State of Kansas, Appellee, v. James Edwin Speer, Appellant. (2026)

MEMORANDUM OPINION

A motion for new trial asks not merely whether evidence is new, but whether it matters. Here, unfortunately for James Edwin Speer, it does not. After a bench trial in Pawnee County District Court, the court convicted Speer of one count of rape and one count of aggravated criminal sodomy. Speer later filed a motion for a new trial based on newly discovered evidence—witness testimony—that was not available at the time of trial. Following an evidentiary hearing, the district court denied the motion. Speer appeals, arguing the district court abused its discretion in denying his request for a new trial. After thorough review, and recognizing these unique circumstances where the determiner of guilt at the bench trial was the same district court judge who decided the motion for new trial, we affirm the district court's denial of the motion.

Factual and Procedural Background

In the summer of 2020, Mother had a conversation with her daughter, who we call Kate (born 2006). During that conversation, Kate disclosed that she had been sexually assaulted several years earlier. Kate told Mother that she had gone to a party with her dad (Father) and older brother (Brother) at a house in a different town. During the party, a bonfire burned outside, and a man she did not know asked Kate to sit on his lap near the fire. Kate sat on his lap, and, after a while, the man put his hand down the front of her shorts and put his finger in her vagina repeatedly.

Her recount of that night did not end there. Kate explained that she spent the night at the house and slept on the floor in a bedroom with Brother. She recalled that she awoke to feeling wetness on her vagina and seeing the same man's head “right there,” licking her vagina. Kate said she pretended to be asleep while the encounter continued, and the encounter lasted “[n]ot very long.”

According to Kate, when she got home the next day, she told Brother what happened the night before at the party. Brother relayed her story to Father, who then asked Kate about the incident. During that conversation, Kate became scared when Father got angry and threatened to kill the perpetrator, so she changed her story to the man merely putting his fingertips in the waistband of her pants. After Kate's disclosure to Mother years later, Mother asked Brother about Kate's disclosure to him years prior and he said he did not remember Kate saying anything to him about the incident.

Mother was not aware of Kate's allegations until their conversation. After that conversation, Mother began to investigate what had happened and who was at the party. Mother spoke with Father and determined the party was held approximately seven years prior on May 25, 2013, when Kate was seven years old, at a house in Garfield, Kansas. Kate identified the house by its appearance, which had a pink exterior. Father gave Mother the names of two people who had been at the party—one we will call Jane Doe and Saundra Weaver. Mother reached out to both women on Facebook Messenger, and both eventually responded.

Weaver told Mother the party was at Doe's house and identified two men who were at the party—Speer and C.J. Smith. Mother used the two names to search for pictures or other information. She was able to find a picture of Smith on Facebook. Mother shared that photo with Kate and asked if the man pictured was the one who assaulted her. According to Mother, Kate responded, “Yeah, it kinda looks like him,” but she “wasn't positive.”

Weaver then sent a photo of Speer to Mother, who then showed it to Kate. When Kate saw the picture of Speer she “had a panic attack,” “broke down, and was freaking out,” and Kate said, “ ‘[T]hat's him for sure.’ ” Kate testified that “seeing his face again, after so long, brought back a lot of memories that I wasn't ready to relive.”

After Kate's identification of Speer as her assailant, Mother contacted law enforcement. As a result of their investigation, the State charged Speer with one count of rape of a child under the age of 14 while he was over the age of 18, an off-grid person felony, in violation of K.S.A. 21-5503(a)(3), and one count of aggravated criminal sodomy of a child under the age of 14 while he was over the age of 18, an off-grid person felony, in violation of K.S.A. 21-5504(b)(1).

Speer waived his right to a jury trial, and the case was tried to the bench. At trial, several witnesses testified, including Mother, Father, Kate, Weaver, Doe, and, in his own defense, Speer.

Doe reported that she and Speer were dating at the time of the party, and she lived with Speer and her two-year-old daughter at the house that hosted the party. She remembered Kate being at the party with Father. Doe recalled Kate sitting on Speer's lap around the fire pit and that he was “pretty friendly” with her.

Father also recalled that at one point Kate was sitting on Speer's lap by the fire and Father asked her to get off Speer's lap. Weaver, too, remembered seeing Kate sitting on Speer's lap by the fire. Additionally, Weaver remembered seeing Speer carry Kate into the house after she fell asleep on his lap.

At some later point during the party, while the two were outside, Doe and Weaver noticed Speer had been gone for a while. The two went inside to look for Speer and found him inside, near the bathroom, which was near the bedroom where Kate was sleeping.

The day after the party, Father called Weaver and told her of Kate's disclosure to him. Weaver then called Doe, and Doe became so concerned about Father's disclosure that she had her brother immediately pick up her two-year-old daughter from Speer's care, then took the child to the hospital for an examination. Evidence showed this examination occurred on May 26, 2013. Doe wrote on her witness statement at the hospital that her daughter “was acting different when I started changing her diapers about for a month now and I had suspicion that my ex-boyfriend was being sexually uncomfortable with her.” Doe was asked why she described Speer as her “ex-boyfriend” if they were together the night before, and she responded that in her mind she ended her relationship with Speer at that moment.

Speer provided notice of and presented an alibi defense at trial. During his testimony, he denied being at the party the night Kate was sexually assaulted and denied having ever met her or Father. He testified that he had moved out of the pink house in early May 2013.

To understand Speer's alibi, we must discuss another of his cases. In a different Pawnee County case, he was convicted of two counts of aggravated indecent liberties with a child who was 14 or more years of age but less than 16 years of age for his actions with another girl, who we refer to as Mary. During testimony in that case, Mary testified that she would spend the night at Speer's home in Larned—not Garfield—“basically every single night” from “the very, very end of May” 2013 to the time of his arrest on July 2, 2013. Later, Mary testified that she believed she first met Speer on May 24, 2013.

In the case at hand, Speer argued that because he was with Mary, he could not have been at the pink house on May 25, 2013. Speer's attorney asked Weaver, “Speer, apparently, was seeing another young lady, in May of 2013, by the name of [Mary]. Does that mean anything to you?” Weaver responded, “No, sir.” Additionally, Doe testified that Speer had not moved out prior to the party nor had he taken up residence in Larned before then. To refute Speer's alibi, the State admitted a motion for a new trial that was filed pro se in the other Pawnee County case in which Speer attested that he did not move to Larned until the first day of June 2013.

At the conclusion of the bench trial, the district court found Speer guilty as charged.

After Speer's convictions but before sentencing, the State issued a press release regarding the convictions. A man named James Sharrai saw this press release and then contacted the county attorney's office via a Facebook private message, in which he told the office that he had additional information that was relevant to the case. The State interviewed Sharrai and then disclosed the information to Speer and his attorney. Using that information, Speer filed a motion for a new trial based on newly discovered evidence that was not available at the time of trial.

The district court held an evidentiary hearing on Speer's motion for a new trial, at which Sharrai testified. Sharrai described himself as an acquaintance of Speer and testified that he had been at a party at the pink house in May 2013. Sharrai was not sure if the party he was at was the same one that Kate claimed she was sexually assaulted at or if there had been other parties at the house. Sharrai testified that during the party that he attended, Speer had been kicked out of the house by his girlfriend (Doe) and so he was unable to enter the house. Sharrai was confident that Speer was not permitted in the house because he remembered Speer had to use a dog run to go to the bathroom. Sharrai initially believed Kate was the daughter of Doe or another person living in the house.

Following the evidentiary hearing, the district court ruled that Sharrai's testimony was newly discovered evidence that was not available to the defense at the time of the trial through reasonably diligent efforts. However, the district court found that, after consideration of Sharrai's testimony and out-of-court statements, Sharrai's testimony would not have changed the outcome of the trial. So, the district court denied Speer's motion for a new trial.

On March 12, 2025, Speer was sentenced to life without parole as an aggravated habitual sex offender under K.S.A. 21-6626.

Speer timely appeals. Additional facts are introduced in the analysis, as necessary.

Speer’s Appellate Challenge

On appeal, Speer argues that the district court abused its discretion by denying his motion for a new trial because its ruling was based on both an error of law and an error of fact. Specifically, he argues the district court's denial of the motion was based on factual assertions that were unsupported by the evidence and the district court made an error of law in holding that Speer could not pursue multiple theories of defense. The State responds that the district court made no legal error and any mistake of fact was harmless considering the district court's finding and position as the factfinder in the case.

Standard of Review

“An appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion.” State v. Lyman, 311 Kan. 1, 16, 455 P.3d 393 (2020). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). Here, as the party asserting the error, Speer bears the burden of demonstrating such an abuse of discretion. See Lyman, 311 Kan. at 16.

K.S.A. 22-3501 and newly discovered evidence

A defendant may bring a motion for a new trial based on new evidence within two years after final judgment under K.S.A. 22-3501(1). To successfully earn a new trial based on newly discovered evidence, a defendant must show: “(1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that the newly discovered evidence is of such materiality that it would be likely to produce a different result upon retrial.” Lyman, 311 Kan. at 17 (citing State v. Warren, 302 Kan. 601, 615, 356 P.3d 396 [2015]). The State conceded below that Sharrai's testimony was newly discovered evidence that could not have been produced at trial with reasonable diligence, and the district court agreed, so only the materiality of the evidence is at issue on appeal.

“In determining whether new evidence is material, the trial judge must assess the credibility of the newly proffered evidence. The appellate court does not reassess the judge's credibility determination.” Lyman, 311 Kan. at 17 (citing Warren, 302 Kan. at 615-16).

“Evidence that merely tends to impeach or discredit the testimony of a witness is ordinarily not grounds for granting a new trial. Even when it does fall into the impeachment category, the presence or absence of corroborating evidence is another factor to consider in determining whether newly discovered evidence is so material that it is likely to produce a different result upon retrial.” State v. Courtney, No. 126,109, 2024 WL 3634302, at *6 (Kan. App.) (unpublished opinion) (citing State v. Ashley, 306 Kan. 642, 650, 396 P.3d 92 [2017]), rev. denied 319 Kan. 834 (2024).

With this framework in mind, we address Speer's argument that the district court abused its discretion in denying his motion for a new trial, starting first with his argument the district court made an error of fact and then addressing his argument the district court made an error of law.

The district court's denial of Speer's motion for a new trial was not based on an error of fact.

First, Speer argues that the district court abused its discretion in denying his motion for a new trial because the denial was based on errors of fact. Specifically, he alleges four misstatements of fact that require reversal: (1) Kate reacted to the picture of Smith by saying, “ ‘Well, that could be the person, but it didn't look quite right’ ”; (2) Kate made an in-court identification of Speer; (3) it was uncontroverted Speer carried Kate into the house at a time when two of the other men present at the party had left; and (4) Kate sat on Speer's lap and no one else's lap, except for possibly Father's.

Weakening the viability of this argument, though, is that the district court made none of these four alleged misstatements in its order denying the motion for a new trial. Instead, the court made these purported misstatements during its oral pronouncement of Speer's guilt when the court was summarizing the evidence used to support its finding. Speer did not object to the district court's factual findings or raise these factual errors in his motion for a new trial. Instead, that motion was based entirely on newly discovered evidence derived from Sharrai's statements that Speer was not allowed in the house during the party in question and Kate was sitting on multiple men's laps. But Speer argues that because there were errors with the factual findings at trial, the district court did not properly assess the impact that the newly discovered evidence would have on the trial evidence. Although Speer bore the responsibility to object to the district court's findings at the time to give the court a chance to correct any claimed errors, see State v. Espinoza, 311 Kan. 435, 436-37, 462 P.3d 159 (2020), given the nature of his objection, we opt to address the merits of each of the four factual errors he claims.

First, Speer argues the district court erred in concluding that Kate reacted to the picture of Smith by saying, “ ‘Well, that could be the person, but it didn't look quite right.’ ” He claims that the district court erred in finding this fact because during her forensic interview Kate stated:

“[Smith's] face was like longer and I don't know, he was just, I thought it was him at first because I didn't, uh, he was redhead. He looked like him․ But I didn't know until I, I didn't realize it wasn't him until my mom showed me the other picture [of Speer].”

Even if the district court did not quote Kate's precise wording, its conclusion is a fair credibility determination of the evidence at trial. Specifically, Kate herself testified that she was “shaken up” when she saw the picture of Smith because “they look very similar. But, I know it wasn't him.” She was then asked, “You didn't think it was him?” And she responded, “No.” Additionally, Mother testified that when Kate saw the picture of Smith, she responded, “Yeah, it kinda looks like him,” but she “wasn't positive.” On the contrary, when Kate saw the image of Speer, Kate said she began to cry and could not breathe; Mother testified that Kate had a panic attack. It is apparent that the district court found Kate's and Mother's testimony at trial weightier than Kate's forensic interview, and this court does not reweigh evidence. See State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024) (“We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. [Citation omitted.]”).

Second, Speer argues the district court made an error of fact when it found that Kate identified him at trial. But this argument takes Kate's testimony out of context. When we look to the record as a whole, it is clear that Kate meant Speer looked different at the time of trial than he did at the time of the assault. At trial, the following exchange occurred when Kate was asked to identify Speer:

“[THE STATE]: Does the Defendant, that sits here today, does he appear to be the same man that touched you at that house?

“[KATE]: No.

“[THE STATE]: What's different?

“[KATE]: His hair.

“[THE STATE]: So, when this happened, he had hair?

“[KATE]: And, he was skinnier.”

In the defense cross-examination of Kate, she clarified that at the time of the incident in 2013, Speer had a beard and he was “Irish-looking” with light skin tone and red hair.

Even if there were ambiguity, whether Kate meant that Speer was not the person who had sexually assaulted her, or he was the person who assaulted her but he now looked different, is a question of fact to be determined by the factfinder. See State v. Plummer, 295 Kan. 156, 162, 283 P.3d 202 (2012) (explaining deference is given to factual findings made by the district court, and an appellate court will generally not reweigh evidence or the credibility of witnesses). The district court's conclusion that Kate identified Speer at trial is not a misstatement of fact merely because it is not the conclusion that Speer would prefer.

Third, he argues that the district court's finding that it was uncontroverted Speer carried Kate into the house at a time when two of the other men present at the party had left was an error of fact requiring reversal. A review of testimony reveals some inconsistencies. Weaver testified that Speer carried Kate into the house after others had left. Doe told law enforcement that Kate sat on Speer's lap and the only people who spent the night were herself, her daughter, Speer, and possibly Kate and Father. But there was also evidence controverting the finding that Speer carried Kate into the house and that it occurred after the other men had left. Specifically, Kate, during her forensic interview, said she walked into the house and Father testified that he believed Smith had slept at the house that night. But even with these discrepancies, Speer fails to show how this misstatement affected the district court's denial of the motion for a new trial. Although the evidence was controverted, it is not the case that there was no evidence supporting the district court's findings. After all, the district judge here was the finder of fact, as the case was tried to the bench. Beyond that, Speer did not raise this argument before the district court when his motion for a new trial was litigated. He cites no place in the record that he argued this specific finding was erroneous and should warrant a new trial, so the district court was never given the opportunity to address this specific concern. When an issue was not raised below, the party raising it must assert an exception that permits it to be raised, which Speer has failed to do here. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).

Fourth, Speer argues that the district court's finding that Kate sat on Speer's lap and no one else's lap, except for possibly Father's, was an error of fact because it was directly contradicted by Sharrai's testimony. At the evidentiary hearing on the motion for a new trial, Sharrai testified that Kate tried to sit on multiple men's laps around the bonfire. He also testified that Kate did eventually fall asleep around the fire in the chair Speer was sitting in, but not in Speer's lap. But just because Sharrai testified to something does not mean the district court had to find it weightier than other facts it found at the trial. Three adults testified that Kate fell asleep in Speer's lap versus Sharrai's testimony that she fell asleep in Speer's chair. Sharrai's evidence is that which merely tends to discredit the testimony of Father, Weaver, and Doe, and such evidence is not material enough to produce a different result upon retrial. See Courtney, 2024 WL 3634302, at *6 (citing Ashley, 306 Kan. at 650).

Because we find his specific challenges unpersuasive, Speer has failed to carry his burden to demonstrate that the district court's ruling was based on an error of fact, so it did not abuse its discretion in denying the motion for a new trial on this ground.

The district court's denial of Speer's motion for a new trial was not based on an error of law.

Second, Speer argues the district court abused its discretion in denying his motion for a new trial because it made an error of law in its denial. Specifically, he argues that the error of law resulted from a “misappraisal of the newly discovered evidence compared to the trial evidence as a whole” and from the district court's incorrect conclusion that Speer could not pursue multiple theories of defense. As part of his overall contention, Speer raises three primary sub-arguments, which we address in turn.

First, he argues that because the evidence supporting Speer's conviction was “far from overwhelming,” the lacking evidence left “ample space for the newly discovered evidence to supply the additional doubt necessary for acquittal.” But here we have a unique situation where Speer's trial was to the court, not a jury, and the district judge who was the finder of fact at trial was the same judge who presided over the evidentiary hearing on the motion for a new trial. The district judge here was uniquely qualified to assess how the newly discovered evidence would have affected the outcome of the trial, because he was the finder of fact. When a case is tried to a jury, we lack insight into the minds of the jurors and what specific evidence they may have been credited or weighed in a particular way. Although assumptions can be made from the verdict reached, we do not have the full benefit of the factfinder's rationale when reaching the decision. But here, we have the rare benefit of the district judge, as the finder of fact, explaining his decision.

In his brief, Speer walks through the evidence presented at trial in detail and points out potential weaknesses in that evidence. He even provides potential explanations for Kate falsely accusing Speer, such as blaming the alleged sexual assault at her young age to excuse her “sinful” homosexuality to her religious Mother. But these are challenges to the sufficiency of the trial evidence, and on appeal he has not raised an attack on the sufficiency of the evidence supporting his convictions. The district judge concluded that had Sharrai's testimony been presented at trial, it would not have changed his findings of fact and the ultimate outcome of the trial because it did not create a reasonable probability the outcome of the trial would be different—that is, it lacked materiality. At the conclusion of the evidentiary hearing, the district judge orally explained his reasoning at length:

“In their briefing, as well as at this hearing, counsel have specified, and correctly, the court believes, the nature of the burden of proof upon Mr. Speer with his Motion for New Trial, and that in effect, it is essentially, at least, preliminary, preliminarily, a two [pr]ong test. The first being to establish that there is new evidence which could not have been reasonably discovered through due diligence and been produced at Mr. Speer's trial.

“The court would note from its recollection, there was no reference in any of the testimony from any person, that Mr. [Sharrai] was at the party in question. So, clearly, there is no reason to expect that defense could have discovered that Mr. [Sharrai] might have potentially relevant evidence as to the issues presented at trial. Court would find, and as stipulated by the State, as noted in its paragraph, that Mr. [Sharrai]’s testimony is, represents evidence that was not reasonably available to Mr. Speer at the time of trial.

“The second prong, is for the court to make a determination, essentially, on the credibility of that evidence and its materiality to the extent that it creates a reasonable probability that a different result would've been reached at the trial, if that evidence would've been available. Parties will recall that from the evidence in this trial, the evidence of the underlying crimes, was essentially, uncontroverted. The issue for the trial, was whether or not Mr. Speer was the individual who committed or perpetrated that crime.

“His defense at trial, was that of alibi. Essentially, testifying that he was not present at the party in question. Reviewing Mr. [Sharrai]’s testimony, both in terms of what is reflected on Exhibit B and Exhibit A, as well, as his sworn testimony on today's date, Mr. [Sharrai] recalled that Mr. Speer was wearing a white t-shirt and thought he was wearing basketball shorts. The evidence at trial, from the witnesses, were that Mr. Speer was present and he was [wearing] a black coat and tan pants.

“Mr. [Sharrai] recalled that Mr. Speer had a fight with his girlfriend. And the girlfriend was, name was unknown to Mr. [Sharrai]. But as a result, Mr. Speer was prevented from going inside the home, which from Mr. [Sharrai]’s recollection, was a home occupied by Mr. Speer and the unknown girlfriend. He recalled that the prohibition from entering the evidence was so restrictive, that Mr. Speer defecated outside and that Mr. Speer had physically left the party. I think, in one instance he said by 6 am, there's another reference that he left with CJ Smith around 4 am.

“The evidence from the witnesses at trial, none of which testified as to any fight that Mr. Speer had with a girlfriend. The testimony was that Mr. Speer was there the next morning when Ms. [Doe]’s brother came to the house to retrieve or obtain the physical custody of [Ms. Doe]’s daughter. Both Saundra and [Ms. Doe] testified that they went into the house at one point in time, to check on Mr. Speer and saw him coming down the stairs. No one at trial testified that they recalled seeing Mr. Speer defecate outside. There was no reference at trial, that I recall, as to Mr. Speer's unique tattoo.

“Mr. [Sharrai] told Detective Robison that, got to find that here. He remembered Speer very clearly at the party, because he would not stop talking about his elephant tattoo. Clearly, Mr. [Sharrai] knew Saundra, he knew [Ms. Doe]. In fact, he indicated at one point, he was interested in pursuing a relationship with [Ms. Doe], but he believed she was pursuing an interest with a Christian Burkhead. Testimony from trial, from [Ms. Doe] herself, was that she and Mr. Speer had been co-habiting in a relationship.

“Then there is the problematic testimony, as noted by the State, Mr. Speer's testimony at trial with his alibi, where he testified under oath, that he was not present at this party. Aside from any reference as to potential perjury, the fact that that testimony is there, would certainly make it admissible at a new trial as a prior inconsistent statement under oath.

“Collectively, from those discrepancies, the court would find that Mr. [Sharrai]’s testimony, is not of such materiality that it would in fact present a different result on a retrial. Particularly due to the conflict of Mr. [Sharrai]’s testimony with the bulk of other evidence presented at trial. His acknowledgement, honest acknowledgement, that perhaps he was talking about a different party, is contained within the Joint Exhibit B. The credibility factor, and I'm not saying that Mr. [Sharrai]’s being untruthful, but the passage of time, a memory, and the fact that at trial, there was an indication there was more than party at that pink house, minimizes the materiality and the value of that testimony. To the extent that this court cannot find that Mr. [Sharrai]’s testimony would assist in achieving a different result, if there was a new trial.

“The court would therefore deny Mr. Speer's Motion for a New Trial.”

Again, we cannot engage in a reweighing of evidence or assessment of the credibility of witnesses, which is what Speer asks this court to do. See Mendez, 319 Kan. at 723. By doing so, he has failed to carry his burden to show that this newly discovered evidence was so material it reasonably would have changed the outcome of the trial. Again, crucial to this analysis is that we need not speculate about how an unseen jury would have weighed Sharrai's testimony; the factfinder has told us directly. The district judge concluded that even if the court would have had this evidence at the bench trial, the court's—this same judge's—finding of guilt would have remained the same.

Second, Speer argues there was uncorroborated evidence at trial and so Sharrai's testimony was material enough that it would have produced a different result at trial. We agree with Speer that “consideration of the presence or absence of corroborating evidence [is] a factor in determining whether the newly discovered evidence is of such materiality that it is likely to produce a different result upon retrial.” State v. Norton, 277 Kan. 432, 441, 85 P.3d 686 (2004). But we disagree with Speer's contention that because portions of Kate's claims were uncorroborated, Sharrai's testimony undermines the guilty verdicts here.

In support of his argument, Speer relies primarily on two cases—Norton and State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983). In Norton, the Kansas Supreme Court held that Norton, who was convicted of drug crimes, was entitled to a new trial based on newly discovered evidence because the new evidence revealed that the informant had been arrested for drug trafficking. 277 Kan. at 442. In Norton's case, there was no independent evidence to corroborate the informant's testimony that Norton sold him drugs and the informant's drug trafficking lent support to the informant having access to quantities of drugs. Norton claimed that the informant was the source of the drugs that he had been convicted of selling. Given this new evidence that the informant was a drug trafficker and the lack of corroborating evidence that Norton was the source of the drugs, the court concluded that the evidence of the informant's trafficking would likely produce a different result at trial. 277 Kan. at 441-43.

We are faced with a different situation than in Norton. There was evidence that corroborated Speer was at the party, that Kate was sitting in his lap, and that he was seen up by the bedroom that Kate was sleeping in. Because of the inherent nature of sex crimes, it is not uncommon for the actual physical act to lack corroborating evidence, and such crimes are often a matter of “he said, she said,” meaning the assessment of guilt often hinges on the credibility assessment by the finder of fact of the victim's allegations and, if available, the accused's denial of the crime. See State v. Brazelle, No. 127,892, 2026 WL 2070271, at *3 (Kan. App. 2026) (unpublished opinion) (discussing, under a corpus delicti challenge, how a rape “did not naturally or obviously produce a tangible injury” and the rape lacked any corroborating evidence beyond the defendant's confession), petition for rev. filed August 17, 2026.

Matlock is also distinguishable. In that case, Matlock challenged the sufficiency of the evidence supporting his rape conviction. There, the Kansas Supreme Court overturned the rape conviction, holding that the uncorroborated testimony of the complaining witness was unbelievable to the extent that it was not sufficient to sustain Matlock's conviction for rape. 233 Kan. at 4. The court relied on multiple facts admitted or uncontroverted by the complaining victim, including as part of its list the following: (1) The alleged victim waited more than a year to report the alleged rape; (2) the alleged victim did not cry out when the alleged rape occurred even though people were around her to hear any cries for help; (3) she admitted lying had been a part of her life; (4) she voluntarily spent time with Matlock after the alleged rape; and (5) a reasonable opportunity to commit a forcible rape seemed nonexistent under the particular circumstances of the case. Speer argues that the circumstances here are remarkably similar to Matlock—Kate waited more than seven years before reporting the rape and sodomy; people were around to hear her, but she did not cry out for help; she had admitted to lying in her life; and, if we believe that Kate got up to stop the digital penetration and then later fell asleep on Speer's lap, then she voluntarily spent time with Speer after the rape.

But there is a glaring difference between Matlock and the case at hand. In Matlock, the alleged victim was an adult. Here, the alleged victim was a seven-year-old child. This panel should not impute the same traits of “unbelievability” of an adult's accusation onto a child's accusation. While an adult is likely to understand what is happening is wrong, that is not always the case for a child. Moreover, current research also recognizes “freeze” as a valid response in a traumatic situation, meaning a victim may not attempt flight or fight, but instead may freeze, which could explain Kate's failure to call out for help. See Henning, Advancing Racial Justice Through the Restatement of Children and the Law: The Challenge, the Intent, and the Opportunity, 91 U. Chi. L. Rev. 345, 365-66 n.108 (March 2024). Also, Kate did report the incident the very next day, even if her report lacked complete detail.

Most importantly, as discussed above, the district judge heard all the trial evidence, heard Sharrai's later testimony, and concluded that had he heard Sharrai's testimony at trial, he still would have found Speer guilty as charged. The district court emphasized that, based on Sharrai's own testimony, it was uncertain if Sharrai was at the same party because no one else at the party the night in question described Speer and Doe being in a fight or Speer being kept out of the house. The district court also concluded that witnesses testified that Speer was likely wearing different clothing that night. While the district court did not believe that Sharrai was being untruthful about being at a party at the pink house, the district court concluded that these discrepancies cast doubt that Sharrai was at the same party in question. We cannot disturb the district court's assessment of credibility on Sharrai's evidence. See Lyman, 311 Kan. at 17 (“In determining whether new evidence is material, the trial judge must assess the credibility of the newly proffered evidence. The appellate court does not reassess the judge's credibility determination.”).

Finally, we address Speer's contention that the district court made an error of law when it held that Speer could not present inconsistent theories of defense.

We agree with Speer that a defendant may present factually contradictory defenses. State v. Simmons, 295 Kan. 171, 176, 283 P.3d 212 (2012). This right to present conflicting defenses can be reflected in an instruction for any charge in which a party has presented sufficient evidence to justify such an instruction. 295 Kan. at 177. But just because a defendant may present contradictory defenses does not mean it is a good idea to do so, or as here, that there would not be adverse consequences for doing so. State v. Ruhl, No. 113,181, 2019 WL 638143, at *8 (Kan. App. 2019) (unpublished opinion). And as was the case here, where newly discovered evidence contradicts the defense given at trial, the district court may properly find that the newly discovered evidence would not have produced a different outcome. State v. Tatum, No. 105,219, 2012 WL 1237882, at *5 (Kan. App. 2012) (unpublished opinion).

Here, the district court did not find, as a matter of law, that Speer could not present contradictory defenses. Instead, the district court found that the contradictory defenses would not have changed the result of the trial. The court concluded that Sharrai's testimony at trial would have only undermined Speer's alibi defense. This was not a mistake of law.

Each of Speer's arguments that the district court made an error of law by denying his motion for a new trial is unpersuasive. As such, the district court did not abuse its discretion in denying the motion for a new trial on those bases.

Affirmed.

Per Curiam: