                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,506

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                  v.

                                    MELVIN LASHAWN TOLIVER,
                                           Appellant.


                                    MEMORANDUM OPINION


        Appeal from Riley District Court; GRANT D. BANNISTER, judge. Opinion filed February 21,
2020. Affirmed.


        Brenda M. Jordan, of Brenda Jordan Law Office LLC, of Manhattan, for appellant.


        Kendra Lewison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before WARNER, P.J., POWELL, J., and LAHEY, S.J.


        PER CURIAM: Melvin Lashawn Toliver was convicted of stalking but was
acquitted of sexual battery for events occurring in May 2018. In this appeal, Toliver
claims numerous trial errors denied him a fair trial, and he seeks reversal of his
conviction. After a careful review of the record, we conclude that Toliver's challenges do
not warrant reversal, and we affirm his conviction and sentence.




                                                   1
                        FACTUAL AND PROCEDURAL BACKGROUND


       From December 2017 until May 2018, K.M. lived on Fremont Street in
Manhattan, Kansas. Starting in March 2018, Toliver began showing up at K.M.'s door.
The first time, Toliver asked for someone named "Mario." The second and third time,
Toliver asked for K.M.'s short-term roommate, Henry "Goldie" Jones. The first time
Toliver asked for Jones, Jones was not at the residence, and K.M. told Toliver not to
return. Nevertheless, Toliver continued to show up, once when Jones was at the Fremont
residence and on several occasions after Jones moved out.


       Most of the incidents fit a pattern. K.M. worked as a server at a local bar. After the
bar closed at 2 a.m., K.M. would sometimes host people at her Fremont residence, and
Toliver would appear during that time. If K.M.'s guests were still at her residence, K.M.
would answer the door; if she was alone, however, she would not. K.M. moved to a new
residence on North 11th Street in Manhattan in May 2018, but Toliver appeared there as
well. K.M.'s threat to call the police did not dissuade Toliver from coming to K.M.'s
residence. In total, K.M. estimated that Toliver came to her residence six or eight times.


       On May 4, 2018, S.H., K.M.'s girlfriend, was leaving a Manhattan bar with her
friends around closing time. While S.H. was waiting with her friends for their ride to
arrive, Toliver approached her from behind. Toliver asked S.H. if she was "interested in
females" and "liked girls" and asked S.H. to go home with him. S.H. turned away but
soon felt Toliver press his crouch against her thigh. S.H. quickly left the area after her
friends' ride arrived and, upon encountering police officers nearby, asked the officers to
walk her to her car. S.H. mentioned the encounter to the officers but did not ask them to
make a report concerning the incident.


       Two days later, in the early hours of May 6, 2018, K.M. walked home to her 11th
Street residence following her night shift at the bar. Shortly after arriving at home, K.M.'s


                                              2
dog started barking at the bedroom window. When K.M. pulled back the curtains, she
saw Toliver standing outside her apartment in the grass and looking at her through the
window. Afraid, K.M. called S.H. and asked her to come over.


       Ten minutes later, S.H. arrived at K.M.'s residence and recognized Toliver from
the incident two nights earlier. As S.H. entered K.M.'s residence, Toliver yelled to S.H.,
"Hey! Hey, I know you've seen me. Hey, come talk to me. I know you can hear me."
However, S.H. did not stop or talk to Toliver. Instead, S.H. entered K.M.'s residence, and
together they called the police.


       Toliver was charged with stalking K.M. and sexual battery for the incident
involving S.H., both class A person misdemeanors. Toliver moved to have the charges
severed, but the district court denied the motion. Following a jury trial, Toliver was found
guilty of stalking but not guilty of sexual battery. Toliver was sentenced to an underlying
sentence of 12 months, but, after spending 4 days in the Riley County Jail, he was placed
on probation for 12 months.


       Toliver timely appeals.


                                         ANALYSIS


       Toliver raises four issues on appeal. First, Toliver contends that the district court
abused its discretion when it denied his motion to sever the stalking and sexual battery
charges. Second, Toliver argues that the district court erred by admitting the statements
made by K.M. and S.H. to police officers because they were not relevant and were
unduly prejudicial. Third, Toliver argues that the State's decision not to have victims
from Toliver's prior crimes testify was tantamount to suppression of exculpatory
evidence. Fourth, Toliver contends that the cumulative effects of these errors resulted in
an unfair trial. We address each claim in order.


                                              3
I.     DID THE DISTRICT COURT ERR BY NOT SEVERING THE STALKING AND SEXUAL
       BATTERY CHARGES?


       Toliver argues that the stalking and sexual battery charges were not of the same or
similar character and were improperly joined for trial. He alleges the failure to sever was
prejudicial and resulted in jury confusion. The State argues the district court correctly
denied severance of the charges.


       The appellate court reviews potential joinder errors using a three-step analysis,
applying a different standard of review at each step:


       "'First, we consider whether K.S.A. 22-3203 permitted joinder. Under that statute,
       multiple complaints against a defendant can be tried together if the State could have
       brought the charges in a single complaint. K.S.A. 22-3202(1) spells out the three
       conditions permitting the joining of multiple crimes in a single complaint. Whether one
       of the conditions is satisfied is a fact-specific inquiry, and we review the district court's
       factual findings for substantial competent evidence and the legal conclusion that one of
       the conditions is met de novo.'


               "'Second, because K.S.A. 22-3202(1) provides that charges "may" be joined, a
       district court retains discretion to deny a joinder request even if a statutory condition is
       met. We review this decision for an abuse of discretion.'


               "'Finally, if an error occurred in the preceding steps, we determine whether the
       error resulted in prejudice, i.e., whether the error affected a party's substantial rights.
       K.S.A. 2012 Supp. 60-261.' [Citations omitted.]" State v. Ritz, 305 Kan. 956, 961, 389
       P.3d 969 (2017).


       We first engage in a fact-specific inquiry to determine if the two separate crimes
were properly joined in a single complaint. K.S.A. 22-3202(1) allows two or more crimes
to be charged in the same complaint if: (1) the charges are of "the same or similar


                                                      4
character"; (2) the charges are part of the "same act or transaction"; or (3) the charges
result from "two or more acts or transactions connected together or constituting parts of a
common scheme or plan." The district court found that the two alleged crimes were
properly joined because they were of the same or similar character. In so concluding, the
district court identified no less than 11 similarities between the alleged crimes.


       The district court noted that the victims were both female and of similar age; the
crimes occurred in the same area of Manhattan around the same time of night; the crimes
occurred within two days of each other; Toliver was identified by both victims as the
perpetrator; and the crimes were reported to the same police officer. Both crimes were
investigated as part of a single criminal investigation, carried the same gravity—both
class A misdemeanors, required trial by jury, and shared the same potential for
incarceration.


       Toliver argues that the similarities identified by the district court are mere
generalities, insufficient to warrant joinder under the statute. See State v. Barksdale, 266
Kan. 498, 508, 973 P.2d 165 (1999) (warning against "relying solely on generalities when
considering the propriety of joinder"). However, such similarities have routinely been
upheld as sufficient to permit joinder under K.S.A. 22-3202, particularly when the
alleged crimes have "multiple commonalities" and do not merely share the same
classification of one of the crimes charged. State v. Smith-Parker, 301 Kan. 132, 157, 340
P.3d 485 (2014). See, e.g., Ritz, 305 Kan. at 963-64 (finding two sets of crimes involving
fleeing law enforcement to be same or similar, despite factual differences in underlying
theft charges and addition of felony-murder charge in only one case, when there were
numerous factual similarities in how crimes were perpetrated, both sets of crimes
required trial by jury, and carried incarceration as punishment); State v. Cruz, 297 Kan.
1048, 1050-53, 1055-56, 307 P.3d 199 (2013) (finding two murder charges to be same or
similar, despite crimes being committed 17 months apart, when, among other things,
crimes were committed at same time of night and in similar locations; defendant was


                                              5
identified as perpetrator in both incidents; and same witnesses would be called at trial);
State v. Gihring, No. 118,234, 2019 WL 1868364, at *7 (Kan. App. 2019) (unpublished
opinion) (finding two rape crimes to be same or similar when, among other things,
victims were approximately same age and both identified defendant as perpetrator; and
crimes were of same severity level, occurred in same jurisdiction, were scheduled for jury
trial, and carried same punishment—incarceration).


       As those cases demonstrate, "[w]hen all of the offenses are of the same general
character, require the same mode of trial and the same kind of evidence, and occur in the
same jurisdiction," the separate charges may be properly consolidated under K.S.A. 22-
3202(1). State v. Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994); see also Barksdale,
266 Kan. at 507 (noting similarity of punishments is another factor to consider when
considering crimes to be "of the same or similar character"). This is not an exacting
standard. Instead, our courts have noted that it is rare for appellate courts to overturn
convictions after a trial court denied severance and have even gone so far as holding that
"joinder of similar crimes is the rule and severance is the exception." State v. Bunyard,
281 Kan. 392, 402, 133 P.3d 14 (2006), disapproved of on other grounds by State v.
Flynn, 299 Kan. 1052, 329 P.3d 429 (2014).


       We note Toliver does not dispute that the district court's factual findings were
supported by the record, and, after reviewing the record, we find there is substantial
competent evidence supporting those factual findings. We agree with the district court's
legal conclusion that the two crimes were of a same or similar character and therefore
properly joined under K.S.A. 22-3202(1).


       The second step of our analysis requires us to determine whether the district court
abused its discretion. On appeal from the denial of a motion to sever, the party claiming
error has the burden to establish a clear abuse of discretion. See Smith-Parker, 301 Kan.
at 161. In this regard, Toliver does not argue that the district court abused its discretion,


                                               6
and we see no basis for such an argument. To the contrary, we note that the district
court's ruling was thorough and well-supported, demonstrating a careful exercise of
discretion. Accordingly, we conclude that the district court did not abuse its discretion in
denying the motion to sever.


       Finally, if an error occurred in the preceding steps, the third step of analysis
requires that we consider whether the error resulted in prejudice. Ritz, 305 Kan. at 961;
see K.S.A. 2019 Supp. 60-261. Having found no error in the district court's denial of
severance of the charges, we need not proceed further. Nevertheless, we can additionally
conclude, with conviction, no prejudice actually occurred as a result of joinder of the
charges.


       In particular, we note that Toliver's primary contention—the jury would be
confused and unable to separately consider the charges as a result of joinder—was not
born out at trial. For one, the jury was properly instructed to consider each charge
"separately on the evidence and law applicable to it, uninfluenced by your decision as to
any other charge." Our courts have routinely held that such an instruction negates any
jury confusion or prejudicial effect of trying a person on multiple counts. See, e.g., Cruz,
297 Kan. at 1057-58; State v. Gaither, 283 Kan. 671, 687, 156 P.3d 602 (2007); Gihring,
2019 WL 1868364, at *11.


       Further, Toliver has not demonstrated any actual prejudice from the district court's
decision not to sever the charges, as demonstrated by the jury acquitting Toliver of the
sexual battery charge. Our courts have consistently held that such verdicts establish that
the jury was able to differentiate the evidence and not jumble the charges. See Cruz, 297
Kan. at 1058 ("Sometimes, we view acquittals as compelling evidence of a jury's ability
to differentiate between charges joined for trial."); Bunyard, 281 Kan. at 401-02 (finding
defendant's argument regarding "'jumbling defenses'" to be "inscrutable" when jury
acquitted defendant of two of three counts); Gihring, 2019 WL 1868364, at *11


                                              7
("Multiple cases have held that a split verdict is compelling evidence that the jury was
able to differentiate the evidence and not jumble the charges."); see also State v. Thomas,
No. 119,240, 2019 WL 3977820, at *5-6 (Kan. App. 2019) (unpublished opinion)
(finding similar jury instruction to have been "effective" when defendant was acquitted of
some charges).


       Finally, Toliver's related argument—the failure to sever resulted in the prejudicial
admission of other-crimes evidence under K.S.A. 60-455—has also been routinely
rejected by our courts. See Smith-Parker, 301 Kan. at 161; Gaither, 283 Kan. at 688;
Barksdale, 266 Kan. at 510; Gihring, 2019 WL 1868364, at *11-12. Instead, "'Kansas
case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not
dependent upon the other crimes being joined meeting the admissibility test set forth in
K.S.A. 60-455.'" Smith-Parker, 301 Kan. at 161; Gaither, 283 Kan. at 688; Barksdale,
266 Kan. at 510.


       In sum, based on the uncontested, substantial competent evidence, a reasonable
person could agree with the trial court that the two crimes were of the same or similar
character. Further, Toliver has failed to demonstrate that he was prejudiced as a result of
the district court's decision not to sever the charges. Accordingly, we conclude that the
district court did not err by denying severance of the sexual battery and stalking charges
against Toliver.


II.    DID THE DISTRICT COURT ERR BY ADMITTING STATEMENTS MADE BY K.M. AND
       S.H. TO THE POLICE OFFICER INVESTIGATING THE ALLEGED CRIMES?


       Toliver contends that several statements made by K.M. and S.H. to Officer Daniel
Todd, the officer investigating the alleged crimes, were improperly admitted, arguing the
statements were speculative and their admission resulted in unduly prejudicial attacks on
Toliver's character. A trial court's decision to admit or exclude evidence is assessed using


                                             8
several standards of review. State v. Page, 303 Kan. 548, 550, 363 P.3d 391 (2015); State
v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).


       As a general rule, all relevant evidence is admissible under K.S.A. 60-407(f).
Relevant evidence is defined as evidence having "any tendency in reason to prove any
material fact." K.S.A. 60-401(b). To be relevant, evidence must be both material and
probative. Page, 303 Kan. at 550-51. Evidence is material when the fact it supports "'is at
issue and is significant under the substantive law of the case.'" State v. McCormick, 305
Kan. 43, 47, 378 P.3d 543 (2016). Moreover, evidence is probative if it has any tendency
to prove any material fact. See State v. Dean, 310 Kan. 848, 862, 450 P.3d 819 (2019).
Our standard of review regarding whether evidence is material is de novo. On the other
hand, we review whether evidence is probative under an abuse of discretion standard.
McCormick, 305 Kan. at 47.


       Even if evidence is otherwise admissible, a district court may—in its discretion—
exclude such evidence under K.S.A. 60-445 when the evidence's probative value
outweighs its potential for producing undue prejudice. Lowrance, 298 Kan. at 291. The
appellate standard of review for balancing these competing interests is also abuse of
discretion, with the burden of proof resting on the party alleging such abuse. 298 Kan. at
291. In this regard, "Kansas law favors the admission of otherwise relevant evidence, and
the exclusion of relevant evidence is an extraordinary remedy that should be used
sparingly." State v. Seacat, 303 Kan. 622, 640, 366 P.3d 208 (2016).


       Because Toliver pleaded not guilty to the stalking and sexual battery charges,
every material fact alleged in the charges was at issue. See K.S.A. 22-3209(3); State v.
Donesay, 265 Kan. 60, 75, 959 P.2d 862 (1998). Thus, the evidence regarding Toliver's
identification as the perpetrator, Toliver's intent, and K.M. and S.H.'s state of mind was
material and probative.



                                             9
         Toliver filed a motion in limine challenging the admission of statements made by
K.M. and S.H. captured on body camera worn by the investigating officer during the
initial investigation. There are nine statements or comments which are challenged in
summary fashion as being "speculation, improper character evidence regarding the
Defendant and or improper prior acts" and as lacking foundation, probative value, and
relevance. Other than a citation to caselaw discussing and defining "relevant" evidence,
Toliver fails to cite any authority, rule of evidence, or caselaw in support of his position.
He does not analyze or explain how each individual challenged statement violates any
statute, rule of evidence, or caselaw authority. For example, Toliver challenges many of
the statements as "improper character evidence" without citing any authority or
explaining how the statements were "improper" or how he was unduly prejudiced by their
admission. We therefore find he has waived those challenges. See State v. Sprague, 303
Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to adequately brief an issue it
is deemed abandoned."). Nonetheless, because Toliver has properly challenged relevance,
we address most of the challenged statements below.


         Toliver challenges K.M.'s statement, "I think [Toliver] might have figured out my
schedule." The statement is probative to the stalking charge as it demonstrates that K.M.
believed Toliver was following her and she was afraid of Toliver. We find no abuse of
discretion by the district court in admitting the statement.


         Toliver next challenges K.M.'s statement, "He hangs around bars" as speculative.
However, as the district court noted, this statement is based on K.M.'s own observations
and is therefore not speculation. K.M. worked at a bar in Manhattan and had multiple
prior experiences with Toliver. And Toliver had the opportunity to cross-examine K.M.'s
testimony at trial. Accordingly, we find no abuse of discretion to admit this statement at
trial.




                                              10
       In the course of describing the events on the evening of the sexual battery, S.H.
made the unexpected decision to get into her friend's car out of fear for her safety, a fact
supported by other uncontested evidence. In her statements to the officer, S.H. stated,
"My friend looked at me cause he was like, you were going to go to your car." Although
the statement is of minimal evidentiary value when viewed in isolation, we conclude that
S.H.'s statement was probative as it explained and provided credibility regarding her fear
of Toliver and her actions immediately following the alleged sexual battery. Toliver was
acquitted of the sexual battery, and he does not explain how the admission of this
statement is unduly prejudicial. Accordingly, we find no abuse of discretion in the
admission of the statement.


       Finally, Toliver challenges a number of statements labelling him as a "predator."
On the recording, K.M. said, "Apparently this guy's a total predator [cross-talk] and he's
acting like a predator"; and "There's tons of creepy dudes that are super creepy, but, you
know, not follow you home creepy and knock on your door creepy. Like it's more than
just a coincidence to me." Toliver also objected to K.M.'s and S.H.'s characterizations of
Toliver as having a "very noticeable predator vibe," and K.M.'s statements that "women
get instincts," "[e]veryone in the world is creeped out by this dude," and "[p]eople were
choosing not to be close" to Toliver.


       Toliver argues these statements are not probative, are speculative, and are
improper character attacks. As noted above, Toliver did not provide any authority or
argument setting forth a legal theory on how or why the statements were improper
character attacks, so we decline to address this aspect of his objection. See Sprague, 303
Kan. at 425. These statements are probative in explaining the basis for K.M.'s and S.H.'s
fear of Toliver and, therefore, are relevant. We conclude the district court did not abuse
its discretion by allowing the admission of the challenged statements at trial.




                                             11
III.   WAS TOLIVER PREJUDICED BY THE STATE'S DECISION NOT TO CALL TOLIVER'S
       PRIOR VICTIMS TO TESTIFY AGAINST HIM?


       Prior to trial, the State sought, and was granted, the ability to call three witnesses
to testify regarding Toliver's prior conviction for residential burglary with the intent to
commit a sexual battery. In opposing the admission of his prior burglary offenses before
the district court, Toliver argued:


               "The State seeks to introduce the information from the 2009 offenses merely to
       inflame the jury, to prejudice the Defendant as to the current allegations. The only thing
       that will result is prejudicial effect absent similarity in the facts which do not exist.
               ....
               ". . . Presentation of the evidence regarding the 2009 matters is nothing but
       prejudicial." (Emphasis added.)


       The district court ruled it would permit admission of testimony from the prior
victims, the officer who investigated the prior crime, and a journal entry of the prior
conviction. At trial, however, the State ultimately decided not to present any of that
evidence. Toliver contends the State's decision resulted in an unfair trial and the State's
failure to disclose its decision not to use that evidence before trial amounted to
nondisclosure of exculpatory evidence. Toliver fails to adequately explain how evidence
which he described as "nothing but prejudicial" at the trial court level was transformed
into "exculpatory" evidence on appeal. In support of his contention Toliver points to State
v. Kelly, 216 Kan. 31, 33, 531 P.2d 60 (1975), which provides:


               "Prosecutors are under a positive duty, independent of court order, to disclose
       exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to
       disclose evidence, the evidence withheld held by the prosecution must be clearly and
       unquestionably exculpatory and the withholding of the evidence must be clearly
       prejudicial to the defendant."




                                                     12
       Toliver complains that he was prejudiced by the State's decision not to call the
witnesses to testify because his attorney had prepared anticipating the testimony of those
witnesses. He also contends it affected his decision whether to testify. However, Toliver
does not explain how or why his attorney would have prepared differently had the State
informed him, in advance, that it would not call Toliver's prior victims to testify. Further,
at trial, following disclosure by the State of its decision not to call Toliver's prior victims,
the district court offered Toliver yet another opportunity to testify on his own behalf,
which he declined. As such, we fail to see how the State's decision not to call the victim
witnesses affected Toliver's presentation of evidence in his defense. We find no merit in
Toliver's argument and no basis to conclude that the State suppressed exculpatory
evidence.


IV.    DID CUMULATIVE ERROR RESULT IN AN UNFAIR TRIAL?


       Based on our review of the record, we find no errors by the district court. Thus,
Toliver's cumulative error argument fails. See State v. Marshall, 303 Kan. 438, 451, 362
P.3d 587 (2015). Therefore, we affirm his conviction and sentence.


       Affirmed.




                                               13
