State v. Berry

1

NOT DESIGNATED FOR PUBLICATION

No. 118,049

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS JAMES BERRY,
Appellant.

MEMORANDUM OPINION


Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed April 12, 2019.
Affirmed.

Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant.

Christine M. T. Ladner, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON, J., and MCANANY, S.J.

PER CURIAM: A jury convicted Travis Berry of criminal sodomy, attempted
criminal sodomy, and aggravated indecent liberties with a child arising from an incident
in 2012. But it acquitted Berry of the charge arising from an incident in 2013. Berry
appeals, arguing (1) the district court erred in admitting evidence of his other sexual
misconduct under K.S.A. 2016 Supp. 60-455; (2) his convictions for attempted criminal
sodomy and aggravated indecent liberties are multiplicious; and (3) the State did not
present sufficient evidence to support his convictions. Finding no error, we affirm.

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FACTS

Sometime in May 2012, A.H.'s father allowed his friend, Berry, to move into the
basement of A.H.'s family's home. At the time, A.H. was 14 years old and just finishing
8th grade. After school let out for the summer, Berry watched A.H. and her two younger
sisters while her father and mother were at work.

One day that summer, the three girls were in the basement with Berry. A.H.'s two
younger sisters were playing video games with him, and A.H. was sitting on his bed
reading a book. Berry told A.H.'s sisters to take the dog for a walk, which normally took
about five minutes.

After they left, Berry came over to the bed, pulled the book out of A.H.'s hands,
and set it to the side. He had her lie down on her back. He then got on the bed, with his
knees on either side of her legs and his hands by her side. He put his hands up her shirt,
pushed up her bra, and touched and sucked on her breasts. Next, Berry pulled down her
pants and underwear and licked her genitals.

When Berry heard A.H.'s sisters come back through the front door, he got off
A.H., and she pulled up her underwear and pants. When A.H.'s sisters got to the bottom
of the basement stairs, Berry told them to take the dog on a longer walk. After A.H.'s
sisters left again, Berry wrapped A.H.'s hand around his penis. He tried to get her to put
his penis in her mouth and told her, "[I]t's just like a Popsicle." Berry held A.H.'s hand
around his penis until her sisters returned. By the time her sisters made it downstairs, he
was playing video games again. A.H. did not tell her sisters anything because she was
afraid, and she barely understood what had happened.

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Berry suddenly moved out of the family's home in July 2012. When Berry
remarried in 2013, A.H.'s father was in the wedding. The two eventually lost touch after
that.

A.H. did not tell anyone what had happened until the end of 2014. She and her
boyfriend, E.M., were talking about taking their relationship further. She told E.M. she
was hesitant to become sexually active with him because she had been molested, but she
did not recall telling him the details.

E.M. wanted to report the man who had molested A.H., but she would not give
him the man's name and made E.M. swear he would not tell her parents. A.H. said the
man was married and had children. She knew the children, and she did not want them to
lose their father.

One night in April 2015, A.H. was at a youth group meeting at church. The pastor
gave a lesson on teenage relationships and sexuality. At the end of the lesson, he
broached the topic of sexual abuse. He told the kids if they had been abused or raped, it
was not their fault. He urged the kids to report any abuse they may have experienced.

After the lesson, A.H. approached Jennifer McBride, a youth sponsor who helped
out with the youth group. McBride had known A.H. for several years. She asked McBride
if they could meet the next day to talk. According to McBride, A.H.'s demeanor was
grave.

A.H. and McBride met the next day. A.H. told McBride that her father's friend had
done inappropriate things to her without her permission. She told McBride about one
incident when the friend had sent her sisters to take the dog for a walk. He pinned her
down and at one point his penis was in her hand. The incident ended when the sisters
4

returned, and A.H. scrambled to get away from him. McBride encouraged A.H. to tell her
parents.

Later that night, A.H.'s father could see she was upset. She told her father she
needed to talk with him and the two went out on the porch. She told him about the 2012
incident. She explained Berry had sent her sisters to take the dog for a walk. He then held
her down, performed oral sex on her, and tried to force her to perform oral sex on him.
He put his penis in her hand and told her to treat it like a Popsicle.

A.H.'s father called her mother out onto the porch and told her what A.H. had said.
He also told A.H. it was up to her whether they reported it. He then called Berry's ex-wife
to tell her what A.H. had said. Berry's ex-wife told him that she was a mandated reporter
and she would have to report it if they did not.

A.H.'s mother and father then went to Berry's house to confront him. Her father
told Berry what A.H. had said and threatened to rip Berry's throat out if he lied. Berry
denied the allegations.

The next day, A.H. went with her parents to the Salina Police Department to report
the incident. In her statement, she described the 2012 incident. The officers asked her if
Berry had done anything else to her and she said he had tried to touch her a second time
when he stayed at A.H.'s home the night before his wedding. According to A.H., Berry
came to her bedroom door and told her to come out to the living room. She went out to
the living room and sat on the couch where Berry lay. He eventually had her lie down
next to him. He then tried to place his hand under her shirt and touch her breasts, but she
stopped him with her arm.

The State charged Berry with one count of criminal sodomy, one count of
attempted criminal sodomy, and one count of aggravated indecent liberties with a child
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arising out of the 2012 incident. The State charged Berry with one count of attempted
aggravated indecent liberties with a child arising out of the 2013 incident.

On November 7, 2016, seven days before trial, the State filed a motion under seal
to admit evidence of Berry's prior sexual misconduct under K.S.A. 60-455. In a police
interview, E.M. had said A.H. told him Berry had sexually molested her several times,
and it did not stop until Berry got married. The State argued E.M.'s statements were
admissible as propensity evidence under K.S.A. 2016 Supp. 60-455(d), as well as to show
a course of conduct and the relationship between the parties.

The State also noted it had turned over all discovery to Berry.

At a hearing the next day, Berry objected to the motion, arguing the State had not
timely filed it, and the State was offering E.M.'s testimony as propensity evidence. He
noted that under K.S.A. 2016 Supp. 60-455(e), the State must disclose any prior crimes
evidence it intended to use at trial to the defense 10 days before trial. And the State had
filed its motion seven days before trial was set to start on November 14.

The State responded that it had turned over a report of E.M.'s police interview to
Berry several months ago. Also, the State had originally tried to file the motion on
November 3, but the district court had not issued an order allowing the State to file under
seal. As a result, the motion was not officially filed until November 7. The court held that
the State's motion was timely, and E.M.'s testimony about Berry's other sexual
misconduct would be admissible as propensity evidence.

At trial, E.M. testified that A.H. had told him she wanted to wait to become
sexually active because a man who had lived with her parents for a while had molested
her several times. She told him that one day during her freshman year of high school, her
sisters had gone out to walk the dog, and she was left alone with the man. While her
6

sisters were gone, he forced her to perform oral sex on him, and he also performed oral
sex on her on the bed in the basement. She told E.M. she did not want to do it, but the
man told her there was no point in resisting because no one would believe her and people
would think she was a slut.

E.M. also said A.H. told him that every time she was alone with the man, he
would do something to her. This included forcing her to perform oral sex on him and
digitally penetrating her. The frequency of these incidents eventually slowed down and
stopped after Berry got married.

During E.M.'s testimony, Berry objected twice. First, he objected based on hearsay
because E.M. was relaying statements made to him by A.H. outside court. Then, he
objected because E.M. was referring to several events outside the time span of the
charges without giving Berry prior notice of what the time span would be. The court
overruled both objections.

A.H. testified about the 2012 incident in the basement and the 2013 incident the
night before Berry's wedding. She said she did not consent to any of the sexual contact
with Berry. She admitted she had told E.M. about the 2012 incident, but she denied
giving him details. She also denied telling E.M. that Berry had sexually molested her
several times.

The jury convicted Berry of criminal sodomy, attempted criminal sodomy, and
aggravated indecent liberties with a child arising from the 2012 incident. But it acquitted
him of the attempted aggravated indecent liberties with a child charge arising from the
2013 incident. The district court sentenced Berry to a controlling sentence of 59 months'
imprisonment. Berry appeals.

7

Did the District Court Err in Admitting Evidence of Berry's Other Sexual
Misconduct Under K.S.A. 60-455?

Berry argues the district court erred in admitting E.M.'s testimony. He asserts the
State did not timely file its K.S.A. 2018 Supp. 60-455 motion. He also contends E.M.'s
testimony was not relevant and its prejudicial effect outweighed its probative value. We
will address them in turn.

Standard of Review and Relevant Law

Berry first argues the State did not comply with the timing requirement under
K.S.A. 2018 Supp. 60-455(e). Because this issue requires statutory interpretation, we
have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015); see
also State v. Adkins, No. 104,611, 2011 WL 6382858, at *1 (Kan. App. 2011)
(unpublished opinion) (using unlimited review to determine whether State violated time
requirements under 2009 Supp. K.S.A. 60-455[e]).

Statutory interpretation's most fundamental rule is the legislature's intent governs
if that intent can be determined. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417
(2016). We must first try to determine the legislature's intent through the statute's
language and give words their ordinary meanings. State v. Barlow, 303 Kan. 804, 813,
368 P.3d 331 (2016). When a statute is plain and unambiguous, we do not guess about
the legislative intent behind that language, and we avoid reading something into the
statute that is not readily found there. Barlow, 303 Kan. at 813.

The State Complied with K.S.A. 2018 Supp. 60-455

K.S.A. 2018 Supp. 60-455 governs the admission of evidence about other crimes
or civil wrongs. That statute allows admission of the defendant's other sexual misconduct
8

in trials for certain sex offenses as long as the evidence is relevant and probative. K.S.A.
2018 Supp. 60-455(d). But if the State intends to offer evidence under this statute, "the
prosecuting attorney shall disclose the evidence to the defendant, including statements of
witnesses, at least ten days before the scheduled date of trial or at such later time as the
court may allow for good cause." K.S.A. 2018 Supp. 60-455(e).

Berry argues the State did not timely file its motion under K.S.A. 2018 Supp. 60-
455(e). But that statute's plain language requires the State only to disclose the evidence to
the defense 10 days before trial. At the motion hearing, the State told the district court it
had disclosed a report of E.M.'s interview to Berry several months ago, and the report
contained all the information the State intended to offer at trial. Berry did not challenge
this assertion at the hearing. On that basis, we affirm the district court as right for the
wrong reason. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Harmless Error

Even if the district court had erred in admitting the evidence, any possible error
was harmless. The erroneous admission of evidence is subject to review for harmless
error under K.S.A. 2018 Supp. 60-261. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d
268 (2013). Under that standard, the party benefiting from the error must persuade us that
no reasonable probability exists that the error affected the trial's outcome given the entire
record. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012).

E.M. testified at trial that A.H. told him Berry had molested her on several
occasions. But A.H.'s testimony contradicted his. She denied telling E.M. any details of
what Berry had done. She also denied telling him that Berry had molested her several
times. The jury acquitted Berry of the charges related to the 2013 incident. Based on the
record, no reasonable probability exists that E.M.'s testimony about Berry's other sexual
misconduct affected the verdict.
9


Berry did not Preserve the Argument the Evidence was Irrelevant and More
Prejudicial than Probative.

Next, Berry argues E.M.'s testimony was irrelevant and more prejudicial than
probative. The State responds that Berry has failed to preserve this issue because he did
not object to the evidence on these grounds at trial. K.S.A. 60-404 generally precludes an
appellate court from reviewing an evidentiary challenge absent a timely and specific
objection made on the record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016).
This rule helps the district court avoid trial errors, including the presentation of tainted
evidence. State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009). Any pretrial objection
to the admission or exclusion of evidence generally must be preserved by
contemporaneously objecting at trial. See State v. Holman, 295 Kan. 116, 126-27, 284
P.3d 251 (2012).

During E.M.'s testimony, Berry objected twice. First, he objected based on hearsay
because E.M. was relating statements made by A.H. The court overruled the objection,
finding the State was going to call A.H. to testify later. Berry later objected to lack of
notice about the time frame of the several incidents E.M. was testifying about, saying "I
know we had the 60-455 filed by the State, but my concern now is we're ta[l]king about
multiple acts over a period of time w[h]ere no notice of what he's claiming the time frame
to be." The court overruled the second objection, finding it had already ruled that all prior
incidents were admissible.

So while Berry objected to E.M.'s testimony, he did not object on the grounds that
his testimony was irrelevant or more prejudicial than probative. A defendant cannot
object to the introduction of evidence on one ground at trial then assert another ground on
appeal. State v. Richmond, 289 Kan. 419, Syl. ¶ 4, 212 P.3d 165 (2009). While Kansas
appellate courts have at times declined to strictly apply the contemporaneous objection
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rule under some circumstances, Berry does not argue this exception should apply here.
See, e.g., State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013) (declining to apply
contemporaneous objection rule because both parties requested appellate review of
issue); State v. Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012) (declining to apply
rule because the basis of party's objection was clear from entire record).

K.S.A. 60-404 has long provided:

"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."

The Supreme Court in King emphasized this is a matter of legislative intent:

"Although our past decisions may have relaxed the objection requirement in the
evidentiary context, this practice not only has led to confusion as to the standards that
should be applied on appeal, but also has de-emphasized the role of counsel at trial and
has impaired the gate-keeping function of district courts in this state. [Citation omitted.]
More importantly, this practice of reviewing evidentiary questions when no objection has
been lodged runs contrary to the legislature's clearly stated intent in K.S.A. 60-404." 288
Kan. at 349.

The King court also gave clear directions that we must follow in this case: "From
today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary
claims—including questions posed by a prosecutor and responses to those questions
during trial—must be preserved by way of a contemporaneous objection for those claims
to be reviewed on appeal." 288 Kan. at 349; see State v. Shadden, 290 Kan. 803, 835, 235
P.3d 436 (2010).

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Following the example set out in King, if the admission of the K.S.A. 60-455
evidence in this case was erroneous, Berry, as the party now complaining about its
admission, was obliged to object to its admission when it was offered. With no such
objection in the record, the question is not properly before us.

Are Berry's Convictions for Attempted Criminal Sodomy and Aggravated Indecent Liberties
with a Child Multiplicious?

Berry argues his convictions for attempted criminal sodomy and aggravated
indecent liberties with a child are multiplicious. He asserts both charges arose out of the
same conduct and asks us to vacate his aggravated indecent liberties conviction. The
State responds that Berry's convictions are not multiplicious because they arise under
different statutes with different elements.

Standard of Review and Relevant Law

Multiplicity is the charging of a single offense in several counts of a complaint or
information. State v. Pribble, 304 Kan. 824, 826, 375 P.3d 966 (2016). Because it creates
the potential for several punishments for a single offense, it violates the Double Jeopardy
Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights. 304 Kan. at 826. Multiplicity issues are questions of law
subject to unlimited review. State v. Belt, 305 Kan. 381, 407, 381 P.3d 473 (2016).

The main inquiry in a multiplicity analysis is whether multiple convictions are for
the same offense. State v. Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006). This
inquiry has two parts. First, we must determine if the convictions arise from the same
conduct. If so, we must then determine if there are one or more offenses by statutory
definition. If the convictions arise from the same conduct and constitute only one offense
by statute, the convictions are multiplicious. 281 Kan. at 496.
12


Convictions Arise from Same Conduct

To determine if the charges arise from the same conduct, the factors a court may
consider include "(1) whether the acts occur at or near the same time; (2) whether the acts
occur at the same location; (3) whether there is a causal relationship between the acts, in
particular whether there was an intervening event; and (4) whether there is a fresh
impulse motivating some of the conduct." Schoonover, 281 Kan. at 497. The State asserts
Berry committed aggravated indecent liberties when he placed A.H.'s hand around his
penis, and he committed attempted criminal sodomy when he tried to get A.H. to perform
oral sex on him by saying, "It's just like a Popsicle." It concedes Berry's convictions for
attempted criminal sodomy and aggravated indecent liberties arise from the same
conduct.

Despite the State's concession, Berry's argument ends here. He has not briefed the
second step of the multiplicity inquiry. In fact, he states in his brief that the two charges
are not the same offense. He simply asks us to vacate one of his convictions because the
charges arose out of the same conduct under the Schoonover factors. But this only fulfills
one-half of the multiplicity inquiry. As a result, Berry has waived and abandoned any
argument that his convictions are not the same offense by statute. State v. Arnett, 307
Kan. 648, 650, 413 P.3d 787 (2018).

Convictions Are Not for Same Offense

Still, attempted criminal sodomy and aggravated indecent liberties with a child are
not the same offense by statutory definition. If a multiplicity issue arises from more than
one conviction under a single statute, courts apply the unit of prosecution test.
13

Schoonover, 281 Kan. at 497-98. But if the issue arises from more than one conviction
under different statutes, courts apply the same-elements test. 281 Kan. at 498.

Because Berry's convictions arise under different statutes, we must use the same-
elements test. See K.S.A. 2018 Supp. 21-5504 (criminal sodomy); K.S.A. 2018 Supp. 21-
5506 (aggravated indecent liberties with a child). That test asks: "Does one statute require
proof of an element not necessary to prove the other offense? If so, the statutes do not
define the same conduct and there is not a double jeopardy violation." Schoonover, 281
Kan. at 498.

The State charged Berry with attempted criminal sodomy. See K.S.A. 2018 Supp.
21-5504(a)(3). That subsection defines criminal sodomy as sodomy with a child who is
14 or more years old but less than 16 years old. K.S.A. 2018 Supp. 21-5504(a)(3).
Sodomy is defined in part as "oral contact or oral penetration of the female genitalia or
oral contact of the male genitalia." K.S.A. 2018 Supp. 21-5501(b). And K.S.A. 2018
Supp. 21-5301(a) defines an attempt as any overt act toward the commission of a crime
with the intent to commit the crime but failing to complete the crime.

The State also charged Berry with aggravated indecent liberties with a child. See
K.S.A. 2018 Supp. 21-5506(b)(2)(A). That subsection defines aggravated indecent
liberties as engaging with a child who is 14 or more years old but less than 16 years old
in any lewd fondling or touching of the child or the offender "done or submitted to with
the intent to arouse or to satisfy the sexual desires of either the child or the offender, or
both" without the child's consent. K.S.A. 2018 Supp. 21-5506(b)(2)(A).

Attempted criminal sodomy and aggravated indecent liberties with a child both
require proof of an element the other does not. Attempted criminal sodomy requires an
attempt to make oral contact with the female or male genitalia. Aggravated indecent
liberties with a child requires lewd fondling with the intent to arouse or satisfy the sexual
14

desires of the offender, child, or both without the child's consent. Aggravated indecent
liberties with a child does not require an attempt to make oral contact with the female or
male genitalia, and attempted criminal sodomy does not require the intent to satisfy or
arouse the sexual desires of one or both of the parties without the child's consent. See
State v. Colston, 290 Kan. 952, 972, 235 P.3d 1234 (2010) (finding rape and aggravated
indecent liberties convictions were not multiplicious because rape required proof of
sexual intercourse and aggravated indecent liberties required proof of intent to arouse
sexual desires).

Berry cites State v. Holman, 295 Kan. 116, 284 P.3d 251 (2013) and State v.
Gadbury, No. 102,024, 2011 WL 135019 (Kan. App. 2011) (unpublished opinion), in
which Kansas appellate courts held a defendant's convictions of aggravated criminal
sodomy or aggravated indecent liberties were multiplicious. But both these cases
involved multiple convictions under a single statute, requiring the courts to apply the unit
of prosecution test. See Holman, 295 Kan. at 148-49; Gadbury, 2011 WL 135019, at *12-
13. Thus, these cases are not relevant to Berry's argument.

Berry's convictions may have arisen from the same conduct. But they are different
offenses by statutory definition. Because they are different offenses, Berry's convictions
are not multiplicious.

Did the State Provide Sufficient Evidence to Support Berry's Convictions?

Finally, Berry argues the State did not provide sufficient evidence to support his
convictions. He asserts the State did not show he made an overt act toward the
commission of criminal sodomy. He also generally argues the evidence does not support
any of his convictions because A.H. was not credible, and he only had a limited
opportunity to commit the crime.

15

Standard of Review and Relevant Law

When a criminal defendant challenges the sufficiency of the evidence supporting a
conviction, the standard of review is whether, after reviewing all the evidence in a light
most favorable to the State, this court is convinced a rational factfinder could have found
the defendant guilty beyond a reasonable doubt. State v. Chandler, 307 Kan. 657, 668,
414 P.3d 712(2018). In performing this review, we do not reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations. 307 Kan. at 668.

As noted in the previous issue, to support Berry's criminal sodomy conviction, the
State had to prove (1) Berry made oral contact with A.H.'s genitalia or she had oral
contact with his genitalia, and (2) A.H. was more than 14 years old but less than 16 years
old. K.S.A. 2018 Supp. 21-5504(a)(3). To support his attempted criminal sodomy
conviction, the State had to prove (1) Berry made an overt act toward committing
criminal sodomy; (2) he intended to commit criminal sodomy; and (3) he failed to
commit criminal sodomy. K.S.A. 2018 Supp. 21-5301(a). And to support his aggravated
indecent liberties conviction, the State had to prove (1) Berry fondled or touched A.H.;
(2) he did so with the intent to satisfy his sexual desires, A.H.'s sexual desires, or both;
(3) A.H. was 14 or more years old but less than 16 years old: and (4) A.H. did not
consent to the touching. K.S.A. 2018 Supp. 21-5506(b)(2)(A).

Evidence is Sufficient to Support Attempted Criminal Sodomy Conviction

First, Berry argues the evidence cannot support his attempted criminal sodomy
conviction because it did not show he made an overt act. An overt act "'necessarily must
extend beyond mere preparations made by the accused and must approach sufficiently
near to the consummation of the offense to stand either as the first or subsequent step in a
direct movement toward the completed offense.' [Citation omitted.]" State v. Brown, 306
Kan. 1145, 1163, 401 P.3d 611 (2017). Berry exposed his penis while standing within
16

arm's reach of A.H. and said, "It's just like a Popsicle." These acts are near enough the
commission of criminal sodomy to constitute a first or later step.

Evidence is Sufficient to Support All Convictions

Berry also generally argues that the State did not provide sufficient evidence to
support any of his convictions. The State's case relied mainly on A.H.'s credibility, and
Berry points to evidence he believes calls her credibility into question. He notes she
delayed reporting the incidents. He adds that her prior statements about the 2012 incident
did not mention that Berry had touched her breasts or that her sisters took the dog for two
walks. And that her testimony was also inconsistent with E.M.'s testimony on some
points. But as noted, we do not determine witness credibility. A.H.'s testimony was not so
incredible that no reasonable fact-finder could find Berry guilt beyond a reasonable
doubt. See State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Berry also argues that his opportunity to commit the crime was limited. He asserts
he did not stay at A.H.'s home for long and, while he was staying there, he often left the
home to run errands, such as picking up his girlfriend from work or applying for jobs. But
again, we do not reweigh evidence. Instead, we look at the evidence in the light most
favorable to the State. In that light, the evidence was enough to support Berry's
convictions.

A.H. testified at trial that Berry had her lie down on his bed, he touched her
breasts, he performed oral sex on her, and he placed her hand around his penis and told
her, "It's just like a Popsicle." At the time, she was 14 years old and she did not consent to
the contact. She made similar statements about the incident to E.M., McBride, her
parents, and police, who all testified at trial. She explained she delayed reporting because
she was afraid. While she did not tell anyone about the 2013 incident before her police
17

interview, the jury acquitted Berry of the charges arising from that incident. The State
therefore provided sufficient evidence to support Berry's convictions, and we affirm.

Affirmed.