State of Kansas, Appellee, v. Jason Daniel Barry, Appellant. (2026)

MODIFIED OPINION 1

MEMORANDUM OPINION

Jason Daniel Barry appeals the denial of his motion for mistrial following a three-day jury trial. Barry moved for mistrial because throughout the trial, multiple witnesses made references to Barry's prior sexual misconduct and the State did not file a motion before trial to admit such evidence. On review, we find no abuse of discretion where the evidence was not unduly prejudicial, and we affirm the district court's denial of his motion for mistrial.

Background

In December 2023, the Miami County District Court conducted a three-day jury trial on four charges of sexual misconduct brought against Barry involving three different minor victims. We reference those victims as John Doe, Randy Doe, and Jane Doe. Count 1 alleged Barry engaged in aggravated criminal sodomy, on or about January 1, 2020, with John. Count 2 claimed Barry engaged in aggravated criminal sodomy (or in the alternative, criminal sodomy), on or about the same date, with Randy. Count 3 alleged Barry engaged in aggravated criminal sodomy (or in the alternative, criminal sodomy) on or about July 14, 2020, with Randy. Count 4 alleged Barry engaged in a sexual battery on Jane, sometime between June 30, 2019, and July 13, 2019. Trial testimony explored the facts underlying these charges, and some detail of that testimony is necessary to address Barry's appellate challenge.

In his opening statement, Barry's counsel argued that the evidence would show that the sexual acts between Barry and Randy were consensual. Barry also argued that a lack of evidence would show no sexual acts occurred with Jane or John. The State's first witness, Detective Marc Miller of the Paola Police Department, testified regarding his interview with Randy. The State then asked if Detective Miller and Randy discussed prior sexual incidents that occurred with Barry.

“[PROSECUTOR]: So to be clear, was this, this was the only incident of actual anal penetration that he described?

“DET. MILLER: Correct.

“[PROSECUTOR]: And the prior incidents involved oral penetration.

“DET. MILLER: Correct. [Randy] did agree—[Randy] did state that Mr. Barry had tried to have anal sex with him in the past, um,

“[BARRY'S COUNSEL]: Again Judge. Objection. May I approach?”

After a sidebar between the district court and counsel, the court advised the jurors to “disregard any statements of Detective Miller referencing any ․ attempts to commit any kind of offense on [Randy].” The sidebar conversation was not transcribed.

Detective Miller then testified that Randy described a video on Barry's cellphone of Randy performing oral sex on Barry, and further recounted his interview with Barry. The prosecutor asked if Detective Miller asked why Barry slept in a camper outside his home. Detective Miller responded, “When we spoke to Mr. Barry ․ he told us that he was sleeping out there due to previous allegations of ․ [s]exual issues with the kids.” Barry's counsel objected and there was a sidebar between the court and counsel. This sidebar conversation likewise was not transcribed, and the district court did not rule on Barry's objection on the record. After the sidebar, the State continued direct examination, and the court gave no instructions to the jury. Before defense counsel cross-examined Detective Miller, the district court requested a sidebar with counsel. This sidebar conversation was not transcribed.

The State next called retired Paola Police Department Captain Kevin Colwell to testify. Captain Colwell testified to his interview with John, and discussed two prior sexual incidents between John and Barry that John described to the officer. Captain Colwell stated the first incident involved John being made to “jack [Barry] off” and the second incident involved John being made to put “his mouth on [Barry's] penis.” Before beginning Captain Colwell's cross-examination, Barry's counsel requested a sidebar with the judge and counsel. Again, the sidebar conversation was not transcribed.

As trial continued, the State called Mary Doe—mother of the three victims—to testify. The State questioned whether Mary recalled speaking with Barry about a missing sex toy. Mary testified that her vibrating dildo had gone missing, and when she asked Barry, “it came out that [Barry] told my oldest to come get it out of my bag and bring it out to the camper. But it magically showed up back in the house like the next day.” Barry objected to this testimony and a sidebar conversation ensued between the court and counsel, which was not transcribed. After the sidebar, the State continued questioning Mary.

Detective Miller then retook the stand to testify to the contents extracted from Barry's cellphone. The detective shared that a video and photo were extracted from Barry's cellphone, and this photo showed Barry in the camper. Detective Miller testified that the video showed Randy with another male; the other male's face is not seen in the video but Barry's voice can be heard.

The State called all three victims to testify. During Jane's testimony, she discussed a family camping trip in 2019. Although she did not know the exact dates of the trip, she recalled it was around the Fourth of July holiday. Jane testified that during the camping trip, Barry made her get fully undressed and lay on the bed in the camper while Barry and Randy masturbated, and Barry ejaculated on her. During cross-examination, Barry asked if this act had ever occurred before and Jane agreed that it had not.

At the outset of John's testimony, the State instructed John to answer only what was asked, advising that if more information were needed additional questions would be asked. John testified that Barry would force John to commit sexual acts with him, including that he was made to put his mouth on Barry's penis. John's testimony included statements indicating Barry forced him to perform sex acts on more than one occasion. Before beginning his cross-examination of John, Barry's counsel again requested a sidebar with the judge and counsel, which was not transcribed.

Randy was the final victim to testify. The prosecutor asked Randy if he had spoken with his mother about prior sexual acts with Barry. Barry's counsel objected and requested a sidebar. Although the sidebar conversation was not transcribed, when the transcript continued, the prosecutor stated, “I'll try and keep this as specific as I can” before continuing to question Randy.

“[PROSECUTOR]: When you told your mother about, well and, is that for both incidents we've talked about or just one of them?

“[RANDY]: All of them.

“[PROSECUTOR]: Okay.

“[RANDY]: Including the ones that we haven't talked about yet.

“[DEFENSE COUNSEL]: Objection, Judge. May I approach?

“JUDGE HARTH: You may.

“[Side bar with Judge Harth, counsel and Jason Barry]

“JUDGE HARTH: The jury will disregard the witness’ last statement.”

Before beginning his cross-examination of Randy, Barry requested another sidebar with judge and counsel, which was not transcribed.

After the State rested and the jury left the courtroom, the district court heard Barry's motion for acquittal. Barry argued the State had failed to provide evidence of the victim's age in relation to Count 2 and Count 3. The district court denied Barry's motion for acquittal. The district court then heard Barry's motion for mistrial. Barry argued that the State failed to file a motion before trial to present evidence under K.S.A. 60-455 of Barry's prior bad acts.

Barry recounted, and the district court agreed, that his first motion for mistrial occurred on the first day of trial, after Detective Miller referenced Barry's prior sexual acts with Randy and the district court took that motion under advisement. The district court noted that a second motion for mistrial was made during Detective Miller's testimony, which the district court denied because the reference to a sex act was the factual basis of the pending charges. Barry also described how he had requested a sidebar after Captain Colwell referenced the “hand job” depicted by John. Barry argued these references did not allow him the opportunity to properly cross-examine witnesses, and these references infringed on his right to a fair trial. Barry reasoned that these references to prior acts compounded on one another, especially during Randy's testimony. Again, Barry argued the references to all other acts deprived him of a chance for proper cross-examination; in fact, he chose to limit his cross-examination of Randy in an attempt not to draw attention to the prior sexual acts referenced.

As to Captain Colwell's testimony, the State argued in response that “whether or not that truly constituted a separate act is unclear and I think during [John's] testimony, it was made clear that that was part of a singular incident.” The district court referenced the probable cause affidavit in which John stated sexual acts with Barry had occurred weekly and asked the prosecution why a motion under K.S.A. 60-455 was not filed before trial. The State admitted it neglected to file such a motion in this case but argued its “questioning [had] been very targeted and very intentional to try and avoid this issue arising and ․ as we've seen several of these issues have been made clearer as the testimony proceeded.” The State also argued that because of the different dates of each charge, any questions relating to earlier acts were all related to the charges at trial. The State argued that “mistrial is the most extreme option” and cited State v. Navarro, 272 Kan. 573, 582, 35 P.3d 802 (2001). The State stated it had no objection to a curative instruction but deferred to Barry to make such a request. Barry responded that admonitions often “bring attention to something that should be ignored.”

The district court noted that Barry made five or six motions for a mistrial throughout the jury trial, and it denied three of the motions during trial and took the others under advisement. The district court asked if references to prior sexual acts with Randy resulted in prejudice to Barry since prior sexual acts were consistent with the defense theory of consent between Barry and Randy. Barry argued the resulting prejudice was his inability to question the witness without bringing up these prior incidents, which would make Barry “look ‘way, ‘way, ‘way worse.”

The district court found that the two admonitions to the jury to disregard Detective Miller's and Randy's statements were curative and found the references to other incidents were “pretty vague.” It also concluded that the references to prior sexual acts with John were not “misleading or suggestive” given the totality of the evidence. The district court interpreted Randy's testimony as a factual inconsistency rather than “an indication that there were additional events” years prior. In sum, the district court denied Barry's motion for mistrial, finding that the statements were not so prejudicial as to require granting a mistrial, but did point out that these references to other sexual acts should have been addressed “ ‘way in advance of trial.”

During the jury instruction conference, neither Barry nor the State objected to the proposed limiting instruction. The curative instruction given to the jury read:

“Evidence has been admitted alleging Mr. Barry has committed offenses other than the crimes charged. You may not convict the defendant on a charged crime because you believe he committed another unlawful act. Further, you may not consider this evidence in determining whether the [S]tate has proven any of the charged crimes beyond a reasonable doubt. It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified. A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference of guilt from the fact that the defendant did not testify and you must not consider this fact in arriving at your verdict.”

The jury found Barry guilty of one count of aggravated criminal sodomy, an off-grid felony; two counts of aggravated criminal sodomy, each a severity level one person felony; and one count of sexual battery, a Class A misdemeanor. Barry timely appeals.

Motion for Mistrial

Barry's motion for mistrial is based on claimed prejudice caused by the State's introduction of testimony of his prior bad acts, which occurred without a preceding motion under K.S.A. 60-455(e). Analysis of the motion for mistrial necessitates an analysis of the State's requirements under K.S.A. 60-455(e).

Preservation

We first address the State's argument that this issue was not preserved because Barry raised only two timely objections to evidence of other bad acts under K.S.A. 60-455.

An appellant is required by K.S.A. 60-404 to make a timely objection to evidence to preserve the issue of erroneous admission of the evidence for appeal. The Kansas Supreme Court has held, however, that the preservation rule in K.S.A. 60-404 does not apply on a defendant's appeal from a district court's decision to deny a motion for mistrial. In re Care and Treatment of Sigler, 310 Kan. 688, 707, 448 P.3d 368 (2019). “K.S.A. 60-404 governs appeals relating to the erroneous admission of evidence․ And neither K.S.A. 60-404 nor any other authority requires an objection before a district court considers whether to declare a mistrial.” 310 Kan. at 707.

Even if Barry did not make proper contemporaneous objections during the trial, there is no preservation issue under K.S.A. 60-404 which prevents us from considering Barry's motion for mistrial. By moving for a mistrial at the close of evidence, Barry has preserved his argument that the district court erred in denying his motion for a mistrial.

Standard of Review

Appellate courts review a district court's grant or denial of a mistrial under K.S.A. 22-3423 for abuse of discretion. State v. Butler, 321 Kan. 493, 506, 581 P.3d 1261 (2026). A motion for mistrial pursuant to K.S.A. 22-3423(1)(c) requires a two-step analysis: “First, the court must decide whether the alleged misconduct or error caused a fundamental failure in the proceeding.” Butler, 321 Kan. at 505. If the court determines there has been a fundamental failure, the court then proceeds to the second step to determine “whether the fundamental failure in the proceeding resulted in prejudice that cannot be cured by an instruction or admonition, making it impossible to continue the trial without injustice.” 321 Kan. at 505-06.

Appellate courts review the trial court's decision to deny a motion for mistrial for an abuse of discretion. Judicial discretion is abused if the court's action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. The party claiming the district court abused its discretion bears the burden to demonstrate such abuse. 321 Kan. at 506.

To the extent that statutory interpretation is needed, appellate review is unlimited. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

State's Requirements under K.S.A. 60-455(e)

To decide first whether the court erred in admitting evidence and thus created a fundamental failure in Barry's trial, we turn to the requirements of K.S.A. 60-455(e):

“In a criminal action in which the prosecution intends to offer evidence under this rule, the prosecuting attorney shall disclose the evidence to the defendant, including statements of witnesses, at least 10 days before the scheduled date of trial or at such later time as the court may allow for good cause.”

Other panels of our court have emphasized the plain language of this statute when deciding whether the prosecution violated its mandates. For example, this court previously held that the 10-day notice requirement “is predicated upon the prosecutor's intent to offer prior crimes evidence.” (Emphasis added.) State v. Fulson, No. 109,721, 2014 WL 2871327, at *3 (Kan. App. 2014) (unpublished opinion). In Fulson, the defendant was convicted by jury of aggravated battery. On appeal, Fulson argued that a detective's testimony that he found a photo of Fulson “ ‘from past history’ ” was improper evidence of Fulson's prior criminal acts. 2014 WL 2871327, at *2. Fulson argued the prosecutor had not given Fulson the required notice under K.S.A. 60-455(e) before eliciting this testimony. Our court found the prosecutor did not violate K.S.A. 60-455(e) because the prosecutor did not intend to introduce such evidence, and the witness’ unexpected testimony was not the fault of the prosecutor. 2014 WL 2871327, at *3.

In a more recent case, another panel of this court analyzed another requirement of K.S.A. 60-455(e). State v. Berry, No. 118,049, 2019 WL 1575374 (Kan. App. 2019) (unpublished opinion). In Berry, Berry was charged with one count of criminal sodomy, one count of attempted criminal sodomy, one count of aggravated indecent liberties with a child, and one count of attempted aggravated indecent liberties with a child. The four counts arose from two incidents that occurred a year apart. The State filed a motion seven days before trial to admit evidence of Berry's prior sexual misconduct under K.S.A. 60-455, which the district court granted. On appeal, Berry argued that the State's motion should have been denied due to its untimely filing and the unduly prejudicial nature of the evidence. This court found the plain language of K.S.A. 60-455(e) requires a prosecutor “only to disclose the evidence to the defense 10 days before trial.” (Emphasis added.) 2019 WL 1575374, at *4. The evidence in the State's motion had been disclosed to Berry in a report several months prior. For this reason, this court held that the State had not violated the statute's notice requirement. 2019 WL 1575374, at *4.

Here, the State concedes it failed to file a motion in this case under K.S.A. 60-455. Even so, it is conceivable that the State's failure to file a motion under K.S.A. 60-455(e) before trial may not violate the statute if the State complied with the plain language requirements of the statute.

The testimony Barry challenges comes from various witnesses, elicited on direct examination by the State. Barry takes issue specifically with the references made by Detective Miller, Captain Colwell, and victim, Randy. Detective Miller referenced past attempts by Barry to have sex with Randy, which the district court judge advised the jury to disregard. Detective Miller also referenced “previous allegations” when asked by the State why Barry slept in a camper outside the home. Captain Colwell referenced an incident in which John was forced to masturbate Barry. The State asked if Randy had ever discussed with his mother other sexual acts with Barry, and Randy responded he had two years earlier. Randy also referenced other sexual incidents with Barry, which the district court judge advised the jury to disregard.

While the State was arguing against Barry's motion for mistrial, the district court asked the State if the testimony at issue was a surprise, to which the State responded, “I think I knew there was going to be some. “So, the record shows the State knew there was at least a possibility that evidence of Barry's prior bad acts would come out through witness testimony. The record does not show, however, that the State specifically intended to introduce or elicit testimony of Barry's prior bad acts.

Moreover, the district court acknowledged in the same discussion that the probable cause affidavit included references to Barry's prior bad acts, which would have put the parties on notice of potential bad acts evidence. Barry does not argue that this affidavit was withheld from discovery, yet the record does not reflect the date on which Barry received it. Barry waived an evidentiary preliminary hearing but at the nonevidentiary preliminary hearing three years before trial, Barry's counsel stated he had received and reviewed discovery from the State. If Barry had received the affidavit in advance of trial, the disclosure requirement of K.S.A. 60-455(e) might have been satisfied. If the State did not intend to offer prior bad acts evidence, and the evidence was contained within the probable cause affidavit provided to the defense, perhaps there was no meaningful violation of K.S.A. 60-455(e).

But we need not decide as much on the record before us. Even assuming the State erred by failing to file a motion under K.S.A. 60-455(e), as we examine below, we find the evidence was not unduly prejudicial and, as a result, the district court did not abuse its discretion by denying the motion for mistrial.

Motion for Mistrial

We first acknowledge that K.S.A. 22-3423(1)(c) provides the standard for considering a motion for mistrial. Applicable here, a trial court may terminate the trial and order a mistrial at any time that the court “finds termination is necessary because ․ prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(1)(c).

“When considering a challenge to a district court's ruling on a motion for mistrial pursuant to K.S.A. 22-3423(1)(c), an appellate court considers the record as a whole and reviews the district court's determinations of (1) whether prejudicial conduct occurred, and (2) whether curative measures mitigated the prejudice—i.e., rendered it harmless—for abuse of discretion.” State v. Brown, 322 Kan. ___, Syl. ¶ 1, 2026 WL 2357418, at *1 (2026).

“Judicial discretion is abused if the court's action is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion.” Brown, 322 Kan. ___, Syl. ¶ 2, 2026 WL 2357418, at *1. Here, the district court found that the admitted statements regarding Barry's prior acts were not so prejudicial as to require granting a mistrial.

While Barry's appeal was pending, our Supreme Court reexamined the standard of review for motions for mistrial in Brown, 322 Kan. ___, slip op. at 3, 2026 WL 2357418, at *1. The court disapproved of its use of the “fundamental failure” language in its prior opinions, preferring the relevant language in K.S.A. 22-3423(1). Here, the district court did not have the benefit of Brown when making its decision. Even so, the timing of the Supreme Court's analysis in Brown does not prevent us from reviewing the district court's ruling on Barry's motion for mistrial. The language of K.S.A. 22-3423 governing the district court's decision to grant a mistrial has not changed. And we still utilize a two-step process when reviewing a district court's ruling on a motion for mistrial: (1) did prejudicial conduct occur making it impossible to proceed with the trial without injustice to either party, and (2) whether curative measures mitigated the prejudice rendering it harmless.

Excluding the challenged statements, a review of the record shows that other evidence presented at trial included: a video of Randy performing oral sex on a man; testimony regarding Randy's sexual assault examination and the DNA evidence recovered from that examination; testimony of other DNA evidence, including semen found on a pillowcase which related to the allegations of the battery on Jane; testimony of each of the three victims recounting the sexual acts; and testimony of the victims’ mother corroborating some of the victims’ testimony.

Given the significant amount and strength of this evidence, even if the references by the victims and by Detective Miller and Captain Colwell—which essentially restated information relayed by Randy and John—constituted prejudicial conduct, it was not impossible to proceed without injustice. The challenged statements were but a few statements throughout a multi-day trial, and we find no injustice given the totality of the evidence. Additionally, the other evidence presented at trial was overwhelming, and the curative measures taken by the district court—including two admonitions and a curative jury instruction—appropriately mitigated any harm. Because the admission of the prior acts testimony was not unduly prejudicial in light of the considerable evidence against Barry, the district court did not abuse its discretion by denying Barry's motion for mistrial.

Affirmed.

Per Curiam: