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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,291 STATE OF KANSAS, Appellee, v. JESUS BERRIOZABAL, Appellant.

SYLLABUS BY THE COURT 1. If an appellant fails to brief an issue, the issue is waived or abandoned.

2. K.S.A 60-404 requires a timely and specific objection to the admission of evidence. This court has interpreted the timely objection requirement to mean a pretrial objection to the admission of evidence must be contemporaneously reasserted during trial or preserved through a standing objection.

3.

The standard of review of a defendant's motion for a psychological examination of

a complaining witness in a sex crime case is whether the trial court abused its discretion in denying the request.

4. In general, a defendant in a sex crime case is entitled to a psychological examination of the complaining witness on a showing of compelling circumstances that warrant the psychological examination.

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5. A determination of whether there are compelling circumstances that warrant a psychological examination of a complaining witness in a sex crime case requires examination of the totality of the circumstances, with the following nonexclusive list of factors to be considered: (1) whether there was corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.

6. The mere allegation of mental instability does not support the ordering of a psychological evaluation of a complaining witness in a sex crime case absent some real evidence. Likewise, the fact that a complaining witness may make inconsistent statements from time to time does not compel a mental evaluation of the witness.

7. The threshold question on the admissibility of all evidence is relevancy. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material.

8. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard.

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9. The rape shield statute, K.S.A. 2009 Supp. 21-3525, prohibits the admission of evidence of a rape victim's previous sexual conduct with any person, including the defendant, unless the trial court first determines the evidence to be relevant and otherwise admissible.

10. Prior sexual conduct evidence may be material if the case presents issues such as the identity of the rapist, consent of the complaining witness, or whether the defendant actually had intercourse with the complaining witness.

11. In passing Kansas' rape shield statute, the legislature sent a clear message to the courts that a rape victim's prior sexual activity is generally inadmissible since prior sexual activity, even with the defendant, does not of itself imply consent.

12. The trial court's determination of whether evidence of prior sexual conduct will be probative of a material issue will not be overturned on appeal if reasonable minds could disagree as to the court's decision.

13. Under

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Kansas Law