Nichols v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 116,116

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROGER L. NICHOLS,
Appellant/Cross-appellee,

v.

STATE OF KANSAS,
Appellee/Cross-appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed August 4,
2017. Affirmed.

Adam M. Hall, of Thompson Ramsdell & Warner, P.A., of Lawrence, for appellant/cross-
appellee.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee/cross-appellant.

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

Per Curiam: Roger Nichols appeals from a judgment denying his K.S.A. 60-1507
motion, alleging ineffective assistance of trial counsel. Nichols argues that the district
court erred when it failed to rule that his trial counsel had furnished ineffective assistance
of counsel that prejudiced his defense. The State has cross-appealed, arguing that the
district court erred when it ruled that two of Nichols' claims against his trial counsel
related back to his timely filed K.S.A. 60-1507 motion. Yet, as stated below, it was not
unreasonable for the district court to rule that Nichols' later claims related back to his
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timely filed K.S.A. 60-1507 motion. Moreover, for the reasons set forth below, we reject
Nichols' ineffective assistance of counsel arguments. As a result, we affirm.

In affirming Nichols' convictions upon his direct appeal in State v. Nichols, No.
106,974, 2012 WL 6217199, at *1-2 (Kan. App. 2012) (unpublished opinion), rev. denied
297 Kan. 1253 (2013), this court explained the underlying facts of Nichols' case as
follows:

"Christina Williams dated Roger Nichols from 2003 to 2008. Williams has two
children: M.G., born in 1998, and T.H., born in 2001. M.G. and T.H. called Nichols 'Dad'
even though he was not their biological father, and he was often left alone with the two
girls. After the breakup, Nichols and Williams remained friends, and Nichols still
interacted with M.G. and T.H.
"On May 22, 2010, Williams overheard M.G.'s friend ask her over speakerphone,
'Do you remember what your stepdad did to your sister?' When Williams questioned
M.G. about this comment, M.G. told Williams that Nichols had done 'adult things' to both
M.G. and T.H. On further questioning by Williams, although the girls couldn't say how
many times they were abused, they agreed that it happened '[a] lot,' and when Williams
wasn't around. At that point, Williams called the police.
"After police investigation, Nichols was charged with one count of rape, one
count of aggravated criminal sodomy, and two counts of aggravated indecent liberties
with a child. The jury convicted Nichols of aggravated criminal sodomy of T.H. and of
aggravated indecent liberties with both M.G. and T.H. The jury acquitted Nichols of
raping M.G.
"At trial, Williams testified that M.G. had been undergoing counseling for
depression since early 2010—before Williams was aware of the sexual abuse. Nichols
moved for a mistrial because the State had not disclosed that M.G. was in counseling;
Nichols claimed that this omission prejudiced his trial rights. If he had been aware of this
information, Nichols argued, he would have subpoenaed the counseling records 'because
the information in those counseling sessions and any potential denials or recantation that
occurred could have been absolutely pivotal to this case.' The State admitted that it was
aware of the counseling but never obtained the records because it did not feel they were
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necessary. The judge denied Nichols' motion for mistrial, finding no violation of any
discovery orders.
"M.G. testified that Nichols touched her chest and inserted his penis and fingers
into her vagina on multiple occasions. M.G. also reported that Nichols either urinated or
ejaculated on her back and in her mouth:
'[Nichols] said he was going to put lotion on my back. But it didn't feel
like lotion. It was all warm and liquidy, and it started running. And—
well, it pretty much felt like he was peeing on my back.
. . . .
. . . [Another time, Nichols] told me that he was going to give me
some candy, and then there was something in my mouth, and it was
gross, and it was warm, and it was all liquidy, and I didn't know what it
was 'cause my face was covered up. And then I uncovered my face, and I
started spitting it out. And then he said it was probably old candy.'
"M.G. first remembered the abuse occurring in 2006, when she was 7 to 8 years
old. According to M.G., this abuse happened 'a lot,' over a long period of time, until she
was 11 or 12 years old.
"T.H. testified that Nichols touched her 'bottom' or 'butt' with his fingers on
multiple occasions. Sometimes, Nichols' fingers penetrated her anus. When T.H. would
scream, Nichols covered her mouth. T.H. did not believe that Nichols ever used his penis
or other parts of his body to touch or penetrate her.
"Nichols presented the testimony of several of his family members who claimed
that M.G. and T.H. had admitted to lying about the abuse. Both M.G. and T.H. denied
making these statements, maintaining that they never told anyone that the abuse hadn't
happened. Nichols also testified in his own defense, denying that he ever sexually
touched, exposed himself to, urinated on, or ejaculated on either M.G. or T.H.
. . .
"Nichols was sentenced to three hard-25 life sentences under the Jessica's Law
statute, K.S.A. 2006 Supp. 21-4643, with two of the counts to run consecutively. Nichols
has appealed to this court."

On August 14, 2014, exactly 1 year after our Supreme Court denied Nichols'
petition for review, Nichols moved for relief under K.S.A. 60-1507. In his motion,
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Nichols alleged that his trial counsel, Debra Snider, had provided ineffective assistance of
counsel for the following reasons: (1) Snider failed to obtain and preserve "[F]acebook
messages sent by M.G. to witnesses [he had] identified"; (2) Snider failed to obtain and
use his employment records, which would have "substantiate[d] [his] claim that the
opportunity for the crime(s) was not present"; (3) Snider failed to obtain and use the
psychological records of M.G.; (4) Snider failed to obtain and use the medical records of
M.G. and T.H.; (5) Snider failed "to competently investigate his case"; and (6) Snider
failed to "call relevant witnesses in [his] defense."

Later, on June 8, 2015, Nichols moved to amend his K.S.A. 60-1507 motion. In
his motion to amend, Nichols alleged that his current counsel had just discovered the
existence of records from the Department of Children and Families (DCF), regarding an
earlier allegation that M.G. and T.H. had been sexually abused by him. Nichols alleged
that the 2006 DCF records showed that M.G. and T.H. had denied that they had been
sexually abused by him during this earlier investigation. Nichols asserted that Snider's
failure to present this evidence of M.G.'s and T.H.'s previous denial was "clearly
prejudicial." The district court allowed Nichols to amend his K.S.A. 60-1507 motion, but
the court refused to rule on whether this new argument was properly before it until it
considered the merits of his motion. Also, in Nichols' pretrial memorandum filed several
months after his motion to amend, Nichols alleged that he would be arguing that Snider
was ineffective for failing to call Michelle Byrd, his ex-fiancé, as a witness. Nichols
alleged that Byrd was an important witness because she was present when M.G. and T.H.
had recanted the alleged abuse in front of his other family members.

The trial court denied Nichols' K.S.A. 60-1507 motion because he had failed to
establish Snider's representation fell below the presumption of reasonable performance
for each of his claims.

Nichols has timely appealed. Further, the State has timely cross-appealed.
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Did the District Court Err by Finding That Nichols' New Arguments Related Back to His
Timely Filed K.S.A. 60-1507 Motion Arguments?

In its cross-appeal, the State argues that the district court abused its discretion by
finding that Nichols' arguments about the 2006 DCF records and Byrd's testimony related
back to Nichols' original arguments in his timely filed K.S.A. 60-1507 motion. Nichols
responds that the arguments were properly before the district court because in his K.S.A.
60-1507 motion, he had broadly alleged that Snider had failed to adequately investigate
impeaching evidence and failed to call "relevant witnesses." Nichols further argues that
the district court should have found that he was allowed to make his arguments about the
DCF records based on a showing of manifest injustice.

Applicable Law

Appellate courts review a district court's decision on a motion to amend pleadings
under the abuse of discretion standard. Thompson v. State, 293 Kan. 704, 709, 270 P.3d
1089 (2011). A district court abuses its discretion when it makes an error of fact, an error
of law, or an unreasonable decision. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015).

Timing of Nichols' Arguments

K.S.A. 2016 Supp. 60-1507(f)(1)(A) requires that movants bring their claims
within 1 year of "[t]he final order of the last appellate court in this state to exercise
jurisdiction on a direct appeal or the termination of such appellate jurisdiction." Our
Supreme Court denied Nichols' petition for review from his direct appeal on Friday,
August 19, 2013. K.S.A. 2016 Supp. 60-206(a)(1)(A) and (B) requires that for time
computation purposes, one must "[e]xclude the day of the event that triggers the period"
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but otherwise "count every day, including intermediate Saturdays, Sundays and legal
holidays." Accordingly, to timely move for relief under K.S.A. 60-1507, Nichols was
required to file his motion no later than August 20, 2014.

Thus, Nichols' original motion filed on August 19, 2014, was timely. Yet, his
motion to amend his K.S.A. 60-1507 motion, which was filed on June 8, 2015, was well
beyond the K.S.A. 2016 Supp. 60-1507(f)(1)(A) 1-year time limit. Once again, in his
motion to amend, Nichols alleged that he should be allowed to argue that Snider was
ineffective for failing to present evidence concerning M.G.'s and T.H.'s denials that he
had sexually abused them in the earlier DCF investigation in 2006. Moreover, Nichols
first argued that Snider should have had Byrd testify in his "trial memorandum" filed on
October 26, 2015, well past the 1-year time limit of K.S.A. 2016 Supp. 60-1507(f)(1)(A)
and less than a month before his evidentiary hearing.

Moreover, we point out that Nichols never formally moved to amend his K.S.A.
60-1507 motion to include his arguments concerning Byrd's testimony. Furthermore, it is
also important to point out that although the State had argued to the district court that
Nichols' arguments concerning the 2006 DCF records and Byrd's testimony did not relate
back to his arguments within his timely filed K.S.A. 60-1507 motion, Nichols never
made such an argument. Instead, Nichols argued that his arguments were properly before
the court based on manifest injustice and the State's failure to timely object to his new
arguments. As a result, even though Nichols never asserted that his new arguments
related back, the trial court found that Nichols' new arguments related back. Accordingly,
this is a situation where the K.S.A. 60-1507 movant did not make the relation-back
argument he now espouses on appeal and where the court essentially sua sponte created
and adopted an argument for the movant.

Clearly, this was not the best practice on either Nichols' or the district court's part.
All the same, the State has not complained about Nichols' failure to raise the relation-
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back argument below or the district court's sua sponte creation and adoption of this
argument. Moreover, in Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008), our Supreme
Court reached the merits of Pabst's relation-back argument even though "Pabst neither
sought nor obtained leave of court to amend his motion" and the district court raised the
relation-back argument on its own. 287 Kan. at 25. Based on our Supreme Court's actions
of reaching the merits of Pabst's arguments, we will consider whether Nichols' arguments
about the 2006 DCF records and Byrd's testimony related back to his timely filed K.S.A.
60-1507 motion.

Nichols' New Arguments Related Back

Turning our focus next to the rules regarding relation back, once the K.S.A. 2016
Supp. 60-1507(f)(1)(A) 1-year time limit has passed, we note that movants who timely
filed their K.S.A. 60-1507 motion may amend those motions to add new arguments so
long as those amendments relate back to the arguments in their timely filed K.S.A. 60-
1507 motion. See Pabst, 287 Kan. at 25. K.S.A. 2016 Supp. 60-215(c)(2) states: "An
amendment to a pleading relates back to the date of the original pleading when: the
amendment asserts a claim or defense that arose out of the conduct, transaction or
occurrence set out, or attempted to be set out, in the original pleading." In Pabst, our
Supreme Court held that an amended motion relates back if its arguments are of the same
time and type as the arguments raised in the original timely filed motion. 287 Kan. 1, Syl.
¶ 7. In Mayle v. Felix, 545 U.S. 644, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005), a case
the Pabst court relied on, the United States Supreme Court held that an amended motion
relates back to the original timely filed motion when the arguments within both motions
hinge on the same common core of operative facts. 545 U.S. at 657.

In this case, the State asserts that Nichols' arguments about the 2006 DCF records
and Byrd's testimony did not relate back to the arguments in Nichols' timely filed K.S.A.
60-1507 motion because nothing "related" to the 2006 DCF records or Byrd's testimony
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was contained within Nichols' timely filed K.S.A. 60-1507 motion. It is unclear what the
State means by its use of the term "related." Certainly, Nichols did not explicitly
reference the 2006 DCF records or Byrd's testimony in his timely filed K.S.A. 60-1507
motion. If this is the relation-back standard the State desires to hold Nichols to, then the
State has held Nichols to a higher relation-back standard than Kansas law requires.

Here, the strength of relationship between the arguments raised in Nichols' timely
filed K.S.A. 60-1507 motion and later arguments are not all that different than those at
issue in Shumway v. State, 48 Kan. App. 2d 490, 504, 293 P.3d 772 (2013). In Shumway,
this court held that because Shumway had timely filed his K.S.A. 60-1507 motion,
arguing that his trial attorney was ineffective for not calling certain alibi witnesses, his
later arguments that his attorney was ineffective for failing to call other witnesses that
would have supported his theory of his defense related back to his earlier arguments
about the alibi witnesses. The Shumway court concluded that "the amended motion and
the original motion are related to the same general conduct, transaction, and occurrence
which involved Shumway's claim of ineffective assistance of trial counsel." 48 Kan. App.
2d at 504-05.

Here, in his timely filed K.S.A. 60-1507 motion, Nichols argued that Snider was
ineffective for failing to use psychological and medical records that he believed would
have established that M.G. and T.H. were lying about the sexual abuse. Plainly, Nichols'
later argument about Snider's failure to use the 2006 DCF records to show that M.G. and
T.H. had previously denied that he had sexually abused them was of the same general
nature as his earlier arguments concerning medical and psychological records. Also,
Nichols argued in his timely filed K.S.A. 60-1507 motion that Snider was ineffective for
failing to call a specific witness whose testimony would have supported that M.G. and
T.H. had lied about the sexual abuse. By reviewing Nichols' new argument concerning
Byrd's testimony, it is readily apparent that this new argument is nearly identical to the
preceding timely raised argument because both arguments claim that Snider was
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ineffective for not calling a witness who could testify that M.G. and T.H. had lied about
the sexual abuse.

In summary, because Nichols' later arguments concerning the 2006 DCF records
and Byrd's testimony were of the same time and type of evidence and general conduct at
issue in his timely filed K.S.A. 60-1507 motion, it was not an abuse of discretion for the
district court to find that these arguments related back. Thus, the district court properly
determined that Nichols' later arguments related back to his timely filed K.S.A. 60-1507
motion.

Did the District Court Err by Denying Nichols' K.S.A. 60-1507 Motion?

Nichols argues that the district court erred when it failed to rule that Snider had
provided ineffective assistance of counsel that prejudiced his defense. Nichols raises six
arguments why he believes Snider was ineffective to a level that prejudiced his defense:
(1) Snider failed to admit into evidence the Facebook message between M.G. and I.N.;
(2) Snider failed to subpoena and admit into evidence his employment records; (3) Snider
failed to subpoena and admit into evidence M.G.'s psychological records; (4) Snider
failed to subpoena and admit into evidence M.G.'s and T.H.'s medical records; (5) Snider
failed to admit into evidence the 2006 DCF records detailing M.G.'s and T.H.'s denial
that he sexually abused them then; and (6) Snider failed to present the testimony of Byrd.
The State responds by arguing that Nichols cannot establish that Snider's decisions were
objectively unreasonable, often emphasizing that Nichols has ignored that Snider had
strategic reasons for her decisions. Alternatively, the State contends that Nichols cannot
establish that Snider's representation resulted in prejudice.


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Applicable Law

Appellate courts use a two-step standard of review when considering the district
court's decision on claims of ineffective assistance of counsel following a full evidentiary
hearing. First, appellate courts review the district court's factual findings to determine
whether the findings are supported by substantial competent evidence. Fuller v. State,
303 Kan. 478, 485, 363 P.3d 373 (2015). Then, appellate courts review the district court's
legal conclusions de novo. 303 Kan. at 485.

To establish ineffective assistance of counsel, defendants must comply with the
two-prong ineffective assistance of counsel test. Under the first prong, defendants must
establish that their counsel's representation was deficient when viewed under the totality
of the circumstances. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).
Under the second prong, defendants must establish that their counsel's deficient
representation prejudiced their defense. 300 Kan. at 882. The test for prejudice is whether
the defendant has established that there is a reasonable probability the jury's verdict
would have been different but for counsel's deficient performance. 300 Kan. at 882.

When considering counsel's performance, there is a strong presumption that
counsel's conduct was within the wide range of reasonable professional assistance. State
v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). Accordingly, a court's review of
counsel's conduct is highly deferential. 298 Kan. at 970. Moreover, if the decision the
defendant complains about was actually a strategic decision made by counsel following a
thorough investigation of the law and facts of the defendant's case, then counsel's
strategic decision is virtually unchallengeable. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052,
80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]).


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Facebook Message

Nichols' first argument is that Snider prejudiced his defense by failing to admit
into evidence the Facebook message between M.G. and I.N. That message is as follows:

"5:07p.m. [M.G.]: hello
5:07 p.m. [I.N.]: wat you doin
5:07p.m. [M.G.]: istenin 2 music u?
5:08p.m. [I.N.]: nothing I got to talk to dad today he is so sad it makes me sad
5:08p.m. [M.G.]: kool
5:08p.m. [I.N.]: no not kool sad he crys alot
5:08p.m. [M.G.]: y
5:11p.m. [I.N.]: cuz I don't know why he is in jail and he cant see us
5:11p.m. [M.G.]: oh
5:12p.m. [I.N.]: i don't know why all this happen
5:13p.m. [M.G.]: me either
5:13p.m. [I.N.]: do you know about it
5:14p.m. [M.G.]: no
5:15p.m. [I.N.]: dad said some one lied about your mom and you
5:15p.m. [M.G.]: oh
5:16p.m. [I.N.]: did some thang happen
5:16p.m. [M.G.]: no
5:16p.m. [I.N.]: i don't know then
5:17p.m. [M.G.]: k"

In making his argument, Nichols recounts how Snider had attempted to get some
documents concerning M.G.'s Facebook page into evidence to discredit M.G., but the
trial court sustained the State's objection to the admission of all but one of these
documents. Nichols asserts that even though the trial court would not allow Snider to
admit the other Facebook documents into evidence, Snider should have attempted to
admit the Facebook message between M.G. and I.N. because the message "would have
both harmed the credibility of a key witness and substantively demonstrated that the
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alleged molestation did not take place." Nichols alleges that in the Facebook message,
M.G. recanted the alleged sexual abuse to I.N. Nichols asserts that it is obvious that
Snider should have admitted the Facebook message into evidence because his children—
I.N., X.N., and R.N.—testified about M.G.'s recantation to I.N. in the Facebook message
at his trial, meaning the actual Facebook message would have corroborated their
testimony. Nevertheless, there are significant problems with Nichols' arguments.

To begin with, as emphasized by the State in its brief, M.G. did not recant the
alleged sexual abuse in the Facebook message. Instead, I.N. told M.G. that dad—
Nichols—had said that somebody had lied about her and her mother—Williams. Then,
I.N. immediately asked M.G. if something had happened, to which M.G. stated, "No."
The question about whether something had happened was directly related to I.N.'s
previous statement that Nichols had said that somebody had lied about M.G. and
Williams. There is no evidence concerning what these alleged lies were about. Most
importantly, any lies about M.G. and Williams in no way speaks to whether Nichols
sexually abused M.G. or T.H. In respect to M.G.'s statement that she did not know why
Nichols was in jail, M.G. had testified at trial that she was unaware that there was
anything wrong with what Nichols had been doing to her and T.H.; thus, there is evidence
that M.G. did not understand that the discovery of the sexual abuse could have legal
consequences for Nichols.

Further, M.G.'s responses certainly cannot be described as a recantation. All the
Facebook message shows is that when I.N. asked M.G. broad and indefinite questions,
M.G.'s response was "no." Thus, when asserting that M.G. had recanted the alleged
sexual abuse in the Facebook message, Nichols has mischaracterized the Facebook
message. Moreover, Nichols' children were able to testify that M.G. had recanted the
alleged sexual abuse to I.N. in a Facebook message.

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As a result, Nichols cannot establish that Snider's representation was deficient
because I.N.'s, X.N.'s, and R.N.'s testimony about the Facebook message came into
evidence. That is, I.N., X.N., and R.N. all testified about M.G. admitting that she had lied
about the sexual abuse allegations in a Facebook message. Accordingly, there was
evidence presented at trial that M.G. had recanted her sexual abuse allegations against
Nichols in a Facebook message. This court has previously held that counsel's
performance cannot be deficient when the complained-about action would have merely
resulted in the presentation of cumulative evidence. Lewis v. State, 33 Kan. App. 2d 634,
Syl. ¶ 7, 111 P.3d 636 (2003). Here, because Nichols' children had testified about the
content of the Facebook message, the admission of the actual Facebook message into
evidence would have been cumulative in nature.

Employment Records

Second, Nichols argues that Snider provided ineffective assistance of counsel that
prejudiced his defense by failing to subpoena his employment records. Nichols argues
that his employment records would have shown that he worked long hours, meaning he
lacked any opportunity to commit the crimes against M.G. and T.H. Nichols recognizes
that he testified about his long work hours at trial. Nevertheless, he asserts that his
testimony, by itself, was self-serving; therefore, the fact that Snider failed to subpoena his
employment records and admit those records into evidence at his trial prejudiced his
defense.

The State counters that Snider's decision not to use Nichols' employment records
at trial was a strategic decision made by Snider that Nichols cannot successfully attack.
To review, at the K.S.A. 60-1507 evidentiary hearing, Snider testified that she did not
seek out Nichols' employment records as a strategic decision. Snider explained that she
thought using Nichols' employment records to establish lack of opportunity to commit the
crimes against M.G. and T.H. would actually hurt Nichols' case. This was because
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Nichols had been charged with committing the crimes against M.G. and T.H. sometime
between May 1, 2006, and March 31, 2010, a nearly 4-year period during which he lived
with M.G. and T.H. most of the time. Thus, according to Snider, it seemed unlikely that
the jury would have believed that Nichols had no opportunity to commit the crimes at
some point during that 4-year period.

To be sure, Snider's evaluation of the probative value of Nichols' employment
records was reasonable. Given that Nichols lived with M.G. and T.H. for most of the 4-
year period in question, it is highly inconceivable that Nichols would have had no
opportunities to commit the alleged crimes of sexual abuse against M.G. and T.H.
because of his long work hours. How long does it take someone to sexually abuse a
child? As stressed by the State, the employment records showing that Nichols worked
long hours would not have shown that there was no possibility that Nichols could not
have committed the crimes against M.G. and T.H.

Because Snider's decision not to use Nichols' employment records was a
reasonable strategic decision, Nichols cannot successfully challenge Snider's decision.
See Cheatham, 296 Kan. at 437.

Psychological Records

Third, Nichols argues that Snider provided ineffective assistance of counsel that
prejudiced his defense by failing to subpoena and use M.G.'s psychological records at his
trial. Nichols recounts how at his trial, Snider learned that M.G. had been going to
counseling since early 2010, which resulted in Snider moving for a mistrial. Nichols
concludes that an effective attorney would have uncovered that M.G. was in counseling
before trial and then used those records at trial.

15

The State responds that Snider was not ineffective because she "had no reason to
believe there were psychological or counseling records to investigate and it was not
unreasonable for [Snider] to fail to investigate a subject matter for which she had no
notice to explore." Snider's testimony at Nichols' K.S.A. 60-1507 evidentiary hearing is
consistent with the State's argument as Snider testified that Nichols' family had provided
her with so much information she thought she knew about everything. Snider also
testified that she was surprised M.G. was in counseling given that M.G.'s family often
moved and had very little money.

When considering the extent of counsel's investigation, our Supreme Court has
emphasized whether the K.S.A. 60-1507 movant can establish that the evidence would
have been discovered if counsel investigated more thoroughly. Flynn v. State, 281 Kan.
1154, 1163, 136 P.3d 909 (2006). In his brief, Nichols asserts that if "she [had not]
waived [his] preliminary hearing and [had] her private investigator uncover the matter,"
the fact that M.G. was in counseling would have been discovered. Yet, in making this
argument, Nichols ignores that he was the person who waived his preliminary hearing,
not Snider. At his preliminary hearing, Nichols was present and stated that he understood
he was waiving his right to a preliminary hearing. Also, despite Nichols' arguments
within his brief that Snider waived his preliminary hearing without first asking his
permission, as recently as his K.S.A. 60-1507 evidentiary hearing, Nichols testified that
he "agreed" to waive his preliminary hearing after discussing the matter with Snider.

In making his argument, Nichols further fails to explain how Snider was supposed
to get her private investigator to discover that M.G. was in counseling. His failure to do
this means that he has not met his burden of establishing that Snider would have
discovered that M.G. was in counseling had she investigated his case more thoroughly as
described by our Supreme Court in Flynn. See Superior Boiler Works, Inc. v. Kimball,
292 Kan. 885, 889, 259 P.3d 676 (2011) (holding an issue not briefed by an appellant is
deemed waived or abandoned.)
16


For the sake of argument, Nichols contends that the failure to use M.G.'s
psychological records prejudiced his defense because part of his defense was that neither
M.G. nor T.H. had received any counseling, which supported his contention that they had
not been sexually abused. Nichols believes that by having the psychological records of
M.G., which did not contain any information regarding treatment for sexual abuse, he
could have at least presented evidence to the jury that M.G. was not in counseling
because of any sexual abuse. Nichols also believes that because M.G.'s counseling
records did not indicate that she had received treatment for sexual abuse, he could have
used this information to support his contention that the sexual abuse never occurred. This
is a non sequitur, which means it does not follow. It is the fallacy of assuming an
unproved cause. In other words, M.G. had not been abused sexually, for her counseling
records did not indicate that she had been treated for sexual abuse. There is no connection
between the claim and the evidence.

The only document Nichols admitted into evidence relating to M.G.'s counseling
is her intake examination. Clearly, the absence of sexual abuse on the intake examination
does not necessarily mean that M.G. never received sexual abuse counseling. Indeed, at
his K.S.A. 60-1507 evidentiary hearing, M.G.'s counselor stated that the sexual abuse had
been discussed at some point during their counseling sessions.

Medical Records

Fourth, Nichols argues that Snider provided ineffective assistance of counsel that
prejudiced his defense by failing to subpoena and use the medical records of M.G. and
T.H. to prove that he did not commit the crimes. Nichols recognizes that Snider testified
that she did not subpoena the medical records because the DCF records indicated that
M.G., who was then age 8, and T.H., who was then age 5, had "sticky, nasty" vaginal
discharge, which made her believe that any medical records would only support that he
17

committed the crimes. Nevertheless, Nichols asserts that Snider's strategy of not
subpoenaing the medical records fell below an objective standard of reasonableness. To
support this assertion, Nichols cites Hooper v. Mullin, 314 F.3d 1162 (10th Cir. 2002).

In Hooper, during the penalty stage of Hooper's death penalty case, Hooper's
attorney's strategy was to argue that Hooper had brain damage that resulted in violent
tendencies. Yet, Hooper's attorney never had Hooper medically evaluated because he
feared the results of the medical evaluation would be more harmful than helpful, i.e., a
medical evaluation would reveal that Hooper did not actually have brain damage. The
Hooper court held that this constituted deficient performance because strategic decisions
not to investigate a matter cannot be deemed reasonable if those decisions were
uniformed. 314 F.3d at 1171.

The State responds to Nichols' reliance on Hooper by contending that the Hooper
case is distinguishable from Nichols' case. The State's contention is certainly correct as
the Hooper case is very different from Nichols' case because unlike Snider, Hooper's
attorney actually presented a medical related defense; Hooper's attorney argued that
Hooper had brain damage even though the attorney never requested that Hooper undergo
medical evaluations. See Hooper, 314 F.3d at 1170. Here, Snider did not request M.G.'s
or T.H.'s medical records because whether the sexual abuse was supported by the medical
records was not part of the defense she created for Nichols.

Also, Nichols' case is different than the Hooper case because Snider's decision not
to pursue the medical records of M.G. and T.H. was a strategic decision made after a
thorough investigation of the facts of Nichols' case. Once more, Snider testified about
finding it suspicious that the DCF records stated that M.G. and T.H. had "sticky, nasty"
vaginal discharge. At Nichols' K.S.A. 60-1507 evidentiary hearing, the fact M.G. and
T.H. had concerning vaginal discharge was confirmed by the 2006 DCF records and the
testimony of Ruth Meyer-Bareiss, who was the DCF caseworker assigned to M.G.'s and
18

T.H.'s case in 2006. Very clearly, the "sticky, nasty" vaginal discharge in M.G.'s and
T.H.'s 2006 DCF records provided Snider with a reason not to pursue M.G.'s and T.H.'s
medical records; the fact that the 8-year-old and 5-year-old girls were suffering from such
vaginal discharge was a red flag that the girls might have been sexually abused. Snider
also testified that she made a strategic decision not to pursue the medical records because
she learned from the State that it would not be presenting medical evidence. Thus, Snider
explained that she believed that it was very risky to subpoena the medical records given
that there was a strong possibility that doing so would have provided the State with
damning evidence it would not have otherwise known about. In turn, bcause Snider's
decision not to pursue and use M.G.'s and T.H.'s medical records was a strategic decision
made after a thorough investigation of the facts of Nichols' case, her actions cannot be
deemed deficient. See Cheatham, 296 Kan. at 437.

2006 DCF Records

Fifth, Nichols argues that Snider provided ineffective assistance of counsel that
prejudiced his defense by failing to use the 2006 DCF records. Nichols argues that since
M.G. and T.H. denied that he had sexually abused them in the 2006 DCF investigation,
the admission of the 2006 DCF records reporting M.G.'s and T.H.'s denials would have
supported his theory of defense that M.G. and T.H. were lying about their current
allegations of sexual abuse against him. Nichols also emphasizes that he was charged
with committing his crimes between May 1, 2006, and March 31, 2010, meaning the
timing of the 2006 DCF investigation, which took place between August and October
2006, overlapped with the timing of his charges. Based on the preceding, Nichols
contends that the 2006 DCF records would help prove that he did not sexually abuse
M.G. or T.H. during that time. Last, Nichols argues that the evidence of an earlier sexual
abuse investigation would have undermined Williams' testimony at his trial that she was
"blindsided" by the sexual abuse allegations at hand.

19

The State responds by conceding that at Nichols' K.S.A. 60-1507 hearing, Snider
could not specifically recall why she did not use the 2006 DCF records at trial. All the
same, the State asserts that Snider's failure to recall why she did not use the 2006 DCF
records does not mean that Snider's representation fell below an objective standard of
reasonableness. Indeed, although Snider stated that she could not recall why she did not
use the 2006 DCF records, immediately after making this statement she explained how
she did not pursue M.G.'s and T.H.'s medical records because some of the DCF records
she had received said that M.G. and T.H. had "sticky, nasty" vaginal discharge. While it
seems Snider might not have realized this when she testified, the DCF records that refer
to M.G.'s and T.H.'s vaginal discharge were the 2006 DCF records. Thus, even though
Snider could not specifically recall why she did not use the 2006 DCF records at trial, she
did provide testimony speaking to the damaging nature of the 2006 DCF records.

Byrd's Testimony

Sixth, Nichols argues that Snider provided ineffective assistance of counsel that
prejudiced his defense by failing to call Byrd as a witness. Nichols argues that M.G. and
T.H. had told Byrd that they had lied about the sexual abuse while at a pool. Nichols
argues that Byrd's testimony was important because the other witnesses who testified
they heard M.G. and T.H. recant at the pool were members of his family. Nichols asserts
Byrd's testimony, as an "outsider," would have brought credibility to the other testimony
supporting that M.G. and T.H. recanted at the pool. Nichols admits that Snider testified
that he had agreed Byrd should not testify at his trial, but he asserts that this court should
find his testimony more credible than Snider's testimony. Yet, like his prior arguments
there are several problems with Nichols' arguments.

To begin with, Nichols has requested that this court reweigh the district court's
credibility determination that Snider was telling the truth regarding her and Nichols'
agreement that Byrd should not testify. Yet, so long as the district court's credibility
20

determination was not wholly unreasonable, this court is not in a position to reweigh the
district court's credibility determinations. See State v. Daws, 303 Kan. 785, 789, 368 P.3d
1074 (2016). Here, Nichols asserts that his testimony was more credible than Snider's
testimony because Snider's testimony was self-serving. Yet, Nichols fails to recognize
that his testimony that he never agreed with Snider that Byrd should not testify is also
self-serving; he has made this assertion while attempting to get a new trial based on
ineffective assistance of counsel. In addition, Byrd's testimony at Nichols' evidentiary
hearing confirmed Snider's version of events because Byrd testified that during Nichols'
trial, Snider had told her that she would not be testifying because she had "past charges."
Most importantly, because Snider testified that she and Nichols agreed about not having
Byrd testify, it cannot be said that the district court's credibility determination was
unreasonable. Therefore, we must accept the district court's credibility determination.

Next, as emphasized by the State, Snider provided valid reasons for not having
Byrd testify. Snider testified that she did not want to have Byrd testify because (1) Byrd
was very emotional during her interviews, making her believe she would be a bad witness
and (2) Byrd had committed crimes of dishonesty in her past. Byrd, who testified at
Nichols' K.S.A. 60-1507 evidentiary hearing, confirmed that she had been convicted of
crimes of dishonesty. Thus, as asserted by Snider while testifying, had Byrd testified
about M.G. and T.H. recanting, the State could have attacked Byrd's credibility based on
her past crimes. In consequence, there was a strong possibility that the testimony of
Nichols' family members about hearing M.G. and T.H. recant could also be undermined.
In short, because Snider's decision not to have Byrd testify was a strategic decision made
after a thorough examination of the facts at issue in Nichols' case, Snider was not
ineffective for failing to call Byrd. See Cheatham, 296 Kan. at 437.

Last, as with Nichols' argument about the Facebook message, Nichols could never
establish that Snider's representation was deficient or that he suffered prejudice based on
her failure to have Byrd testify because any testimony Byrd would have given would
21

have been cumulative. At his trial, Nichols' mother and ex-wife, who he evidently still
considers family, both testified that M.G. and T.H. had told them that they had lied about
the sexual abuse while they were all at the pool. Thus, Byrd's testimony would have just
repeated Nichols' mother's and ex-wife's testimony. Because an attorney's representation
cannot be deemed ineffective and prejudice cannot exist when the evidence in question
would have been cumulative, it is readily apparent that prejudice cannot exist in Nichols'
case. See Lewis, 33 Kan. App. 2d 634, Syl. ¶ 7.

Notwithstanding the preceding, Nichols' argument that Byrd would have provided
credibility to the allegation that M.G. and T.H. had recanted at the pool because unlike
the other people who testified, Byrd was not a member of his family, is meritless. When
the trial occurred, Byrd was Nichols' fiancée and they had a child together. As a result, it
is mischaracterization to portray Byrd as a disinterested witness whose testimony would
have been seen by the jury as more credible.

Conclusion

In conclusion, each of Nichols' arguments regarding why Snider provided
ineffective assistance of counsel fails because he has not proven that Snider's
representation fell below an objective standard of reasonableness. Moreover, even if
Nichols had established that Snider had provided ineffective assistance of counsel, the
district court's decision to deny his K.S.A. 60-1507 motion was still proper because he
has failed to establish prejudice.

Affirmed.