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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,822 STATE OF KANSAS, Appellee, v. RODOLFO GAONA, Appellant.

SYLLABUS BY THE COURT

1. The State's witness, who was the executive director of Finding Words of Kansas was qualified under K.S.A. 60-456(b) to testify as an expert on forensic interviewing techniques used with children who allege sexual abuse but was not qualified to testify as an expert on common characteristics of sexually abused children, including delayed or piecemeal disclosure or the difficulty or frequency of coaching to produce false accusations. On the record of this case, however, the erroneous admission of expert testimony was harmless.

2. When the evidence in a case supports only one of two outcomes--the occurrence of a completed aggravated sodomy or no aggravated sodomy--a failure to give a lesser included instruction for attempted aggravated sodomy is not clearly erroneous.

3. A district judge does not err in excluding a criminal defendant's proffered medical records from evidence at trial when the defense fails to lay a foundation for the records and fails to demonstrate the relevance of many of them, when the contents of the records

constituted inadmissible hearsay for which the defense has failed to assert an applicable exception, and when the sanctions available to the district judge for the defense's violation of reciprocal discovery include exclusion. In addition, if the defendant was permitted to introduce other evidence of the medical condition for which admission of the records is sought, the defendant's due process right to present a defense is not implicated by the records exclusion.

4. A criminal defendant who moves pretrial for the general exclusion of any evidence demonstrating the existence of other crimes or civil wrongs but who fails to object specifically at any time to the introduction of evidence that he showed one or more pornographic videotapes to his minor victim has failed to preserve the issue for appeal, and an appellate court need not address the issue's merits.

5. A defendant in child sexual abuse prosecution must object to admission of the alleged victim's prior consistent statements before his or her live testimony in order to preserve the timing issue for review on appeal. The absence of such an objection in this case eliminates the necessity for the merits of the issue to be addressed.

6. On the record in this case, cumulative error does not require reversal of the defendant's remaining convictions.

7. A criminal defendant may be sentenced to the highest term in the applicable Kansas Sentencing Guidelines Act grid box without proof of any aggravating factor to a jury beyond a reasonable doubt.

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Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 1064, 208 P.3d 308 (2009). Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed March 2, 2012. Judgment of the Court of Appeals affirming in part, reversing in part, dismissing in part, and remanding to the district court is affirmed. Judgment of the district court is affirmed in part, reversed in part, and remanded.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, and John P. Wheeler, county attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Rodolfo M. Gaona appeals his conviction and sentence in this rape and aggravated sodomy case involving his stepdaughter, M.L. Gaona was charged with the following crimes: Count One--rape, on or about December 20, 2005, in violation of K.S.A. 21-3502(a)(2); Count Two--aggravated criminal sodomy, on or about December 20, 2005, in violation of K.S.A. 21-3506(a)(1); Count Three--rape, on or about December 19, 2005, in violation of K.S.A. 213502(a)(2); Count Four--aggravated criminal sodomy, on or about December 19, 2005, in violation of K.S.A. 21-3506(a)(1); Count Five--rape, on or about September 1, 2005, through September 30, 2005, in violation of K.S.A. 21-3502(a)(2); Count Six-- aggravated criminal sodomy, on or about September 1, 2005, through September 30, 2005, in violation of K.S.A. 21-3506(a)(1); Count Seven--aggravated criminal sodomy, on or about March 23, 2005, through December 19, 2005, in violation of K.S.A. 212506(a)(1).

The jury convicted Gaona of the rapes charged in Counts One and Three and of the aggravated criminal sodomies charged in Counts Two and Seven. The Court of 3

Appeals reversed Gaona's conviction on Count Three. State v. Gaona, 41 Kan. App. 2d 1064, 1071, 208 P.3d 308 (2009). Gaona then petitioned for this court's review of his three remaining convictions and his sentence. The State did not cross-petition on Count Three, for which the Court of Appeals had ordered a remand.

ISSUES

Because the Court of Appeals granted Gaona relief on the issue of whether an attempted rape instruction should have been given for Count Three, we have seven issues left for our examination:

1.

Was it error to allow the Executive Director of Finding Words of Kansas to testify as an expert about the behavior of child victims of sexual abuse?

2.

Did the district judge err by failing to give a lesser included instruction on attempted aggravated criminal sodomy for Counts Two and Seven?

3.

Was it error to exclude Gaona's medical records?

4.

Was it error to admit evidence that Gaona showed M.L. pornographic movies without an analysis of the evidence under K.S.A. 60-455?

5.

Was it error to admit evidence of M.L.'s prior consistent statements before her own live testimony was given at trial?

6.

Does cumulative error require reversal of Gaona's convictions?

7.

Is Gaona entitled to vacation of his remaining sentence and remand for resentencing because he was given the highest term in the applicable 4

Kansas Sentencing Guidelines Act grid box for Counts One, Two, and Seven, without proof of any aggravating factor to a jury beyond a reasonable doubt?

We hold that no error requires reversal of Gaona's three remaining convictions or his sentence for them. FACTUAL AND PROCEDURAL BACKGROUND

In Gaona's trial, the State called M.L.'s mother, R.G., as its first witness. R.G. testified that she was married to Gaona and that she, Gaona, M.L., and her son lived together. R.G. further testified that M.L. was 11 years old and that she had been diagnosed with Attention Deficit Hyperactivity Disorder. R.G. worked second shift, and Gaona would watch the children while she was at work. M.L. typically arrived home from school before her brother, and Gaona arrived home from work between 5:30 p.m. and 6:30 p.m.

R.G. testified that the morning of December 21, 2005, she, her son, and M.L. went shopping after she and Gaona had had an argument. During the outing, her son told his mother that Gaona and M.L. had a "sick game." When R.G. asked M.L. what he was talking about, M.L. started crying and "told me that she couldn't tell me because something bad would happen to me." After M.L. calmed down, R.G. asked M.L. questions in order "to be sure that there was actually a crime before I did anything about it," including asking whether Gaona put his penis in M.L.'s vagina. Later, once R.G. had taken M.L. to the police station, M.L. talked to Detective Jeff Steele and investigator Nikki Wiecken. M.L. then was taken to the hospital for a sexual abuse evaluation by a Sexual Assault Nurse Examiner (SANE). After the SANE evaluation, M.L. was interviewed by Wiecken with a social worker present.

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R.G. also testified that M.L. told her that the encounters with Gaona caused M.L. to bleed, but R.G. never found blood on M.L.'s clothes, bedding, or the toilet. R.G. testified that M.L. had mentioned having pain while going to the bathroom but was never seen by a doctor for this complaint. R.G. also testified that M.L. told her she had seen a pornographic movie with Gaona and that Gaona had threatened her.

R.G. was questioned about other adult males with whom M.L. had been in contact and said that the only other such males were friends and neighbors. R.G. was also questioned about her relationship with Gaona. She testified that she and Gaona had disagreements, a few of which were loud and some of which occurred in front of the children. R.G. did not recall ever asking Gaona for a divorce, but Gaona had told her several times that she could leave him. Although R.G. remained married to Gaona at the time of his trial, she testified that she could not afford to get a divorce and that she and the children had had no contact with him since M.L.'s allegations came to light. R.G. also testified that Gaona had told her about having a prostate problem.

M.L.'s brother, age 9, testified at trial that he could not remember what M.L. told their mom while shopping. He said that he had seen Gaona and M.L. in Gaona's bedroom, with M.L. lying on the bed and Gaona standing in front of the bed. M.L.'s brother said that Gaona was doing "[s]omething to my sister," which he called "[p]laying a nasty game with her." At trial, M.L.'s brother said that he saw the "nasty game" more than once, but he could not remember how many times; before trial, he had told a police officer that he saw it one time, but he had told his mother that he saw it more than once.

M.L.'s brother further testified that "my sister didn't seem that she liked" the "nasty game." But he also said that he did not see Gaona touch M.L. and that both Gaona and M.L. had their clothes on each time he saw them. He said he never talked to M.L. about what he had seen, and Gaona had told him not to tell his mother. He did not tell his mother until the shopping excursion because he was afraid Gaona would hurt his mother. 6

M.L.'s brother also testified that he sometimes heard his mother and Gaona arguing but "not very much" and that it bothered him "a little bit." He said that he only "kind of" liked Gaona as a stepfather and wanted to get rid of him "[a] little bit."

M.L. testified at trial that she talked to her mother after her brother told her mom "what [Gaona] did." She described going to the police station, telling a police officer what happened, and then seeing a nurse for an examination and telling the nurse what happened. M.L. said that she had to go to the nurse because Gaona "was doing something real bad." When asked what that meant, M.L. first said "I don't want to say it," but then explained that it meant Gaona "was making me have sex with him."

M.L. testified that she referred to her private parts as her "yaya" and to a boy's private parts as a "doinkey." She stated that Gaona had touched her yaya. She said she "forgot" whether Gaona's doinkey touched her yaya, but she testified that his doinkey touched her "butt." M.L. told the nurse that her yaya got sore and explained that it was caused by "[t]he doinkey." She further testified that Gaona put his doinkey in her mouth, and she told him to quit. She also testified Gaona touched her butt with his finger, but she "forgot" if it went inside. M.L. first answered "[n]o, no," when asked if Gaona put his finger in her yaya, but then said that he did. She stated that she did not know how many times Gaona had touched her, but that it was more than once. M.L. had previously testified that the last time Gaona touched her she had her eyes closed and did not see which part of his body touched her.

M.L. also testified that she and Gaona had watched a movie with naked people in it one time. The touching that she said Gaona did to her was also what had happened in the movie. M.L. testified that she did not know what dates the touching occurred, but they happened when her brother was asleep or at a friend's house and her mom was at work. M.L. initially stated that the time her brother saw her and Gaona when she was on 7

the bed, she and Gaona both had their clothes on and were not touching. She later testified, however, that her brother saw them more than once; and she did not know if they were clothed each time. M.L. said that Gaona had told her not to reveal what happened and said he would shoot her family if she did.

M.L. also testified that she did not like Gaona as a stepfather and that she wanted to get rid of him. She thought he was unfair when he punished her, and she did not like it when he argued with her mother, which happened often.

Wiecken, the investigator who interviewed M.L. on the day the crimes were reported and again the day after, testified that she had special training to interview children but did not have a college degree. Wiecken completed a "Finding Words" program covering a particular interview protocol to be used when there were allegations of child sexual abuse. By the time of Gaona's trial, Wiecken had completed approximately 30 forensic interviews of children, 20 before her interview of M.L. About half a dozen of the children were around M.L.'s age.

Wiecken testified that she attempted to get "sensory type details" from the children she interviewed, because "these aren't things that a child can really be coached on." Part of the Finding Words protocol calls for "exploring the alternative hypothesis," and Wiecken said that she and M.L. discussed other people in the home. M.L. denied that anyone else had touched her in the way Gaona had. Wiecken did not ask M.L. specifically if she had been around other adults on December 19 and December 20, 2005. Wiecken testified that she used dolls and anatomical drawings during her interviews with M.L., who "was having a hard time talking about what happened to her." M.L. did talk about "sex movies" and disclosed the date of her last contact with Gaona. She also told Wiecken that someone named Luis had told her mother to leave Gaona. R.G. told Wiecken that Luis was a coworker in whom she had confided.

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Wiecken's interviews of M.L. were videorecorded and the recordings admitted into evidence and played to Gaona's jury at trial.

Wiecken also interviewed M.L.'s brother twice, but only the second interview was recorded. Using dolls, he told Wiecken that he had seen M.L. on the bed and Gaona standing by the bed and demonstrated with the doll a motion "described as a humping or [what] one might see in sexual acts." M.L.'s brother told Wiecken this incident occurred before Halloween and said he witnessed it when he got off the bus from school and came inside the house. Wiecken did not ask him why he had not told his mother what he saw, but he told her "he was scared that something bad was going to happen." He told her he saw this happen only once, but R.G. called later in the day of her son's interview and said that he told her he had seen it more than once.

Pam Washburn, a Sexual Assault Nurse Examiner (SANE), testified about her examination of M.L., including M.L.'s description of what had occurred. M.L. told Washburn that her stepfather was having sex with her and showing her sex movies. She said, "He put his thing up my butt and, um, he tried to have sex with me"; "[t]hat's what he always does"; and "[t]hat's what he always does, puts his doinkey in my yaya." M.L. also reported that she sometimes bled when she went to the bathroom. Washburn further testified that M.L. told her she and Gaona watched a sex movie on December 20, 2005, and that, on December 19, 2005, Gaona "tried to have sex with [her]."

Washburn testified that she had found an "irregular margin" on M.L.'s hymen, an "abnormal finding" for a pediatric patient and one consistent with sexual abuse. She observed no abnormal findings in M.L.'s anal area, but she testified that "injury to the anal area is extremely rare." Washburn saw no physical evidence of acute trauma during her exam of M.L.

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An evidence technician and two investigators, all with the Finney County Sheriff's Office, testified that pornographic movies were among the evidence collected from Gaona's home.

The State called Kelly Robbins, who is the Executive Director and co-founder of the Western Kansas Child Advocacy Center and the Executive Director of Finding Words of Kansas, to testify as an expert witness. Robbins is not a licensed mental health professional. She holds a bachelor's degree in Administration of Justice in Investigation with a minor in Chemistry and holds an associate's degree qualifying her as a medical laboratory technician. She previously worked for the Kansas Bureau of Investigation as a forensic scientist and as a Special Agent conducting criminal investigations, including investigations of child sex abuse cases in which she interviewed child victims; but she has no formal training in psychology, psychiatry, social work, or child development. She does not have any published articles.

Robbins testified that forensic interviews of children who allege sexual abuse follow "a semi-structured protocol that allows for the child to tell in their own words what happened." Robbins received training in the Finding Words protocol and was certified to conduct forensic interviews using the protocol by the American Prosecutors Research Institute. She testified that the protocol is supported by more than 150 "research articles." Robbins also said that she had taught parts of the Finding Words course, focusing on interviewing techniques. As of the time of Gaona's trial, Robbins had personally interviewed more than 150 children.

Robbins gave no testimony specific to M.L.'s interviews or allegations.

After Robbins discussed her background and qualifications, the State asked her: "Through your training and experience . . . are there any specific patterns or dynamics that you see in children of sexual abuse?" Gaona's counsel objected on the grounds of 10

"lack of foundation, improper lay opinion, lack of personal knowledge, [and] not qualified as an expert." The district court judge noted and overruled the objection. Gaona's counsel again objected during Robbins' later testimony when the State asked about patterns regarding sexual abuse "borne out in the research [Robbins] read." Gaona's counsel argued that Robbins was "not qualified to give an opinion or to answer questions of that nature without specialized knowledge that she does not have." The district judge again noted and overruled the objection. Gaona's counsel then requested and was granted a continuing objection to all of Robbins' "testimony on this basis."

In response to the State's question regarding patterns and dynamics present in children of sexual abuse, Robbins stated that "one of the main things is that there's secrecy around child abuse . . . especially child sexual abuse." According to Robbins, secrecy and fear often lead children not to disclose such abuse the first time it occurs. This phenomenon of "delayed disclosure" can extend "anywhere from weeks, it could be years, it may be that they never tell." Robbins further testified that children display "a variety of reactions of what they do to survive this abuse." When a child does first disclose abuse, the disclosure is often a "tentative disclosure" in which the child will "only feel comfortable about giving some of the information," adding more information later. Robbins further testified that "the majority of the children . . . care for their abusers" and that it is harder for a child to report abuse if it occurs in the child's home or is perpetrated by a family member.

Robbins opined that it was difficult to coach a child into alleging nonexistent sexual abuse, stating that such a practice was "probably rare" and would "take[] a lot of effort and time." Like Wiecken, Robbins stressed the importance of trying to get children to share "sensory details" of their experiences. She also said that, as an interviewer, one should guard against confirmatory bias by "being objective" and "not having your mind made up." She testified that it was "very important that we do our investigation properly

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so that we don't have injustice." Yet she described herself as a "fact-finder" rather than a mental health professional.

The defense presented three witnesses at trial.

Clinical psychologist Robert Barnett testified as an expert on flaws in the Finding Words interview protocol and Wiecken's interviews of M.L. and her brother in particular. Barnett, who said he had conducted 100 to 200 sexual abuse interviews of children, also criticized what he saw as Washburn's confirmatory bias in the medical history she took from M.L. at the time of the sexual abuse physical exam.

A manager at Gaona's place of employment testified that Gaona did not work on December 1, 9, 10, 11, 19, or 27, 2005, and normally worked from 6 a.m. to 5 p.m.

For himself, Gaona testified that he had problems with his prostate, which meant he had difficulty achieving an erection "most of the time," starting 5 months before his arrest on December 21, 2005. Gaona said he had begun seeing a doctor for these problems 3 months before his arrest. Gaona further testified that his wife, R.G., was aware of his problem because "sometimes" he could not have sex with her. Gaona also testified that he and his wife discussed divorce the day before his arrest, and he denied M.L.'s sexual abuse allegations.

DISCUSSION

Expert Testimony by the Executive Director of Finding Words of Kansas

"'Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion.'" State v. Reyna, 290 Kan. 666, 682, 234 P.3d 761 (2010) (quoting State v. Johnson, 286 12

Kan. 824, 831, 190 P.3d 207 [2008]). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999]).

Further, if a district court abuses its discretion in admitting expert testimony, the error is subject to harmlessness analysis. State v. Carapezza, 286 Kan. 992, 1005, 191 P.3d 256 (2008). K.S.A. 60-261 requires the court to find an erroneous admission of evidence to be harmless unless it "affects the defendant's substantial rights." Carapezza, 286 Kan. at 1005. In our recent State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), we confirmed that the standard for harmlessness of nonconstitutional error is whether the court is persuaded that there is no reasonable probability that the error affected the outcome of the trial. Ward, 292 Kan. at 565-66. The burden of demonstrating harmlessness of a nonconstitutional error is on the party benefiting from the error. See State v. McCullough, 293 Kan. ___, Syl.

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