Waisner v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,799

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHRISTOPHER L. WAISNER,
Appellee,

v.

STATE OF KANSAS,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed February 2, 2018.
Affirmed.

Michael F. Kagay, district attorney, Jodi Litfin, deputy district attorney, and Derek Schmidt,
attorney general, for appellant.

Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for
appellee.

Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.

MALONE, J.: The State of Kansas appeals the district court's order vacating
Christopher L. Waisner's convictions of several off-grid sex offenses and other crimes
and ordering a new trial. The district court issued this order after holding an evidentiary
hearing on Waisner's motion filed under K.S.A. 2016 Supp. 60-1507, finding that he
received ineffective assistance of trial counsel. We have jurisdiction to consider the
State's appeal pursuant to K.S.A. 2016 Supp. 60-1507(d) and K.S.A. 2016 Supp. 22-
3602(b)(4). For the reasons stated herein, we affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Waisner was convicted of various sex crimes in Shawnee County District
Court. The underlying facts relating to the criminal case were summarized by this court
in Waisner's direct appeal:

"This case involves allegations of sexual abuse lodged against Waisner by his
daughter, T.G. Specifically, T.G. alleged that when she lived with Waisner during a
period between May 2008 and January 2009 (while she was 11 and 12 years old), she
unwillingly participated in various sexual acts initiated by Waisner, including: oral sex,
digital penetration, slight penile penetration, penetration with a dildo, and various
manners of lewd fondling or touching. T.G. eventually reported the allegations of abuse
to her mother, and an investigation ensued.
"The investigation of T.G.'s allegations culminated in the State filing four
charges against Waisner: rape of a child under 14 years of age; aggravated indecent
liberties with a child; aggravated sodomy with a child under the age of 14 years; and,
attempted rape of a child under the age of 14 years.
"The first trial on these charges resulted in a mistrial due to a hung jury. A
second jury, however, found Waisner guilty as charged after deliberating for less than a
day following an almost 5-day trial. Waisner testified in the first trial but did not testify in
the second trial." State v. Waisner, No. 107,728, 2013 WL 3970177, at *1 (unpublished
opinion) (Kan. App. 2013), rev. denied 299 Kan. 1274 (2014).

On April 10, 2015, Waisner, represented by new counsel, filed a motion for relief
under K.S.A. 2016 Supp. 60-1507. In a memorandum in support of his motion, Waisner
raised four claims of ineffective assistance of counsel. First, Waisner claimed that his
trial attorney was ineffective for failing to challenge the State's use of prior consistent
statements made by T.G. about the alleged sexual abuse. Second, Waisner claimed that
his trial counsel was ineffective for failing to object to the testimony of two experts who
testified beyond their qualifications and commented on T.G.'s credibility. Third, Waisner
claimed that his trial counsel failed to adequately investigate issues relating to T.G.'s
credibility. Finally, Waisner claimed that the prosecutor's closing arguments contained
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several flagrant instances of misconduct to which trial counsel did not object and which
appellate counsel failed to raise on appeal.

The district court held an evidentiary hearing on June 22-23, 2016. The judge who
presided over the hearing was the same judge who had presided over Waisner's jury trial
in the criminal case. Waisner's trial counsel, Kevin Cook, testified at the hearing. Cook
testified that the theory of defense at both trials was to highlight that T.G.'s allegations
had changed throughout the case and were becoming exaggerated; therefore, T.G. was
not a credible witness. In addition, the defense challenged the investigation of the police
officers as ineffective or incomplete based on the officers' failure to obtain T.G.'s phone
records to confirm her testimony or to have T.G. undergo a physical exam.

Cook also testified about his understanding of the law on the subject of expert
testimony in child sex abuse cases. In particular, Cook explained his understanding of
this court's decision in State v. Gaona, 41 Kan. App. 2d 1064, 208 P.3d 208 (2009), aff'd
293 Kan. 930, 270 P.3d 1165 (2012), issued before Waisner's trial. Cook interpreted
Gaona as permitting an expert witness to testify about the victim's behavior during the
interview, interpret the child's behavior, and to testify about the ultimate question of
whether the victim had been sexually abused.

After Cook testified, Waisner presented the testimony of Melanie Morgan, a
licensed attorney who had been practicing criminal law since 1993 in federal and state
courts in Kansas and Missouri. Morgan testified regarding all of Waisner's ineffective
assistance of counsel claims. In particular, Morgan challenged Cook's failure to try to
exclude or limit the testimony of Gwen Petersen, T.G.'s therapist, and Ann Goodall, who
had conducted the Safetalk interview with T.G. Morgan opined that Goodall's testimony
should have been very limited under Gaona and similar decisions, but Cook failed to
object when Goodall's testimony exceeded what was permissible under Kansas law.
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Morgan testified there was no reason or justifiable strategy to allow this
inadmissible testimony into the trial, especially because the evidence was so damaging.
Morgan also testified that both Petersen and Goodall testified in a manner essentially
expressing their belief that T.G. was being truthful, and Cook did not properly object to
this testimony. Morgan testified that Cook's failure to object to the inadmissible expert
testimony substantially prejudiced Waisner and deprived him of a fair trial.

On October 19, 2016, the district court issued a memorandum decision and order
addressing the four issues raised by Waisner. In addressing Waisner's first claim—that
his trial attorney was ineffective for failing to object to the State's use of prior consistent
statements from T.G.—the district court found the claim of ineffective assistance of
counsel failed. The district court also rejected Waisner's third claim: that trial counsel
failed to adequately investigate issues relating to T.G.'s credibility. In reviewing
Waisner's final claim—that trial counsel erred in not objecting to improper statements
made by the prosecutor and that appellate counsel was ineffective for failing to raise
prosecutorial misconduct on appeal—the district court again found that Waisner failed to
carry his burden of proof.

However, the district court found merit in Waisner's second claim: that his trial
counsel was ineffective for failing to object to the testimony of two experts, Petersen and
Goodall, who commented on T.G.'s credibility. The district court found that Cook not
only had misread the Court of Appeals' decision in Gaona, but he had failed to consider
prior opinions that supported the same principles: that a child abuse expert cannot
expressly testify that a child was, in fact, abused, confirm the identity of the abuser, or
otherwise vouch for the credibility of the alleged victim.

The district court found that Cook's failure to object to the inadmissible expert
testimony of Goodall and Petersen was not objectively reasonable and constituted
constitutionally deficient performance. Moreover, observing that the criminal jury trial
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turned primarily on T.G.'s credibility, with no physical evidence to support the charges,
the district court found that Cook's failure to object to the inadmissible expert testimony
prejudiced Waisner and denied him a fair trial. Thus, the district court vacated Waisner's
convictions and ordered a new trial. The State timely appealed from the district court's
order. Waisner did not file a cross-appeal.

ANALYSIS

On appeal, the State claims the district court erred by vacating Waisner's
convictions and granting a new trial based on ineffective assistance of trial counsel.
Specifically, the State argues that the district court "erroneously concluded that [Cook's]
representation was constitutionally deficient" under the first prong of the test set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 (1984). The State also argues that the district court "erroneously
concluded that Waisner established prejudice."

Waisner contends that the district court correctly found that Cook's representation
fell below an objective standard of reasonableness when he permitted expert testimony
that T.G. was "no doubt" sexually abused and that she was telling the truth about her
allegations against her father. Waisner also argues that the district court correctly found
that he was prejudiced by Cook's deficient performance.

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the district court conducts a full evidentiary hearing on such claims, the
appellate courts determine whether the district court's factual findings are supported by
substantial competent evidence and whether those factual findings support the district
court's legal conclusions; the appellate courts apply a de novo standard to the district
court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

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To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland, 466 U.S. at 687).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015); see also Strickland, 466 U.S. at 694.

If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable only to the extent that a reasonable professional judgment
supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (citing Strickland, 466 U.S. at 690-91).

Standard for expert testimony regarding sexual abuse


The State contends that Cook's failure to object to the experts' testimony was
insufficient to establish deficient representation. It contends that the issue is not whether
the testimony was admissible or inadmissible, but whether counsel's failure to object was
objectively unreasonable under the totality of the circumstances. In challenging the
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district court's ruling, the State argues that the district court erred in finding that this
court's decision in Gaona was binding law because the decision was still under review at
the time of Waisner's trial. We will begin by examining that decision.

In Gaona, the defendant was convicted of various sex crimes against his wife's
daughter. During the trial, the State presented the testimony of an expert witness on the
typical behavior of sexually abused children, over the defendant's objection. On appeal,
the defendant challenged only the expert's qualifications to testify as an expert, not her
testimony. This court cited prior caselaw discussing expert testimony in these types of
cases but found those cases did not limit the qualifications of the witnesses to a person
licensed or qualified to diagnose and treat mental disorders. 41 Kan. App. 2d at 1067-68.
Significantly, however, this court noted:

"[The expert] confined her testimony to the common behavioral traits without relating
them to the specific victim, that she did not provide diagnostic testimony beyond her
credentials, that she did not state or imply that [the victim] had been sexually abused, that
she did not opine on whether the victim was truthful or credible, that she did not suggest
in any manner that [defendant] had any involvement, and that the totality of her
testimony appears to have been within the permissible scope of such testimony endorsed
by our Supreme Court in [State v.] McIntosh, [274 Kan. 939, 58 P.3d 716 (2002)]."
(Emphasis added.) 41 Kan. App. 2d at 1069.

Prior to Waisner's trial, the Kansas Supreme Court had granted a petition for
review in the Gaona case but had yet to issue its opinion. Ultimately, the Kansas
Supreme Court affirmed the Court of Appeals' decision in Gaona. 293 Kan. 930. The
Supreme Court held that the witness in question was not qualified to testify as an expert
on common characteristics of sexually abused children, but on the record in the case the
erroneous admission of the testimony was harmless error. 293 Kan. at 949-50.


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The State asserts that the district court erred in relying on the Court of Appeals'
decision in Gaona because the decision in that case was not final at the time of Waisner's
trial. However, the district court's memorandum decision finding ineffective assistance of
counsel did not rely only on this court's decision in Gaona; the memorandum decision
discussed in detail a variety of earlier Kansas published opinions that drew limits on
expert testimony in sex abuse cases. We will now turn to some of the prior Kansas
caselaw on this subject.

In State v. Villanueva, 274 Kan. 20, 49 P.3d 481 (2002), the defendant was
convicted of the rape of his girlfriend. The district court permitted the State's expert
witness to testify that based upon her training and experience, she was aware that there
was a "common set of symptoms or behavior that is displayed by a victim of rape." 274
Kan. at 26. The witness also testified that based on the victim's counseling treatment
records, she displayed some of the classic characteristics of a victim of rape. On appeal,
the Kansas Supreme Court found that not only was the witness unqualified to diagnose
rape trauma syndrome, her testimony that the victim's behavior was consistent with that
of a rape trauma victim improperly bolstered the victim's credibility. 274 Kan. at 32-33.
Noting that the evidence against the defendant was not overwhelming, the court found
that the improper testimony prejudiced the defendant's right to a fair trial. 274 Kan. at 33.

In contrast, in McIntosh, the defendant was accused of sexually abusing his
girlfriend's daughter over a several-year period. On appeal, the defendant challenged the
admission of a licensed clinical social worker's testimony that the victim "exhibited
behavior consistent with a child who had been sexually abused." 274 Kan. at 956.
However, the witness did not state an opinion that the child, in fact, had been abused. The
Supreme Court held that the testimony was not improper. 274 Kan. at 959. Specifically,
the court stated:

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"In cases involving sexual abuse, the evidence is often centered entirely upon the
credibility of the victim and the alleged abuser. Theis' testimony provided circumstantial
support in favor of A.D.'s credibility by demonstrating that her behavior was not
inconsistent with someone who had been sexually abused. Theis did not testify that in his
opinion A.D. was abused. McIntosh, through testimony elicited on cross-examination and
later in his case in chief, made the jury aware that the presence of such behaviors in a
child victim does not prove sexual abuse. Although jurisdictions differ as to the
allowance of such testimony, McIntosh does not state a significant reason for this court to
exclude such evidence in Kansas." McIntosh, 274 Kan. 959.

Waisner also relies heavily on the Supreme Court decision in State v. Bressman,
236 Kan. 296, 689 P.2d 901 (1984). In that case, the Supreme Court reversed a rape
conviction after an emergency room physician testified about the common characteristics
and emotional problems of rape victims. While the Supreme Court questioned the
physician's qualifications to render such an opinion, the court found reversible error when
the physician also testified that she believed the victim had been raped even though there
was no evidence of physical trauma. 236 Kan. at 302-03.

As early as 1989, the Kansas Supreme Court cautioned prosecutors to use care on
direct examination of child protection workers in sexual offense cases in light of the fine
line between what evidence is permissible and what evidence is inadmissible. See State v.
Wade, 244 Kan. 136, 142-45, 766 P.2d 811 (1989) (permitting case worker to describe
the behavior of children who have told her they had been sexually abused and to testify
that the victim's behavior was similar). That same year, the Supreme Court reviewed
numerous cases from a number of states and held that a qualified expert with substantial
experience in the field of child sexual abuse could testify as to (1) common patterns of
behavior resulting from child sexual abuse, and (2) that a particular child has symptoms
consistent with those patterns. State v. Reser, 244 Kan. 306, 315, 767 P.2d 1277 (1989).

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Many other Kansas opinions predating Waisner's 2011 trial confirm the limits of
such expert testimony in sex abuse cases by recognizing a line between testifying about
common behaviors and traits of trauma victims as compared to testimony that the victim,
in fact, was abused or was telling the truth, thus invading the province of the jury to
determine what actually occurred. See, e.g., State v. Jackson, 239 Kan. 463, 470, 721
P.2d 232 (1986) (reversible error to allow expert witnesses to testify that the "child was
telling the truth" about the allegations made against the defendant); State v. Lash, 237
Kan. 384, 386, 699 P.2d 49 (1985) (treating psychiatrist could not be permitted to testify
whether victim was molested by his father).

To sum up, at the time of Waisner's trial, it was reasonably clear that qualified
experts could only testify about (1) common patterns of behavior resulting from child
sexual abuse, and (2) that a particular child has symptoms consistent with those patterns.
However, Kansas caselaw also had established that is was impermissible for a witness to
give opinion testimony that a victim, in fact, was sexually abused or was being truthful
about allegations of sex abuse.

Application of the law to the facts

Turning to the evidence presented at Waisner's trial, Petersen, a licensed clinical
specialist social worker, testified that she diagnosed T.G. with posttraumatic stress
disorder (PTSD). Petersen discussed the frequency of delayed disclosure of child sexual
abuse and how often a child discloses information in a piecemeal fashion. She testified
about incomplete disclosure and avoidance in child sex abuse cases and her general
treatment methods to encourage disclosure and address emotional responses. Toward the
end of her testimony, the prosecutor specifically asked Petersen whether she had
determined what traumatic event caused T.G.'s PTSD. Petersen responded: "It was the
sexual abuse." Cook did not object to this testimony. Petersen then discussed her
observations of whether T.G. was exaggerating or "malingering." Petersen defined
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malingering as "making it up or faking it or false" allegations. Without objection, the
prosecutor asked Petersen if she saw any signs of malingering in her sessions with T.G.
and she responded, "No." Finally, the State asked Petersen, without objection: "Q. Do
you have any doubt in your mind that [T.G.] is a victim of sexual abuse? A. No doubt."

Goodall, the State's final witness, was a social work specialist with the Department
of Social and Rehabilitation Services (SRS). She testified she had a bachelor's level
social worker license and had worked with SRS and similar agencies for about 14 years.
Her current position with SRS was investigating allegations of child abuse and neglect.
During Goodall's testimony, the State played a redacted video of her Safetalk interview
with T.G., stopping and restarting the video while discussing T.G.'s actions and reactions
during the video. During redirect examination, after confirming the number of sexually
abused children Goodall had dealt with in her career, the prosecutor asked: "Do you have
any doubt that [T.G.] was sexually abused?" Goodall said "No."

Rather than object to Goodall's statement, Cook reiterated and emphasized that
testimony in recross-examination. In his brief recross, the following exchange occurred:

"Q. Whether or not you have any doubt as to whether or not sexual—[T.G] was
sexually abused, that's your opinion, correct?
"A. It is my conclusion in my investigation for SRS based on all the information
I received and evidence I got, yes.
"Q. That's your opinion; that's what you have come to the conclusion of, correct?
"A. I don't know if I can answer that that's my opinion, because my conclusion
was also staffed within my agency, you know, with other social workers, you know, my
supervisor, and that was the decision reached based on the information and evidence."

Both Petersen and Goodall repeatedly testified that T.G.'s behavior and words
were consistent with a child who had been sexually abused. Based on established Kansas
caselaw, this testimony was proper. See McIntosh, 274 Kan. at 959; Reser, 244 Kan. at
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315; Wade, 244 Kan. at 142-45. However, the State crossed the line when the prosecutor
specifically asked each of the experts whether they had "any doubt" that T.G. was, in fact,
sexually abused. The State also crossed the line when the prosecutor asked Petersen to
testify in a manner essentially expressing her belief that T.G. was being truthful. Kansas
caselaw clearly had established that it was impermissible for a witness to given opinion
testimony that a victim, in fact, was sexually abused or was being truthful about
allegations of abuse. See Jackson, 239 Kan. at 470; Lash, 237 Kan. at 386; Bressman,
236 Kan. at 302-03.

Based on this long-established line of cases, Cook had clear grounds to seek a
motion in limine or at least object to the questions of whether Petersen and Goodall
believed T.G. was sexually abused or was telling the truth about the allegations. The
district court ultimately concluded in its memorandum decision that "Mr. Cook's
unfamiliarity with the law regarding the scope of expert testimony in cases such as this
one prevented him from raising a proper objection to the State's impermissible expert
testimony. . . . Accordingly, the first prong of Strickland is satisfied."

We agree with the district court's legal conclusion. "An attorney's ignorance of a
point of law that is fundamental to his case combined with his failure to perform basic
research on that point is a quintessential example of unreasonable performance under
Strickland." Hinton v. Alabama, 571 U.S. ___, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1
(2014); see also Cheatham, 296 Kan. at 445 (misunderstanding the law is ineffective
assistance and cannot be justified as trial strategy); State v. Rice, 261 Kan. 567, 607, 932
P.2d 981 (1997) (legal advice based on misunderstanding of the law objectively
unreasonable). Thus, we conclude the district court did not err in finding that Cook's
failure to object to the expert testimony was not objectively reasonable and constituted
constitutionally deficient performance.


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Prejudice

Finally, the State argues that even if Cook's failure to object to the expert witness
testimony was constitutionally deficient, the district court erred in finding the error was
prejudicial. Specifically, the State asserts that Waisner failed to show that it was
"reasonably likely" that the result of his trial would have been different if counsel had
performed adequately. To show prejudice, the complaining party "must show that there is
a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." (Emphasis added.) Strickland, 466 U.S. at 694.

As the district court observed in its memorandum decision, the criminal jury trial
turned primarily on T.G.'s credibility, with no physical evidence to support the charges.
Moreover, various witnesses testified at trial that T.G. never acted like she was having
problems with Waisner. Several witnesses testified as to T.G.'s dislike for her stepmother,
who was about to move back into the home, as well as to T.G.'s desire to live with her
mother. Finally, the defense presented some evidence at trial inferring that T.G.'s mother
may have colluded with T.G. to effect a change in custody.

The first jury was unable to reach a unanimous verdict as to Waisner's guilt. In
addition, the judge who presided over the 60-1507 hearing was the same judge who
presided over Waisner's jury trial. The judge had the ability to observe all the witnesses
and to gauge the effect of evidence submitted by the experts. Based on the totality of the
evidence and the importance of the experts' support of T.G.'s allegations, we agree with
the district court that counsel's deficiency was sufficient to "undermine confidence in the
outcome" of Waisner's trial. Strickland, 466 U.S. at 694. Accordingly, we conclude the
district court did not err in vacating Waisner's convictions and ordering a new trial.

Affirmed.