State v. Edmonds

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NOT DESIGNATED FOR PUBLICATION

No. 118,759

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEREK J. EDMONDS,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed July 5, 2019.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: Derek J. Edmonds appeals from his convictions for aggravated
battery and abuse of a child. On appeal, Edmonds contends that the district court erred
when it failed to give a unanimity instruction. Additionally, Edmonds contends that the
district court erred when it denied his request to redact portions of a video of an interview
that he gave to a police officer. Finally, Edmonds contends that the district court erred in
imposing his sentence. For the reasons set forth in this opinion, we affirm Edmonds'
convictions and sentence.

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FACTS

On June 8, 2016, Edmonds and his wife had a baby girl. Because the baby was
born prematurely, she remained hospitalized at Overland Park Regional Medical Center
for approximately 6 weeks. While in the hospital, an ultrasound of the baby's head
revealed some bleeding in the brain. The hemorrhage was deep inside the baby's brain
and was evidently not of the same type caused by trauma. At the time of the baby's
discharge from the hospital, a neonatologist—Lisa M. Castro, M.D.—examined the baby
and found the results to be normal. However, due to the premature birth, the baby
required follow-up visits with health care providers to make sure that she was meeting
developmental milestones.

After returning home to Lawrence, Edmonds and the baby's mother took turns
taking care of the baby and her older brother. Although family friends would watch the
children occasionally, their parents usually provided care for them. On weekdays,
Edmonds would normally watch the children during the day because he worked at night.
In turn, the children's mother would normally watch the children at night because she
worked during the day.

During the week of September 12, 2016, the baby struggled with constipation, was
fussy, had difficulty sleeping, and often refused to eat. On September 15, 2016, the
mother left for work around 9 a.m. and Edmonds watched the children. When the mother
stopped by during her lunch break, she heard the baby crying as she entered the
apartment. A family friend had also been at the apartment that morning but had evidently
left by the time the mother returned home.

The mother saw Edmonds holding the baby around the ribs and holding her close
to his face. The baby was crying and the mother could tell that Edmonds was frustrated.
The mother saw that Edmonds was not supporting the baby's neck and was yelling at
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her—saying "What do you need?" and "What do you want?" The mother also saw
Edmonds shake the baby back and forth "really fast" for ten to fifteen seconds as she
continued to cry. Concerned, the mother took the baby from Edmonds and sat down on
the couch. After Edmonds calmed down, the mother returned to work, leaving the baby
with her husband.

When the mother returned home around 5:30 p.m., Edmonds yelled at her that he
was going to be late for his night shift. About an hour later, the mother checked on the
baby and noticed that she was "twitching" as if she was having a seizure. The mother
called Edmonds and he told her that he had not noticed anything unusual about the
constipation. Shortly thereafter, the baby had another seizure. After visiting Edmonds at
work, the parents decided to take the baby to Lawrence Memorial Hospital. In route, the
baby had another seizure.

An emergency department nurse, L'Erin Ogle, took the baby's vital signs and
found them to be "abnormal" and found the baby to be inconsolable. In particular, Nurse
Ogle found that the baby had a "[f]ast heart rate, [and] respiratory rate." The nurse also
noticed that the baby refused to eat. In addition, Nurse Ogle noted periods where the baby
would remain stiff and lacked focused eye movements while in the emergency room.

Dr. Anthony Goetting—an emergency medicine physician—examined the baby
while she was at Lawrence Memorial. Dr. Goetting was informed that the baby's parents
had brought her in because of "seizure activity" on the right side. Dr. Goetting noted that
the mother was "tearful" and "very concerned" about the baby. He also noted that
Edmonds was "quiet" and let the mother do "most of the speaking." About 45 minutes
after arriving at Lawrence Memorial, Edmonds took the older child home.

Upon examining the baby, Dr. Goetting found that her eyes deviated to the right.
Although the doctor knew that "tonic eye deviation" can be a symptom of pressure, the
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parents told him that her eyes deviated to the right "all along." According to Dr. Goetting,
this statement caused him to be concerned. The doctor also noticed "increased
intercranial pressure," which was evidenced by the baby's anterior fontanelle—or soft
spot—being "firm and bulging." Dr. Goetting concluded that the situation was "serious"
and contacted Children's Mercy Hospital in Kansas City, Missouri.

While Dr. Goetting waited for a specialist team to arrive from Children's Mercy,
he ordered several lab tests and x-rays. The radiologist who read the x-rays called Dr.
Goetting to tell him, "there's something serious going on . . . . Looks like there's an acute
subdural hemorrhage on the right posterior brain and some hemorrhage left front brain."
According to Dr. Goetting, this meant that two areas of the baby's brain had bled and that
this was a potentially life-threatening condition. In the emergency room, the baby
continued to have an increased heart rate and developed problems maintaining an
appropriate oxygen saturation. Moreover, as the baby's health continued to decline, she
became quieter.

In the early morning hours of September 16, 2016, the baby was transported to
Children's Mercy Hospital by helicopter. At Children's Mercy, it was discovered that the
baby also had one or more fractured ribs. It was estimated by the doctors at Children's
Mercy that the rib fractures occurred about one week earlier. The mother called Edmonds
at some point that day to report on the baby's condition. During the conversation,
Edmonds told her that it was possible that he caused the injuries to the baby. Although
the baby was admitted to Children's Mercy, Edmonds did not visit her there.

Dr. Sara Kilbride—a pediatrician at Children's Mercy Hospital—also evaluated
the baby. Dr. Kilbride serves as a member of the Section of Child Abuse and Neglect
(SCAN) team at, which attempts to identify prevent, and treat child abuse. Dr. Kilbride
evaluated the baby on the morning of September 16, 2016. She found that the baby's soft
spot "felt full" and too "elevated." Also, Dr. Kilbride found that the baby "had a red mark
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on the right side of her tongue" and a "circular bruise on her right hip." In addition, she
reviewed several tests and found evidence of multiple retinal hemorrhages in the baby's
eyes. According to Dr. Kilbride, these hemorrhages evidenced "an acceleration or
deceleration type of movement" such as the baby's "head going forward and backward."

A skeletal survey showed a rib fracture that was currently healing. Dr. Kilbride
estimated the fracture was between 7 to 10 days old. The doctor believed that the fracture
was likely from "a violent squeezing, [or] a violent impact." A second test revealed a
skull fracture that split into two fractures on the back of the baby's head. Dr. Kilbride was
unsure when the skull fracture occurred, but stated that it could have occurred the day
that the baby was brought to the hospital. Moreover, a CT scan showed that both sides of
the baby's brain had bleeding. Neurosurgeons at Children's Mercy performed three
surgeries to drain blood from the baby's brain and to install a shunt.

Ultimately, Dr. Kilbride believed that the baby's injuries were likely caused by
"trauma" consistent with shaking or whiplash. In Dr. Kilbride's opinion, the brain and
retinal hemorrhaging could have been fatal. She also opined that the baby's injuries
would result in a continued need for physical and occupational therapy. Also, in Dr.
Kilbride's opinion, the injuries would likely delay the baby's physical development.

As a result of the concerns expressed by the health care providers at Children's
Mercy, a report of possible child abuse was made. On September 16, 2016, Detective
Randy Glidewell of the Lawrence Police Department obtained and executed a search
warrant for Edmonds' apartment. During the search, Detective Glidewell found an
"onesie" by the bathtub covered in vomit.

Later that day, Detective Lance Flachsbarth interviewed Edmonds. Detective
Flachsbarth taped the interview. On September 23, 2016, Edmonds was interviewed for a
second time. This interview was also recorded. On September 26, 2016, the State of
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Kansas charged Edmonds with abuse of a child in violation of K.S.A. 2016 Supp. 21-
5602(a)(2). Subsequently, the State amended the complaint to add a second charge of
aggravated battery in violation of K.S.A. 2016 Supp. 21-5413(b)(2)(A).

A four-day jury trial commenced on May 15, 2017. At trial, the State presented the
testimony of eight witnesses. In addition, the State introduced 15 exhibits that were
admitted into evidence. The exhibits included the videos of Detective Flachsbarth's
interviews with Edmonds. Both videos were shown to the jury. Although the defense
introduced two exhibits that were admitted into evidence, it did not call any witnesses to
testify.

In addition to the health care providers who had seen the baby at Lawrence
Memorial Hospital and Children's Mercy Hospital following the incident on September
15, 2016, the State also called Dr. Keith Warren as a witness. Dr. Warren is an
ophthalmologist and retina specialist who had seen the baby several times after she was
born. Comparing scan's of the baby's eyes taken while she was at Children's Mercy in
September 2016 with scans he had taken prior to that time, Dr. Warren opined that there
were blotches that had not previously been present, that the blotches were "abnormal,"
and that the blotches indicated "blood in the . . . retina." According to Dr. Warren, a
shaken baby experiences increased pressure on the brain, which is transmitted to blood
vessels. If these blood vessels burst, hemorrhages are visible in the retina.

After deliberation, the jury found Edmonds guilty of both charges. Following the
jury trial, Edmonds filed a motion to dismiss. At a hearing held on July 28, 2017, the
district court first considered the motion to dismiss. At the hearing, Edmonds' counsel
argued:

"[T]he charge of abuse of a child and aggravated battery were the same thing. The
evidence that was presented on the two counts was the same by the witnesses. . . .
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"And the defense's point is that the distinctions without a difference between the
two counts as alleged and as charged as the evidence was presented and as the
instructions were presented to the jury that you just simply can't divvy up the two. The
one difference, as the State pointed out, is that the State has to prove the additional
element in the abuse of a child, that the child was, in fact, under the age of 18. But that
simply makes it, in our view, the dominant charge. If you're looking at the two being the
same, it's the more specific charge, because it does require to prove the child was under
the age of 18.

"But, otherwise, there is no way—given the way that the jury was instructed and
as the jury found and as the evidence was presented, there is no way a person could be
guilty of the aggravated battery without also being guilty of abuse of a child, assuming
that the victim was under the age of 18."

Applying the plain language of K.S.A. 2016 Supp. 21-5602(c), the district court
found that "the . . . statute . . . specifically states that a person who violates the provisions
of this section may also be prosecuted for, convicted of, and punished for any form of
battery or homicide." Accordingly, the district court denied Edmonds' motion to dismiss
and proceeded to sentencing.

The district court sentenced Edmonds to 34 months of incarceration and
postrelease supervision of 24 months for his abuse of a child conviction. For the
aggravated battery conviction, the district court imposed a concurrent 34 month sentence.
Thereafter, Edmonds timely appealed.

ANALYSIS

Three issues are presented on appeal. First, whether the district court committed
clear error in failing to give a unanimity instruction. Second, whether the district court
erred in denying Edmonds' request to redact one of the videos because it allegedly
contained prejudicial and inadmissible evidence. Third, whether the district court violated
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Edmonds' constitutional rights as set forth in Apprendi v. New Jersey when it sentenced
him to an aggravated sentence without requiring the State to prove aggravating factors to
a jury.

Unanimity Instruction

Edmonds first asserts that the district court erred when it failed to provide a
unanimity instruction. Although Edmonds admits that "the State told the jury to focus on
the act of shaking in its closing arguments," he argues that the jury may have relied on
two separate acts in convicting him of aggravated battery. Specifically, Edmonds argues
that the jury could have relied on the evidence regarding the shaking of the baby on
September 15, 2016, or evidence regarding the fracturing of the baby's ribs
approximately a week before the shaking incident.

In his brief, Edmonds candidly admits that he did not raise this issue before the
district court. As such, we review this issue under a clearly erroneous standard. See
K.S.A. 2016 Supp. 22-3414(3); State v. Brown, 306 Kan. 1145, 1164, 401 P.3d 611
(2017). Under this standard of review, we first determine whether the instruction was
legally and factually appropriate, employing an unlimited review of the entire record. If
error is found, the defendant has the burden to firmly convince this court that the jury
would have reached a different result had there been no error. 306 Kan. at 1164. The
party claiming a clear error has the burden to demonstrate prejudice. State v. McLinn, 307
Kan. 307, 318, 409 P.3d 1 (2018).

A unanimity instruction is required "when the State charges one crime but relies
on multiple acts to support that one crime." State v. King, 297 Kan. 955, 978, 305 P.3d
641 (2013) (quoting State v. Sanborn, 281 Kan. 568, 569, 132 P.3d 1277 [2006]). In such
instances, "a unanimity instruction [is required], or the State must elect the particular act
it relies on for conviction." (Emphasis added.) 297 Kan. at 978. Here, Edmonds
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recognizes that "the State told the jury to focus on the act of shaking" during closing
arguments. Nevertheless, he argues that "the State implicitly undid any election of the
specific act of shaking" by presented evidence regarding the rib fracture.

While the aggravated battery instruction given by the district court stated:

"The defendant is charged with aggravated battery. The defendant pleads not
guilty.
To establish this charge, each of the following claims must be proved:
1. The defendant recklessly caused great bodily harm to [the child].
2. This act occurred on or about the 15th day of September, 2016 in
Douglas County, Kansas.

A defendant acts recklessly when the defendant consciously disregards a
substantial and unjustifiable risk a result of the defendant's actions will follow. This act
by the defendant disregarding the risk must be a gross deviation from the standard of care
a reasonable person would use in the same situation."

Although the instruction did not list the conduct that was alleged to constitute
aggravated battery, it did specifically state that the act complained of occurred on
September 15, 2016. As the record reflects, that is the date of the shaking incident. The
jury instructions did not mention any act that occurred prior to that time.

Moreover, the State was clear during its closing argument that the shaking of the
baby was the act alleged to constitute both aggravated battery and abuse of a child. In
fact, the State began its closing argument by saying: "May it please the court. 'Yes, I did
shake her. I know for sure I did shake her. It was five seconds, ten max.' That's what
[Edmonds] told Detective Flachsbarth could be the reason his daughter had a serious
brain injury on September 15, 2016."

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Throughout its closing argument, the State continued to focus on shaking of the
baby:

 "And what did the evidence show you the defendant did? The evidence has
shown you that he took that frustration out on [a] three-month-old [baby] by
violently shaking her for five to ten seconds max. And based on that, the State
believes that the evidence has shown beyond a reasonable doubt that [Edmonds]
committed the crimes of abuse of a child and aggravated battery."
 "What did the evidence show you? That at 1:00 [PM], [Edmonds] admits that he
shook his daughter for five to ten seconds. It is what [Edmonds] told Detective
Flachsbarth in this interview on the following day. He admitted that at 1:00
[PM] he was frustrated. And instead of doing what the video told him; set your
baby down and walk away, he shook his baby and then walked away."
(Emphases added.)
 "The evidence has shown beyond a reasonable doubt that [Edmonds] shook his
daughter, causing great bodily harm to [the baby]."
 "And, ladies and gentlemen, [Edmonds] admitted to shaking [the baby]. He even
demonstrated and you had an opportunity to view that with the doll. He told
Detective Flachsbarth that it was a hard shaking and that it was for five seconds,
ten max."

The State also emphasized that it was the shaking of the baby when speaking
about the aggravated battery charge:

"Again, the State believes the evidence has shown that the action of shaking
caused the great bodily harm. . . . He talked about he knew what could happen if you
shook a baby. You had to watch a video about it before leaving the hospital. [Edmonds]
knew and disregarded the risk of shaking his daughter on September 15, 2016. And
because he disregarded that risk, he caused great bodily harm to [the baby]. And because
of that, the State is asking that you find [Edmonds] guilty of abuse of a child and
aggravated battery." (Emphases added.)


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Although Edmonds claims that the State inadvertently "undid" its election of
specific conduct, we do not find this to be the case based on our review of the closing
argument. Rather, we find that the State elected the shaking of the baby on September 15,
2016, as the basis for both the abuse of a child and aggravated battery charges.
Furthermore, we find that the jury instructions expressly identified September 15, 2016—
the date of the shaking incident—as the date of the aggravated battery. As such, we do
not find that Edmonds has shown that the failure to give a unanimity instruction was
erroneous. In addition, we do not find that Edmonds has shown—much less firmly
convinced us—that the jury would have reached a different result even if the district court
had erred in failing to give a unanimity instruction.

Failing to Redact Video

Next, Edmonds contends that the district court erred by admitting the video of
Detective Flachsbarth's interview with Edmonds on September 16, 2016, without
redaction of certain statements made by the detective during the interview. In particular,
Edmonds objected to those portions of the video in which Detective Flachsbarth
explained the baby's injuries to Edmonds and gave his thoughts on possible theories
regarding the cause of the injuries. At trial, Edmonds objected to allowing the jury to hear
these statements by the detective on the grounds that they were prejudicial and improper
opinion testimony.

District courts have broad discretion as to whether to allow a witness to offer his
or her opinion on a matter. State v. Lowrance, 298 Kan. 274, 293, 312 P.3d 328 (2013).
Under K.S.A. 2016 Supp. 60-456(a), a lay witness may render an opinion if it is
rationally based on the witness' perception, is helpful to understanding the witness'
testimony, and is not based on scientific or technical knowledge. As long as the opinion
testimony satisfies these criteria, it is admissible even if "it embraces the ultimate issue or
issues to be decided by the trier of the fact." K.S.A. 2016 Supp. 60-456(d). If the district
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court admits opinion testimony, it must be "deemed to have made the finding requisite to
its admission." K.S.A. 2016 Supp. 60-456(c); see State v. Sasser, 305 Kan. 1231, 1244,
391 P.3d 698 (2017).

Here, a review of the video reveals that Detective Flachsbarth repeatedly told
Edmonds that he was not a doctor. Rather, the detective told Edmonds that he was stating
his personal opinion based on what the health care providers who treated the baby had
reported to law enforcement and on his experience as a law enforcement officer and
father. During the interview, Detective Flachsbarth told Edmonds:

 "What I will tell you is that I am not a doctor by any stretch of the imagination.
I'm a law enforcement officer. . . . There are people that go to school for years
and years and years and they become physicians. On top of that, there are certain
physicians that specialize in one thing and one thing only and that is child care.
They treat children's injuries. . . ." (Emphasis added.)

 "Kind of what you've explained to me about how you think these injuries could
happen, I will tell you right now. After having done this for 25 years, and I will
tell you that earlier in my career I specialized in child investigations—that would
be the physical and sexual abuse of children—so I've had quite a bit of training in
that, . . . and what I will tell you is that when you're talking about infants,
especially the age of [this baby]—the thing about infants that age, and I hate to
say this, but it's kind of true, is they're very pliable. In other words, it takes—
they're very resilient to a lot of different things, and I think that's God's way of
making sure that the species continues is that babies are fairly hearty. It's like a
car. If you put oil and gas in, the engine will run forever. Babies are kind of the
same way. If you give them food and water, they'll live, you know what I mean?
So what I'm telling you is that it takes a great deal of force to cause the type of
injuries we're talking about. (Emphasis added.)

 "What you're describing to us, and again, I'm not a doctor, what is being
described to me is that this is a multilayer brain bleed. And what the doctors there
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have told us is that it takes a great deal of force to cause this injury."(Emphases
added.)

 "My thought is this—and this is just me—the type of injuries that [the baby] has
are usually caused in one of two ways. One, is blunt force trauma. . . . And what
we look for blunt force trauma is a crushing blow. . . The other way that
commonly happens is through shaken baby syndrome." (Emphasis added.)

Although the better practice would have been to redact the portions of video to
which Edmonds objected prior to trial, we do not find that the district court abused its
discretion in admitting the unreacted video into evidence. In other words, we cannot say
that no reasonable district judge would have reached the same conclusion as the district
judge in this case regarding the admissibility of the opinion testimony of Detective
Flachsbarth that was based on his experience as a law enforcement officer or relating to
Edmonds what the health care providers at Children's Mercy had reported.

Moreover, in light of the other evidence presented at trial, we do not find that the
admission of this opinion testimony was unduly prejudicial to Edmonds. Unlike State v.
Elnicki, 279 Kan. 47, 57, 105 P.3d 1222 (2005), in which the Kansas Supreme Court held
that it was error for a detective's comments on the defendant's credibility during a taped
interview to be played to the jury, Detective Flachsbarth did not call Edmonds a liar or
use similar words. As our Supreme Court recognized, Kansas law indicates an "absolute
prohibition" against one witness testifying on another witness' credibility. 279 Kan. at 53.
In such cases, a district court "has no discretion on whether to allow a witness to express
an opinion on the credibility of another witness; such evidence must be disallowed as a
matter of law." 279 Kan. at 53-54.

Regardless, even if it was error to admit the opinions expressed by Detective
Flachsbarth in the video, any such error committed by the district court would be
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harmless. In State v. Ingham, 308 Kan. 1466, 1476, 430 P.3d 931 (2018), the Kansas
Supreme Court held:

"If the error infringes upon a right guaranteed by the United States Constitution, the error
may be declared harmless where the party benefitting from the error proves beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict. [State v.] Ward, 292 Kan. 541, Syl. ¶ 6 [256 P.3d 801
(2011)]."

However, if the error does not implicate a constitutional right, an error by the
district court may be declared harmless when the benefitting party demonstrates there is
"no reasonable probability that the error affected the outcome of the trial in light of the
entire record." State v. Moyer, 306 Kan. 342, 359, 410 P.3d 71 (2017); see K.S.A. 2018
Supp. 60-261.

Based on our review of the record on appeal, we find that any error relating to the
failure to redact the video was harmless under either the constitutional or the state
standard. In fact, we find the evidence presented by the State against Edmonds to be
overwhelming. Of particular significance is the fact that Edmonds admitted to his wife
and to the police that he had shaken the baby. He even demonstrated to the police—using
a doll—how he had shaken the baby. Furthermore, he admitted that he knew the dangers
of shaking a baby.

Multiple medical experts testified regarding the significant injuries suffered by the
baby. In addition, a number of medical records where entered into evidence at trial,
including CT scans, MRI imaging, and skeletal surveys. Likewise, multiple medical
experts testified regarding a causal connection between shaking an infant and the type of
injuries from which this baby suffered. In particular, Dr. Kilbride from the SANE
program at Children's Mercy testified at trial that the baby's injuries were consistent with
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"an acceleration or deceleration type of movement or motion . . . like a head going
forward and backward." Ultimately, Dr. Kilbride believed that the baby's injuries were
likely caused by "trauma" consistent with shaking or whiplash.

Accordingly, we conclude beyond a reasonable doubt that the error complained of
did not affect the outcome of the trial in light of the entire record.

Alleged Apprendi Violation

Finally, Edmonds contends that the district court sentenced him "to the aggravated
number in [the] sentencing guidelines grid box for both convictions without submitting
any aggravating factors to a jury." Specifically, he asserts that the district court violated
his constitutional rights in the manner proscribed by Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Although Edmonds recognizes that the
Kansas Supreme Court resolved this issue in State v. Johnson, 286 Kan. 824, 849-52, 190
P.3d 207 (2008), he contends that the case was wrongly decided.

In Johnson, our Supreme Court analyzed the text of K.S.A. 21-4704(e)(1)—which
is now recodified as K.S.A. 2018 Supp. 21-6804—and concluded that it "does not require
a sentencing judge to cite to an aggravating or mitigating fact when determining which
presumptive sentence to impose." 286 Kan. at 849. Moreover, our Supreme Court
explained "that the legislature did not intend that specific findings must be placed on the
record when the judge stays within the presumptive sentencing range, even if the longest
term is imposed." 286 Kan. at 849. The Johnson court concluded that a district court has
the "discretion to sentence a criminal defendant to any term within the presumptive grid
block" and found no violation of the Sixth and Fourteenth Amendments to the United
States Constitution or of the holding in Apprendi. 286 Kan. at 851.

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Our court is duty bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We find no indication that our Supreme
Court is departing from Johnson. Thus, we conclude that the district court did not err in
sentencing Edmonds.

Affirmed.
****

BUSER, J., concurring: I concur in the panel's holding which affirms Edmond's
convictions and sentences. I write separately because I would find the district court's
admission of Detective Lance Flachsbarth's unredacted interviews of Edmonds was
erroneous.

As detailed by my colleagues, during the interviews, Detective Flachsbarth
expressed numerous, lengthy, and detailed opinions regarding the cause and severity of
the injuries to the baby. For example, after acknowledging that he was not a medical
doctor, the detective informed Edmonds that the baby had sustained "a multilayer brain
bleed," and the way that "commonly happens is through shaken baby syndrome." In
short, without redaction or a limiting instruction, the jury improperly heard unsworn
evidence from the detective that had all the indicia of a medical opinion on the critical
issues of causation and the severity of the baby's injuries.

Under K.S.A. 2016 Supp. 60-456(b), if "scientific, technical or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in
issue, a witness who is qualified as an expert by knowledge, skill, experience, training or
education may testify thereto in the form of an opinion" if certain conditions are met.
(Emphasis added.) As is readily apparent, the detective was never qualified as an expert
17

in medical science and admitted it during the interview. Quite simply, Detective
Flachsbarth was not qualified as an expert to opine regarding medical matters.

Under K.S.A. 2016 Supp. 60-456(a), a lay witness may render an opinion if it is
rationally based on the witness' perception, is helpful to understanding the witness'
testimony, and is not based on scientific or technical knowledge. See State v. McFadden,
34 Kan. App. 2d 473, Syl. ¶ 5, 122 P.3d 384 (2005) ("[A] lay witness is not competent to
provide reliable testimony about medical matters beyond the common knowledge of
laypersons, or those [matters] that are not readily apparent such as medical diagnoses or
the effects of a possible medical condition."). Once again, the opinions expressed by the
detective involved medical science and, by statute, were inadmissible as lay opinions.

Of course, Detective Flachsbarth's opinions which he expressed during the
interviews were obviously designed not to provide expert testimony but to persuade
Edmonds to admit to physical actions that injured the baby. While such persuasion may
be permissible in the context of encouraging admissions by suspects during law
enforcement interviews, without redaction or a limiting instruction, a jury may
erroneously view such claimed expertise as substantive evidence to prove the critical
elements of causation or great bodily harm at trial.

To be clear, as fully and carefully analyzed by my colleagues, I agree that in this
case the district court's error was harmless and, therefore, not reversible. My concern is
that in another one of these difficult cases, where the defendant does not essentially
acknowledge his wrongdoing, and the expert testimony is not so compelling and
uncontroverted as in this case, the erroneous admission of a similar recorded interview
may constitute reversible error.