Terry R. Ballou Sr., Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

Terry R. Ballou Sr. appeals from the district court's denial of his K.S.A. 60-1507 motion. Ballou raised several issues in his 1507 motion to the district court but only brings two issues for this court's review concerning an alleged alibi defense. This court finds that Ballou failed to establish that an alibi defense was available that he was unable to present, and thus the district court's denial of Ballou's postconviction motion is affirmed.

Factual and Procedural Background

A jury convicted Ballou of one count of rape and one count of aggravated indecent liberties with a child. State v. Ballou, 310 Kan. 591, 592-93, 448 P.3d 479 (2019). The complete facts of Ballou's underlying criminal case are set out in the decisions concerning his direct appeal, but they are unnecessary for this appeal. See Ballou, 310 Kan. at 593; State v. Ballou, No. 116,252, 2017 WL 3575610, at *1-3 (Kan. App. 2017) (unpublished opinion). Only pertinent facts will be recited herein.

On or about April 13, 2014, Ballou's live-in girlfriend returned home sooner than expected after running some errands and found Ballou in the living room sexually assaulting the six-year-old victim. Ballou, 310 Kan. at 593. The witness told her adult daughter and mother what she witnessed and later gave similar details to investigators.

At trial, a person named John testified that he had known Ballou for almost 30 years and had worked with him for multiple years in different jobs. He said that he lived with Ballou from October 2012 until October 2013 and that he was with Ballou “24/7” during that time. John said that he never noticed anything unusual between Ballou and the victim during that time.

Ballou testified at trial about the events of April 13, 2014—the date of the incident supporting the charges—that he and the children (including the victim in this case) got ready, picked up John, stopped at Casey's for snacks and drinks, and went to work on an oil lease. Ballou said that two other individuals showed up to help with the work and that the group stayed at the site until the evening. Ballou testified that at around 8:45 p.m. he still had the children, including the victim, out with him. According to Ballou, he then left work, stopped at Casey's again, and took John home. The State objected, arguing that Ballou was presenting an alibi defense for which the State had received no notice. Ballou's trial attorney argued that it was not an alibi defense, that Ballou was just explaining what he did on the day in question. After more discussion, the court granted a recess until the next morning of trial, giving the parties time to research the issue.

The next morning, Ballou's trial attorney argued that under the statute requiring notice of an alibi, Ballou was not required to provide notice because the alibi was from Ballou rather than a third party. The State told the court that the parties agreed to ask the court to admonish the jury to ignore the testimony about Ballou being with John that evening and to instruct Ballou not to refer to John being with him. Other than that, Ballou could testify to what he did that evening. The trial attorney told the court that the defense was not relying on John as an alibi witness because counsel said that John could not recall the events of the day:

“Judge, I would just like to reiterate ․ that [John] was never planned on being called as a witness to talk about that particular night or that particular day, and I never asked him any questions about that particular day or that particular night because he had no independent recollection of exactly what happened that day. So, I never even considered that he was an alibi witness because we were never presenting him or having him testify about any facts concerning that specific time frame on that specific day.”

With the support of the trial attorney and the State, the district court admonished the jury “to disregard any testimony regardless of the source regarding John [ ] and Terry Ballou being together the evening of April 13th, 2014.” Ballou then retook the stand and testified that he returned home with the children on the evening of April 13, 2014.

The jury ultimately convicted Ballou of rape and aggravated indecent liberties with a child but acquitted him of aggravated criminal sodomy. The district court sentenced Ballou to consecutive life sentences without the possibility of parole for 25 years on each count and imposed lifetime postrelease supervision for each charge. Ballou, 310 Kan. at 594.

On appeal, another panel of this court assumed “the prosecutor committed error by expanding the time frame in which the State alleged the crime occurred,” but held any error was harmless. 310 Kan. at 594-95; see Ballou, 2017 WL 3575610, at *8. The panel rejected all other claims of error. 310 Kan. at 595.

The Kansas Supreme Court granted Ballou's petition for review and the State's cross-petition seeking review of the panel's decision to assume the prosecutor erred. 310 Kan. at 595. The Kansas Supreme Court vacated the imposition of lifetime postrelease supervision on Ballou's two hard 25 life sentences, finding it rendered his sentences illegal. However, the Supreme Court found Ballou failed to show reversible error in any of the issues raised on review, and thus affirmed his convictions. 310 Kan. at 617-18.

Ballou's K.S.A. 60-1507 motion

On September 1, 2020, Ballou filed a pro se K.S.A. 60-1507 motion and a supporting memorandum and moved for the appointment of counsel to assist with his motion. Ballou argued that his trial attorney was constitutionally ineffective for failing to:

• effectively cross-examine the victim and/or impeach the witness;

• present an alibi defense and interview and call alibi witnesses;

• offer expert testimony on child interview techniques in an attempt to show that the victim was misled or coached;

• and raise a contemporaneous objection to the introduction of evidence of prior uncharged sexual abuse.

Ballou asserted that prior to trial, his attorney failed to investigate his case and failed to interview key witnesses and call alibi witnesses who Ballou identified in his motion. Ballou also argued that his direct appeal counsel was ineffective for failing to raise these issues on appeal.

After “numerous interim filings” over the next four years, which neither party details on appeal, the State filed its response to Ballou's claims on July 5, 2024. Through counsel, Ballou filed a reply to the State's response and argued he had met the burden to move forward with an evidentiary hearing. On August 23, 2024, the district court held a preliminary hearing on Ballou's motion. Ballou argued that his case required an evidentiary hearing to resolve his claims. Ballou stated to the court that he suffered manifest injustice resulting from his trial attorney's ineffective assistance of counsel. After hearing additional arguments from the parties, the district court took the case under advisement.

On September 4, 2024, the district court held a hearing and announced that it would have an evidentiary hearing on Ballou's motion. The court stated that the hearing would be limited to evidence or arguments concerning the ineffective assistance of counsel claim. The court conducted the evidentiary hearing in January 2025. Ballou and his trial attorney testified at the hearing. The State did not call any witnesses.

The trial attorney testified that she was Ballou's only trial attorney, and that she hired a private investigator to explore whether the witness had been lying about what she saw or that she coached the victim to make false allegations. She also testified regarding other decisions she made, but they are not part of the issues raised on appeal and thus will not be detailed. With regard to the State's objection that Ballou's testimony regarding his whereabouts on April 13, 2014 amounted to an alibi defense, the trial attorney testified that the defense was not relying on an alibi defense, explaining that there was no alibi witness but only Ballou explaining the events of the day:

“We didn't have an alibi witness. All we had was Mr. Ballou explaining what he did that day. It wasn't that he was gone the entire day. It was just that what he had done that day. So that was, I believe that was my argument at the bench is that this was not an alibi in the true sense of the word of that was not our defense.”

At the 1507 motion evidentiary hearing, the State objected after the trial attorney reiterated that Ballou “didn't have an alibi defense.” The State argued that the testimony about the alibi defense was irrelevant: “Object to relevance, Your Honor. That one was squarely decided by both the Appellate Court and the Supreme Court as being not reversible error and not error at all.” The district court responded, “I think that's true,” and Ballou's attorney said, “Okay. Thank you, Judge.”

Specific to the claims raised on appeal, Ballou testified that his trial attorney failed to properly investigate witnesses and his alibi, though she knew he had one. The State questioned when Ballou first notified his attorney that he believed he had an alibi, and Ballou's response was interrupted by the district court, preventing the testimony:

“[Ballou]: Well, the day she told me that my allegation, the allegations made against me was on 4/13/2014 and I remembered I knew exactly what I did that day. And I told her who I was with—

“[The Court]: I'm, I'm going to point out that he actually, this is already, this alibi issue we talked about this, has already been brought up with the appellate courts and this is already a decided thing. And so we're not doing it.

․

“So, ․ that's not going to be considered today. That issue's been addressed and found to have not been ․ something that would cause this to be overturned. So, that is not an issue.”

Ballou also testified that his trial attorney failed to properly use John as a defense witness. According to Ballou, when John was questioned about an alibi, the State moved for a mistrial and, following a recess, the district court struck John's testimony from the record. Ballou testified that once they “lost the alibi issue,” his trial attorney “failed to recover and bring in other information from [John] that would've been helpful to [his] defense.” Ballou specifically referenced that John could have testified about the witness’ motivations to falsely accuse Ballou but did not mention an alibi.

After hearing the testimony from the trial attorney and Ballou, the parties presented closing arguments. Ballou's appointed counsel did not mention the alibi issue during closing argument. The State argued that there was no alibi and that the “Supreme Court and the Appellate Court have held that there is no alibi. The word alibi is flat out misappropriated in this case and there never was any alibi of any kind whatsoever.”

After arguments, the district court announced its decision. It explained the purpose of the hearing was to learn about the trial attorney's preparations for trial, which was unavailable from the record alone. The court correctly stated the ineffective assistance of counsel claim standard and then addressed the trial attorney's testimony regarding the claims asserted by Ballou. Ultimately, the district court concluded Ballou failed to show the trial attorney provided ineffective assistance. The district court did not directly address the alibi issue.

A written judgment, drafted by the State and approved by Ballou, summarized the district court's ruling in finding that Ballou failed to show trial counsel was ineffective:

“After consideration of the evidence and arguments of counsel the Court finds that the Plaintiff has not satisfied his burden of proof on any of the points raised in his motion and thus DENIES the Plaintiff's Motion to Vacate, Set Aside Judgment or Correct Sentence Proceeding for Relief. Specifically, the Court finds that [the trial attorney] was not ineffective in her representation of the Plaintiff herein. Having found no merit to the arguments of error raised by the Plaintiff the Court finds there is no need to determine if prejudice arose from such alleged errors.”

Ballou appeals to this court for a determination of whether the district court erred in denying his K.S.A. 60-1507 motion as to the alibi issue.

Discussion

Ballou makes two arguments on appeal. First, Ballou asserts that the district court erred in cutting off his testimony about the trial attorney's failure to pursue an alibi defense after concluding the issue was decided on direct appeal. Second, Ballou argues that his trial attorney provided ineffective assistance of counsel by failing to pursue the alibi defense. As the State points out, Ballou has failed to advance all the claims he asserted in his K.S.A. 60-1507 motion and as such those are deemed waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

When presented with a motion filed under K.S.A. 60-1507, a district court may proceed in one of three ways: (1) determine that the motion, files, and case records establish the movant is not entitled to relief and summarily deny the motion without any hearing; (2) determine from the motion, files, and records “that a potentially substantial issue exists, in which case a preliminary hearing may be held”; or (3) determine from the motion, files, records or preliminary hearing that a substantial issue exists, which warrants an evidentiary hearing. State v. Adams, 311 Kan. 569, 577-78, 465 P.3d 176 (2020).

The standard of review used by the appellate court depends on which path the district court chose for its review. 311 Kan. at 578. When, as here, the district court conducts an evidentiary hearing on claims of ineffective assistance of counsel, the appellate court reviews the court's factual findings for substantial competent evidence and its legal conclusions based on those facts applying a de novo standard of review. State v. Peters, 319 Kan. 492, 499, 555 P.3d 1134 (2024).

However, here there is a unique issue, and Ballou urges this court to treat the district court's denial of the alibi-related claim as a summary dismissal. Ballou contends that because the district court did not permit testimony regarding the alibi witness issue, it essentially had no hearing and thus the review on appeal should reflect that decision. In reviewing a summary denial of a 1507 motion, this court exercises de novo review of “the motion, records, and files to determine whether they conclusively show that the movant is not entitled to relief.” Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965 (2018).

I. The District Court Erred in Ruling That Ballou’s Alibi-related Claim Had Already Been Decided on Direct Appeal

During the evidentiary hearing, in response to the State's objection, the district court ruled that the alibi issue had already been decided on direct appeal and would not be considered in Ballou's 1507 motion. Based on that ruling, the district court interrupted testimony from both the trial attorney and Ballou concerning Ballou's alibi claim and effectively summarily denied the motion as to that claim. On appeal, Ballou argues that decision was erroneous because it misinterpreted the appellate courts’ rulings.

The State concedes that the district court's ruling might have been erroneous, admitting it was “questionable at best to consider” the discussion of the alibi defense in the direct appeal opinion “as addressing the alibi issue.” However, the State argues Ballou has waived a challenge to the district court's evidentiary ruling, because he fails to raise it on appeal, essentially contending that Ballou's alibi argument is distinct from Ballou's argument that the district court erred in refusing to hear testimony on the alibi argument. This court does not view Ballou's arguments on appeal so narrowly, particularly since the district court's evidentiary decision is inextricably tied to the alibi issue, which Ballou clearly raises on appeal.

The only mention of Ballou's alibi defense in the Supreme Court's decision addressing Ballou's direct appeal is within its assessment of the potential prejudice caused by the prosecutor's error in misdirecting the jury about the potential time frame in which the crime occurred. Ballou, 310 Kan. at 597-99. The Supreme Court noted that although Ballou gave a timeline of events for the date of the crime, “Ballou did not pursue an alibi defense,” and “did not dispute that he was with [the victim] on April 13 in the house around the time [the witness] stated the crimes took place.” 310 Kan. at 598. The court concluded that given these facts, there was no reasonable possibility the prosecutor's error contributed to the verdict. 310 Kan. at 599.

The Supreme Court's point should not have been interpreted to foreclose Ballou's claim that his trial attorney was ineffective for failing to pursue an alibi defense. Nothing in the Supreme Court's comment prevented Ballou from offering evidence in his K.S.A. 60-1507 motion showing that he had an alibi and that his attorney failed to investigate or present it at trial.

The district court's decision to limit Ballou's testimony about his activities on April 13 is problematic because there is no requirement that a defendant provide notice of an alibi defense when the defendant merely seeks to testify on their own behalf regarding such. See K.S.A. 22-3218(1) (“[N]o such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense.”). Only when the defendant seeks to introduce alibi evidence other than their own testimony must they give notice to the prosecutor. K.S.A. 22-3218(1). However, that issue is not before this court in Ballou's 1507 motion and Ballou is not entitled to relief here because there is no evidence suggesting Ballou had an actual alibi defense. Ballou fails to show ineffective assistance of counsel for any failure to investigate or present an alibi witness.

II. Ballou Does Not Show that the Trial Attorney Was Ineffective for Failing to Present an Alibi Defense

Among the other arguments not addressed in this appeal, Ballou argued in his 1507 motion that his trial attorney was ineffective for failing to interview alibi witnesses and file a notice of alibi under K.S.A. 22-3218(2). Ballou identified four alleged alibi witnesses.

In a 1507 motion, the movant has the burden to prove that an evidentiary hearing is warranted by making more than conclusory contentions and showing that an evidentiary basis exists or is available in the record. Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019). Even if this court reviews Ballou's ineffective assistance of counsel claim as if the district court had summarily dismissed it without any hearing, the records and files conclusively show that Ballou is not entitled to relief.

Claims of ineffective assistance of counsel are analyzed under a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Peters, 319 Kan. at 498. Under the first prong, the defendant must show their counsel's performance was deficient. 319 Kan. at 498. If successful, the court moves to the second prong to determine whether the defendant can establish prejudice—that there is a reasonable probability that the jury would have reached a different verdict absent counsel's unprofessional errors. Khalil-Alsalaami v. State, 313 Kan. 472, 485, 486 P.3d 1216 (2021).

Lack of Evidence of Deficient Performance

To establish deficient performance under the first prong, the defendant must show defense counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny under the first prong “must be highly deferential,” and “[a] fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, reconstruct the circumstances of the challenged conduct, and evaluate the conduct from counsel's perspective at the time.” Peters, 319 Kan. at 498. In considering a claim for ineffective assistance of counsel, the movant “must overcome the strong presumption that, under the circumstances, counsel's action ‘ “might be considered sound trial strategy.” ’ ” 319 Kan. at 498.

While failing to verify an alibi can demonstrate deficient performance—the attorney must have some reason to investigate. See, e.g., Shumway v. State, 48 Kan. App. 2d 490, 497, 501, 293 P.3d 772 (2013) (failure to call alibi witnesses to testify); State v. James, 31 Kan. App. 2d 548, 552-54, 67 P.3d 857 (2003) (failure to subpoena alibi witness); State v. Thomas, 26 Kan. App. 2d 728, 731-32, 993 P.2d 1249 (1999) (failure to file a notice of alibi); State v. Sanford, 24 Kan. App. 2d 518, 523, 948 P.2d 1135 (1997) (failure to contact alibi witnesses). Ballou focused his arguments on the trial attorney's failure to meaningfully investigate his potential alibi and pursue such a defense. However, he has failed to argue or demonstrate that his attorney was aware that Ballou had an alibi defense to present.

To determine whether Ballou's counsel was ineffective for failing to properly investigate an alibi witness or defense, it is necessary to establish what an alibi defense represents. When a defendant intends to present evidence from a third party “to the effect that [the defendant] was at some other place at the time of the crime charged,” that constitutes an alibi defense that requires advance notice to the prosecutor. K.S.A. 22-3218(1). “An alibi places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for the accused to be the guilty party.” State v. Van Pham, 234 Kan. 649, 656, 675 P.2d 848 (1984). Here Ballou claims his attorney was ineffective for failing to investigate the identified witnesses to the extent they would provide evidence that Ballou was not with the victim on the day at the time he was alleged to have committed the crime charged.

Regarding three of the four potential witnesses Ballou identifies in his K.S.A. 60-1507 motion, he provides nothing more than their names. Ballou identifies nothing in this motion or supporting memorandum explaining what these witnesses, if called, would have said regarding Ballou's location at the time the crime was committed. Ballou does not appear to assert in any of the records, motions, files, or even at the evidentiary hearing that any of these witnesses would provide alibi evidence. He also fails to address how these three witnesses could have supplied support for an alibi defense in his brief to this court. Ballou has failed to show that his trial attorney was aware of the need to investigate these three witnesses related to an alibi defense because Ballou fails to show these witnesses could provide such a defense.

Ballou also does not establish how John, the fourth identified witness, could have provided alibi testimony. When explaining at the trial that the defense had not intended to present an alibi defense, the trial attorney said that because John “had no independent recollection of exactly what happened” on the day of April 13, 2014, the attorney did not question him about it or intend to question him about it at trial. Ballou testified at the trial to his comings and goings that day—which included John being with him—but through his 1507 motion Ballou failed to describe or explain what John would have said at trial that could have provided an alibi for the time of the crime. Additionally, Ballou has not contradicted his attorney's statement at trial that John did not recall the timing of the events of that day.

At the evidentiary hearing on his 1507 motion, Ballou carried the burden to establish ineffective assistance of counsel but he failed to call John as a witness. He also failed to proffer to the district court or to this court any information about what alibi John would present if given an opportunity to do so. Ballou's claims amount to conclusory allegations without any actual alibi evidence. Without Ballou alleging actual alibi evidence—that is, evidence from the identified witnesses that Ballou was not at the scene of the crime at the time alleged—this court cannot say that his trial counsel was deficient for not investigating these potential alibi witnesses. Viewing all the motions, files, and records in this case, including the testimony at the evidentiary hearing, Ballou fails to make a threshold showing of deficient performance.

No Prejudice Established

Even if this court assumes deficient performance for failing to investigate alibi witnesses, Ballou then must establish the second step of the ineffective assistance of counsel analysis, that he was prejudiced by this deficient performance. See Breedlove v. State, 310 Kan. 56, 66, 445 P.3d 1101 (2019) (summary denial of K.S.A. 60-1507 motion affirmed when movant failed to show prejudice from any assumed deficient attorney performance). Ballou must show that “there is a reasonable probability the jury would have reached a different result but for the deficient performance.” Breedlove, 310 Kan. at 64.

At trial, Ballou testified that he was with John and the kids doing work on the evening of the crime until dark, around 8:45 p.m. He testified that after finishing work they all went and got pizza and candy at a local convenience store and then Ballou dropped John at his own home. After dropping John off, Ballou testified that he and the kids returned to Ballou's home—where the crime allegedly occurred. The witness testified that she left that same home she shared with Ballou around 8:00 p.m., or “shortly thereafter” to drop some stuff off around the corner before she returned and witnessed Ballou committing the crime. Even if this court were to assume that John would testify consistently with Ballou, it does not appear that the testimony would constitute an alibi that Ballou was not at the location with the victim at the time of the alleged crime.

Rather than presenting an alibi, Ballou's testimony merely challenges the witness’ timeline, which was already imprecise. Therefore, even if John had testified to the exact same timeline—that would not have presented evidence that Ballou was not at the home with the victim at the time of the alleged crime. Ballou's generic conclusion that the outcome of the jury trial would have been different and his direct appeal would have been successful if he was permitted to present his alibi defense is inadequate to secure relief under K.S.A. 60-1507. Even if John would have testified to the exact timeline Ballou presented, this court finds no reasonable probability that the jury would have reached a different result. Ballou's conclusory statements are simply insufficient to warrant relief. See State v. Holmes, 278 Kan. 603, 629, 102 P.3d 406 (2004) (A movant “must set forth a factual background, names of witnesses, or other sources of evidence demonstrating movant's entitlement to relief.”).

Without establishing an alibi defense, Ballou cannot now complain that his trial attorney was ineffective for failing to investigate or proffer an alibi defense at trial. Even considering the evidence as though the district court summarily dismissed Ballou's 1507 motion and assuming the trial attorney was ineffective, this court does not find a “reasonable probability the jury would have reached a different verdict absent counsel's unprofessional errors.” Peters, 319 Kan. at 498.

Conclusion

Following a hearing, the district court denied Ballou's K.S.A. 60-1507 motion, and on appeal Ballou challenged two of the district court's rulings related to an alibi defense. Although this court agrees that the district court erred in concluding that Ballou was precluded from arguing ineffective assistance of counsel related to his trial attorney's failure to investigate or present an alibi defense, on appeal Ballou fails to establish that he had an alibi defense to present. Accordingly, the records, motion, and evidence conclusively show that Ballou is not entitled to relief.

Affirmed.

Per Curiam: