Michelle A. Davis won in State v. Steven Brown, No. 119,460 (Kan. App. August 21, 2020), obtaining a new trial in a Saline County statutory rape prosecution. Among other issues, Mr. Brown argued that the district court improperly admitted prior bad act evidence and erred by consolidating for trial an information alleging sex crimes and an information alleging intimidation of a witness. The COA found both of these claim meritorious.
With respect to the evidentiary issue, the state sought to admit incidents of property crimes stemming from arguments with the alleged victims' mother and was admitted to prove why the alleged victim delayed reporting sexual abuse. Mr. Brown agreed that the evidence was material to a disputed issue, but argued that the limited probative value of the evidence was outweighed by its prejudicial effect. Although the COA indicated its frustration with the failure of the district court to make findings on the record, it ultimately held the evidence was not admissible. The COA made detailed analysis under State v. Boysaw, 309 Kan. 526, 439 P.3d 909 (2019), holding that the evidence was of little probative value, but had a high risk of improperly influencing the jury:
In conclusion, having conducted a particularized weighing of the probative value and prejudicial effect of the prior crimes evidence, we are convinced the risk of undue prejudice to Brown substantially outweighed the probative value of the evidence. As a result, the district court abused its discretion in its admission of the State's K.S.A. 60-455 evidence to prove that [the alleged victim] delayed disclosure of her sexual abuse due to her fear of Brown's violent behavior.
The COA went on to hold that the error was not harmless, particularly in light of a limiting instructions given by the district court. The COA concluded that they sufficiently mitigated any improper prejudice:
Under the totality of these circumstances, we are not convinced that the district court's two sentence limiting instruction, which informed the jury that other crimes committed by the defendant "may be considered solely as evidence relating to delayed reporting by [the alleged victim] and for no other purpose," was sufficiently informative to mitigate the prejudice in admission of the K.S.A. 60-455 evidence. As written, the instruction did not admonish the jury to not consider—while it was deliberating the "evidence relating to delayed reporting"—that Brown was a violent criminal whose testimony, therefore, was not to be believed.
With respect to the improper consolidation claim, in addition to the sex offenses, the state also charged Mr. Brown in a separate information with attempting to dissuade the alleged victim and her mother from testifying based on a letter written by Mr. Brown from jail. This information was consolidated for trial with the sex offense charges.
The COA held that the district court abused its discretion by consolidating the cases for trial:
Unlike the district court, we fail to see how the contents of the letter tended to prove Brown's intent or motive to sexually assault [the alleged victim] or his consciousness of guilt in doing so. The district court's view that the letter was probative to prove that Brown sexually assaulted [the alleged victim] is not only questionable, but it also directly contradicts the limiting instruction the court provided the jury. In the instruction, the district court admonished the jury that it could only consider the letter when evaluating whether Brown committed the intimidation of witness charges "and for no other purpose."
The COA went on to hold that the letter admitted in relation to the intimidation charge "surely placed Brown in an unfavorable light before the jury . . . . The letter had the effect of improperly impugning Brown's character and giving the impression that Brown's reveling in consensual sexual behavior necessarily showed his criminal intent or motive in sexually assaulting [the alleged victim.]"
As a result, the COA held that the consolidation error, by itself, separately required a new trial. The COA also held that taken together, the errors required a new trial:
Consistent with the purpose underlying the cumulative error rule, however, we pause to note how the two reversible errors we have identified, when aggregated, only heightened the prejudicial effect in denying Brown a fair trial. Together, the reversible errors acted synergistically with the end result that the jury received a substantial quantity of derogatory evidence to improperly discredit Brown, impeach his character, or at least put him in a bad light in defending the sexual assault case where the critical evidence was his testimony compared to [the alleged victim's] testimony. Moreover, as mentioned earlier, the evidence of guilt was not overwhelming given the lack of a third-party eyewitness or incriminating forensic evidence. Whether considered singularly or together, we are convinced that Brown did not receive a fair trial.
[Update: the state filed a PR on September 18, 2020].
[Further update: the KSC denied the state's PR on January 29, 2021 and the mandate issued on February 9, 2021.]
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