                                        No. 114,024

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                  MICHAEL W. RODMAN,
                                       Appellant.

                              SYLLABUS BY THE COURT


1.
       The Kansas best evidence rule, codified at K.S.A. 60-467(a), states that no
evidence other than the writing itself is admissible to prove the contents of the writing.
The rule applies to exclude secondary evidence only when the terms or contents of the
writing are at issue.


2.
       Evidentiary errors that do not affect a party's substantial rights are harmless and
may be disregarded pursuant to K.S.A. 2015 Supp. 60-261.


3.
       The best evidence rule is a preferential rule and not a strict exclusion rule.


4.
       Unless its prejudicial effect outweighs its probative value, 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
pursuant to K.S.A. 2015 Supp. 60-455(d).


                                              1
5.
        Even if evidence is both probative and material, the trial court must still determine
whether the probative value of the evidence outweighs its potential for producing undue
prejudice.


        Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed October 28,
2016. Affirmed.


        Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.


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


Before PIERRON, P.J., GREEN and BUSER, JJ.


        PIERRON, J.: A jury convicted Michael W. Rodman of one count of aggravated
indecent liberties with a child and imposed a hard 40 sentence. On appeal, Rodman
argues the district court erred under the best evidence rule by admitting a photocopy of a
drawing by the victim. Additionally, he contends the district court erred by admitting
evidence of a prior sexual offense, as it was irrelevant and highly prejudicial.


        In April 2014, the State charged Rodman with one count of aggravated indecent
liberties with a child, in violation of K.S.A. 2013 Supp. 21-5506(b)(3)(A), (c)(2)(C)(3),
for the lewd fondling or touching of a child under the age of 14 or the touching of the
defendant by a child. The complaint indicated the victim was 5 years old.


        Prior to trial, the State filed a motion to admit evidence of a prior sexual offense
conviction. Citing recent statutory and caselaw developments surrounding K.S.A. 2015
Supp. 60-455(d), the State argued that evidence of the prior sexual offense was
admissible as long as it was relevant and probative. It sought to admit the evidence to

                                                     2
demonstrate Rodman's propensity to commit sexual offenses against a young girl. The
State contended that Rodman was convicted of aggravated indecent liberties with a child
in 2002, based on his touching an 8-year-old girl's genitalia in a communal sauna room
and asking her to touch his genitals. A family member saw the touching and ended it. The
State contended the prior conviction was relevant and probative, as it was the same
offense as charged in the instant case and involved a highly similar set of facts.
Additionally, the State contended the evidence would not result in undue prejudice as it
would not produce the wrong result in light of all of the circumstances surrounding the
case.

        Before trial, defense counsel objected to the admission of Rodman's prior
aggravated indecencies with a child conviction. Counsel argued the evidence was neither
relevant nor probative and any possible probative value was substantially outweighed by
its likely prejudicial effect. Counsel argued the jury would likely convict Rodman based
solely on emotion and the prior conviction. The district court granted the State's motion
to admit the evidence of Rodman's prior sexual offense conviction, noting the language
of K.S.A. 2015 Supp. 60-455(d) and briefly referencing cases cited in the State's motion.
Based on the statutory language and caselaw "as it relates to the admission of prior
convictions for sex offenses in a criminal trial involving sex offenses," the court denied
the objection. While maintaining a continuing objection to admission of the evidence,
counsel agreed to allow the evidence to come in as a joint stipulation.


        At trial, A.L. testified she had a daughter, A.M.S., who was 6 years old at the time
of trial. Earlier the previous year, she lived with A.M.S and the child's father, M.S.
Rodman was a high school friend of M.S. and stayed with them on some weekends.
Rodman slept on a couch in the family room while the others had bedrooms of their own.
One weekend morning, A.L. saw A.M.S. standing in front of Rodman, who was lying
down on the couch. A.M.S.' pants and underpants were pulled down to just above her
knees. At first, A.L. thought her daughter may have just come out of the bathroom and

                                              3
forgotten to pull her clothes up. She checked the bathroom and the toilet seat was up,
indicating that a male had been the last person to use the bathroom. She did not want to
make a scene without more information, so she spoke to A.M.S. later that same day
without saying anything to Rodman.


       When A.L. asked A.M.S. about the incident, A.M.S. told her that "she touched
him there and it made it wake up," whereas, before she touched it, it was asleep. A.M.S.
did not say anything at the time about Rodman touching her, although she did say he
looked at her exposed genitalia and said it was supposed to be a secret. A.L. notified the
police, who interviewed her and A.M.S.


       On cross-examination, A.L. testified Rodman's head was up, not down, when she
saw him on the couch with A.M.S. in front of him. He had a blanket over him, and she
could not see A.M.S.'s hands. She testified A.M.S. was potty trained but still had
occasional accidents and walked in on people using the bathroom. A.M.S. never appeared
to be afraid of Rodman or seemed to avoid him. She would occasionally wake him up by
jumping on him. A.L. indicated she did not always get along with Rodman, as Rodman
believed she should spank A.M.S. more often.


       On redirect examination, A.L. stated that M.S. had described genital areas to
A.M.S. as "no-no" zones when talking about physical privacy. To her knowledge, A.M.S.
had never awakened Rodman or anyone else by grabbing their penis. On recross, A.L.
stated she had not checked the bathroom closest to the family room, but A.M.S. did not
use that bathroom.


       A.M.S. testified that she was 6 years old and she understood the difference
between telling the truth and not telling the truth. She stated she knew Rodman and she
last had seen him at M.S.'s house. She remembered speaking to a detective, but she could
not recall what she had spoken about with him. She recalled something happening the last

                                             4
time she saw Rodman that was supposed to be a secret, he told her it was a secret, but she
could not immediately remember what happened. She testified her genitals were her "no-
no zone" and Rodman had touched her there at some point with his hand inside her pants.
She also stated she had seen Rodman's "no-no zone" and she had touched it even though
she did not want to. She identified Rodman in the courtroom.


       M.S. testified he was A.M.S.'s father. A.M.S. had never tried to awaken him by
grabbing his penis or otherwise even tried to touch it. On cross-examination, M.S.
testified that A.M.S. had walked in on people in the bathroom every once in a while out
of curiosity, but he has instructed her about body privacy. He kept a close eye on her
around Rodman and had never witnessed any inappropriate behavior. A.M.S. used to
wake Rodman up and get under the covers with him, and she used to jump on everyone
but not to wake them up.


       Lara Rohlman testified she was a forensic nurse examiner and her responsibilities
included taking a history from potential patients and examining them. She interviewed
A.L. and A.M.S. on April 7, 2014, when A.M.S. was still 5 years old. She spoke first
with A.L., who described seeing A.M.S. in front of Rodman with her pants and
underpants down. A.L. told her A.M.S. indicated she had only touched Rodman "when
it's sleeping" and that she woke it up.


       Rohlman testified she interviewed A.M.S. separately, testing her anatomical
knowledge and learning she referred to genitalia as a "no-no zone." A.M.S. told Rohlman
she had touched Rodman's "no-no zone" when it was asleep, and Rohlman confirmed
with her that it was Rodman's penis. A.M.S. drew a picture of what the penis looked like
asleep and what it looked like awake. Rohlman described the two images—the sleeping
version was skinny and floppy at the end and pushed over, while the awake drawing was
large and round. The State showed Rohlman a photocopy of the drawing, and she
confirmed that it was a fair and accurate copy.

                                             5
       The State moved to admit the copy of the drawing, but defense counsel objected
under the best evidence rule and contended that the evidence was cumulative. The district
court immediately denied the cumulative objection. The State and Rohlman indicated the
original drawing was not in the courtroom. The State advised the court that Rohlman had
already testified the copy was a fair and accurate representation, and the court admitted
the copy of the drawing.


       Rohlman testified she asked A.M.S. about how she touched Rodman's penis and
she replied she did so with her fingers. A.M.S. picked up a small spoon and stroked it up
and down to demonstrate. Rohlman did not hand her the spoon, rather A.M.S. picked it
up on her own and spontaneously began the demonstration.


       On cross-examination, Rohlman testified that A.M.S. was not upset or crying
during the interview. She also verified she did not find any injury on A.M.S.


       Detective Aaron Kern testified A.L. told him she had found A.M.S. in front of
Rodman with her pants and underpants down and this was not normal behavior. She also
told him that A.M.S. had told her Rodman wanted to see her "no-no area" that day but he
had not touched it. A.M.S. also told A.L. that Rodman wanted her to "wake it up,"
referencing his "no-no."


       Det. Kern next interviewed A.M.S. Since she did not use advanced anatomy terms,
he adopted her terminology when speaking with her. He reviewed anatomy with her, and
she indicated that Rodman had touched her genitals with his finger. She also told him
Rodman asked her to touch his penis in order to "wake it up." She pushed it up and down
until it was awake, and it was straight when it was awake with a hole on top. The State
played a recording of the interview for the district court.


                                              6
       Det. Kern testified Rodman was nervous but cooperative at the start of his
interview. Rodman told him he arrived at M.S.'s house at about 2 a.m. and he played
video games with M.S. before going to sleep. Rodman first indicated that A.M.S. had
walked in on him in the bathroom and that they had seen one another's genitalia, which
they should not have. He was concerned M.S. would not understand why she would be in
the bathroom with him. He denied touching A.M.S. He stated she had jumped on him and
crawled on him, which was normal behavior for her, and he gave her a wedgie, which
may have exposed part of her buttocks.


       Rodman initially "vehemently denied" that A.M.S. had touched his penis, but,
after Det. Kern confronted him with detailed information from her, he said he had
consumed some whiskey the night before and woke up with an erection. Rodman
informed Det. Kern that A.M.S. had grabbed his penis with her whole hand where it was
sticking out of his shorts. Det. Kern testified it took some time for Rodman to admit to
this touching and his version of events changed when he was confronted with additional
information. Rodman said he loved A.M.S. and M.S., he indicated he was the child's best
friend, and he asked her to keep it a secret that she saw him in the bathroom.


       On cross-examination, Det. Kern testified that A.M.S. told him she had pulled the
waistband of her pants out and neither she nor Rodman had pulled her pants down. M.S.
also confirmed that A.M.S. sometimes walked in on people in the bathroom. Rodman
told her he wanted to be as nice as possible to A.M.S. when he woke up and found her
grasping his penis, and he did not want to be mean when correcting her behavior.
Rodman denied ever asking her to touch him. He told Det. Kern that A.M.S. smelled as
though she may have had a bathroom accident.


       The State offered a joint stipulation regarding Rodman's prior conviction for
aggravated indecent liberties with a child, and defense counsel continued its objection to
its admission. The district court overruled the objection on the same bases as given before

                                             7
trial. The State read a brief stipulation to the facts surrounding the prior conviction into
the record. The stipulation indicated that Rodman had been convicted of one count of
aggravated indecent liberties with a child in 2002 when he was 21 years old and he
touched the genital area of an 8-year-old girl. The State rested its case. Defense counsel
moved for a judgment of acquittal, but the court denied the motion. The defense declined
to present evidence.


         During deliberations, the jury asked to review the video recording of Det. Kern's
interview with A.M.S. The district court replayed the recording in the presence of
Rodman and counsel. The jury found Rodman guilty of the sole count.


         At a hearing, the district court denied defense motions for a judgment of acquittal
or a new trial. The court sentenced Rodman to a hard 40 sentence, as well as imposing
lifetime postrelease supervision and electronic monitoring.


         Rodman argues the district court erred by admitting the copy of A.M.S.'s drawing
over defense counsel's best evidence rule objection. He contends the State sought to
admit the document in order to prove its contents, namely that A.M.S. knew the
difference between an erect penis and a flaccid one. The State only produced a copy,
however, not the original drawing. He asserts this rendered the document inadmissible
under K.S.A. 60-467(a), the best evidence rule, despite Rohlman's declaration that the
copy was a fair and accurate representation of the original drawing, that is not an
exception to the best evidence rule, and the court did not indicate it relied on any of the
statutory exceptions when it admitted the document. Rodman further argues the
admission of the drawing was highly prejudicial, as it supported the State's theory that
Rodman had actually asked A.M.S. to "wake up" his penis and she had not testified as to
why she had touched it. Rodman contends the erroneous admission of the copy of the
drawing was not harmless, and he asks us to reverse his conviction and remand for a new
trial.

                                               8
       The State emphasizes in its brief that the best evidence rule is a preferential rule,
not a rigid exclusionary rule. It first argues the rule does not actually apply to the copy of
the drawing as its content was not at issue. The accuracy of the copy was never in
question, no fraud or imposition was suggested, and a search for the original would only
have resulted in a delay of the trial, so the reasons for implementing the best evidence
rule are inapplicable. The content of the drawing—the difference between an erect penis
and a flaccid penis—is common knowledge for most reasonable jurors, and the drawing
was submitted to prove that A.M.S. knew the difference at such a young age.
Additionally, even if the court erred by admitting the copy against Rodman's best
evidence objection, the error was harmless. Rohlman testified without objection about the
contents of the drawing before the State ever tried to admit the drawing. Its contents were
already known to the jury before the copy was presented. The other evidence of
Rodman's guilt was overwhelming, demonstrating that there was no probability that
admission of the document affected the verdict.


       Appellate review of the admission of evidence requires a multistep analysis. First,
a court must determine whether the evidence is relevant. State v. Page, 303 Kan. 548,
550, 363 P.3d 391 (2015). "Relevance has two components: materiality, which is
reviewed de novo; and probativity, which is reviewed for abuse of discretion." 303 Kan.
at 550-51. A court's consideration of the admissibility of evidence can also require
application of statutory rules controlling the admission and exclusion of certain types of
evidence. These statutory rules are applied as a matter of law or as an exercise of the trial
court's discretion, depending on the applicable rule. State v. Bowen, 299 Kan. 339, 348,
323 P.3d 853 (2014). The erroneous admission of evidence is subject to harmless error
review under K.S.A. 60-261. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).


       The present case involves a challenge to the application of the best evidence rule.
In State v. Robinson, 303 Kan. 11, 221, 363 P.3d 875 (2015), disapproved on other

                                              9
grounds by State v. Cheever, 304 Kan. 866, 375 P.3d 979 (2016), our Supreme Court
stated that appellate courts review best evidence challenges for abuse of discretion. This
opinion, however, relies on a decision from before the new standard of review for
evidence was established. See State v. Hill, 290 Kan. 339, 364, 228 P.3d 1027 (2010).
The Kansas Court of Appeals has cited to the abuse of discretion standard for best
evidence challenges in Robinson. See State v. Gauger, 52 Kan. App. 2d 245, 249, 366
P.3d 238 (2016).


       Neither Rodman nor the State are contesting the relevance of the copy of the
drawing. Rodman does contest the admissibility of the drawing under the best evidence
rule. Kansas' best evidence rule, codified at K.S.A. 60-467, states:


               "(a) As tending to prove the content of a writing, no evidence other than the
       writing itself is admissible, except as otherwise provided in these rules, unless the judge
       finds that: . . . (2)(A) the writing is lost or has been destroyed without fraudulent intent on
       the part of the proponent."


       Rodman argues the admission of the copy of the drawing was erroneous because it
was not the original. Under K.S.A. 60-467(a)(2)(A), however, the copy would be
admissible if the State had lost the original without fraudulent intent. The State claims to
have lost the original, and Rodman never alleges fraudulent intent on the part of the State.
Thus, this exception clearly applies. As either a matter of law or as an exercise of the
district court's discretion, the copy of the drawing was not erroneously admitted.


       Furthermore, the rule's nature as a preferential rule and not a strict exclusion rule
informs against exclusion in this case. State v. Goodwin, 223 Kan. 257, 259, 573 P.2d
999 (1977). The reliability and accuracy of the copy has not been questioned, bypassing
the fundamental basis for application of the rule, and the copy has the exact same
probative value of the original document. 223 Kan. at 259. The best evidence rule


                                                     10
prevents fraud and imposition through the restructuring, rearranging, or reproduction of
evidence that can mislead the jury or create an imposition for the defendant, and none of
these concerns are at issue here. Under this analysis we still hold that the district court did
not err under the best evidence rule.


       There was ample evidence from A.M.S., Rohlman, and Det. Kern that A.M.S. saw
and touched Rodman's penis and she touched it at his request in order to "wake it up."
Rohlman testified without objection regarding A.M.S.'s explanation of a sleeping penis
and an awake penis. Rohlman also testified, without objection, about the contents of the
drawing. The drawing was not a new or unique source of information, as indicated in part
by defense counsel's objection to its admission as cumulative. There is no indication that
admission of the evidence prejudiced Rodman or affected his substantial rights in the
slightest. See K.S.A. 2015 Supp. 60-261.


       Rodman argues the district court also erred by admitting evidence of a previous
aggravated indecent liberties because the evidence was not relevant and was, therefore,
inadmissible. The past conviction involved Rodman touching a child's genitalia, while the
current allegation involved a child touching him. Rodman contends the conduct in the
two offenses was not sufficiently similar to allow the evidence admitted to show
propensity. He argues the evidence was highly prejudicial and not at all probative, failing
both a balancing test and a harmless error analysis.


       The State argues the evidence of the past sexual offense conviction was relevant
for propensity by being a sexual offense and by it being material evidence. Additionally,
the conduct in the past offense was similar, if not strikingly similar, to the conduct at bar
and therefore was relevant to show a propensity, as both involved Rodman engaging a
minor girl in inappropriate sexual touching in a communal area, and the behavior in both
cases only stopped when a parent of the child caught Rodman. The State contends that
although the admission of the evidence may have had some prejudicial impact, this did

                                              11
not outweigh its probative value, especially in light of the jury's careful deliberations,
which required an extra day of trial and during which the jury asked to review the
recording of A.M.S.'s interview with police before returning a guilty verdict. The State
finally argues that given the similarities between the past and present convictions, the
past conviction would have been admissible, like nonsexual offenses, to prove motive,
intent, plan, or absence of mistake, further demonstrating that there was no error and, if
there was, any error was harmless.


       As noted above, in conducting an appellate review of the admissibility of
evidence, a court must first determine whether the evidence is relevant. Generally
speaking, all relevant evidence is admissible. K.S.A. 60-407(f). K.S.A. 60-401(b) defines
relevant evidence as evidence having "'"any tendency in reason to prove any material
fact.'" [Citation omitted.]" Page, 303 Kan. at 550. This definition encompasses two
elements: a materiality element and a probative element. Standards of review for each
element vary.


          Evidence is material when the fact it supports is in dispute or in issue in the
case. Bowen, 299 Kan. at 348. The appellate standard of review for materiality is de
novo. Page, 303 Kan. at 550.


       Evidence is probative if it has any tendency to prove any material fact. State v.
Dupree, 304 Kan. 43, 64, 371 P.3d 862 (2016). An appellate court reviews the district
court's assessment of the probative value of evidence under an abuse of discretion
standard. Page, 303 Kan. at 550-51.


       Even if evidence is relevant, a trial court has discretion to exclude it where the
court finds its probative value is outweighed by its potential for producing undue
prejudice. See K.S.A. 60-445. An appellate court reviews any such determination for an
abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).

                                              12
       Under K.S.A. 2015 Supp. 60-455(d), an "act or offense of sexual misconduct"
includes both contact between the defendant's genitals and any part of the victim's body
and contact between any part of the defendant's body and the victim's genitals. K.S.A.
2015 Supp. 60-455(g)(6)-(7). Relying on federal law that informed the 2009 legislative
addition to K.S.A. 2015 Supp. 60-455(d), the Kansas Supreme Court identified various
factors for balancing the probative value of propensity evidence in sexual abuse cases
against its potential for prejudice:


       "'(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. When
       analyzing the probative dangers, a court considers: (1) how likely it is such evidence will
       contribute to an improperly-based jury verdict; (2) the extent to which such evidence will
       distract the jury from the central issues of the trial; and (3) how time consuming it will be
       to prove the prior conduct.'" State v. Bowen, 299 Kan. 339, 350, 323 P.3d 853 (2014)
       (quoting United States v. Benally, 500 F.3d 1085, 1090–91 [10th Cir.2007]).


       There is no question that both Rodman's current conviction and his past conviction
are sexual offenses under K.S.A. 2015 Supp. 60-455(g)(6)-(7), and the two offenses are
also significantly similar in key respects. Both convictions involved the defendant
engaging in sexual touching with a girl under the age of 10, with Rodman touching a
child's genitalia in the first case and a child touching Rodman's penis in the instant case.
Given the similarities between the past conviction and the current allegations, evidence of
the past conviction was relevant to propensity, especially in light of Rodman's defense
that A.M.S. touched his penis while he was sleeping instead of in response to solicitation.
See State v. Prine, 297 Kan. 460, 477, 303 P.3d 662 (2013). The actual touching of
Rodman's penis was undisputed, and the only element at bar was his intent, to which his
past conduct in a similar situation is relevant and admissible to demonstrate propensity.
K.S.A. 2015 Supp. 60-455(d).

                                                    13
       The district court granted the State's 60-455 motion with little discussion. It relied
on the motion and the cases cited therein, which it explicitly mentioned, and it implicitly
rejected Rodman's detailed argument that admission of evidence of the prior conviction
would result in prejudice that substantially outweighed the probative value. The language
of K.S.A. 2015 Supp. 60-455(d), however, specifically indicates that its admissibility rule
is subject to a judicial balancing under K.S.A. 2015 Supp. 60-445(d). As such, the district
court should have engaged in a sufficiently detailed balancing analysis before granting
the State's motion.


       The district court's failure to explicitly engage in a balancing inquiry likely
amounts to error, but any such error is harmless. Longstaff, 296 Kan. at 895. The
evidence against Rodman was strong, including testimony from A.M.S. that she touched
Rodman's penis and that he touched her genitalia, evidence from Det. Kern that Rodman
asked the child to "wake up" his penis, and statements from Rohlman regarding A.M.S.'s
knowledge of the difference between a flaccid penis and an erect penis. With such proof
of guilt, it does not appear that any error in admitting the evidence of Rodman's prior
sexual offense conviction affected his substantial rights or impacted the outcome of the
trial. See K.S.A. 2015 Supp. 60-261; Longstaff, 296 Kan. at 895 (noting that harmless
error analysis requires a court to establish "whether there is a reasonable probability that
the error will or did affect the outcome of the trial in light of the entire record").
Accordingly, we affirm.


       Affirmed.




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