                           NOT DESIGNATED FOR PUBLICATION

                                               No. 121,049

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                            EDWARD NEER,
                                              Appellant,

                                                       v.

                                          STATE OF KANSAS,
                                              Appellee.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; TYLER J. ROUSH, judge. Opinion filed June 12, 2020.
Affirmed.


        Kristen B. Patty, of Wichita, for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., GARDNER, J., and WALKER, S.J.


        PER CURIAM: Edward Neer appeals the district court's denial of his motion for a
new trial based on a victim's recantation of the testimony she gave at his 1986 trial. Neer
argues the district court abused its discretion when it found the victim's recantation was
not material to Neer's convictions for the crimes he committed against her because her
testimony lacked credibility. Because we find substantial competent evidence supporting
the district court's decision, there is no abuse of discretion and the district court's decision
is affirmed.




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                                           FACTS

       In 1986, Neer was convicted of several sex crimes involving two children in a
consolidated jury trial. One of the two victims, E.T., was the five-year-old daughter of a
woman Neer lived with for a three-month period. Neer was convicted of committing
aggravated criminal sodomy and indecent liberties with a child, E.T. Neer's appeal only
concerns his convictions in which E.T. was the victim.


       Neer is currently serving a life sentence. His convictions and sentence were
affirmed by the Kansas Supreme Court in State v. Neer, No. 60,418, unpublished opinion
filed October 30, 1987 (Kan).


       On August 8, 2012, Neer filed a pro se motion for habeas corpus relief under
K.S.A. 60-1507. In his motion, he argued that an error in one of his jury instructions
entitled him to a new trial and his trial counsel and direct appeal counsel were both
ineffective for failing to challenge the erroneous jury instruction. On August 20, 2012,
Neer filed a pro se motion to amend and alleged to have newly discovered evidence of his
innocence in the case involving E.T. Neer attached an affidavit dated January 15, 2011, to
the motion, which was sworn and signed by E.T. In the affidavit, E.T. claimed to be the
victim from Neer's 1986 trial and swore that her uncle, Charles Anderson, committed the
crimes against her for which Neer had been convicted.


       The district court held a preliminary hearing on Neer's claims and found his
K.S.A. 60-1507 motion was untimely, and the affidavit attached to his motion was
recanted evidence, not newly discovered evidence. Neer then filed a pro se motion for
reconsideration and argued that the district court's refusal to hold an evidentiary hearing
on E.T.'s recantation would result in a manifest injustice. The district court denied Neer's
motion, and Neer then appealed to another panel of this court.




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       In Neer v. State, No. 111,230, 2015 WL 1310815, at *3 (Kan. App. 2015)
(unpublished opinion), the panel found the issues Neer raised in his original K.S.A. 60-
1507 motion were abandoned because he failed to brief them and only addressed whether
the district court was required to hold an evidentiary hearing on E.T.'s recantation. The
panel found even though Neer's newly discovered evidence claim was brought outside
the one-year time limit for filing a K.S.A. 60-1507 motion, the district court abused its
discretion when it declined to hold an evidentiary hearing on E.T.'s sworn statements.
2015 WL 1310815, at *7.


       The panel found the evidence in the affidavit was unavailable before Neer's 1986
trial because E.T. did not make the affidavit until 2011, and if the facts alleged in the
affidavit were true, they would contradict E.T.'s trial testimony and support Neer's claims
of innocence. 2015 WL 1310815, at *6. The panel remanded with directions for the
district court to hold an evidentiary hearing on the credibility of E.T.'s recantation and its
materiality to Neer's convictions for the crimes he committed against E.T. 2015 WL
1310815, at *7.


       The district court held the evidentiary hearing on E.T.'s recantation in October
2016. E.T. testified in support of the facts she alleged in the affidavit. She said she had
been sexually abused by at least three men from the time she was born until she was 13
years old. One of her abusers was her uncle, Charles Anderson, who was convicted in
1995 of committing 17 various child sex-related crimes against her. See State v.
Anderson, No. 109,291, 2013 WL 6726164 (Kan. App. 2013) (unpublished opinion). E.T.
testified sometime in 2010 or 2011 she was at Anderson's parole board hearing and heard
"Eddie Neer" referenced as one of the men who had abused her. E.T. had "[n]ever heard
Eddie Neer's name," so after the hearing, she started looking at old photos and asking her
family members questions about him. She discovered that her mother had been in an on-
and-off again relationship with Neer for about three months when she was five years old.



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       E.T. testified that "[a] lot of" men had sexually abused her as a child, but Neer was
not one of them. She said she had participated in over 10 years of different types of
therapy where "they [would try] to pull out all these abusers," including inpatient
treatment, group therapy, hypnosis, and "hold-me therapy," where she was held down and
"force[d] . . . to remember things." E.T. claimed she had "never once" mentioned Neer's
name during these therapy sessions. E.T. testified that she had lived with Anderson when
her mother was seeing Neer and asserted that Anderson committed the crimes against her
for which Neer had been convicted. E.T. claimed her mother had pressured her into
accusing Neer as a "vindictive move" because her mother and Neer "were in a love
triangle." E.T. later conceded she was told about the love triangle but had no independent
memory of it. E.T. said her therapist advised her to write the affidavit because it would
"get some of the guilt out of [her]."


       Kim Parker, the prosecuting attorney for Anderson's trial, also testified. She said
Anderson's case was based on pornographic photographs of E.T. that had been in
Anderson's possession and that were later turned over to police. Based on these photos,
the State established at trial that Anderson began abusing E.T. when she was six or seven
years old.


       About a month after the evidentiary hearing, the district court denied Neer's
motion in a written order. As part of its review, the district court took judicial notice of
both Neer and Anderson's trial transcripts and compared E.T.'s testimony at the
evidentiary hearing with the evidence presented at Neer and Anderson's trials. The
district court determined that E.T. was the victim in these trials.


       The district court found that much of E.T.'s testimony at the evidentiary hearing
controverted the evidence presented at Neer's and Anderson's trials. Despite E.T.'s
evidentiary hearing testimony that she had lived with Anderson during the extent of her
mother's relationship with Neer, the district court noted that at Neer's trial, E.T., her


                                               4
mother, and Neer all testified they had lived together for a short period. The district court
found that Neer's trial record showed E.T. had first reported Neer's abuse to her
babysitter, which "decrease[d] the possibility [E.T.'s mother] orchestrat[ed] the entire
event." At Neer's trial, E.T. identified Neer in court and described his sexual abuse
against her in detail. The district court found E.T.'s trial testimony was "consistent with
other witnesses," but at the evidentiary hearing, E.T. could not "independently remember
anything about Neer." And the district court found "[a]ll of the incidents that [E.T.]
described in the Anderson trial occurred after the Neer trial had been completed."


       Overall, the district court found that although E.T.'s demeanor at the evidentiary
hearing suggested she "did not intentionally lie," it was clear "she ha[d] (understandably)
suffered memory loss from the years of sexual trauma."


       Based on these findings, the district court held E.T.'s recantation lacked credibility
and there was "no reason to doubt [E.T.'s] original trial testimony where she recount[ed]
many details consistently with other witnesses."


       Neer appeals from the denial of his K.S.A. 60-1507 motion.


                                          ANALYSIS

       When the district court holds a full evidentiary hearing on a K.S.A. 60-1507
motion it must issue factual findings and legal conclusions on all issues presented.
Supreme Court Rule 183(j) (2020 Kan. S. Ct. R. 223). Here, the district court did so after
holding an evidentiary hearing on remand. Generally, when the district court has held an
evidentiary hearing on a K.S.A. 60-1507 motion, we review the district court's factual
findings to determine whether they are supported by substantial competent evidence and
are sufficient to support the district court's legal conclusions, and this court reviews the




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district court's ultimate legal conclusion de novo. Fuller v. State, 303 Kan. 478, 485, 363
P.3d 373 (2015).


       But when the prior panel remanded this case to the district court for an evidentiary
hearing, it framed the issue as a motion for a new trial based on newly discovered
evidence. We review an order denying a request for a new trial based on newly
discovered evidence for abuse of discretion. See Moncla v. State, 285 Kan. 826, 839-40,
176 P.3d 954 (2008) (applying abuse of discretion standard of review when claim of
newly discovered evidence is raised in context of K.S.A. 60-1507 proceeding). Neer's
case was remanded to the district court on the sole issue of whether Neer should be
granted a new trial based on E.T.'s recantation. Neer, 2015 WL 1310815, at *7.
Accordingly, we apply an abuse of discretion standard of review.


       "'A district court abuses its discretion when: (1) no reasonable person would take
the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial
competent evidence does not support a finding of fact on which the exercise of discretion
is based.'" State v. Lowery, 308 Kan. 1183, 1226, 427 P.3d 865 (2018). Substantial
competent evidence is legal and relevant evidence that a reasonable person could accept
as being adequate to support a conclusion. State v. Doelz, 309 Kan. 133, 138, 432 P.3d
669 (2019). Because Neer is the party claiming an abuse of discretion, he has the burden
of proving the abuse. See State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).


       To establish the right to a new trial based on newly discovered evidence, a
criminal defendant must show: (1) The newly proffered evidence could not have been
produced at trial with reasonable diligence and (2) the newly proffered evidence is of
such materiality that it would likely produce a different result upon retrial. The district
court must assess the credibility of the newly proffered evidence when deciding whether
the new evidence is material. Appellate courts do not reassess the district court's
credibility determination. State v. Lyman, 311 Kan. 1, 17, 455 P.3d 393, 407 (2020).


                                              6
       Here, the first prong of the test for newly discovered evidence is not at issue. The
Neer panel already found the evidence in E.T.'s affidavit could not have been produced at
trial because she did not make the affidavit until January 2011. The only issue before the
district court was whether E.T.'s recantation was credible and material to Neer's
convictions for the crimes he committed against her. Neer, 2015 WL 1310815, at *6-7.


       Our Kansas Supreme Court has emphasized that recanting testimony tends to be
"'exceedingly unreliable.'" State v. Theus, 207 Kan. 571, 580, 485 P.2d 1327 (1971). A
district court must grant a new trial on the recantation of a prosecution witness only when
it is satisfied the testimony is material and true. See State v. McKinney, 272 Kan. 331,
338, 33 P.3d 234 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569,
158 P.3d 317 (2007). Although recanting testimony from a complaining witness or victim
is more likely to be material to a defendant's conviction, its truth is still dispositive to
whether a new trial should be granted. See Neer, 2015 WL 1310815, at *4.


       In this case, the district court made specific factual findings that E.T.'s recantation
of the criminal acts Neer committed against her lacked credibility because: (1) E.T.
could not independently recollect her relationship with Neer when his abuse against her
allegedly took place, (2) E.T.'s evidentiary hearing testimony contradicted the testimony
she and others gave at Neer's trial, and (3) Anderson did not start abusing E.T. until after
Neer's abuse against her allegedly occurred. In other words, the district court was not
satisfied that E.T.'s recantation was true.


       On appeal, Neer does not argue the district court's factual findings are unsupported
by substantial competent evidence. Instead, he merely asks this court to reassess the
district court's credibility findings, arguing "[a] reasonable person certainly could
disagree with the district court's decision that [E.T.'s] recantation was not credible." But
we will not disturb the district court's credibility findings made after an evidentiary
hearing. State v. Laurel, 299 Kan. 668, 676-77, 325 P.3d 1154 (2014). Here, the ultimate


                                               7
legal question before the district court—whether E.T.'s recantation was material to Neer's
convictions—was inseparably linked to whether it found her recantation credible.
Although Neer also appears to argue the district court should have found E.T.'s
recantation was material, without the credibility of E.T.'s recantation, Neer's request for a
new trial inevitably fails. As our Kansas Supreme Court has made clear, "[z]ero
credibility means zero materiality and zero chance that the outcome of a retrial would be
different." 299 Kan. at 677.


       The district court did not abuse its discretion when it found Neer was not entitled
to a new trial based on newly discovered evidence.


       Affirmed.




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