State v. Merced

1

NOT DESIGNATED FOR PUBLICATION

No. 116,001

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SAMUEL LUIS MERCED,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; MARITZA SEGARRA, judge. Opinion filed October 27, 2017.
Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER, J., and BURGESS, S.J.

PER CURIAM: In 2014 the State charged Samuel Merced with three counts of
aggravated indecent liberties with a child, in violation of K.S.A. 2013 Supp. 21-
5506(b)(3)(A); three counts of aggravated indecent solicitation of a child, in violation of
K.S.A. 2013 Supp. 21-5508(b)(1); and three counts of lewd and lascivious behavior, in
violation of K.S.A. 2013 Supp. 21-5513(a)(2). At trial, the district court allowed the State
to present evidence of Merced's prior sexual offenses in accordance with K.S.A. 2014
Supp. 60-455(d) over Merced's objection. The district court also overruled Merced's
objection to Detective Odell's testimony regarding the Finding Words of Kansas training
he received and the protocol he used during his interview with A.P. The jury convicted
2

Merced of two counts of aggravated indecent solicitation of a child and one count of lewd
and lascivious behavior. Merced timely appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

H.P. and Merced met in 2004, while they both worked at Burger King. H.P.
suggested to Merced that they have a baby together. Merced agreed, and together they
decided Merced would have no role in the child's life. Part of their agreement also
relieved Merced of any duty to pay child support. Their child, A.P., was born in 2006.

After expressing curiosity about her father to H.P., A.P. and Merced started seeing
each other more frequently. Merced usually visited A.P. at her and H.P.'s apartment, and
H.P. testified that although Merced would be at their apartment so he could visit his
daughter, "they didn't really do much." Rather, H.P. and Merced "engage[d] in
conversation" while he would "watch [A.P.] while she played with toys or something."

Although Merced reached out to H.P. so he could see A.P., there was little
consistency or routine in the visits. H.P. testified that she and Merced established a cycle
where he would call or text H.P. asking to see A.P. and they would set a time to meet, but
then Merced "usually wouldn't show." H.P. became upset whenever this happened, so she
and Merced "had words [and then] wouldn't talk for a few months." H.P. testified that this
happened repeatedly, but she continued agreeing to meet Merced because A.P. "wanted
to see her dad."

In late 2013, Merced and H.P. began dating each other in a "romantic" and
"committed" relationship. During their romantic relationship, Merced and H.P. never
lived together. Instead, Merced lived with his two sons (who were 7 and 10 years old at
the time of trial), his mother, grandmother, aunt and uncle and their children, sister and
her children, and brother. Shortly after the two started dating, H.P. and Merced discussed
3

potentially moving in together. H.P. testified that Merced's sister told her Merced would
not be able to move in with H.P. and A.P. because Merced was a registered sex offender.
H.P. testified she knew Merced was a sex offender and that she would lose her Section 8
benefits if he moved in with her and A.P.

Before Merced and H.P. became romantically involved with each other, H.P.
worked full-time and often relied on her mother to watch A.P. Once their relationship
changed, Merced would help watch A.P. while H.P. worked. Sometimes Merced watched
A.P. at her apartment and other times Merced watched her at his home. Also, Merced
usually watched A.P. at her apartment on the one night per week that H.P. worked in the
evening. During the trial, H.P. testified that she could not remember if A.P. and Merced
were ever alone together during any of her and A.P.'s visits with Merced.

On June 30, 2014, H.P. and A.P. went to visit H.P.'s friend, Kelly Stevens, to
swim in Stevens' pool. H.P. was scheduled to see a patient that evening, so Merced
watched A.P. After they finished swimming, H.P. told A.P. they needed to hurry home so
they could meet Merced at their apartment, where he would watch A.P. for the evening.
A.P. responded by asking if her half-brothers were going to join Merced—a question
H.P. testified was normal for A.P. to ask. H.P. then told A.P., "No, you know when
Daddy comes in the evening, it's just him." A.P. then asked H.P. if her half-brothers could
come over, to which H.P. said, "[N]o." A.P. asked H.P. again if her half-brothers could
come over with Merced. After H.P. told her no for the final time, H.P. testified A.P.
"looked down at the floor, [then] she looked back up at me and said, well, are you sure
my Daddy's not going to make me do adult stuff[?]" When H.P. asked A.P. what she
meant by "adult stuff," A.P. "started to cry. And she said, adult stuff, I can't talk about
that. She said, other adults talk about that."

H.P. testified that after pressing A.P. for more information, A.P. stated Merced
had never touched her, but that "he asked [her] to put lotion on him." H.P. asked A.P. for
4

clarification, and H.P. testified to the following conversation between her and A.P.:
"[Merced] asked me to squirt lotion on him. I said, did you. Well, he asked me to. I said,
you're not in trouble for anything. Did you, though. And she said yes. I said, did he ask
you to touch him. He did, but I told him no."

A.P. further disclosed to H.P. that this event took place at her and H.P.'s
apartment, and A.P. said it happened three times.

Shortly after this initial conversation, H.P. asked A.P. if she understood what she
was saying was serious—"like, calling the police serious." H.P. explained she wanted to
make sure A.P. was telling the truth so "if somebody didn't do something, that they
wouldn't, you know, go to jail for something that they didn't do." A.P. said she
understood, and confirmed that "[Merced] did it." H.P. then proceeded to cancel her
evening patient and contacted the police.

H.P. made initial contact with the law enforcement officers that evening and again
the next morning, July 1, 2014, when H.P. and A.P. went to the police station to file a
police report. They met with Detective Cory Odell, who interviewed A.P. and H.P.
separately. Detective Odell testified when he interviewed A.P., she told him that
"someone had made her touch the private parts, which is how she described the penis
region." When Detective Odell asked A.P. who did that, she responded that it was her
dad. Detective Odell then asked A.P. to tell him what happened, and he testified A.P.
stated:

"[W]hile her dad was at her residence, he told her to go get the lotion. She went and
retrieved the lotion. And when she came back to her dad, he told her to squirt the lotion
on his private parts, and then told her to rub it on. [A.P.] told me, at that point, she told
him no, and did not rub the lotion on, at which point, her dad proceeded to rub the lotion
on himself. She told me that that was done in an up and down motion. And then she was
allowed to return to whatever she was doing prior."
5

A.P. told Detective Odell that these events occurred three times. Finally, A.P. told
Detective Odell that Merced made her watch inappropriate videos when they were
together.

The State charged Merced with three counts of aggravated indecent liberties with a
child, in violation of K.S.A. 2013 Supp. 21-5506(b)(3)(A); three counts of aggravated
indecent solicitation of a child, in violation of K.S.A. 2013 Supp. 21-5508(b)(1); and
three counts of lewd and lascivious behavior, in violation of K.S.A. 2013 Supp. 21-
5513(a)(2).

Pretrial Proceedings

During the pretrial proceedings, the State filed a motion to introduce K.S.A. 2014
Supp. 60-455(d) propensity evidence of Merced's prior sexual offenses—specifically, the
State motioned to introduce his 2001 conviction from an Alford plea for aggravated
indecent solicitation of D.T., a child under 14 years old and other evidence pertaining to
that prior sexual misconduct. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,
27 L. Ed. 2d 162 (1970). Merced objected to admission of the K.S.A. 2014 Supp. 60-
455(d) evidence. At a hearing on the motion, Merced primarily argued that the evidence
was more prejudicial than it was probative. The district court ruled the State's evidence be
admitted because it was more probative than it was prejudicial.

Merced also filed a motion requesting a pretrial ruling on the admissibility of
Detective Odell's testimony regarding his training for interviewing children. Detective
Odell was trained in the Finding Words of Kansas program which is used by Kansas law
enforcement in child abuse investigations. At the pretrial hearing on Merced's motion,
Kelly Robbins—the executive director of Finding Words of Kansas and the Western
Kansas Child Advocacy Center—testified that the goal of the program is to ensure that a
6

child abuse victim does not have to give multiple interviews during an investigation.
Robbins further explained that the Finding Words program takes a

"multidisciplinary team approach[, meaning that] in a child abuse investigation, it really
takes all of the different parties such as law enforcement, child protective services,
mental health, medical, [and] county attorneys working together to put [the] case
together. . . .
"And so when an interview happens . . . the idea is that those team members that
are working [on] that case, come together and are present not in the room, but observing
the interview and have input for that—during that interview . . . ."

Merced's contention is that the testimony regarding the Finding Words program is
irrelevant: "[T]he jury doesn't need an education regarding Finding Words to understand
what [A.P.] told Detective Sergeant Odell." Merced further explained that "the inference
of the testimony about Finding Words . . . is to make what [A.P.] says seem more
credible," and introducing evidence of the Finding Words protocol "is nothing but an
improper bolstering [of] what the witness has said."

After hearing both sides, the district court found that testimony regarding Finding
Words protocol as potentially helpful to a jury. The district court specifically explained
Detective Odell's testimony regarding how he used Finding Words to interview A.P. was
no different than "any time a police officer gets on the stand and testifies about what they
did, when they talked to a witness."

At trial Merced renewed his initial objections and requested continuing objections
to the State's introduction of K.S.A. 60-455 evidence of Merced's prior sexual
misconduct. The district court granted the continuing objections and adopted its rulings
from the pretrial hearing, thus admitting the following: D.T.'s testimony regarding
Merced's sexual offenses against her; Dr. Bonnie Catterson's testimony regarding the
7

injuries D.T. incurred as a result of her sexual assault by Merced; written evidence
pertaining to D.T.'s sexual assault; and evidence of Merced's prior conviction.

Merced also renewed his objection to Detective Odell's testimony regarding his
use of Finding Words protocol while interviewing A.P. The district court relied on its
finding during the pretrial hearing and admitted the testimony.

The jury acquitted Merced on all three counts of aggravated indecent liberties, one
count of aggravated indecent solicitation, and two counts of lewd and lascivious behavior
and convicted Merced of two counts of aggravated indecent solicitation of a child and
one count of lewd and lascivious behavior. Shortly after the trial concluded, Merced filed
a motion to set aside his verdict. The district court denied his motion and sentenced
Merced to a total of 185 months in prison followed by lifetime postrelease supervision.

Merced timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ADMITTING EVIDENCE OF
MERCED'S PRIOR SEXUAL MISCONDUCT?

Merced first argues that the district court erred in admitting evidence of his prior
sexual misconduct with a child under K.S.A. 2014 Supp. 60-455(d) because: (1) the
evidence was not relevant; and (2) it was more prejudicial than it was probative.

In this case, the State filed a pretrial motion to admit K.S.A. 60-455 evidence of
Merced's prior sexual offenses against D.T. to prove that Merced had the propensity to
sexually assault young girls. After hearing both sides at a pretrial hearing on the motion,
the district court admitted the evidence. At trial Merced renewed his objection to the
evidence. The district court relied on its pretrial findings and admitted the evidence.

8

K.S.A. 60-455 generally prohibits prosecutors from using propensity evidence
against defendants. See K.S.A. 2014 Supp. 60-455. But in 2009, our legislature amended
K.S.A. 60-455 to add subsection (d) which permits the use of prior bad-act evidence in
sex crime prosecutions. This statutory amendment does not limit the purpose for which
propensity evidence may be used. K.S.A. 2014 Supp. 60-455(d). Rather, it broadly
permits evidence of other acts or offenses of sexual misconduct to be admitted in such a
prosecution "for its bearing on any matter to which it is relevant and probative." K.S.A.
2014 Supp. 60-455(d).

In State v. Prine, 297 Kan. 460, 476-77, 303 P.3d 662 (2013), our Supreme Court
relied on Kansas Legislative Committee minutes and testimony to explain how the
K.S.A. 60-455 amendment was intended to align with the Federal Rules of Evidence
Rules 413 and 414. Federal Rule 413 states in part that "[i]n a criminal case in which a
defendant is accused of a sexual assault, the court may admit evidence that the defendant
committed any other sexual assault. The evidence may be considered on any matter to
which it is relevant." Fed. R. Evid. 413(a). Likewise, in cases where the defendant is
accused of child molestation, Federal Rule 414(a) allows "the court [to] admit evidence
that the defendant committed any other child molestation. The evidence may be
considered on any matter to which it is relevant." Here, the State's case and its
introduction of prior offense evidence against Merced is exactly what the Kansas
Legislature had in mind when amending K.S.A. 60-455 to mirror the Federal Rules.

In State v. Remmert, 298 Kan. 621, 627-28, 316 P.3d 154 (2014), our Supreme
Court confirmed that the new subsection (d) allows prosecutors to introduce evidence of
prior sexual misconduct, explaining that propensity evidence is material in sex offense
cases because the evidence has a legitimate and effective bearing on defendants' guilt.
Although K.S.A. 2014 Supp. 60-455(d) permits the admission of prior sexual misconduct
to prove propensity, the evidence still must pass the threshold test for all evidence—
whether the evidence is relevant to the issue at hand. Thus, the first step in an appellate
9

review of a district court's decision to admit prior offense evidence is to determine
whether the evidence is relevant. State v. Franklin, 280 Kan. 337, 340, 121 P.3d 447
(2005).
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. The appellate court will review the issue of materiality de novo. State v.
Boleyn, 297 Kan. 610, 622, 303 P.3d 680 (2013).

The disputed issue in this case is whether Merced committed the charged sexual
offenses against A.P. For the State's K.S.A. 2014 Supp. 60-455(d) evidence that Merced
molested D.T. to be material in this case, the events that occurred with D.T. must be
related to the sex crimes charged. In State v. Bowen, 299 Kan. 339, 349, 323 P.3d 853
(2014), our Supreme Court put to rest any future contention that evidence of a defendant's
prior sexual misconduct is immaterial in a subsequent sexual misconduct prosecution. In
that case, the State charged Bowen with five counts of various sex crimes that he
committed against a 14-year-old girl. On appeal, Bowen argued that the district court
erred by admitting evidence of his prior sexual misconduct against a 12-year-old girl.

In the Supreme Court's opinion, it took special note of the similarities between
Bowen's prior crimes and the crime at issue on appeal. That court relied on multiple cases
to support its conclusion that "[i]n sex offense cases, propensity evidence is material, i.e.,
has a 'legitimate and effective bearing' on defendants' guilt." Bowen, 299 Kan. at 349; see
Remmert, 298 Kan. at 627-28 (Evidence of the defendant's prior diversion for a sex crime
against a young girl was relevant to the defendant's guilt in the State's case against the
defendant for sex crimes against a young boy.); State v. Spear, 297 Kan. 780, 789, 304
P.3d 1246 (2013) (The victim's allegations that the defendant had previously molested
her would have been admissible propensity evidence in a later prosecution for aggravated
indecent liberties involving same victim.); Prine, 297 Kan. at 480 (Evidence that the
defendant previously sexually abused his daughter and younger sister was admissible as
10

propensity evidence in the State's case against the defendant in a subsequent sex crime.).
The evidence was probative of Bowen's propensity to commit the acts alleged by the
victim because the prior crimes were sufficiently similar to the victim's allegations.
Bowen, 299 Kan. at 349.

Here, the State introduced the evidence to prove Merced's propensity to commit
sex crimes. Our Supreme Court already determined evidence like the State introduced
against Merced is material, but its material value is apparent even without Kansas
caselaw. Since Merced was charged with sex crimes, any allegation that he previously
committed other sex crimes is necessarily related, and thereby material, because of its
bearing on the defendant's guilt. Indeed, both the Supreme Court and individual analysis
indicates that evidence of Merced's abuse of D.T. is material because it bears on whether
Merced is guilty of sexual misconduct with A.P.

After determining whether the evidence is material, an appellate court must decide
whether the district court abused its discretion in finding the evidence was probative.
Boleyn, 297 Kan. at 622. A district court abuses its discretion if no reasonable person
would agree with its decision or if its decision is based on an error of law or fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Again, in Bowen, our Supreme Court determined that the State's evidence of the
defendant's prior sex offenses was sufficiently probative of the defendant's "propensity to
commit the acts alleged by [the victim]." 299 Kan. at 349. There, our Supreme Court
considered the parallels that the victims were of similar ages when the offenses occurred,
and the court considered the similarities between the crimes—specifically that each of the
crimes "involved sexual acts or preparatory actions toward sexual acts with young
girls"—to reach its conclusion that the evidence of prior sexual offenses was probative.
299 Kan. at 349.

11

The district court in this case analyzed the allegations against Merced using a
similar framework to the one presented in Bowen. The district court also considered how
both D.T. and A.P. were young girls when Merced committed the charged offenses
against them. The district court also noted similarities between the circumstances under
which Merced's acts with D.T. and A.P. occurred, specifically pointing to the fact that in
both cases Merced abused the girls while he was babysitting them.

Relying on the logic set forth in Bowen that Merced's prior crimes against D.T.
involved sexual acts with young girls, it is reasonable to believe that "these crimes made
more probable the truth of the State's proposition that [Merced] had a disposition to
sexually abuse female victims approximately the same age as [A.P.]" 299 Kan. at 349-50.

Even without Bowen's guidance, a reasonable person could independently view the
State's evidence that Merced molested D.T. and draw an inference that since Merced
committed prior offenses against D.T., it was more likely than not he also molested A.P.
The district court properly determined that the State's evidence was probative. Since the
State's evidence of Merced's prior sexual misconduct is both material and probative, it
follows that the evidence is relevant and Merced's assertion to the contrary is incorrect.

Merced also contends that the district court wrongfully admitted the State's K.S.A.
2014 Supp. 60-544(d) evidence of prior sexual offenses, claiming that the evidence was
more prejudicial than it was probative.

The State's evidence of Merced's prior offenses is relevant to his propensity to
commit sex crimes. Thus, the second step in determining whether the district court
abused its discretion is to decide whether the probative value of the State's evidence
outweighed its prejudicial effect. 299 Kan. 339, Syl. ¶ 7. A district court abuses its
discretion if no reasonable person would agree with its decision or if its decision is based
on an error of law or fact. Marshall, 303 Kan. at 445.
12

The Tenth Circuit has provided factors to consider when balancing the potential of
prejudice with the probative value of propensity evidence. These factors—which the
United States Supreme Court has cited with approval—include: "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." United States v. Enjady, 134 F.3d 1427,
1433 (10th Cir. 1998).

Here, Merced relies on these factors to support his claim that the State's evidence
of his prior offenses is more prejudicial than probative. First, Merced contends the State's
evidence he abused D.T. is minimally probative because it was "[n]ot clearly proved."
Specifically, Merced argues against the probative value of D.T.'s testimony because she
"admitted she did not remember much of the abuse she claimed occurred." In essence,
Merced claims the offenses against D.T. were not "clearly proved" because D.T. was too
young to have a vivid recollection and, thus, present an accurate testimony of the alleged
offenses.

Determining whether a witness is credible is up to the jury, and in making a
decision about credibility the jury has the authority to consider "what [they] see as well as
what they hear, and the natural and logical inferences that flow from both . . . ." State v.
Todd, 299 Kan. 263, 286, 323 P.3d 829 (2014). Regardless of whether D.T.'s testimony
was not credible, evidence of Merced's prior offenses was not limited to just this
testimony. The State also presented evidence from a physician who testified to D.T.'s
injuries, as well as a journal entry of Merced's prior conviction for aggravated indecent
solicitation of a child—the same offense that the jury convicted Merced of here.

Merced also argues the crimes against D.T. were not clearly proved because
Merced's prior conviction was the result of an Alford plea "which, by its very terms,
means the defendant denies the truth of the allegations against him." This is a
13

mischaracterization of an Alford plea. An Alford plea does not require the defendant to
affirmatively deny allegations against him, like Merced claims. Rather, an Alford plea is
simply a plea of guilt without affirmatively admitting to the crime. State v. Case, 289
Kan. 457, 462, 213 P.3d 429 (2009). Merced's contention seems to be that his prior
conviction lacks evidentiary value since the State never proved the acts beyond a
reasonable doubt to a jury or judge. But in addressing how thoroughly a prior act must be
proved, the Enjady court indicated that a district court "must make a preliminary finding
that a jury could reasonably find by a preponderance of the evidence that the 'other act'
occurred." 134 F.3d at 1433. This is echoed in Case, where our Supreme Court explained
a sufficient basis for an Alford plea consists of "facts presented by the State . . . to prove
guilt by a reasonable doubt to a jury . . . ." 289 Kan. at 468. Thus, Merced is incorrect
when he states that his Alford plea does not sufficiently prove the allegations against D.T.
Indeed, although Merced did not admit guilt in his Alford plea, by accepting the plea he
also accepted the fact that the State could prove his guilt beyond a reasonable doubt. This
degree of proof is sufficient per Enjady. See 134 F.3d at 1433.

Second, Merced argues the State's evidence that he molested D.T. does not prove
Merced committed the charged sexual offenses against A.P. The primary basis of this
contention is that the prior offense is too dissimilar from the current allegations to merit
any probative value, claiming that the cases lacked any likeness beyond the fact that both
involved "sex crimes against pre-teen girls."

Merced's argument is not persuasive. First, Merced argues D.T.'s allegations are
too different from A.P.'s to be probative. In D.T.'s case Merced entered an Alford plea for
aggravated indecent solicitation of a child, which is one of the two crimes for which the
jury convicted Merced in this case. Merced ignored this fact in his brief and instead
points out the abuse that D.T. alleges was far more extensive and serious than the abuse
A.P. claims. Merced directs this court's attention to the fact that

14

"[D.T.] testified that [Merced] touched her 'everywhere, from head to toe.' . . .
Specifically, she claimed that he used his hand and his penis to touch her vagina and her
butt. [A.P.] made no allegations that [Merced] touched her, tried to touch her, asked her
to touch her, or in any way seemed to be interested in touching her with his penis, his
hands or any part of his body."

Curiously, Merced somehow concludes that the more serious nature of D.T.'s
allegations preclude the State's evidence from proving he molested A.P. because A.P.'s
accusations were less serious. The acts that Merced points out in his brief align with the
acts K.S.A. 2013 Supp. 21-5506(a)(1) (indecent liberties with a child; aggravated
indecent liberties with a child) prohibits—including "lewd fondling or touching of the
person of . . . the child." Affirmatively pointing out evidence that Merced committed a
more serious sex offense against D.T. in order to prove that he could not have committed
a lesser offense against A.P. does not work in his favor. Instead, it actually provides a
solid foundation that Merced has the propensity to commit the crimes of which he was
convicted, as well as crimes that are more severe.

The district court stated there was sufficient similarity in the two cases, pointing
out: "the age of . . . both victims, although they [were] not the same, [were] close to each
other. They [were] very young children. The situation where [the offenses] occurred and
the circumstances, the baby-sitting circumstances that are attributed to both of these. Of
course, also very similar." These comments indicate the district court weighed the State's
evidence Merced molested D.T. and determined the evidence was probative that he also
molested A.P. This conclusion was reasonable.

The third Enjady factor pertains to how heavily disputed the material fact in our
case is. Caselaw indicates that "[t]he more seriously disputed the material fact, the more
heavily this factor weighs in favor of admissibility." United States v. Sturm, 673 F.3d
1274, 1286 (10th Cir. 2012). Here, this case is entirely premised upon the dispute of
whether Merced sexually assaulted A.P. Since the State offers the K.S.A. 2014 Supp. 60-
15

455(d) evidence to prove this material fact, caselaw supports the admissibility of
evidence regarding Merced's prior offenses.

Here, Merced addresses this factor incorrectly. Rather than discuss the dispute of
the material fact in our case—whether he sexually abused A.P.—Merced instead
discusses the dispute regarding the facts of his prior offense against D.T.

As per the fourth and final Enjady factor, Merced concedes that there is no other
less prejudicial evidence of which the State could avail itself in order to prove Merced's
propensity to commit sex crimes. The application of the Enjady factors supports the
district court's conclusion that the State's evidence of Merced's prior offense was properly
admitted. But even if not all of the Enjady factors were satisfied, the State's evidence
would still be admitted in light of caselaw indicating that "evidence of prior sexual abuse
should rarely be excluded" in cases where the defendant is being tried for subsequent
sexual offenses. State v. Dearman, No. 110,798, 2014 WL 3397185, at *7 (Kan. App.
2014) (unpublished opinion) (citing United States v. Benally, 500 F.3d 1085, 1090 [10th
Cir. 2007]).

A defendant will frequently be prejudiced whenever a prior offense is admitted as
evidence against him or her. But rather than eliminate all prejudice, our law provides
limited protection to defendants from evidence that produces undue prejudice. See State
v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008). Thus, in order to prove that a district
court abused its discretion, a defendant must show that admitting the evidence would
"'contribute to an improperly based jury verdict or distract from the central issues at
trial.'" State v. Longbine, No. 114,611, 2016 WL 7429305, at *8 (Kan. App. 2016)
(unpublished opinion) (quoting State v. Moore, No. 109,787, 2014 WL 4231237, at *13
[Kan. App. 2014] [unpublished opinion], rev. denied 302 Kan. 1018 [2015]).

16

Here, Merced claims the evidence of his prior sexual offenses "could lead jurors to
determine that [he] had committed the crime against [A.P.], regardless of the weakness of
the State's case. [Especially because] the prior allegations are so much more violent and
disturbing than the current allegations." The State responds by pointing out the jury
convicted Merced on only one-third of the charges despite the State's propensity evidence
against him.

In cases similar to the present case, panels from this court have found that there
was no undue prejudice when juries acquitted their respective defendants of at least some
of the charged crimes—even after hearing evidence of prior sex offenses committed by
the respective defendants. See Longbine, 2016 WL 7429305, at *8; Moore, 2014 WL
4231237, at *13.

The record indicates the district court considered all of the evidence and made a
reasoned decision to admit the State's evidence of Merced's prior sexual misconduct.

The district court acknowledged its responsibility to determine whether the
evidence was relevant and probative and whether it was more prejudicial than probative.
Likewise, the district court pointed out that admitting Merced's prior conviction would
naturally result in some prejudice, but the recited facts and the court's analysis still
supported its conclusion the evidence was more probative than prejudicial. The district
court specifically found that:

"the age of . . . both victims, although they [were] not the same, [were] close to each
other. They [were] very young children. The situation where [the offenses] occurred and
the circumstances, the baby-sitting circumstances that are attributed to both of these. Of
course, also very similar. And the Court believes that based . . . on the argument of the
State, based on the prior conviction, the new charges before the Court, and the case law
and the statute and the Court weighing this, the Court believes that the prior conviction
should come in and will allow it to do so."
17

The district court performed a balancing test by which it found the evidence of
Merced's prior sex offenses to be more probative than prejudicial. A reasonable person
who heard the evidence from both Merced and the State could reach the same conclusion.
Thus, the district court did not abuse its discretion by admitting evidence based on its
conclusion that the State's evidence was more probative than prejudicial.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ALLOWING DETECTIVE ODELL TO
TESTIFY ABOUT THE FINDING WORDS OF KANSAS TRAINING HE RECEIVED AND THE
INTERVIEW PROTOCOL USED DURING HIS INTERVIEW OF A.P.?

Merced's second contention is that the district court improperly allowed Detective
Odell to testify about the Finding Words of Kansas training he received on how to
interview children. Merced argues Detective Odell's training was irrelevant to testimony
about his interviews with A.P., and the detective's training improperly bolstered A.P.'s
testimony.

The first step in our analysis of whether the district court properly admitted
Detective Odell's Finding Words testimony is whether this testimony is relevant.
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. Boleyn, 297 Kan. at 622. An appellate court reviews the issue of materiality de
novo, without deferring to the district court. When reviewing the probative value of
evidence, an appellate court will only reverse if the district court abused its discretion.
297 Kan. at 622. A district court abuses its discretion when no reasonable person would
agree with its decision or if its decision is based on an error of law or fact. Marshall, 303
Kan. at 445.

The disputed issue in this case is whether Merced committed the charged sex
crimes against A.P. Thus, for Detective Odell's Finding Words testimony to be material
and probative it must relate to whether Merced committed the acts of which he is
18

accused. It must tend to prove whether Merced committed the charged crimes. See
Boleyn, 297 Kan. at 622.

Detective Odell interviewed A.P. about the crimes Merced allegedly committed
against her. In that interview, A.P. stated Merced molested her, so the interview is
material because it has a bearing on the jury's determination as to whether Merced indeed
molested A.P. Likewise, the interview is probative because it reflects on A.P.'s initial
accusations against Merced which served as the State's basis to prosecute him. The State
would have no reason to prosecute Merced but for A.P.'s initial disclosure to H.P.
regarding Merced's abuse. Since A.P. made the same accusations against Merced in her
interview with Detective Odell as she did in her initial disclosure to H.P., it follows that
Detective Odell's testimony about his interview with A.P. tends to prove that Merced did
assault A.P. Thus, Detective Odell's testimony regarding his interview of A.P. is relevant.

While Detective Odell's testimony is relevant, the issue on appeal is whether the
Finding Words training testimony is also relevant. When analyzing the relevance of the
Finding Words testimony, it is important to note that the State's case against Merced is
premised almost entirely on A.P.'s claims against Merced. There were no additional
witnesses who testified to Merced's abuse of A.P. Nor was there any physical evidence of
A.P.'s injury. As Merced explains in his brief: "[This] case turned on whether the jury
believed [A.P.]" In other words, the case depended on the credibility of A.P.'s testimony,
so A.P.'s credibility was both material and probative.

Thus, the issue is whether Detective Odell's testimony as to his Finding Words
training and use of its protocol during A.P.'s interview had any bearing on A.P.'s
credibility as a witness. Our Supreme Court explained how evidence pertaining to a
witness' education was

19

"a part of the basic background information provided by any witness. . . . Adult witnesses
are frequently asked about their education, even when they are not testifying as experts.
A person's educational background gives the jury an idea of how that person views and
experiences the world, which helps jurors determine how much credibility to give each
witness. As such, the evidence is relevant." State v. Cline, 295 Kan. 104, 111, 283 P.3d
194 (2012).

In short, the Cline court found that a witness' background information—including his or
her education—is relevant.

First, Cline forecloses Merced's argument that a lay witness' testimony as to his or
her educational and training background is unnecessary. See 295 Kan. at 111. In reality,
Cline supports the opposite conclusion in cases where the jury's decision depends almost
entirely on its perception of the victim/witness' credibility. Testimony about a witness'
background and training could be outcome determinative. Based on Cline, Detective
Odell's Finding Words testimony could assist jurors' evaluation of A.P.'s credibility
because the testimony helps the jury understand why the detective asked A.P. the
questions he did. The district court was not wrong in concluding the jury should know the
strategy behind the Finding Words protocol. A.P.'s responses to Detective Odell's
questions directly pertain to her credibility. Since A.P.'s credibility is outcome
determinative in this case, the Finding Words testimony passes the first evidentiary
threshold test of relevance.

But even if the district court erroneously admitted Detective Odell's Finding
Words testimony, a reviewing court will not set aside a jury's verdict if the district court's
error was harmless. K.S.A. 2016 Supp. 60-261.

An error is harmless if the error did not affect a party's substantial rights—
meaning that it did not impact the trial's outcome. State v. Ward, 292 Kan. 541, 565, 256
P.3d 801 (2011). If the error involves a right guaranteed by the United States
20

Constitution, the reviewing court must be persuaded beyond a reasonable doubt that the
error had no impact on the trial's outcome. If a constitutional right is not at issue, then this
court must be persuaded only that there is no reasonable probability that the error affected
the trial's outcome. 292 Kan. at 565.

Here, Merced's constitutional rights are not at issue. Rather, Merced contends the
district court erred by admitting the Finding Words testimony, and that

"[h]aving Officer Odell testify about using an official protocol on which he
received training improperly bolstered [A.P.]'s testimony [because a] jury, having heard
testimony that the police department trains its officers in a certain way, would naturally
believe that the training would lead to a more reliable statement than if she was merely
telling the story to the officer or her mother."

More simply put, Merced believes that Detective Odell's Finding Words testimony
somehow impermissibly made A.P.'s answers during the interview more authentic.

During Detective Odell's testimony he never stated if he did or did not believe
A.P., and the detective never alluded to the reliability or lack thereof of the Finding
Words protocol. In fact, Merced only objected once during Detective Odell's entire
testimony regarding his interview with A.P. on the basis that the detective was "giving
opinions."

There is nothing in the record on appeal to indicate Detective Odell's Finding
Words testimony did anything but provide a factual basis of how he conducted his
interview with A.P. Likewise, Merced does not identify anything in the record that the
Finding Words testimony swayed the jury's decision, nor does he present caselaw upon
which to base his theory.

21

Further, the State's case did not depend solely on Detective Odell's testimony.
Even if the district court had committed an error, the error was harmless because there
was extensive evidence the jury could have relied on to convict Merced. Without either
the Finding Words testimony or Detective Odell's testimony in its entirety, the jury still
heard A.P.'s personal testimony, A.P.'s mother's and her friend's testimony, and the
State's evidence of Merced's prior sexual misconduct. It should also be noted the jury
viewed the video of Detective Odell's interview with A.P. during deliberations without
objection. The State presented abundant evidence against Merced. There is nothing in the
record to indicate that the alleged error affected the jury's decision to convict Merced.

Affirmed.

* * *
ATCHESON, J., concurring: Defendant Samuel Merced has raised no issues
requiring reversal of his convictions or any other relief. I, therefore, concur in the result
the majority reaches in affirming those convictions.