                                         No. 114,894

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                           JOSE ALBERTO GONZALEZ-SANDOVAL,
                                       Appellant.


                               SYLLABUS BY THE COURT

1.
       The use of a peremptory strike to remove venire members solely because of their
race or ethnicity violates the Equal Protection Clause of the United States Constitution.


2.
       The Batson analysis is composed of three steps: (1) the defendant must make a
prima facie showing that a peremptory challenge has been exercised based on race or
ethnicity; (2) if the defendant makes this showing, the State must offer a race-neutral
reason for striking the minority venire member in question; and (3) in light of the
defendant's and the State's submissions, the trial court must determine whether the
defendant has shown that the State's stated reason is pretextual.


3.
       When illegitimate grounds like race or ethnicity are in issue, the State must stand
or fall on the initial reason or reasons it provided to the trial court for striking a minority
venire member.




                                               1
4.
       A trial court is required to limit its inquiry to the reason originally offered by the
State during voir dire for its peremptory strike of a minority venire member. Thus, if the
State later attempts to offer a substitute reason or another reason for striking the minority
venire member, the trial court is barred from considering the substitute reason or another
reason for striking the minority venire member.


5.
       Under K.S.A. 2015 Supp. 60-455(d), evidence of alleged prior sexual misconduct
is admissible to show the defendant's propensity to commit the crime charged. The
probative value of alleged prior sexual misconduct evidence is admissible so long as it
outweighs the prejudicial value of the alleged prior sexual misconduct evidence.
Probativity is often determined by comparing the circumstances surrounding the alleged
prior sexual misconduct to the crime charged.


6.
       Alleged prior sexual misconduct evidence is inadmissible to establish absence of
mistake unless the defendant has actually argued that he or she committed the crime
charged by mistake.


7.
       When reviewing sufficiency of the evidence, appellate courts will uphold a
defendant's conviction if a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. Appellate courts must view all the evidence in the light most
favorable to the State, and appellate courts must not reweigh the evidence or the
credibility of witnesses.


       Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed February 10, 2017.
Reversed and remanded with directions.

                                                2
        Christopher S. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant.


        Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before MALONE, C.J., GREEN and LEBEN, JJ.


        GREEN, J.: Following a jury trial, Jose Alberto Gonzalez-Sandoval was convicted
of aggravated indecent liberties with a child. On direct appeal, Gonzalez-Sandoval argues
that he is entitled to reversal of his conviction and a new trial for the following reasons:
(1) the trial court erred when ruling on his Batson challenge; (2) the trial court erred when
denying his motion for new trial based on newly discovered evidence; (3) the trial court
erred when it allowed the victim to testify about his alleged prior sexual misconduct with
her; and (4) the State's evidence was insufficient to support his conviction. Of these four
issues, we find the first issue to be meritorious. We therefore reverse Gonzalez-
Sandoval's conviction, vacate his sentence, and remand the case for a new trial.


        D.H., a 10-year-old female, and J.G., a 9-year-old male, were friends. Sometimes
J.G. would invite D.H. to go swimming at the local public pool. Gonzalez-Sandoval, who
was J.G.'s 41-year-old father, would then drive D.H. and J.G. to the pool.


        Once at the pool, D.H., J.G., and Gonzalez-Sandoval would play a game called
"sharks." This game consisted of one person pretending to be a shark. The shark's goal
was to catch the other people by grabbing them for several seconds. When Gonzalez-
Sandoval was the shark, he would typically grab D.H. and J.G around the chest, hold
them for several seconds, and then release them. The person who was caught by the shark
became the new shark, and the game started over again.




                                                  3
      On Sunday, May 4, 2014, D.H. played shark with J.G. and Gonzalez-Sandoval.
Jordan Sosa was the lifeguard on duty that day. D.H., J.G., and Gonzalez-Sandoval were
the only people in the pool. After they finished swimming, Gonzalez-Sandoval took D.H.
home as usual.


      On May 7, 2014, while at school, D.H.'s friend, a female student, told D.H about
problems that she had been experiencing at home. The friend told D.H. that she could not
"hang out" with her father anymore because he was doing inappropriate things of a sexual
nature with her. D.H. came home from school and told C.H., her father, about what her
friend had been experiencing. C.H. then asked D.H. if anything like what had happened
to her friend had ever happened to her. D.H. responded, "Well, kinda [sic]." C.H. asked
D.H. what she meant. D.H. told her father that Gonzalez-Sandoval had placed his hand
down her swim-shorts and touched her "private parts" while playing sharks that past
Sunday.


      C.H. contacted D.H.'s mother, M.H. He told her that she needed to speak with
D.H. C.H. and M.H. had been divorced about a year and a half at that time. C.H. also
contacted Carla Fessler, who was D.H.'s school counselor. Fessler then contacted the
Department for Children and Families (DCF) and the police. D.H.'s case was assigned to
Detective David Holmes. Detective Holmes setup an interview for D.H. at the Child
Advocacy Center (CAC). Kayla Delgado, a DCF special investigator, interviewed D.H. at
the CAC. Again, D.H. alleged that Gonzalez-Sandoval put his hand down her swim-
shorts while playing sharks.


      After D.H.'s interview with Delgado, Detective Holmes interviewed Gonzalez-
Sandoval at the police station. Gonzalez-Sandoval voluntarily came to the police station.
During the interview, Gonzalez-Sandoval adamantly denied that he did anything
inappropriate with D.H. while playing sharks.


                                            4
       The State charged Gonzalez-Sandoval with one count of aggravated indecent
liberties with a child, an off-grid person felony in violation of K.S.A. 2015 Supp. 21-
5506(b)(3)(A).


Preliminary Hearing


       At Gonzalez-Sandoval's preliminary hearing, C.H., D.H., and Detective Holmes
testified on behalf of the State. During D.H.'s testimony, D.H. testified that when she
swims, including the last time she went swimming with J.G. and Gonzalez-Sandoval, she
wears underwear, swim-shorts, and a long t-shirt. D.H. testified that her long t-shirt goes
over her shorts. D.H. further testified that when Gonzalez-Sandoval put his hand down
her swim-shorts, he also put his hand under her underwear and "inside the line" of her
"private parts."


       Gonzalez-Sandoval did not present any evidence at his preliminary hearing. The
trial court bound Gonzalez-Sandoval over on the one count of aggravated indecent
liberties with D.H.


Pretrial Motions


       Following the preliminary hearing, the State moved to admit evidence of
Gonzalez-Sandoval's prior sexual misconduct under K.S.A. 2015 Supp. 60-455(d).
During D.H.'s interview with Delgado, D.H. had stated that Gonzalez-Sandoval put his
hand down her swim-shorts on two or three other occasions while playing shark at the
pool. The State wanted D.H. to be able to testify about the alleged earlier incidences of
inappropriate touching. The State argued that this evidence should be admitted to
establish Gonzalez-Sandoval's propensity to commit sex crimes against D.H. The State
further argued that because Gonzalez-Sandoval mentioned during his police interview


                                             5
that if he ever touched D.H.'s genitals, it was an accident, the evidence should also be
admitted to establish absence of mistake.


       The trial court held a hearing on the State's motion. At the hearing, the State
reiterated the arguments within its written motion. Gonzalez-Sandoval countered that the
trial court should not allow this statement into evidence because it was very prejudicial,
not probative, and highly disputed. Gonzalez-Sandoval emphasized that D.H.'s statements
about the alleged prior inappropriate contacts were very vague.


       The trial court decided to allow D.H. to testify about the alleged prior sexual
misconduct. The trial court concluded that although the statement was prejudicial and
highly disputed, the evidence was relevant as to Gonzalez-Sandoval's propensity to
commit the crime and absence of mistake.


Jury Selection


       Gonzalez-Sandoval's jury trial was held on May 18 and 19, 2015. Laura Miser and
Amy Aranda represented the State. Vernon Buck represented Gonzalez-Sandoval.


       When jury selection began, there were three potential Hispanic jurors: T.R.,
K.M.S., and V., a venire member known only by her last name, which began with the
letter V. V. was immediately dismissed for cause because she asserted that she had been a
victim of a sex crime and could not be fair and impartial. Miser, who conducted voir dire,
had limited interaction with venire members T.R. and K.M.S. When Miser asked T.R.
whether people can remember events that are significant more clearly than normal with
the passage of time, T.R. responded, "Yes." Moreover, when Miser asked the venire
members whether anyone swam in swim-shorts and a t-shirt as opposed to a typical
swimsuit, T.R. responded that she swims in a t-shirt and K.M.S. responded that she
swims in swim-shorts and a t-shirt. At another point, T.R. tried to answer a question

                                             6
about working with children in an official capacity, but the trial court told her she could
not answer that question given that Miser had directed the question to other venire
members. The preceding is the extent of Miser's interaction with T.R. and K.M.S. Neither
T.R. nor K.M.S. responded to Buck's questions.


       Later, Miser asked if any of the venire members had "been a witness, such as . . .
questioned during an investigation or you had to appear in court as a witness on a sex
crime case?" Nobody responded to this question. Then, Miser asked, "Has anybody been
a witness, just in any kind of case where you had to answer questions to a law
enforcement officer?" T.R. did not respond to this question.


       During jury selection, Miser used a peremptory challenge against venire member
T.R. Citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
Buck requested that Miser provide explanation why she was using a challenge against
T.R. The trial court asked Miser for her response. Then, the following exchanged
occurred:


       "MS. MISER: Yes, Your Honor. As far as Juror [T.R.], Your Honor, the State put
       questions to the jury about whether they had been a witness in a case or whether they had
       been questioned by the police involved in any way. [T.R.] was a witness in Arzate, an
       endorsed—we believe she was an endorsed witness in the Arzate case and had questions
       asked of her. We also have her in an investigation about her son where she was
       questioned some in her—her son-in-law, I'm sorry Judge, about the use of her own
       personal cell phone. And so we have knowledge of her, but she did not respond to our
       questions in regards to whether she'd been questioned before or a potential witness, either
       answering questions of law enforcement. Also, she avoided a lot of eye contact, Your
       Honor. Noticing that she was looking away a lot of times, especially in questions that I
       felt perhaps should have elicited a response, and both of the times that she was a
       witness—or questioned about being involved in allegations.


       "THE COURT: Mr. Buck, any comments?

                                                    7
      "MR. BUCK: Well, I don't think that looking away is a good enough reason to strike
      someone of the same culture or ethnic heritage of the defendant. I don't know what the
      Arzate case is or what that involves, but it doesn't sound like she's done anything except
      maybe not being as cooperative as the State had hoped in an investigation. It has nothing
      to do with this. I don't think it qualifies as legitimate reasons for the Batson decision.


      "THE COURT: Let me note for the record that it would—that based upon the surnames
      that [T.R.] does appear to be of the same ethnicity as the defendant. The State's principal
      challenge here to this individual that I would consider to be a racially-neutral challenge
      would be information—that it had information as to this individual that she did not
      disclose in response to direct questions and should have disclosed. That was one of those
      questions being whether she had been questioned or involved with prior investigations or
      other investigations. I'm not sure that, standing alone, the question of whether a potential
      juror avoids eye contact would be a basis—a racially-neutral basis, but the indication that
      the witness was not being truthful in her response, in my opinion, or at least candid in her
      response would, in my opinion, be a racially-neutral response. And so, I'll therefore allow
      the peremptory challenge over the defense's objection."


      Miser additionally used a peremptory challenge against venire member K.M.S.
Again, Buck lodged a Batson challenge. Then, the following exchange occurred:


      "MS. MISER: Judge, in seeing [K.M.S.] today, it seemed that maybe that would just be a
      surname. It does not appear that she is of a Hispanic culture. I'm not sure.


      "THE COURT: I cannot tell. K.M.S. [has] a hyphenated surname. I cannot tell just from
      observation what her ethnicity would be, but I think I'll just error on the side of caution
      and ask the State to express a racially-neutral reason for her selection.


      "MS. MISER: May I have a moment to review her questionnaire?


      "THE COURT: You may.
      "(Thereupon, an off-the-record discussion was had, after which the following
      proceedings were had:)


                                                    8
       "MS. MISER: Your Honor, the—I understand the Court's ruling, but the State would
       reassert again that there's no—from [K.M.S.'s] appearance here today, other than a
       hyphenated name, no indication that she would be of Hispanic nature; however, with the
       Court's ruling, what the State would submit is that this has been a bit of a long discourse
       this morning with potential jurors, watched their reactions, and while [K.M.S.] was on
       the—she was here on the front row of the gallery where I could clearly see her, at some
       point in time—although, I—she remained alert and attentive for the most part, it seems
       sometimes she may—just based upon my watching and responses to the questions, she
       didn't respond very much to any of the questions. Now, I understand she may not have
       any answers, but also the fact that it just sometimes didn't seem that she was engaged in
       the process as some of the other potential jurors.


       "THE COURT: Mr. Buck, you want to make an argument here?


       "MR. BUCK: Well, it seems too subjective for striking someone. I don't know what her
       ethnic background is. The name '[S.]' at least that portion of the surname indicates
       Hispanic nature of some sort. I think it's just very subjective and doesn't really qualify as
       a racially-neutral response.


       "THE COURT: I'm going to disallow the peremptory challenge at this point in time. I
       simply don't think that not engaging in responses is appropriate since we don't know or
       have any indication to indicate that she would have had any responses. So, the State may
       exercise a peremptory challenge on another juror."


       Buck lodged no other Batson challenges. The 12-person jury was selected. Then,
the court held a recess for lunch. After this recess, the following exchange occurred out
of the presence of the jury:


       "THE COURT: Let the record reflect that we're reconvening out of the presence of the
       jury panel this morning—this afternoon, I guess it is now. Ms. Miser, I understand that
       you have something that you'd like to take up out of the presence of the jury?




                                                     9
      "MS. MISER: Yes, Your Honor. I need to make sure I clarify for the Court in regards to
      the juror—Prospective Juror [T.R.]. The State had indicated to the Court that we had two
      cases where she had been involved as a witness and had been questioned regarding those.
      If the Court would recall, the State moved to strike her based upon—and provided that
      reason for striking her based upon her non-response to certain questions regarding being
      a witness.


      "Ms. Aranda had double-checked those cases and it was actually indicated in one case,
      which would have been the Arzate case, that it was a different [T.R.]. Our notes that we
      had from the investigator had the wrong [T.R.]. However, her involvement in the second
      case that we indicated to the Court, regarding her son-in-law being questioned about the
      phone, that was the correct information that we provided to the Court. She still had been
      involved as a witness, had to answer questions, but did not respond to the State when I
      had asked about anyone's involvement as a witness or anyone being questioned by the
      police. So, we wanted to make sure we brought that to the Court's attention.


      "THE COURT: Mr. Buck, I take it your objection would remain the same?


      "MR. BUCK: Well, Your Honor, I didn't realize the State's questions extends simply to a
      police officer stopping someone on the street and asking questions about it. I thought it
      was more of an informal setting than what was stated.


      "THE COURT: I understand. My ruling will remain the same."


      Accordingly, Gonzalez-Sandoval's jury trial began. On the second day of trial,
however, the State brought up T.R. again, which resulted in the following exchange
between Aranda, Buck, and the trial court:


      "MS. ARANDA: Judge, I just had one thing that I wanted to bring up with the Court and
      I know that yesterday during the voir dire and peremptory challenges, Mr. Buck lodged a
      Batson challenge to one of the jurors that we I believe it was Juror [T.R.] was her name. I
      had a hand in giving Mrs. Miser some information that she advised the Court was
      incorrect, and I just wanted to be candid with the Court and let he Court know that I did

                                                  10
go back downstairs and check to make sure. I did also talk with Ms. Miser and she
advised me that she advised the Court that the notes that we had from investigations
regarding Juror [T.R.] were incorrect as listing her as a witness in the Arzate case.


"Ms. Miser indicated that she advised the Court after the lunch recess that the second
case involving the cell phone, that that was correct; however, I had not been up there yet
to advise her that that was probably her sister and not Juror [T.R.] that was on the cell
phone, so I wanted to be candid with the Court and counsel, let everybody know that we
were mistaken about her on that case as well. However, we did—I did see reference in
our Spillman Police System to her being named a witness in that system in a 2011
investigation of several auto—I believe they were auto burglaries. They're listed in there
as non-force, non-residential burglaries, which leads me to believe that they were auto
burglaries, and then there was a connected sex offense case. She was also listed as a
victim on a criminal damage to property case in that system. So, just so that counsel and
the Court is aware of that information. I don't want anybody misled and I wanted to be
candid that we had some misinformation when we lodged or attempted to lodge our race-
neutral grounds for the Batson challenge.


"THE COURT: So, if I understand what you're telling me is, the two instances that you
gave me as being the racially-neutral reason—


"MS. ARANDA: Correct.


"THE COURT: —did not turn out to be true, but in the investigation, you found at least
one and possibly two other instances that she should have disclosed in response to a
question?


"MS. ARANDA: I believe so, correct.


"THE COURT: Okay. All right. Mr. Buck, I assume you want to keep your challenge in
place under—even under these circumstances?


"MR. BUCK: Yes, Your Honor. We keep getting farther and farther away from the
reasons that she was challenged in the first place. Now, we go back to 2011. How far

                                             11
       back do we go, simply that, we don't know the substance of and who's to say that this is
       something that she should have disclosed. I would like a continuing objection to it.


       "THE COURT: All right. I think the question was broad enough that it would have
       required a response to something occurring in 2011. I don't think that's so far back that a
       witness would have completely forgotten about—or a juror would have forgotten about
       involvement or being identified in that respect; therefore, I'll continue the same ruling,
       but note and appreciate the candor of counsel. I think counsel honestly believed what
       they represented to the Court, it just turned out to be incorrect."


Jury Trial—The State's Case


       At trial, the State presented testimony from the following people: C.H., M.H.,
Fessler, Delgado, Sosa, Detective Holmes, and D.H.


       C.H. testified that when he and M.H. were married, they used to be neighbors with
Gonzalez-Sandoval, which is how D.H. and J.G. became friends. In regards to the event
in question, C.H. explained that D.H. had a good friend from school who could no longer
see her father anymore because he was saying and doing inappropriate things. According
to C.H., on May 7, 2014, when he picked D.H. up from school, D.H. brought up the
problems her friend was having with her father. C.H. was unsure exactly what the father
had done to D.H.'s friend.


       C.H. testified that after D.H. told him about her friend's problems, he asked her
"[h]ad that ever happened to her?" C.H. testified that D.H. responded, "Well, kinda [sic]."
C.H. testified that when he asked D.H. what that meant, D.H. responded that Gonzalez-
Sandoval had put his hand down her swim-shorts and touched her "private zone" while
they were playing sharks at the pool. C.H. testified that when he asked D.H. how long
Gonzalez-Sandoval had his hand in her swim-shorts, she told him 3 minutes. C.H. further



                                                    12
testified that after D.H. told him this, he took her to a local restaurant for ice cream to see
if he could learn more information.


       C.H. testified that he did not want to press the issue too hard because he believed
that D.H. may be more comfortable talking to her mother since she was female. C.H.
explained that he immediately called M.H. and told her what D.H. had told him. He
encouraged M.H. "to spend time together [with D.H.] in case there were details about
what [D.H.] told [him] . . . she wasn't comfortable telling [him]." C.H. also explained
that he called Fessler the next day, told her what had happened, and she reported D.H.'s
allegations to the police.


       M.H. testified that D.H. and J.G. went swimming together many times for about 2
1/2 years. M.H. testified that D.H. never told her that she did not want to go swimming
with J.G. anymore. M.H. testified that she remembered D.H. going swimming with J.G.
and Gonzalez-Sandoval on May 4, 2014. She testified that she believed D.H. came home
a little later than normal, but D.H. was otherwise acting normally. M.H. further testified
that she had no idea anything was wrong until she received a phone call from C.H. the
evening of May 7, 2014. M.H. explained that after she got home from work later that day,
she went over to C.H.'s place to pick D.H. up. M.H. explained that she took D.H. to Taco
Bell, and D.H. and M.H. "picnicked in the car and talked a little bit and [she] asked her
[more] questions . . . ."


       When asked about the nature of her and D.H.'s conversation, M.H. testified:


       "Just essentially trying to get information without being too pushy. I've never been
       through this kind of situation before, so I wasn't real sure the right way to go about it, but
       we just wanted to make sure we were both on the same page and understand what
       happened to her, and just kind of asked a lot of questions.
       ....


                                                    13
       "I had just asked her—and I wanted to take that opportunity as girls talking to get some
       information on exactly what happened and where she was touched. And so, I asked her
       specific questions leading to, can you tell me, you know—don't show me, but can you tell
       me where you felt pressure or that you were touched. Do you feel that—did it feel like,
       um, [Gonzalez-Sandoval's] fingers went inside you. And she responded, she thought,
       maybe, yes."


M.H. testified that D.H. told her that he touched her private areas for maybe 3 or 5
minutes. M.H. testified that to D.H., "private area" means her vagina. M.H. also testified
that when she asked D.H. if Gonzalez-Sandoval said anything to her while he touched
her, D.H. told her that he did not say anything to her but was speaking to J.G. in Spanish.


       When asked how their conversation ended, M.H. testified that she thought she
"ended up crying" with D.H. consoling her. M.H. explained that she "let [D.H.] know that
[she and C.H.] love her so much and that this [was] not her fault and that [she and C.H.]
. . . would be coming together to make a plan to help her through this."


       Fessler testified about her conversations with D.H. as her school counselor. Fessler
testified that D.H. came to talk to her after her parents got divorced. Fessler testified that
D.H. was having a hard time with her parents' divorce. Fessler explained that D.H.'s
father had called her and asked her to speak to D.H. because he believed she had been
touched inappropriately by a friend's father. Fessler explained that she pulled D.H. out of
her classroom to talk. Fessler testified that D.H. immediately asked, "Have you talked to
my dad?" Fessler testified that she stated, "Yes." In response, Fessler testified that she
stated, "I'm, sorry that it happened to you, can you tell me what—can you tell me about
it? And she told me the story." Fessler testified that D.H. told her that Gonzalez-Sandoval
put "his hands down into . . . the bottom of her swimming suit" while playing a game at
the pool. Fessler also testified that D.H. seemed nervous and "was worried because she
knew that . . . it made her mom and dad sad, but she was, [] relieved that she could share


                                                  14
it with them." Fessler testified that she told D.H. that she was "really proud of her, that it
was really hard to share things like that."


       Delgado testified that she interviewed D.H. at the CAC on May 14, 2014. Delgado
testified that the interview was video recorded. The State moved to admit a redacted
version of the recorded interview into evidence. The recorded interview was admitted
into evidence without objection and played before the jury. The recorded interview was
not included in the record on appeal. Delgado did not testify about what was said during
the interview.


       Detective Holmes testified about his interview with Gonzalez-Sandoval at the
police station. Detective Holmes testified that when asked for an interview, Gonzalez-
Sandoval voluntarily came down to the police station. Detective Holmes testified that
Gonzalez-Sandoval never denied playing sharks on the date in question, but he adamantly
denied that he touched D.H. inappropriately. Moreover, Detective Holmes testified that at
one point he questioned Gonzalez-Sandoval if it was possible that he had accidentally
touched D.H. inappropriately. According to Detective Holmes, Gonzalez-Sandoval
responded that "if it would have happened, it would have been an accident, but it hadn't
happened." Later, on cross-examination, Detective Holmes admitted that he asked
Gonzalez-Sandoval about anything happening "accidently" as an "interview tactic."


       Sosa testified that she has been a lifeguard at the pool for nearly 4 years. Sosa
testified that Gonzalez-Sandoval was a regular pool customer. Sosa recalled being the
lifeguard on-duty on the day Gonzalez-Sandoval allegedly touched D.H. She testified that
on that day, Gonzalez-Sandoval had "his son and another young female with him,"
arriving after she was already on duty. Sosa recalled that she watched them from the
lifeguard stand and that they were the only people in the pool. Sosa explained that she
was trained to remain focused on the people in the pool. Sosa testified that she kept her
eyes trained on them the whole time that they were in the pool.

                                              15
       Sosa recalled that the three of them, Gonzalez-Sandoval, his son, and the young
female, were playing a game of chase or tag in the pool. Sosa explained that it seemed
that one person was "it," that there were designated bases where you could not get tagged,
and that the goal was to swim from one base to another base without getting tagged by
the person that was "it." Regarding Gonzalez-Sandoval, Sosa explained that "he was it at
one point and I saw him, [ ] wrap his arms around the young woman and, [ ] but I would
say it was no longer than 15 seconds and I think he was maybe it a couple of times, and
then he let the other two play as well." Sosa explained that Gonzalez-Sandoval grabbed
his son in the same manner that he grabbed the young female.


       Sosa testified that when Gonzalez-Sandoval would wrap his arms around his son
or the young girl it was kind of like a hug around the waist. Sosa testified that this was
the only way Gonzalez-Sandoval grabbed the young girl, and Gonzalez-Sandoval's hands
never moved anywhere else. Sosa explained that once Gonzalez-Sandoval would grab his
son or the young girl and held them for about 15 seconds, he would let them go. Sosa
testified that Gonzalez-Sandoval caught the young girl no more than two times, both
times being in the manner she described. Sosa testified that she remembered the young
girl was wearing a t-shirt and shorts, as opposed to a swimming suit. Sosa testified that
she never saw Gonzalez-Sandoval put his hand down the young girl's swim-shorts.
Moreover, she testified that she believed she would have been able to see this, if it had
occurred, based on her vantage point, on the fact they were swimming in the shallow end
of the pool, and on the clarity of the water.


       Sosa admitted that she would not have been able to see what a person's hands were
doing if that person had his back to her. She further admitted that sometimes the water
could distort things. She explained, however, that when Gonzalez-Sandoval was grabbing
the young girl, she had a side view of where his hands were located and they were located


                                                16
in shallow water. Last, Sosa testified that Gonzalez-Sandoval, his son, and the young girl
all "seemed to be having a good time" and nothing they did caused her any concern.


       D.H. testified that she and J.G. were friends. D.H. testified that J.G. had invited
her to go swimming many times, and sometimes she would invite J.G. to go swimming.
She explained that Gonzalez-Sandoval would usually chaperone them at the swimming
pool. D.H. explained that she, J.G., and Gonzalez-Sandoval would play the game
"sharks." She explained that the shark would try to tag another person by grabbing that
person for several seconds, but the shark was not allowed to tag a person who was at a
designated base.


       D.H. testified that when she goes swimming she wears underwear, swim-shorts,
and a t-shirt. D.H. testified that she was wearing such an outfit the last time she went
swimming with J.G. and Gonzalez-Sandoval.


       D.H. testified that the last time they went swimming, while Gonzalez-Sandoval
was the shark, he put his hand down her swim-shorts. D.H. testified that Gonzalez-
Sandoval had grabbed her with one arm, placing that arm around her like a hug, and then
used his free arm to put his hand down her swim-shorts. D.H. testified that she was facing
forward, with her back to Gonzalez-Sandoval, when he did this. She stated that when
Gonzalez-Sandoval touched her, he put his hand underneath her underwear, touched the
front of her "private parts," and moved his hand around a little. D.H. testified that she did
not remember Gonzalez-Sandoval putting his fingers "inside the crack" of her private
parts. D.H. testified that her t-shirt was not floating, but on her body "like normal," and
Gonzalez-Sandoval did not have to lift her shirt to get his hands underneath her
underwear. D.H. testified that as Gonzalez-Sandoval touched her, he was speaking to J.G.
in Spanish. D.H. testified that she was not allowed in the deep-end of the pool, so they
always played the shark game in shallow water.


                                             17
       D.H. alleged that this incident was not the first time Gonzalez-Sandoval had
touched her in that manner. D.H. testified that Gonzalez-Sandoval had touched her
"maybe two or three times" before while swimming at the pool. She alleged that when
Gonzalez-Sandoval had touched her before, he kept his hand outside her underwear and
the touching lasted for a shorter time.


       D.H. testified that after Gonzalez-Sandoval touched her, she told J.G. that they
should probably go home. D.H. admitted that she never told anyone that Gonzalez-
Sandoval had touched her until later that week when she was talking to her father. She
explained that the day she spoke to her father, she had been speaking to a friend at school
"who's essentially going through the same thing." When asked what her friend had
experienced, she said that her friend shared a little bit of information about her father
saying inappropriate things. She testified that she brought up her friend's situation to her
father after he picked her up from school, at which point he asked if anything like that
had ever happened to her, and she responded, "Well, kinda [sic]." She testified that she
told her father about "the situation," remembering that her father looked "real angry."


       During cross-examination, D.H. admitted that she continued to swim with J.G. and
Gonzalez-Sandoval after the first two or three times Gonzalez-Sandoval touched her
inappropriately. She admitted that she had never told anyone about these earlier touches
when they occurred. She also testified that she did not know when those earlier touches
occurred, just that they were at the pool.


       Moreover, during cross-examination, regarding the touching for which Gonzalez-
Sandoval was charged, D.H. testified that she was swimming to a base when Gonzalez-
Sandoval grabbed her and stuck his hand down her underwear. When Buck confronted
D.H. with her CAC statement that she was swimming away from a base when Gonzalez-
Sandoval touched her, D.H. testified that she could not remember saying that. Then, D.H.
testified that Gonzalez-Sandoval touched her private parts for "a couple of minutes."

                                             18
Buck pressed D.H. on how long Gonzalez-Sandoval had touched her, resulting in the
following exchange:


       "[Buck:] Well, do you remember telling you mother that it was at least five minutes?
       "[D.H.:] Yes, I do.
       "[Buck:] Was that accurate?
       "[D.H.:] Feels accurate.
       "[Buck:] Okay. So, it's more than just a couple of minutes?
       "[D.H.:] Well, yeah, in that area.
       "[Buck:] And, during that time, you did nothing, said nothing?
       "[D.H.:] No."


Buck also asked D.H. about the t-shirt she was wearing when Gonzalez-Sandoval
allegedly touched her private parts. D.H. admitted that the t-shirt was long and went
below her waist. When Buck asked how Gonzalez-Sandoval put his hand under her
swim-shorts and underwear without raising her t-shirt, D.H. responded, "It didn't really
seem like he had to pull my shirt much."


Jury Trial—Gonzalez-Sandoval's Case


       J.G. testified on his father's behalf. J.G. explained that he and D.H. used to be
friends. J.G. explained that sometimes he, his father, and D.H. would go swimming and
play games. He testified that the last time that they all went swimming together, the only
people at the pool were he, his father, D.H., and "[a] lady lifeguarder." He testified that
they all started playing the game shark because D.H. wanted to play that game. He
testified that usually his father was the shark. He testified that when his father would tag
him or D.H., he would grab them with his arms around their chests for about 5 seconds;
then, the person who got tagged became the shark. He admitted that sometimes his father
might hold them for about 10 seconds. J.G. explained that his father never put his hand
into D.H.'s swim-shorts because he could see everything. Moreover, they were in shallow

                                                  19
water, and he was wearing goggles so he could see when he was underwater. J.G. also
testified every once in a while he saw Sosa step out of the pool area to speak to a
lifeguard that was working at the pool entrance.


       Gonzalez-Sandoval presented no other evidence on his behalf. During his closing,
Gonzalez-Sandoval focused on Sosa's testimony and D.H.'s inconsistent statements.
Gonzalez-Sandoval also asked the following question: Was it "even possible for someone
to stand in a public pool with their hand down a young girl's pants in shallow [] clear
water with the lifeguard on duty and not be seen by somebody?"


Verdict


       The jury began deliberating at 3:39 p.m., on May 19, 2015. The jury returned with
a guilty verdict 45 minutes later at 4:24 p.m.


Posttrial Motions


       Following the jury verdict, Gonzalez-Sandoval moved for judgment of acquittal
and moved for a new trial. In his motion for new trial, Gonzalez-Sandoval argued he was
entitled to new trial for the following reasons: (1) the trial court erred when it granted the
State's motion to admit evidence of his alleged prior sexual misconduct with D.H.; (2) the
trial court erred in overruling his Batson challenge regarding T.R.; and (3) the evidence
was insufficient to support his conviction.


       On the other hand, the State responded that the trial court should deny both
Gonzalez-Sandoval's motion for judgment of acquittal and motion for new trial. The State
asserted that sufficient evidence supported Gonzalez-Sandoval's conviction. The State
asserted that Gonzalez-Sandoval's prior sexual misconduct with D.H. was admissible
because it showed propensity and absence of mistake. The State further argued that even

                                              20
if this evidence was not admissible, the admission of the evidence was harmless given the
other evidence supporting Gonzalez-Sandoval's conviction. Moreover, the State asserted
that the trial court correctly overruled Gonzalez-Sandoval's Batson challenge. Although
acknowledging that its initial race-neutral reasons for the peremptory challenge were
incorrect, the State maintained that the information it provided to the trial court on the
second day of trial regarding venire member T.R. being in the police system as a witness
of crimes was true.


       Gonzalez-Sandoval also moved for a downward durational departure. Gonzalez-
Sandoval requested that he be sentenced on the Kansas Sentencing Guidelines Act
(KSGA) grid as opposed to the mandatory minimum 25-year prison sentence for his off-
grid offense.


       After Gonzalez-Sandoval filed his first motion for new trial, D.H.'s mother, M.H.,
completed a victim impact statement. In the victim impact statement, M.H. stated the
following: "Over the past year, we have watched [D.H.] work through anxiety, fear,
nightmares, even hallucinations, seeing the man who did this to her following her
everywhere she goes." M.H. also stated that D.H. was having irrational thoughts,
including wondering whether she or C.H. would sexually abuse her. Based on this
information, Gonzalez-Sandoval filed a second motion for new trial. He argued that
D.H.'s hallucinations constituted new evidence entitling him to a new trial. Gonzalez-
Sandoval argued that D.H.'s hallucinations were material as her testimony was the only
evidence against him and the hallucinations undermined her credibility. The State
responded that D.H.'s hallucinations were not new evidence because information about
her seeing Gonzalez-Sandoval on one occasion when he was not really there was
included in her medical records, to which the defense had access.




                                             21
Post-Trial Motions Hearing


       The trial court held a hearing on Gonzalez-Sandoval's post-trial motions. At this
hearing, Gonzalez-Sandoval called M.H. to testify about the victim impact statement she
completed and the nature of D.H.'s hallucinations.


       Following M.H.'s testimony, Gonzalez-Sandoval reiterated the arguments within
his motions. Regarding his second new trial motion, Buck admitted that D.H.'s
counseling records referenced one incident where D.H. thought she saw Gonzalez-
Sandoval in another city, but the record did not contain anything "about an ongoing series
of hallucinations." The State also reiterated the arguments from its written responses to
Gonzalez-Sandoval's motions.


       The trial court denied Gonzalez-Sandoval's motion for judgment of acquittal
because in the light most favorable to the State, D.H.'s testimony alone was enough to
obtain a conviction. For the same reason, the trial court denied Gonzales-Sandoval's new
trial request based on the sufficiency of the evidence. The trial court denied Gonzalez-
Sandoval's new trial request based on improper admission of prior sexual misconduct
based on the reasons he allowed the evidence to be admitted in the first place. The trial
court denied Gonzalez-Sandoval's new trial request based on Batson because although
"[t]he State's initial reasoning apparently was in error," "that disclosure was at a later
point in time when it would have been very difficult, short of just impaneling a whole
new panel, to have corrected the error." The trial court also stated that it accepted the
State's race-neutral explanation given on the second day of trial as valid.


       Last, the trial court denied Gonzalez-Sandoval's motion for new trial based on
D.H.'s hallucinations. First, the trial court stated that it hesitated to use the word
"hallucinations," but there was no better word to use given that D.H. was evidently seeing


                                               22
Gonzalez-Sandoval when he was not there and M.H. used that word in the victim impact
statement. Then, the trial court determined the following:


       "[A]t the same time, [the counseling records] were available and therefore discoverable.
       Under these circumstances, and particularly since the so-called hallucinations relate to the
       individual responses to her belief that she had been the victim of a crime and not to a
       hallucination that would be creation of an event that's not somehow grounded in reality,
       [the Court] will deny that motion as well."


Sentencing


       Next, the trial court immediately proceeded to sentencing. The trial court decided
to grant Gonzalez-Sandoval's durational departure request to be sentenced on the KSGA
grid despite the State's opposition. The trial court explained that it was granting this
departure because of Gonzalez-Sandoval's lack of criminal history and lack of physical
harm to D.H. Based on Gonzalez-Sandoval's criminal history score of "I," the trial court
sentenced Gonzalez-Sandoval to 59 months' imprisonment followed by lifetime
postrelease supervision.


Did the Trial Court Err When Ruling on the Batson Challenge?


       Gonzalez-Sandoval argues that the trial court abused its discretion when it denied
his Batson challenge regarding venire member T.R. Gonzalez-Sandoval argues that once
the State admitted that the two race-neutral reasons it provided for striking venire
member T.R. were factually incorrect, the trial court erred by allowing his case to
proceed. Gonzalez-Sandoval contends that he is entitled to a new trial based on this error.
The State responds that the trial court did not abuse its discretion because the final reason
it provided to the court for striking venire member T.R. was race-neutral.




                                                     23
Standard of Review


       Appellate courts engage in a three-step analysis when reviewing Batson
challenges. Each step of the three-step analysis requires a distinct standard of review:


                 "First, the party challenging the strike must make a prima facie showing that the
       other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
       plenary or unlimited review over this step. [Citation omitted.]


                 "Second, if a prima facie case is established, the burden shifts to the party
       exercising the strike to articulate a race-neutral reason for striking the prospective juror.
       This reason must be facially valid, but it does not need to be persuasive or plausible. The
       reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
       the explanation. The opponent of the strike continues to bear the burden of persuasion.
       [Citation omitted.]


                 "Third, the trial court must determine whether the objecting party has carried the
       burden of proving purposeful discrimination. This step hinges on credibility
       determinations. '[U]sually there is limited evidence on the issue, and the best evidence is
       often the demeanor of the party exercising the challenge. As such, it falls within the trial
       court's province to decide, and that decision is reviewed under an abuse of discretion
       standard.' [Citations omitted.]" State v. Kettler, 299 Kan. 448, 461-62, 325 P.3d 1075
       (2014).


       Moreover, under the third-step, courts must assess "the plausibility of that reason
in light of all evidence with a bearing on it." Miller-El v. Dretke, 545 U.S. 231, 252, 125
S. Ct. 2317, 162 L. Ed. 2d 196 (2005). In other words, courts must evaluate whether the
State's given "reason is legitimate or merely a pretext for a true discriminatory motive."
State v. Pham, 281 Kan. 1227, 1239, 136 P.3d 919 (2006). The trial court abuses its
discretion under this third step "when it makes a decision that is based on an error of law
or fact; or when it makes a decision that is otherwise arbitrary, fanciful, or unreasonable."
State v. Dupree, 304 Kan. 43, 58, 371 P.3d 862 (2016).
                                                     24
       In this case, there is no dispute that venire member T.R. is Hispanic or that
Gonzalez-Sandoval met his burden of making a prima facie showing that Miser used her
peremptory challenge against T.R. based on T.R.'s race or ethnicity. Instead, the dispute
lies with whether the State met its burden in providing a facially valid race-neutral reason
for using a peremptory challenge against T.R. under step two of the Batson analysis.
Moreover, we must determine whether the trial court abused its discretion by finding that
Gonzalez-Sandoval failed to carry his burden of proving purposeful discrimination under
step three of the Batson analysis.


Rights Protected


       In Batson, the United States Supreme Court recognized that the Equal Protection
Clause guarantees defendants that the State will not exclude members of their race or
ethnicity from the jury venire based on race or ethnicity:


       "Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges
       ′for any reason at all, as long as that reason is related to his view concerning the outcome'
       of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge
       potential jurors solely on account of their race or on the assumption that black jurors as a
       group will be unable impartially to consider the State′s case against a black defendant."
       476 U.S. 89.


       Thus, the procedural safeguards of the three-step Batson test are designed not only
to protect the right of defendants to be tried by a jury of their peers but also the right of
venire members to serve on a jury. When the State excludes venire members based upon
race or ethnicity, the State further hurts the entire community by undermining the
community's confidence in the courts.




                                                    25
Relevant Facts Review


       To summarize, during voir dire, Miser asked the potential jurors whether they had
ever "been a witness, such as . . . questioned during an investigation or you had to appear
in court as a witness on a sex crime case" or "been a witness, just in any kind of case
where you had to answer questions to a law enforcement officer?" Venire member T.R.
did not respond to either of those questions.


       When Buck lodged a Batson objection against Miser's use of a peremptory
challenge against T.R., Miser stated that she was using her peremptory challenge for the
following reasons:


       Reason #1: "[T.R.] avoided a lot of eye contact." "[S]he was looking away a lot of times,
       especially in questions that [Miser] felt should have elicited a response . . . ."


       Reason #2: T.R. had been an endorsed witness in the "Arzate case and had questions
       asked of her," yet she did not respond to Miser's questions about being a witness.


       Reason #3: T.R. had been questioned during "an investigation about her son" using her
       "personal cell phone," yet she did not respond to Miser's questions about being a witness.


Buck then responded that he did not think Reason #1 was a "good enough reason to strike
someone of the same culture or ethnic heritage of [Gonzalez-Sandoval]." In regards to
Reason #2 and Reason #3, Buck argued that he did not know what the Arzate or cell
phone case involved, but those reasons were not good enough either because it seemed
the State was just upset T.R. did not cooperate more fully with them during those
investigations, which had nothing to do with Gonzalez-Sandoval's case.


       Although the trial court did not explicitly state that Gonzalez-Sandoval made a
prima facie showing that Miser used her peremptory challenge based on T.R.'s race, the

                                                     26
trial court implicitly found that a prima facie showing had been made because it
acknowledged that T.R. and Gonzalez-Sandoval were both of the same ethnicity.
Moreover, after determining that T.R. and Gonzalez-Sandoval were of the same ethnicity,
the trial court moved to the second and third step in the Batson analysis.


         In addition, this prima facie showing based on race or ethnicity springs from the
trial court's later statements made while denying Gonzalez-Sandoval's new trial motion,
when it recollected: "[T]he State posed a peremptory challenge to an individual that
would . . . appear to have been of the same ethnic background of the defendants. The
State was required under those circumstances to demonstrate a racially-neutral reason for
the issuance of the challenge." Although the trial court did not explicitly state that
Gonzalez-Sandoval had made a prima facie showing that Miser had used her peremptory
challenge based on T.R.'s race, the record indicates that trial court made this
determination based on its statements.


         The trial court ruled that Reasons #2 and #3 were valid race-neutral reasons to use
a peremptory challenge against venire member T.R. because it "indicated that [T.R.] was
not being truthful in her response . . . or at least candid in her response." Nevertheless, the
trial court implicitly conceded that Miser's Reason #1—avoiding eye contact—was not
race neutral when the only two reasons it accepted as valid race-neutral reasons were
Miser's Reasons #2 and #3. In other words, if Miser's Reason #1 was not race-neutral,
then Miser's Reason #1 was necessarily a pretext. Indeed, when Aranda told the trial
court that Reason #3 was also not factually correct on the second day of trial, the trial
court clearly indicated that it had found only two of the State's reasons—Reasons #2 and
#3—race neutral, when it stated: "So, if I understand what you're telling me is, the two
instances that you gave me as being the racially-neutral reason—[] did not turn out to be
true . . . ." Moreover, nothing in the record suggests otherwise. After the trial court
rejected Reason #1—the avoiding eye contact reason—it was never raised again by either
party.

                                              27
       After the jury had been selected but before the start of the trial, Miser told the trial
court that Reason #2 was factually incorrect. Miser explained that she had believed that
venire member T.R. was a witness in the Arzate case based on notes of her private
investigator. Yet, over the lunch break, she had learned that the witness in the Arzate case
was not T.R., but another person who had the same last name as T.R. Miser then assured
the trial court that Reason #3, the cell phone case, was still factually correct. She
provided additional information about Reason #3 at this time also, implying that this was
merely a police investigation as opposed to a case where T.R. had to testify in court.


       Buck countered that the State's question about being a witness during voir dire was
not so broad as to "extend[] simply to a police officer stopping someone on the street and
asking questions about it." The trial court disagreed, holding that Reason #3 alone was a
valid race-neutral reason.


       Then, at the beginning of the second day of trial, Aranda told the trial court that
Reasons #3 was factually incorrect. Aranda explained that she discovered that whoever
was involved in the cell phone case was not T.R. Aranda told the trial court that the
person involved in the cell phone case was "probably [T.R.'s] sister," although she
provided no explanation why she believed that this person was T.R.'s sister. Then,
Aranda provided the trial court with a substitute reason for using a peremptory challenge
against T.R. Specifically, Aranda's substitute reason for using the peremptory challenge
was as follows:


       Reason #4: T.R.'s name appeared in the "Spillman Police System" as witness to several
       2011 auto-burglaries. The auto-burglaries had been "connected [to a] sex offense case."
       Moreover, T.R. was a victim in a criminal damage to property case. Therefore, T.R. had
       been a witness and should have answered questions about being a witness during voir
       dire.


                                                  28
Buck responded that "[w]e keep getting farther and farther away from the reasons that
she was challenged in the first place." Buck further responded that Aranda had not
explained any of the details of Reason #4 regarding T.R.'s involvement in the auto-
burglaries, sex offense case, or criminal damage to property case. Buck asserted that
based on the information Aranda disclosed for Reason #4, nobody could possibly know if
T.R. should have responded to the questions about being a witness.


       The trial court disagreed, finding that the State's question was "broad enough that
it would have required a response" given T.R.'s apparent involvement in the 2011 auto-
burglaries, the sex offense, and the criminal damage to property cases. Thus, on the
second day of Gonzalez-Sandoval's trial, the trial court allowed the State to substitute
Reason #3 for using a peremptory challenge against T.R. with Reason #4.


       Later, when the trial court denied Gonzalez-Sandoval's motion for new trial based
on Batson errors, the trial court reiterated that the State's substitute Reason #4 was a
facially valid race-neutral reason. The trial court also stated that although "[t]he State's
initial reasoning apparently was in error, . . . that disclosure was at a later point in time
when it would have been very difficult, short of just impaneling a whole new panel, to
have corrected the error." (Emphasis added.)


The Trial Court Abused Its Discretion by Accepting Reasons #2 and #3 as Race-Neutral


       Gonzalez-Sandoval's arguments correctly focus on the trial court's decision to
allow the State to substitute its race-neutral reasons for using a peremptory challenge
against venire member T.R.


       The State explained that Reason #2 was factually incorrect after jury selection but
before the start of Gonzalez-Sandoval's trial. Then, the State explained that Reason #3
was factually incorrect on the second day of Gonzalez-Sandoval's jury trial. The trial

                                              29
court allowed the State to provide a substitute race-neutral reason for striking venire
member T.R.—Reason #4.


       Turning our focus back to Gonzalez-Sandoval's arguments, we note that Gonzalez-
Sandoval argues that the trial court abused its discretion when it allowed his case to
proceed after the State revealed that Reasons #2 and #3 were factually incorrect. The
State responds that the trial court did not abuse its discretion because its substitute
Reason #4 was race-neutral. Thus, the State, like the trial court, assumes that it was
allowed to give a substitute race-neutral reason once the State admitted that Reasons #2
and #3 were facially invalid. Accordingly, at the heart of Gonzalez-Sandoval's complaint
is the following question: Can the State provide substitute race-neutral reasons for
striking a minority venire member once its original reason failed because the reason was
either facially invalid or deemed pretextual?


       The answer to this question is clearly no. To begin with, it is readily apparent that
the State cannot provide substitute reasons for using a peremptory challenge against a
minority venire member based on the three-step Batson analysis. The three-part Batson
test is as follows: (1) the party challenging the strike must make a prima facie showing
that the other party made a peremptory challenge based on race; (2) following this prima
facie showing, the party exercising the strike must provide a facially valid race-neutral
reason for striking the prospective juror; and (3) the trial court must determine whether
the objecting party has carried its burden of proving purposeful discrimination. Kettler,
299 Kan. at 461-62. These three steps encompass the entirety of the Batson challenge
analysis.


       Indeed, once the trial court makes a decision, the Batson analysis is completed.
The trial court either allows the minority venire member to remain on the jury panel
because the State failed to provide a facially valid race-neutral reason for its strike, or
allows the minority juror to remain on the panel because the defense established that the

                                              30
State's facially valid race-neutral reason was pretextual, or removes the minority venire
member from the jury panel because the defense failed to establish that the State's facially
valid race-neutral reason was pretextual.


       Consequently, there is no fourth step under the Batson analysis where prosecutors
get a "do-over" when the initial reasons they provide are deemed facially invalid or
pretextual. The purpose of the second-step of Batson is to make the prosecutors articulate
the actual reason why they are using a peremptory challenge against a minority venire
member. The second-step is specifically designed to reduce a prosecutor's ability to
fabricate a rational basis for striking the minority venire member that can pass race-
neutral muster.


       As applied in this case, Reasons #1, #2, and #3 were the reasons Miser provided
for striking venire member T.R. The trial court determined that Reason #1—that T.R.
was avoiding eye contact—was a pretext. Then the trial court found that Reasons #2 and
#3 were facially valid race-neutral reasons that were also not pretextual. Thus, Reasons
#2 and #3 were the race-neutral reasons that resulted in T.R.'s removal from the jury
panel. Reason #4 was nothing more than afterthought, a substitute reason Miser and
Aranda came up with once they realized Reasons #2 and #3 were factually incorrect and
therefore facially invalid. Because Reason #4 was not the reason Miser initially used as a
peremptory challenge to remove T.R. from the jury panel, Miser and Aranda cannot be
excused from complying with the Batson test regardless of whether they could have
originally struck venire member T.R. for Reason #4. We cannot endorse Miser's and
Aranda's attempt to circumvent the Batson test in this way. As a result, we determine that
the trial court violated the three-step Batson procedure when it allowed Miser and Aranda
to substitute Reason #4 in place of Reasons #2 and #3, effectively rendering the second
step of Batson meaningless.




                                            31
       Indeed, in Miller-El, the United States Supreme Court held that substitute race-
neutral reasons are not allowed. In Miller-El, following the defense's prima facie showing
that the prosecutor used a strike against a minority juror based on race, the prosecutor
alleged that he used his strike because of the juror's views on the death penalty and
rehabilitation. 545 U.S. at 243. Yet, the defense was able to prove that the prosecutor was
mischaracterizing the juror's views on the death penalty and rehabilitation. Miller-El, 545
U.S. at 244. After the defense pointed out this mischaracterization, the prosecutor
suddenly had a new reason why he decided to use a peremptory strike against the juror.
Miller-El, 545 U.S. at 246. The trial court found the prosecutor's new reason for striking
the juror believable, and the Fifth Circuit affirmed. Miller-El, 545 U.S., at 237, 245-46.


       The United States Supreme Court disagreed with the lower courts. In reversing,
the Miller-El Court explained that prosecutors must stand or fall on the initial reasons
they give to the trial court for striking a minority venire member:


       "It is true that peremptories are often the subjects of instinct [citation omitted], and it can
       sometimes be hard to say what the reason is. But when illegitimate grounds like race are
       in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall
       on the plausibility of the reasons he gives. A Batson challenge does not call for a mere
       exercise in thinking up any rational basis. If the stated reason does not hold up, its
       pretextual significance does not fade because a trial judge, or an appeals court, can
       imagine a reason that might not have been shown up as false. The Court of Appeals'[] and
       the dissent's substitution of a reason for eliminating [the juror] does nothing to satisfy the
       prosecutors' burden of stating a racially neutral explanation for their own actions."
       (Emphasis added.) 545 U.S. at 252.


       Hence, Miller-El stands for the proposition that when prosecutors provide reasons
for striking a minority juror, the prosecutors must "stand or fall on the plausibility of the
reasons [they] give." 545 U.S. at 252. This means that prosecutors do not get do-overs
when the first reason they provide for striking the minority venire member does not wash.

                                                     32
In turn, this means that trial courts should consider only the prosecutor's initial
explanations for striking the minority venire member.


       Additionally, we are guided in this inquiry by a Seventh Circuit United States
Court of Appeals decision. In United States v. Taylor, 636 F.3d 901 (7th Cir. 2011)
(Taylor III), it agreed with the preceding interpretation of Miller-El. Most significantly,
in Taylor II, the Seventh Circuit remanded the case to the trial court for an evidentiary
hearing specifically limited to questioning the prosecutor about his motivation for
striking a minority juror because the trial court did not properly perform its duty under
the third-step of Batson. Taylor III, 636 F.3d at 902. On remand, the trial court allowed
the prosecutor to provide a substitute reason for striking the minority juror. Taylor III,
636 F.3d at 905. When Taylor appealed, the Seventh Circuit remanded the case again to
the trial court. Nevertheless, this time the Seventh Circuit remanded the case for a new
trial. The Taylor III court explained a new trial was required because under Miller-El,
prosecutors must stand or fall on the initial reasons they provide to the trial court for
striking a minority juror. Taylor III, 636 F.3d at 905-06. The prosecutor in Taylor's case
was not allowed to provide substitute reasons why he decided to strike the juror after his
initial reason was deemed a pretext for purposeful discrimination. Taylor III, 636 F.3d at
905-06.


       We have difficulty in concluding, as the dissent does, that "the prosecutor's
reasons for striking T.R. as a juror always remained the same, i.e., T.R. did not respond to
general questions about being involved as a witness in prior cases and she avoided eye
contact during jury selection." Here, the dissent acknowledges that the prosecutor's
questions were "general questions." We discuss in the next section of our opinion that
when prosecutors ask questions of venire members that lack specificity, it creates a
problem as to whether venire members are required to respond.




                                              33
       As a result, courts should not expect venire members to respond to poorly
articulated and general questions, which can be interpreted in a variety of ways. This was
especially true in this case where the prosecutor asked the venire members poorly
articulated and general questions but expected venire member T.R. to provide a very
specific response regarding events that allegedly took place outside of court. Keeping in
mind that venire members are not required to volunteer information which is not
specifically asked, we note that the prosecutor's general questions accentuate one of the
fundamental problems surrounding the State's strike against T.R.


       Turning our attention once again to the dissent's conclusion that the prosecutors'
reasons for striking T.R. as a venire member always remained the same, we note that
Miser's Reason #2 for striking T.R. was very specific: that T.R. should have responded
to the State's general questions about being a witness because T.R. was involved in the
Arzate case. Also, Miser's Reason #3 for striking T.R. was very specific: that T.R.
should have responded to the State's general questions about being a witness because T.R.
was involved in the cell-phone case. Finally, Aranda's Reason #4 for striking T.R. was
specific: that T.R. should have responded to the State's general questions about being a
witness because T.R. was involved in an auto-burglary, sex offense, and criminal damage
to property case.


       Thus, Miser's and Aranda's reasons for striking T.R. did not always remain the
same. Indeed, they struck T.R. because she did not specifically respond about being a
witness in the preceding separate and distinct incidents (Reasons #2, #3, and #4) that
occurred outside of court. The outside of court event that Aranda relied on when giving
Reason #4 was not the same as those relied on in Reasons #2 and #3; as a result, Reason
#4 was a very specific substitute reason distinct from Reasons #2 and #3 for striking
venire member T.R. As a result, the prosecutors' reasons for striking T.R. as a venire
member never remained the same.


                                            34
       We also note that the dissent places a heavy reliance on the trial court's
determination that Miser and Aranda were acting honestly when they provided the court
with incorrect Reasons #2 and #3 and substitute Reason #4. This determination by the
trial court, however, will not bear the weight of reliance which the dissent places upon it.
Citing to Pham and Kettler, the dissent emphasizes that this court must defer to the trial
court's credibility findings regarding the demeanor of the prosecutor giving a reason for
striking a minority venire member. Then, the dissent states: "The trial court personally
observed the prosecutor's demeanor during the hearing on the Batson challenge involving
T.R., including the prosecutor's subsequent corrections of the record, and found no
discriminatory intent or motive by the prosecutor." Undeniably, we should defer to the
trial court's credibility determinations regarding a prosecutor's demeanor during the third
step of Batson. In fact, when the Pham and Kettler courts held that this court should defer
to the trial court's credibility findings, they did so in describing this court's review of the
trial court's findings under Batson's third step. Kettler, 299 Kan. at 462; Pham, 281 Kan.
at 1237. Also, both Pham and Kettler involved situations where the trial court adhered to
Batson's three-step analysis.


       In this case, unlike Pham and Kettler, the trial court did not adhere to Batson's
three-step analysis. Instead, the credibility determinations that the dissent wishes us to
defer to occurred after the completion of Batson's three-step analysis. In short, when
Aranda admitted to the trial court that Reason #3 was incorrect and provided the trial
court with the substituted Reason #4, the trial court's window for making a credibility
determination had long passed.


       Turning our attention once again to the facts of this case, we note that when Miser
and Aranda revealed to the trial court that Reasons #2 and #3 were factually incorrect,
Miser and Aranda brought the case back to the second-step of the Batson analysis. By
acknowledging that both Reasons #2 and #3 were factually incorrect, they implicitly
conceded that the reasons they provided for striking venire member T.R. were facially

                                               35
invalid. At that point, the trial court had no choice but to declare a mistrial because the
only evidence before it was that Gonzalez-Sandoval had established a prima facie
showing of discrimination and that the State had provided only facially invalid reasons
for its strike of T.R. Miser and Aranda were limited to the initial reasons they provided
for striking venire member T.R. immediately after Gonzalez-Sandoval made his prima
facie showing of discrimination. Miser and Aranda did not have the luxury of providing
the trial court with substitute Reason #4. Moreover, Miser and Aranda had to stand and
fall on the initial reasons they gave for striking T.R. Additionally, because T.R. had
already been removed from Gonzalez-Sandoval's jury, there was no way for the State to
salvage Gonzalez-Sandoval's trial. Indeed, when the State had T.R. struck from
Gonzalez-Sandoval's jury panel, it violated the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.


       In summary, Gonzalez-Sandoval has correctly argued that the trial court abused its
discretion when it allowed his trial to continue after it learned that both Reason #2 – that
T.R. was a witness in the Arzate case—and Reason #3—that T.R. was a witness in the
cell phone case—were factually incorrect and therefore facially invalid. Once the State
admitted that it had not provided a facially valid race-neutral reason for striking venire
member T.R., the only evidence before the trial court was that Gonzalez-Sandoval had
made a prima facie showing that the State had used its peremptory challenge against T.R.
based on T.R.'s race or ethnicity. There is no such thing as substitute race-neutral reasons
for striking a minority venire member under the three-step Batson analysis. The fact the
State admitted that it had made mistakes in its research does nothing to change this result.
With only Gonzalez-Sandoval's prima facie showing of discrimination before it, the trial
court had no option but to declare a mistrial. Because the trial court abused its discretion
by not declaring a mistrial at that juncture, we reverse and remand for a new trial.


       Finally, we have difficulty in concluding, as the dissent does, that we make an
incorrect statement of law when we hold that prosecutors must stand or fall on the initial

                                              36
explanations they provide for striking minority venire members. The dissent further
concludes that the correct statement of law in this case is as follows:


       "The trial court is not 'barred from considering' a substitute reason for striking a minority
       venire member if the court finds that the prosecutor's initial reason is insufficient, but the
       fact that the prosecutor is offering a substitute reason is a circumstance that the trial court
       should consider in assessing 'the plausibility of that reason in light of all evidence with a
       bearing on it.'"


       We note that the dissenting opinion's conclusion, however, is devoid of authority.
Our research has revealed no support for this conclusion. A trial court's finding that the
State's reason for striking a minority venire member is "insufficient" necessarily means
that reason is facially invalid or pretextual in the context of Batson analysis. Moreover,
the dissenting opinion's conclusion is at variance with the holdings of Miller-El and
Taylor III.


       In regards to Miller-El, the dissent attempts to minimize the Miller-El holding by
arguing that the Miller-El court never held "that a prosecutor must stand or fall on the
plausibility of the initial reasons he or she gives for striking a minority venire member."
The dissent continues by asserting the following: (1) that "Miller-El does not prohibit a
prosecutor from substituting a race-neutral reason for striking a minority juror if the court
finds that the prosecutor's initial reason is insufficient"; and (2) that "[i]nstead, Miller-El
holds that the trial court and the appellate courts cannot substitute their own race-neutral
reasons to justify the prosecutor's peremptory challenge after the courts determine that
the prosecutor's reasoning is not sufficiently race-neutral." Miller-El certainly holds that
courts cannot substitute a prosecutor's given race-neutral reasons with its own race-
neutral reasons. Nevertheless, the dissenting opinion ignores the language preceding that
holding, which states: "[W]hen illegitimate grounds like race are in issue, a prosecutor
simply has got to state his reasons as best he can and stand or fall on the plausibility of


                                                     37
the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up
any rational basis." 545 U.S. at 252.


       From this language, it is clear that the Miller-El Court held that prosecutors must
stand or fall on the plausibility of the race-neutral reasons they stated in the first instance;
that is, prosecutors cannot later provide substitute reasons for striking a minority venire
member. The phrase "stand or fall" following the Miller-El Court's direction to
prosecutors to state their reasons for striking the minority venire member, establishes the
finality of the analysis. The expression "stand or fall" is an idiom, indicating that a person
will either succeed or fail based on a singular event. Here, the singular event is the
plausibility of the reason prosecutors give for striking the minority venire member. Once
that plausibility is determined by the trial court, the prosecutors will either succeed—
meaning the reason is deemed race-neutral—or the prosecutors will fail—meaning the
reason is deemed facially invalid or pretextual. When the prosecutors' reasons fail, this
failure is complete and final.


       Moreover, the language concerning Batson challenges not being "a mere exercise
in thinking up any rational basis" confirms that the Miller-El Court was unequivocally
denouncing giving prosecutors' second-chance opportunities to provide race-neutral
reasons for striking a minority venire member. 545 U.S. at 252. This phrase emphasizes
that Batson's second-step exists for prosecutors to provide the actual reason why they are
striking the minority venire member. Clearly, a prosecutor's second, third, or fourth
attempts at coming up with a race-neutral reason for striking a minority venire member
would be nothing more than "a mere exercise in thinking up any rational basis." In
summary, despite the dissenting opinion's argument to the contrary, it is readily apparent
that the Miller-El Court held that prosecutors must stand or fall on the initial explanations
they provide for striking a minority venire member.




                                              38
       In regards to Taylor III, the dissent asserts that Taylor III is factually
distinguishable from this case because Taylor III involved a remand to the trial court and
this case does not involve a remand from an appellate court. The dissent is correct. In
Taylor, the substituted reason for striking the minority venire member was made by the
prosecutor on remand from the appellate court. In this case, the dissent correctly states
that no remand occurred here. Nevertheless, this is a distinction without a difference.
Whether the substituted reasons for striking a minority venire member occurs on remand
from an appellate court or while the trial is still in process is irrelevant.


       Indeed, the moment a prosecutor offers a reason as race-neutral, the prosecutor's
role in Batson's three-step analysis is complete. It is then up to the trial court to rule on
the plausibility of the reason given by the prosecutor. If for some reason the prosecutor's
reason turns out to be facially invalid or is deemed pretextual, the prosecutor does not get
a do-over at providing another reason for the strike. Then, at the moment of the trial
court's ruling, the trial court's role in the Batson three-step analysis is complete. Thus, if
the prosecutor provides a substitute reason and the trial court accepts that substitute
reason as race-neutral, it does not matter if the prosecutor offered the substitute reason
seconds after the trial court's ruling rejecting the initial reason, after jury selection but
before trial started, after trial started but before a verdict, or after remand from appeal. In
each circumstance, the result is the same—a violation of both defendant's and minority
venire member's rights under the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution. Here, as in Taylor III, when the violation became
apparent, the violation could not be corrected because the jury had already been
impaneled without the minority venire member who was improperly struck. Thus, as the
trial court implicitly conceded and succinctly stated, when denying Gonzalez-Sandoval's
motion for new trial, the only way "to have corrected the error" would have been to
impanel "a whole new panel." On this record, the trial court's statement was correct.




                                               39
The Method Used by the State to Strike T.R. as a Venire Member Raises Serious
Questions of Procedural Fairness


       Last, we must note that the record reveals that the State used an investigator to
look into the background of the minority venire member, T.R. The record does not
indicate whether only T.R.'s background was investigated, or whether the backgrounds of
only minority venire members were investigated, or whether the backgrounds of all
venire members—both minority and nonminority members—were investigated. This is
an important question. For example, if the backgrounds of only minority venire members
were investigated, there would be no way to compare the similarities and differences
between the two groups: minority and nonminority. This means that minority venire
members could be excluded for something in their background which also existed in the
background of nonminority venire members. This situation would obviously be unfair
and a denial of equal protection to defendants and to minority venire members.


       Next, if the State has information about a minority venire member and
contemplates using a peremptory strike against that venire member based on that
information, it should challenge the minority venire member with that information during
voir dire absent a compelling reason not to do so. Had the State challenged T.R. with its
misinformation about T.R.—concerning Reasons #2 and #3—it would have learned that
those reasons were invalid. Moreover, even if Reasons #2 and #3 were valid, it would
have allowed Gonzalez-Sandoval's attorney to ask nonminority venire members, who did
not initially respond to the State's general voir dire questions either, whether they had a
similar experience as T.R. regarding the State's voir dire questions. Moreover, if they did
and the State tried to exclude T.R. from the jury, Gonzalez-Sandoval's attorney could
argue that the State's reasons were pretextual because nonminority venire members had a
similar experience as T.R. and they were not excluded.




                                             40
       Turning once again to the State's voir dire questions, which the State maintains
that T.R. should have responded to, they read as follows: "Has anybody been a witness,
just in any kind of case, where you had to answer questions to a law enforcement officer?
Anyone witness, answered questions, been involved in a case as a potential witness?"
First, we note the State's questions were very general and not clearly articulated. For
example: Did the State mean that venire members were only required to respond (1) if
they had been involved in a case where they were questioned by law enforcement or (2) if
they had been a witness in case as a potential witness (3) or both. Moreover, what kind of
case is the State talking about: civil, criminal, or traffic to name a few?


       The dissent notes that five other venire members responded to Miser's general voir
dire question about being a witness. The dissent goes on to say that T.R. did not respond
to this general question. Although five venire members responded to these question, two
of the venire members simply said "yes," which Miser accepted without asking in what
capacity they had been witnesses, one venire member seemed to be saying that he had
been a witness in some capacity in a vandalism case, one venire member stated "I
testified in a criminal case," and the remaining venire member stated "I've answered
question for an investigation." Outside of the venire member who had testified in a
criminal case, the venire members' responses were broad and ambiguous. Those broad
and ambiguous responses stress the broad and ambiguous nature of Miser's questions in
the first place.


       Furthermore, caselaw is full of examples of voir dire questions that courts have
determined to be ambiguous or to be of such a poor quality as to not require a response
from jurors who are later claimed to have withheld vital information. Here, even if
Reasons #2 and #3 were valid, the State's failure to articulate its general questions in a
clear and precise way would have likely caused T.R. or any other venire member not to
respond to the State's questions. See, for example, United States v. Estey, 595 F.3d 836,
841 (8th Cir.), cert. denied 560 U.S. 933 (2010) (A "defendant is not entitled to a new

                                             41
trial when any problem with a juror's answer during voir dire was caused by the poor
quality of the question asked."). Likewise, the State should not be allowed to exclude a
minority venire member from a jury for failing to respond to such poorly worded
questions.


       Last, we note that the dissent neglects to acknowledge that of the three reasons the
State used to strike T.R., two of those reasons (Reasons #2 and #3) turned out to be
incorrect. This leads us to ask the following question: How do we know that the State's
substituted Reason #4 was not incorrect, also? The only answer is that we will never
know because the State never challenged T.R. during voir dire with any information
about being a witness. And obviously, if Reason #4 was also incorrect, T.R. would have
never had a reason to respond to Miser's general question about being a witness. This
vividly illustrates the problem that results when the State has bogus information about a
venire member and refuses to challenge the venire member with this information during
voir dire.


       In conclusion, if the information that the State had about T.R. was not significant
enough for the State to ask about it during voir dire, the State had no basis for later
arguing that she should be excluded from the jury because she failed to respond to the
State's faulty information. Moreover, venire members are not required to volunteer
information that is not specifically requested. As a result, a party has no basis to complain
if a venire member fails to disclose information about a matter to which the party
neglects to specifically inquire. See, for example, Lopez v. State, 105 Nev. 68, 89-90, 769
P.2d 1276 (1989) (Defendant was not entitled to a new trial based on the failure of two
jurors to disclose that they had been victims of sexual abuse in response to the court's
inquiry regarding whether any juror had been a victim of any crime because counsel
could have followed up by asking specific questions about sexual abuse.). Here, the State
failed to confront T.R. with any of the faulty information it had about her. Instead, the
State chose to ambush T.R. with this faulty information after voir dire without ever

                                              42
giving her an opportunity to correct this misinformation. Thus, the State's failure in
challenging T.R. with this information should have resulted in a waiver. In other words,
the State should have been precluded from using this information to exclude T.R. from
the jury.


Did the Trial Court Err by Admitting Gonzalez-Sandoval's Alleged Prior Sexual
Misconduct With D.H. Into Evidence Under K.S.A. 2015 Supp. 60-455(d)?


       Next, Gonzalez-Sandoval argues that the trial court erred when it allowed D.H. to
testify at trial that he touched her inappropriately on two or three other occasions.
Gonzalez-Sandoval does not contest that those alleged touches constituted prior sexual
misconduct evidence under K.S.A. 2015 Supp. 60-455(d). Instead, Gonzalez-Sandoval
argues that any probative value of the evidence was outweighed by the undue prejudice
of the evidence given that "[t]here was no evidence when the prior act[s] had occurred,
who was around when the prior act[s] occurred, or any other circumstances surrounding
the act[s]." The State counters that the trial court properly admitted the evidence because
it was relevant in establishing Gonzalez-Sandoval's propensity to commit the crime
charged as well as absence of mistake.


Standard of Review


       Appellate courts review a trial court's decision to admit evidence in two steps:


       "First, the appellate court determines whether the evidence is relevant. [Citation omitted.]
       Evidence is relevant if it has a 'tendency in reason to prove any material fact.' K.S.A. 60-
       401(b). 'Relevance is established by a material or logical connection between the asserted
       facts and the inference or result they are intended to establish.' [Citation omitted.]
       Relevant evidence is both: (1) material, i.e. the fact has a legitimate and effective bearing
       on the decision of the case and is in dispute; and (2) probative, i.e. has '"any tendency in



                                                    43
       reason to prove"' the fact. [Citation omitted.] Materiality is reviewed de novo, while
       probativity is reviewed for abuse of discretion. [Citation omitted.]


               "If the evidence is relevant, the court next applies the statutory provisions
       governing admission and exclusion of evidence. [Citation omitted.] 'These rules are
       applied either as a matter of law or in the exercise of the district court's discretion,
       depending on the rule in question.' [Citation omitted.] Whether the probative value of
       otherwise relevant evidence outweighs its potential for undue prejudice is reviewed for
       abuse of discretion. [Citations omitted.]" State v. Bowen, 299 Kan. 339, 348, 323 P.3d
       853 (2014).


An abuse of discretion occurs when the trial court makes an error of law, an error of fact,
or reaches a decision that no reasonable person would reach. Bowen, 299 Kan. at 348.


       Moreover, while debate exists, for the time being our Supreme Court has
continued to require the trial court to balance the probative value of the evidence in
question against the prejudicial value of the evidence in question when considering
evidence admitted under K.S.A. 2015 Supp. 60-455(d). See State v. Prine, 297 Kan. 460,
472, 303 P.3d 662 (2013) (holding that the court would "leave the question of whether
the necessity of this weighing persists under new [K.S.A. 60-455(d)] to another day");
see also Bowen, 299 Kan. at 350 (where our Supreme Court engaged in the balancing test
when analyzing the admission of evidence under new K.S.A. 60-455[d]).


K.S.A. 60-455


       In 2009, the Kansas Legislature amended K.S.A. 60-455. K.S.A. 2015 Supp. 60-
455(d) now provides in relevant part:


       "Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in
       which the defendant is accused of a sex offense under . . . articles 54, 55 or 56 of chapter
       21 of the Kansas Statutes Annotated, or K.S.A. 2015 Supp. 21-6104, 21-6325, 21-6326 or

                                                     44
       21-6419 through 21-6422, and amendments thereto, evidence of the defendant's
       commission of another act or offense of sexual misconduct is admissible, and may be
       considered for its bearing on any matter to which it is relevant and probative."
       (Emphasis added.)


Propensity


       Gonzalez-Sandoval was charged with aggravated indecent liberties in violation of
K.S.A. 2015 Supp. 21-5506(b)(3)(A). Therefore, he constituted a defendant accused of a
sex offense which fell under K.S.A. 2015 Supp. 60-455(d).


       When analyzing K.S.A. 2015 Supp. 60-455(d), our Supreme Court explained that
the broad language in the provision allows the State to admit evidence of the defendant's
prior sexual misconduct to show that defendant's propensity to commit the crime charged.
Prine, 297 Kan. at 479. Our Supreme has explained that "[i]n sex offense cases,
propensity evidence is material, i.e., has a 'legitimate and effective bearing' on
defendants' guilt." Bowen, 299 Kan. at 349. Clearly, evidence that Gonzalez-Sandoval
touched D.H. on earlier occasions supports that he touched her on the occasion charged.
Thus, the evidence of Gonzalez-Sandoval's alleged prior sexual misconduct helped
establish that Gonzalez-Sandoval had a propensity for touching D.H. inappropriately.
Because this evidence spoke to Gonzalez-Sandoval's propensity to commit the crime
charged, the evidence was material.


       Additionally, despite Gonzalez-Sandoval's complaints about D.H.'s allegations of
prior sexual misconduct not being probative because the allegations of prior sexual
misconduct differed too much from the crime for which he was charged, D.H.'s
allegations were probative. Regarding the instances of alleged prior sexual misconduct,
D.H. asserted that before the final instance of inappropriate touching, Gonzalez-Sandoval
put his hand down her swim-shorts and touched her private parts on two or three


                                                   45
occasions while playing shark. D.H. asserted that during those two or three prior
occasions, Gonzalez-Sandoval kept his hand outside of her underwear, as opposed to
underneath her underwear, and kept his hand down her swim-shorts for a short time, as
opposed to multiple minutes. Thus, Gonzalez-Sandoval is correct in that the alleged prior
instances of sexual misconduct differ in some respects from the crime for which he is
charged. Nevertheless, those alleged prior instances of sexual misconduct occurred at the
same place, during the same game, and against the same victim. Consequently, D.H.'s
allegations were highly probative because her allegations tended to establish that
Gonzalez-Sandoval had committed the crime charged.


       Last, the trial court did not abuse its discretion when it found that the probative
value of the evidence outweighed the threat of prejudice. When evaluating whether the
probative value of propensity evidence is outweighed by the potential for prejudice,
appellate courts must consider the following:


       "'1) how clearly the prior act has been proved; 2) how probative the evidence is of the
       material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
       whether the government can avail itself of any less prejudicial evidence.'" Bowen, 299
       Kan. at 350 (quoting United States v. Benally, 500 F.3d 1085, 1090-91 [10th Cir. 2007]).


In his brief, Gonzalez-Sandoval seems to focus on the first factor listed—how clearly the
alleged prior acts of sexual misconduct had been proved. Gonzalez-Sandoval insinuates
that if those alleged prior acts of sexual misconduct occurred, D.H. would have told
someone about the misconduct when the misconduct occurred. Gonzalez-Sandoval
emphasizes that the only evidence supporting that those alleged prior acts of sexual
misconduct occurred was D.H.'s testimony. Yet, D.H. could not remember certain
important facts about those prior acts, like when they occurred and who was present.




                                                    46
       Still, as the State argues in its brief, D.H. remembered other things about those
alleged prior acts, like that they occurred at the pool, they occurred while playing shark,
and Gonzalez-Sandoval committed them by putting his hand under her swim-shorts but
over her underwear. Thus, although D.H. could not recall some important details
regarding the alleged prior sexual misconduct, she could remember some details clearly.
Moreover, in the past, our Supreme Court has allowed evidence of prior uncharged
sexual misconduct into evidence based on the alleged victim's statements alone.


       For instance, in Prine, the trial court allowed evidence of Prine's prior sexual
misconduct with J.S. and S.M. based on their statements that he had sexually abused
them in the past. Although the trial court admitted this evidence under the wrong basis,
the Prine court held this error was harmless because J.S.'s and S.M.'s allegations could
have come into evidence under K.S.A. 2009 Supp. 60-455(d) to show Prine's propensity
to commit sex crimes against children. 297 Kan. at 481. Our Supreme Court came to the
same conclusion regarding the admission of prior uncharged sexual misconduct in State
v. Spear, 297 Kan. 780, 788-89, 304 P.3d 1246 (2013); a case where the trial court
allowed the victim to testify about prior uncharged sexual conduct that she alleged Spear
committed against her.


       In short, given that D.H. could provide some details about the alleged prior sexual
misconduct and that our Supreme Court has concluded similar evidence of prior sexual
misconduct was admissible for propensity purposes under K.S.A. 2015 Supp. 60-455(d),
the trial court acted reasonably when it found that D.H.'s statements provided sufficient
evidence to support the allegations of prior sexual misconduct. In turn, the trial court did
not abuse its discretion by rejecting Gonzalez-Sandoval's argument that the vagueness of
D.H.'s allegations of prior sexual misconduct was so prejudicial as to outweigh the
probative value of the propensity evidence.




                                              47
Absence of Mistake


       As a final note, the trial court found that the allegations of Gonzalez-Sandoval's
alleged prior sexual misconduct were admissible under K.S.A. 2015 Supp. 60-455 as
evidence of propensity and evidence of absence of mistake. In doing so, the trial court
merely stated that it was allowing the evidence in under K.S.A. 60-455, without any
particular reference to a subsection of the statute.


       K.S.A. 2015 Supp. 60-455(b) states: "Subject to K.S.A. 60-445 and 60-448, and
amendments thereto, such evidence is admissible when relevant to prove some other
material fact including motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident." In its brief, the State urges this court to find that the
trial court properly admitted the evidence of prior sexual misconduct as evidence
supporting that Gonzalez-Sandoval could not have mistakenly placed his hand
underneath D.H.'s underwear for the crime charged. Gonzalez-Sandoval mentions that the
trial court allowed the evidence to establish absence of mistake in passing. He otherwise
includes no argument on the appropriateness of this finding. Issues not briefed are
deemed waived and abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065
(2016).


       All the same, we cannot endorse the State's absence of mistake argument. For
evidence to be relevant in establishing absence of mistake, the defendant must allege that
whatever happened, happened because of a mistake. Prine, 297 Kan. at 464. Mistake
must be part of the defendant's defense. Prine, 297 Kan. at 464. The State asserts that in
his interview with Detective Holmes, Gonzalez-Sandoval told Detective Holmes that if
he touched D.H. inappropriately, it happened because of a mistake. The State asserts that
D.H.'s statement to Detective Holmes allowed the admission of the evidence to establish
absence of mistake.


                                              48
       Yet, this is plainly incorrect for two reasons. First, Gonzalez-Sandoval's theory at
trial was not that he put his hand into D.H.'s swim-shorts and underneath her underwear
by mistake. To the contrary, his theory was that he did not touch D.H. inappropriately
ever. As a result, regardless of what was said in the interview with Detective Holmes, the
trial court should not have allowed Gonzalez-Sandoval's alleged prior acts of sexual
misconduct into evidence to show absence of mistake.


       Second, the State has twisted Gonzalez-Sandoval's statement to Detective Holmes.
According to Detective Holmes, after he asked Gonzalez-Sandoval if he could have
touched D.H. on accident, Gonzalez-Sandoval told him that "if it would have happened, it
would have been an accident, but it hadn't happened." Therefore, Gonzalez-Sandoval did
not come up with some story about how he could have accidently touched D.H. Instead,
when Detective Holmes asked him a question about whether he could have touched D.H.
accidently, a question Detective Holmes even admitted was designed to get Gonzalez-
Sandoval to admit some guilt, Gonzalez-Sandoval stated that if anything happened "it
would have been an accident, but it hadn't happened." (Emphasis added.) As a result,
there was no basis for the State to argue that Gonzalez-Sandoval alleged mistake in the
interview.


Was Gonzalez-Sandoval's Conviction Supported by Sufficient Evidence?


       Next, Gonzalez-Sandoval argues that there was insufficient evidence to support
his conviction of aggravated indecent liberties with a child. Gonzalez-Sandoval
emphasizes the weaknesses in the State's evidence like the fact that D.H. did not
immediately tell anyone that he had touched her, the fact that D.H. made several
inconsistent statement, the fact that no other evidence supported D.H.'s allegations, and
the fact that J.G.'s and Sosa's testimony contradicted D.H.'s allegations. The State
responds that D.H.'s testimony alone was sufficient to support Gonzalez-Sandoval's
conviction.

                                             49
Standard of Review


       When a defendant challenges the sufficiency of the evidence, appellate courts
review all the evidence in the light most favorable to the State. State v. Laborde, 303
Kan. 1, 6, 360 P.3d 1080 (2015). Generally, appellate courts will not reweigh the
evidence or the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074
(2016). Appellate courts will uphold the defendant's conviction so long as a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. Laborde,
303 Kan. at 6. Appellate courts will reverse the defendant's conviction in only the rarest
cases. See Daws, 303 Kan. at 785. Moreover, the defendant's conviction may be upheld
even if it is supported by circumstantial evidence alone. State v. Logsdon, 304 Kan. 3, 25,
371 P.3d 836 (2016).


Sufficient Evidence Supported Gonzalez-Sandoval's Conviction


       Here, D.H. made inconsistent statements while testifying. For instance, at trial,
D.H. stated that Gonzalez-Sandoval touched her for "a couple of minutes" and then
decided that it must have been at least 5 minutes. Her father testified that D.H. told him
that Gonzalez-Sandoval had touched her for 3 minutes, while her mother testified that
D.H. told her that Gonzalez-Sandoval had touched her for 3 to 5 minutes. Moreover,
some of D.H.'s testimony seemed implausible. For example, it seems unlikely that an
adult male would be able to place his hand down a young girl's swim-shorts in the
shallow end of a public pool for 2, 3, or 5 minutes without being noticed by his son or the
lifeguard. It also seems unlikely, if not impossible, that Gonzalez-Sandoval was able to
place his hand down D.H.'s swim-shorts without pulling up D.H.'s long t-shirt, as D.H.
testified.




                                             50
       Nonetheless, D.H. did testify that Gonzalez-Sandoval put his hand down her
swim-shorts and under her underwear while they were playing sharks. The jury was in
the position to assess D.H.'s demeanor and weigh whether D.H.'s statements seemed
credible. Given that the jury convicted Gonzalez-Sandoval, it is readily apparent that the
jury found D.H.'s testimony credible. One can only speculate that the jury determined
that D.H.'s inconsistent statements were based on the fact that she was a child, and
therefore, she likely had a weak grasp of time and may have forgotten some of the finer
details of what occurred. Additionally, as the State points out in its brief, J.G. testified
that there were times when Sosa would step out of the pool area to speak to another
lifeguard who was working the pool entrance. Thus, it was possible that Gonzalez-
Sandoval put his hand under D.H.'s swim-shorts while Sosa went to speak to the other
lifeguard. This would account for Sosa's testimony that she never witnessed Gonzalez-
Sandoval touch D.H. inappropriately.


       Because D.H. testified that Gonzalez-Sandoval placed his hand down her swim-
shorts and under her underwear while swimming at the pool, there was evidence
supporting that Gonzalez-Sandoval committed aggravated indecent liberties with D.H.
Based on our standard, in the light most favorable to the State, sufficient evidence
supported Gonzalez-Sandoval's conviction.


       Last, because we have granted a new trial on the Batson challenge, it is not
necessary for us to address whether the trial court erred in denying Gonzalez-Sandoval's
motion for new trial based on newly discovered evidence.


       Conviction reversed, sentence vacated, and case remanded for a new trial.


                                             ***




                                              51
       MALONE, C.J., dissenting: I respectfully dissent from the majority's conclusion
that the trial court committed reversible error in overruling Jose Alberto Gonzalez-
Sandoval's Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
Ed. 2d 69 (1986). Specifically, I believe that the majority's conclusion that the State
"must stand or fall on the initial reasons" it provides for striking a minority venire
member and that "the trial court is barred from considering" a substitute reason is an
incorrect statement of the law. Moreover, that is not what happened in Gonzalez-
Sandoval's case.


       Briefly summarized, the record establishes that when Gonzalez-Sandoval objected
to the State's peremptory challenge of T.R., the prosecutor explained that T.R. had failed
to respond to general questions about whether she had ever been involved as a witness in
prior cases even though the prosecutor was aware that T.R. had been involved as a
witness in two prior cases. One of the cases was referred to as the "Arzate case," while
the other case involved T.R.'s son-in-law being questioned about a cell phone. The
prosecutor also explained that T.R. avoided a lot of eye contact and she was looking
away a lot of times while the prospective jurors were being questioned.


       The trial court ruled that T.R.'s failure to maintain eye contact, standing alone,
would not be a sufficiently race-neutral basis to excuse her as a juror. However, the trial
court ruled that the fact that T.R. did not disclose that she had been questioned by the
police or involved with prior investigations, when apparently she had been involved as a
witness in prior cases, was a racially neutral response. Thus, the trial court allowed the
State's peremptory challenge over Gonzalez-Sandoval's objection.


       After the jury was selected and the parties returned from lunch, one of the
prosecutors asked for permission to make a record outside the presence of the jury. The
prosecutor explained that of the two prior cases she believed T.R. had been involved in as
a witness, one of the cases, referred to as the "Arzate case," did not actually involve T.R.

                                              52
However, the prosecutor explained that the information about the second case was
correct. After hearing this information, Gonzalez-Sandoval renewed his objection to the
peremptory challenge, but the trial court indicated its ruling would remain the same.


       Then, on the second day of trial, one of the prosecutors again asked for permission
to make a record outside the presence of the jury. The prosecutor explained, in the
interest of complete candor to the court, that she subsequently had learned that the
information about T.R. being involved as a witness in the cell phone case also was
mistaken. However, the prosecutor indicated that police records showed that T.R. had
been named as a witness in a 2011 investigation of several auto burglaries. Also, records
showed that T.R. had been listed as a victim on a criminal damage to property case that
was in the system. Thus, the prosecutor indicated that although she had been mistaken
about the facts of the specific cases, T.R. had been involved as a witness in prior cases
but she did not respond to general questions on the subject during voir dire.


       Gonzalez-Sandoval renewed his objection to the peremptory challenge. However,
the trial court ruled that the prosecutor's questions during jury selection were broad
enough to have required a response from T.R. about her involvement in the prior cases.
The trial court expressed appreciation for counsel's candor in correcting the record. The
trial court specifically found that the prosecutors had "honestly believed what they
represented to the court, it just turned out to be incorrect." Thus, the trial court overruled
Gonzalez-Sandoval's objection to the peremptory challenge.


       On appeal, Gonzalez-Sandoval argues that the trial court "erred by overruling [his]
Batson challenge to the State's peremptory challenge of [T.R.] when the State
acknowledged that the initial reason given was inaccurate." As the majority correctly
states, appellate courts engage in a three-step analysis when reviewing Batson challenges:




                                              53
                 "First, the party challenging the strike must make a prima facie showing that the
       other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
       plenary or unlimited review over this step. [Citation omitted.]
                 "Second, if a prima facie case is established, the burden shifts to the party
       exercising the strike to articulate a race-neutral reason for striking the prospective juror.
       This reason must be facially valid, but it does not need to be persuasive or plausible. The
       reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
       the explanation. The opponent of the strike continues to bear the burden of persuasion.
       [Citation omitted.]
                 "Third, the trial court must determine whether the objecting party has carried the
       burden of proving purposeful discrimination. This step hinges on credibility
       determinations. '[U]sually there is limited evidence on the issue, and the best evidence is
       often the demeanor of the party exercising the challenge. As such, it falls within the trial
       court's province to decide, and that decision is reviewed under an abuse of discretion
       standard.' [Citations omitted.]" State v. Kettler, 299 Kan. 448, 461-62, 325 P.3d 1075
       (2014).


       As a preliminary matter, the record reflects that the trial court skipped the first step
of the Batson analysis and immediately turned to the prosecutor's reasons for exercising a
peremptory challenge against T.R. as soon as Gonzalez-Sandoval objected. Gonzalez-
Sandoval made no attempt to make a prima facie showing that the prosecutor exercised a
peremptory challenge on the basis of race, and the district court made no finding that a
prima facie case had been established. Without a finding that Gonzalez-Sandoval had
made a prima facie showing that the peremptory challenge was based on race, the trial
court should not have required the prosecutor to offer a race-neutral reason for striking
T.R. Nevertheless, the State did not object to the trial court's procedure and makes no
argument on appeal that Gonzalez-Sandoval failed to make a prima facie case.


       Also, as a preliminary matter, the majority opinion states that the trial court found
that the prosecutor's explanation about T.R. avoiding eye contact was "a pretext." The
record does not support this statement. The trial court never used the word "pretext" and

                                                     54
never found the reason was pretextual. Such a finding would imply that the trial court
believed the prosecutor was providing a phony reason for striking T.R. when the real
reason was based on race. Instead, the court merely stated that T.R.'s failure to maintain
eye contact, standing alone, would not be a sufficient basis to excuse her as a juror.


       Turning to the issue before the court, the majority opinion relies on Miller-El v.
Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005), in finding that the trial
court committed reversible error in overruling Gonzalez-Sandoval's Batson challenge. In
that case, Miller-El and his accomplices allegedly shot and killed a hotel employee and
severely injured another during an attempted robbery. During jury selection at the capital
murder trial, the prosecution used peremptory strikes against 10 of the 11 black panelists.
Miller-El objected, claiming that the strikes were based on race, especially considering
the Dallas County District Attorney's office's history of excluding black jury members.
The trial court heard evidence of the alleged discriminatory practices but found no
symptomatic exclusion of blacks as a matter of policy. The trial court denied Miller-El's
request for a new jury, and the trial resulted in a conviction and death sentence for capital
murder.


       Miller-El subsequently filed a petition for habeas relief under 28 U.S.C. § 2254,
and he reasserted his claim about the jury selection. The district court and the 5th Circuit
Court of Appeals denied Miller-El any relief. On review by the United States Supreme
Court, the Court ultimately found, by clear and convincing evidence, five discriminatory
practices that supported Miller-El's claim: (1) The striking of black venire members for
reasons equally applicable to nonblack venire members who were selected, 545 U.S. at
252; (2) "shuffling" black venire members, 545 U.S. at 254-55; (3) using a graphic
description of the death penalty for black venire members but giving a bland description
to nonblack venire members, 545 U.S. at 255-56; (4) asking how low of a sentence was
appropriate for murder but only informing nonblack panelists of Texas' 5-year mandatory


                                             55
minimum, 545 U.S. at 261-63; and (5) the Dallas County DA's office's use of a jury
selection manual encouraging the exclusion of minority jurors. 545 U.S. at 266.


       As part of its extensive discussion of Miller-El's claim, the Court addressed the
fact that the lower courts had sustained the prosecution's actions as nondiscriminatory by
substituting their own race-neutral explanations for why the prosecution exercised its
peremptory challenges. The Court rejected this practice as improper and stated:


       "It is true that peremptories are often the subjects of instinct [citation omitted], and it can
       sometimes be hard to say what the reason is. But when illegitimate grounds like race are
       in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall
       on the plausibility of the reasons he gives. A Batson challenge does not call for a mere
       exercise in thinking up any rational basis. If the stated reason does not hold up, its
       pretextual significance does not fade because a trial judge, or an appeals court, can
       imagine a reason that might not have been shown up as false. The Court of Appeals'[]
       and the dissent's substitution of a reason for eliminating [the juror] does nothing to
       satisfy the prosecutors' burden of stating a racially neutral explanation for their own
       actions." (Emphasis added.) 545 U.S. at 252.


       Returning to Gonzalez-Sandoval's case, the majority states that Miller-El stands
for the proposition "that prosecutors do not get do-overs when the first reason they
provide for striking the minority venire member does not wash. In turn, this means that
trial courts should consider only the prosecutor's initial explanations for striking the
minority venire member." I believe the majority has read too much into the holding in
Miller-El. It is true that Miller-El states that a prosecutor must "stand or fall" on the
plausibility of the reasons he or she gives for striking a minority venire member. 545 U.S.
at 252. But the opinion does not say that a prosecutor must stand or fall on the plausibility
of the initial reasons he or she gives for striking a minority venire member. The opinion
in Miller-El does not prohibit a prosecutor from substituting a race-neutral reason for
striking a minority juror if the court finds that the prosecutor's initial reason is

                                                     56
insufficient. Instead, Miller-El holds that the trial court and the appellate courts cannot
substitute their own race-neutral reasons to justify the prosecutor's peremptory challenge
after the courts determine that the prosecutor's reasoning is not sufficiently race-neutral.


       The majority opinion also cites United States v. Taylor, 636 F.3d 901 (7th Cir.
2011). In that case, Taylor and his accomplice were tried for murder and armed robbery
for their involvement in the fatal shooting of a gun store owner in Indiana. Although it
was not clear which of the two defendants was the shooter, the government sought the
death penalty for both. During jury selection, the prosecution used peremptory strikes to
exclude five African-American members of the panel, including W. During voir dire, W.
had stated that she would be reluctant to impose the death penalty on a nonshooter, but
she also stated that she would follow the law as instructed. Following a Batson challenge,
the prosecutor explained that he removed W. because she was reluctant about the death
penalty. The district court denied the Batson challenge but did not make any specific
findings about the use of the peremptory strike against W. Both defendants were
convicted and sentenced to life imprisonment.


       The 7th Circuit Court of Appeals remanded for a hearing because the district court
provided no credibility determination as to why the prosecutor would excuse an African-
American juror based on her answers to the nonshooter question, but would not excuse a
similarly situated white juror for the same reason. 636 F.3d at 903. However, at the
remand hearing, the prosecutor advanced seven new reasons for why the government
used a peremptory strike against W., including some of W.'s answers on her juror
questionnaire and her statements in voir dire that she favored looser gun control laws.
The district court determined that some of the government's new reasons were race-
neutral and once again denied the Batson challenge.


       On a subsequent appeal, the 7th Circuit reversed the district court's ruling and held
that when a case is remanded for the district court to make specific findings on the

                                              57
prosecutor's use of a peremptory strike against a minority juror, the court should have
limited its inquiry to the reason the government originally had offered at trial for the
peremptory strike. Taylor, 636 F.3d at 905-06. Taylor is factually distinguishable from
Gonzalez-Sandoval's case. In Taylor, the appellate court remanded a case for the district
court to make credibility findings as to the specific reason the prosecutor had given for
striking a minority juror, but instead the court allowed the government to offer seven new
reasons for making the peremptory strike. Gonzalez-Sandoval's case does not involve a
remand from an appellate court, but instead the prosecutor came forward while the trial
was still in process with corrected information about one of her peremptory strikes.


       Returning to our case, the majority opinion concludes as a matter of law that the
State "must stand or fall on the initial reasons" it provides for striking a minority venire
member and that "the trial court is barred from considering" a substitute reason for
striking the minority venire member. I believe this is an incorrect statement of the law.
The trial court is not "barred from considering" a substitute reason for striking a minority
venire member if the court finds that the prosecutor's initial reason is insufficient, but the
fact that the prosecutor is offering a substitute reason is a circumstance that the trial court
should consider in assessing "the plausibility of that reason in light of all evidence with a
bearing on it." Miller-El, 545 U.S. at 252.


       In any event, Gonzalez-Sandoval's case does not present a situation where the
prosecutor offered a substitute reason for striking T.R. after the district court found that
the prosecutor's initial reasons were not race-neutral. The prosecutor initially stated that
she wanted to strike T.R. for two reasons. First, the prosecutor claimed that T.R. had been
involved as a witness in two prior cases, but she did not respond to general questions on
the subject during voir dire. Second, the prosecutor explained that T.R. avoided eye
contact while the prospective jurors were being questioned. The trial court found that the
second reason, standing alone, was not a sufficient reason to excuse T.R. from the jury,
but the first reason was a racially neutral response. Later, after the jury selection was

                                              58
completed, the prosecutor made a record that she had been mistaken about the facts of the
specific cases involving T.R. The prosecutor explained that T.R. had not been involved in
the two specific cases described to the court during jury selection, but police records
showed that T.R. had been involved as a witness in other cases, and T.R. failed to
disclose this information during general questioning by the prosecutor.


       Stated differently, the prosecutor's reasons for striking T.R. as a juror always
remained the same, i.e., T.R. did not respond to general questions about being involved as
a witness in prior cases and she avoided eye contact during jury selection. The only thing
that changed was that the prosecutor came forward with corrected information about the
facts of the prior cases involving T.R. The trial court found that the prosecutor's questions
during jury selection were broad enough to have required a response from T.R. about her
involvement in the prior cases. More importantly, the trial court specifically found that
the prosecutor had honestly believed the information she previously had represented to
the court. The trial court personally observed the prosecutor's demeanor during the
hearing on the Batson challenge involving T.R., including the prosecutor's subsequent
corrections of the record, and found no discriminatory intent or motive by the prosecutor.
The Kansas Supreme Court has indicated that an appellate court's review of the district
court's credibility determinations during a Batson challenge is "greatly deferential." State
v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).


       Next, the majority opinion asserts that "if the State has information about a
minority venire member and contemplates using a peremptory strike against that venire
member based on that information, it should challenge the minority venire member with
that information during voir dire absent a compelling reason not to do so." This assertion
makes sense to me, even though I would note that it is well beyond any argument that
Gonzalez-Sandoval made in his appellate brief. I agree with the majority that if the State
wanted to strike T.R. as a juror based on T.R.'s failure to disclose her involvement as a
witness in two prior cases, the prosecutor should have questioned T.R. about her

                                             59
involvement in the prior cases during voir dire. That way, Gonzalez-Sandoval's attorney
could have asked T.R. questions about the subject and the district court would have had a
better record upon which to rule on the Batson challenge. It seems fundamentally unfair
to allow the State to strike T.R. as a juror based on her failure to disclose her involvement
as a witness in prior cases when Gonzalez-Sandoval was not privy to that information
during voir dire and there is nothing in the record to support the accuracy of the
information. See State v. Collins, No. 96,393, 2007 WL 2239405, at *8-9 (Kan. App.)
(unpublished opinion), rev. denied 285 Kan. 1175 (2007) (Malone, J., dissenting in part).


       However, the Kansas Supreme Court previously has rejected a very similar
argument in State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996). In that case, the
defendant was charged with first-degree murder and objected to the State's peremptory
challenge of a minority juror. The State's race-neutral reason for striking the juror was
that he "lied on his juror questionnaire, answering no to the question of whether he or any
members of his family had been a party to any civil or criminal case." 259 Kan. at 705.
The prosecutor claimed that cases had been filed against a number of the juror's
immediate family, although none of this information had been elicited by the prosecutor
during voir dire. The district court found that the prosecutor's reason was race-neutral,
noting that both the juror and the juror's family were known to the court.


       On appeal, the defendant argued "that proof should have been brought out on the
record during voir dire" of the State's claimed race-neutral reason for striking the juror.
259 Kan. at 706. Our Supreme Court rejected that argument, noting the deference that is
generally given to the district court's determination of a Batson challenge. 259 Kan. at
706. The court further acknowledged that "the better practice in this case would be for the
district court to have made a record and substantiated the State's claim that the witness
made a false statement rather than simply relying on its own knowledge of the persons
involved." 259 Kan. at 706. Nonetheless, the court concluded that the district court's
failure to make a record of the State's race-neutral reason for striking the minority juror

                                             60
was not fatal to the peremptory challenge. 259 Kan. at 706. Thus, under Harris, it appears
that it is not an abuse of discretion for the district court to rely on facts not presented at
voir dire to determine whether the State's reason for striking a juror was race-neutral.


       Finally, the majority opinion asserts that the prosecutor in Gonzalez-Sandoval's
case failed to clearly articulate her questions about whether any of the prospective jurors
had ever been involved as a witness in prior cases and that T.R. should not have been
expected to respond "to such poorly worded questions." During voir dire, the prosecutor
asked the panel whether anyone had been involved as a witness in prior cases, including
the following question: "Has anybody been a witness, just in any kind of case where you
had to answer questions to a law enforcement officer?" T.R. did not respond to this
question, but five other prospective jurors provided information in response to the
question. Later, the trial court ruled that the prosecutor's questions during voir dire were
broad enough to have required a response from T.R. about her involvement in prior cases.


       Whether the prosecutor sufficiently articulated her questions in voir dire to have
required a response from the prospective jurors is not the key issue in resolving
Gonzalez-Sandoval's Batson challenge. The key issue is determining whether the
prosecutor engaged in purposeful discrimination by removing a prospective juror based
on race. Batson only requires the prosecutor to articulate a race-neutral reason for striking
a minority juror, it does not need to be persuasive or plausible. Kettler, 299 Kan. at 462.
Usually there is limited evidence for the trial court to determine whether the objecting
party has carried the burden of proving purposeful discrimination in a Batson challenge,
and the best evidence to resolve the issue is often the demeanor of the prosecutor. 299
Kan. at 462. Here, the trial court personally observed the prosecutor's demeanor during
the hearing on the Batson challenge, including the prosecutor's subsequent corrections of
the record, and found no discriminatory intent or motive by the prosecutor. An appellate
court should give great deference to this finding. Pham, 281 Kan. at 1237.


                                               61
       To sum up, I have concerns about how the trial court handled Gonzalez-Sandoval's
Batson challenge involving T.R. It is unfortunate that the prosecutor initially misstated
the specific facts concerning the prior cases involving T.R. It is also unfortunate that the
prosecutor did not correct this information until after the jury was selected. It also seems
unfair to me that the prosecutor was permitted to strike T.R. as a juror based on
information that was not brought out on the record during voir dire. The State should not
be allowed to use information to strike a minority venire member when the defendant
does not have access to the same information.


       But in the end, the prosecutor's reasons for striking T.R. as a juror always
remained the same: T.R. did not respond to general questions about being involved as a
witness in prior cases and she avoided eye contact during jury selection. Batson only
requires the prosecutor to articulate a race-neutral reason for striking a minority juror, it
does not need to be persuasive or plausible. Kettler, 299 Kan. at 462. More importantly,
the trial court personally observed the prosecutor's demeanor during the hearing on the
Batson challenge involving T.R. and found no discriminatory intent or motive by the
prosecutor. An appellate court should give great deference to this finding. Pham, 281
Kan. at 1237. Based on the record presented in this case and Kansas precedent governing
Batson challenges, I am unable to conclude that the trial court committed reversible error
in overruling Gonzalez-Sandoval's Batson challenge.




                                              62
