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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,961 STATE OF KANSAS, Appellee, v. CHARLES LLOYD HOLLINGSWORTH, III, Appellant.

SYLLABUS BY THE COURT 1. To determine whether a confession is given voluntarily, a trial court evaluates the totality of the circumstances surrounding it.

2. The determination of whether a confession is voluntary is a legal conclusion requiring de novo appellate review. 3. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence when presented at trial in order to preserve the issue for appellate review. 4. The contemporaneous objection requirement of K.S.A. 60-404 gives the district court the opportunity to conduct the trial without using tainted evidence and thus avoid possible reversal and a new trial. 5. A defendant cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.

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6. Determining whether evidence was properly admitted pursuant to K.S.A. 60-455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard of review for materiality is de novo. The appellate court must also determine whether the material fact is disputed, i.e., the element or elements being considered must be substantially at issue in the case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate court reviews relevance--in particular, the probative element--of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.

7. If the evidence presented under K.S.A. 60-455 meets all these requirements--that the fact is material; that the material fact is disputed; that the evidence is relevant, i.e., probative to prove the disputed material fact; and that the evidence's probative value outweighs its potential undue prejudice--then the trial court must give a limiting instruction informing the jury of the specific purpose for the evidence's admission. 8. Under the facts of this case, the trial court did not abuse its discretion in finding that the probative value of the warrants evidence outweighed the potential for producing undue prejudice.

Appeal from Shawnee district court; NANCY E. PARRISH, judge. Opinion filed December 11, 2009. Judgment of the district court is affirmed.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.

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Jason E. Geier, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: This case is the third in a series of appeals by codefendants involved in the June 2006 killing of David Owen, an advocate for the homeless. For the contributions by Charles Lloyd Hollingsworth, III, he was convicted of felony murder and kidnapping. Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the trial court err in concluding that statements Hollingsworth provided to the police during their investigation were voluntarily given? This issue was not preserved for appeal.

2. Did the trial court err in admitting evidence of Hollingsworth's outstanding warrant under K.S.A. 60-455 as proof of motive or intent? No.

Accordingly, we affirm.

FACTS Hollingsworth was convicted in July 2007 for felony murder and kidnapping in association with the killing of David Owen. Two codefendants involved in the same incident, Kimberly Sharp and Carl Lee Baker, have also been convicted of first-degree murder; their convictions have been affirmed on appeal. See State v. Sharp, 289 Kan. 72, 210 P.3d 590 (2009); State v. Baker, 287 Kan. 345, 197 P.3d 421 (2008).

Owen was an advocate on homelessness issues and visited several homeless camps around Topeka during the summer of 2006. During these visits, he attempted to persuade the 3

camp residents to call their families to reconcile past differences and possibly resume permanent living arrangements. To accomplish these goals, Owen carried a black satchel containing several cell phones and prepaid phone cards. He would hand out the phone cards at the camps and encourage the residents to call relatives.

In mid-June 2006, Owen visited a homeless camp by the Kansas River in Topeka where Hollingsworth, Kimberly Sharp, John Cornell, and Carl Lee Baker were living. These four individuals became noticeably agitated when Owen approached Baker and encouraged him to call home. Baker told Owen to leave; Owen threatened to call the police and reached into his satchel for a cell phone.

When Owen reached into his satchel, Hollingworth grabbed Owen's hand and pulled it out of the bag. By then Owen was holding a cell phone. Hollingsworth jerked Owen's arm and knocked the phone to the ground. Hollingsworth slammed Owen to the ground, picked him up, and slammed him onto a bench.

As these events occurred, Sharp looked through Owen's satchel and found photographs of homeless camps that Owen apparently ransacked when the homeless individuals refused to live elsewhere. She started burning the photographs and other satchel items in a firepit.

Hollingsworth grabbed Owen and walked him outside the camp. Owen again threatened to call the police, and Hollingsworth grabbed a hatchet that had been stuck in a tree. Sharp followed Hollingsworth as he dragged Owen away.

Once outside the camp, Hollingsworth asked for a rope. Baker retrieved one from his tent and gave it to Cornell. When Cornell approached Hollingsworth to deliver the rope, Owen was kneeling on the ground. Hollingsworth stood behind Owen holding the hatchet. Sharp told Cornell that they were going to tie up Owen and make him sleep outside with the mosquitoes.

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Hollingsworth brought Owen back to the main camp with Owen's hands bound behind his back. The rope was tied around Owen's neck and back down to his hands. Hollingsworth sat Owen down on the bench and put a gag in Owen's mouth.

With this task accomplished, Hollingsworth and Baker sat down and rolled cigarettes. Taking the cigarettes with them, they grabbed the bound and gagged Owen and dragged him over the dike, across a field, and into a wooded area. Hollingsworth tied a rope over Owen's head and secured his head to a tree. Hollingsworth then tied Owen's feet, which forced him to sit against the tree with his feet lifted. This rigging would cause Owen to strangle if his feet dropped.

Hollingsworth and Baker returned to the camp. When Sharp asked how Owen was doing, Hollingsworth responded that he was "probably dead by now" because "he was turning blue" when they left him.

Hollingsworth returned to check on Owen four times over the next 2 1/2 hours. The fourth time Hollingsworth checked, Owen was dead. Hollingsworth and Baker untied the body and took it to another location where they hoped it would remain hidden from the authorities.

Owen's body was found by law enforcement on July 2, 2006, near the Kansas River. The body's decomposition prevented the examiner from definitively determining the cause of death. The examiner opined, however, that asphyxiation was a likely cause.

After the discovery of Owen's body, Detective Michael Barron of the Topeka Police Department interviewed Ron Green on July 13, 2006. Green indicated that he had been at the homeless camp during part of the episode and implicated Hollingsworth, Baker, Sharp, and Cornell in Owen's eventual death. Baker, Sharp, and Hollingsworth were arrested that same day and brought to the law enforcement center for questioning.

Before Hollingsworth would speak to the police, he wanted proof that Sharp was also being questioned at the law enforcement center. He therefore told Detective Barron that he 5

would explain what happened to Owen only if Barron first asked Sharp what she would call him in his "native tongue." After consulting Sharp, Barron told Hollingsworth that Sharp said Hollingsworth's name was "Kusama."

After receiving this information, Hollingsworth gave Detective Barron a detailed account of the events that led to Owen's death. Barron subsequently took Hollingsworth to the homeless camps, and Hollingsworth reenacted the crime and explained statements he made during the initial interview. Both the interview and the reenactment were videotaped, and portions of those videos were later played for the jury at trial. Hollingsworth also provided a written statement. The entire interview process, including the reenactment, spanned 7 hours.

Hollingsworth filed a pro se motion to suppress his statements and reenactment video, arguing that he was under stress due to the events in question and due to his living conditions at the time of his arrest. The State requested a Jackson v. Denno hearing to determine the voluntariness of his statements. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). After hearing testimony from Detective Barron, the trial judge ruled that Hollingsworth's statements and reenactments on July 13, 2006, were "completely voluntary and intelligently made" and thus could be used at trial.

The State later filed a notice of intent to produce evidence under K.S.A. 60-455. In particular, the State sought to introduce evidence that Hollingsworth had an outstanding warrant at the time of the Owen episode to explain why Hollingsworth did not want Owen to call the police. At the close of a hearing on the issue, the trial court ruled that the evidence of Hollingsworth's warrant was admissible under K.S.A. 60-455 to prove his motive and intent for the kidnapping.

The jury found Hollingsworth guilty of felony murder and kidnapping. He was sentenced to consecutive sentences of life imprisonment for the murder conviction and 206 months' imprisonment for the kidnapping conviction.

More facts will be added as necessary to the analysis. 6

ANALYSIS Issue 1: Hollingsworth did not preserve for appeal the issue of whether the statements he provided to the police during their investigation were voluntarily given.

Hollingsworth first claims that the trial court erred when it admitted into evidence his handwritten and videotaped statements given during his police interrogation as well as the video of his reenactment of the events leading up to Owen's death. According to Hollingsworth, these statements were not voluntary under the totality of the circumstances. See State v. Sharp, 289 Kan. 72, 210 P.3d 590 (2009) (voluntariness of a confession must be determined under the totality of the circumstances; this ultimate determination is a legal conclusion requiring de novo appellate review).

Hollingsworth specifically claims that his statements were not voluntary because (1) the interview lasted 7 hours; (2) the detectives knew that Hollingsworth was a diabetic, and throughout the interview, he would rock back and forth; (3) he made comments throughout the interview that life was not worth living, indicating that he was not in a sane state of mind; (4) he was 18 years old; and (5) he had asked Detective Barron to ask Sharp what Hollingsworth's name was in his "native tongue" even though Hollingsworth only spoke English, indicating that he was not thinking clearly. Hollingsworth further argues that there were several "red flags" in the interview that should have indicated to the detectives that he was "quiet[,] young[,] and apparently influenced by his significantly older codefendants."

The State responds that the issue was not preserved through a specific and contemporaneous evidentiary objection and thus may not be raised on appeal. K.S.A. 60-404; see State v. Bryant, 285 Kan. 970, Syl.

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