State of Kansas, Appellee, v. Monty Dean Smith, Appellant. (2026)

MEMORANDUM OPINION

Monty Dean Smith alleges he was denied a fair trial due to the admission of prejudicial K.S.A. 60-455(d) evidence and comments by the prosecutor in closing, which Smith says improperly shifted the evidentiary burden. He also claims the State violated his equal protection rights by bringing charges in multiple cases instead of a single complaint. On review, we find no trial errors, and we find Smith's equal protection challenge is unpreserved. We therefore affirm.

Factual and Procedural Background

2019 Breach of Privacy

Smith began dating P.B.’s mother (Mother) in 2015 when P.B. was four years old. Smith lived with Mother and her children (including P.B.) from 2017 until 2019.

In May 2019, Mother found a micro secure digital (SD) card in Smith's jeans pocket while doing laundry. The SD card contained several videos, one of which showed Smith exposing his penis above P.B.’s head while P.B. was sleeping. When Mother confronted Smith, he said that he never put a hand on P.B.

Mother showed the videos to P.B.’s paternal grandmother (Grandmother), who made her call the police. Mother turned the SD card over to law enforcement who, after receiving a search warrant for its contents, discovered five concerning videos.

The first video showed Smith placing the camera recording the video under the bathroom sink, exposing his penis, then leaving the bathroom, before P.B. and another young girl enter and pull down their swimsuits—exposing themselves—to each use the bathroom. After they finished using the bathroom, Smith immediately reentered and removed the camera, then shut off the video. The second video showed Smith placing the camera under the bathroom sink again, then he exposed and shook his penis towards the camera, removed his shorts, and sat on the toilet and grabbed his penis, then grabbed the camera and ended the video. The third video showed an unidentified person with their penis exposed, walking to a couch where P.B. was sleeping facing away from the camera, and the exposed penis was shown near P.B.’s head. The fourth video showed Smith placing the camera under the sink in the bathroom, along with another camera on the other side of the sink. He then stated, “ ‘[Y]es I'm almost done,’ ” to the young girls talking outside the bathroom. Smith grabbed toilet paper to put near the camera, and then left the bathroom saying, “ ‘Okay, [P.B.].’ ” P.B. then entered and pulled down her pants to use the bathroom, exposing her butt and vagina. P.B. left, then another young girl entered to use the bathroom. After that girl left, Smith reentered and picked up the cameras, ending the recordings. The fifth video was taken down a hallway and showed a girl's legs and feet while she was lying in bed.

Around the time the SD card was turned over to law enforcement, P.B. participated in a Child Advocacy Center (CAC) interview, where she said Smith had never touched her inappropriately. Mother never told P.B. about the videos.

Smith was criminally charged and entered into a plea agreement in which he pled no contest to possession of methamphetamine and two counts of breach of privacy. The district court sentenced him to probation with a 34-month underlying prison sentence and ordered no contact with the victim or her family.

2023 Disclosure of Sexual Abuse

At some point in 2023, Mother and Smith began seeing each other again. While P.B. was visiting Grandmother during the summer, P.B. said she did not want to go home because Smith was always there. P.B. also disclosed that Smith had touched P.B. in the past. Grandmother reported P.B.’s disclosure and Smith's contact with P.B. and Mother (which violated a no contact order) to the county attorney's office.

After Grandmother's report, officers called Mother, explained what was going on, and asked to interview P.B. Mother refused to allow the interview or confirm or deny that Smith had been in contact with her or P.B., so the officers took P.B. into protective custody.

The officers transported P.B. to CAC for a forensic interview. During this interview, P.B. stated that Smith had touched her at least twice on her vagina. P.B. explained that one time when she awoke, Smith was touching the outside of her private parts. She shoved him off and asked, “ ‘[W]hat are you doing?’ ” And when she awoke another time, Smith was placing her hand on his penis. The same night of this incident, P.B. woke up to Smith putting his mouth on the inside and outside of her private parts. After each incident, when she woke up, she pulled up her pants and underwear, and Smith ran back to Mother's room. P.B. said this all happened when she was in third grade, and she identified the house where she lived at the time.

Trial on New Charges

Based on P.B.’s disclosure, the State charged Smith with two counts of aggravated indecent liberties with a child, one count of aggravated criminal sodomy, one count of rape, and one count of violating a protection order.

Before trial, the State moved to admit K.S.A. 60-455(d) evidence, testimony, and exhibits relating to the 2019 convictions at trial. The district court conducted an evidentiary hearing on the motion and—over Smith's objection—allowed four of the five videos to be admitted. The court excluded video two because its content was different than the others and thus the court found its prejudicial nature substantially outweighed its probative value.

At the start of trial, Smith pled guilty to violation of a protection order. The jury convicted him of the remaining charges.

Sentencing

The district court merged the rape and the aggravated criminal sodomy convictions based on their temporal proximity. Smith's criminal history score was B based on the two, person felony, breach of privacy convictions. The court sentenced him to life without the possibility of parole for 586 months.

Review of Smith’s Appellate Challenges

Did the district court abuse its discretion when it admitted K.S.A. 60-455(d) evidence?

Smith starts out by arguing the district court erred in admitting the video evidence, claiming the videos’ prejudicial impact outweighed their probative value. When a defendant is charged with a sex offense, K.S.A. 60-455(d) permits the admission of evidence that the defendant committed another act of sexual misconduct, which may be considered for its bearing on any matter to which it is both relevant and probative— including propensity. State v. Prine, 297 Kan. 460, 476, 303 P.3d 662 (2013). That said, Kansas courts have imposed procedural safeguards limiting the admission of such evidence to protect a defendant's due process rights. State v. Boysaw, 309 Kan. 526, 533-34, 439 P.3d 909 (2019). The safeguard at issue here is the judicial requirement that the probative value of the evidence must outweigh its potential for producing undue prejudice.

We review a district court's determination that the probative value of evidence outweighs its potential for producing unfair prejudice for abuse of discretion. 309 Kan. at 539. We reverse the district court only if (1) substantial evidence does not support a factual finding on which the court's exercise of discretion was based; (2) the decision was based on a legal error; or (3) no reasonable person would adopt the district court's view. State v. Bowen, 299 Kan. 339, Syl. ¶ 6, 323 P.3d 853 (2014). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024).

Smith contends the district court abused its discretion in all three ways when it admitted the videos. First, he says that substantial competent evidence does not support its factual findings about the videos’ probative value. Next, he contends the district court misapplied the law by only assessing the probative value of the videos and not also analyzing their prejudicial effect. And third, he contends that no reasonable person would agree with the court's determination that the probative value of the videos outweighed their prejudicial effect.

The district court's factual findings about the videos’ probative value were supported by substantial competent evidence.

In Boysaw, our Supreme Court articulated factors district courts should consider when weighing the probative value of evidence against its prejudicial effect:

“In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct.” 309 Kan. at 541.

The only probative value factor Smith contends the district court mistakenly determined was whether the State could have obtained any less prejudicial evidence than the videos. He says the State could have established its point—Smith's propensity to commit sexual crimes against P.B.—through court documents from the 2019 case or witness testimony describing the videos.

The first problem with Smith's argument is it is unpreserved. Before the district court, he only argued that the State could have used the journal entry from his 2019 convictions to establish his propensity. On appeal, Smith changes his argument to say the complaint or probable cause affidavit from the 2019 case would have sufficed. Not only did he fail to mention these options to the district court, but we cannot evaluate his argument since he has not included these documents in the record on appeal. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013) (“ ‘It is well-settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.’ ”). And, as the State notes, the journal entry was not an adequate substitute since Smith pled to nonsex crimes.

While our dissenting colleague argues the affidavit is included in the record, the record only contains excerpts purportedly from the affidavit which were included in the State's motion to admit the video evidence. And these excerpts include a portion with an incomplete sentence, so their integrity and context is questionable. In any event, we find it unfair to second guess the district court's decision on whether less prejudicial evidence was available when the alternative evidence was not mentioned, depriving the district court of the opportunity to evaluate the sufficiency of that alternative evidence. While Boysaw holds that a district court should consider whether the government can obtain any less prejudicial evidence, it does not require that court to scour the record to locate such evidence—particularly when the defendant suggests another option for the court to consider. 309 Kan. at 541.

Nor does Smith explain on appeal why the probable cause affidavit from the 2019 case was an adequate substitute for the video evidence. He simply says “the material fact also could have been established through the admission of the complaint and probable cause affidavit from [the 2019 case.]” But he does not set forth those material facts, nor does he address how the affidavit establishes substantially the same material facts as the video evidence. We could thus additionally disregard his argument for failure to brief it. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (A point raised only incidentally in a brief but not argued there is deemed abandoned.).

Smith also newly argues on appeal that witness testimony could have been used to establish the State's point. Again, since he did not offer this option to the district court, we cannot fault that court for failing to consider it. Moreover, even if we consider the witness testimony Smith now recites, that testimony would not give the jury a genuine opportunity to assess the video evidence.

Smith first relies on Mother's testimony to support his point. At the hearing on the motion to admit the videos, Mother vaguely described them as “some kind of disturbing videos of my daughter in the bathroom.” And at trial, she generically described the videos as depicting P.B. “[b]eing in the bathroom, undressing with her friend, and some other things of Monty, I guess.” As for another video, she described it as including “[s]ome nudity of” Smith and P.B. This testimony is not sufficiently detailed to substitute for the video footage.

The testimony from other witnesses about the videos was also ambiguous. Grandmother described them as showing Smith “had put his private part in my granddaughter's face. And, he would set up the camera in the—in the bathroom, and try to video her when she was using the bathroom.” And the investigating officer described the videos at the K.S.A. 60-455 hearing as “depict[ing Smith] in a state of nudity that showed his genitals, as well as videos that detected P.B. in a state of nudity. It did not appear that she was aware that she was being recorded.” The only other testimony Smith points to is another officer explaining how Mother described the videos in 2019 when she reported discovering them to law enforcement. But this testimony does not establish the content of the videos—just what Mother told the officer about the videos when she reported them.

Having viewed the videos, neither the descriptions in the probable cause affidavit nor the witness testimony fully capture their content. None of the descriptions address Smith's mannerisms, facial expressions, and apparent emotions when placing and retrieving the cameras and his movements and affect when exposing himself next to a sleeping P.B. Also, as the State notes, the bathroom videos depict how Smith tried to hide the cameras and his reaction in one when P.B. and another young girl attempt to use the bathroom while he was in there, which is not addressed in the affidavit or witness testimony.

Smith next speculates that another officer who viewed the videos could have described their content, but he does not persuade us that this potential second-hand description would have the same persuasive quality as the content of the videos themselves. In addition, in his brief, Smith seems to deny his identity in the videos when describing the footage:

“In two of the videos, a man presumed to be [Smith], can be seen hiding a video camera in the bathroom. In one of these videos, the man squats down while naked in an apparent attempt to verify that he had the desired location within the camera's frame. Thereafter, the man lets P.B. and another young girl into the bathroom and secretly films them undressing and using the toilet. In a third video, the man walks over to a couch where P.B. is sleeping, takes out his penis, and places it over her face so that both his penis and P.B.’s face are in frame simultaneously.”

Such hedging underscores the probative value of the jury's ability to identify Smith while watching the videos, and how a description of their content would not suffice.

Probative value has been described as the “strength of the evidence in proving something,” and the videos were highly probative. State v. Satchell, 311 Kan. 633, 641, 466 P.3d 459 (2020). While Smith does not necessarily have to demonstrate the State had less prejudicial evidence, which was of equal probative value as the videos, he fails to persuade us that the district court abused its discretion when it found the videos were highly probative and there was not less prejudicial evidence to establish the points the State was trying to use the videos to make.

In Satchell, the defendant was charged with sexually abusing two children. The State was allowed to introduce the testimony of three other children who had also been sexually abused by Satchell. On appeal, Satchell argued the district court abused its discretion when admitting this testimony because its probative value was outweighed by its prejudicial effect. Like Smith's argument, Satchell contended the State could have called the detective who interviewed the children to testify about what the children told the detective about the abuse. Our Supreme Court found the district court did not abuse its discretion in admitting the evidence, explaining that it was “difficult to see how that would give the jury any chance to assess that evidence.” 311 Kan. at 643. Similarly, even if we considered the potential evidence Smith newly offers on appeal, we do not find descriptions of the video content in the affidavit or testimony would give the jury a sufficiently equivalent ability to assess the video evidence and the point the State tried to make with that evidence.

The district court did not misapply the law by failing to consider the videos’ prejudicial effect.

Smith contends the district court also abused its discretion by issuing a “blanket ruling” on the admission of the videos without analyzing their prejudicial effect. He claims that Boysaw requires the district court to list the “ ‘factors on both sides of the equation and explain[ ] in detail why it [is] admitting the evidence.’ ”

First, Smith misconstrues the holding in Boysaw as being a requirement when it is really an ideal to strive for. While the Kansas Supreme Court noted that “the district court provided a model for conducting analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence,” it did not say that this was the only appropriate manner. 309 Kan. at 541. In addition, the Kansas Supreme Court did not say that a district court must list the factors, instead it simply stated that this district court did list the factors. 309 Kan. at 541. And in State v. Claerhout, 310 Kan. 924, 930-31, 453 P.3d 855 (2019), not only did the court say: “[T]he Boysaw factors are not exclusive or all-encompassing,” but it also stated: “Reversible error does not necessarily result from failing to weigh various factors on the record.”

As the State notes, in Satchell, the Kansas Supreme Court did not reverse where the district court failed to explicitly reference all the Boysaw factors and only commented on the four probative value factors. While the court commented that it “would be preferable” if the district court had more explicitly considered the prejudice of the evidence, it found there was an adequate record to review the district court's decision. Satchell, 311 Kan. at 643; see State v. Jones, 313 Kan. 917, 924-25, 492 P.3d 433 (2021) (affirming the Court of Appeals’ holding that, from the nature of the district court's comments, the district court had applied the balancing test).

Although the district court here did not explicitly list the probative and prejudicial factors outlined in Boysaw, it did not issue a blanket ruling nor did it ignore the videos’ prejudicial effect. Instead, the court discussed the contents of each video, provided several examples of the probative value of the videos, and even excluded one video because it determined that its probative value was not sufficient to overcome its prejudicial effect. Thus, we do not find that the district court overlooked the prejudicial effect of the videos or failed to weigh that effect against their probative value.

We do not find that no reasonable person would have agreed with the district court's decision.

Lastly, Smith argues that the district court abused its discretion because no reasonable judge would have found that the probative value of these videos outweighed their risk of undue prejudice. To satisfy his burden, it is not enough for Smith to show that the video footage was prejudicial; to demonstrate an abuse of discretion, he must show that unfair or undue prejudice arising from the admission of the evidence substantially outweighed its probative value. State v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008).

Smith and our dissenting colleague characterize these videos as “sexually explicit” and liken them to the pornography that was excluded in State v. Miller, 284 Kan. 682, 701-02, 163 P.3d 267 (2007), which our Supreme court found “ ‘would likely have repulsed many of the jurors.’ ” However, in Miller, the district court excluded the pornography because “the connection between the defendant's commercial pornography collection and his desire to murder his wife is tenuous at best.” 284 Kan. at 701. And the videos here are not like commercial pornography. Although they include nudity and are indeed disturbing, they do not depict sex acts like Smith and our dissenting colleague imply. Moreover, this difference of opinion over what is depicted in the videos seems to support the point that a description of the video evidence is insufficient, and the best evidence of what is depicted in the videos is indeed the videos themselves.

Additionally, unlike Miller, the probative value of the videos in this case is great. While Smith asserts that the videos had limited probative value, in support he only repeats his argument that there was less prejudicial evidence to prove this point. He claims the videos provided “no additional probative value” beyond what was provided by the witness testimony. But we have already explained why we disagree with this point, and whether the evidence provided “additional probative value,” i.e., was it cumulative, is not the test. Nor does Smith seriously dispute the strength of the proof the videos provide of his propensity to commit sexual misconduct against P.B. See Satchell, 311 Kan. at 641 (describing probative value as the “strength of the evidence in proving something”). We are also mindful that the Legislature recognized the probative value of evidence of previous sexual misconduct for propensity purposes, presumably aware of the risk of prejudice to the defendant. It amended K.S.A. 60-455 to add subsection (d), which allows the admission of this evidence, after our Supreme Court declared such evidence was inadmissible in State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009). See Boysaw, 309 Kan. at 530-31.

Admittedly, the video evidence was prejudicial. But all evidence that is derogatory to the defendant is by its nature prejudicial to the defendant's claim of innocence. On the issue of undue prejudice, consideration “turns not on whether the evidence is damaging but on whether the evidence is likely to contribute to an improper jury verdict or distract from the central issues at trial.” State v. Dern, 303 Kan. 384, Syl. ¶ 3, 362 P.3d 566 (2015).

In United States v. Schaffer, 851 F.3d 166, 182 (2d Cir. 2017)—which we find persuasive if not binding—the court made the point that “evidence ‘may be highly prejudicial’ [but it] does not necessarily mean that it is ‘unfairly prejudicial.’ ” And because this line “ ‘will often be difficult to determine,’ ” appellate courts “ ‘accord great deference to the district court's assessment of the relevancy and unfair prejudice of proffered evidence, mindful that it sees the witnesses, the parties, the jurors, and the attorneys, and is thus in a superior position to evaluate the likely impact of the evidence.’ ” 851 F.3d at 182.

Schaffer was charged with coercing and enticing a minor to engage in illegal sexual activity after he directed a 15-year-old girl to try on several swimsuits— “ ‘adjust[ing]’ ” each one in ways that involved him touching areas around the girl's breasts, buttocks, and groin—and then forced the girl to have sex with him during a job interview. 851 F.3d at 170. During a forensic search of Schaffer's computer, law enforcement discovered two videos of him similarly “ ‘adjusting’ ” the swimsuit of another young girl and also engaging in sexual acts with her and two videos of him with another young girl where he made her try on swimsuits, made her sit on a bed naked, and took her into a bathroom. 851 F.3d at 170-71. The district court allowed the videos to be admitted, finding that they were highly relevant to the charges because his intent to commit sexual acts with minors was at issue, and they were not unfairly prejudicial because they did not show conduct more inflammatory than the conduct alleged in the indictment. 851 F.3d at 172 (nonconsensual sexual intercourse with a 15-year-old girl); see United States v. Schaffer, No. 12-CR-430 (ARR), 2014 WL 1515799, at *11 (E.D.N.Y. 2014), aff'd 851 F.3d 166 (2d Cir. 2017). The Second Circuit Court of Appeals affirmed, finding that the district court did not exceed its discretion in admitting the four videos at trial. 851 F.3d at 184.

While our dissenting colleague correctly notes the Schaffer court's analysis was not identical to the one suggested in Boysaw, the Schaffer court did thoughtfully weigh the probative value of the videos against their prejudicial impact. While not binding, we see the logic in the Schaffer court's determination that the fact that the conduct in the videos was less inflammatory than the conduct Schaffer was charged with mitigated the videos’ prejudicial impact. And here, Smith was charged with significantly more inflammatory conduct than that demonstrated in the videos admitted at his trials. Those videos were also highly relevant to his propensity to commit sexual misconduct against children and this victim specifically.

For these reasons, we do not find the videos were unduly prejudicial nor do we find that no reasonable person would have agreed with the district court that their probative value outweighed their potential to create undue prejudice.

Did the prosecutor err in asking the jury “[h]ave you been given any reason not to believe [P.B.]?”

Smith next argues that comments by the prosecutor during rebuttal closing improperly shifted the burden of proof to Smith, requiring Smith to demonstrate that he did not commit the crime. We use a two-step process to evaluate claims of prosecutorial error: First we determine whether the prosecutor erred and, if so, we then determine whether that error prejudiced the defendant. State v. Mendez, 319 Kan. 718, 737, 559 P.3d 792 (2024).

In the first step, we must decide whether the prosecutorial act at issue fell outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. 319 Kan. at 737. We do not consider any statement in isolation but look instead to the context to determine whether an error occurred. State v. Timley, 311 Kan. 944, 949-50, 469 P.3d 54 (2020).

If error is found, we next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In other words, prosecutorial error is harmless if the State can demonstrate “ ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ ” State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Even if the prosecutor's actions are egregious, reversal of a criminal conviction is not an appropriate sanction if the actions are determined to satisfy the higher standard of harmlessness. 305 Kan. at 114.

Taken in context, we do not find the prosecutor erred.

During closing, Smith stated:

“[P.B.] talked to you. She told you about what she remembers. You also saw the video of the, what we call the, CAC interview of her. And, that was the 2023 CAC interview.

“But, when she talked to you, here on the stand, she didn't have much real memory about the conversations surrounding this event, what she told others, what others told her. She wasn't certain about years, house colors, grades or dates. And, that's to be expected, she's 13 years old. This is scary.

“This is scary for me to stand up here. I do this for a living. I can't imagine a 13 year-old on the stand there.

“But, that's why it's important for the investigation, the State's investigation, to fill in those gaps.

“She told you that she doesn't like living with Mom. In her recorded 2023 CAC interview, State's Exhibit 1 that you'll have access to, she stated that she wanted to move in with Grandma because Grandma pays more attention and is around more.

“That's a difficult topic, and families, and especially extended families, are sometimes difficult dynamics. But, that was something that she wanted. She spent a lot of time at Grandma's house. Grandma is now in McPherson. That's what she wanted.

“She has struggled with nightmares her whole life, pretty much, well before all of this came about is what she told us.

“And, the only memories of these events that the State is asking you to find occurred beyond a reasonable doubt were memories that occurred from a state of sleep, just barely waking up in a room lit only by a nightlight that happened for an extremely short duration of time five years prior to her saying anything.

“She may absolutely believe this happened. She may also be confused or mistaken. You do not have to measure her truthfulness. You do not have to measure her veracity in order to find that the State has not proven its case beyond a reasonable doubt.”

While Smith now claims these remarks did not challenge P.B.’s credibility, we do not read the record the same way. Smith was attempting to poke holes in P.B.’s testimony by highlighting the gaps in details about her surroundings or plant a seed of doubt that she fabricated the story to get to live with Grandmother. In response, the prosecutor stated in rebuttal:

“You heard from [P.B.] on the stand. You heard from [P.B.] in the interview, the one person that was there, [P.B.]. You heard from her twice telling this is what happened.

“Have you been given any reason not to believe [P.B.]? Was there anything about the evidence production that gives you any reason to sit here and go I'm not sure I believe [P.B.]?

“What does all the other evidence, besides what [P.B.] told you, demonstrate about [Smith]? You can't convict him because of that case. You're not here to punish him because of that case. But, that evidence is evidence in this case.

“It is evidence you get to use as his propensity to commit sexual misconduct, these offenses he's accused of, his propensity to commit these crimes. And, for whatever relevant purposes you want to use it for, but certainly for that purpose.

“The—[defense counsel] said, in his slide show, that back on the prior interview, [P.B.] didn't have the memory to tell that this touching happened.

“I didn't ever hear [P.B.] say she didn't have the memory then. She told her—she told that interviewer that she hadn't been touched. But, is there a reason? Have you been given any reason why a child might be delayed in disclosing, why she might say it later when she's grown up a little bit?”

Smith argues that the rhetorical questions—“Have you been given any reason not to believe [P.B.]?” and, “Was there anything about the evidence production that give you any reason to sit here and go I'm not sure I believe [P.B.]?”—suggest that it was the defendant's obligation to come up with evidence that what the victim testified to did not happen.

Smith likens the questions here to ones in State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004), in which the prosecutor rhetorically asked: “ ‘[I]s there any evidence that it didn't happen? Is there any evidence that the things she told you didn't happen?’ ” The Kansas Supreme Court held that these questions were impermissible when considered in context with the prosecutor also rhetorically questioning Tosh's motive in requesting a jury trial after he confessed and suggesting Tosh's attorney would question the victim's motive in his closing, which would be like raping the victim again. 278 Kan. at 90-91. But we have a different context here—the prosecutor here was responding to Smith's questioning of P.B.’s credibility and the comments were not compounded with other improper comments like in Tosh. And the questions in Tosh went to the ultimate issue of the case: whether the crime happened. Whereas, the questions here went to the issue of P.B.’s credibility: whether she was a reliable witness.

In State v. Watson, 313 Kan. 170, 484 P.3d 877 (2021), our Supreme Court clarified that prosecutors are granted wide latitude to address the arguments and weaknesses of the defense. And while a prosecutor may not attempt to shift the burden of proof to the defendant, it does not do so “by posing a general question about the lack of evidence offered to rebut the State's witnesses.” 313 Kan. at 176; see State v. Peterson, No. 116,931, 2021 WL 3823405, at *8 (Kan. App. 2021) (unpublished opinion) (“In turn, a prosecutor may comment on the lack of evidence suggesting a State's witness to be unworthy of belief ․ without shifting the burden of proof to the defendant.”). Here, for example, in closing, Smith implied that P.B. had memory issues and that Grandmother concocted the story and P.B. was just going along with it. But Smith provided no evidence to support these assertions beyond conjecture. As a result, the State appropriately asked the jury whether there had been any evidence against P.B. to reestablish that the doubts being planted did not have evidentiary support.

We find the remarks in this case to be more like those in Watson than in Tosh, when considered in context. Thus, we find the prosecutor did not err.

Even if the rhetorical questions were in error, they were harmless error.

Under the second step of the prosecutorial error analysis, Smith asserts that the statements by the prosecutor were reversible error because it unconstitutionally shifted the burden to the defendant to demonstrate that the crime did not happen. Whereas the State argues that the error, if any, was harmless based on the wider context of the statements and the jury instructions indicating that arguments by counsel were not evidence.

Smith argues that, as is commonly true in sex offense cases, the State's burden of proof hinged on P.B.’s credibility. And he argues her credibility was particularly important here because the State did not offer any corroborating evidence:

“[T]he State did not attempt to corroborate P.B.’s allegation. Police did not attempt to collect DNA evidence, procure a SANE/SART evaluation, talk with witnesses involved in the 2019 case, interview any of P.B.’s friends, siblings, father, or mother to see if P.B. disclosed the allegations previously, or conduct follow up interviews with P.B. to ensure her disclosure remained consistent. Which means, the State's case hinged entirely upon the jury finding P.B.’s allegations credible beyond a reasonable doubt; if the State did not establish P.B.’s credibility it could not meet its burden of proof. As such, it cannot be said that the prosecutor's attempt to shift the burden of proof onto [Smith], by calling upon the defense to disprove P.B.’s credibility, had no impact of this case.”

On the other hand, the State highlights that the jury was properly instructed on both the burden of proof and the fact that arguments from counsel were not evidence. In jury instruction No. 1, the jury was instructed that “[s]tatements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.” In jury instruction No. 3, the jury was instructed:

“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

A jury is presumed to follow the instructions given to it. State v. Reid, 286 Kan. 494, 521, 186 P.3d 713 (2008). Thus, we find the rhetorical questions posed by the prosecutor were harmless since the jury could independently weigh the credibility of P.B. and knew that the prosecutor's statements did not constitute evidence.

Did cumulative error deny Smith a fair trial?

Smith argues that the trial errors he alleged collectively clouded the jury's ability to fairly and impartially weigh P.B.’s credibility. Cumulative trial errors, when considered together, may require reversal of the defendant's conviction when the totality of the circumstances establish that the defendant was substantially prejudiced by the errors and denied a fair trial. State v. Guebara, 318 Kan. 458, 483, 544 P.3d 794 (2024). But the cumulative error rule does not apply if there are no errors or only a single error. State v. Lowry, 317 Kan. 89, 100, 524 P.3d 416 (2023). And we found no trial errors to accumulate.

Did the district court violate Smith's equal protection rights when it included his convictions from 2019 in his criminal history score?

Smith argues that his 2019 convictions and his present case should have been consolidated because they occurred in the same time frame against the same victim, and this case relied heavily on propensity evidence from the 2019 convictions. Instead, the district court sentenced Smith to almost double the sentence of other offenders charged with rape, aggravated indecent liberties with a child, and criminal sodomy because the 2019 convictions raised his criminal history score from an F to a B.

Smith did not raise this issue below, however, he asserts that we may address the issue because the “theory involves only a question of law arising on proved or admitted facts and is determinative of the case” and “consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights.” State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

But as the State points out, the equal protection argument Smith now raises requires significant factual determinations that the district court did not have the opportunity to develop below. Thus, the issue is unpreserved because we do not have a sufficient record to review.

In State v. Shipley, 62 Kan. App. 2d 272, 510 P.3d 1194 (2022), the defendant similarly raised an unpreserved equal protection challenge. Shipley was charged in two separate cases for robberies that occurred over eight days. He pled guilty to the charges in two separate cases, and they were used to calculate the criminal history score against each other. Shipley contended that the statute at issue treated two classes differently: those whose cases were consolidated for trial and those whose cases could have been but were not—without good reason. 62 Kan. App. 2d at 282. Based on the need for factual findings, we declined to review the unpreserved claim.

As in Shipley, significant factual findings are missing from the record, which are required to resolve Smith's claim. The guiding principle of the Equal Protection Clause is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Determining whether Smith was similarly situated to defendants whose cases were consolidated would require determining whether Smith's 2019 and 2023 cases could have been consolidated. While Smith contends it “should make no difference” that the State was unaware of the crimes charged in 2023 when it charged Smith with the crimes in 2019, he cites no legal authority or persuasive analysis to support this argument, and we decline to stretch the boundaries of an equal protection analysis to such limits. Four years is a significant time span and is exceedingly longer than the approximately week-long time span between the crimes at issue in Shipley.

Additionally, Smith failed to preserve his claim because he never asked to consolidate his cases. Our court explained in State v. Reyes, No. 124,424, 2023 WL 3143652 (Kan. App. 2023) (unpublished opinion), that when the cases are not consolidated and are used against each other when calculating the criminal history score (like Smith's 2019 convictions were used in the sentencing in his 2023 case), an equal protection challenge is not supported. In Reyes, the defendant had two separate cases, and at various points held hearings at the same time—including a plea hearing and sentencing hearing. 2023 WL 3143652, at *1. The district court was never asked to consolidate the cases for trial, so the defendant received a higher sentence than if they had been consolidated. 2023 WL 3143652, at *2. The Reyes court highlighted that to sustain an equal protection claim regarding disparate sentencing, there must have been a consolidation of the cases. The mere fact that they could have been consolidated was also not demonstrative of an equal protection violation. 2023 WL 3143652, at *4.

For these reasons, we decline to consider Smith's sentencing challenge because it is unpreserved.

Affirmed.

Sexually explicit videos that include repeated displays of the defendant's genitals should not be admitted as propensity evidence under K.S.A. 60-455 because they are unduly prejudicial. This case illustrates how a jury can be improperly swayed with inflammatory evidence when the Boysaw analytical framework is not followed. See State v. Boysaw, 309 Kan. 526, 541, 439 P.3d 909 (2019). Thus, I respectfully dissent.

Please note I am using the term “sexually explicit” to describe the videos because, at the K.S.A. 60-455 motion hearing, the State defined “sexually explicit” conduct to mean “actual or simulated exhibition in the nude.”

The Boysaw analytical framework is a procedural safeguard for evaluating K.S.A. 60-455 evidence.

“When a party seeks to introduce evidence showing that the defendant committed another act or offense of sexual misconduct, the material fact that the evidence is introduced to prove must be disputed and the probative value of the evidence must outweigh its potential for producing undue prejudice.” Boysaw, 309 Kan. 526, Syl. ¶ 7.

In Boysaw, the Supreme Court laid out the proper procedural safeguard for evaluating evidence under K.S.A. 60-455.

“[First,] [i]n evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider [several nonexclusive] factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. [Second,] [i]n evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct. Benally, 500 F.3d at 1090-91.” Boysaw, 309 Kan. at 541.

When applied, employing the Boysaw analytical framework ensures the unduly prejudicial evidence is not admitted at trial.

State's motion to admit propensity evidence

Under K.S.A. 60-455(d), the State moved to admit propensity evidence of Smith's prior sexual misconduct through Smith's 2019 convictions of breach of privacy, testimonial evidence, and the videos that Smith used in recording P.B. and another girl in the bathroom. In its K.S.A. 60-455 motion, the State included quotes from Officer Karmen Brosten's affidavit, which stated:

“That Officer Carranza learned on May 13, 2019 at approximately 1600 hours, [Mother] was doing laundry and checked the pockets of her boyfriend's, identified as Monty Dean Smith, jeans and located a micro secure digital (SD) card in the coin pocket. [Mother] explained she checks the pockets of the clothing she is going to wash to make sure no items get into the washer. She kept the SD card and continued washing the clothing. [Mother] provided Officer Carranza with the SD card she found in Monty's jean pocket. The SD card was a Sandisk Ultra Plus 32GB Micro SD in a PNY Micro SD Adapter.

“That [Mother] explained on May 15, 2019, at approximately 1500 hours, she decided to see what was on the SD card she found in Monty's jean pocket. She advised she viewed videos depicting her eight-year-old daughter, [P.B.] and Monty at their residence ․ [Mother] advised Officer Carranza she seen a video of Monty exposing his penis in the kitchen and walking towards the living room where [P.B.] was asleep. Monty continued to expose his penis while standing above [P.B.’s] head. [Mother] stated she knew it was her living room in the video and she seen the refrigerator in the kitchen and recognized [P.B.] on the couch.

“That [Mother] stated on May 15, 2019 at approximately 1645 hours, Monty came home and he asked her what was wrong. She confronted Monty about seeing the videos of [P.B.] [Mother] stated they got into an argument and Monty said he never placed a hand on [P.B.]

“That on May 15, 2019, Officer Carranza applied for and received a search warrant for the contents on the Sandisk Ultra Plus 32 GB Micro SD. The search warrant was executed and 17 videos, 278 images, 4 archive files, 4 text items and 106 timeline items were seized.

“That on May 16, 2019, the Affiant reviewed all of the videos from the Sandisk Ultra Plus 32 GB Micro SD. Out of the 17 videos, the Affiant noted five videos of concern. The first video was entitled 021719164.a.mp4 with a creation date of February 17, 2019 at approximately 1651 hours. In the video, a red bath mat, a shower curtain and a bath/shower combo were visible. The camera shifts and is now a front facing record. The Affiant [sees] a white male, whom the Affiant recognized to be Monty. Monty is only wearing a white towel and puts the camera under the sink bowl so the camera view is of the bath/shower area. After the camera is placed, Monty removes the towel and bends down to expose his penis to the camera. Monty leaves the bathroom. A younger female, along with [P.B.], enter into the bathroom wearing robes. The girls remove their robes and their shorts to show what appear to be the swimsuit bottoms. [P.B.] pulls down her swimsuit bottoms which exposes her vagina and then uses the toilet After using the toilet, she gets into the bathtub. The girls put their robes back on and a male voice is heard as the girls leave the bathroom. Monty immediately enters the bathroom[,] takes the recording device and the video ends.

“The second video is entitled 0306192052.mp4 with a creation date of March 6, 2019 at approximately 2058 hours. In the video, a toilet with a red seat cover is in the camera view as it is being placed underneath the sink in the bathroom. The camera is front facing and captures Monty's face as he is moving it under the sink. The Affiant observes Monty wearing a dark colored t-shirt and a pair of black shorts with a gray line down the side. After placing the camera under the sink, Monty exposes and shakes his penis towards the camera. Monty turns on the shower and turns it back off. The camera captures Monty removing his shorts and sitting on the toilet while he grabs his penis. Monty then takes the camera and the video ends.

“The third video is entitled 0314190156.mp4 with a creation date of March 14, 2019 at approximately 0157 hours. In the video, it captures a red or orange rug with a design on a wood floor and an exposed penis. The Affiant noted the person in the video was wearing a pair of black shorts with a gray line down the side that appeared to be the same shorts worn by Monty in the previous video. The camera is walked to a couch where [P.B.] is sleeping facing away from the camera. The camera captures the penis being exposed right by [P.B.’s] head. The video then spans down to the floor and the video ends.

“The fourth video is entitled 0325191903.mp4 with a creation date of March 25, 2019 at 1910 hours. In this video, it captures a bath/shower combo and a toilet with a red toilet seat cover. The video shows Monty's face as he is putting the recording device under the sink in the bathroom. He is also talking to the sound of young girl voices outside of the bathroom stating, ‘yes I'm almost done’. Monty takes toilet paper and puts it near the camera. Then, he uses a second device which appears to be a cellular phone or tablet and places it on the opposite side of the sink. The Affiant noted drops of water on Monty's arm as if he had just showered. Monty is wearing a pair of black shorts and a necklace. Monty leaves the bathroom and says, ‘Okay, [P.B.]’ and a young girl, identified as [P.B.] enters the bathroom and stands on the toilet. [P.B.] then pulls down her pants and her vagina and butt are exposed. Monty asks if she is done and [P.B.] leaves the bathroom. Monty then enters and his black shorts with a gray stripe are visible. Monty leaves again and a different young female enters wearing a pink shirt and gray designed leggings. The young female uses the toilet and leaves the bathroom. Monty enters the bathroom again and sits on the toilet. He then takes the second recording device on the other side of the sink. Monty then takes the other recording device and the video ends.

“․ phones but would have hid them. [Mother] further stated Monty just got a new cell phone. [Mother] advised she did confront Monty about the videos and provided the Affiant with the messages she sent and received from Monty. [Mother] advised the messages were sent the day before. The Affiant read a message replied to [Mother] after she said, ‘I loved you my kid? WtF․’ Monty stated, ‘For what it's worth I'm sorry. It really isn't how it looks. I would think the same thing if tables were turned. I will always love you.’ Monty also wrote, ‘Listen I didn't touch her and I wouldn't. I'm sorry for everything I really am. I'm not going to bother you anymore. I wish I could fix doings but I can't. I'm gonna be gone as soon as l can so y'all can breathe easy. That's the only thing I can do to show that I do care. I'm just too broken to be loved back.’

“That on May 16, 2019, the Affiant applied for and received a search warrant for [the residence.] The search warrant was executed and photographs were taken of the inside and exterior of the residence. In the residence, the Affiant observed the only bathroom was located on the first floor. The Affiant noted the bathroom was the same bathroom depicted [in] the videos viewed from the SanDisk Ultra Plus 32G as the toilet had the red toilet seat cover, the curtain behind the toilet were the same design, the shower curtain was the same design and a unique towel with a dog design was located near the bottom of the sink. The Affiant also noted the same rug with the design by the refrigerator and the couch in the living room was the same in the video entitled 0314190156.mp4. The Affiant noted the upstairs of the residence was split into two bedrooms with one appearing to belong to Monty and [Mother] in the south corner and the other being [P.B.]’s bedroom in the north corner that had blue walls. The Affiant also located a pair of black shorts with a gray line in south bedroom on the left side of the bed. Also on the left side of the bed, the Affiant located a Verizon Wireless tablet, two optical discs, a Kocaso tablet, a white Samsung cellular phone, a LG tablet and a HTC cellular phone. While at the residence, the Affiant called the last known phone number associated to Monty with the number had been changed or disconnected.”

As shown above, Brosten's probable cause affidavit described the propensity evidence.

From the onset, the State's motion does not reference or review the Boysaw factors. While the State referenced the Boysaw factors at the K.S.A. 60-455 motion hearing, the district court did not apply all the Boysaw factors. That is, the district court did not follow the Boysaw analytical framework and weigh all the Boysaw factors on the record.

Certainly, failing to review the Boysaw factors on the record does not result in reversible error. See State v. Claerhout, 310 Kan. 924, 931, 453 P.3d 855 (2019). Reversible error can occur when a court fails to apply the Boysaw analytical framework and erroneously admits unduly prejudicial evidence that contributed to an improperly based jury verdict. See State v. Brown, 58 Kan. App. 2d 599, 618-19, 473 P.3d 910 (2020).

Without a thorough weighing of the Boysaw factors—as directed by the Kansas Supreme Court—a district court is likely to overestimate the probative value of the evidence and underestimate the prejudicial effect of the propensity evidence. See 309 Kan. at 540-41. That is what occurred here. Without employing the Boysaw analytical framework, the district court found “that the probative value far outweighs any prejudice to the defendant.” (Emphasis added.) As discussed below, evaluating these factors would have led the district court to limit the prejudice that came with the admission of this highly inflammatory evidence.

Evaluating the probative value of the propensity evidence

A. How clearly was the prior act proved?

The prior act was clearly proved. The prior act of sexual misconduct occurred when Smith videotaped P.B. and another young girl using the bathroom and when he displayed his penis near P.B. as she slept. Smith was initially charged in part with two counts of sexual exploitation of a child but later pled to only two counts of breach of privacy, along with a misdemeanor drug possession. While the prior acts of sexual misconduct outlined in Officer Karmen Brosten's probable cause affidavit did not mirror Smith's 2019 breach of privacy convictions, the affidavit would have proven the prior acts.

B. How probative is the evidence of the material fact sought to be proved?

Evidence of Smith's misconduct, as described in Brosten's probable cause affidavit, is probative. Brosten's detailed affidavit specifically outlined the factual basis for Smith's two charges of sexual exploitation of a child. Yet unlike Brosten's affidavit, the sexually explicit videos are not probative in the same manner as Brosten's affidavit due to their highly prejudicial nature.

So, while the sexually explicit videos reflect Smith's misconduct, any probative value garnered from reviewing the sexually explicit videos, which shows both Smith and young girls in a state of undress, is offset by the videos’ inflammatory natures.

C. How seriously disputed is the material fact?

It is unclear how seriously disputed the material fact is in this case. Smith had already been convicted of breach of privacy based on the videos he had recorded of P.B., and the State had strong evidence in support of showing propensity.

D. Can the State obtain any less prejudicial evidence?

Despite including Brosten's affidavit in its motion to admit K.S.A. 60-455 propensity evidence, at the hearing, the State told the district court, “We can't obtain any less prejudicial evidence because, as he acknowledged, we have [P.B.’s] statement and that's it and then we have these videos.”

No consideration was given to the probable cause affidavit presented in the K.S.A. 60-455 motion. The affidavit, however, was sufficient to present Smith's propensity for sexual misconduct. Or the State could have limited its propensity evidence to Brosten's testimony, who would have testified about the charges and the law enforcement investigation. Her testimony, along with her probable cause affidavit, would have established Smith's propensity for sexual misconduct.

The district court erred by finding that Smith's propensity to commit sexual misconduct could not be established by lesser-prejudicial evidence. The court stated, “There's no less prejudicial evidence that the State can obtain to show propensity ․” Yet the information contained in Brosten's probable cause affidavit undermines this finding.

Smith has preserved this issue.

Respectfully, I disagree with the majority's analysis that Smith failed to preserve this issue regarding whether there was less prejudicial evidence to show propensity:

“The first problem with Smith's argument is it is unpreserved. Before the district court, he only argued that the State could have used the journal entry from his 2019 convictions to establish his propensity. On appeal, Smith changes his argument to say the complaint or probable cause affidavit from the 2019 case would have sufficed. Not only did he fail to mention these options to the district court, but we cannot evaluate his argument since he has not included these documents in the record on appeal. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013) (‘ “It is well-settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.” ’). And, as the State notes, the journal entry was not an adequate substitute since Smith pled to nonsex crimes.” Slip op. at 6-7.

Instead, I would not find that Smith is limited to his suggestions presented at the pretrial hearing. It was, after all, the State's motion to admit highly inflammatory evidence. The Boysaw factors specifically consider “whether the government can obtain any less prejudicial evidence.” (Emphasis added.) 309 Kan. at 541. The factor does not ask: “Can the defendant obtain any less prejudicial evidence?” Indeed, the Boysaw court did not indicate that it is the defendant's responsibility to procure less prejudicial evidence.

This question asking if the government can obtain any less prejudicial evidence also touches upon the majority argument that the affidavit was an inadequate “substitute” for the video evidence. Slip op. at 8. But that is not the test.

Propensity evidence by its nature is prejudicial. As such, in order not to escalate and further the prejudice, thereby depriving the defendant of a fair trial, courts should ensure that propensity evidence is not unduly prejudicial. Thus, the question is not whether there is any evidence that is an adequate substitute, but whether the government can obtain any less prejudicial evidence.

The probable cause affidavit that Smith now advocates for, moreover, is in the record. In volume one of the record on appeal, the State's motion to admit evidence pursuant to K.S.A. 60-455 referenced the 2019 CR 128 probable cause affidavit and quotes Brosten's affidavit. I would opine that as a court we cannot ignore what the district court was aware of at the time of its ruling granting the admission of the sexually explicit videos. The district court was clearly aware of Brosten's affidavit because it was included in the State's motion to admit propensity evidence under K.S.A. 60-455.

The determination of what evidence is less prejudicial lies with the district court. See Boysaw, 309 Kan. at 540. I disagree that the district court was put in a position of scouring the record to find less prejudicial evidence, particularly as the affidavit was included in the State's motion. Smith's argument is preserved because the district court was aware of the probable cause affidavit.

Due to the unquestionably inflammatory nature of the videos displaying Smith's genitals, the girls’ buttocks, and the girls’ use of the bathroom—serious consideration should have been given to less prejudicial means to convey Smith's propensity. The State's evidence at trial shows how there was ample means to present evidence of Smith's propensity before resorting to publishing such degrading and—to echo Grandmother's testimony—“disgusting” videos to the jury.

Evaluating the possible prejudicial effect of the propensity evidence

A. What was the likelihood that such evidence would contribute to an improperly based jury verdict?

Given the inflammatory videos, which P.B.’s grandmother regarded as “disgusting,” it is very likely that such evidence would contribute to an improperly based jury verdict.

Indeed, such sexually explicit videos are generally not shown to a jury. See State v. Miller, 284 Kan. 682, 702, 163 P.3d 267 (2007) (pornographic images “ ‘added very little to the jury's understanding of the issues’ ”). The majority opinion references United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017). There, the defendant was indicted for coercing and enticing a minor to engage in illegal sexual activity. The Schaffer court affirmed the trial court's ruling permitting the government to publish videos showing the defendant committing sexual acts with other minors.

Schaffer is not analogous for three reasons. First, unlike a Kansas case evaluating K.S.A. 60-455 evidence, Schaffer is a federal circuit court case that did not apply the Boysaw factors and analysis. As a result, the district court never determined whether there was less prejudicial evidence available. Second, Kansas courts have not adopted the federal district court's reasoning that, in addition to showing the young ages of the girls, the videos showing the defendant committing sexual acts with other minors “were not unfairly prejudicial because they did not show conduct more inflammatory than the conduct alleged in the indictment.” Schaffer, 851 F.3d at 172; see also Miller, 284 Kan. at 701 (noting excluded pornography videos “ ‘would likely have repulsed many of the jurors’ ”). Third, unlike in Schaffer, Smith's prior crimes related to voyeurism—watching the girls in a state of undress—not prior sex acts with other minors. Therefore, the reasoning in Schaffer for admitting the videos differs from this present case.

B. What was the extent such evidence may distract the jury from the central issues of the trial?

Due to the inflammatory nature of the videos, there would have been a strong likelihood that the jury would be distracted from the State's video evidence of Smith's acts against P.B. The State's decision to show the sexual videos near the close of the State's case is one example of how the jury was distracted from its duty to determine Smith's guilt as it relates to the present charges.

C. How time consuming would it be to prove the prior conduct?

In light of Smith's 2019 favorable plea agreement resulting in two convictions of breach of privacy, it was foreseeable that the State's present criminal case against Smith would evolve into a trial about Smith's guilt relating to the earlier dismissed charges. The resulting trial testimony, that included several witnesses, not only complicated the State's case against Smith, but it also consumed a large portion of the State's case against Smith.

Overall, the district court should have thoroughly applied the Boysaw factors as a procedural safeguard. Doing so would have allowed the district court to adequately weigh the low probative value of the sexually explicit videos along with the prejudicial effect of the jury viewing them. This procedural safeguard would have significantly lessened the probability of an improperly based jury verdict.

Given how inflammatory the videos were, the district court erred by admitting the unduly prejudicial evidence. See State v. Evans, 313 Kan. 972, 990, 492 P.3d 418 (2021) (“Even if the evidence was material and probative, it would not be admissible if it was unduly prejudicial.”). In Evans, the Supreme Court explained how “ ‘[a]ll evidence that is derogatory to the defendant is by its nature prejudicial to the defendant's claim of not guilty. Evidence that actually or probably brings about a wrong result under the circumstances of the case is “unduly prejudicial.” ’ ” 313 Kan. at 990.

The district court's decision to admit the videos was an abuse of discretion.

The admission of the sexually explicit video caused reversible error.

Under the statutory harmless error analysis, the State bears the burden of demonstrating the error was harmless. See K.S.A. 60-261; State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).

Smith was unable to receive a fair trial. The State's case against Smith was not strong. Years before, P.B. had denied that Smith had sexually touched her or engaged in any sexual acts with her. At trial, P.B. did not testify that Smith had engaged in the charged sexual acts. Instead, the State relied on P.B.’s Child Advocacy Center interview video, which included her statements that Smith had engaged in sexual acts with her, including inappropriately sexually touching her. As noted by Smith, P.B. never told anyone else about Smith's actions until P.B.’s grandmother directly raised the issue with P.B.

Instead, Smith's trial seemed to be a trial within a trial: whether Smith should be found guilty and subsequently punished for acts committed in 2019 along with the present charged crimes. As noted by defense counsel, “To show the jury the entire evidence from the first trial does nothing but prejudice the jur[y]’s minds.” At one point, P.B.’s grandmother made inflammatory statements about the first criminal case, testifying that Smith had “got away with it with the video” and that “something needs to be done.”

The State appears to have recognized that the trial had morphed into a trial relating to Smith's earlier charges of sexual exploitation of a child. In its closing argument, the State told the jury that it “can't convict him just because of the videos. You can use that as propensity that he committed these offenses. You can't use it to convict him exclusively.” Smith's trial seems to have been one of retribution.

Additionally, by the time the jury viewed the videos, it was already predisposed to find them highly inflammatory with little to no probative value. During voir dire, prospective jurors were told about the videos and heard from other panelists how they would find the videos offensive. And before the jury watched the video, P.B.’s grandmother had already told the jury that it would find the video “disgusting.” She stated, “My granddaughter was eight years old, a little girl, when he did this to her. And, it's disgusting. And, you'll see.” During closing argument, the State acknowledged how prejudicial the videos were, telling the jury: “[Y]ou may hate him because of those videos.”

At its essence, inflammatory evidence can cloud a jury's judgment and in turn lower the standard of proof. In simple terms, an inflamed jury is not a thinking jury. Because of this, courts work to prevent evidence from inflaming and thereby distorting the jury's perception of the strength of the evidence against the defendant. See State v. Gunby, 282 Kan. 39, 48-49, 144 P.3d 647 (2006).

In light of the unduly prejudicial nature of the propensity evidence presented at trial, the State cannot meet its burden that the error was harmless. Smith's convictions should be reversed and the case remanded for a new trial wherein the district court can properly apply the Boysaw factors.

Cline, J.: