presenting evidence from other witnesses that included hearsay
statements made by Kara.

McNellis is right that hearsay evidence, defined as evidence of a statement made
by someone other than the testifying witness that's offered to prove the truth of that
statement, is generally inadmissible at trial. K.S.A. 2018 Supp. 60-460. And McNellis is
right that the statements he challenges were hearsay: different witnesses told the jury
what Kara had told them about the incident in the hotel, and the State offered it to prove
18
that McNellis committed the crime charged. But just because a statement is hearsay
doesn't automatically mean it can't be presented at trial; hearsay can be admitted if it
meets one of the many hearsay exceptions provided by K.S.A. 2018 Supp. 60-460. Here,
as we will explain in a moment, each of the hearsay statements McNellis says the State
improperly introduced met an exception to the rule.

But even if there had been no applicable exception, McNellis didn't preserve an
objection to this evidence for appellate review. As the State notes in its brief, McNellis
didn't object to this evidence at trial. That's a requirement to obtaining appellate review of
improperly admitted evidence; the trial court must first be given a chance to consider the
objection. See State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009). And an attempt
to reshape the argument into one of prosecutorial error can't correct the failure when the
claimed prosecutorial error relates to the presentation of evidence. See 288 Kan. at 346-
49. So McNellis has not preserved this issue for our review.

Because he is self-represented, though, we will summarize the hearsay exceptions
that appear to have been available for each of the items of testimony McNellis has
complained about on appeal:
 McNellis challenges the testimony of Arth, a former employee of the Bluemont
Hotel. Arth told the jury that on the night of the incident, she received a call from
McNellis' hotel room and that the caller told her that "her husband had choked her
out and took their vehicle [and] . . . she said that she thought she needed to be
checked out by an ambulance, so she asked that I call an ambulance for her."
Under K.S.A. 2018 Supp. 60-460(d)(3), a hearsay statement can be admitted if the
declarant is unavailable to testify and the statement was made "by the declarant at a
time when the matter had been recently perceived by the declarant and while the
declarant's recollection was clear and was made in good faith prior to the
commencement of the action and with no incentive to falsify or to distort." Kara's
statement to Arth meets those requirements. Kara called Arth to ask for an
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ambulance shortly after the battery took place. When Kara made that statement,
the State hadn't commenced its criminal action against McNellis, and she had no
reason to lie to Arth about the incident. Parts of the statement would also be
admissible under K.S.A. 2018 Supp. 60-460(d)(1) and (2) as a description of her
present condition (injured and needing medical attention) or as a statement made
while under stress from an exciting event (having been "choked . . . out" by her
husband).
 McNellis says the prosecutor erred by presenting Hill's testimony, which included
Kara's statements on the night of the incident. Hill, who worked as a security officer
at the hotel, told the jury that Arth called him to respond to Kara's phone call asking
for assistance. He said that when he arrived to McNellis' hotel room, Kara was injured
and "she wasn't explaining like in clear detail, like she was saying . . . they got into an
argument, or they had been arguing, and he threw her on the bed and . . . was choking
her out where she couldn't breathe or see where she was . . . ." Those statements also
appear to have been admissible under K.S.A. 2018 Supp. 60-460(d) as statements
made "under the stress of a nervous excitement caused by [an event or condition]"
or made the statement in good faith while the person's recollection was clear.
 McNellis says the prosecutor erred by presenting Officer Wagenblast's testimony
that after he responded to the 911 call, Kara told him that "she had been slapped."
Once again, for an unavailable witness, this statement appears to have been
admissible as a statement made in good faith while the person's recollection was
clear under K.S.A. 2018 Supp. 60-460(d)(3).
McNellis makes a brief reference to the right to confront the witnesses against him, a right
protected by the Confrontation Clause of the United States Constitution. But he had a
chance to confront the absent trial witness, Kara, at the preliminary hearing, and he was
represented by counsel at that hearing. So there would have been no Confrontation Clause
violation by allowing Kara's testimony to be read to the jury at trial. See State v. Stano, 284
Kan. 126, 141-45, 159 P.3d 931 (2007); State v. Young, 277 Kan. 588, 599, 87 P.3d 308
(2004).
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X. Sufficient Evidence Supports McNellis' Conviction.

McNellis also argues that there wasn't sufficient evidence to support his
conviction. Because the jury—the fact-finder in this case—ruled in the State's favor, we
review challenges to the sufficiency of the evidence by reviewing all the evidence in a light
most favorable to the prosecution. The evidence is enough if, after reviewing the evidence
in that light, we are convinced that a rational fact-finder could have found the defendant
guilty beyond a reasonable doubt. We do not reweigh the evidence, resolve evidentiary
conflicts, or make witness credibility determinations. See State v. Chandler, 307 Kan. 657,
668, 414 P.3d 713 (2018).

The State charged McNellis with violating K.S.A. 2014 Supp. 21-5413(a)(2), which
makes it illegal to "knowingly caus[e] physical contact with another person when done in a
rude, insulting or angry manner." The State charged that McNellis did this by hitting Kara
in an angry manner. That's what the State had to prove beyond a reasonable doubt, and it
did so.

First, the jury heard Kara's testimony from the preliminary hearing that she and
McNellis checked into the Bluemont Hotel together on the night of the incident. It also
heard testimony that police officers and a hotel security guard responded to an incident in
her room.

Then the jury heard from Officer Wagenblast. He described how, when he arrived to
McNellis' hotel room, he saw a "slightly red bump over her left eye" and that Kara showed
him where her left ear was cut. Wagenblast also said Kara had "red marks on her
neck . . . ."

Arth testified that she was working at the hotel on the night of the incident when a
female called and asked her to call an ambulance because the caller's husband had choked
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her out. The State also admitted an email Arth sent to the hotel's front-desk supervisor and
general manager; the email said that Kara had reported that "her husband had physically
abused her by hitting her in the head and choking her."

Hill, who was working as a hotel security guard, told the jury that Arth called and
asked Hill to go to McNellis' room because Kara had called to report a physical assault. Hill
told the jury that he saw blood dripping from Kara's ear and that she had red marks across
her neck. Hill also told the jury that Kara told him that McNellis "threw her on the bed and
. . . was choking her out . . . ."

Along with this testimony, the State presented Kara's written statement that said
McNellis had restrained Kara in bed and that he put his hands around her neck and
"repeatedly put [her] in a chokehold position and was twisting [her] neck to [the] point of
pain." Kara's written statement also said that McNellis "struck [her on the] left side of [her]
face about 3-4 times." And the State introduced photos of Kara's injuries and the video
recordings of the statements she made to the responding officers.

The State needed merely to show that McNellis had struck her one time that night
in anger. The evidence the State presented was more than enough to support McNellis'
conviction for battery against Kara.

XI. McNellis Has Not Shown Error in the District Court's Issuance of Arrest Warrants
for McNellis.

Last, McNellis claims the district court erred by issuing arrest warrants for him
while he has been on probation. He alleges that the first warrant for a probation violation
was issued without giving him a chance to "appear and defend." He argues that a second
warrant was issued in retaliation because he was exposing public corruption in the courts.

22
Under K.S.A. 2018 Supp. 22-3716(a), "the court may issue a warrant for the arrest
of a defendant for violation of any of the conditions of release or assignment . . . ."
Subsection (b) instructs that "[u]pon arrest and detention pursuant to subsection (a), the
court services officer or community correctional services officer shall immediately notify
the court and shall submit in writing a report showing in what manner the defendant has
violated the conditions of release or assignment or a nonprison sanction." K.S.A. 2018
Supp. 22-3716(b)(1). These statutes do not require a defendant to have the chance to
defend himself before the arrest warrant is issued. Like other warrants, this one may be
issued on probable cause; the defendant has a chance to explain and defend his conduct
after arrest.

Here, the State moved to revoke McNellis' probation based on allegations that
McNellis had violated his probation by not reporting to his probation officer. Based on an
affidavit, the court issued an arrest warrant against McNellis. The record shows that the
court followed prescribed procedure when issuing a warrant against McNellis.

McNellis apparently argues that the second bench warrant that the court issued
against him was unlawful because it had an unlawful purpose. If so, the matter should
have been addressed first in the district court. Once again, issues generally must be first
addressed in the district court. If an issue is to be addressed first on appeal, the party
raising it must tell us what exception allows the presentation of the issue here first.
Godfrey, 301 Kan. at 1043.

McNellis has not shown error, and we affirm the district court's judgment.