NOT DESIGNATED FOR PUBLICATION No. 116,524 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DASHAUN RAY HOWLING, Appellant. MEMORANDUM OPINION 2017. Affirmed. Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed October 13, Rick Kittel, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee. Before POWELL, P.J., MALONE, J., and LORI A. BOLTON FLEMING, District Judge, assigned. PER CURIAM: Dashawn Ray Howling appeals his conviction for aggravated criminal sodomy of M.H., his four-year-old daughter. Howling argues: (1) The district court erred in denying his motion in limine seeking to exclude M.H.'s forensic interview and (2) insufficient evidence supports his aggravated criminal sodomy conviction. Finding no error, we affirm. 1
FACTUAL AND PROCEDURAL BACKGROUND M.H.'s parents did not live together. Howling lived in Pratt, Kansas, with his girlfriend Tiffany Greer and her family. Other than biweekly weekend visitations with her father, M.H. lived with her mother, L.R., at her grandparents' home in Hoisington, Kansas. When M.H. was four years old, she stayed with Howling in Pratt for the weekend of June 20, 2015. M.H. slept in Greer's bed with Howling, while Greer slept in the living room. The following Monday, M.H. asked her grandmother, C.R., for medicine because her bottom was itching, tickling, and hurting. L.R. and C.R. testified that they each checked M.H.'s underwear and noticed a good amount of blood on it. C.R. stated that she asked M.H. if she had been scratching herself there, and M.H. said no. C.R. testified that she used a tissue to dab the area and determined that the blood was coming from M.H.'s vaginal area. C.R. asked M.H. what happened, and M.H. told her that Howling had put medicine inside of her. C.R. and L.R. then took M.H. to the hospital. At the hospital, M.H. was interviewed and examined by Sexual Assault Nurse Examiner (SANE) Debra Higgins. M.H. told Higgins that Howling had scratched her when he put two fingers in her "pee" and one finger in her "butt" when she was sleeping in his bed. M.H. told Higgins that her father had to put medicine inside her because she was bleeding. Upon a physical examination of M.H., Higgins noted abrasions on M.H.'s clitoral hood, labia majora and minora, and that her rectum appeared bruised. Detective Sharon Wondra with the Barton County Sheriff's Department also interviewed M.H. at the hospital. M.H. told Wondra that she was at the hospital because her butt was bleeding. Wondra testified that when she asked M.H. to explain, M.H. told her that Howling stuck his finger in her while she was sleeping at his house; she indicated the location by pointing to her bottom and vagina. 2
Following the hospital visit, Kasey Corbett of the Dell Hayden Memorial Child Advocacy Center in Great Bend, Kansas, conducted a forensic interview of M.H. that was video recorded. A forensic interview is conducted by a specially trained interviewer who uses techniques to help young children talk about alleged abuse. During the forensic interview, M.H. told Corbett that Howling had stuck his finger in her butt and made it bleed; M.H. indicated the location by pointing to a drawing of a girl's bottom and pointing to her own vaginal area. Additionally, Corbett testified that M.H. told her during the interview that Howling put his fingers in her butt and in her "front part," her vagina, and made it bleed. Howling was charged with one count of rape and one count of aggravated criminal sodomy, both off-grid felonies. Before trial, Howling filed a motion in limine to exclude the video of Corbett's forensic interview with M.H. as unreliable. After a hearing on the motion, the district court denied the motion in limine, finding the evidence reliable and within the jury's ability to judge the weight of the evidence. At trial, M.H. provided inconsistent testimony. M.H. testified that Howling had caused her to bleed by sticking his finger inside of her "pee pee" when she was sleeping at his house. M.H. also stated that she did not tell anybody that her father had put his finger inside her. After a three-day trial, the jury acquitted Howling of rape but convicted him of aggravated criminal sodomy. Howling received a life sentence without the possibility of parole for 554 months. Howling timely appeals. 3
DID THE DISTRICT COURT ERR IN DENYING HOWLING'S MOTION IN LIMINE? Howling argues the district court erred in denying his motion in limine to exclude the video of M.H.'s forensic interview. Specifically, he argues the district court should have excluded the forensic interview because it contains unreliable expert opinion testimony. The district court considered Howling's challenge under K.S.A. 2016 Supp. 60-456(b) and determined that the expert opinion testimony rule did not exclude the forensic interview. Because the issue requires interpretation of a statute, our review is de novo. State v. Stafford, 296 Kan. 25, 47, 290 P.3d 562 (2012). Before trial, Howling filed a motion in limine to exclude the video of Corbett's forensic interview of M.H. In the motion, Howling argued Corbett's forensic interview was unreliable based on Corbett's qualifications and because Corbett did not adequately apply the special interviewing technique called "Child First." Following a hearing where the district court heard testimony from the parties' expert witnesses, the district court denied Howling's motion in limine. The district court found the forensic interview admissible as reliable evidence that went "to the weight that the jury should give that interview and the information received as a result of that interview." At trial, Howling made a continuing objection to the district court's admission of the forensic interview, thereby preserving the issue for appeal. See State v. Sprague, 303 Kan. 418, 432-33, 362 P.3d 828 (2015). K.S.A. 2016 Supp. 60-456(b) governs the district court's admission of expert opinion testimony: "(b) If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in 4
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." In order for the K.S.A. 2016 Supp. 60-456(b) admissibility requirements to apply, as the State asserts in its letter on additional authority, the evidence must consist of expert opinion testimony. See State v. Ballou, No. 116,252, 2017 WL 3575610, at *10 (Kan. App. 2017) (unpublished opinion), petition for rev. filed September 12, 2017. In Ballou, a panel of our court was tasked with determining if a forensic interview qualifies as expert opinion testimony under K.S.A. 2016 Supp. 60-456(b). The Ballou court found that a forensic interview does not consist of expert opinion testimony because (1) it does not meet the definition of "testimony" defined by Black's Law Dictionary 1704 (10th ed. 2014) as "[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition" and (2) it does not require the interviewer to render an opinion. The Ballou court concluded that a forensic interview itself is a factgathering process not covered by the admissibility requirements in K.S.A. 2016 Supp. 60-456(b). 2017 WL 3575610, at *10. Howling does not contend that the forensic interview consists of expert opinion testimony which would require the application of K.S.A. 2016 Supp. 60-456(b). Rather, Howling argues that the forensic interview is expert opinion testimony under K.S.A. 2016 Supp. 60-456(b) because a forensic interview consists of scientific testimony requiring special training to recover reliable information from young children. But Howling does not offer any support in caselaw or otherwise, nor could we find any, which establishes that a video showing an interviewer performing a forensic interview constitutes expert opinion testimony governed by K.S.A. 2016 Supp. 60-456. 5
We find the rationale in Ballou persuasive even though another panel's decision is not binding. See State v. Fahnert, 54 Kan. App. 2d 45, 56, 396 P.3d 723 (2017). As applied to this case, the video of Corbett's forensic interview of M.H. does not qualify as expert testimony. Corbett is not testifying under oath at trial or in a similar setting. Additionally, Corbett does not render an opinion during the forensic interview. The forensic interview shows Corbett questioning M.H. using the special interviewing technique called "Child First." Based on the record, Corbett was merely engaged in a fact-finding process. Therefore, the forensic interview does not consist of expert opinion testimony subject to the K.S.A. 2016 Supp. 60-456(b) admissibility requirements. In reaching its decision to deny the motion in limine, the district court did not analyze whether the forensic interview consisted of expert opinion testimony under K.S.A. 2016 Supp. 60-456(b). Instead, the district court found the forensic interview admissible because it went to the jury's ability to determine witness credibility and the weight of the evidence. While the district court's ruling was not necessarily complete as it turned on whether the forensic interview was reliable expert opinion testimony based on K.S.A. 2016 Supp. 60-456(b) the district court reached the correct result in admitting the forensic interview into evidence. See State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016) (affirming judgment as right for wrong reasons). Because K.S.A. 2016 Supp. 60-456 does not control, our next step is to examine whether the disputed evidence is relevant because "all relevant evidence is admissible" unless prohibited by statute, constitutional provision, or court decision. K.S.A. 60-407(f); State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). Relevant evidence is defined as "evidence that is probative and material." State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). Material evidence "'has a legitimate and effective bearing on the decision of the case and is in dispute.... Probative evidence... furnishes, establishes, or contributes toward proof. [Citations omitted.]'" State v. Rosa, 304 Kan. 429, 436, 371 P.3d 915 (2016). 6
Our appellate courts have typically approved of the admission of forensic interview evidence as relevant for use by the trier of fact. See State v. Cochran, No. 112,505, 2016 WL 1079457, at *3-4 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. (April 17, 2017); State v. Dearman, No. 110,798, 2014 WL 3397185, at *8 (Kan. App. 2014) (unpublished opinion) (finding 4-year-old's statements during forensic interview relevant to criminal prosecution of rape). The forensic interview, especially in a case involving a young victim, may also aid the State in prosecuting the case and help the jury in determining the credibility or the weight to afford the victim's statements. See Dearman, 2014 WL 3397185, at *6. Moreover, our Supreme Court has found the admission of prior statements by 8- year-old sexual abuse victims proper as relevant evidence. In State v. Reed, 300 Kan. 494, 506, 332 P.3d 172 (2014), our Supreme Court held that the victims' handwritten statements constituted relevant evidence in a prosecution of aggravated indecent liberties in addition to the victims' testimony at trial because "prior statements by a witness are generally material and probative, i.e., relevant, because the consistency or lack thereof between the statement and the testimony either corroborates or undercuts the witness' credibility." As applied to this appeal, the video of M.H.'s forensic interview is relevant evidence. In fact, Howling does not dispute the evidence's relevance. The forensic interview is also probative because it contributes towards the proof of Howling's alleged sexual abuse against M.H. Based on the trial record, only M.H. could provide proof that Howling sexually abused her. For the same reasons, the forensic interview is material. M.H.'s descriptions of the alleged abuse in the forensic interview has a "'legitimate and effective bearing'" on the case. See Rosa, 304 Kan. at 436. Moreover, the admission of the forensic interview contributed to the jury's ability to make credibility determinations on M.H.'s testimony and M.H.'s prior statements about the abuse made to other witnesses who also testified at trial. 7
Based on a review of Kansas caselaw, a party typically challenges forensic interview evidence by having a qualified expert testify regarding the particular techniques used by the interviewer and the techniques' reliability. Ballou, 2017 WL 3575610, at *10; see also State v. Gaona, 293 Kan. 930, 941-47, 270 P.3d 1165 (2012) (summarizing historical use of expert opinion testimony in sex crime cases). The ultimate issue of determining witness credibility, the weight afforded the forensic interview, or any reasonable inferences of fact to be drawn from the forensic interview is left to the jury. Ballou, 2017 WL 3575610, at *10 (quoting State v. Duncan, 221 Kan. 714, 719, 562 P.2d 84 [1977]); see also Gaona, 293 Kan. at 943 (describing how Kansas courts' first limitation on admitting expert opinion testimony in sex crimes cases was "forbidding invasion of the jury's province and its responsibility to judge credibility"). That is ultimately what happened here; therefore, the district court did not err in denying Howling's motion in limine. IS HOWLING'S CONVICTION BASED ON INSUFFICIENT EVIDENCE? Howling argues the State presented insufficient evidence to convict him of aggravated criminal sodomy. Howling claims the evidence is insufficient because (1) it took a day for someone to notice M.H.'s injuries and (2) M.H. made inconsistent statements regarding her injuries and did not testify at trial that Howling had touched her bottom. "'When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.'" Rosa, 304 Kan. at 432-33 (quoting State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211 [2015]). "'In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.'" 8
State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016) (quoting State v. Kendall, 300 Kan. 515, 523, 331 P.3d 763 [2014]). Howling bases his first assertion of error, that multiple people failed to immediately notice M.H.'s injuries, on the following evidence: M.H.'s grandfather testified that he wiped M.H.'s bottom the Sunday after she had stayed with Howling and did not see any injury; M.H.'s grandmother also testified that she did not notice an injury after she gave M.H. a bath Sunday evening; and M.H.'s mother stated that she had taken M.H. swimming Monday afternoon and did not notice any injury. The record also provides that the jury heard testimony from the SANE nurse that M.H.'s swimming activity on Monday may have caused M.H.'s wound to reopen and bleed that evening. But Howling's argument asks us to resolve conflicting evidence and reassess witness credibility, something we cannot do on appeal. See Dunn, 304 Kan. at 822. Similarly, Howling's second argument on M.H.'s inconsistent testimony at trial also asks us to improperly reweigh witness credibility and resolve conflicting evidentiary issues. See Dunn, 304 Kan. at 822. M.H. testified at trial that Howling had caused her to bleed by sticking his finger in her "pee pee" when she was sleeping at his house. M.H. also testified that she never told anyone that Howling had put his finger inside her. Based on the record, the jury as the final arbiter made a credibility determination regarding which of M.H.'s statements to believe. See Dunn, 304 Kan. at 822-23; Ballou, 2017 WL 3575610, at *10. Additionally, the record contains multiple statements from other witnesses family members and investigators that offer sufficient evidence to support Howling's conviction for aggravated criminal sodomy. Therefore, we find that Howling's conviction for aggravated criminal sodomy is supported by sufficient evidence. Affirmed. 9