Dale E. Geer, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

In this appeal, we review the denial of Dale E. Geer's motion filed pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel. Geer was convicted by a jury of multiple crimes related to the sexual assault of a 15-year-old child. His convictions and sentence were affirmed on direct appeal. Geer then filed a motion for relief under K.S.A. 60-1507, alleging his trial counsel was ineffective.

While Geer's motion included multiple claims of ineffective assistance of counsel, the resolution of Geer's first claim is dispositive of this appeal. While Geer's attorney had knowledge of the victim's significant mental health issues, that attorney failed to obtain the victim's mental health records. Those records revealed a very troubled youth with a significant history of mental illness. We find that Geer's trial counsel was ineffective in failing to obtain the victim's records, because Geer was denied an opportunity to request a psychiatric examination of the victim pursuant to State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), and because he was denied his right to impeach the victim in violation of the Confrontation Clause of the United States Constitution. We also find that because there is a reasonable probability the result of Geer's jury trial would have been different had his attorney obtained the victim's mental health records, Geer suffered prejudice. Accordingly, we reverse the district court's denial of Geer's K.S.A. 60-1507 motion and remand with instructions for the district court to vacate his convictions.

Factual and Procedural Background

Following a jury trial, Dale E. Geer was convicted of two counts of rape, two counts of aggravated indecent liberties with a child, and kidnapping based on events that occurred on June 28 and 29, 2010. The alleged victim was Jane (pseudonym), a 15-year-old female. A court-appointed attorney, Julie Effenbeck, represented Geer at trial.

Jane testified at trial about the events that occurred on June 28 and 29, 2010. She recalled that on Monday, June 28, 2010, Geer approached her at an apartment complex in Concordia, Kansas, where she lived with her family. Jane testified that she knew Geer because he did maintenance work at the complex. Jane described that she would sometimes help Geer and his brother with painting or other tasks.

Jane stated that Geer asked her to come talk to him in the apartment unit where he was working. She testified that after they entered the apartment, Geer locked the front door, threw her on a couch, and sexually assaulted her. Jane stated that Geer stopped when Jane told him she had an appointment.

Jane also testified about the events of Tuesday, June 29, 2010. She stated that after lunch on that day, Geer told Jane to ask her mother if she could help him work on another unit. Jane asked, and her mother allowed her to go. Jane and Geer entered a vacant apartment and Jane stated that when she realized no one else was there, she tried to leave. Jane testified that Geer grabbed her arm and another sexual assault occurred. Jane stated that Geer allowed her to leave when an alarm went off on her phone to remind her of an appointment at 4 p.m. Jane said she left and went home where Susan Newton of Pawnee Mental Health Services (“Pawnee”) was waiting with Jane's mother to take her to the appointment. Jane had been diagnosed with anxiety disorder, depression disorder, and oppositional defiance disorder and received therapy at Pawnee twice each week.

Jane then described that on June 30, 2010, she told her boyfriend that Geer had sexually assaulted her. Later that day, Jane told her mother who called the local police. Jane gave a statement to law enforcement and a nurse at a local hospital conducted a sexual assault examination. During that examination, Jane described both incidents to the nurse. The nurse testified at trial that Jane had bruising consistent with a sexual assault and consistent with her description of Geer's physical restraint of her.

Geer testified at trial in his own defense. He recalled that he spoke with Jane on June 28, 2010, because he wanted to discuss some disputes that had arisen after Jane and Geer's nephew had ended a relationship. Geer described that Jane followed him into an apartment, and he retrieved a drink from the refrigerator. Geer stated that he talked to Jane for a short time, and then someone knocked on the front door. Geer testified that Jane was only in the apartment for a short time.

Geer also testified that on June 29, 2010, he asked Jane to help with some repairs in an apartment. Geer believed that he went to the apartment around noon, determined what tools he would need, walked to the shop where he stored his tools, and back to his apartment. On the way to the apartment where he planned to work, he encountered Jane, who told him she was bored. Geer offered to put Jane to work. He described that after Jane obtained her mother's permission to help they both went to the apartment. Geer testified that Jane did not help and was instead disruptive and kept getting in his way. Geer recalled that Jane ended up with drywall mud on her legs. Geer testified that they were not there long when he received a call from his ex-wife. Geer cleaned up what he had been working on, and both he and Jane left. Geer estimated that he was in the apartment with Jane for 30 to 45 minutes. Geer denied physically or sexually assaulting Jane at any time.

After Geer was convicted by the jury and sentenced by the district court, Geer filed a direct appeal and a panel of this court affirmed his convictions in State v. Geer, No. 106,063, 2013 WL 192423, at *1 (Kan. App. 2013) (unpublished opinion).

In 2015, Geer filed a motion pursuant to K.S.A. 60-1507 raising multiple issues. The district court held an initial hearing to determine if an evidentiary hearing was warranted. The district court determined that a hearing was necessary to address whether Geer's trial counsel was ineffective. After an evidentiary hearing, the district court denied Geer's claims.

Geer appealed. As the appeal proceeded, the parties discovered there was no official record taken of the evidentiary hearing and one could not be recreated. The case was remanded to district court for a new evidentiary hearing. Prior to the hearing, Geer was allowed to amend his petition in part. A second evidentiary hearing was held in 2023.

At the hearing, Geer and several other witnesses testified. Relevant to this appeal, Geer's trial attorney, Julie Effenbeck, testified. Effenbeck testified that she was appointed to represent Geer in his case. She started practicing law in Nebraska in 1990 and was admitted to the Kansas bar in 2004. Effenbeck described a heavy caseload with one or two homicide trials in 2010—around the time of Geer's trial.

Effenbeck testified that she was unsure where Geer's file was and could not remember if it had been given to an attorney who previously represented Geer on his K.S.A. 60-1507 motion. Effenbeck stated that to the best of her recollection, the defense theory was that Geer was innocent. Effenbeck testified that she remembered Jane was a little slow and had some emotional problems that caused her to receive treatment at Pawnee and have a caseworker. Effenbeck was asked about testimony from Geer's preliminary hearing within his criminal case. Effenbeck could not remember the hearing but reviewed the transcript and noted that there was testimony about Jane's diagnoses of “oppositional defiant disorder, anxiety disorder and severe depression.” Effenbeck testified that while she was aware Jane was receiving services from Pawnee, she could not recall if she requested Jane's medical records from Pawnee. Geer's attorney then reviewed the Pawnee records with Effenbeck while she was on the witness stand.

After reviewing the records, Effenbeck testified the Pawnee records could potentially have been used for a Gregg motion or to impeach Jane, especially as to the incident that was alleged to have occurred on June 28, 2010.

Following the evidentiary hearing the district court denied Geer's claims of ineffective assistance of counsel.

Analysis

Did the District Court Err by Denying Geer’s K.S.A. 60-1507 Motion?

Standard of Review

A district court must issue findings of fact and conclusions of law concerning all issues presented at an evidentiary hearing on a K.S.A. 60-1507 motion. Supreme Court Rule 183(j) (2026 Kan. S. Ct. R. at 242). An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

Discussion

Geer's first issue on appeal is that the district court erred by denying his claim that attorney Effenbeck was ineffective because she failed to obtain Jane's mental health records.

The right to counsel afforded by the Sixth Amendment to the United States Constitution “is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Chamberlain v. State, 236 Kan. 650, 656, 694 P.2d 468 (1985).

“Claims of ineffective assistance of trial counsel are analyzed under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must show that defense counsel's performance was deficient. If successful, the court moves to the second prong and determines whether there is a reasonable probability that, absent defense counsel's unprofessional errors, the result would have been different.” State v. James, 319 Kan. 178, 184, 553 P.3d 308 (2024) (citing State v. Evans, 315 Kan. 211, 217-18, 506 P.3d 260 [2022]).

Was Trial Counsel’s Performance Deficient for Failing to Obtain Jane’s Mental Health Records?

It is uncontroverted that despite having knowledge that Jane suffered from several mental illnesses, his trial counsel, Effenbeck, did not attempt to obtain Jane's mental health records from Pawnee. Geer asserts that Jane's mental health records would have served two purposes: (1) to provide support for a motion for psychiatric examination of Jane under State v. Gregg, and (2) allow for Jane's impeachment at trial.

Before analyzing whether Geer's trial counsel was deficient in either of these aspects, we must first determine what evidence would have been available had Effenbeck obtained Jane's records. To that end, the record on appeal contains Jane's mental health records from Pawnee beginning in January 2009—approximately 18 months prior to the dates of the allegations in this case. Jane's mental health records from Pawnee are voluminous, and we highlight here only those records we find relevant to Geer's issue on appeal.

January 2009 records

Jane's mental health records reveal a troubled youth. A mental health screening was conducted for Jane at the Concordia Police Station in January 2009. The report from that screening indicates that Jane was refusing to go to school, had received in-school and out-of-school suspension, had thrown books at the principal, and had walked out of school, which led to a physical altercation with the police. The report also indicates that Jane occasionally heard a voice calling her name. The report indicated that Jane was a danger to herself because she bit her own right arm when angry. It also indicated she was a danger to others because she had physically assaulted her principal and brother. The report recommended voluntary admission to KVC Star State Hospital.

The records also contain a “Child Behavior Checklist” that was completed on January 28, 2009. Part of that form contained information from Jane's mother, who indicated that Jane suffered from “OCD, anxiety disorder, [and] depression.”

The January 2009 records also contain pleadings from a 2009 child in need of care case concerning Jane. The journal entry of adjudication from that case indicates that Jane was adjudicated as a child in need of care because she was failing to attend school, and because adults were using illegal substances in the home.

February 2009 records

There is a series of progress notes from Pawnee that occurred on February 4, 2009—but each note reflects a different time throughout the day when Jane was seen by a provider. These notes reflect ongoing issues with Jane attending school and controlling her emotions. They describe an incident where Jane refused to go to school and the police were called. One note with a service time of 6:15 p.m. indicates that Jane continued to struggle with potential harm to herself and others. The report indicated that Jane's biological father had recently joined the family after a long period of not having contact. Part of the report discusses that the father was unhappy because the pastor of his ex-wife's church had accused him of being sexually inappropriate with Jane.

A Pawnee progress note from February 22, 2009, reflects that Vickie Zadina, a provider for Pawnee, had attended court to observe a child in need of care case concerning Jane. Zadina described the following incident:

“While mom was meeting with the interested parties in a closed office, [Jane] was sitting by her half-brother (whom she had only met a few days prior) in the hallway. While they were sitting there, [Jane] was laying across his lap and began sucking on his finger. At first she took his hand into hers. Then she one by one folded down all the fingers and thumb except the pointer finger. She then took his pointer finger and moved it in and out of her mouth sucking on it. After watching this for a few minutes I let [Jane] know that this behavior was inappropriate and that she needed to stop. They both looked at me. [Jane] got a smirk on her face and began doing it again. At this time her half-brother began licking up and down the entire side of her face. The entire time they were laughing and giggling. They continued to lay across each others laps, with their arms around each other until the brother went outside to smoke a cigarette. I spoke to my supervisor about my concerns regarding [Jane]’s behaviors.”

March 2009 records

On March 5, 2009, a different provider, Pat Prindaville of Pawnee, addressed the February 22, 2009, incident with Jane:

“I confronted [Jane] with some of her behaviors surrounding sitting on her biological father's lap and sucking on her step-brother's fingers at the court hearing. [Jane] negated this and stated that she didn't do it. She stated that everybody was lying about her and then became quite obscene using the words F and C with the 2nd word indicating a negative name for a vaginal area. She then turned around and became quiet until her mother entered the room. I then asked her to turn back around which she did. Throughout the session she was rather provocative with her father when he joined us.”

Also in March 2009, Jane's therapist at Pawnee completed a “Pawnee Mental Health Services Diagnosis Update.” That record indicates that Jane's diagnoses included oppositional defiant disorder, panic disorder without agoraphobia, and major depression. The report concluded that Jane had been placed in the Kaw Valley Star Level 6 facility without discernible results. At this point, Jane had become involved in the juvenile justice system and had been placed in foster care.

April 2009 records

Another child behavior checklist was completed for Jane in April 2009, but this time, some of the information was obtained from Jane's foster mother. The foster mother reported that Jane was exhibiting “attention seeking behaviors.” The foster mother also indicated some issues with Jane lying.

The next document in the record is a Kansas Department for Children and Family Services’ (“DCF”) report titled “Children With Serious Emotional Disturbance ․ Plan of Care.” Notably, one of Jane's needs identified in the plan was to “address lying” and “to always tell the truth.”

May 2009 records

Another progress note from Vickie Zadina on May 7, 2009, reflects:

“Mom shared times she talked with Dad and [Jane] about how their physical contact and behaviors were crossing the line as far as mom was concerned (one day in the pick-up when mom was following them in the family van, [Jane] scooted over by her dad [and] dad had his arm around her. Mom called them to stop the pick-up and told [Jane] she needed to get back on her own side of the truck. She then told dad that someone driving by might think they were boyfriend/girlfriend rather than father [and] daughter.”

June 2009 records

A progress note from Vickie Zadina on June 16, 2009, reflects a violent incident that occurred. Zadina documented that Jane, her mother, and her brother attended a youth conference. Zadina transported Jane and her mother, but the brother was required to ride with a grandmother due to other ongoing issues. Zadina described that Jane began “kicking the seat, hitting herself, pulling her hair, and making demands that we put her brother back into the van with us.” Zadina stated that driving became unsafe and she pulled into a truck stop to try to calm Jane down. Jane continued kicking, screaming, and pulling her own hair for approximately 25 minutes, until Zadina threatened to call the police. Jane indicated that she hated Zadina because someone had reported her half-brother being inappropriate with Jane. Zadina described that “after [Jane] had calmed down her mother explained to [Jane] that the brother had admitted to the behaviors [Jane] was referring to.” Eventually, Zadina was able to calm Jane enough to drive home.

September 2009 records

Another child behavior checklist was prepared for Jane on September 22, 2009. Jane's mother reported that she continued to be diagnosed with depression and continued to have outbursts of anger. Jane's mother also reported that Jane “has been seeing images at night while in bed. She needs light on.”

DCF prepared a permanency plan for Jane in September 2009 that was to remain in effect through March 2010. One of the reasons given for agency involvement was that Jane “has exhibited inappropriate boundaries with male family members.” At this point, Jane had been returned to her mother's home. The plan involved meeting Jane's mental health needs and providing a stable home.

January 2010 records

Jane continued to receive treatment at Pawnee, and the next relevant record is a progress note prepared by Susan Newton on January 6, 2010. In this note, Newton documented that “Mom told me that [Jane] was saying that she was seeing clowns at night before wanting to go to sleep for the night.” Newton encouraged Jane to talk to her therapist about the issue and to continue to use a night light.

March 2010 records

A progress note created by Susan Newton on March 24, 2010, reflects that Jane reported to Newton that her father had physically harmed her on multiple occasions:

“She began to tell me that he has had her pinned down on her bed with her fists inside of his. He then pushed her fists into the head board leaving dents. She also stated that her head was hit against the headboard also. She then began to tell he had pulled her out of her room and shoved her up against the wall leaving a hole.”

Jane also disclosed that her older sister had inappropriate sexual contact with her:

“She then began to tell me that she would never have her kids be alone with her sister because she is a hoe. She began to say that her sister had done some things to her and her brother but she would not elaborate on them. She stated it is done and over with. She no longer lives with me. [Jane] did confirm that it was in a sexual manner.”

April 2010 records

In a progress note dated April 22, 2010, Pat Prindaville documented an incident that had occurred between Jane and her father the night before:

“Last night [Jane]’s dad ․ reportedly came home drunk. He went to pick up [Jane] from her friend's house. He asked for a hug from [Jane] and she refused. According to [Jane] ‘he wouldn't take no for an answer.’ He became enraged when she continued to resist his efforts and then purportedly threw a beer bottle at her.”

Another progress note from the same day, prepared by Andrea Jones of Pawnee, reflects that as a result of the altercation with her father, Jane was again removed from the parental home and placed with her grandparents.

May 2010 records

A May 24, 2010, progress note by Susan Newton reflects that Jane was attending a summer program when she was asked to hand over her cell phone. She did so, but then refused to participate in an activity, screaming profanities, banging her fist on a table, and knocking down a chair. Jane's mother picked her up early for an appointment.

June 2010 records

A “Client Group Progress Note” was created on June 28, 2010, by Brandi Petersen. This document reflects that Jane participated in the Concordia Summer Program on June 28, 2010, from 10 a.m. to 12 p.m., and again from 12:30 p.m. to 3 p.m. The note reflects that Jane was present during lunch and helped prepare a taco salad with her peers. This is relevant because Jane testified that the first of Geer's sexual assaults occurred on June 28, 2010.

A progress report on June 29, 2010, created by Susan Newton indicates that she had a session with Jane and her mother that day at 3 p.m. Jane reported seeing her dad at a local Walmart, and that he was chasing her. Jane's mother reported that Jane's father was seen outside the home, taking pictures. Newton discussed with Jane how to handle the situation again if she sees her father. This date was the second date Jane alleged Geer sexually assaulted her. Jane testified that the assault occurred in the afternoon and Geer allowed her to leave when an alarm went off on her phone to remind her of an appointment at 4 p.m. Jane said she met Susan Newton of Pawnee at home and traveled with her to her appointment. This record states that Jane had a session with Newton at 3 p.m. at Pawnee.

Post-incident records

As we conclude our review, we will highlight a few of the relevant medical records that were created after the dates of the allegations in this case. A progress note written by Andrea Jones on July 1, 2010, reflects that Jane reported being raped on June 28 and 29, 2010. The report contains basic details of the allegations and that Jones took Jane to fill a prescription.

There are also records in the Pawnee file from the emergency room visit and sexual assault examination that occurred on July 1, 2010, at Salina Regional Medical Center. The victim information and sexual assault information form reflects that Jane reported her assailant as “Daryl Mihn.” Jane also provided the account of the events to the nurse that examined her.

Susan Newton prepared another progress note on August 24, 2010. It indicates, “Mom stated earlier in phone conversation that [Jane] had talked to her dad last week. Her dad does not believe that she was raped. Dad was at court supporting the man that was accused of raping [Jane].” Jane indicated that she hated her dad and never wanted to see him again.

Additional progress reports indicate that Jane continued to see therapists at Pawnee while the criminal case against Geer progressed.

On September 21, 2010, a progress note written by Susan Newton indicates that Jane's mother reported Jane “was seeing a black blob that made a really loud screaming sound but no words at night when she would try and sleep.” The report does not reflect whether any action was taken to address this issue.

Did the absence of Jane's mental health records prevent Geer from bringing a successful Gregg motion?

Having highlighted the relevant portions of Jane's Pawnee mental health records, we turn to whether the absence of those records prevented Geer from bringing a successful Gregg motion. In Gregg, 226 Kan. at 489, the Kansas Supreme Court ruled that a district court may order a psychiatric examination of a complaining witness in a sex crime case if the defendant offers a compelling reason to do so. Whether or not the evaluation is admissible is a separate consideration. The Gregg court found no abuse of discretion after the trial court denied the defendant's request for a psychiatric examination, noting that “[n]o facts were stated or evidence introduced as to the child's mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.” Gregg, 226 Kan. at 490.

In State v. Berriozabal, 291 Kan. 568, 243 P.3d 352 (2010), the Kansas Supreme Court created a list of nonexclusive factors to assist district courts in determining whether compelling circumstances exist under Gregg that would justify a psychiatric examination of a complaining witness, including:

“(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.” Berriozabal, 291 Kan. at 581.

There is significant evidence in the Pawnee records that would have satisfied most of the factors from Berriozabal. First, the records from June 2010 forward contain some details of the allegations made by Jane as well as the progress of the case toward trial.

Second, we note overwhelming evidence in Jane's records of her mental instability. Jane was diagnosed with depression and oppositional defiance disorder. She was found to be a danger to both herself and others on multiple occasions. Jane often harmed herself by biting her own arm and pulling her own hair. She suffered from angry outbursts and was in a physical altercation with her principal, the police, and family members. The records reflect that Jane was having hallucinations. Jane's mental health required her to be hospitalized in a state mental hospital. Jane's mental instability continued through the date of the alleged incidents of sexual assault. We find under Berriozabal that there was significant evidence of Jane's mental instability.

Third, we find that the Pawnee records demonstrate Jane's lack of veracity. The records indicate DCF created a care plan for Jane. One of Jane's needs identified in the plan was to “address lying” and “to always tell the truth.” Jane's foster mother also reported that Jane had issues with lying. We find the records satisfy this factor.

Fourth, while there is no direct evidence that Jane has made similar allegations that have been proven false, closely related is the evidence from Jane's records that indicates inappropriate sexual contact with family members around the time of the allegations against Geer. The records indicate inappropriate sexual contact between Jane and her half-brother at the courthouse, Jane's “rather provocative” behavior toward her father during therapy appointments, Jane's mother's concerns about Jane's physical contact with her father and her sitting next to him in the truck, and Jane's disclosure that she had been molested by her older sister. This inappropriate contact between Jane and family members does not squarely fit any of the Berriozabal factors, but these factors are nonexclusive. 291 Kan. at 581. We find this evidence relevant to our analysis.

Finally, we see no evidence that pursuing a psychiatric evaluation of Jane could be considered a “fishing expedition.” 291 Kan. at 581. To the contrary, such a request would have been reasonable based on the overwhelming evidence of Jane's mental instability. Whether Jane provided an unusual response to what it means to tell the truth is not addressed by the records.

In denying Geer's claim for ineffective assistance of counsel, the district court concluded:

“Some criteria from the Gregg case guides the court to review the records for evidence of the child's mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination. While the victim had (and perhaps still has) some disorders, there was insufficient evidence of mental instability. Further, she was dishonest at times to skip school or about smoking marijuana, but overall, she was very candid and forthright with her therapist. The record did not reflect a significant lack of veracity. There were no records of similar charges against other men proven to be false. Finally, this court could not find a compelling reason that the victim should have been required to submit to such an examination.

“If trial counsel obtained the records in question and filed a Gregg motion, the court is not persuaded that she would have been successful. Failure to secure the records in an attempt secure a Gregg evaluation did not prejudice the movant.”

We disagree with the conclusions of the district court on two grounds. First, we find that its conclusions are not supported by substantial competent evidence because a reasonable person would not conclude that the evidence is sufficient to support the district court's finding that Geer would not have been successful in his Gregg motion. See Khalil-Alsalaami, 313 Kan. at 490-91; see also Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion).

In support of this conclusion, we note that the district court's factual findings are contradicted by the significant evidence of Jane's mental instability, case plan goals designed to address Jane's lying, and evidence of Jane's sexual contact with family members around the same time as the alleged incidents.

We also find that the district court erred as a matter of law in evaluating the evidence contained in Jane's mental health records under Berriozabal, 291 Kan. at 581. In State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d 835 (1999), a panel of our court considered whether the district court erred in denying a Gregg motion. At the motion hearing, “Bourassa's trial counsel explained to the district court that V.R. had been under psychological care ․ and had accused her father of sexually molesting her. The judge was also told that V.R. had reportedly mutilated two kittens and had a tendency to soil herself.” 28 Kan. App. 2d at 163.

On appeal, a panel of this court found that an evaluation under Gregg was warranted. The panel noted that Bourassa's attorney proffered

“evidence of V.R.’s mental instability and that she had made a recent charge of her father sexually molesting her. The motions judge was told V.R. had mutilated two kittens the previous summer and she had a tendency to soil herself. The State acknowledged V.R. was taking the drug Prozac and currently undergoing mental health counseling for behavioral disorders. Bourassa's attorney also brought to the district court's attention that V.R. had testified at the preliminary hearing that the rape occurred in the van, notwithstanding that her sister did not testify as to anything improper happening in the van.” 28 Kan. App. 2d at 166.

The panel held:

“Bourassa did provide facts as to V.R.’s instability, possible lack of veracity, and other reasons that supported the motion. The motion was neither a fishing expedition by the defendant nor a tactic intended to harass or intimidate V.R. We conclude Bourassa did present compelling reasons for V.R. to be evaluated, and the district court abused its discretion in denying his motion.” 28 Kan. App. 2d at 166-67.

As we have explained, because the evidence contained in Jane's medical records satisfies the factors from Berriozabal, we find a high likelihood that Geer would have been successful in obtaining a psychiatric examination of Jane through a Gregg motion. And we note that Effenbeck, Geer's trial attorney, admitted that if she had seen Jane's mental health records, she would have pursued a Gregg motion.

Having found that Geer would have a likelihood of success in bringing a Gregg motion, we then turn to the standard found in Strickland and consider whether Effenbeck's failure to obtain Jane's mental health records in order to pursue a Gregg motion resulted in a deficient performance. We note that the district court agreed Effenbeck's performance was deficient: “Trial Counsel should have secured those records and pursued a Gregg motion and reviewed the records for inconsistencies in the victim's testimony. Trial counsel's performance was deficient.”

A panel of our court considered a similar situation in State v. Frost, No. 98,433, 2009 WL 2371007, at *1 (Kan. App. 2009) (unpublished opinion). In Frost, a child victim alleged his mother's significant other, Frost, was sexually abusing him. The victim claimed that as an effort to get Frost to leave him alone, he began defecating in his clothes. 2009 WL 2371007, at *1.

As the case proceeded, Frost asked his attorney to order the victim's medical records concerning his treatment for bowel problems, but the attorney failed to do so. 2009 WL 2371007, at *2. Frost argued that a competent attorney would have obtained the victim's medical records “to disprove the State's theory that the child's bowel condition was induced by sexual abuse.” 2009 WL 2371007, at *4. The panel found, “[n]otwithstanding our duty to apply a heavy measure of deference to counsel's judgments, we find Crawford's decision not to make any attempt to obtain the child's medical records was unreasonable under the specific circumstances presented.” 2009 WL 2371007, at *4.

Similarly, even giving heavy deference to the decision of trial counsel, we find Effenbeck's failure to obtain Jane's mental health records from Pawnee was unreasonable. Effenbeck was aware of several of Jane's mental health diagnoses from evidence at Geer's preliminary hearing but nonetheless failed to subpoena the records. We find under the first prong of Strickland, Effenbeck's performance was deficient. See Evans, 315 Kan. at 217-18.

Turning to the second prong of the Strickland test, we must determine if Effenbeck's deficient performance prejudiced Geer. We note the district court erred in applying an incorrect legal standard in determining prejudice. The district court described the prejudice analysis as meaning the movant must show his “counsel's errors were so serious as to deprive him of a fair trial.” The test for prejudice is well-established:

“Once a defendant has established counsel's deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Bledsoe v. State, 283 Kan. 81, 90–91, 150 P.3d 868 (2007).

Here, the totality of the evidence before the jury indicates that this case boiled down to the credibility of Jane and Geer. In fact, the district court noted in its denial of Geer's K.S.A. 60-1507 motion that “this case was largely a credibility contest between the movant and the victim.” Geer was denied the opportunity to have Jane submit to a psychiatric examination pursuant to a Gregg motion. If the district court had granted that motion, it is possible based on Jane's significant mental health history that Geer would have discovered exculpatory evidence. And even if the district court denied the motion, Geer would have had the opportunity to appeal that decision. A panel of our court has considered the prejudicial effect of this situation:

“Had trial counsel revisited the Gregg motion, documented it with the full mental health records, supplemented the SRS records with witness testimony, and provided the district court with the affidavit from Jack Harvey more fully described below, the district court might have granted the motion. And, further, had the district court rejected a diligently presented and documented Gregg motion, that rejection could have been reviewed on direct appeal. We do not know what an independent examination would have disclosed, but trial counsel foreclosed Gadbury from any possible benefit by abandoning the effort to obtain it. We find that Gadbury was prejudiced by the poorly documented, prematurely withdrawn, and never supplemented, renewed, or argued Gregg motion.” Gadbury v. State, No. 111,367, 2015 WL 4094250, at *14 (Kan. App. 2015).

We find that Geer's inability to pursue a Gregg motion undermines confidence in the outcome of the trial. See Bledsoe, 283 Kan. at 90-91. Geer has been prejudiced by his counsel's deficient performance.

We note the State's argument that Geer's Gregg issue is moot based on K.S.A. 21-5112 which prohibits ordering “a victim of the crime to submit to or undergo either a psychiatric or psychological examination.” Procedurally, the State's argument is barred because it was raised for the first time on appeal without explanation as to why it was not raised in the district court. Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36); State v. Battle, 52 Kan. App. 2d 149, 152, 363 P.3d 424 (2015). Notwithstanding, K.S.A. 21-5112 was enacted in 2021—well after the incident date in this case. The State has not demonstrated the applicability of this statute to the facts of this case. The State provides no additional support for its assertion that the claim is moot. A point raised incidentally in a brief and not argued therein is deemed waived or abandoned. State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020).

Impeachment

As a second ground, Geer argues that his counsel was ineffective in failing to obtain Jane's medical records because without them, there could be no effective cross-examination and impeachment of Jane at trial.

We note that the district court found Effenbeck was constitutionally deficient in failing to obtain the Pawnee records. That finding was not appealed by the State. Moreover, the State did not brief a response to Geer's argument that he was prejudiced by Effenbeck's failure to obtain the Pawnee records for impeachment purposes and to establish an alibi for the June 28 alleged incident. The State has waived such an argument. Meggerson, 312 Kan. at 246.

Notwithstanding, Geer is entitled to relief on the merits. The right of impeachment is guaranteed by the Sixth Amendment to the United States Constitution.

“A defendant's right to impeach a complaining witness’ credibility is a fundamental right, protected by the Confrontation Clause of the Sixth Amendment: ‘In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.’ The primary purpose of the Confrontation Clause is to give the accused the opportunity for cross-examination to attack the credibility of the State's witnesses.” State v. Brooks, 297 Kan. 945, 952, 305 P.3d 634 (2013).

In Brooks, the Kansas Supreme Court considered whether Brooks’ right to impeach the complaining witness was violated by his attorney's deficient performance. Brooks alleged that his trial attorney was deficient for failing to request a trial continuance in order to develop a strategy to impeach the victim's credibility. Brooks, 297 Kan. at 948. Brooks’ argument was that the victim was not credible, and this fact could be proven by her lack of knowledge of a scar on his body. 297 Kan. at 951. Because Brooks’ attorney did not request a trial continuance to pursue this line of impeachment, the court held, “Although Brooks was provided the opportunity to cross-examine S.C., he was denied the opportunity to do so effectively because of his counsel's deficient performance.” 297 Kan. at 951-52. The court went on to find that Brooks was prejudiced by his attorney's ineffective performance. “Where a court has denied a defendant's opportunity to impeach a complaining witness, we have found reversible prejudice.” 297 Kan. at 952-53.

We return to Gadbury to consider this principle under a set of facts that demonstrates how the failure to pursue a Gregg motion may lead to an inability to cross-examine. The panel in Gadbury considered the impact of not pursuing a Gregg motion in the context of being able to conduct a meaningful cross-examination. 2015 WL 4094250, at *1. The victim, C.C., had been in a relationship with the defendant. She was undergoing psychological treatment for “seizures, disorientation, dissociative states, and playing the victim, as well as her methamphetamine abuse.” 2015 WL 4094250, at *12. There was also evidence that “C.C. had encouraged her minor daughter, A.C., who was in an out-of-home placement, to falsely accuse her resident custodians of physical abuse.” 2015 WL 4094250, at *12.

Defense counsel filed a Gregg motion but failed to pursue it as the case progressed. 2015 WL 4094250, at *13. In determining whether trial counsel's performance was deficient, the panel noted that “an independent evaluation, regardless of the outcome of that evaluation,” would have given trial counsel “information with which to confront C.C. in cross-examination, something they failed to do to any meaningfully adversarial extent regarding Gadbury's consent defense.” 2015 WL 4094250, at *13.

The panel also found that Gadbury was prejudiced by his attorney's deficient performance. It held that “trial counsels’ premature abandonment of the Gregg motion they filed and their failure to renew it was objectively unreasonable and constitutionally deficient. We also find that their deficient performance inured to Gadbury's prejudice.” 2015 WL 4094250, at *13.

Additionally, the evidence reflects that Geer lost his ability to impeach Jane on several aspects of her testimony. For example, Jane testified at trial she had never caused herself harm. Jane's mental health records from Pawnee contain multiple instances of significant, long-term, self-harm.

Geer also lost the opportunity to impeach Jane on her timeline of the events of June 28, 2010. Mental health records show that Jane was at Pawnee from 10 a.m. to 12 p.m. and from 12:30 p.m. to 3 p.m. The report also indicates Jane helped to serve lunch between 12 p.m. and 12:30 p.m. This information conflicts with what Jane told the nurse conducting her sexual examination when Jane stated Geer assaulted her after lunch. Moreover, Effenbeck admitted that this record could have formed the basis of impeachment because it showed Jane was in therapy at the time Jane alleged the sexual assault occurred on June 28, 2010. Additionally, a progress note from June 29, 2010, might have been used to impeach Jane's timeline as she testified that the sexual assault was interrupted by an alarm going off on her cell phone reminding her that she had an appointment at 4 p.m. The progress note reflects that Jane was present at an appointment at Pawnee that day at 3 p.m. Because Geer was not afforded an opportunity to impeach Jane using these mental health records, he was prejudiced.

We conclude by finding that Geer was prejudiced because he was denied his right to cross-examine and impeach Jane on the evidence contained in her mental health records that his trial counsel failed to procure. The evidence against Geer in this case was not overwhelming and boiled down to the credibility of Jane and Geer. We are convinced that had Geer been allowed to use Jane's mental health records to impeach her credibility, there is a reasonable probability “the result of the proceeding would have been different.” Bledsoe, 283 Kan. at 90-91. Geer was prejudiced by his attorney's deficient performance.

We reverse the district court's decision to deny Geer's K.S.A. 60-1507 motion, and remand with an order for the district court to vacate Geer's convictions consistent with this opinion. Because resolution of Geer's first claim resolves this matter, we need not consider Geer's remaining issues on appeal.

Reversed and remanded with directions.

Per Curiam: