State v. McClendon

1
NOT DESIGNATED FOR PUBLICATION

No. 113,703

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CODY A. MCCLENDON,
Appellant.


MEMORANDUM OPINION

Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed June 10, 2016.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: In this direct appeal, Cody A. McClendon challenges his jury
conviction of one count each of aggravated indecent liberties with a child and indecent
liberties with a child. He also challenges the use of his criminal history to determine his
sentence. First, he claims he is entitled to a new trial because the trial court erroneously
admitted unduly prejudicial evidence of his prior sex-related convictions. McClendon
failed to preserve the issue below by failing to make a contemporaneous objection to its
admission at trial. McClendon's argument as to the use of his criminal history at
sentencing fails in light of our courts' precedent. Accordingly, we affirm.
2
FACTS

The State charged McClendon with one count each of aggravated indecent
liberties with a child and indecent liberties with a child based on two incidents involving
his interactions with then 14-year-old C.E. on 2 separate days in March 2013. We find it
unnecessary to set out the facts involving McClendon's crimes since the sufficiency of the
evidence is not an issue in this appeal.

At issue are the motions in limine filed by both parties regarding whether the State
would be allowed to admit evidence that McClendon had prior convictions of aggravated
indecent liberties with a child and indecent liberties with a child. See K.S.A. 2015 Supp.
60-455(d) ("Except as provided in K.S.A. 60-445 . . . , in a criminal action in which the
defendant is accused of a sex offense . . . , evidence of the defendant's commission of
another act or offense of sexual misconduct is admissible, and may be considered for its
bearing on any matter to which it is relevant and probative."). At the close of a pretrial
hearing on those motions, the district court preliminarily ruled the State could bring in
that evidence at trial because it was relevant and its probative value outweighed its
potential for causing undue prejudice. See State v. Prine, 297 Kan. 460, 478, 303 P.3d
662 (2013) (leaving "to another day" question of whether necessity of weighing probative
value of prior crimes evidence against threat of undue prejudice "persists under" K.S.A.
2015 Supp. 60-455[d]); accord State v. Boysaw, 52 Kan. App. 2d 635, Syl. ¶¶ 3, 6, 7, ___
P.3d ___, 2016 WL 1391927 (Kan. App. 2016), petition for rev. filed May 6, 2016.

The trial court also ruled the State could not bring in evidence of McClendon's
other convictions of nonsex crimes, which the State conceded were irrelevant. At the
close of the State's evidence, the trial court admitted certified copies of the journal entry
of McClendon's prior sex crime convictions after McClendon's counsel stated he had no
objection. McClendon then presented his evidence and rested.

3
The jury found McClendon guilty as charged. The presentence investigation report
revealed McClendon had a criminal history score of D. His prior sex crime convictions
also resulted in his designation as a persistent sex offender. See K.S.A. 2015 Supp. 21-
6804(j) ("sentence of any persistent sex offender whose current convicted crime carries a
presumptive term of imprisonment shall be double the maximum duration of the
presumptive imprisonment term"). Thus, the trial court imposed consecutive sentences of
200 months' imprisonment for aggravated indecent liberties with a child and 68 months'
imprisonment for indecent liberties with a child. McClendon appeals.

ANALYSIS

Admission of Prior Convictions of Sex Offenses

McClendon seeks a new trial because the trial court admitted evidence of his prior
sex convictions. The State responds that McClendon's failure to contemporaneously
object to the admission of the evidence at trial precludes us from reaching the merits of
his arguments. We agree.

K.S.A. 60-404 governs the necessity of a contemporaneous objection to preserve
an evidentiary issue for appellate review. More specifically, the statute directs:

"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." K.S.A. 60-404.

See also State v. King, 288 Kan. 333, 341-42, 349, 204 P.3d 585 (2009) (discussing
importance and goals of contemporaneous objection mandated by K.S.A. 60-404).

4
McClendon acknowledges this statutory contemporaneous-objection rule but
argues it should not bar appellate review where its purpose is satisfied by the trial court's
consideration of the admissibility of the evidence in ruling on a pretrial motion in limine.
That argument, however, disregards the temporary protective nature of rulings in limine
and the fact that such rulings are subject to change during trial. State v. Breedlove, 295
Kan. 481, 494, 286 P.3d 1123 (2012). That argument is also contrary to Kansas Supreme
Court precedent, which we are duty bound to follow. See State v. Houston, 289 Kan. 252,
270, 213 P.3d 728 (2009) (holding that when a court denies a motion in limine seeking to
exclude evidence at trial, the moving party must still object to the introduction of
evidence at trial in order to preserve challenge to its admission for appeal); State v.
Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ____ (September
14, 2015) (recognizing Court of Appeals is duty bound to follow Kansas Supreme Court
precedent absent some indication of intent to depart therefrom).

Further, as another panel of this court recently recognized, barring a defendant
from challenging the admission of evidence on appeal in the absence of a
contemporaneous objection at trial is especially appropriate where, as here, the trial court
partially grants an order in limine. Without a contemporaneous objection, we are left to
"guess[ ] about whether [the defendant] failed to object because he was satisfied with the
district court's partial grant of his motion in limine or whether he wished to continue to
argue that the evidence was entirely inadmissible." State v. Moellman, No. 111,908, 2015
WL 5036755, at *4 (Kan. App. 2015) (unpublished opinion). Additionally, McClendon's
counsel agreed to the document's admissibility by stating he had "no objection."

Accordingly, McClendon's challenge to the admissibility of the evidence of his
prior sex crime convictions was not preserved for appeal.



5
Use of Criminal History in Sentencing

McClendon also argues the use of his prior convictions to enhance his sentence
without requiring those convictions be proved to a jury beyond a reasonable doubt
violated his rights under the Sixth and Fourteenth Amendments to the United States
Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000). McClendon acknowledges that our Supreme Court
rejected this same argument in State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002),
and its progeny of cases, and raises it solely to preserve the issue for federal review.

Affirmed.