You’re either in or you’re out! K.S.A. § 60-455(g) is an Exhaustive List and Limits Propensity Evidence

State v. Scheetz, No. 124,054 (Kan. Ct. App. Jan. 13, 2023).

Hailey Reed, Staff Editor

Issue:  Is the definition of “act or offense of sexual misconduct” in Kan. Stat. Ann. § 60-455(g) exhaustive?

Answer:  Yes.  Section 60-455(g)’s definition of “act or offense of sexual misconduct” is exhaustive.  Therefore evidence of prior acts or offenses of sexual misconduct must meet this definition to be admissible under subsection (d).

Facts:  The State charged Mark Scheetz with multiple crimes for alleged sexual conduct with M.C., a 14-year-old girl.  To show Scheetz had a propensity for sexual contact with minors, the State moved in limine under § 60-455(d) to admit evidence that Scheetz sent nude pictures to minors over Snapchat and searched for “incestual pornography” on his personal devices.  The district court found all proffered evidence relevant and probative, and so granted the State’s motion.  At trial, the State heavily relied on this evidence to discredit Scheetz’s testimony.  Although unsupported by the evidence, in closing the State stated Scheetz intentionally sent a Snapchat picture of his “erect” penis.  The jury subsequently convicted Scheetz on all counts and sentenced him to life in prison.  Scheetz challenged the conviction based on improper admission of propensity evidence and prosecutorial error in closing arguments.

Discussion:  The Kansas Court of Appeals held the definition of “act or offense of sexual misconduct” in Kan. Stat. Ann. § 60-455(g) is exhaustive.  If the State intends to use evidence of prior acts or offenses of sexual misconduct to show a propensity to commit sexual misconduct under § 60-455(d), the act or offense must fall into the list of acts or offenses in § 60-455(g).  The Kansas Court of Appeals found  the district court erred when it admitted the photos previously sent over Snapchat to other minors under § 60-455(d).  This section allows admission of evidence of the defendant’s prior “act[s] or offense[s] of sexual misconduct.”  But to satisfy subsection (d), the proffered evidence must speak to “sexual misconduct” as defined by an enumerated list of conduct in subsection (g). Sheetz argued that this evidence qualified as promoting obscenity to minors.  Scheetz then claimed because promoting obscenity to minors is not listed in § 60-455(g), the propensity evidence should not have been admitted under § 60-455(d).  The Kansas Court of Appeals held the length and specificity of § 60-455(g) indicate that the legislature intended the list to be exhaustive.  Subsection (g) lists 21 specific criminal offenses and statutory schemes that could be acts or offenses of sexual misconduct.  The Kansas Court of Appeals stated this is an exhaustive list, and to hold otherwise would be to make the long and specific list superfluous  As such,  because evidence that Scheetz the nude photos sent to minors previously constituted promoting obscenity to minors, an act not listed in § 60-455(g), the evidence did not constitute an “act or offense of sexual misconduct” and was not admissible under § 60-455(d).  Due to this error and other errors, the Kansas Court of Appeals remanded the case for a new trial because in cumulation, these errors denied Scheetz his right to a fair trial. 

Key Authorities:  Kan. Stat. Ann. § 60-455 (2022) (governing the admissibility of propensity evidence).