State v. Gaona (Supreme Court)

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,822

STATE OF KANSAS,
Appellee,

v.

RODOLFO GAONA,
Appellant.


SYLLABUS BY THE COURT

1.
The State's witness, who was the executive director of Finding Words of Kansas
was qualified under K.S.A. 60-456(b) to testify as an expert on forensic interviewing
techniques used with children who allege sexual abuse but was not qualified to testify as
an expert on common characteristics of sexually abused children, including delayed or
piecemeal disclosure or the difficulty or frequency of coaching to produce false
accusations. On the record of this case, however, the erroneous admission of expert
testimony was harmless.

2.
When the evidence in a case supports only one of two outcomes—the occurrence
of a completed aggravated sodomy or no aggravated sodomy—a failure to give a lesser
included instruction for attempted aggravated sodomy is not clearly erroneous.

3.
A district judge does not err in excluding a criminal defendant's proffered medical
records from evidence at trial when the defense fails to lay a foundation for the records
and fails to demonstrate the relevance of many of them, when the contents of the records
2

constituted inadmissible hearsay for which the defense has failed to assert an applicable
exception, and when the sanctions available to the district judge for the defense's
violation of reciprocal discovery include exclusion. In addition, if the defendant was
permitted to introduce other evidence of the medical condition for which admission of the
records is sought, the defendant's due process right to present a defense is not implicated
by the records exclusion.

4.
A criminal defendant who moves pretrial for the general exclusion of any evidence
demonstrating the existence of other crimes or civil wrongs but who fails to object
specifically at any time to the introduction of evidence that he showed one or more
pornographic videotapes to his minor victim has failed to preserve the issue for appeal,
and an appellate court need not address the issue's merits.

5.
A defendant in child sexual abuse prosecution must object to admission of the
alleged victim's prior consistent statements before his or her live testimony in order to
preserve the timing issue for review on appeal. The absence of such an objection in this
case eliminates the necessity for the merits of the issue to be addressed.

6.
On the record in this case, cumulative error does not require reversal of the
defendant's remaining convictions.

7.
A criminal defendant may be sentenced to the highest term in the applicable
Kansas Sentencing Guidelines Act grid box without proof of any aggravating factor to a
jury beyond a reasonable doubt.

3

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 1064, 208 P.3d 308 (2009).
Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed March 2, 2012. Judgment
of the Court of Appeals affirming in part, reversing in part, dismissing in part, and remanding to the
district court is affirmed. Judgment of the district court is affirmed in part, reversed in part, and remanded.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and was on the brief
for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, and John P. Wheeler, county
attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Rodolfo M. Gaona appeals his conviction and sentence in
this rape and aggravated sodomy case involving his stepdaughter, M.L.

Gaona was charged with the following crimes: Count One—rape, on or about
December 20, 2005, in violation of K.S.A. 21-3502(a)(2); Count Two—aggravated
criminal sodomy, on or about December 20, 2005, in violation of K.S.A. 21-3506(a)(1);
Count Three—rape, on or about December 19, 2005, in violation of K.S.A. 21-
3502(a)(2); Count Four—aggravated criminal sodomy, on or about December 19, 2005,
in violation of K.S.A. 21-3506(a)(1); Count Five—rape, on or about September 1, 2005,
through September 30, 2005, in violation of K.S.A. 21-3502(a)(2); Count Six—
aggravated criminal sodomy, on or about September 1, 2005, through September 30,
2005, in violation of K.S.A. 21-3506(a)(1); Count Seven—aggravated criminal sodomy,
on or about March 23, 2005, through December 19, 2005, in violation of K.S.A. 21-
2506(a)(1).

The jury convicted Gaona of the rapes charged in Counts One and Three and of
the aggravated criminal sodomies charged in Counts Two and Seven. The Court of
4

Appeals reversed Gaona's conviction on Count Three. State v. Gaona, 41 Kan. App. 2d
1064, 1071, 208 P.3d 308 (2009). Gaona then petitioned for this court's review of his
three remaining convictions and his sentence. The State did not cross-petition on Count
Three, for which the Court of Appeals had ordered a remand.

ISSUES

Because the Court of Appeals granted Gaona relief on the issue of whether an
attempted rape instruction should have been given for Count Three, we have seven issues
left for our examination:

1. Was it error to allow the Executive Director of Finding Words of Kansas to
testify as an expert about the behavior of child victims of sexual abuse?

2. Did the district judge err by failing to give a lesser included instruction on
attempted aggravated criminal sodomy for Counts Two and Seven?

3. Was it error to exclude Gaona's medical records?

4. Was it error to admit evidence that Gaona showed M.L. pornographic
movies without an analysis of the evidence under K.S.A. 60-455?

5. Was it error to admit evidence of M.L.'s prior consistent statements before
her own live testimony was given at trial?

6. Does cumulative error require reversal of Gaona's convictions?

7. Is Gaona entitled to vacation of his remaining sentence and remand for
resentencing because he was given the highest term in the applicable
5

Kansas Sentencing Guidelines Act grid box for Counts One, Two, and
Seven, without proof of any aggravating factor to a jury beyond a
reasonable doubt?

We hold that no error requires reversal of Gaona's three remaining convictions or
his sentence for them.

FACTUAL AND PROCEDURAL BACKGROUND

In Gaona's trial, the State called M.L.'s mother, R.G., as its first witness. R.G.
testified that she was married to Gaona and that she, Gaona, M.L., and her son lived
together. R.G. further testified that M.L. was 11 years old and that she had been
diagnosed with Attention Deficit Hyperactivity Disorder. R.G. worked second shift, and
Gaona would watch the children while she was at work. M.L. typically arrived home
from school before her brother, and Gaona arrived home from work between 5:30 p.m.
and 6:30 p.m.

R.G. testified that the morning of December 21, 2005, she, her son, and M.L. went
shopping after she and Gaona had had an argument. During the outing, her son told his
mother that Gaona and M.L. had a "sick game." When R.G. asked M.L. what he was
talking about, M.L. started crying and "told me that she couldn't tell me because
something bad would happen to me." After M.L. calmed down, R.G. asked M.L.
questions in order "to be sure that there was actually a crime before I did anything about
it," including asking whether Gaona put his penis in M.L.'s vagina. Later, once R.G. had
taken M.L. to the police station, M.L. talked to Detective Jeff Steele and investigator
Nikki Wiecken. M.L. then was taken to the hospital for a sexual abuse evaluation by a
Sexual Assault Nurse Examiner (SANE). After the SANE evaluation, M.L. was
interviewed by Wiecken with a social worker present.

6

R.G. also testified that M.L. told her that the encounters with Gaona caused M.L.
to bleed, but R.G. never found blood on M.L.'s clothes, bedding, or the toilet. R.G.
testified that M.L. had mentioned having pain while going to the bathroom but was never
seen by a doctor for this complaint. R.G. also testified that M.L. told her she had seen a
pornographic movie with Gaona and that Gaona had threatened her.

R.G. was questioned about other adult males with whom M.L. had been in contact
and said that the only other such males were friends and neighbors. R.G. was also
questioned about her relationship with Gaona. She testified that she and Gaona had
disagreements, a few of which were loud and some of which occurred in front of the
children. R.G. did not recall ever asking Gaona for a divorce, but Gaona had told her
several times that she could leave him. Although R.G. remained married to Gaona at the
time of his trial, she testified that she could not afford to get a divorce and that she and
the children had had no contact with him since M.L.'s allegations came to light. R.G. also
testified that Gaona had told her about having a prostate problem.

M.L.'s brother, age 9, testified at trial that he could not remember what M.L. told
their mom while shopping. He said that he had seen Gaona and M.L. in Gaona's
bedroom, with M.L. lying on the bed and Gaona standing in front of the bed. M.L.'s
brother said that Gaona was doing "[s]omething to my sister," which he called "[p]laying
a nasty game with her." At trial, M.L.'s brother said that he saw the "nasty game" more
than once, but he could not remember how many times; before trial, he had told a police
officer that he saw it one time, but he had told his mother that he saw it more than once.

M.L.'s brother further testified that "my sister didn't seem that she liked" the "nasty
game." But he also said that he did not see Gaona touch M.L. and that both Gaona and
M.L. had their clothes on each time he saw them. He said he never talked to M.L. about
what he had seen, and Gaona had told him not to tell his mother. He did not tell his
mother until the shopping excursion because he was afraid Gaona would hurt his mother.
7


M.L.'s brother also testified that he sometimes heard his mother and Gaona
arguing but "not very much" and that it bothered him "a little bit." He said that he only
"kind of" liked Gaona as a stepfather and wanted to get rid of him "[a] little bit."

M.L. testified at trial that she talked to her mother after her brother told her mom
"what [Gaona] did." She described going to the police station, telling a police officer
what happened, and then seeing a nurse for an examination and telling the nurse what
happened. M.L. said that she had to go to the nurse because Gaona "was doing something
real bad." When asked what that meant, M.L. first said "I don't want to say it," but then
explained that it meant Gaona "was making me have sex with him."

M.L. testified that she referred to her private parts as her "yaya" and to a boy's
private parts as a "doinkey." She stated that Gaona had touched her yaya. She said she
"forgot" whether Gaona's doinkey touched her yaya, but she testified that his doinkey
touched her "butt." M.L. told the nurse that her yaya got sore and explained that it was
caused by "[t]he doinkey." She further testified that Gaona put his doinkey in her mouth,
and she told him to quit. She also testified Gaona touched her butt with his finger, but she
"forgot" if it went inside. M.L. first answered "[n]o, no," when asked if Gaona put his
finger in her yaya, but then said that he did. She stated that she did not know how many
times Gaona had touched her, but that it was more than once. M.L. had previously
testified that the last time Gaona touched her she had her eyes closed and did not see
which part of his body touched her.

M.L. also testified that she and Gaona had watched a movie with naked people in
it one time. The touching that she said Gaona did to her was also what had happened in
the movie. M.L. testified that she did not know what dates the touching occurred, but
they happened when her brother was asleep or at a friend's house and her mom was at
work. M.L. initially stated that the time her brother saw her and Gaona when she was on
8

the bed, she and Gaona both had their clothes on and were not touching. She later
testified, however, that her brother saw them more than once; and she did not know if
they were clothed each time. M.L. said that Gaona had told her not to reveal what
happened and said he would shoot her family if she did.

M.L. also testified that she did not like Gaona as a stepfather and that she wanted
to get rid of him. She thought he was unfair when he punished her, and she did not like it
when he argued with her mother, which happened often.

Wiecken, the investigator who interviewed M.L. on the day the crimes were
reported and again the day after, testified that she had special training to interview
children but did not have a college degree. Wiecken completed a "Finding Words"
program covering a particular interview protocol to be used when there were allegations
of child sexual abuse. By the time of Gaona's trial, Wiecken had completed
approximately 30 forensic interviews of children, 20 before her interview of M.L. About
half a dozen of the children were around M.L.'s age.

Wiecken testified that she attempted to get "sensory type details" from the children
she interviewed, because "these aren't things that a child can really be coached on." Part
of the Finding Words protocol calls for "exploring the alternative hypothesis," and
Wiecken said that she and M.L. discussed other people in the home. M.L. denied that
anyone else had touched her in the way Gaona had. Wiecken did not ask M.L.
specifically if she had been around other adults on December 19 and December 20, 2005.
Wiecken testified that she used dolls and anatomical drawings during her interviews with
M.L., who "was having a hard time talking about what happened to her." M.L. did talk
about "sex movies" and disclosed the date of her last contact with Gaona. She also told
Wiecken that someone named Luis had told her mother to leave Gaona. R.G. told
Wiecken that Luis was a coworker in whom she had confided.

9

Wiecken's interviews of M.L. were videorecorded and the recordings admitted into
evidence and played to Gaona's jury at trial.

Wiecken also interviewed M.L.'s brother twice, but only the second interview was
recorded. Using dolls, he told Wiecken that he had seen M.L. on the bed and Gaona
standing by the bed and demonstrated with the doll a motion "described as a humping or
[what] one might see in sexual acts." M.L.'s brother told Wiecken this incident occurred
before Halloween and said he witnessed it when he got off the bus from school and came
inside the house. Wiecken did not ask him why he had not told his mother what he saw,
but he told her "he was scared that something bad was going to happen." He told her he
saw this happen only once, but R.G. called later in the day of her son's interview and said
that he told her he had seen it more than once.

Pam Washburn, a Sexual Assault Nurse Examiner (SANE), testified about her
examination of M.L., including M.L.'s description of what had occurred. M.L. told
Washburn that her stepfather was having sex with her and showing her sex movies. She
said, "He put his thing up my butt and, um, he tried to have sex with me"; "[t]hat's what
he always does"; and "[t]hat's what he always does, puts his doinkey in my yaya." M.L.
also reported that she sometimes bled when she went to the bathroom. Washburn further
testified that M.L. told her she and Gaona watched a sex movie on December 20, 2005,
and that, on December 19, 2005, Gaona "tried to have sex with [her]."

Washburn testified that she had found an "irregular margin" on M.L.'s hymen, an
"abnormal finding" for a pediatric patient and one consistent with sexual abuse. She
observed no abnormal findings in M.L.'s anal area, but she testified that "injury to the
anal area is extremely rare." Washburn saw no physical evidence of acute trauma during
her exam of M.L.

10

An evidence technician and two investigators, all with the Finney County Sheriff's
Office, testified that pornographic movies were among the evidence collected from
Gaona's home.

The State called Kelly Robbins, who is the Executive Director and co-founder of
the Western Kansas Child Advocacy Center and the Executive Director of Finding Words
of Kansas, to testify as an expert witness. Robbins is not a licensed mental health
professional. She holds a bachelor's degree in Administration of Justice in Investigation
with a minor in Chemistry and holds an associate's degree qualifying her as a medical
laboratory technician. She previously worked for the Kansas Bureau of Investigation as a
forensic scientist and as a Special Agent conducting criminal investigations, including
investigations of child sex abuse cases in which she interviewed child victims; but she
has no formal training in psychology, psychiatry, social work, or child development. She
does not have any published articles.

Robbins testified that forensic interviews of children who allege sexual abuse
follow "a semi-structured protocol that allows for the child to tell in their own words
what happened." Robbins received training in the Finding Words protocol and was
certified to conduct forensic interviews using the protocol by the American Prosecutors
Research Institute. She testified that the protocol is supported by more than 150 "research
articles." Robbins also said that she had taught parts of the Finding Words course,
focusing on interviewing techniques. As of the time of Gaona's trial, Robbins had
personally interviewed more than 150 children.

Robbins gave no testimony specific to M.L.'s interviews or allegations.

After Robbins discussed her background and qualifications, the State asked her:
"Through your training and experience . . . are there any specific patterns or dynamics
that you see in children of sexual abuse?" Gaona's counsel objected on the grounds of
11

"lack of foundation, improper lay opinion, lack of personal knowledge, [and] not
qualified as an expert." The district court judge noted and overruled the objection.
Gaona's counsel again objected during Robbins' later testimony when the State asked
about patterns regarding sexual abuse "borne out in the research [Robbins] read." Gaona's
counsel argued that Robbins was "not qualified to give an opinion or to answer questions
of that nature without specialized knowledge that she does not have." The district judge
again noted and overruled the objection. Gaona's counsel then requested and was granted
a continuing objection to all of Robbins' "testimony on this basis."

In response to the State's question regarding patterns and dynamics present in
children of sexual abuse, Robbins stated that "one of the main things is that there's
secrecy around child abuse . . . especially child sexual abuse." According to Robbins,
secrecy and fear often lead children not to disclose such abuse the first time it occurs.
This phenomenon of "delayed disclosure" can extend "anywhere from weeks, it could be
years, it may be that they never tell." Robbins further testified that children display "a
variety of reactions of what they do to survive this abuse." When a child does first
disclose abuse, the disclosure is often a "tentative disclosure" in which the child will
"only feel comfortable about giving some of the information," adding more information
later. Robbins further testified that "the majority of the children . . . care for their abusers"
and that it is harder for a child to report abuse if it occurs in the child's home or is
perpetrated by a family member.

Robbins opined that it was difficult to coach a child into alleging nonexistent
sexual abuse, stating that such a practice was "probably rare" and would "take[] a lot of
effort and time." Like Wiecken, Robbins stressed the importance of trying to get children
to share "sensory details" of their experiences. She also said that, as an interviewer, one
should guard against confirmatory bias by "being objective" and "not having your mind
made up." She testified that it was "very important that we do our investigation properly
12

so that we don't have injustice." Yet she described herself as a "fact-finder" rather than a
mental health professional.

The defense presented three witnesses at trial.

Clinical psychologist Robert Barnett testified as an expert on flaws in the Finding
Words interview protocol and Wiecken's interviews of M.L. and her brother in particular.
Barnett, who said he had conducted 100 to 200 sexual abuse interviews of children, also
criticized what he saw as Washburn's confirmatory bias in the medical history she took
from M.L. at the time of the sexual abuse physical exam.

A manager at Gaona's place of employment testified that Gaona did not work on
December 1, 9, 10, 11, 19, or 27, 2005, and normally worked from 6 a.m. to 5 p.m.

For himself, Gaona testified that he had problems with his prostate, which meant
he had difficulty achieving an erection "most of the time," starting 5 months before his
arrest on December 21, 2005. Gaona said he had begun seeing a doctor for these
problems 3 months before his arrest. Gaona further testified that his wife, R.G., was
aware of his problem because "sometimes" he could not have sex with her. Gaona also
testified that he and his wife discussed divorce the day before his arrest, and he denied
M.L.'s sexual abuse allegations.

DISCUSSION

Expert Testimony by the Executive Director of Finding Words of Kansas

"'Generally, the admission of expert testimony lies within the sound discretion of
the trial court, and its decision will not be overturned absent an abuse of such discretion.'"
State v. Reyna, 290 Kan. 666, 682, 234 P.3d 761 (2010) (quoting State v. Johnson, 286
13

Kan. 824, 831, 190 P.3d 207 [2008]). The party alleging the abuse of discretion bears the
burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v.
Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999]).

Further, if a district court abuses its discretion in admitting expert testimony, the
error is subject to harmlessness analysis. State v. Carapezza, 286 Kan. 992, 1005, 191
P.3d 256 (2008). K.S.A. 60-261 requires the court to find an erroneous admission of
evidence to be harmless unless it "affects the defendant's substantial rights." Carapezza,
286 Kan. at 1005. In our recent State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), we
confirmed that the standard for harmlessness of nonconstitutional error is whether the
court is persuaded that there is no reasonable probability that the error affected the
outcome of the trial. Ward, 292 Kan. at 565-66. The burden of demonstrating
harmlessness of a nonconstitutional error is on the party benefiting from the error. See
State v. McCullough, 293 Kan. ___, Syl. ¶ 9, ___ P.3d ___ (No. 101,041 this day
decided).

On appeal to the Court of Appeals and again before this court on petition for
review, Gaona has challenged Robbins' qualifications to opine on the characteristics of
children who have been subjected to sexual abuse. Citing this court's decisions in State v.
Villanueva, 274 Kan. 20, 31, 49 P.3d 481 (2002), and State v. McIntosh, 274 Kan. 939,
959-60, 58 P.3d 716 (2002), Gaona argues that "[e]xpert testimony as to the behaviors of
sexual assault victims should be given by an expert qualified to diagnose and treat mental
disorders, such as a psychiatrist or a licensed clinical social worker with a master's degree
in social work." In Gaona's view, Robbins testimony unfairly gave the State
"corroborating" evidence of M.L.'s abuse and could not be deemed harmless.

The State responds that our McIntosh decision contemplated admission of exactly
the type of testimony given by Robbins in this case, which met the requirements of
K.S.A. 60-456(b) and did not improperly "render an opinion on the victim's credibility,"
14

but explained the phenomenon of delayed disclosure to the jury. The State stresses that
Robbins did not present any diagnosis of M.L., speaking only about common traits for
child sexual abuse victims and not her specific traits.

Our Court of Appeals essentially accepted the State's argument, holding that
nothing in McIntosh and Villanueva prohibited "qualified expert witness testimony on the
common patterns of behavior of a sexually abused child . . . to corroborate the
complaining witness' allegations," and that our previous cases did not limit those giving
such testimony to certain types of professionals. Gaona, 41 Kan. App. 2d at 1068
(quoting McIntosh, 274 Kan. at 957). In the view of the panel, based on the criteria
provided in K.S.A. 60-456(b), Robbins was qualified to testify on the behavioral traits of
sexually abused children because that subject was "within the scope of the special
knowledge, skill, experience or training" she possessed, and she appropriately

"confined her testimony to the common behavioral traits without relating them to the
specific victim, . . . did not provide diagnostic testimony beyond her credentials, . . . did
not state or imply that M.L. had been sexually abused, . . . did not opine on whether the
victim was truthful or credible, . . . [and] did not suggest in any manner that Gaona had
any involvement." Gaona, 41 Kan. App. 2d at 1069.

Both the Court of Appeals panel and the parties have recognized the controlling
force of K.S.A. 60-456(b), which limits the admission of expert opinions to those that are
"based on facts or data perceived by or personally known or made known to the witness
at the hearing" and "within the scope of the special knowledge, skill, experience or
training possessed by the witness." The parties have not made an issue of the first
requirement; their dispute centers only on whether Robbins was qualified, i.e., whether
her testimony was sufficiently informed by her "special knowledge, skill, experience or
training" beyond that of an ordinary juror.

15

Our decisions in appeals of sex crime convictions have long wrestled with the
proper scope of testimony about the psychological trauma such crimes inflict on victims;
about victims' behavior or lack of behavior symptomatic of such trauma, including
whether a particular psychiatric diagnosis has been made; and about the qualifications
that must be possessed by any expert witness on such matters. See McIntosh, 274 Kan. at
955-59 (licensed clinical social worker permitted to testify victim "exhibited behavioral
patterns consistent with a child who had been sexually abused," testimony
circumstantially supported victim's credibility); Villanueva, 274 Kan. at 24-28, 33
(supervisor at Metropolitan Organization to Counsel Sexual Assault unqualified to
diagnose rape trauma syndrome, to compare victim's behavior to that of other rape
victims; court observes testimony "undoubtedly bolstered" victim's credibility); State v.
Plaskett, 271 Kan. 995, 1014-15, 27 P.3d 890 (2001) (social workers permitted to testify
about victim fitting profile of sexually abused child; court declines to overrule earlier
decision allowing such testimony from social workers); Welch v. State, 270 Kan. 229,
233-36, 13 P.3d 882 (2000) (challenge to qualifications of social worker to testify on
post-traumatic stress disorder diagnosis of child victim unpreserved for review; court
nevertheless notes recent statutory changes permitting social workers to diagnose, treat
psychiatric conditions; court acknowledges legislation affects earlier holdings limiting
testimony of social workers, as opposed to psychiatrists, psychologists); State v. Willis,
256 Kan. 837, 846, 888 P.2d 839 (1995) (social worker not qualified to make psychiatric
diagnosis of post-traumatic stress disorder, rape trauma syndrome; social worker thus not
qualified to testify about diagnosis in rape case involving consent defense; testimony
distinct from evidence permitted from social worker about child victim's behavior
consistent with other victims' behavior, including common delayed disclosure of abuse);
State v. Reser, 244 Kan. 306, 309-15, 767 P.2d 1277 (1989) (social worker with master's
degree, recognized expertise on child sexual abuse, qualified to testify about symptoms,
common patterns of behavior resulting from trauma, including delayed reporting of
abuse; social worker did not discuss diagnosis of victim, only characteristics shared with
other victims; evidence relevant to corroboration of occurrence); State v. Clements, 241
16

Kan. 77, 78-80, 734 P.2d 1096 (1987) (psychologist permitted to testify about child
victim's initial condition, progress in therapy consistent with that of child who had been
sodomized under circumstances alleged by State; testimony distinct from cases in which
expert permitted to vouch for credibility of victim); State v. McQuillen, 239 Kan. 590,
590-93, 721 P.2d 740 (1986) (psychiatrist permitted to testify about symptoms common
in sufferers of rape trauma syndrome, observation of symptoms in victim; psychiatrist
stopped short of testifying victim truthful, had been raped, assailant defendant); State v.
Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986) (social workers went too far in
testifying that child victim telling truth about sexual abuse by defendant, despite
sufficient qualifications in form of extensive training, experience in child abuse
treatment); State v. Lash, 237 Kan. 384, 385-86, 699 P.2d 49 (1985) (error to admit
psychologist's testimony that victim had been molested by defendant, victim's father;
testimony that victim exhibited characteristics consistent with history of sexual abuse
distinguished); State v. Bressman, 236 Kan. 296, 301-04, 689 P.2d 901 (1984) (error to
admit testimony of emergency room physician that victim had been raped, shared
common characteristics of patients who reported they had been raped; physician not
trained in psychiatry not qualified as expert); State v. McQuillen, 236 Kan. 161, 689 P.2d
822 (1984) (psychiatrist's testimony that victim afflicted with emotional, psychological
effects consistent with rape trauma syndrome should have been admitted in rape
prosecution in which consent defense presented); State v. Marks, 231 Kan. 645, 654, 647
P.2d 1292 (1982) (testimony of psychiatrist that victim suffered from rape trauma
syndrome permitted over argument that it invades province of jury; relevant to combat
defendant's allegation that victim consented to sexual intercourse; qualifications of
psychiatrist not in issue); see also McQuillen, 236 Kan. at 174 (Herd, J., concurring)
(pointing out that Kansas law does not permit such testimony from "[mere] . . . rape
counselor"); compare McQuillen, 236 Kan. at 178 (Schroeder, C.J., dissenting) (diagnosis
of rape trauma syndrome therapeutic tool, not factfinding one; "evidence of reactions of
other people to stressful situations, or evidence that the prosecutrix may have experienced
some stressful sexual experience which may or may not have involved the defendant or
17

the particular incident in question, does not assist the jury in its factfinding function and
serves only to bolster the credibility of the prosecutrix's testimony by unrelated 'scientific'
evidence").

Our cases reflect refinement of certain principles over time. Initially we set limits
on the subject of an expert's testimony, forbidding invasion of the jury's province and its
responsibility to judge credibility. Even a psychiatrist or psychologist could not testify
that a particular alleged victim had been subjected to rape or abuse by a particular
defendant or in a particular manner consistent with the State's version of events. See
Lash, 237 Kan. 384. But the rules relaxed somewhat as the testimony became more
general. A victim's diagnosis with post-traumatic stress disorder or rape trauma syndrome
could be made and described for the jury by those with appropriate professional
qualifications—initially, only a psychiatrist or psychologist, and then, after statutory
changes, certain social workers. See Welch, 270 Kan. at 233-36; Clements, 241 Kan. at
78-80; McQuillen, 239 Kan. at 590-93; Marks, 231 Kan. at 654. The same group of
professionals—psychiatrists, psychologists, certain social workers—could take the next,
more general step as well. They could testify to common characteristics of victims of
sexual trauma and identify the alleged victim's characteristics as consistent. See
McIntosh, 274 Kan. at 955-59; Plaskett, 271 Kan. at 1014-15; Reser, 244 Kan. at 309-15;
McQuillen, 239 Kan. at 590-93. Those with lesser credentials were unwelcome. A rape
crisis counselor with a sexual assault crisis center could neither diagnose from the
witness stand nor compare the alleged victim in a particular case with known victims. See
Villanueva, 274 Kan. at 24-28.

Our most recent decision in Reyna is consistent with the pattern set by earlier
cases. We held there was no abuse of discretion when the trial judge allowed a licensed
family therapist who was authorized to diagnose and treat mental disorders, see K.S.A.
65-6404(b)(2)(C)(3), and who specialized in treating victims of child sexual abuse to
make "general statements concerning the behavior of child sexual abuse victims." Reyna,
18

290 Kan. at 670-71. The therapist had testified that "a large percentage of children who
have been sexually abused do not report that fact immediately and that when they do
report they are not always focused on the same details that would be important to an adult
investigating the abuse." Reyna, 290 Kan. at 682-83. The testifying expert's qualifications
were not directly in dispute. See Reyna, 290 Kan. at 685-86. Rather, the defendant in
Reyna argued about the subject of the testimony. Reyna, 290 Kan. at 683. We rejected
this argument without focusing on the qualifications of the witness. Indeed, we cited the
Court of Appeals panel's decision in this case as one in which testimony on the same
subject matter had been approved. See Gaona, 41 Kan. App. 2d at 1068-69.

It is interesting to note that Kansas courts have been inhospitable to similar expert
testimony about defendants' psychological profiles in sex crime cases. For example, we
did not allow a prosecutor to capitalize upon a State psychologist's testimony about the
characteristics of pedophiles by arguing in closing that the defendant possessed those
characteristics. See State v. Clements, 244 Kan. 411, 415-20, 770 P.2d 447 (1989). Our
Court of Appeals rejected a defendant's attempt to introduce expert testimony that the
defendant did not possess the characteristics of a pedophile. See State v. Price, 30 Kan.
App. 2d 569, 576-81, 43 P.3d 870 (2002).

A separate line of cases from our Court of Appeals having to do with admissibility
and advisability of expert testimony on child interviewing techniques in sexual abuse
prosecutions, although not cited by either party, also provides helpful context for our
decision here.

In Mullins v. State, 30 Kan. App. 2d 711, 46 P.3d 1222 (2002), a Court of Appeals
panel granted a K.S.A. 60-1507 movant a new trial because his counsel failed to procure
an expert on the subject of interviewing techniques and the suggestibility of child
subjects. The panel stressed that there was no physical evidence of the victim's sexual
abuse and thus the defendant was convicted primarily on the testimony of the victim,
19

reinforced by several pretrial interviews in which the victim's story was repeated, and the
examining nurse's improper testimony that the victim had not been coached. Without an
effort to procure an interview techniques expert to testify at trial, counsel's performance
could not be characterized as strategic and constitutionally sound. Furthermore, "[t]rial
counsel's failure to challenge the reliability of the victim's prior disclosures . . . severely
hampered the ability to challenge the victim's testimony at trial." Mullins, 30 Kan. App.
2d at 717.

In State v. Lewis, 33 Kan. App. 2d 634, 111 P.3d 636 (2003), another Court of
Appeals panel again examined a K.S.A. 60-1507's movant's allegation that his lawyer
provided ineffective assistance of counsel by failing to call an expert to challenge the
child interview method used in the State's investigation, but the panel reached a different
result. It concluded that the law on whether such testimony would be admissible was
unsettled at the time of the movant's trial, and thus his counsel's failure to call such a
witness was not objectively unreasonable. It distinguished Mullins in part because the
evidence presented in the K.S.A. 60-1507 hearing in Mullins had gone virtually
unchallenged by the State. Lewis, 33 Kan. App. 2d at 644-48.

In State v. Criqui, No. 88,388, 77 P.3d 1008, unpublished opinion filed September
12, 2003, rev. denied 277 Kan. 925 (2003), a Court of Appeals panel examined the
defendant's claim in an aggravated criminal sodomy and aggravated indecent liberties
prosecution that the district court committed reversible error in denying the defendant's
"request to introduce expert testimony [of a licensed psychologist] concerning the
reliability of children's testimony based upon proper and improper interview techniques."
Slip op. at 1. The Court of Appeals noted that such an expert could not opine on witness
credibility, but that the district court erred in excluding the expert's "testimony as to: (1)
the proper and improper interviewing procedures and techniques to be used in child
sexual abuse cases; (2) how certain procedures and techniques could adversely affect the
reliability and accuracy of a child's statements; and (3) the problems that [the expert]
20

perceived with the interviewing techniques used in [defendant's] case." Criqui, slip op. at
5. The Court of Appeals, however, held the error harmless. Criqui, slip op. at 5.

In State v. Olga, No. 93,464, 138 P.3d 417, unpublished opinion filed July 21,
2006, a Court of Appeals panel examined the district court's limitation on the testimony
of a psychologist specializing in issues surrounding child abuse in the defendant's
prosecution for rape against his minor daughter and aggravated criminal sodomy against
his minor son. Slip op. at 1. The district court allowed the expert to "testify concerning
generally acceptable techniques that should be used in interviewing children where abuse
is suspected" and "to compare the techniques that [the expert] said should be used to
those that were actually used in interviewing the children." Olga, slip op. at 6. The expert
was prohibited from testifying "that she believed the children had been led to make these
accusations and, therefore, the abuse did not happen." Olga, slip op. at 6. The panel
concluded that the district court correctly limited the expert's testimony to "information
that would be helpful to the jury and would not pass on the credibility of other
witnesses." Olga, slip op. at 7.

Finally, in State v. Huntley, 39 Kan. App. 2d 180, 177 P.3d 1001 (2008), a Court
of Appeals panel was compelled to reverse the defendant's convictions for rape and
aggravated sodomy of his own young children because of the trial judge's refusal to grant
a continuance to retain an expert on the forensic interviews conducted with the victims.
Observing that the defense was "heavily dependent on casting doubt on the reliability of
[the] child witnesses," the panel recognized that such an expert could be "of utmost
importance" and thus the denial of the continuance prejudicial. Because the trial judge
denied the continuance based on an erroneous legal conclusion about the admissibility of
such expert evidence, a conclusion belied by Mullins, the judge's decision qualified as an
abuse of discretion. Huntley, 39 Kan. App. 2d at 189.

21

Here, the defense sponsored testimony like that discussed in this uncited line of
Court of Appeals cases. Barnett, a psychologist who had conducted 100 to 200 interviews
of children, criticized the Finding Words protocol generally and Wiecken's interviews of
M.L. and her brother specifically. Robbins' testimony was actually a hybrid—on the one
hand, an endorsement of the Finding Words protocol designed to back up Wiecken and
undercut Barnett, and, on the other hand, an explanation of the common characteristics of
child abuse victims that then could be argued were consistent with the characteristics of
M.L. She described herself as a "fact-finder" and testified about the "Finding Words"
method for forensic interviews of children who have alleged sexual abuse. This was the
method employed by Wiecken, who interviewed M.L. and her brother, and who also
testified about Finding Words. Robbins went further than Wiecken, however, testifying
over defense objections, that children who are victims of sexual abuse often do not
disclose the abuse immediately and, when they do disclose, may do so piecemeal over
time. Robbins also opined that coaching of children to make false allegations of sexual
abuse would be difficult and was "probably rare."

The problem is that Robbins was qualified under K.S.A. 60-456 to give the first
type of expert testimony but not the second.

Robbins is not a psychiatrist or a psychologist or a social worker authorized by
K.S.A. 65-6319 or a family therapist authorized by K.S.A. 65-6404(b)(2)(C)(3) to
diagnose and treat mental disorders. She is an investigator. To the extent her expert
testimony remained focused on the Finding Words protocol and its reliability, she was
clearly qualified. K.S.A. 60-456 does not impose education or licensure requirements; the
statute emphasizes "the special knowledge, skill, experience or training possessed by the
witness." K.S.A. 60-456(b). And we have emphasized skill and experience in prior
decisions:

22

"We have found that to be competent as an expert, a witness must be skilled or
experienced in the profession to which the subject relates. State v. Willis, 256 Kan. 837,
839, 888 P.2d 839 (1995). An expert witness 'must be qualified to impart to the jury
knowledge within the scope of his special skill and experience that is otherwise
unavailable to the jury from other sources.' 256 Kan. at 839." Diggs, 272 Kan. 349, 365,
34 P.3d 63 (2001).

Robbins has experience and training with Finding Words and, more generally, with
forensic interviews of children who have alleged sexual abuse. Jurors do not possess this
information, and Robbins' testimony was helpful to their understanding of the case. It was
not an abuse of the trial judge's discretion to permit her, like defendant's expert Barnett,
to testify as an expert under K.S.A. 60-456(b) on the procedures followed and the pitfalls
to be avoided in such interviews. We also note that Robbins' testimony on Finding Words
was largely cumulative of Wiecken's.

In contrast, Robbins was not qualified to testify as an expert on the characteristics
of victims of child sexual abuse—particularly the phenomenon of delayed disclosure, and
her opinions that coaching to produce false allegations would be difficult and was
"probably rare," those elements of her testimony not cumulative of Wiecken's. With the
advantage of review of the record on appeal and oral argument, we now view any
contrary suggestion from Reyna's complimentary citation of the Court of Appeals
decision in this case as hasty. It is true that Robbins' training and experience had exposed
her to many children who alleged sexual abuse. But we have no information about how
often her determinations as a "fact-finder" of the existence of abuse were confirmed by
other evidence and/or later examinations or proceedings. Although she may be well
qualified to conduct interviews as part of an interdisciplinary team including police and
prosecutors, there is no question that she is neither statutorily qualified nor licensed to
diagnose any particular interview subject as a trauma victim suffering from any particular
psychological or psychiatric malady. Should she nevertheless be permitted to testify as an
expert on the characteristics of such victims in general and their patterns of disclosure?
23

None of our previous cases allowing such testimony has allowed it from a witness with
Robbins' background, even when the testimony stopped short of making a diagnosis of a
particular alleged victim. See, e.g., McIntosh, 274 Kan. at 955-59 (licensed clinical social
worker); Plaskett, 271 Kan. 995 (social workers); Reser, 244 Kan. at 309-15 (social
worker with master's degree, recognized expertise on child sexual abuse); McQuillen, 239
Kan. 590 (psychiatrist). For us, the doctrinal extension on which the State relied is a
bridge too far. Although Robbins possessed certain "knowledge, skill, experience or
training" not possessed by jurors, and related to children who allege sexual abuse, the
State did not demonstrate that she possessed any of these qualifications related to child
victims of sexual abuse. Robbins could talk about the child accuser interview protocol
from a position of superior knowledge, but not about the characteristics of child abuse
victims nor the frequency of their inventions or mistakes. The admission of Robbins'
testimony as an expert on the common characteristics of child abuse victims, including
delayed disclosure and piecemeal disclosure and her opinions about the difficulty and
rarity of coaching children to make false allegations was an abuse of discretion, based as
it was on an erroneous legal interpretation of K.S.A. 60-456(b) and our prior case law.
See State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010) (legal error can lead to
abuse of discretion).

Having determined there was error, we move to the question of harmlessness.
Unless we deem the error to have affected Gaona's substantial rights, K.S.A. 60-261 does
not require reversal of his convictions. Although the type of erroneously admitted
testimony we disapprove of today may be unduly prejudicial in certain cases, the State
can carry its burden to show harmlessness here. M.L.'s allegations against Gaona were
not merely corroborated by her repetition of them to various listeners. They were
corroborated by her brother's observations and unprompted disclosure. They were
corroborated in part by the SANE physical observation. They were at least marginally
corroborated by the testimony of the sheriff's employees who found the pornographic
24

videotapes. Reversal is not required, despite Robbins' testimony exceeding the
boundaries set by her qualifications.

Attempted Aggravated Criminal Sodomy Instructions on Counts Two and Seven

At trial, Gaona requested lesser included attempt instructions for the rapes charged
in Counts One and Three, but he did not request lesser included attempt instructions for
the aggravated sodomies charged in Counts Two and Seven. His claim in this appeal that
failure to give the attempted aggravated sodomy instructions necessitates reversal of his
Count Two and Seven convictions is governed by the clearly erroneous standard. See
K.S.A. 22-3414(3). That standard is met only if the instructions were supported by the
evidence and we are firmly convinced that, had the instructions been given, there was a
real possibility the jury would have returned different verdicts on those counts. State v.
Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006) (citing State v. Boone, 277 Kan. 208,
220, 83 P.3d 195 [2004]). Omission of an attempt instruction cannot be labeled
erroneous, not to mention clearly erroneous, unless there is "some evidence that would
reasonably justify . . . conviction[s]" of attempted rather than completed crimes. See State
v. Foster, 290 Kan. 696, 710, 233 P.3d 265 (2010) (citing K.S.A. 22-3414[3]; State v.
Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 [2005]).

Gaona argues that M.L. told Washburn that Gaona would often "try" to have sex
with her and that she alternately forgot whether Gaona's penis touched her or said that it
touched her "butt." He also points to M.L.'s inability to remember whether Gaona's finger
went inside her "butt" and her testimony that he put his penis in her mouth while her eyes
were closed. Finally, Gaona also cites his own testimony about his problems achieving
and maintaining an erection. All of this, in his view, made this a "close case," and the
jury's decision to acquit him on three counts further demonstrates that "[a] properly
instructed jury could easily have convicted Mr. Gaona of the lesser included offenses."

25

The State responds that M.L.'s testimony supported only completed sodomies and
that Gaona's theory of the case was that "none of these acts occurred," not that the acts
charged in Counts Two and Seven were unsuccessfully attempted.

The Court of Appeals agreed with the State's view of the record. "Although M.L.'s
testimony was inconsistent at times, the jury was simply not presented with evidence that
Gaona tried but failed to complete the crime of aggravated criminal sodomy." Gaona, 41
Kan. App. 2d at 1072. Quoting this court's decision in State v. Gibbons, 256 Kan. 951,
955, 889 P.2d 772 (1995), the Court of Appeals concluded that lesser included offense
instructions were not necessary because "'all of the evidence taken together shows that
the offense, if committed, was clearly of the higher degree.'" Gaona, 41 Kan. App. 2d at
1072.

Aggravated criminal sodomy is sodomy with a child under 14 years of age. K.S.A.
21-3506(a)(1). Sodomy is defined as "oral contact or oral penetration of the female
genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male
or female by any body part or object . . . ." K.S.A. 21-3501(2). Attempt is defined as "any
overt act toward the perpetration of a crime done by a person who intends to commit such
crime but fails in the perpetration thereof or is prevented or intercepted in executing such
crime." K.S.A. 21-3301(a).

At trial, Gaona categorically denied rape, aggravated criminal sodomy, and the
attempt of either offense during his testimony. Gaona testified that he never attempted to
put or actually put his penis in M.L.'s vagina, anus, or mouth. In contrast, M.L. answered
"Yes" when asked if Gaona's doinkey touched her "butt." She also answered "Yes" when
asked if Gaona's "doinkey" was put in her mouth and further testified that she "told him
to quit." SANE Washburn testified that M.L. told her: "He put his thing up my butt."
M.L.'s testimony that she "forgot" whether Gaona's finger penetrated her "butt" is not
26

logically or legally equivalent to testimony that the penetration was attempted
unsuccessfully.

Again, if "all the evidence taken together shows that the offense, if committed,
was clearly of the higher degree, instructions relating to a lesser degree of the offense are
not necessary." State v. Dixon, 279 Kan. 563, 573, 112 P.3d 883 (2005), overruled on
other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Here, the
evidence on Counts Two and Seven supported one of only two potential outcomes: the
completed offenses occurred or they did not. The jury had the opportunity to believe
Gaona and acquit or to believe the incriminating testimony against him and find Gaona
guilty of aggravated criminal sodomy. See Simmons, 282 Kan. at 742-43. There was not a
real possibility that the jury would have convicted Gaona of attempted aggravated
sodomy on either Count Two or Count Seven, and he is not entitled to reversal of his
convictions on those counts.

Exclusion of Gaona's Medical Records

Whether evidence has been properly excluded by the district court under the rules
of evidence involves a multistep analysis. This court has explained:

"We review the exclusion of evidence first by determining whether the evidence
is relevant. K.S.A. 60-401(b) defines relevant evidence as 'evidence having any tendency
in reason to prove any material fact.' This definition encompasses two components: (1)
whether the evidence is probative; and (2) whether it is material. State v. Dixon, 289 Kan.
46, 69, 209 P.3d 675 (2009); State v. Henson, 287 Kan. 574, 578, 197 P.3d 456 (2008).
Probative evidence is evidence that 'furnishes, establishes or contributes toward proof.'
Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). Whether
evidence was probative is reviewed under an abuse of discretion standard. Dixon, 289
Kan. at 69. Material evidence goes to a fact at issue that is significant under the
substantive law of the case. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The
27

determination of whether evidence is material is reviewed under a de novo standard.
Dixon, 289 Kan. at 70." State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010).

If the evidence is relevant,

"the evidentiary rules governing admission or exclusion of evidence are applied as a
matter of law or in the exercise of judicial discretion, depending on the applicable rule.
But, if the adequacy of the legal basis is questioned, appellate courts review this question
de novo. Dixon, 289 Kan. at 70; State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647
(2006)." Martinez, 290 Kan at 1009.

Unless a defendant's due process rights are implicated, a district court's exclusion
of evidence as a permitted sanction because of a party's failure to comply with discovery
under K.S.A. 22-3212(g) will be reviewed on appeal for an abuse of discretion. State v.
Johnson, 286 Kan. 824, 833, 190 P.3d 207 (2008).

Erroneous exclusion of evidence also is subject to an analysis for harmlessness
under K.S.A. 60-261. State v. Shadden, 290 Kan. 803, Syl. ¶ 18, 235 P.3d 436 (2010).

In this case, the parties each requested discovery from the other well before trial.
The State's request under K.S.A. 22-3212 specifically sought any "medical records . . .
which the Defendant intends to produce at trial." Nevertheless, Gaona produced no
medical records to the State until approximately 2 hours before he sought to introduce
them at trial. The State objected. Gaona's counsel, who sought to admit the records with
no supporting foundation or medical testimony, said the records had not been produced
for the State earlier because a final decision had not yet been made on whether to seek
their admission. The trial judge excluded the records. Thus the evidence at trial on
Gaona's prostate problem and related erectile dysfunction was limited to his testimony
and his wife's confirmation of her awareness of the issue.

28

Gaona argues that the exclusion of the medical records was fatal to his defense;
"the exclusion of evidence that forms an integral part of the defendant's theory of the case
violates the defendant's right to a fair trial." State v. Evans, 275 Kan. 95, 102, 62 P.3d 220
(2003); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297(1973).
But the State accurately points out that "[t]he defendant's right to present a defense is
subject to the rules of evidence and caselaw on the subject." State v. Bornholdt, 261 Kan.
644, 932 P.2d 964 (1997). In addition, in the State's view, the trial court did not prevent
Gaona from presenting his medical issues, only his medical records, which the district
court was entitled to do in its discretion based on relevance, lack of foundation, and
violation of K.S.A. 22-3212.

The Court of Appeals concluded the district court did not err in excluding the
medical records, stating that "K.S.A. 22-3212(g) gives the district court authority to
prohibit a party from introducing evidence when discovery rules have been violated . . .
[and] Gaona has failed to show that the medical records were relevant, material, or
probative." Gaona, 41 Kan. App. 2d at 1074. The Court of Appeals emphasized the late
production of the records and observed that they included "a host of irrelevant
information" unconnected to Gaona's claim of erectile dysfunction. Gaona, 41 Kan. App.
2d at 1074. Finally, the Court of Appeals also held that Gaona "cannot establish that he
was prejudiced" because he was allowed to testify about his erectile dysfunction. Gaona,
41 Kan. App. 2d at 1074.

Although the medical records at the heart of this issue are not included in the
record on appeal, we can safely agree with the Court of Appeals that Gaona's argument
lacks merit. There were multiple sound legal reasons for the district judge's decision to
exclude the records: among them, Gaona failed to lay a foundation for the records; Gaona
failed to demonstrate the relevance of many of the records; the contents of the records
constituted inadmissible hearsay for which Gaona failed to assert on applicable
exception; and the sanctions available to the district judge for Gaona's violation of
29

reciprocal discovery included exclusion. Furthermore, Gaona's due process right to
present a defense was not implicated, as he was free to present his own testimony about
his prostrate problem, with corroboration of its existence from his wife. Thus, even if the
exclusion had been error, the State could carry its burden to demonstrate that it was
harmless. See State v. McCullough, 293 Kan. ___, ___ P.3d ___ (No. 101,041, this day
decided). It was harmless under K.S.A. 60-261.

Viewing of Pornographic Movies as K.S.A. 60-455 Evidence

"When the adequacy of the legal basis of a district judge's decision on admission
or exclusion of evidence is questioned, we review the decision de novo." State v. Gunby,
282 Kan. 39, 47-48, 144 P.3d 647 (2006). If a party fails to make a specific
contemporaneous objection to the admission of evidence or testimony at trial, objection
to that evidence or testimony is not preserved for appeal. State v. King, 288 Kan. 333,
341-42, 344, 204 P.3d 585 (2009).

Before trial, Gaona moved in limine to preclude the State "from offering,
introducing, displaying, exhibiting, referring to, or mentioning in the presence of the jury
any prior crimes alleged or proven as having the Defendant involved." Gaona also moved
to preclude "the introduction of any evidence of other crimes or bad acts pursuant to
K.S.A. 60-420, 60-241 and 60-422" and further requested "that the Court admonish the
State that all witnesses testifying on its behalf be directed to not violate this Order." The
record on appeal does not show the district court's ruling on these motions.

At trial, the following exchange occurred between the State and M.L.:

"Q: Did you watch a movie with [Gaona] that had naked people?
"A: Yes.

30

"Q: And where did you watch that?
"A: In my mom's room."

On cross-examination, the following exchange occurred:

"Q: Now, did you only watch the naked people movie one time?
"A: Yes."

M.L.'s mother, R.G., also testified at trial that M.L. told her she had seen a
pornographic movie. Several members of the Finney County Sheriff's Office also
testified about seizing pornographic videos. One of them testified that R.G. had told her
that M.L. alleged Gaona watched pornographic videos with her. Eight exhibits consisting
of four DVD boxes and four DVDs were admitted into evidence.

Gaona did not object at trial to this evidence. In particular, he did not challenge its
admission as inappropriate under K.S.A. 60-455, which governs the limitations
applicable to evidence of other crimes and civil wrongs.

In reaching its decision, the Court of Appeals first noted that Gaona did not
specifically mention the pornographic movies in his pretrial motion in limine. Gaona, 41
Kan. App. 2d at 1075. Further, "Gaona did not object to the admission of or testimony
about the movies at trial. In fact, defense counsel asked . . . about the movies during
cross-examination." Gaona, 41 Kan. App. 2d at 1075. Citing K.S.A. 60-404 and this
court's decisions in State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006), and King,
288 Kan. at 341, the panel held Gaona's "failure to make a timely and specific objection"
barred review on appeal. Gaona, 41 Kan. App. 2d at 1075.

We agree with the panel. As we have repeatedly held: "A party must make a
timely and specific objection to the admission of evidence at trial in order to preserve the
issue for appeal." Anthony, 282 Kan. at 206 (citing State v. Diggs, 272 Kan. 349, 365, 34
31

P.3d 63 [2001]); see also King, 288 Kan. at 341-42 (contemporaneous-objection rule
codified in K.S.A. 60-404 provides timely, specific objection to evidence at trial required
to preserve issues arising from admission). The contemporaneous objection rule applies
to evidence alleged to be admitted in violation of K.S.A. 60-455. State v. Francis, 282
Kan. 120, 138, 145 P.3d 48 (2006). We therefore do not reach the merits of this issue.

Timing of Admission of Victim's Prior Consistent Statements

The admission of prior consistent statement testimony is generally reviewed for an
abuse of discretion. State v. Whitesell, 270 Kan. 259, 289, 13 P.3d 887 (2000). However,
if a party fails to make a specific contemporaneous objection to the admission of
testimony, objection to that testimony is not preserved for appeal. King, 288 Kan. at 341-
42.

Gaona challenges the State's introduction of prior consistent statements of M.L.,
through other witnesses testifying before M.L. He acknowledged that no
contemporaneous objection on this ground was lodged at trial and urges us to address the
merits of the issue to avoid a denial of his fundamental rights.

Again, our recent cases have emphasized the need for a contemporaneous and
specific trial objection to preserve an argument against the admission of evidence. See
State v. McCaslin, 291 Kan. 697, 704-09, 245 P.3d 1030 (2011); State v. Dukes, 290 Kan.
485, 489-90, 231 P. 3d 558 (2010); King, 288 Kan. at 349. Although preservation is a
prudential rather than jurisdictional obstacle to appellate review, see State v. Hall, 292
Kan. 862, 868, 257 P.3d 263 (2011) (purely prudential reluctance to reach an issue not
presented in district court), we see no potential for denial of Gaona's fundamental rights
in this instance. As the State has pointed out, exceptions to the rule that prior consistent
statements must not be introduced into evidence before live testimony by the declarant
have been made in past prosecutions for sexual assaults. See State v. Kackley, 32 Kan.
32

App. 2d 927, 934-36, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004); State v.
Washington, 226 Kan. 768, 770-71, 602 P.2d 1377 (1979). In addition, prior consistent
statements of sexual assault victims may be viewed as independent, corroborating
evidence in favor of the State. See State v. Martinez, 290 Kan. 992, 1001, 236 P.3d 481
(2010). We thus do not reach the merits of this issue.

Cumulative Error

Cumulative error requires reversal of a defendant's conviction "when the totality of
the circumstances substantially prejudiced defendant and denied the defendant a fair
trial." State v. McCaslin, 291 Kan. at 732 (citing State v. Sharp, 289 Kan. 72, 106, 210
P.3d 590 [2009]). Reversal for cumulative error is not required if the evidence against a
defendant is overwhelming, McCaslin, 291 Kan. at 732 (citing State v. Reid, 286 Kan.
494, 523-24, 186 P.3d 713 [2008]), and the existence of a single error "is insufficient to
accumulate" under the cumulative error doctrine. State v. Leaper, 291 Kan. 89, 107, 238
P.3d 266 (2010) (citing State v. Houston, 289 Kan. 252, Syl. ¶ 14, 213 P.3d 728 [2009]).

Although the Court of Appeals previously identified an error in instruction on
Count Three that requires reversal of one of Gaona's rape convictions, and we have
identified an error in admission of portions of Robbins' expert testimony, we are not
persuaded that the totality of the circumstances before us substantially prejudiced Gaona
and denied him a fair trial overall. As earlier discussed, the expert testimony error was, in
context, harmless. And the harm from the instruction error identified by the Court of
Appeals is already being corrected. No cumulative error requires reversal of Gaona's
three remaining convictions.

33

Sentence to Highest Number in Grid Block

"Construction of the [Kansas Sentencing Guidelines Act] and determination of the
constitutionality of its provisions are questions of law" over which an appellate court has
unlimited review. State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207 (2008) (citing State
v. Davis, 275 Kan. 107, 124, 61 P.3d 701 [2003]; State v. Ivory, 273 Kan. 44, 46, 41 P.3d
781 [2002]). "A statute must clearly violate the constitution before it may be struck
down" and an appellate court "'not only has the authority, but also the duty, to construe a
statute in such a manner that it is constitutional if the same can be done within the
apparent intent of the legislature in passing the statute.' [Citation omitted.]." Johnson, 286
Kan. at 842-43.

At the time of sentencing, Gaona had a criminal history score of "I." Gaona was
sentenced to the highest number in the grid box for each crime of conviction. He argues
that "[b]y imposing the aggravated sentence on each count without putting the
aggravating factors to a jury, the district court violated [his] rights under the Sixth and
Fourteenth amendments," citing Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856,
166 L. Ed. 2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435(2000).

We have repeatedly rejected this argument. We do not see it differently now. See,
e.g., Johnson, 286 Kan. 824, Syl. ¶ 5.

The judgment of the Court of Appeals affirming the judgment of the district court
in part, reversing in part, and remanding, is affirmed.

MORITZ, J., not participating.
DANIEL L. MITCHELL, District Judge, assigned.
1

34

1
REPORTER'S NOTE: District Judge Mitchell was appointed to hear case No. 98,822
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.