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Date: 01-16-2018

Case Style:

STATE OF KANSAS v. STEVEN TERRY JORDAN

Case Number: 116,669

Judge: Anthony J Powell

Court: COURT OF APPEALS OF THE STATE OF KANSAS

Plaintiff's Attorney: Douglas A. Matthews, assistant county attorney, Näna N. Brammer, assistant county attorney, Amy J. Mellor, county attorney, and Derek Schmidt, attorney general

Defendant's Attorney: Samuel Schirer, of Kansas Appellate Defender Office

Description: Around 1:30 a.m. on February 6, 2013, in Great Bend, Kansas, A.W. was preparing to go sleep. She had worked at a nearby gas station that evening and had just sent her cousin home because it was late. About 10 minutes after getting into bed, A.W. heard footsteps on her front porch and a loud banging at her front door, as if someone was kicking it in. A.W. turned on her light, picked up her cell phone, and dialed 911. As the operator spoke, she hung up her phone because she saw a black male standing in her house.

The man wore a hooded jacket that covered most of his face; he had on sweat pants and carried a knife in his hand. He asked A.W. for money, and A.W. asked him who he was and why he was in her house. The man did not answer but entered her bedroom and told her to get on the bed. A.W. complied because she was scared. The man got on top of A.W. and placed the knife above her head. A.W. could see some of his face and thought she recognized him as someone who came to the gas station. The man took his pants off, penetrated A.W. with his penis, and groped her breasts. When he was done, he covered her face with a blanket, picked up his knife, and walked out of the room. The man told A.W. not to look at him and not to call the cops. A.W. did not move until she heard him exit the front door. Then, A.W. dressed herself; grabbed her purse, phone, and car keys; went out the back door; and got into her truck. She locked the doors and dialed 911.

Earlier that night, the Great Bend Police Department sent Officer Adam Hales to investigate a 911 call which was abruptly terminated—it was characterized as a "hang up"—at an address associated with the phone number around 1:35 am. The current occupants of the house located at the address associated with the phone number told Hales that the police were mistaken because no one there dialed 911. At 2 a.m., Corporal Joseph Johns responded to a 911 call. Hales arrived at A.W.'s home about five minutes
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later. Johns stated that when he arrived, A.W. was seated in the locked truck and did not want to get out. Once A.W. exited the truck, Hales described her demeanor as sluggish, dazed, and as though she had been crying. He also noted that she was bent over, walking slowly, and kept her arms around her stomach. Johns spoke with A.W. briefly and noted that she appeared nervous, scared, and did not want to talk about what had happened. She told Johns that an unknown black male broke into her house, forced her into the bedroom with a knife, told her not to look at him, and raped her. She described him as 6-foot tall, wearing black sweatpants and a zip-up hooded sweatshirt.

While Johns completed the interview with A.W., Hales went into the house to make sure the suspect was not there. He described the door and doorjamb as heavily damaged. Although the door itself was old, Hales stated that the damage to the dead bolt lock appeared recent and that the lock looked completely splintered and destroyed. Hales also saw a small piece of wood lying in the middle of the living room about 8 or 9 feet from the door. After speaking with A.W., Johns also investigated inside the house and collected a pair of women's underwear, a pillowcase, a comforter, and bed sheets as evidence.

Meanwhile, A.W. was driven by ambulance to the hospital where she met with Sexual Assault Nurse Examiner (SANE) Debra Higgins. The SANE nurse examined A.W. and described A.W. as upset, crying, and anxious. The purpose of the SANE exam was to obtain A.W.'s medical history, identify any injuries from the alleged assault, and collect evidence. A.W. told Higgins what happened and stated that the man who assaulted her did so by penetrating her with his finger and penis. She also told Higgins that she had not had any consensual sex within the last 72 hours and that she was pregnant. Higgins noted a small bruise on A.W.'s left thigh, an abrasion on the outside of her genital area, and noted that her genitals appeared very red, swollen, and tender; she described A.W.'s injuries as resulting from a blunt object. Higgins could not conduct an exam with her speculum—a medical tool used to inspect a woman's vaginal canal—because A.W.
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started to cry and complain of pain. However, Higgins was able to use a vaginal swab to collect evidence from inside A.W.'s vagina.

A.W. spoke with Hales at the hospital. He described her demeanor as shocked and dazed. She told Hales that because the man had covered his face with his hooded sweatshirt, she did not recognize him. A.W. also stated to Hales that as she was going to bed around 1:30 a.m. she heard loud banging at the front door. She went to the living room to see what was happening and saw the door moving violently. She became scared and called 911 from her bedroom. When she looked up, she saw a dark-skinned black male in her bedroom, and he had what looked like a kitchen knife in his hand. Hales collected the completed SANE kit and took A.W.'s pants and underwear for further testing.

A.W. spent the night at her father's house then went back to the house later in the day to move out. While at the house, A.W. talked with two of her neighbors about what happened. A.W. told her friend and neighbor, Justina, that the man looked like a guy she had seen at the gas station and that her ex-boyfriend, Brandon Rogers, was friends with the man's cousin, Edward. Justina mentioned that the man A.W. described was nicknamed Dewey. A.W. also spoke with her neighbor Shirley and asked about the guy who lived down the street with Rogers' friend Edward. Shirley told A.W. she was describing Edward's uncle, Dewey.

A.W. called dispatch that afternoon to report that she knew the man who attacked her was nicknamed Dewey and lived on her block. Later that day, A.W. met with Detective Heather Smith and told her that she did not know Dewey personally but that her neighbors had told her his nickname. Smith showed A.W. a photo lineup of six individuals, and A.W. picked out the photo of Jordan, also known as Dewey. A.W. met again with Smith in May 2013. At that meeting, Smith collected A.W.'s DNA. That same month, Smith collected Jordan's DNA. The Kansas Bureau of Investigation (KBI) tested
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the DNA evidence, the results of which revealed that the seminal fluid only matched two DNA profiles: Jordan and A.W. At trial, the KBI witness stated that seminal fluid tends to lose the DNA profile after 48 to 72 hours.

In July 2013, Jordan was charged with one count of rape under K.S.A. 2012 Supp. 21-5503(a)(1)(A), one count of aggravated burglary under K.S.A. 2012 Supp. 215807(b), and one count of misdemeanor criminal damage to property under K.S.A. 2012 Supp. 21-5813(a)(2) and (b)(3).

At trial, Jordan testified that on February 6, 2013, he was having trouble sleeping, so he went outside to smoke a cigarette and saw A.W. smoking a cigarette on her porch. He testified that he went over to her house to see if Rogers wanted to get high and because he had talked to A.W. at the gas station a couple of times before. Once he got to her house, Jordan stated that he asked A.W. if she wanted to get high. He said she agreed. He further testified that Rogers and Edward told him A.W. smoked methamphetamine. While Jordan admitted that he had never personally seen A.W. use methamphetamine prior to February 6, 2013, he stated that Rogers, Edward, and other people had told him that A.W. was a "dope whore." Jordan admitted that he did not think that A.W. and Edward ever had a relationship.

Jordan testified that once he was inside her bedroom he asked her again if she wanted to get high and told her that he would give her a gram of methamphetamine, which he stated had a $50 street value, and $20 cash. Jordan stated that A.W. agreed; they smoked together and then had consensual sex. After they finished, Jordan stood up, refused to pay A.W. any money, and left. He stated that he had lied to her about having any money. After leaving, Jordan realized that he left his wallet on the floor in her house. He had taken his wallet out because it had money and drugs. When Jordan returned to A.W.'s house, the front door was shut so he had to push his way in with both hands to open it and heard something crumple. Jordan stated that A.W. was there and that she
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asked him if he was going to tell Rogers. To keep her from talking, Jordan stated that he would tell Rogers.

Jordan also called Rogers as a witness at the trial. Rogers testified that Jordan and Edward were like family to him. Rogers testified that on February 6, 2013, he was living with A.W. and that they had started dating in November 2012. Rogers testified that at the time of the incident, A.W. was one month pregnant and that he believed that he was the father of her baby. A paternity test later revealed he was not the father. Rogers testified that his relationship with A.W. ended in November 2013.

Rogers also testified that he had used methamphetamine and had used the drug with Edward and Jordan before. He also testified that he used methamphetamine in A.W.'s house. Rogers also stated that A.W.'s front door was damaged before February 6, 2013, and that it was damaged when he began to live there in January 2013. He stated that the dead bolt lock wiggled, the frame and door were cracked and broken, the door knob did not work, and the door was easily pushed open and closed.

Finally, Rogers testified that he had consensual sex with A.W. the night before February 6, 2013. He stated that he had a penis ring and engaged in rough sexual intercourse with A.W. that lasted about two hours. He stated that on February 6, 2013, he was at another woman's house. The State later called the woman on rebuttal, who testified that Rogers was not at her house on February 6, 2013. She stated that the last time she had seen Rogers was in January 2013.

The jury convicted Jordan on all counts. The district court sentenced Jordan to 620 months in prison for rape, 32 months in prison for aggravated burglary, and 6 months in jail for criminal damage to property, with the aggravated burglary and criminal damage to property sentences to run concurrent with the rape sentence.

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Jordan timely appeals.

DID THE DISTRICT COURT DENY JORDAN HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL?

Jordan argues that the district court violated his constitutional right to a fair trial by excluding relevant evidence integral to his theory of defense.

When reviewing evidentiary challenges and a defendant's assertion that the district court violated his or her constitutional right to present his or her theory of defense, our Supreme Court has stated:

"Appellate courts apply a multistep analysis of decisions to admit or exclude evidence. Under this multistep analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Review of whether a trial court erroneously excluded evidence that is integral to the defendant's theory of his or her defense is de novo.

"Material evidence tends to establish a fact that is at issue and is significant under the substantive law of the case. Probative evidence requires only a logical connection between the asserted fact and the inference it is intended to establish.

. . . .

"A criminal defendant has the right, under both the Kansas and United States Constitutions, to present the theory of his or her defense, and the exclusion of evidence that is an integral part of that theory violates the defendant's fundamental right to a fair trial. In order to constitute error, the excluded evidence supporting the defense theory must be relevant, admissible, and noncumulative. A defendant's right to present evidence in support of a defense is subject to certain restraints: the evidence must be relevant, and
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evidentiary rules governing admission and exclusion of evidence are applied. [Citations omitted.]" State v. Robinson, 306 Kan. 431, 435-36, 394 P.3d 868 (2017).

To consider what was integral to Jordan's defense, we start with what the State had to prove to convict him. Having charged Jordan with one count of rape, the State had to prove that Jordan engaged in nonconsensual sexual intercourse with A.W. who was overcome by force or fear. See K.S.A. 2012 Supp. 21-5503(a)(1)(A). The State also charged Jordan with aggravated burglary, which required the State to prove that Jordan knowingly entered A.W.'s residence without permission and with the intent to commit a felony inside when one or more persons was present. See K.S.A. 2012 Supp. 21-5807(b). As to the third count, misdemeanor criminal damage of property, the State had to prove that Jordan unlawfully and knowingly damaged the front door, door jam, and lock of the property and caused less than $1,000 in damage. K.S.A. 2012 Supp. 21-5813(a)(2) and (b)(3).

The essence of Jordan's defense to the rape charge was consent. Jordan's position was that he went to A.W.'s home, and she agreed to exchange consensual sex for drugs and money. After he had consensual sex with A.W., A.W. developed a motive to lie because Jordan went back on his promise to give her money. Jordan argues on appeal that the district court's exclusion of evidence showing A.W.'s prior drug use prevented him from establishing an integral part of his theory of defense: that A.W. had a motive to consent to sexual intercourse in exchange for drugs.

The evidentiary challenge on appeal stems from two rulings by the district court at trial. The first ruling occurred when Jordan's counsel was cross-examining A.W. Counsel asked and A.W. denied that Jordan came over to her house to use methamphetamine with her. Then counsel asked if A.W. used methamphetamine in the month of February 2013, and A.W. stated that she had not because she was pregnant. Next, counsel asked if A.W. had used methamphetamine in the past, and the State objected. In chambers, defense
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counsel argued that the question went to A.W.'s admission at the preliminary hearing to using methamphetamine before and to Jordan's theory of defense that Jordan went to A.W.'s house to use methamphetamine with her. After hearing arguments, the district court excluded the evidence as criminal misconduct and irrelevant. The district court then prohibited Jordan's counsel from inquiring further into A.W.'s prior drug use.

Later at trial, Jordan's counsel was questioning Rogers on his and A.W.'s prior methamphetamine use. The State objected, and the district court ruled the question was improper based on the previous ruling because it inquired into A.W.'s prior drug use. Jordan's counsel proffered that she intended to show that Rogers saw A.W. use methamphetamine in his presence "around this date" as corroborating evidence to Jordan's theory of defense and Jordan's future testimony that he saw A.W. use methamphetamine on February 6, 2013. The district court ruled that Jordan could testify based on his theory of defense but excluded the proffered testimony from Rogers.

Other than the limited questions allowed on cross-examination of A.W., the district court's evidentiary rulings prohibited Jordan from exploring other evidence of A.W.'s prior drug use except as asserted by Jordan himself in his own testimony. In particular, Jordan challenges the district court's exclusion of Rogers' proffered testimony that he saw A.W. using methamphetamine "around this date."

There is very little caselaw on this issue. In support of his argument, Jordan argues we should adopt the Vermont Supreme Court's reasoning in State v. Memoli, 189 Vt. 237, 18 A.3d 567 (2011), where the substance of the evidentiary ruling in that case relates to Jordan's appeal. In relevant part, Memoli and a female companion offered the complaining witness a ride home in the early morning hours of New Year's Day. The complainant admitted she had smoked marijuana and drank "a lot" of alcohol that night and agreed to go to Memoli's apartment and into his bedroom. Memoli's and the complainant's version of events differ in that the complainant stated that Memoli forced
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her to perform sexual acts on him and to smoke crack cocaine, while Memoli and his female companion asserted the complainant had not been forced into either act.

Before trial, the district court held a hearing on a motion in limine where the State sought to exclude certain evidence of the victim's prior drug use. Memoli proffered to the district court that he intended to offer relevant evidence of the victim's prior drug use to support his theory of defense, specifically a video showing the victim buying drugs and presenting witnesses who saw her use and buy drugs within 30 days before and after the incident. Defense counsel argued:

"'[These two issues] go to the heart of our defense. If we're not allowed to deal with [these issues], we don't have a defense. Our defense is very simple. Our defense is that the complaining witness traded sex for drugs. It's as simple as that, and it's a common occurrence among a certain group of individuals who are addicted to crack cocaine. It's just a fact of life, and so we have a voluntary defense. Our defense is that she voluntarily consented, and the reason that she did was . . . that she was a crack addict, and my client was in a position to give her all the crack that she wanted.'" 189 Vt. at 242.

Following the hearing, the district court issued a broad ruling denying defense counsel's proffer and limiting the evidence of the complainant's drug use only to the night in question. The district court also found the proffered evidence not relevant to the issue of consent. Memoli was convicted.

On appeal, the Vermont Supreme Court reversed Memoli's conviction and held that evidence of the complainant's prior drug use was relevant to support the defendant's theory of consent:

"The [trial] court's decision was erroneous because complainant's drug use within thirty days before and after the charged incident was relevant to the defense that she consented to sexual acts with defendant to obtain crack cocaine. In sexual assault cases
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where the case hinges on the credibility of the complainant, 'the presence of an ulterior motive for the victim's making the accusations is often a critical issue.' Thus, proffered evidence relating to a defense theory of consent is relevant. [Citations omitted.]" 189 Vt. at 248.

The State counters with two cases having similar facts but which reach the contrary result. First, the State cites to Commonwealth v. Bell, 400 S.W.3d 278 (Ky. 2013), where the defendant had been charged with rape and sodomy, among other things, and the defendant's theory of defense was that the victim had traded sexual favors for drugs, thus making the sex acts consensual. On appeal, the defendant argued that his constitutional right to present a defense was denied because the trial court excluded such evidence. The Kentucky Supreme Court affirmed, holding that the district court did not completely prevent the defendant from introducing evidence of the victim's drug use but merely limited it and did not abuse its discretion when doing so. 400 S.W.3d at 282-84.

Second, the State cites to another Vermont case, State v. Faham, 190 Vt. 524, 21 A.3d 701 (2011), where, again, the defendant was charged and convicted of a sex crime, this time attempted sexual assault. The core of the defendant's defense was that the complained of sex acts were consensual because the victim traded sex for drugs. The Vermont Supreme Court, unlike in Memoli, affirmed the district court's exclusion of evidence of the victim's drug use. 190 Vt. at 530.

We find Memoli persuasive and the cases cited by the State to be distinguishable. Bell is distinguishable because the Kentucky Supreme Court relied principally on a cumulative evidence argument to uphold the district court. While it is true that the Bell trial court, like in the present case, allowed the defendant to testify as to the victim's drug use, unlike in our case, the trial court also allowed evidence of the victim's positive drug test on the date of the incident. Moreover, the Kentucky Supreme Court held that the defendant's additional desire to introduce evidence of the victim's 20-year history of drug
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use and addiction constituted "'piling on.'" 400 S.W.3d at 283. Faham also is easily distinguishable because the defendant in that case never proffered before the trial court his theory that the victim's drug use was relevant to his defense that the sex act in question was consensual. 190 Vt. at 528.

Similar to the present case, Memoli's theory of defense was that his sexual intercourse with the victim was consensual, and he sought to prove consent by showing (1) the defendant and the victim agreed to exchange consensual sex for drugs or money; (2) after forming the agreement, the couple engaged in consensual sex; and (3) after sex the victim developed a motive to lie because the defendant reneged on his promise of drugs or money. Also similar is that the district court excluded evidence supporting that theory, such as evidence establishing the victim's prior drug use. Memoli differs in one respect from our case because the trial court in Memoli barred all evidence of the victim's prior drug use, unlike here where the district court allowed Jordan to testify to his knowledge of A.W.'s prior drug use.

A. Evidence of A.W.'s Prior Drug Use is Relevant to Jordan's Theory of Consent.

We agree with Jordan's argument that the district court's exclusion of evidence was erroneous because A.W.'s prior drug use was relevant to Jordan's defense that A.W. consented to sexual intercourse in exchange for drugs and money. Relevant evidence has "any tendency in reason to prove any material fact." K.S.A. 60-401(b); State v. Huddleston, 298 Kan. 941, 959, 318 P.3d 140 (2014). Relevant evidence must be both probative and material. Robinson, 306 Kan. at 435.

To be probative, the evidence must have "a logical connection between the asserted fact and the inference it is intended to establish." 306 Kan. at 436. Also, probative evidence tends to furnish, establish, or contribute towards proof. State v. Rosa, 304 Kan. 429, 436, 371 P.3d 915 (2016). Here, the evidence concerning A.W.'s drug use
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contributes towards proving two critical inferences: (1) Jordan did not enter A.W.'s house uninvited but went there to use drugs with A.W., and (2) A.W. consented to sexual intercourse with Jordan.

The State argues that the evidence is not probative because the evidence only proves Rogers' and A.W.'s relationship and does not demonstrate that A.W. would consent to sexual intercourse with Jordan. Admittedly, the evidence has a weaker connection toward showing consent. The evidence carries more weight in showing A.W. used drugs on the night in question. But the prior drug-use evidence furnishes proof that A.W. would agree to use methamphetamine with Jordan on that night, which establishes a logical connection to the inference that A.W. would also agree to sexual intercourse with Jordan in exchange for the drugs. See State v. King, 293 Kan. 1057, 1064-65, 274 P.3d 599 (2012) ("'Evidence of bias, interest, or improper motives of a witness is always relevant in order to place the witness' testimony in proper prospective.'"); State v. Carapezza, 286 Kan. 992, 998-1000, 191 P.3d 256 (2008) (evidence of drug use or addiction relevant to establish motive). Accordingly, we find evidence of A.W.'s drug usage, particularly Rogers' proffered testimony that A.W. used drugs around the time of the incident, probative because it tends to establish a logical connection towards proving A.W. would agree to Jordan's offer to exchange consensual sex for methamphetamine.

Evidence of A.W.'s prior drug use is also material. "Material evidence tends to establish a fact that is at issue and is significant under the substantive law of the case." Robinson, 306 Kan. at 436. The evidence of A.W.'s prior drug use supports Jordan's defense that he did not break into A.W.'s home with the intent to commit a felony, undermining the State's ability to prove the elements of aggravated burglary and criminal damage to property. More significantly, as we have already explained, the evidence contributes towards the proof that A.W. may have used drugs on that night and affects the substantive law of the case because such evidence assists in proving Jordan's consent
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theory—that he and A.W. had consensual sex in exchange for drugs—which undermines the State's rape case. Thus, the evidence is material to Jordan's theory of defense.

Our dissenting colleague confidently declares: "It is simply not a reasonable inference to conclude that because a woman uses drugs, she will naturally be motivated to trade sex for drugs. In other words, a woman's use of drugs is not probative that she will consent to sex in exchange for drugs." Slip op at 24. We must take the world as it is, not as how we would like it to be, and we think it beyond dispute that a drug user—male or female—could exchange sex for drugs. In fact, it is so well established that drug use or addiction can be a motivating factor in the commission of a crime that many courts in our state have established drug courts to combat it. See Supreme Court Rule 109A (2017 Kan. S. Ct. R. 177) (allowing for creation of drug courts). If drug use or addiction is a motivator for crime, it is no stretch to conclude that a drug user's or addict's craving for an intoxicant could be the motivator for other bad acts, such as exchanging sex for drugs. Given that fact, we agree with the Vermont Supreme Court that "[i]n sexual assault cases where the case hinges on the credibility of the complainant, 'the presence of an ulterior motive for the victim's making the accusations is often a critical issue.'" Memoli, 189 Vt. at 248. Accordingly, we find that the district court erred in ruling that evidence of A.W.'s prior drug use was irrelevant.

B. The Excluded Evidence is Not Inadmissible Under K.S.A. 60-447 and K.S.A. 2016 Supp. 60-455.

The relevance of A.W.'s prior drug use notwithstanding, the State also argues that such evidence is inadmissible under K.S.A. 60-447 and K.S.A. 2016 Supp. 60-455(a). K.S.A. 60-447 prohibits evidence of specific instances of conduct to prove that a particular character trait is bad, while K.S.A. 2016 Supp. 60-455(a) prohibits the introduction of evidence that a person committed a crime or civil wrong on a specified occasion. The district court ruled the evidence of A.W.'s prior drug use was inadmissible
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in part because it showed criminal misconduct. Because our determination of whether evidence of A.W.'s prior drug use was inadmissible requires an interpretation of these two statutes, our review of the question is unlimited. See State v. Bowen, 299 Kan. 339, 352, 323 P.3d 853 (2014).

We are unpersuaded by the State's argument that A.W.'s prior drug use constituted impermissible character evidence barred by K.S.A. 60-447. In Memoli, the prosecution argued such evidence was inadmissible because the defendant sought to introduce evidence of the complainant's prior drug conduct to prove that she was a drug addict. The Vermont Supreme Court rejected this argument and instead held that the defendant's proffer had a narrower purpose—"that evidence of complainant's drug use was relevant to demonstrate she had a motive to consent to sexual acts with defendant"—and found this purpose consistent with Vermont's version of K.S.A. 2016 Supp. 60-455. 189 Vt. at 250.

Similarly, K.S.A. 60-447 is inapplicable here because Jordan did not assert A.W.'s prior drug use for the purpose to show a character trait that A.W. was a drug addict. Rather, Jordan sought to admit this evidence to show that A.W. had a motive to consent to the sexual intercourse with Jordan in exchange for drugs. See State v. Webber, 260 Kan. 263, 277, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). Therefore, K.S.A. 2016 Supp. 60-455 applies.

K.S.A. 2016 Supp. 60-455 states in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.

"(b) 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,
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opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

Based on the language contained in K.S.A. 2016 Supp. 60-455(a), at first blush it would appear that evidence of A.W.'s prior drug use would be inadmissible because it provides proof that she committed a crime—using methamphetamine. But K.S.A. 2016 Supp. 60455(a) is subject to the eight exceptions in K.S.A. 2016 Supp. 60-455(b), one of which is motive. Evidence of A.W.'s prior drug use went to showing A.W.'s motive to consent to sexual intercourse with Jordan in exchange for drugs.

The district court erred in holding the evidence of A.W.'s prior drug use was inadmissible as criminal misconduct because such evidence is admissible under K.S.A. 2016 Supp. 60-455(b).

C. The Excluded Evidence is Noncumulative.

Finally, although the State does not specifically argue that Jordan's effort to introduce Rogers' proffered testimony that A.W. used drugs around the time of the incident was cumulative, it does suggest that Jordan was not completely barred from presenting his own testimony as to A.W.'s prior drug use, thereby justifying the district court's decision to exclude other evidence of A.W.'s drug use. However, we reject any argument that Rogers' proffered testimony concerning A.W.'s drug use was in any way cumulative because Jordan had no other way to present evidence, other than his own testimony, that A.W. had used drugs around the date in question.

A.W. denied using drugs in February 2013. Jordan testified that A.W. used drugs on February 6, 2013. The district court also permitted Jordan to testify that he knew of A.W.'s drug use and reputation as a "dope whore" because of Rogers and Edward. But the district court prohibited defense counsel from questioning Rogers and, inferentially, other
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witnesses on A.W.'s prior drug use. Rogers' testimony as proffered was noncumulative because only he could testify that he saw A.W. use drugs near that date. As stated above, A.W. denied using drugs during February 2013, and Jordan admitted that he did not personally see A.W. use drugs before February 6, 2013. Therefore, the excluded evidence—that Rogers saw A.W. use methamphetamine around February 6, 2013—was noncumulative and relevant.

Evidence of A.W.'s prior drug use was both relevant and admissible, and the district court erred in excluding such evidence.

D. The District Court's Error to Exclude Evidence is Not Harmless.

Once we find error on the part of the district court, we must then determine whether the error was harmless. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). Under this standard, the State, as the party benefitting from the error, has the burden to establish "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

The State argues we should find the error harmless because the district court afforded Jordan the full opportunity to present his theory of defense to the extent that a jury could reach a conclusion on its validity. In considering the State's claim, we agree that the district court did permit Jordan to present some evidence at trial supporting his theory of defense—including his knowledge of A.W.'s prior drug use. Jordan testified that he asked A.W. if she wanted to get high and she agreed; then when they went inside, he made another offer to exchange consensual sex for drugs. However, Jordan admitted that he had not personally seen A.W. use methamphetamine in the past and had not used methamphetamine with A.W. until February 6, 2013. Jordan also testified that his
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knowledge of A.W.'s prior methamphetamine use only came second-hand—he learned from Rogers and Edward, among others, that A.W. used the drug and had a reputation as a "dope whore." In the face of A.W.'s own testimony that she was not using drugs around the time of the incident because she was pregnant, such evidence is hardly compelling. It certainly did not convince the jury.

Jordan also has a constitutional right to present his theory of defense that A.W. consented to the alleged sex acts. Here, the excluded evidence that A.W. may have used methamphetamine close to the date of the incident provides proof that she could have accepted Jordan's offer to exchange consensual sex for drugs. It also rebuts A.W.'s denial that she used the drug. Such evidence coming from a third party—Rogers, who was also A.W.'s boyfriend—is much more compelling, despite his weaknesses as a witness.

We acknowledge the State's other evidence in support of its case and the dissent's strong argument as to why any error in excluding A.W.'s drug use was harmless. But the State's burden is to show beyond a reasonable doubt that the exclusion of such relevant evidence was harmless, and we have a reasonable doubt. For example, Jordan did not dispute that the DNA revealed that the seminal fluid collected from A.W. only matched two people: A.W. and Jordan. But such evidence says nothing about whether the sex acts were consensual. There is also the evidence of A.W.'s two 911 calls on February 6, 2013, between 1:30 a.m. and 2 a.m. A.W. called 911 and hung up. Then, about 30 minutes later, A.W. called 911 again and reported the incident. But again, an argument could be made that A.W.'s termination of the first 911 call supports Jordan's theory of defense that the encounter was voluntary because Jordan could posit that A.W. cancelled the 911 call once she learned the person outside was Jordan.

On balance, while it is a close call, we conclude the State has failed to prove the district court's erroneous exclusion of evidence was harmless beyond a reasonable doubt. Jordan's theory of defense that he and A.W. traded sexual favors for drugs and money
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undermines the State's consent element of the rape charge, undermines the intent to commit a felony element in the aggravated burglary charge, and lends credibility to Jordan's defense to the criminal damage to property charge.

The excluded evidence is an integral part of establishing Jordan's theory of defense to consent. It suggests first that A.W. would use drugs in that timeframe and second that she would have had a motive to exchange consensual sex for the drugs. The evidence is not necessarily strong, but it is integral to providing Jordan with the full opportunity to present his defense that the sexual intercourse was consensual.

The evidence also came down to a witness credibility determination between Jordan and A.W. on many issues—including consent. In excluding evidence that Rogers saw A.W. use methamphetamine around February 2013, the district court also prohibited the defense from questioning other witnesses on A.W.'s drug use near that time period. District courts have "wide latitude . . . to impose reasonable limits on . . . crossexamination based on concerns about . . . harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). However, those limits cannot prevent all inquiry into an issue that is critically relevant to the defendant's theory of defense. See State v. Atkinson, 276 Kan. 920, 929, 80 P.3d 1143 (2003).

The exclusion prevented Jordan from cross-examining A.W. on prior drug use and rebutting A.W.'s contentions that she denied using drugs in February 2013. Only Jordan and A.W. could testify to A.W.'s consent and drug use on the night in question, but the district court prevented inquiry on an issue critically relevant to the theory of defense: whether A.W. had previously used drugs around February 2013. This inquiry was critical because it could establish that A.W. had a motive to consent to sex in exchange for drugs. Likewise, the evidence of A.W.'s prior drug use was an integral part of establishing Jordan's defense that she had some motive to accept his offer to engage in consensual sex
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in exchange for drugs and money. The district court denied Jordan his constitutional right to a fair trial by excluding this evidence.

Outcome: We therefore reverse Jordan's convictions, vacate his sentences, and remand for a new trial.

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