                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,351

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                         AARON R. ALGER,
                                            Appellant.


                                  MEMORANDUM OPINION

       Appeal from Montgomery District Court; JEFFREY D. GOSSARD, judge. Opinion filed March 6,
2020. Affirmed.


       Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.


       Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.


       PER CURIAM: Aaron R. Alger appeals the district court's summary denial of his
third K.S.A. 60-1507 motion as successive. Alger concedes that his motion is successive,
but he argues that the new medical evidence he presented established exceptional
circumstances warranting an evidentiary hearing. Finding no merit in Alger's claim, we
affirm the district court's judgment.


                                                FACTS

       The Kansas Supreme Court and a panel of this court detailed the facts underlying
Alger's conviction in State v. Alger, 282 Kan. 297, 298, 145 P.3d 12 (2006) (Alger I), and
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Alger v. State, No. 102,453, 2011 WL 767886 (Kan. App. 2011) (unpublished opinion)
(Alger II). We will provide only a summary of the facts here.


       On August 29, 2003, Alger and Alexis dropped Alexis' mother off at work around
12:30 p.m. Shortly after returning home, Alger discovered Alexis lying face down on the
floor. Emergency medical services arrived at 12:47 p.m. and took Alexis to the hospital.
Alexis died on September 1, 2003.


       In an interview with a police detective after receiving his Miranda rights, Alger
admitted that he had lost control with Alexis and that he had shaken her on at least two
previous occasions, the most recent occurring two days before she went to the hospital.
Alger stated that "'[he] was tired and cranky, didn't want to hear it, and [he] slammed her
on the potty and shook her.'" Alger I, 282 Kan. at 300.


       At trial, the testimony focused on Alexis' cause of death and when the fatal injury
occurred. The State's theory was that the injury occurred during the 15-20 minutes Alger
was alone with Alexis on August 29, 2003. The State's two experts testified that Alexis
suffered closed cranial injuries caused by shaking or impact with an external source. The
State's experts testified that right after Alexis suffered the injury, she would not have
been acting normal and would have exhibited symptoms ranging from irritability to
seizures and the onset of a semicomatose state.


       Alger's theory of the case was that the injury occurred before he was alone with
Alexis on August 29, 2003. Alger called a pediatric neurologist who testified that Alexis
sustained one or multiple blows to her head and that the onset of symptoms from such an
injury would not be immediate. He testified that the fatal injury occurred hours or days
before Alexis exhibited the symptoms.




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       Alger also testified at trial. He admitted that he had gotten rough with Alexis two
days before she was found unconscious, when she was screaming and ornery and
indicated that she needed to go to the bathroom. He said that he "'picked her up, shook
her a little bit—got the hair out of her face . . . and sat her down on the potty,'" but the
shaking was "'not harmful.'" 282 Kan. at 301.


       The jury found Alger guilty of felony murder and child abuse. The district court
vacated the child abuse conviction based on double jeopardy and sentenced Alger to life
in prison. The Kansas Supreme Court affirmed his conviction and issued the mandate in
November 2006. 282 Kan. at 306.


       In 2007, Alger filed his first K.S.A. 60-1507 motion, arguing that trial counsel was
ineffective for failing to call another expert witness and failing to object to the admission
of the recording of his third interview. The district court denied the motion and this court
affirmed. Alger II, 2011 WL 767886, at *8. This court found that counsel was not
ineffective in not calling the proposed expert because the expert's testimony—that the
injury occurred a few days before Alexis' time of death—was not inconsistent with the
State's theory. 2011 WL 767886, at *5. This court also found that it was reasonable trial
strategy for defense counsel to allow the interview to be admitted because counsel
wanted the jury to see that Alger never confessed to the crime even when pressed by the
police. 2011 WL 767886, at *6-8.


       According to Alger's current motion, in June 2016, Alger filed his second K.S.A.
60-1507 motion, arguing new evidence. The district court denied the motion as untimely.
Alger did not appeal the district court's ruling, and the motion does not appear in the
record. Thus, it is unknown what new evidence Alger cited in that motion.


       On April 28, 2017, Alger filed a motion in his criminal case entitled "Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to K.S.A. § 60-1507." The motion was

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once again based on new evidence. Alger's new evidence was an affidavit by Dr. Harry J.
Bonnell, a forensic pathologist in California, signed on September 21, 2015. In the
affidavit, Bonnell opined that some of the medical concepts cited by the State's experts at
Alger's trial have since been disproven. Alger argued that he showed exceptional
circumstances warranting an evidentiary hearing because this new evidence emerged "as
a legitimate position in the medical community . . . in the years following his trial and his
initial [K.S.A.] 60-1507 hearing." On June 29, 2017, the district court summarily denied
the motion as successive. Alger now appeals.


                                         ANALYSIS

       On appeal, Alger claims the district court erred by summarily denying his motion.
When a district court summarily denies a movant's K.S.A. 60-1507 motion without a
hearing, this court applies a de novo standard of review to determine whether the motion,
files, and records of the case conclusively show that the movant is entitled to no relief.
Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).


       Under K.S.A. 2019 Supp. 60-1507(c), a sentencing court need not entertain a
successive motion for similar relief on behalf of the same prisoner. The reason for this
limitation "is the necessity for some degree of finality in the criminal appeal process in
order to prevent endless piecemeal litigation." Toney v. State, 39 Kan. App. 2d 944, 948,
187 P.3d 122 (2008). The court presumes that the movant listed all grounds for relief in
his or her first K.S.A. 60-1507 motion, and a subsequent motion need not be considered
unless the movant establishes exceptional circumstances. Beauclair, 308 Kan. at 304.
"'Exceptional circumstances are unusual events or intervening changes in the law that
prevented the defendant [from] raising the issue in a preceding [K.S.A.] 60-1507 motion.'
[Citation omitted]." 308 Kan. at 304. Newly discovered evidence can constitute an
exceptional circumstance. Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009).



                                              4
       Alger argues that he showed exceptional circumstances because he established that
his new medical evidence was unavailable at the time of his trial and his original K.S.A.
60-1507 motion. Alger also argues that under Beauclair, he advanced a "gateway actual
innocence claim" and thus his motion cannot be procedurally barred. The State argues
that Bonnell's affidavit does not contain new evidence; it simply rehashes information
already presented to the jury at Alger's trial. The State also contends that Alger has not
established exceptional circumstances because he fails to address why he did not raise
this new evidence in his 2016 K.S.A. 60-1507 motion.


       Alger fails to show exceptional circumstances. As the State points out, Alger
erroneously focuses on how his new evidence was unavailable at the time of his trial and
his 2007 K.S.A. 60-1507 motion. But exceptional circumstances are unusual events that
prevented the movant "'[from] raising the issue in a preceding [K.S.A.] 60-1507 motion.'"
(Emphasis added.) Beauclair, 308 Kan. at 304. Bonnell signed his affidavit in September
2015, more than eight months before Alger filed his 2016 K.S.A. 60-1507 motion. Alger
does not explain why he did not raise this new evidence in his 2016 K.S.A. 60-1507
motion. Because Alger failed to show that exceptional circumstances prevented him from
raising the evidence in Bonnell's 2015 affidavit in his 2016 K.S.A. 60-1507 motion, he is
procedurally barred from raising it in his current motion. See State v. Kelly, 291 Kan.
868, 872-73, 248 P.3d 1282 (2011) (finding a movant's second K.S.A. 60-1507 motion
successive when movant failed to show exceptional circumstances prevented him from
raising a known claim in his first K.S.A. 60-1507 motion). Thus, the district court did not
err in summarily denying Alger's K.S.A. 60-1507 motion as successive.


       And contrary to Alger's contention, Beauclair does not hold that an actual
innocence claim always defeats the procedural bar on successive motions. Alger conflates
the exceptions to two separate procedural bars: the bar on untimely motions and the bar
on successive motions. In Beauclair, our Supreme Court first addressed the district
court's finding that Beauclair's motion was untimely and applied the manifest injustice

                                              5
analysis, which included the "gateway innocence" language Alger relies on here. 308
Kan. at 294-304. The court then addressed whether Beauclair's motion was successive
and applied the exceptional circumstances analysis. 308 Kan. at 304. These are two
separate procedural bars with two separate exceptions. In fact, even though the court
found that Beauclair might be able to establish manifest injustice preventing his motion
from being barred as untimely, it still had to address whether his motion was successive
because successiveness "poses an independent obstacle" to reaching the merits of the
motion. 308 Kan. at 303-04.


       Even so, we will assume that Alger is correct that an actual innocence claim can
establish exceptional circumstances in order to defeat the procedural bar on successive
motions. But even if we examine the substance of Bonnell's affidavit, we agree with the
State that it simply rehashes information already presented to the jury. As the State points
out, Alger's trial was essentially a "battle of the experts." No expert disputed that Alexis
died from head trauma, but the major point of contention was when that trauma occurred.
The State's experts opined that the trauma occurred immediately before Alexis was found
unconscious and that she would not have been acting normal or playful after she
sustained the trauma. Alger's expert witness was critical of the conclusions reached by
the State's witnesses, and he opined that the fatal injury occurred hours or days before
Alexis exhibited the symptoms.


       Likewise, Bonnell criticizes the conclusions of the State's expert witnesses on
whether Alexis' injury must have occurred immediately before she exhibited any
symptoms. But this is exactly the type of conflicting evidence that was already presented
to the jury, and the jury was aware that medical experts can disagree on the subject.
K.S.A. 2019 Supp. 60-1507(f)(2)(A) provides that for purposes of finding manifest
injustice, the term actual innocence "requires the prisoner to show it is more likely than
not that no reasonable juror would have convicted the prisoner in light of new evidence."


                                              6
Applying this standard, Bonnell's affidavit does not rise to the level of "new evidence"
sufficient to establish actual innocence that would lead to a new trial for Alger.


       And Bonnell's affidavit fails to establish actual innocence for an even more basic
reason. Alger testified at trial that he had gotten rough with Alexis two days before she
was found unconscious. He also admitted to the police detective that he was tired and
cranky, and he "'slammed her on the potty and shook her.'" Alger I, 282 Kan. at 300. So
even if the statements in Bonnell's affidavit are accepted as true, the trial evidence still
supports a conclusion that Alger's physical abuse of Alexis caused her to later lose
consciousness and led to her death.


       In sum, the district court summarily denied Alger's third K.S.A. 60-1507 motion
as being successive. For the reasons we have discussed, Alger fails to show exceptional
circumstances to defeat this procedural bar.


       Affirmed.


                                             ***
       ATCHESON, J., concurring: I concur in the result and, therefore, join in denying
Aaron R. Alger relief based on the habeas corpus motion in front of us. The motion is
both successive and untimely under K.S.A. 2019 Supp. 60-1507. The motion plainly can
be denied because the evidence Alger has presented fails to establish a colorable claim of
actual innocence excusing those procedural bars. I would do so for that reason alone.


       As the majority explains, Alger presented an affidavit from Dr. Harry J. Bonnell, a
forensic pathologist, that disputes some of the medical theories and conclusions the
State's expert witnesses presented at Alger's trial in 2004 regarding the mechanics of the
fatal injury to the two-year-old victim—primarily that the physical injury must have been
inflicted nearly contemporaneously with the manifestation of symptoms. Dr. Bonnell

                                               7
stated that he and others in the field no longer view those theories and conclusions as
accepted medical principles. His assertions call into question the medical community's
current acceptance of the premises behind the testimony from the State's experts.
Assuming the accuracy of Dr. Bonnell's representations, the change in conventional
medical understandings about these sorts of injuries does entail new information
unavailable in 2004.


       In this case, however, Dr. Bonnell's opinion does virtually nothing to support
Alger's gateway claim that he is actually innocent—the claim he must advance to avoid
the procedural bars of untimeliness and successiveness. In his affidavit, Dr. Bonnell does
not question the testimony of the medical expert Alger called during the trial. Alger's
expert testified that the injury could have been inflicted some time—hours or even
days—before the victim showed any symptoms. Alger testified in his own defense and
acknowledged that he had shaken the child when he lost patience with her two days
before she lapsed into unconsciousness and five days before she died. The testimony
paralleled a videotaped statement Alger gave a pair of detectives in which he admitted
shaking and slamming the victim several days before she died. The jury watched the
video during the trial.


       In short, evidence presented during the trial, primarily the defense expert's
testimony combined with Alger's accounts of his own conduct toward the victim,
supports the jury verdicts notwithstanding Dr. Bonnell's affidavit and its implication
Alger might be actually innocent. Indeed, that trial evidence conforms to what Dr.
Bonnell represents to be the now widely accepted medical understandings about abusive
head trauma. The district court, therefore, reached the right result in denying the 60-1507
motion without a hearing, and the majority similarly reaches the right result in affirming
that ruling.




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       I do not, however, join in any suggestion that a claim of actual innocence
sufficiently supported with competent evidence may be summarily dismissed simply
because it has been presented in a successive or untimely 60-1507 motion. Under K.S.A.
2019 Supp. 60-1507(f)(2)(A), a "colorable claim" of actual innocence constitutes
"manifest injustice" excusing the one-year time limitation for filing a habeas corpus
motion. And a credible claim of actual innocence would present an exceptional
circumstance permitting a successive 60-1507 motion. See Beauclair v. State, 308 Kan.
284, 304-05, 419 P.3d 1180 (2018). That showing would require the district court to hold
an evidentiary hearing on the issue of actual innocence, as a gateway to considering the
underlying claims for relief on their merits. 308 Kan. at 305. Nor do I endorse the idea
that a claim of actual innocence backed with credible evidence may be summarily
rejected simply because it could have been presented in an earlier 60-1507 motion.




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