State v. Abrams ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,328
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DUSTIN EUGENE ABRAMS,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; JASON GEIER, judge. Opinion filed September 30, 2022.
Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ISHERWOOD, P.J., GREEN and BRUNS, JJ.
PER CURIAM: Dustin Abrams perpetrated unlawful sex acts against M.B. and a
jury convicted him of two counts of aggravated indecent liberties with a child as a result.
At trial, by operation of K.S.A. 2019 Supp. 60-455(d), the State presented testimony from
R.E., a teenager who babysat M.B. and lived in the same neighborhood. Though R.E.
testified at a pretrial motion hearing, she was not available to testify at trial, so the State
was reduced to reading her pretrial testimony to the jury. On appeal, Abrams contends the
district court committed three errors that entitle him to reversal of his convictions and a
new trial. First, the district court erred in finding R.E.'s testimony admissible under
K.S.A. 2019 Supp. 60-455(d). As a result, it should not have permitted a prosecutor to
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read R.E.'s testimony to the jury. Finally, it erroneously declared R.E. unavailable.
Following a thorough review of the issues presented we do not share Abrams' opinion
that error occurred. Thus, the decisions of the district court and Abrams' convictions are
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
M.B. was born in 2004, and sometime after 2008, her mother, T.B., began dating
Dustin Abrams. In May 2010, Kansas Social and Rehabilitation Services (SRS) launched
an investigation into T.B.'s household concerning a report of physical neglect, food
scarcity, and allegations that Abrams sexually abused five-year-old M.B. Stephanie
Griffin interviewed M.B. at home with T.B. present. M.B. told Griffin that her father,
J.B., molested her but Abrams did not. M.B. shared that she told her grandmother, J.B.'s
mother, about the sexual abuse but her grandmother simply asked whether Abrams was
actually the assailant. At the end of the interview, M.B. assured Griffin that she felt safe
with Abrams and T.B. No follow-up forensic interview was conducted because the
alleged abuser, J.B., was already incarcerated for unrelated offenses.
A year or two later, T.B. moved the family to a different unit in the neighborhood.
At the time of the move T.B. and Abrams were no longer dating, however, they
reconciled a few weeks later and Abrams moved in soon after.
Shortly after moving in with T.B., Abrams developed a friendship with Jacob
Keeler, a neighbor, and longtime friend of T.B.'s. Keeler distanced himself from Abrams
in rather short order, however, after exposure to behavior from Abrams that Keeler found
remarkably unsettling. Specifically, Abrams made sexual comments about M.B., would
tell Keeler that he needed to step out of the room to sexually assault the child, and
describing the act he intended to perform in an extraordinarily repugnant way. Abrams
also remarked how he eagerly awaited subjecting M.B. to specific sex acts and
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complimented the way she provided oral sex. Abrams made the comments on multiple
occasions, including in M.B.'s presence at times.
Keeler also observed Abrams grope M.B.'s groin, put his hands down her pants,
remove her pants and molest her bottom, and push the child to her knees to simulate her
providing oral sex. Abrams threatened to hurt M.B. if she told anyone about the abuse.
T.B. also witnessed Abrams fondle M.B.'s chest and groin more than once and also
observed him pull her pants down and fondle her bottom. T.B. claimed to be too fearful
of Abrams to intervene, yet also told Keeler, several times, of her desire to get Abrams
and M.B. a hotel room when M.B. turned 16 so Abrams could introduce her to sex.
Abrams also felt confident and secure enough in his behavior and friendship with Keeler
to send Keeler sexually explicit photos of M.B., as well as of her babysitter, R.E., and
boldly sent exceptionally lurid text messages about M.B. to Keeler.
It was around this time that T.B.'s neighbors, the Funks, took M.B.'s brother, B.B.,
to the fall festival at Perry, Kansas. M.B. called Crystal Funk while they were at the
festival and asked Funk to come pick her up because Abrams forced her face into his
crotch and she did not feel safe with him. The Funks and B.B. immediately returned
home and found M.B. crying on her porch. She disclosed to Funk that Abrams repeatedly
sexually assaulted her, but she was too scared to contact the police. Funk took the
initiative to call in an anonymous report of sexual abuse.
Meanwhile, Keeler shared one of Abrams' more graphic texts about M.B. with the
husband of M.B.'s cousin, Antonia Newman, who then passed it along to Antonia.
Antonia promptly notified police. Her complaint, in tandem with Funk's anonymous
report, prompted law enforcement to begin to investigate Abrams around November
2015.
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Officers interviewed Abrams on November 24, 2015, and he denied all allegations
of sexual abuse. He admitted to pinching M.B. on her underarm but denied ever touching
her breasts or removing her pants and fondling her bottom. As for the explicit text
message that Keeler turned over to police, Abrams claimed it was about a woman from
work. During the same interview, Abrams conceded that he once woke up to R.E. in his
bed, but he told her to get out. He also told officers that R.E. once texted him a picture of
her breasts, but he deleted it and told her to stop such behavior.
Following Abrams' interview, officers executed a search warrant at his residence,
interviewed T.B., B.B., and R.E., then ultimately removed all the children from the home.
Even though numerous cell phones and electronic devices were seized during the search,
all were returned to Abrams without downloading their contents.
M.B. was immediately placed into a foster home. While there, she participated in
two separate forensic interviews with Lameka Jones, a child protection specialist with the
Kansas Department of Children and Families. The first interview took place nearly
commensurate with M.B.'s removal from the home. She was very unsettled during that
meeting and while she voiced fear of Abrams, she did not disclose any details of the
abuse she endured because of Abrams' threats to cause her harm if she ever told anyone.
The second interview occurred the following month. During that discussion, Jones asked
M.B. where Abrams touched her and M.B. simply pointed to the word "vagina" written
on a whiteboard. M.B. felt a tad less apprehensive during the second interview, but still
did not divulge the extent of Abrams' abuse.
In early 2016, M.B., B.B., and N.B. moved in with the Newmans. Soon after,
M.B. began to see Emily Mills, a mental health therapist who specialized in treatment for
sexual abuse. An intense sense of shame initially prevented M.B. from opening up to
Mills but, after an extensive time period, M.B. gradually disclosed details of the abuse
she suffered, including that Abrams had sex with her and that her mother, T.B., was
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sometimes present during the assaults. She never accused anyone other than Abrams of
the abuse. Though Abrams was arrested in 2015, he was not immediately charged and
T.B. maintained a "friends with benefits" relationship with him. She eventually
relinquished her parental rights in 2018.
In 2019, the State finally charged Abrams with two counts of aggravated indecent
liberties with a child. Prior to trial, the State filed a motion pursuant to K.S.A. 2019 Supp.
60-455(d), seeking to introduce evidence that Abrams also sexually assaulted R.E., a
young girl who frequently babysat M.B. The court conducted a hearing on the State's
motion at which R.E. testified and corroborated details M.B. previously disclosed about
an evening when Abrams provided both girls with alcohol and had sex with them. R.E.
also testified that she saw Abrams sexually assault M.B. in various ways on several
occasions. At the end of the hearing the court granted the State's request to admit
evidence of the acts perpetrated against R.E.
On the day of trial when testimony was scheduled to begin, the State announced it
was attempting to locate R.E. but, as of yet, its efforts failed. The next day, the court held
a hearing outside the presence of the jury to determine whether R.E. was unavailable
pursuant to K.S.A. 60-459(g). After hearing witness testimony and arguments from the
parties, the district court declared R.E. an unavailable witness. The parties then addressed
the proper method of publishing R.E.'s prior testimony to the jury. The State suggested
that a prosecutor not involved with the case take the witness stand in R.E.'s stead and,
along with the trial's prosecutor, read aloud the questions and answers that provided the
substance of R.E.'s earlier testimony. Abrams recommended either providing the jury
with hard copies of the transcript from R.E.'s testimony or having a computer program
read the transcript aloud. The court briefly took the matter under advisement but
ultimately granted the State the latitude to offer R.E.'s testimony through a reading of the
transcript by two prosecutors.
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Abrams' trial got underway and multiple witnesses were called by the State to
testify about the abuse M.B. suffered. First, T.B. explained that she observed Abrams
grope M.B.'s chest and groin several different times. She also testified that she witnessed
Abrams remove M.B.'s pants and underwear then separate the cheeks of her bottom. T.B.
claimed she asked Abrams to stop, but he refused and she was too afraid of him to force
the issue. According to T.B., Abrams told her that he assaulted M.B. because T.B. was
unfaithful and so if she did not want to be with him then he would use her daughter
instead.
M.B. testified and told the jury that the number of times Abrams touched her at
their home was too high to count. She corroborated T.B.'s assertions that Abrams
removed her pants and spread the cheeks of her bottom apart. She also explained that
Abrams touched and put his mouth on her naked breasts, and even in front of T.B. on
occasion. Finally, she testified that Abrams had sex with her multiple times. She told the
jury that her mother was present during a few episodes of intercourse and that one time,
Abrams provided her and her babysitter, 14-year-old R.E., moonshine and then had sex
with them both.
Abrams opted not to testify. In closing, his counsel argued that the State "lost
evidence" and highlighted the report from 2010 that alleged M.B.'s father, J.B., molested
her. The jury returned a guilty verdict for both charges. The district court imposed a
sentence of life without the possibility of parole for 25 years on both counts and ordered
the sentences to be served consecutively.
Abrams timely appealed.
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ANALYSIS
The District Court Properly Granted the State's Motion to Introduce R.E.'s Testimony
under K.S.A. 2019 Supp. 60-455(d).
Abrams' first contention of error is that the district court should not have allowed
R.E.'s testimony in under K.S.A. 2019 Supp. 60-455(d) because it was neither relevant
nor material, and its prejudicial effect outweighed any probative value it carried.
Standard of Review
"When the State seeks to introduce evidence of prior bad conduct under K.S.A.
60-455, that evidence must be material, and its probative value must outweigh its
potential for producing undue prejudice. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647(2006). Whether such evidence is material—meaning that the evidence has some real
bearing on the decision in the case—is reviewed independently, without deference to the
district court. Whether the evidence is relevant to prove a disputed material fact is
reviewed only for abuse of discretion. Whether the probative value of the evidence
outweighs the potential for undue prejudice against the defendant is also reviewed only
for abuse of discretion. State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018)."
State v. Claerhout, 310 Kan. 924, 927-28, 453 P.3d 855 (2019).
Preservation
This court has unlimited review over whether an issue is properly before us on
appeal. State v. Haberlein, 296 Kan. 195, 203, 290 P.3d 640 (2012). "Generally, to
preserve an evidentiary issue for appellate review, the complaining party must have
lodged a timely and specific objection at trial." State v. Dupree, 304 Kan. 43, 62, 371
P.3d 862 (2016) (citing K.S.A. 60-404). The Kansas Supreme Court recently reiterated
that evidentiary objections must be both timely and specific in order "to give the district
court 'the opportunity to conduct the trial without using . . . tainted evidence, and thus
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avoid possible reversal and a new trial.' Baker v. State, 204 Kan. 607, 611, 464 P.2d 212(1970)." State v. Alfaro-Valleda, 314 Kan. 526, 532-33, 502 P.3d 66 (2022).
The State argues this issue is not preserved and therefore not properly before us
for review. It first notes that Abrams failed to cite where he entered a contemporaneous
objection to the admission of the evidence at trial. Abrams counters that the preservation
burden was satisfied at two different points: First when trial counsel objected to the trial
court's ruling admitting R.E.'s testimony under K.S.A. 2019 Supp. 60-455 following the
pretrial motion hearing, and again when he renewed his objection at trial.
We agree with the State that Abrams did not fulfill his burden to properly preserve
this issue. To begin with, the first objection cited by Abrams, that which was entered
during the pretrial hearing, is not sufficient to preserve the issue for appeal. See State v.
Ballou, 310 Kan. 591, 612-14, 448 P.3d 479 (2019) (a pretrial objection to K.S.A. 2019
Supp. 60-455 evidence cannot meet the requirements outlined in K.S.A. 60-404). A panel
of this court also explained that "a pretrial ruling is subject to change at trial as the case
unfolds. As a result of the fluid nature of a trial, a district court should be given the
chance to make a final ruling after hearing additional arguments and considering
evidence." State v. Stewart, No. 120,655, 2020 WL 1074710, at *3 (citing Ballou, 310
Kan. at 613) (Kan. App. 2020) (unpublished opinion); see also State v. Toothman, No.
115,716, 2017 WL 5016206, at *4 (Kan. App. 2017) (unpublished opinion) (a pretrial
objection standing alone does not constitute a contemporaneous objection for purposes of
K.S.A. 60-404).
Abrams' reliance on the second objection, that which he claims renewed his earlier
objection, is flawed in two respects. First, counsel did not enter that objection until after
the prosecutors completed their recitation of R.E.'s testimony from the transcript.
Objections voiced after the complained of evidence is already admitted are not timely
under K.S.A. 60-404. State v. Hilt, 299 Kan. 176, 192, 322 P.3d 367 (2014). Abrams
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therefore did not sustain his burden to timely object to the district court's admission of the
K.S.A. 2019 Supp. 60-455(d) evidence. Further, the foundation for that objection was
that when reading R.E.'s responses, the prosecutor added or changed words. Thus, it was
grounded in how the prosecutor read the transcript, not that the evidence was
fundamentally inadmissible. Accordingly, Abrams also failed to fulfill his obligation to
enter a specific objection to the admission of the K.S.A. 2019 Supp. 60-455(d) evidence.
See State v. George, 311 Kan. 693, 700-01, 466 P.3d 469 (2020) ("Moreover, it is not
sufficient for a defendant to object on one ground and argue another ground on appeal.").
The statutory requirements for preservation and longstanding caselaw interpreting
the same are clear—to secure appellate review, a litigant must offer an objection that is
both timely and specific. Abrams' failure to meet these requirements forecloses
consideration of his claim. He does not offer any argument or explanation for why the
issue should be analyzed despite its procedural deficiencies. Accordingly, we decline to
examine its merits. The district court did not err when it granted the State's motion to
introduce R.E.'s statements into evidence through K.S.A. 2019 Supp. 60-455(d).
The District Court Properly Exercised Its Discretion when it Allowed the State to Read
R.E.'s Prior Testimony into Evidence After the Court Determined she was an Unavailable
Witness.
In his second contention of error, Abrams argues that the district erred by allowing
two prosecutors to read R.E.'s prior testimony into evidence after the court determined
she was unavailable.
K.S.A 2019 Supp. 60-460(c) provides that, if a witness is unavailable, his or her
prior testimony may be published to the jury. After finding that R.E. was unavailable
under K.S.A. 60-459(g), the question then became the appropriate method of publication.
The trial prosecutor proposed that he read the questions posed during R.E.'s previous
testimony while a prosecutor not actively involved in Abrams' case take the stand as a
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proxy for R.E. and read the answers R.E. provided at that time. Abrams recommended
that the court provide each juror with a hard copy of R.E.'s testimony or, alternatively,
utilize a computer program to have the transcript read aloud. The district court adopted
the method proposed by the State and, before publication, explained to the jury that the
individual reading for R.E. was an employee of the District Attorney's office.
Preservation
Abrams objected to the court allowing another prosecutor to read R.E.'s prior
testimony to the jury, therefore, this issue is properly preserved. See K.S.A. 60-404
(requiring a timely and specific objection to preserve evidentiary issues for appellate
review); State v. Dukes, 290 Kan. 485, 487-489, 231 P.3d 558 (2010) (providing
overview of K.S.A. 60-404 and the contemporaneous objection rule).
Standard of Review
The parties disagree about the appropriate standard of review. The State suggests
that this court should review the district court's ruling consistent with the methodology
employed for admissibility questions, i.e., for an abuse of discretion. As authority, the
State directs us to State v. Davis, 284 Kan. 728, 736, 163 P.3d 1224 (2007), a case that
both parties recognize involved a similar issue. In Davis, the Kansas Supreme Court
noted that the appellant did not provide a standard of review. The court considered
viewing the issue as a constitutional one because the appellant framed the issue as
creating an unfair trial. Yet it also noted that the appellant conceded that there was no due
process violation and failed to make an argument grounded in the Confrontation Clause.
Abrams asserts that we should review the issue de novo because it raises a
constitutional question. Specifically, he contends the testimony's presentation "eroded the
adversarial process in favor of the State and denied . . . his right to effective assistance of
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counsel." Thus it involves only a question of law, arising on proven or stipulated facts,
that is determinative of the case, and may therefore be considered for the first time on
appeal.
Abrams' argument that the prosecutor reading R.E.'s testimony undermined the
adversarial system is keyed to his right to a fair trial. But Abrams, like Davis, provides no
legal or factual support for his contention that he faced an unfair trial. Moreover, Abrams'
characterization of this issue as a question of law on stipulated facts reflects the rule
outlining the three situations when this court may agree to analyze a constitutional
argument for the first time. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036(2019). But that rule does not inform our standard of review. We will follow Davis' lead
and review the district court's decision about the manner of introduction for R.E.'s
recorded testimony for an abuse of discretion. See State v. Rodriguez, 305 Kan. 1139,
1144, 390 P.3d 903 (2017) (holding this court is duty bound to follow Kansas Supreme
Court precedent unless there is some indication that the Kansas Supreme Court is
departing from its previous position).
Analysis
As noted above, Davis involved a nearly identical issue. Davis. In that case, Davis'
accomplice testified against him at Davis' preliminary hearing, but invoked the Fifth
Amendment at the trial that followed. The district court declared the accomplice
unavailable and presented the accomplice's testimony in the same manner R.E.'s
testimony was presented here. On review, our Supreme Court declined to assign error to
the occurrence. 284 Kan. at 736.
Abrams tries to draw a distinction between his case and Davis by highlighting that
the testimony in Davis was from an accomplice, whereas the testimony at issue in this
case was used to bolster the idea that Abrams has the propensity to sexually assault
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children. In essence he argues that the emotional response that R.E.'s testimony carried
the potential to elicit warrants a heightened degree of scrutiny of the issue.
We are not persuaded. First, we glean nothing from Davis which tends to suggest
its holding is restricted to the type of witness or nature of the testimony published.
Further, while the content of R.E.'s testimony may draw a certain sentiment, the
prosecutor reading those responses was specifically admonished to read the answers with
only a flat affect and verbatim with no additions, inflection, or anything of like manner.
Abrams essentially argues that one of the risks associated with this manner of
presentation of the evidence actually came to pass. He focuses our attention on the
objection he entered at trial that was attached to the prosecutor's purported failure to
follow the transcript verbatim. According to Abrams, this illustrates that the route chosen
by the court did not offer the most neutral approach. Our ability to place any appreciable
weight on this argument though is compromised by the absence of the transcript from the
record. Thus, there is nothing before us that verifies Abrams' assertion. To the contrary,
what the record does contain is a discussion in the wake of Abrams' objection during
which the State argued that their recitation of the testimony did not contain any
substantive alterations and the district court agreed.
Next, Abrams argues that his right to effective representation was eroded when the
prosecutor read the transcript because the State's bias would inevitably be expressed by
the prosecutors' presentation of R.E.'s prior testimony. Once again, Abrams did not
provide a record to show how any alleged adjustments to R.E.'s prior testimony was
prejudicial in his case. Because he cannot show prejudice unique to the instant facts, he
appears to be arguing that, in general allowing a prosecutor to read prior testimony tilts
the balance impermissibly in favor of the State, thereby eroding the adversarial process
and undermining his right to effective assistance of counsel. The only authority he cites
to support this argument is Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). In
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Chamberlain, the Kansas Supreme Court discussed ineffective assistance of counsel
claims and explained, referencing Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), that "the benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result." 236 Kan. at 656. But Chamberlain was related to defense counsel's conduct rather
than the conduct of the State, which is the angle Abrams argues. Nor does Abrams cite to
any case which stands for the proposition that the act of a prosecutor reading prior
testimony casts doubt on whether a trial produced a just result. Rather, Davis appears to
stand for the opposite proposition.
Abrams reiterates the argument he made to the district court, that simply providing
the jury with a hard copy of the transcript would yield an ideal result. The same
proposition was advanced in Davis and the Supreme Court still found that allowing a
prosecutor to read the prior testimony was permissible. Davis, 284 Kan. at 736.
Abrams seeks to bolster his argument by analogizing to situations in which a
testifying detective sits at the prosecutor's table during trial. Abrams cites State v.
Sampson, 297 Kan. 288, 296-297, 301 P.3d 276 (2013), where the Kansas Supreme Court
explained that having a detective sit at the prosecution's table improperly bolstered the
credibility of the detective's testimony. But the situations lack the analogous quality
Abrams attempts to assign them. The prosecutor here was not personally testifying, and
the court took measures to ensure that fact was abundantly clear for the jury. That is, it
introduced who planned to read R.E.'s responses and explained that she was not involved
in the case and her role was simply to read the "testimony of a witness taken under oath
at another time and place and it is to be weighed by the same standards as other
testimony." With these statements, the court properly inoculated the jury from any
erosion of the adversarial process.
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Finally, Abrams argues that the State impermissibly commented on witness
testimony when the prosecutor, referencing R.E.'s testimony in closing argument,
remarked that "this evidence directly shows that the sexual molestation the State accuses
the defendant of regarding [M.B.] actually happened." In so asserting, Abrams seemingly
intimates, but does not thoroughly brief, that the State impermissibly commented on or
otherwise sought to bolster R.E.'s credibility. Yet merely highlighting the spectre of an
error falls short of what is needed to avoid waiver and secure appellate review. See State
v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021) (issues not adequately briefed are
deemed waived or abandoned). Thus, any issue about impermissible comments directed
at a witness' credibility is not before us.
Harmlessness
Abrams argues that since his right to effective assistance of counsel is implicated,
the harmless error analysis is inapplicable. While this is a correct recitation of the law, it
is one that is not implicated here.
Abrams goes on to offer the alternative argument that the error cannot be found
harmless because the State embellished R.E.'s testimony and improperly bolstered the
same by presenting it through two prosecutors. But again, he has failed to provide us with
any evidence that substantive distortions were committed. But even so, the district court
clearly instructed the jury that the actual testimony was R.E.'s alone and should be
viewed through the same lens as any other witness. The State reiterated this sentiment
during closing argument by noting that the jury should judge R.E.'s testimony "by the
same standards as any other." Finally, the State presented a great deal of evidence which
offered the jury a path toward guilty verdicts even without R.E.'s testimony. Thus, there
is no reasonable probability that the fact a prosecutor read R.E.'s testimony affected the
trial's outcome. Any error attached to this issue was harmless at best.
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The District Court Properly Exercised its Discretion when it Designated R.E. as an
Unavailable Witness.
In his final claim of error, Abrams contends the district court abused its discretion
when it found R.E. was unavailable under K.S.A. 60-459(g).
Standard of Review
This court reviews a district court's ruling on witness unavailability for an abuse of
discretion. State v. Flournoy, 272 Kan. 784, 799, 36 P.3d 273 (2001). "An abuse of
discretion occurs if: (1) no reasonable person would take the view adopted by the district
court; (2) the decision is based on an error of law; or (3) the decision is based on an error
of fact." State v. Ballou, 310 Kan. at 615.
Analysis
K.S.A. 60-459(g) defines "unavailable as a witness" as including
"situations where the witness is (1) exempted on the ground of privilege from testifying
concerning the matter to which his or her statement is relevant, or (2) disqualified from
testifying to the matter, or (3) unable to be present or to testify at the hearing because of
death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of
the court to compel appearance by its process, or (5) absent from the place of hearing
because the proponent of his or her statement does not know and with diligence has been
unable to ascertain his or her whereabouts."
On the day witness testimony was scheduled to begin, the State informed Abrams
and the court that R.E. was on the lam and they were actively attempting to determine her
whereabouts. After an unsuccessful search, the court held a hearing the following day,
outside the presence of the jury, to determine whether R.E. was unavailable under K.S.A.
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60-459 (g). The State presented multiple witnesses in support of its contention that R.E.
was unavailable.
Brenda Albright, an employee of the Shawnee County District Attorney's Office,
testified first. She explained that she made reservations for R.E. at a local hotel for
February 8th through February 13th. Calls to the hotel on Saturday the 8th and Sunday
the 9th, revealed that R.E. failed to check in. A follow up call on Monday yielded the
same result along with the added fact that R.E. took the affirmative step to cancel the
reservation.
Karen Rangel, another employee from the District Attorney's Office, also testified.
Rangel informed the court that she and the prosecuting attorney met with R.E. a week
before trial and, at that time, R.E. was cooperative, agreed to testify at trial, and
understood the State would provide hotel accommodations. Rangel explained she spoke
to R.E. again in the days following that meeting and asked her to arrive at the courthouse
by 8:30 a.m. on February 11th. According to Rangel, R.E. arrived around 9 a.m. that
morning and chatted with the Funks while she waited. At some point, R.E. complained to
Rangel of a toothache, but Rangel told her she could not leave until she was dismissed.
R.E. ignored the directive and disappeared at roughly 11:30.
Rangel immediately notified the prosecutor who promptly informed Abrams and
the court. Rangel then called, texted, and left messages with the phone number R.E. had
provided but R.E. never responded. She also contacted the hotel but that also proved
fruitless. Rangel inquired of the other witnesses, but they also had no information related
to R.E.'s whereabouts. Later that afternoon, Rangel helped prepare a material witness
warrant.
Dennis Gonzales, a senior investigator with the District Attorney's Office, testified
that he tried to locate R.E. at her hotel on the day of her disappearance but was
16
unsuccessful. He also called her and left messages, but she never returned his call.
Gonzalez also testified that he tried to locate any relative R.E. might have in town but
that likewise proved a dead-end. During cross-examination, Gonzalez conceded that he
did not contact the phone company and attempt to ping R.E.'s phone.
Detective Charles Wilson also testified and explained that he directed Sergeant
Hanika to attempt to serve the material witness warrant on R.E. at the address they had
for her mother. Before that order, Hanika was actively searching for R.E. at various
hotels, assisted in part by Detective Dunderdale until Dunderdale was pulled off to assist
with an unrelated matter.
Abrams did not present any witnesses. Following review of the evidence and
arguments of the parties, the court found that the State "exercised reasonable due
diligence and in good faith attempted to procure [R.E.] and her testimony" and declared
R.E. unavailable.
"The standard for determining whether a witness is unavailable is whether there
has been a good faith effort to obtain the witness' presence at trial. The question of good
faith effort turns on the totality of the facts and circumstances of the case." Flournoy, 272
Kan. at 800. A party must show it has exercised due diligence in searching for the witness
and present "actual evidence" that it undertook reasonable efforts to find the witness.
State v. Young, 277 Kan. 588, 598, 87 P.3d 308 (2004) (citing State v. Rodriguez-Garcia,
27 Kan. App. 2d 439, 442, 8 P.3d 3 [1999]). The evidence must be "full and convincing."
Young, 277 Kan. at 598 (citing State v. Mitchell, 18 Kan. App. 2d 530, 535, 855 P.2d 989[1993]).
Abrams contends the State failed to present "full and convincing" evidence that it
exercised due diligence to find R.E. In support of his assertion Abrams points to the fact
the State did not review the security camera footage from the courthouse to ascertain
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R.E.'s direction of travel or any vehicles that may have picked her up. While this is an
accurate factual statement, the weight it carries is not necessarily gripping because parties
need not exhaust every available resource. See Hardy v. Cross, 565 U.S. 65, 70, 132 S.
Ct. 490, 181 L. Ed. 2d 468 (2011) (while in hindsight, one can always identify additional
steps that could have been taken to find a witness, requiring each of these additional steps
would undermine the ultimate test of "reasonableness"); State v. Brown, No. 113,212,
2016 WL 6910080, at *2 (Kan. App. 2016) (unpublished opinion) ("The State need not
exhaust all possible means of finding witnesses. The measure of that effort is one of
reasonable diligence.").
Abrams further argues that it is unclear from the evidence whether officers tried to
serve the material witness warrant at R.E.'s mother's house because Detective Wilson,
when testifying at the hearing, could not specify the name or address of the individual
that the officers visited. Abrams is correct that Wilson could not recall the individual's
name, but Wilson was not asked on direct or cross-examination to provide the address
where the officers attempted to serve the warrant. Even so, Abrams provides no authority
that either the name or the exact address must be specified. In a somewhat related vein,
Abrams chides the State for neglecting to locate R.E.'s family members or speak with her
ex-boyfriend, B.B. But witness testimony from the hearing paints a different picture.
Rangel testified that she tried and failed to determine the identity of R.E.'s mother.
Additionally, the District Attorney's senior investigator attempted to track down R.E.'s
local relatives but was ultimately unsuccessful. As to the ex-boyfriend, the two merely
dated for a few weeks during the mid-2010s. There was no reason for the State to believe
that B.B. would have unique information about R.E.'s whereabouts. Again, the State was
not required to exhaust every conceivable avenue. See Cross, 565 U.S. at 70; Brown,
2016 WL 6910080, at *2.
Abrams also requests that we keep three particular cases in mind as we analyze his
claim. He starts with State v. Mitchell, 18 Kan. App. 2d 530. In that case this court
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reversed a finding that a witness was unavailable even though the witness received and
ignored a subpoena, the court issued a material witness warrant and then a bench warrant
after the witness absconded from work release. The Mitchell court observed "[t]he State
did not produce any evidence to indicate what efforts it had made to locate [the witness]
other than the fact she was subject to the process described above" and reversed the
unavailability finding because the State's process, and the fact that no police officer had
seen the witness, failed to reflect that the State exercised reasonable diligence in its
search. 18 Kan. App. 2d at 532. But by contrast, in Abrams' case the State issued both a
subpoena and a material witness warrant, dispatched investigators and detectives to scour
known places for R.E., and attempted to contact her via phone multiple times. Thus, in
this case the State exceeded those efforts deemed deficient in Mitchell.
Next, Abrams directs us to State v. Flournoy, 272 Kan. 784, where the Kansas
Supreme Court affirmed the trial court's ruling that a witness was unavailable after
hearing testimony from two investigators who recounted their extensive search efforts.
272 Kan. at 802. When the witness's family brought her in for the preliminary hearing,
the investigator wrote down information such as where she and her family lived and her
place of employment. Around a year later, two investigators sought to find the witness for
trial but discovered she had moved, and her mother had died. Further efforts also proved
ineffective, including multiple attempts to serve a subpoena, an attempt to reach the
witness through her brother, and tracking her down to a home where no one opened the
door.
Abrams seemingly cites to Flourney as the model to which the investigator's
efforts should be compared in this case. But the critical distinction between the two cases
is time. In Flourney, the witness eluded the State since the preliminary hearing in 1998.
Multiple efforts were undertaken to find her before the 1999 trial nearly a year later.
Here, R.E. met with the prosecutor on February 4th and conveyed that she intended to
testify at trial the next week. She arrived on the morning of trial but left without warning
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around two hours later. The hearing to address her unavailability took place the following
morning, which provided the State less than 24 hours to search. When taking this time-
constraint into account, the State acted in a reasonably diligent manner in its search for
R.E.
Finally, Abrams highlights State v. Walker, 28 Kan. App. 2d 700, 20 P.3d 1269(2001), and its explanation in the syllabus which, at first blush, seem to suggest that an
unavailability finding may only occur after an exhaustive search for the witness that
includes the witnesses' residence and place of employment. 28 Kan. App. 2d 700,
Syl. ¶ 4, 705-06. Digging a tad deeper into that opinion, however, the Walker court also
suggested that this was necessary only when the information was available. Here, Rangel
testified that the State did not have information about R.E.'s New Mexico residence or
anywhere she may be staying in Topeka other than the hotel room they reserved for her.
Nothing in the record establishes that the State had any knowledge related to a possible
employer for R.E. Even so, R.E.'s employer would likely have been in New Mexico and
therefore would have been of little assistance during the less than 24-hour period that the
State searched for R.E. in Topeka. Accordingly, the cases Abrams cites do not support his
position that the district court erred when it found R.E. unavailable.
Abrams' case bears greater similarity to State v. Young, 277 Kan. 588, 87 P.3d 308(2004), a case cited by the State. In that case, the Kansas Supreme Court affirmed a
district court's ruling that a witness was unavailable after the witness showed up to the
waiting room prior to taking the stand at trial, but then left for the restroom and failed to
return. An investigator attempted to find him by driving to the witness' girlfriend's house
and calling the girlfriend's residence. The efforts did not succeed, but the next day the
investigator found the witness at his father's house. As the witness and the investigator
were walking to the investigator's car, the witness fled on foot and eluded the
investigator. The district court found, and the Kansas Supreme Court agreed, that the
witness was unavailable. 277 Kan. at 592-93, 598.
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Similarly, R.E. arrived at the waiting room and then left a fairly short time later.
The State, in both cases, had only one day to find the witnesses and present them to the
jury. As in Young, the district court in Abrams' case likewise did not abuse its discretion
in declaring R.E. unavailable. Viewed collectively, the evidence reflects that the State
exercised due diligence and undertook reasonable efforts to find R.E. during the
compressed timeframe it had available. Thus, the court properly and reasonably
concluded that the State undertook a good faith effort to locate R.E.
Affirmed.
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