1

NOT DESIGNATED FOR PUBLICATION

No. 122,243

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

SHELBY DAWN JOHNSON,

Appellee.

MEMORANDUM OPINION

Appeal from Sumner District Court; R. SCOTT MCQUIN, judge. Opinion filed December 23, 

2020. Affirmed and remanded.

Kerwin Spencer, county attorney, Mitch Spencer, assistant county attorney, and Derek Schmidt, 

attorney general, for appellant. 

Chrystal L. Krier, of Wichita, for appellee.

Before BUSER, P.J., HILL and WARNER, JJ.

WARNER, J.: This case concerns the death of a seven-month-old child. The State 

charged the child's mother, Shelby Johnson, with her murder and other related crimes. In 

this interlocutory appeal, the State argues that the district court erred when it ruled a

heated accusation by Johnson's then-boyfriend was inadmissible, both because it was an 

opinion as to Johnson's guilt and because the accusation's potential for undue prejudice 

substantially outweighed its probative value. 
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While this is a sad and difficult case, it is not the role of an appellate court to 

substitute our analysis for a district court's weighing of the prejudicial nature of evidence. 

Rather, we entrust this task to the sound discretion of the district court in its role as the 

trial's evidentiary gatekeeper and defer to the district court's assessment if it is reasonable. 

After carefully reviewing the record and the parties' arguments, we conclude the court did 

not abuse its discretion when it found the accusation was inadmissible. Thus, we affirm 

that decision and remand the case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Because this appeal by the State was taken before the matter went to trial, the 

evidentiary record before us is limited. The record we do have consists largely of 

testimony of the State's witnesses during Johnson's preliminary hearing. That testimony 

provided the following account of the circumstances surrounding J.H.'s death and the 

State's subsequent decision to charge Johnson with her murder. 

J.H. was seven months old when she died. She lived with her mother, Shelby 

Johnson. Although not J.H.'s biological father, Schuyler Hulett thought of J.H. as his 

daughter and was listed as the father on J.H.'s birth certificate. Johnson and Hulett had 

two other young children—a five-year-old son and a nine-year-old daughter. 

Johnson and Hulett did not live together and were not married at the time of J.H.'s 

death. Normally when Johnson would stay at Hulett's house, J.H. would sleep in a 

portable crib in Hulett's living room. But on March 31, 2018, the baby slept on a pallet 

made of blankets and pillows on the living room floor. The couple put J.H. to bed in the 

late evening and went to sleep in Hulett's bedroom. The two other children slept in a 

different bedroom. J.H. slept through the night.
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Around 7:40 a.m. the next morning, Johnson got up to feed the baby. Johnson later 

told police officers that J.H. did not appear very hungry at that time and consumed little 

formula from her bottle. Johnson then put J.H. to bed again on the pallet and went back to 

Hulett's room to sleep. 

Hulett informed the investigators that he got up between 8:30 and 9 a.m. to have 

coffee and give J.H. a bottle. He picked up the partially consumed bottle from the living 

room but did not check on the baby. Hulett went outside to his car to retrieve Easter 

baskets for the children and then made a new bottle of formula using warm water from 

the sink. When he was walking from the kitchen to J.H.'s pallet, his five-year-old son

came out of the bedroom where he had been sleeping. Hulett found J.H. in her bed with a 

burp rag over her mouth, unresponsive and not breathing. When Hulett removed the 

cloth, he saw that she had vomit around her mouth. 

Hulett picked up J.H. and hollered at Johnson to call 911, which she frantically 

did. (Though Hulett initially told an investigating officer that his son came out of his 

room before Hulett saw that J.H. was injured, he later testified that the children were 

awoken by his screams.) Hulett then attempted to perform CPR on the baby, applying 

compressions on J.H.'s chest and blowing in her mouth. When his efforts proved futile, 

Hulett decided not to wait for the ambulance, got in his car, and sped to the hospital. 

At the hospital, doctors noted that J.H. was "Code Blue"—not breathing and 

without a pulse—and suffering from severe swelling of the brain. After CPR proved 

ineffective, J.H. was intubated and placed on a ventilator; the medical staff soon 

discovered that her skull was fractured in three places. J.H. also had a large hematoma on 

the right side of her head and retinal hemorrhages—"blotchy areas of bleeding"—in the 

back of both of her eyes. One of the doctors speculated that J.H.'s injuries were likely the 

result of three severe, shearing force traumas and/or some type of whiplash injury to the 

brain and could not have been the result of merely being dropped. It was further 
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discovered that J.H. had fractured ribs and soft tissue hemorrhages around those 

fractures. These were potentially caused by Hulett's application of chest compressions, 

but the injuries to J.H.'s ribs also showed signs of healing, indicating some of the rib 

injuries may have occurred at least a week prior to the head injuries that ultimately 

caused J.H.'s death. 

Officers from the Wellington Police Department interviewed Johnson and Hulett, 

attempting to find out how J.H. had been so grievously injured. Both parents were 

distraught and neither had any explanation for the injuries: Johnson reported she had 

gotten up to feed J.H., put her back to bed, and went back to sleep herself. Hulett

described waking up to check on J.H. about an hour later and finding J.H. in her bed, 

without a pulse and not breathing. Johnson informed an officer that she and J.H. did not 

live with Hulett but they would come visit on days she was off work. She also stated that 

J.H. had never been injured before and had only ever fallen over while trying to stand up. 

J.H. was kept on life support at the hospital for several days before she passed

away on April 5, 2018. The autopsy reported that J.H. had suffered contusions on both 

sides of her head, a hematoma on the lower jaw, two fractures—both more than 2 inches 

in length—on the right side of the skull, a 2 1/2-inch fracture on the back of the skull, a 

dense epidural hemorrhage, and hemorrhages in both eyes. 

About a week after J.H.'s death, one of Hulett's neighbors reported to the police 

that he had overheard a part of an argument between a man and a woman coming from 

Hulett's house on April 11, 2018, at around 11 p.m. The only words the neighbor heard 

were a man yelling, "You killed my fucking baby!" The neighbor did not decipher any 

other part of the argument, did not hear any of what the woman said, and did not hear any 

response to the man's accusation. Three days later, the neighbor reported the argument to 

the police.
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As a result of the neighbor's report of this yelled accusation and the surrounding 

investigation, the State charged Johnson with two counts of felony murder (with 

underlying crimes of child abuse and aggravated endangering a child), one count of 

second-degree murder, one count of child abuse, and one count of aggravated 

endangering a child. 

The neighbor who had reported overhearing the yelled accusation later moved 

away and was not called as a witness at the preliminary hearing. Johnson did not testify at 

the preliminary hearing, but Hulett did. When the prosecutor asked Hulett about the 

argument on April 11, Hulett testified that he and Johnson went out drinking that evening 

and got into a loud argument when they arrived home. Hulett recalled being very drunk 

and angry with Johnson, eventually yelling, "You killed my fucking baby!" Hulett

testified that he believes Johnson killed J.H. because he was not responsible for the death. 

But he admitted that he "never witnessed her do anything wrong to that baby" and "never 

[saw] her lay a hand on her." He stated that his accusation was made out of frustration—

"[m]ore just anger and trying to realize and figure it out myself." 

After hearing this evidence, the district court noted that it was not permitted to 

make credibility assessments at the preliminary hearing stage. The court bound Johnson 

over for trial because, under the evidence presented, there were "only two people" who 

could have committed the act leading to J.H.'s death, and Hulett "denied he did it."

About a week before the scheduled trial, the district court held a hearing on 

Johnson's motion in limine. During that hearing, the court voiced an evidentiary concern

that had not yet been raised by either party: the admissibility of Hulett's April 11 

accusation. The court observed that a witness is not usually permitted to provide an 

"opinion as to the guilt or innocence of the defendant." And the court distinguished 

Hulett's accusation that Johnson killed J.H. from a situation where a witness denies his or 
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her own guilt. Based on this reasoning, the court informed the parties that evidence of 

Hulett's accusation would not be admitted at trial. 

The next day, the State filed a motion asking the court to reconsider its ruling. The 

State indicated that it sought to present evidence of Hulett's accusation through three 

avenues—testimony regarding the neighbor's report to the police, testimony from Hulett 

himself, and testimony from an FBI agent involved in the child-abuse investigation. The 

State explained that this agent, who did not testify at the preliminary hearing, interviewed 

Hulett about the argument. The agent also interviewed Johnson, and she apparently 

denied that Hulett had accused her of killing J.H. or that the April 11 argument ever 

occurred. The State noted that it intended to call Hulett as a witness. And the State 

intended to have the neighbor and the FBI agent "available to testify," to alleviate any 

hearsay or confrontation issues. 

For all three avenues of presenting evidence of the accusation, the State argued

that "[t]hese conversations happened within a couple weeks of the child's death" and 

before any charges were filed. According to the State, there were only two adults in the 

house when J.H. was injured, and given the circumstances surrounding Hulett's 

accusation, the State believed it "more likely that [Hulett] was not the one who caused the 

injuries." The State also believed Hulett's accusation was evidence that J.H.'s death was 

"not simply an accident." The State explained that the accusation was "relevant to show 

that [Hulett] had no role in causing the child's death" and was "a significant consideration 

in who was charged with the crime." Finally, the State argued that rulings finding 

evidence unduly prejudicial should be rendered "sparingly" because the law "favors the 

admission of otherwise relevant evidence." 

At the hearing on the State's motion, the State argued that all three iterations of 

Hulett's accusation—through the neighbor's report, through Hulett, and through the 

investigating FBI agent—were highly relevant to its case against Johnson and "were a 
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huge factor" in its decision to bring charges against her. The State argued that both 

Hulett's recollection of his accusation and the neighbor's memory of overhearing Hulett's 

statement were relevant because they showed that Hulett was not the killer: "[O]nly a 

person who did not kill a baby would accuse the other parent of killing the baby." And it 

argued the FBI agent should be allowed to testify about Johnson's denial of the 

accusation and argument to show Johnson was not being forthright with the officers 

during the investigation. The State asserted that Hulett's accusation was "determinative of 

the case" because it showed that "one of two people present when a baby was killed did 

not kill the baby. By inference, the only person left that could [have] killed the baby is 

the defendant." 

The court disagreed with the State's analysis. Regarding Hulett's proposed 

testimony, the district court observed that Hulett had not seen or heard Johnson hurt J.H. 

Instead, he made the accusation because he was drunk and angry and believed that she 

was responsible. The court concluded that Hulett's accusation was therefore an improper 

opinion as to Johnson's guilt. The court found the neighbor's testimony was hearsay and 

would only be admissible if Hulett's accusation was admissible. And finally, the court 

found the FBI agent's proposed testimony was inadmissible evidence of specific instances 

of conduct to prove a character trait of dishonesty. After issuing its rulings, the court 

observed:

"[T]his evidence has bothered me from the preliminary hearing, to be real honest. It's 

been on the back burner. I've been thinking about it. . . . I worked all weekend to try to 

find some basis whereby this was admissible or clearly inadmissible. I think you could 

search the rest of your life and never find another case with these facts. You can't make 

this stuff up. I've done the best I can with it. I just don't think it's admissible evidence." 

At the close of the hearing, the State indicated that it would be pursuing an 

interlocutory appeal of the court's ruling under K.S.A. 2019 Supp. 22-3603. 
8

Two days later—and before the State filed any notice of appeal—the district court 

issued a memorandum opinion further explaining its decision. The court first discussed 

the admissibility of Hulett's accusation generally, with a three-part analysis:

• Hulett's accusation against Johnson was not an admission by Johnson, as there is 

no evidence as to how she responded; the accusation was the only part of the 

argument the neighbor overheard.

• "If Hulett's accusation is not relevant as the predicate for a tacit admission by the 

accused, then it is nothing more than a statement of Hulett's opinion as to 

Johnson's guilt." The court noted that lay opinions are only admissible under 

K.S.A. 2019 Supp. 60-456(a) if they are "'rationally based on the perception of the 

witness,'" and Hulett "did not see Johnson harm their baby."

• Quoting Hunt v. State, 48 Kan. App. 2d 1023, Syl. ¶ 4, 301 P.3d 755 (2013), the 

court noted: "'[W]itness testimony expressing an opinion on a defendant's overall 

guilt or innocence is inadmissible as a matter of law because the defendant in a 

criminal trial has the right to have the jury determine from the evidence whether 

the defendant is guilty or not.'"

The court then weighed the probative value of Hulett's accusation against its 

potential for undue prejudice. In so doing, the court analyzed the State's position that the 

accusation was "strongly indicative of Johnson's guilt" since it tended to rule out Hulett 

as a suspect. The court noted that 

"upon analysis, the court believes that this evidence's importance to the [S]tate is not in 

its high level of relevance, but in its great potential for undue prejudice. The evidence 

offers an easy shortcut to a conclusion of guilt that avoids the difficult process of an 

analysis of the physical evidence and witness testimony by adopting the easy two step 
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analysis offered by the [S]tate, to-wit: Hulett credibly denied his guilt, so the only other 

suspect must be guilty. How can anyone say that the jury could not fall for this trap 

during their deliberations when this court fell for this same error in logic in binding the 

defendant over for trial at the preliminary hearing[?]"

The court also disagreed with the State's position that the evidence was "highly relevant": 

"The substance of the argument between Hulett and Johnson is largely unknown. Only 

Hulett's accusation was heard. Perhaps Johnson accused him first leading him to loudly 

accuse her. Without further context, it cannot be said with any certainty that Hulett had 

no reason to lie when he accused Johnson of killing their baby. Logically, Hulett's 

accusation is of questionable relevance, and its relevance is outweighed by its potential 

for unfair prejudicial effect."

The court thus ruled that the various evidence of Hulett's accusation was 

inadmissible, both because it was improper opinion evidence of Johnson's guilt and 

because its potential for undue prejudice substantially outweighed its probative value. 

The State then filed this interlocutory appeal.

DISCUSSION

District courts serve as evidentiary gatekeepers. District court judges—who 

observe firsthand a case's pretrial development and preside over trials—are in the best 

position to "make credibility, authenticity, and admissibility determinations." See 

Savadjian v. Caride, 827 Fed. Appx. 199, 204 (3d Cir. 2020) (unpublished opinion). For 

this reason, district courts "have broad discretion in deciding what evidence is relevant, 

reliable, and helpful to the trier of fact." Humetrix, Inc., v. Gemplus S.C.A., 268 F.3d 910, 

919 (9th Cir. 2001). 

A district court's rulings on the admissibility of evidence are often made in the 

thick of trial. But a court may also exclude evidence before trial when (1) the evidence 
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would ultimately be inadmissible and (2) a pretrial ruling is preferable to a ruling during 

trial because the mere mention of the evidence at trial may cause unfair prejudice or 

confusion. State v. Shadden, 290 Kan. 803, Syl. ¶ 3, 235 P.3d 436 (2010). Our Kansas 

Supreme Court has noted that a pretrial ruling excluding evidence may be appropriate, 

among other reasons, 

"because the introduction or mention of the evidence may cause unfair prejudice, confuse 

the issues, or mislead the jury; the consideration of the issue during the trial might unduly 

interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial 

may limit issues and save the parties time, effort, and cost in trial preparation." 290 Kan. 

at 816.

When considering whether to make a pretrial ruling on the admissibility of evidence, a 

district court balances "these advantages to a pretrial ruling" against the recognition that a 

court "is usually in a better position during trial to assess the value and utility of evidence 

and its potential prejudice." 290 Kan. at 816.

Appellate courts review the first of these considerations—the admissibility of the 

evidence—as we do any other evidentiary ruling, based on the contours and the court's 

application of the law in question. See 290 Kan. at 815, 817-18; see also State v. Miller, 

308 Kan. 1119, 1138, 427 P.3d 907 (2018) (a district court abuses its discretion if no 

reasonable person would take the view it adopted or if the decision is based on an error of 

law or fact). The second consideration—whether a pretrial ruling is preferable to a 

determination at trial—is part of a district court's "inherent authority to manage the 

course of trials" and thus "rests in the [court's] discretion." Shadden, 290 Kan. at 816, 

818. This means we will only overturn the court's judgment to issue a pretrial ruling on 

admissibility if no reasonable person would support that timing. See 290 Kan. at 818; 

State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). For both steps in this 

analysis, the party challenging the court's evidentiary ruling bears the burden of showing 

error. See Miller, 308 Kan. at 1138.
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When considering whether evidence is admissible, a district court first must 

determine whether it is relevant—that is, whether it is both material and probative. 

Evidence is material if the fact it proves "has some real bearing on the decision in the 

case." State v. Torres, 294 Kan. 135, 139, 273 P.3d 729 (2012). And evidence is 

probative "if it furnishes, establishes, or contributes toward proof." State v. Coones, 301 

Kan. 64, 78, 339 P.3d 375 (2014). In other words, the evidence must tend to make a fact 

of consequence more or less probable than it would be without the evidence. 

Once relevance is established, the court applies constitutional, statutory, and 

common-law evidentiary rules to determine whether the evidence should be admitted or 

excluded. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). The "law in this state 

favors the admission of otherwise relevant evidence." State v. Miller, 284 Kan. 682, 690, 

163 P.3d 267 (2007). Yet even when evidence is relevant and may otherwise be 

admissible, a district court has discretion to exclude it from trial if "its probative value is 

substantially outweighed by its potential for producing undue prejudice." Miller, 308 

Kan. at 1167; see also State v. Boysaw, 309 Kan. 526, 540, 439 P.3d 909 (2019) (citing 

cases that recognize the district court's gatekeeping role includes a weighing of evidence's 

probative value against its prejudicial effect). 

With these principles in mind, we turn to the State's arguments. The State sought 

to admit evidence of Hulett's accusation—"You killed my fucking baby"—in three ways: 

(1) through Hulett's testimony, (2) through testimony regarding the neighbor's report to 

the police, and (3) through the testimony describing Johnson's denial of that accusation 

(and surrounding argument) to an FBI agent. The district court ruled that each avenue 

was inadmissible, finding:

(1) Hulett's accusation was inadmissible opinion evidence that invaded the 

province of the jury by commenting on Johnson's guilt. The court further 
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found that even if this evidence were otherwise admissible, its potential for 

undue prejudice substantially outweighed its probative value.

(2) Evidence of the neighbor's report was hearsay and only admissible if Hulett's 

utterance was otherwise admissible, which it was not.

(3) Evidence that Johnson may not have been forthright with the FBI investigator

about the accusation and argument was inadmissible because specific 

instances of conduct—Johnson's denial—used solely to prove a character 

trait—Johnson's dishonesty—are inadmissible. 

On appeal, the State asserts that each of these rulings was erroneous. But at oral 

argument, the State indicated that if Hulett's accusation is found to be inadmissible, it 

could not—and would not—introduce evidence of that accusation through the "backdoor" 

of the neighbor's report or the investigator's interview. Rather, it is the accusation that the 

State is primarily interested in introducing, as—in the State's view—it tends to 

simultaneously exclude Hulett as a suspect and prove Johnson's guilt. Thus, the 

dispositive issue before us is whether the district court erred when it found the evidence 

of Hulett's accusation inadmissible.

1. Hulett's accusation was relevant.

We begin, as all evidentiary analyses must, with relevance. Evidence is relevant 

when it is probative of a material fact. K.S.A. 60-401(b); Coones, 301 Kan. at 78. The

assessment of evidence's probity is generally a matter entrusted to the judgment of district 

courts. This is because the determination as to whether evidence tends to prove a 

consequential fact is a decision that requires a district court to "'draw on its own 

experience, knowledge, and common sense in assessing whether a logical relationship 

exists between proffered evidence and the fact to be proven.'" State v. Reid, 286 Kan. 
13

494, 508, 186 P.3d 713 (2008) (quoting Mueller & Kirkpatrick, Evidence Practice Under 

the Rules § 4.1, p. 226). In contrast, whether a fact to be proved is material is a question 

of law to which we give no deference on appeal. Coones, 301 Kan. at 78.

Here the district court found that the evidence was relevant. After reviewing 

Hulett's testimony at the preliminary hearing and the State's proffered explanation, we 

agree that Hulett's accusation has a logical bearing on a material fact. Taken at face value, 

Hulett's accusation was relevant to determining who caused J.H.'s injuries. This is 

particularly true if the State is correct that only two people could have done so. 

But we also are mindful of the district court's observation that the State overstated 

the probity of Hulett's accusation. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 

(2008) (noting that probativeness determinations are matters entrusted to a district court's 

discretion). The State has repeatedly argued that Hulett's statement was "strongly 

indicative of [Johnson's] guilt." But the accuracy of the State's position relies on a stack 

of other inferences and unknowns. There is no testimony, beyond Hulett's statements at 

the preliminary hearing, explaining the context of the overheard argument. Hulett

testified that he directed his accusation at Johnson, but Johnson denied that he did so. If 

he did direct the accusation at Johnson, there is no evidence as to what occurred before 

that accusation or how she responded; the neighbor reported that he only heard Hulett's 

words during the argument. 

And Hulett conceded that he never saw Johnson hurt J.H. Instead, he testified he 

made the accusation while he was drunk and trying to figure out what had happened. 

However unlikely the State may think it is that Hulett lacked a motive to make a false 

accusation in the midst of a private argument, it cannot be denied that the probity of 

Hulett's accusation hinges on the credibility of someone who, at the time, was also a 

suspect. Thus, the district court reasonably found that evidence of Hulett's accusation, 

though relevant, was not—as the State argues—"determinative of the case." 
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2. The district court did not abuse its discretion when it found that Hulett's 

accusation was an impermissible opinion as to Johnson's guilt.

Having concluded that evidence relating to Hulett's accusation was relevant to the 

State's case against Johnson, we turn to the district court's ruling that the accusation was 

nevertheless an inadmissible opinion as to Johnson's guilt. 

Under K.S.A. 2019 Supp. 60-456(a), the district court may allow a witness who is 

not an expert to offer opinions or inferences if the judge finds the opinions or inferences 

are rationally based on the perception of the witness and helpful to the jury to provide a 

clearer understanding of his or her testimony. The district court has "broad discretion" to 

determine whether to allow evidence under this statute. State v. Lowrance, 298 Kan. 274, 

293, 312 P.3d 328 (2013). An appellate court reviews a ruling on the admissibility of 

opinion evidence "under an abuse of discretion standard." 298 Kan. at 293.

A few evidentiary standards guide the contours of our analysis. First, although 

K.S.A. 2019 Supp. 60-456(a) refers to "testimony in the form of opinions or inferences," 

courts have applied the statute's standards to evidence other than witness testimony. See, 

e.g., State v. Love, 305 Kan. 716, 725, 387 P.3d 716 (2017) (observing that allegations in 

a civil lawsuit for wrongful death are inadmissible in a criminal trial for murder because 

the civil suit is "equivalent to [the plaintiff]'s opinion," which is subject to the standards 

set forth in K.S.A. 2019 Supp. 60-456); State v. Jones, 202 Kan. 31, 42, 446 P.2d 851 

(1968) (applying expert opinion standards to evaluate admissibility of scientific 

evaluation of firearm conducted outside of court). Thus, the fact that Hulett's accusation 

occurred outside of court does not automatically exclude it from the evidentiary 

considerations that circumscribe the admissibility of opinion evidence. 
15

Second, opinion evidence that is otherwise admissible should not be excluded 

merely because it embraces the ultimate issue or issues to be decided by the trier of fact. 

K.S.A. 2019 Supp. 60-456(d). At the same time, Kansas courts have emphasized that the 

admissibility of such evidence is not automatic. Rather, when evidence is offered 

containing an opinion on an ultimate fact—such as who may have committed the offense 

alleged—that evidence "is admissible only insofar as the opinion will aid the jury in the 

interpretation of technical facts or when it will assist the jury in understanding the 

material in evidence." State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993). 

Third, even if an opinion would be otherwise admissible under K.S.A. 2019 Supp. 

60-456, "a witness cannot testify that in his or her opinion the defendant is guilty." Hunt 

v. State, 48 Kan. App. 2d 1023, 1034, 301 P.3d 755, rev. denied 298 Kan. 1202 (2013). 

Such testimony "invades the jury's role to determine guilt or innocence based on the 

totality of the evidence presented at trial," 48 Kan. App. 2d at 1034, and is "inadmissible 

as a matter of law." State v. Drayton, 285 Kan. 689, 701, 175 P.3d 861 (2008). Thus, 

while a district court generally has broad discretion to determine the admissibility of 

opinion evidence, a court "has no discretion as to whether to allow a witness to express 

an opinion on the guilt or innocence of the defendant." 285 Kan. 689, Syl. ¶ 8.

Turning to the case before us, the State first questions whether Hulett's accusation 

was opinion evidence. The State points out that the accusation was made in the context of 

a heated argument, not as dispassionate opinion testimony at trial. See State v. Mathis, 

281 Kan. 99, 108, 130 P.3d 14 (2006). According to the State, the value of that 

accusation was not that Hulett believed Johnson to be at fault for J.H.'s death, but rather 

that Hulett did not cause the child's death. In other words, the accusation is important 

because of the inference that Hulett did not commit the crime—an inference rendered

credible because his accusation arose in the context of a private argument that he did not 

expect would be overheard, before any charges were filed. 
16

We observe that the State's efforts to introduce evidence of Hulett's accusation 

through multiple avenues, often without the benefit of Hulett's explanation, belie the 

State's argument. Such a strategy tends to emphasize the substance of the accusation 

itself—"You killed my fucking baby"—rather than Hulett's motivation. But even if it is a 

resulting inference, and not the substance of Hulett's accusation, that the State believes to 

be relevant and compelling, that inference depends entirely on the substance of the 

accusation—Hulett's assertion that Johnson was responsible for J.H.'s injuries. And 

Hulett testified at the preliminary hearing that his accusation was based on his belief, 

speculation, or inference rather than on any direct knowledge of what actually occurred.

See Black's Law Dictionary 701 (11th ed. 2019) (defining "opinion evidence" as "[a] 

witness's belief, thought, inference, or conclusion concerning a fact or facts").

Hulett's accusation is thus distinguishable from the witness' "excited response" in 

Mathis, which the State cites in its brief. 281 Kan. at 108. In that case, the victim's 

grandmother exclaimed at the hospital when she learned that the child had been seriously 

injured—but before the child died—that the defendant "done killed the baby." 281 Kan. 

at 108. The grandmother testified about this statement at trial without any objection. On 

appeal, the defendant claimed for the first time that testimony about the grandmother's 

statement should have been excluded as an improper opinion on the defendant's guilt of 

felony murder. The Kansas Supreme Court disagreed, finding her statement was an 

"excited response" to seeing the injured child rather than an "opinion at the time of trial 

of the defendant's guilt." 281 Kan. at 108. And the court emphasized the lack of 

contemporaneous objection to the testimony—meaning the district court never had the 

opportunity to determine the admissibility of the evidence in question. 281 Kan. at 108.

Here, however, the district court did have that opportunity to exercise its judgment 

and found that Hulett's accusation was opinion evidence. The record supports this 

conclusion. Hulett did not witness Johnson harm J.H. Nor was his accusation an excited 

utterance made concurrently when he learned of the child's injuries. See State v. Rowe, 
17

252 Kan. 243, 250, 843 P.2d 714 (1992). Instead, according to his testimony at the 

preliminary hearing, his accusation was based on his denial that he caused J.H.'s injuries 

and his belief that Johnson was the only other person—besides their other two young 

children—who had the opportunity to do so. While his accusation may have been 

rationally based on his perception of the facts, the district court did not err in finding the 

accusation was nevertheless opinion evidence within the meaning of K.S.A. 60-456(a).

The conclusion that Hulett's accusation was opinion evidence does not necessarily 

render that accusation inadmissible, however. The State argues that the district court 

should have allowed the utterance into evidence because (1) it was inferred from Hulett's 

perceptions and (2) the timing and circumstances of Hulett's utterance would be helpful 

to the jury in evaluating Hulett's anticipated testimony at trial that he did not harm J.H. 

See K.S.A. 2019 Supp. 60-456(a)(1), (2). But this argument swings wide of the district 

court's critical finding—that Hulett's accusation is inadmissible because it impermissibly 

opines on Johnson's guilt.

Hulett's accusation, viewed through the lens of his preliminary-hearing testimony, 

accused Johnson of "killing" J.H. On the one hand, Johnson was not merely charged with 

"killing" the child, though that is one of the elements of the felony murder with which she 

was charged. See K.S.A. 2019 Supp. 21-5402(a)(2). Hulett did not opine on whether the 

acts giving rise to J.H.'s death were done intentionally (though the State interpreted the 

accusation to mean J.H.'s death was "not simply an accident") or whether that death 

resulted from child abuse or aggravated endangerment. Thus, Hulett's accusation was not

in the strictest sense an opinion regarding Johnson's guilt for those specific crimes. On 

the other hand, there was no question that J.H. had suffered severe injuries and those 

injuries led to her death; the crucial question to be resolved at trial was whether Johnson 

was the person who caused those injuries. In this way, Hulett's opinion went to the heart 

of Johnson's guilt or innocence. As the district court explained at the hearing, the 
18

accusation "offers an easy shortcut to a conclusion of guilt that avoids the difficult 

process of an analysis of the physical evidence and witness testimony."

The line differentiating whether a witness provides an opinion on an ultimate issue 

to be considered by the jury (which may be admissible) or expresses an opinion on a 

person's guilt or innocence (which is inadmissible as a matter of law) is not always clear. 

But appellate courts entrust the district court with the discretion to draw that line and 

defer to the district court's decision if it is reasonable. We only overturn a district court's 

determination when no reasonable person could agree with its ruling. Compare 

Steadman, 253 Kan. at 304 (district court abused its discretion when it admitted officers' 

testimony that, based on their investigation, defendant was guilty of the crime and others 

were not); and State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986) (district court 

abused its discretion when it permitted witnesses to testify as to child victim's credibility 

and their opinions that the defendant molested the child), overruled on other grounds 

by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016); with Hunt, 48 Kan. App. 2d at 

1034 (district court's determination that testimony as to witnesses' "perceptions and 

beliefs" shortly after a murder as to whether defendant killed the victim "did not invade 

the jury's role" was not an abuse of discretion).

In the end, it is not the role of an appellate court to substitute its judgment for the 

district court's reasonable exercise of its discretion. We find that a reasonable person 

could agree with the court's deliberative analysis and thoughtful conclusion that Hulett's 

accusation invaded the province of the jury and opined on Johnson's guilt. See Lowrance, 

298 Kan. at 295 ("While others might disagree with the trial judge, if reasonable persons 

could agree it cannot be said that the trial judge abused his discretion."); Curtis v. Freden, 

224 Kan. 646, 649, 585 P.2d 993 (1978) ("While the excluded testimony might very well 

have been admitted by the trial court, we cannot say it was an abuse of discretion to 

refuse the opinion testimony [in question]."). The district court did not err when it 

excluded evidence of Hulett's accusation.
19

3. The court did not abuse its discretion when it found the probative value of Hulett's 

accusation was substantially outweighed by its potential for undue prejudice.

Following its ruling at the pretrial hearing, the district court also found in its 

memorandum decision that even if the various evidence relating to Hulett's accusation 

were otherwise admissible—Hulett's testimony, the neighbor's report, and Johnson's 

conversation with the FBI agent—the court would nevertheless exclude the evidence 

because its potential for undue prejudice substantially outweighed its probative value. In 

particular, the court observed that Hulett's accusation, though of limited probative value, 

would tempt the jury to short-circuit its fact-finding role and instead convict Johnson 

because Hulett said she was responsible. 

As a preliminary matter, the State argues that we should disregard the district 

court's memorandum decision because it was entered after the court ruled from the bench 

that Hulett's accusation was inadmissible. But the court issued that decision only two 

days after the hearing on this evidence, days before the State filed its notice of appeal and 

weeks before the appeal was docketed. The State offers no reason why the court should 

not have been permitted to clarify its ruling. Accord Connell v. State Highway 

Commission, 192 Kan. 371, 376, 388 P.2d 637 (1964) ("A trial court has inherent power 

to review its own proceedings to correct errors or prevent injustices. The power to 

reconsider a ruling in a case resides in the trial court until a final judgment or decree is 

issued."). Indeed, there would be little judicial economy in an appellate court turning a 

blind eye to the district court's alternative explanation as to why the evidence was 

inadmissible, only to have the district court again exclude the evidence on remand.

We thus turn to the court's weighing of the evidence's probity and prejudice. 

"Assessing the probative value of [proffered evidence] and weighing any factors 

counseling against admissibility is a matter first for the district court's sound judgment." 

United States v. Abel, 469 U.S. 45, 54, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984). This is 
20

"particularly true" when it comes to the "'on-the-spot balancing of probative value and 

prejudice, potentially to exclude as unduly prejudicial some evidence that already has 

been found to be factually relevant.'" Sprint/United Management Co. v. Mendelsohn, 552 

U.S. 379, 384, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008) (quoting 1 S. Childress & M. 

Davis, Federal Standards of Review § 4.02, p. 4-16 [3d ed.1999]).

This is a close question. But like many judgments that must be rendered during the 

course of a case, the weighing of evidence's probity versus its prejudice is a matter 

entrusted to the discretion of a district court. Appellate courts do not second-guess these 

determinations if they are reasonable—that is, if any reasonable person would agree with 

the court's assessment. Indeed, if we did so, we would be required to consider countless 

issues on appeal without the benefit of the district court's experience or contextual 

knowledge. Given the relative vantage points of district and appellate courts, the wisest 

course is to defer to district courts' reasonable exercises of discretion. See Miller, 308 

Kan. at 1167.

Under the facts of this case, the district court did not abuse its discretion in finding 

the value of the evidence of Hulett's accusation was substantially outweighed by its 

potential for undue prejudice. Undue or unfair prejudice is "an undue tendency to suggest 

decision on an improper basis." Fed. R. Evid. 403, Advisory Committee's Notes to 1972 

Proposed Rules; see Boysaw, 309 Kan. at 540-41 (noting that Kansas courts employ a 

weighing similar to Rule 403). The court reasonably concluded that even if Hulett's

accusation was not a direct opinion on Johnson's guilt, a jury nevertheless could merely 

accept Hulett's accusation instead of considering all the evidence at trial. The court's 

candid admission that it had fallen prey to just such a temptation at the preliminary 

hearing underscores the gravity of its concern. 

The court did not abuse its discretion when it found this very real potential for 

undue prejudice substantially outweighed the evidence's probative value. And given the 
21

nature of Hulett's accusation, the district court did not abuse its discretion in ruling that 

evidence was inadmissible before it could be presented to the jury at trial. 

Because the district court did not abuse its discretion when it ruled Hulett's 

accusation was inadmissible, we need not consider the district court's rulings regarding 

the State's other efforts to discuss that accusation at trial. In fact, the only basis the State 

offers as to the admissibility of the neighbor's report is K.S.A. 2019 Supp. 60-460(a), 

which only applies if "the statement would be admissible if made by declarant while 

testifying as a witness." Thus, we do not consider whether the court erred in excluding 

evidence regarding the neighbor's report to the police that he overheard Hulett's

accusation (but no other portion of the argument).

We also need not analyze in detail the court's exclusion of evidence pertaining to 

Johnson's denial of the accusation or argument to the FBI investigator. The district court 

found that this evidence was an inadmissible effort to use a specific incidence of 

Johnson's conduct to prove her general disposition of dishonesty. See K.S.A. 60-422(d); 

see also State v. Wetrich, 49 Kan. App. 2d 34, 41, 304 P.3d 346 (2013) (quoting State v. 

Penn, 41 Kan. App. 2d 251, 201 P.3d 752 [2009]) ("'[A] witness's credibility may be 

attacked by showing the witness has character traits for dishonesty or lack of veracity, but 

those traits may only be proven by opinion testimony or evidence of reputation. Those 

traits may not be proven by specific instances of the witness's past conduct.'"). We 

observe, however, that K.S.A. 60-422(d) requires the exclusion of evidence when it is 

"relevant only as tending to prove a trait of [a person's] character." Here, the State 

indicated that it was not seeking to offer the evidence to show Johnson's dishonesty 

generally, but to show why the prosecutor ultimately believed Hulett's version of events 

and decided to charge Johnson. See Fed. R. Evid. 608, Advisory Committee Notes to 

2003 Amendments (noting that proof of specific instances of a witness' untruthfulness 

may be considered for grounds other than character, such as bias or prejudice); Longus v. 

United States, 52 A.3d 836, 850 (D.C. App. 2012) (bias includes witness' motive to lie). 
22

Nevertheless, as the State has acknowledged on appeal, this evidence is predicated 

on its ability to discuss—and an assumption of the accuracy of—Hulett's accusation. And 

even if evidence of Johnson's interview with the FBI agent were otherwise admissible, 

the district court found that such evidence, as explained by the State in its proffer, was 

inadmissible because the probative value of Hulett's accusation was substantially 

outweighed by its potential for undue prejudice. 

The decision to exclude relevant evidence before trial is not to be taken lightly. 

But neither is the district court's responsibility to act as a gatekeeper, allowing admissible 

evidence while excluding unduly prejudicial evidence that invades the province of the 

jury. Our review of the record shows the district court here understood the gravity of its 

gatekeeping role when it decided to exclude evidence of Hulett's accusation against 

Johnson—a decision to which we defer as a reasonable exercise of the court's discretion. 

We affirm the district court's pretrial exclusion of that evidence and remand the case for 

further proceedings consistent this opinion. 

Affirmed and remanded.

* * *

BUSER, J., dissenting: In the early morning hours of April 1, 2018, a seven-monthold infant, J.H., was brutally killed. Only two adults, Shelby Johnson and Schuyler 

Hulett, were present at the crime scene. Based on direct, expert, and circumstantial 

evidence, the State's prosecution theory is that Johnson killed her infant daughter.

I dissent from the majority opinion because the district court erred as a matter of 

law in excluding important, admissible evidence that a jury is entitled to consider in 

arriving at its verdict regarding Johnson's guilt or innocence.
23

THE IMPROPER PROCEDURE EMPLOYED BY THE

DISTRICT COURT TO EXCLUDE EVIDENCE

At the outset, the extraordinary procedure employed by the district court in 

excluding evidence that Hulett yelled at Johnson, "You killed my fucking baby!" 

(hereinafter, "the accusation") without prior notice and sua sponte deserves mention 

because it set the stage for several errors of law that resulted in this interlocutory appeal.

My colleagues observe: "Because this appeal by the State was taken before the 

matter went to trial, the evidentiary record before us is limited." Slip op. at 2. I disagree. 

The evidentiary record is limited because the district court, without notice to the parties, 

ruled sua sponte on the issue of the admissibility of the accusation at a pretrial hearing 

held five days before the scheduled trial. Importantly, prior to the district court's ruling, 

Johnson did not object to the accusation evidence at the preliminary hearing, in her 

motion in limine, or during the hearing on that motion. In fact, prior to the district court's 

unexpected ruling, during the 15 months the criminal case was pending, Johnson never 

sought to preclude or limit any testimony by Hulett, Matt Brown (Hulett's neighbor), or 

Federal Bureau of Investigation (FBI) Agent Derek Velazco.

The Assistant County Attorney promptly objected to the district court's surprise 

announcement, stating, "[C]ertainly I had no notice that we were going to be debating 

this today. . . . I certainly did not perceive that as being part of what was the motion that 

was filed for today. . . . I've been completely blindsided, Judge." Despite the lack of 

notice to the parties and the sua sponte nature of the district court's remarks, the district 

judge ruled the accusation was "irrelevant evidence that I don't intend to let in at trial."

The next day, the State filed a motion seeking reconsideration of the district court's 

ruling excluding the accusation evidence, noting that prior to November 14, 2019, "the 

[S]tate had no idea that such testimony could be rendered inadmissible for any reason, 
24

especially since it was not even objected to at the preliminary hearing and no pretrial 

motion had been filed to exclude it." Only three days later, and the day before the 

scheduled trial, the district court held a hearing to reconsider its ruling, which it 

ultimately declined to do.

As a consequence, the district court predicated its ruling on facts mentioned in the 

complaint and evidence presented at the preliminary hearing held 11 months earlier when 

the State did not have notice of any objections by Johnson or the court regarding the 

admissibility of the accusation evidence. Especially troubling is that Brown and FBI 

Agent Velazco—two principal witnesses involved in the accusation evidence—did not 

testify at the preliminary hearing. As a result, their anticipated trial testimony was limited 

to the complaint and generalized proffers made during argument following the district 

court's surprise ruling.

One of the perils of the district court's sua sponte approach can be seen in the 

majority's assessment that "the accuracy of the State's position relies on a stack of other 

inferences and unknowns." (Emphasis added.) Slip op. at 13. Mirroring the district court's 

complaints, my colleagues discount the State's arguments:

"There is no testimony, beyond Hulett's statements at the preliminary hearing, explaining 

the context of the overheard argument. Hulett testified that he directed his accusation at 

Johnson, but Johnson denied that he did so. If he did direct the accusation at Johnson, 

there is no evidence as to what occurred before that accusation or how she responded; the 

neighbor reported that he only heard Hulett's words during the argument." Slip op. at 13.

Of course, the reason there are so many unknowns is that the district court's 

surprise ruling was made without providing the State with notice of the claimed 

infirmities in the admissibility of the accusation evidence, and an opportunity to present 

testimony, including two critical witnesses with information about the accusation 

evidence. I am unwilling to prejudice the State for evidentiary omissions when the district 
25

court's handling of this issue was manifestly unfair because its ruling was unforeseen and 

peremptory.

Lastly, this case underscores our Supreme Court's admonition that "advantages to 

a pretrial ruling must be balanced against the reality that a district court is usually in a 

better position during trial to assess the value and utility of evidence and its potential 

prejudice." (Emphasis added.) State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010).

THE ACCUSATION EVIDENCE IS NOT AN INADMISSIBLE LAY OPINION

Given that the district court and my colleagues agree the accusation evidence is 

relevant, the next inquiry is whether admission of the challenged evidence complies with 

constitutional, statutory, and common-law evidentiary rules. State v. Gunby, 282 Kan. 39, 

47, 144 P.3d 647 (2006). The district court found the accusation evidence was "nothing 

more than a statement of Hulett's opinion as to Johnson's guilt." In reaching this 

conclusion, the district court cited K.S.A. 60-456(a) for the proposition that "[a] lay 

opinion is only admissible if it is 'rationally based on the perception of the witness.'" 

According to the district court, because Hulett did not actually see Johnson injure the 

baby, the heated accusation he directed at Johnson was simply a "baseless opinion."

The majority agrees with the district court's legal conclusion that the accusation evidence 

is an impermissible lay opinion as to Johnson's guilt. Slip op. at 14. I disagree on several 

grounds.

First, Hulett's accusation is admissible as fact evidence, not opinion evidence. One 

of the purposes of the State offering the accusation evidence is not to establish the truth 

of the matter asserted that, in Hulett's lay opinion, Johnson killed the infant, but to 

establish the truth of the matter asserted that, in fact, Hulett did not kill the infant.

Assuming the jury adopts the State's theory of the case that either Johnson or Hulett 

killed J.H., Hulett's accusation directed at Johnson, in the privacy of his home where the 
26

crime occurred, is competent evidence tending to show that he did not kill J.H. In other 

words, like Hulett's sworn testimony at the preliminary hearing that he did not kill J.H., 

his accusation made to Johnson may be considered his pretrial denial of killing J.H. In 

this way, because the accusation evidence is not offered to prove the truth of the matter 

asserted that, in Hulett's lay opinion, Johnson killed J.H., but that Hulett, in fact, did not 

kill the infant, the pretrial accusation evidence is just as admissible as Hulett's trial 

testimony in establishing that he did not kill J.H. A limiting instruction from the district 

court regarding the appropriate use of the accusation evidence could inform and guide the 

jury in its consideration of this evidence.

Of course, it is up to the jury to decide whether the State's "two suspects" theory is 

valid or whether someone else killed J.H. or if the infant died accidentally. But under the 

State's two suspects theory, the accusation evidence is admissible not as lay opinion 

evidence of Johnson's guilt but as fact evidence by the other suspect, Hulett, that he did 

not commit the crime. In this context, the evidence is offered as fact evidence which is 

relevant, material, and admissible. Moreover, given that the accusation was made a few 

days after J.H.'s death, in private, in his own residence, to his longtime girlfriend with 

whom he has two other children, and who was the only other adult present at the scene of 

J.H.'s killing, Hulett's accusation exhibits the indicia of trustworthiness.

Second, Hulett's accusation is also admissible as lay opinion testimony. Under 

K.S.A. 2019 Supp. 60-456(a), the district court may allow a witness who is not an expert 

to offer opinions or inferences if the judge finds the opinions or inferences are rationally 

based on the perception of the witness and helpful to the jury to provide a clearer 

understanding of his or her testimony.

The district court concluded the accusation evidence was impermissible opinion 

testimony because the opinion was not rationally based on the perception of the witness: 
27

"Hulett testified that he did not see Johnson harm their baby. He testified that he only 

made the accusation because he was drunk, angry, and wanted to force the issue."

More accurately, Hulett testified at the preliminary hearing: "I thought if I 

pressured her in a way of—not intimidation—but like true letting her know, hey, that I 

was upset about it, we need to figure this fuck out. That's kind of where I was." This 

testimony was corroborated by information in the complaint that Hulett had admitted to 

Agent Velazco that "he did not actually see [Johnson] hurt the child but he had come to 

that conclusion which is why he had that yelled at her." (Emphasis added.)

Was Hulett's opinion that Johnson killed J.H. rationally based on his perception? 

Despite acknowledging that "[Hulett's] accusation may have been rationally based on his 

perception of the facts," slip op. at 17, my colleagues still conclude the district court did 

not err in its finding that Hulett's opinion or inference was not "rationally based on the 

perception of the witness." K.S.A. 2019 Supp. 60-456(a)(1).

In the district court's estimation, because Hulett did not actually observe Johnson 

injure their infant daughter, his opinion was not based on his perception. But the district 

court has a mistakenly restricted understanding of the meaning of perception. As defined 

in Black's Law Dictionary, "perception" means "[a]n observation, awareness, or 

realization, [usually] based on physical sensation or experience; appreciation or 

cognition." Black's Law Dictionary 1371 (11th ed. 2019).

As thoroughly detailed in the majority opinion, at the time J.H. was injured, Hulett 

knew that he and Johnson were the only adults present in Hulett's residence; that J.H. was 

healthy and uninjured late in the evening when Johnson and Hulett went to sleep in a 

bedroom next to the living room; that before retiring the couple placed the infant on 

blankets and pillows on the living room floor; that Johnson stated she had awakened and 

given J.H. a bottle with a small amount of formula about 7:40 in the morning; and that 
28

Hulett awakened only 50 to 80 minutes later to find J.H. with vomit around her mouth, 

not breathing, unresponsive, and having recently sustained terrible skull and brain 

injuries that resulted in her death. Moreover, by his own account, Hulett also knew that 

he did not kill the infant.

It is an understatement to observe that with this fund of personal knowledge Hulett 

had sufficient awareness or realization based on his experiences and cognition to 

formulate a lay opinion that Johnson had killed J.H. Having rationally arrived at this 

conclusion, it makes sense that, in delivering his accusation, Hulett was attempting to 

pressure Johnson into admitting what he perceived to be true—that she had killed J.H. In 

short, contrary to the findings of the district court and my colleagues, Hulett's opinion 

was firmly based on a foundation consisting of his perceptions regarding the 

circumstances he personally experienced at or about the time J.H. was killed.

Third, Hulett's accusation was not an inadmissible opinion on the guilt or 

innocence of Johnson. Preliminarily, I agree with the majority that "a witness cannot 

testify that in his or her opinion the defendant is guilty." Slip op. at 15 (quoting Hunt v. 

State, 48 Kan. App. 2d 1023, 1030, 301 P.3d 755, rev. denied 298 Kan. 1202 [2013]); see 

K.S.A. 2019 Supp. 60-456(a). That is because witness testimony expressing an opinion 

about a defendant's overall guilt or innocence invades the right of a criminal defendant to 

have the jury determine from the evidence whether the defendant is guilty. Hunt, 48 Kan. 

App. 2d at 1030-31.

But as my colleagues candidly concede, Hulett's accusation did not opine that 

Johnson committed any crime, was guilty, that her actions were intentional, or resulted in 

child abuse or endangerment. It is common knowledge that many children are tragically 

but accidentally killed by a parent without the parent being guilty of any crime. Just 

because Hulett was angry at Johnson for killing J.H. does not mean he was expressing an 

opinion that she was guilty or criminally liable for her actions.
29

Moreover, K.S.A. 2019 Supp. 60-456 is typically applied in cases where a witness 

testifies in court to an inadmissible opinion on the guilt or innocence of a criminal 

defendant. See State v. Drayton, 285 Kan. 689, 701, 175 P.3d 861 (2008) ("[T]he district 

court had no discretion on whether to allow Detective Otis to express his opinion on 

Drayton's credibility or on his guilt or innocence."); State v. Steadman, 253 Kan. 297, 

304, 855 P.2d 919 (1993) (murder and robbery convictions reversed because two 

detectives testified to their opinion that the defendant was guilty); State v. Jackson, 239 

Kan. 463, 470, 721 P.2d 232 (1986) ("[W]e think it was error for the trial court to permit 

the witnesses to testify and tell the jury that in their opinions . . . the defendant committed 

the acts of molestation with which he was charged."). In the present case, however, the 

accusation evidence occurred prior to trial and without any apparent testimonial purpose.

Fourth, Hulett's accusation is admissible as an emphatic and/or emotionally 

charged spontaneous statement made by a witness prior to trial regarding a defendant's 

conduct that is later charged as a crime. In Hunt, our court explained the critical 

difference between inadmissible opinion testimony regarding the defendant's guilt and an 

admissible witness' pretrial statement that the witness believed the defendant committed 

the act. 48 Kan. App. 2d 1023, Syl. ¶ 4.

In Hunt, two brothers of the defendant were asked at trial regarding their pretrial 

beliefs regarding whether the third brother killed their mother. One brother testified at 

trial about his pretrial interview with a Kansas Bureau of Investigation agent wherein he 

said the defendant could have been involved in the murder. The brother explained that his 

opinion was based on the defendant's behavior and some comments the defendant made 

to him. The other brother testified at trial that, at the time of his mother's funeral, he 

believed the defendant was responsible for her death.
30

Our court determined that trial testimony about the witnesses' pretrial statements 

and beliefs was different than inadmissible opinion testimony regarding the defendant's 

guilt, explaining that

"the testimony provided by [the witnesses] was limited in both scope and time to the 

perceptions and beliefs they held while the police were investigating the murder in the 

few days after their mother's body had been discovered. As a result, this testimony did 

not invade the jury's role to determine guilt or innocence based on the totality of the 

evidence presented at trial. . . . Given the narrow context in which [the witnesses] 

actually testified regarding their opinions, we are not persuaded that the opinion 

testimony at issue here invaded the jury's role to determine guilt or innocence based on 

the evidence presented at trial." 48 Kan. App. 2d at 1034.

Similar to Hunt, Hulett's belief which provided the basis for his accusation was 

formulated within days of the infant's death during the police investigation but prior to 

commencement of criminal proceedings. Moreover, unlike Hunt, because the accusation 

was made in the privacy of Hulett's home and was inadvertently overheard by a neighbor 

rather than a statement made during a formal police interview, the accusation did not 

evince any testimonial purpose. As a result, even more so than Hunt, the accusation 

evidence is not properly characterized as inadmissible opinion testimony regarding 

Johnson's guilt or innocence.

One case with similar facts, wherein our Supreme Court found that a pretrial 

statement regarding the defendant's killing of a toddler was not an inadmissible lay 

opinion but simply an excited response that was admissible at trial, is found in State v. 

Mathis, 281 Kan. 99, 108, 130 P.3d 14 (2006). In Mathis, two-year-old C.S. was left at 

home in the care of the defendant while C.S.'s mother, Ikesia Scruggs, went to work. At 

the time Scruggs left, C.S. was described as active and energetic with a big appetite. 

Scruggs returned home in the afternoon, left briefly, and upon her return found Mathis in 

the shower and C.S. "limp, and his eyes were rolling." 281 Kan. at 102. Scruggs drove 
31

C.S. to the emergency room where he was found to have labored breathing, a weak pulse, 

cyanosis, and, shortly upon admission, he suffered a heart attack. C.S. later died of his 

injuries. According to our Supreme Court, "C.S. suffered severe internal injuries and 

internal bleeding. The cause of death was determined to be multiple blunt force blows to 

the abdomen, delivered with a force comparable to an automobile accident." 281 Kan. at 

102.

Mathis was charged and convicted by a jury of felony murder in the death of C.S. 

On appeal, Mathis claimed the district court erred when Scruggs' mother, Diane Scruggs, 

was impermissibly allowed to testify at trial regarding her opinion that Mathis was guilty 

of killing C.S. Our Supreme Court reviewed the merits of Mathis' claim. As described in 

the opinion:

"Diane testified that, when she saw C.S. covered with bruises in the emergency 

room, 'I automatically ran out and I ran and held my brother and said that that—I said 

that that goddamned [Mathis] done killed the baby.' Mathis complains that her conclusion 

was pure conjecture and invaded the province of the jury. As the State points out, Diane's 

testimony was her excited response to seeing the injured C.S. rather than about her 

opinion at the time of trial of the defendant's guilt." 281 Kan. at 108.

Our Supreme Court found no error in the admission of the excited pretrial 

exclamation, and that Mathis' trial attorney was not ineffective by failing to object to this 

testimony. The conviction was affirmed. 281 Kan. at 109-11.

Like Mathis, Hulett's pretrial accusation was a spontaneous, angry, out-of-court 

statement, and not an opinion on the defendant's guilt akin to trial testimony. Unlike 

Mathis, where the witness had no ostensible basis to support her allegation that the 

defendant was the killer, as detailed earlier by my colleagues, Hulett had a considerable 

fund of personal knowledge upon which to base his accusation. In this context, Mathis
32

provides even more valuable precedent that Hulett's accusation is not an inappropriate 

invasion of the jury's province to determine the guilt or innocence of Johnson.

A third Kansas case, State v. Deiterman, 271 Kan. 975, 29 P.3d 411 (2001), also 

provides binding legal authority that a spontaneous, emphatic pretrial statement that a 

defendant killed a person is not an inadmissible lay opinion that invades the jury's 

province to determine the guilt or innocence of the defendant.

Deiterman was convicted of capital murder, conspiracy to commit capital murder, 

and aggravated robbery. The victim, James Patrick Livingston, was killed by two shotgun 

blasts, one of which was at close range to the back of his head. At trial, the State 

established the death resulted from a murder-for-hire scheme initiated by Livingston's 

wife. At trial, one of the coconspirators testified for the State that Deiterman shot and 

killed Livingston.

The defendant's girlfriend and later wife, Meghan Deiterman, testified at trial and 

denied that she had spoken with an acquaintance, John Barnes, regarding the defendant's 

role in the murder. The State then called Barnes as a witness to inquire about Meghan's 

statement. Deiterman objected to the proposed testimony, claiming "Meghan's opinion of 

guilt or innocence was irrelevant and highly prejudicial." 271 Kan. at 983. After 

conferring with counsel outside the presence of the jury regarding the proposed 

testimony, the district court overruled the objection. As related by our Supreme Court: 

"The court decided that the answer was not an opinion but rather an emphatic statement. 

After resuming, the prosecution rephrased the question: 'When you asked her about the 

murder in Kansas what was her comment, what did she say?' Barnes responded: 'That 

[Deiterman] blew his damn head off.'" 271 Kan. at 983.

On appeal, Deiterman reprised his objection that his wife's statement was 

irrelevant opinion testimony and highly prejudicial. Our Supreme Court concluded: "The 
33

response is not one of an opinion of guilt or innocence but rather the emphatic positive 

statement, '[Y]eah, he blew his damn head off.'" 271 Kan. at 984. As a result, the 

Supreme Court found no error in the district court's admission of the evidence.

Hunt, Mathis, and Deiterman stand for the proposition that an emphatic and/or 

emotionally charged spontaneous statement made by a witness prior to trial about a 

defendant's conduct that is later charged as a crime is not an inadmissible lay opinion 

regarding the guilt or innocence of the defendant.

Fifth, although Hulett testified at the preliminary hearing that Johnson did not 

admit to killing J.H., his testimony did not indicate whether Johnson denied the 

accusation or whether she remained silent. To the extent that Johnson remained silent, 

prejudicial statements made in the defendant's presence and tolerated without resentment, 

explanation, or denial may be admissible as adoptive admissions under K.S.A. 2019 

Supp. 60-460(h)(2).

In order for a defendant's silence to meet the statutory standard for an adoptive 

admission, the evidence must show: (1) the statement was extrajudicial, (2) it was 

incriminatory or accusative in import, (3) it was one to which an innocent person would 

in the situation and surrounding circumstances naturally respond, (4) it was uttered in the 

presence and hearing of defendant, (5) defendant was capable of understanding the 

incriminatory meaning of the statements, (6) defendant had sufficient knowledge of the 

facts embraced in the statement to reply thereto, and (7) defendant was at liberty to deny 

it or to reply thereto. State v. Ransom, 288 Kan. 697, 712, 207 P.3d 208 (2009). Even 

with the limited record before us, it appears that these seven factors were met, so if, in 

fact, Johnson did not respond to Hulett's accusation, the accusation evidence would be 

admissible regardless of whether Hulett's statement is considered opinion evidence.
34

In summary, my colleagues state that "it is not the role of an appellate court to 

substitute our judgment for the district court's reasonable exercise of its discretion." Slip 

op. at 18. I agree. But, as set forth above, the district court's ruling in this case was 

without a proper legal basis which is not a reasonable exercise of judicial discretion but 

an error of law. See State v. Brown, 307 Kan. 641, 644, 413 P.3d 783 (2018) (An 

appellate court exercises de novo review of a challenge to the adequacy of the legal basis 

of a district judge's decision on admission or exclusion of evidence.); State v. Miller, 308 

Kan. 1119, 1166, 427 P.3d 907 (2018) (Whether a particular legal principle or statutory 

rule governs the admission of particular evidence is a question of law subject to de novo 

review.). The district court's error of law requires the reversal of the evidentiary ruling 

excluding the accusation evidence.

THE ACCUSATION EVIDENCE IS NOT MORE PREJUDICIAL THAN PROBATIVE

As the majority points out:

"Following its ruling at the pretrial hearing, the district court also found in its 

memorandum decision that even if the various evidence relating to Hulett's accusation 

were otherwise admissible—Hulett's testimony, the neighbor's report, and Johnson's 

conversation with the FBI agent—the court would nevertheless exclude the evidence 

because its potential for undue prejudice substantially outweighed its probative value. In 

particular, the court observed that Hulett's accusation, though of limited probative value, 

would tempt the jury to short-circuit its fact-finding role and instead convict Johnson 

because Hulett said she was responsible." Slip op. at 19.

My colleagues forthrightly assess the district court's prejudice analysis "a close 

question." Slip op. at 20. Upon review, I have a different assessment.

At the conclusion of the preliminary hearing the district court found there were 

only two possible suspects in the killing of J.H. According to the district judge:
35

"The medical evidence is clear as to the manner and extent to which the child 

was injured. So the issue comes down to who did it. As far as I can tell, there's only two 

people had opportunity. And that was the mother and the father. [Hulett] and the 

defendant. At a preliminary hearing, I don't weigh the credibility of the witnesses. 

[Hulett] has denied he did it. That leaves only the defendant." (Emphases added.)

More than 10 months later, however, the district court had an unexpected change 

of heart. Five days prior to the scheduled jury trial, during a hearing on an unrelated 

matter, the district court sua sponte announced its intention to preclude the accusation

evidence at trial. As the district court later explained in its written memorandum:

"[U]pon analysis, the court believes that this evidence's importance to the [S]tate

is not in its high level of relevance, but in its great potential for undue prejudice. The 

evidence offers an easy shortcut to a conclusion of guilt that avoids the difficult process

of an analysis of the physical evidence and witness testimony by adopting the easy two

step analysis offered by the [S]tate, to-wit: Hulett credibly denied his guilt, so the only 

other suspect must be guilty. How can anyone say that the jury could not fall for this trap

during their deliberations when this court fell for this same error in logic in binding the 

defendant over for trial at the preliminary hearing[?]" (Emphases added.)

At the outset, while my colleagues highlight "the court's deliberative analysis and 

thoughtful conclusion," slip op. at 18, I am convinced the district court again erred as a 

matter of law in failing to engage in any meaningful weighing of the probative and 

prejudicial aspects of the accusation evidence.

By way of analogy, our Supreme Court in Gunby, 282 Kan. at 49, enunciated a 

three-part test to be used in evaluating the admissibility of prior crimes evidence under 

K.S.A. 60-455. The third part of the test used by the district court provides that if the fact 

to be proven was material and the evidence was relevant to prove a disputed material fact, 

the district court must determine whether the risk of undue prejudice to the defendant 
36

substantially outweighs the probative value of the evidence. See State v. Satchell, 311 

Kan. 633, 644-45, 466 P.3d 459 (2020) (clarifying that despite prior shorthand references 

omitting the word "substantially," that the risk of undue prejudice must "substantially 

outweigh" the probative value of the evidence).

Our Supreme Court recently articulated an analytical framework for analyzing 

whether K.S.A. 60-455 evidence is more probative than prejudicial. In particular, the 

Supreme Court found:

"In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, 

the district court should consider, among other factors: the likelihood that such evidence 

will contribute to an improperly based jury verdict; the extent to which such evidence 

may distract the jury from the central issues of the trial; and how time consuming it will 

be to prove the prior conduct.'" State v. Claerhout, 310 Kan. 924, 930, 453 P.3d 855 

(2019) (quoting State v. Boysaw, 309 Kan. 526, 541, 439 P.3d 909 [2019]).

Upon my review of the district court's oral and written pronouncements in this 

matter, I can find nothing to show the district court engaged in any particularized 

weighing of the prejudicial effect of the accusation evidence, similar to weighing factors 

our Supreme Court established in the context of K.S.A. 60-455 evidence. On the 

contrary, the district court simply and briefly stated there would be undue prejudice 

because admission of the accusation evidence would be "an easy shortcut to a conclusion 

of guilt" based on an "error in logic." Similar to Claerhout, "the district court's stated 

reasoning was so abbreviated that we cannot determine what factors, if any, it considered 

in reaching its conclusion." 310 Kan. at 930.

Neither the district court nor my colleagues explain the "error in logic," "easy 

shortcut," or "trap" the district court found that was unduly prejudicial. On the contrary, 

the logic is simple, rational, and compelling: Suspect A and Suspect B are at the crime 

scene where an infant is killed. Based on expert medical and forensic testimony, Suspect 
37

A and Suspect B are the only possible killers. Suspect A testifies at trial, with 

corroboration from a neighbor, that shortly after the infant's death he angrily accused 

Suspect B of killing the infant. After evaluating all the trial evidence, the jury finds there 

were only two suspects in the killing, and that Suspect A is a truthful witness. Based on 

this evidence, is it not logical or reasonable for the jury to deduce that Suspect B killed 

the infant?

The only basis the district court gave for concluding the accusation evidence had 

"great potential for undue prejudice" is that "[t]he evidence offers an easy shortcut to a 

conclusion of guilt that avoids the difficult process of an analysis of the physical evidence 

and witness testimony." This explanation is inexplicable.

Only evidence that actually or probably brings about the wrong result under the 

circumstances of the case is unduly prejudicial. State v. Richmond, 289 Kan. 419, 438, 

212 P.3d 165 (2009). Without the jury's consideration of the physical evidence 

(radiographic slides, photographs of the interior of the house showing J.H.'s bedding and 

baby bottle; the autopsy report with photographs, diagrams, and measurements of the 

infant's external and internal injuries) and witness testimony (expert medical and forensic 

opinions by doctors and nurses; testimony by investigating police officers and Hulett) the 

accusation evidence is of little weight in tending to prove that Johnson killed J.H. That's 

because the physical evidence and witness testimony provide the essential foundation—

time, place, opportunity, suspects, manner of death—for the jury to conclude that only 

Johnson or Hulett or both committed the crime. In essence, the accusation testimony is 

not "an easy shortcut" but, on the contrary, demands that the jury travel a long and 

involved evidentiary road and carefully consider whether the physical evidence and 

witness testimony supports or undermines the State's "two suspects" theory.

Moreover, the district court's concern about an "error in logic" or "trap" if the 

accusation evidence is admitted at trial, if true, would also preclude any trial testimony by 
38

Hulett denying that he killed J.H. That's because, under the circumstances of this case, 

whether the State tends to show that Hulett did not kill J.H. by introducing the accusation 

evidence or by having Hulett testify in court that he did not kill his daughter, the 

inferences from the evidence are identical: Since Hulett did not kill J.H., Johnson must 

have killed J.H. Employing the district court's reasoning regarding a purported error in 

logic, if Hulett simply and credibly testifies in court that he did not kill J.H., it follows 

that the jury also would be trapped and ignore the physical evidence and other witness 

testimony and simply convict Johnson solely based on Hulett's sworn trial testimony. In 

other words, based on the district court's reasoning, because of undue prejudice Hulett 

should not be allowed to testify in court that he did not kill J.H.! Quite simply, the district 

court's reasoning makes no sense.

Because the district court's ruling did not explain or show that the risk of undue 

prejudice to the defendant substantially outweighed the probative value of the evidence, 

this failure is another error of law which requires reversal of the ruling.

THE ACCUSATION EVIDENCE BY MATT BROWN IS ADMISSIBLE

The district court ruled that "Mr. Brown's testimony is hearsay and that it only 

becomes admissible because Schuyler Hulett is available to testify AND THE COURT 

ORDERS Mr. Brown's proposed testimony is inadmissible at trial because of the Court's 

ruling herein on Schuyler Hulett's proposed testimony."

"Evidence of a statement which is made other than by a witness while testifying at 

the hearing, offered to prove the truth of the matter stated, is hearsay evidence and 

inadmissible [unless an exception applies]." K.S.A. 2019 Supp. 60-460. Whether K.S.A. 

2019 Supp. 60-460(a) exempts the hearsay use of the statement turns on the district 

court's determination of the admissibility of the accusation as discussed earlier in this 

dissent, because to qualify under this exception, the statement must be admissible if it 
39

were made by the declarant while testifying as a witness. Consistent with my earlier 

analysis, if Hulett and Brown testify at trial that Hulett made the accusation which Brown 

overheard—and the accusation is offered to prove the truth of the matter asserted—there 

is no hearsay problem precluding Brown's testimony.

Additionally, if a party offers a statement for reasons other than to prove the truth 

of the matter stated, the statement is not hearsay and it is admissible like any other 

relevant evidence. State v. McKissack, 283 Kan. 721, 736, 156 P.3d 1249 (2007). A 

statement is not hearsay if it is used circumstantially as giving rise to an indirect 

inference but not as an assertion to prove the matter asserted. State v. Randle, 311 Kan. 

468, 476-77, 462 P.3d 624 (2020).

In the district court's view, Brown's account of the accusation is inadmissible 

hearsay, in part, because it is offered to prove the truth of the matter asserted that Johnson 

killed the infant. But the district court did not acknowledge that Brown's account of the 

accusation is not hearsay when used to establish the indirect inference that Hulett did not 

kill the infant. Under the later purpose, the evidence is admissible.

JOHNSON'S DENIAL THAT HULETT ACCUSED HER

OF KILLING J.H. IS ADMISSIBLE EVIDENCE

Finally, the State appeals the exclusion of evidence that during an interview with 

FBI Agent Velazco, Johnson denied that Hulett ever accused her of killing their baby. As 

the district ruled on this issue:

"The [S]tate seeks to introduce evidence that Johnson denied to an investigating 

FBI agent that she and Hulett had an argument wherein he accused her of having killed 

his baby. The [S]tate suggests that this lie shows that Johnson was not truthful in her 

statements to law enforcement officers in regard to the killing of her child. As evidence 

of the defendant's dishonest character, this evidence is inadmissible under K.S.A. 60-422 

(c) and (d)."
40

On appeal, as it did in the district court, the State asserts that K.S.A. 60-422(d) is 

inapplicable because the State is not offering evidence of specific instances of conduct 

relevant only to tending to prove a trait of Johnson's character. On the contrary, the State 

contends it is offering this evidence as substantive evidence "because the credibility of 

statements made by two parents of a baby who has been killed to law enforcement [is] 

relevant for the jury when determining the reliability of versions of the story of how the 

baby died."

My colleagues implicitly find that the district court's reason for excluding this 

evidence under K.S.A. 60-422(d) is misguided. Slip op. at 21. In particular, they cite the 

Advisory Committee Notes to the 2003 Amendment to Rule 608 of the Federal Rules of 

Evidence which state that proof of specific instances of a witness' untruthfulness may be 

considered for grounds other than character, such as bias or prejudice. Slip op. at 21. 

That, of course, is the reason the State asserts the accusation evidence is admissible.

K.S.A. 60-420 provides:

"Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting 

the credibility of a witness, any party including the party calling the witness may examine 

the witness and introduce extrinsic evidence concerning any conduct by him or her and 

any other matter relevant upon the issues of credibility."

K.S.A. 60-422(d), in turn, restricts the manner of proving a witness' character 

traits by disallowing evidence of specific instances of the witness' conduct which are 

relevant only to the witness' character trait. Further, when a person's character trait tends 

to prove conduct on a specified occasion, the trait may not be proven with evidence of 

specific instances of conduct other than prior convictions. K.S.A. 60-447(a).
41

Evidence may be admitted for a proper purpose, however, even though it may be 

inadmissible for some other purpose. K.S.A. 60-406 (recognizing admissibility of 

relevant evidence for limited purpose). "So evidence that would be inadmissible to prove 

a general character trait of the witness may be admitted if it would otherwise be relevant 

either as bearing on the witness' credibility or for some other purpose." State v. Bollig, 

No. 120,398, 2020 WL 3566537, at *6 (Kan. App. 2020) (unpublished opinion).

I agree with my colleagues that proof of specific instances of a witness' 

untruthfulness may be considered for grounds other than character, such as bias or 

prejudice. Indeed, bias and prejudice are commonly thought of as reasons that people 

skew their account to favor one party (bias) or to discredit the other (prejudice) based on 

some individualized like or dislike of that party. But a person's reason to provide false 

information need not be so personalized, and admissible bias or prejudice may include 

any distinct motive to lie. Bollig, 2020 WL 3566537, at *7; Longus v. United States, 52 

A.3d 836, 850 (D.C. App. 2012) (bias includes witness' personal disposition for or 

against a party and any distinct motive to lie). Particularly relevant to this appeal,

otherwise inadmissible evidence may be admitted to demonstrate a defendant's state of 

mind or motive when providing information to police. McKissack, 283 Kan. at 738.

Kansas law has long held that false, exculpatory statements made by a defendant

are admissible to show a consciousness of guilt and unlawful intent. In State v. Norwood, 

217 Kan. 150, 535 P.2d 996 (1975), Norwood and a codefendant were charged with 

burglary and theft. Norwood testified at trial, was convicted of theft, but was granted a 

new trial. In the second trial, during its case-in-chief, the State introduced Norwood's 

testimony from the first trial regarding his whereabouts at the time of the crime. A 

detective then testified to statements Norwood made to him regarding his whereabouts at 

the time of the crime, which were contrary to Norwood's testimony in the first trial.

Norwood was convicted.
42

On appeal, Norwood claimed this procedure constituted improper impeachment. 

Our Supreme Court disagreed and upheld the admissibility of both statements:

"In view of the fact these statements were inconsistent, we believe it was relevant as 

tending to show defendant's guilt. False exculpatory statements made by a defendant are 

admissible to show a consciousness of guilt and unlawful intent. (United States v. Tager, 

481 F.2d 97 (10th Cir. 1973). In an early Kansas case this court stated:

"'. . . It is always competent to show the statements and claims made by a person 

charged with crime with reference thereto, and to show that such statements are false. The 

fact that a defendant in a criminal case resorts to falsehood is a circumstance which may, 

in connection with other facts in the case, tend to prove guilt.'" (Emphasis added.)

Norwood, 217 Kan. at 155 (quoting State v. Oliver, 55 Kan. 711, 714, 41 P. 954 [1895]).

See State v. Chandler, 307 Kan. 657, 672, 414 P.3d 713 (2018) ("Her inconsistent 

statements also constitute suspicious post-murder conduct demonstrating consciousness 

of guilt.").

Applying this precedent to the issue on appeal, Johnson's denial of Hulett's 

accusation to Agent Velazco shows that she was willing to provide false information to 

authorities regarding evidence implicating her in the murder of her daughter. This 

demonstrable willingness to lie about inculpatory evidence reveals Johnson's 

consciousness of guilt when providing information to authorities and is a form of bias 

separate and distinct from any general character trait of dishonesty. Given the State's 

purpose in offering this accusation testimony, the district court made an error of law in 

disallowing it under K.S.A. 60-422(d).

Despite the district court's legal error, my colleagues find that

"this evidence is predicated on [the State's] ability to discuss—and an assumption of the 

accuracy of—Hulett's accusation. And even if evidence of Johnson's interview with the 

FBI agent were otherwise admissible, the district court found that such evidence . . . was 
43

inadmissible because the probative value of Hulett's accusation was substantially 

outweighed by its potential for undue prejudice." (Emphasis added.) Slip op. at 22.

My colleagues are mistaken.

First, as to Agent Velazco's testimony that Johnson denied that Hulett made the 

accusation, the truth or accuracy of the accusation is irrelevant. Whether Hulett's 

accusation is true or not, the probative quality of the evidence is that although Hulett 

testified the accusation was made and it was overheard by Brown, when asked about it by 

Agent Velazco, Johnson denied that any accusation was ever made against her. Herein 

lies the probative nature of this particular evidence—it establishes Johnson's 

consciousness of guilt—separate and apart from the truth of Hulett's allegation. A 

limiting instruction from the district court could inform the jury of the limited purpose of 

this evidence.

On the other hand, as discussed earlier, the accusation evidence proven through 

the testimony of Agent Velazco is highly probative and admissible for the truth of the 

matter asserted, that Johnson killed J.H., or for the collateral purpose to show that Hulett 

did not kill the baby. Under either rationale—and separate from admitting the accusation 

evidence through Agent Velazco to prove Johnson's consciousness of guilt—the evidence 

is admissible through Agent Velazco.

Finally, and contrary to the majority's finding, the district court did not conduct 

any analysis of whether the risk of undue prejudice to the defendant substantially 

outweighed the probative value of the evidence in the specific context of Agent Velazco's 

testimony that Johnson lied to him about the accusation ever being made. This is another 

error of law.
44

CONCLUSION

It has been stated:

"'The jury 'is a central foundation of our justice system and democracy.' PenaRodriguez v. Colorado, 580 U.S. __, 137 S. Ct. 855, 860, 197 L. Ed. 2d 107 (2017). We 

rely on jurors to observe witnesses' demeanor, to listen to their testimony, and to weigh 

the evidence presented in the context of each party's arguments to determine what 

versions of events are credible. And once jurors have been instructed on the law, we trust 

them to apply that law to the facts and render a verdict." State v. Olsman, 58 Kan. App. 

2d 663-64, 473 P.3d 937 (2020) (Warner, J., concurring in part and dissenting in part).

As described above, our jury system is a remarkable expression of a free and 

democratic society, predicated on the rule of law and empowered by individual citizens 

who, under the guidance of a judge, collectively determine the guilt or innocence of 

criminal defendants.

But our jury system is undermined when a district judge erroneously prevents the 

jury from considering relevant evidence that is important to a just verdict. Here, the 

district court's ruling, from its sua sponte inception to its flawed reconsideration, invades 

the province of the jury by withholding from its consideration admissible evidence that is 

probative of Johnson's guilt or innocence in the killing of J.H. The jury, properly 

instructed, is fully capable of applying Kansas law, assessing the truth of the evidence—

including the accusation—and arriving at a verdict regarding whether Johnson is 

criminally liable for her daughter's death.

I would reverse the district court's sua sponte ruling and, under these unique 

circumstances, remand with directions for the district court to conduct an evidentiary 

hearing and reconsider the admissibility of the accusation evidence by properly applying 

Kansas law as discussed in this dissenting opinion. In the event the district court rules 
45

that the accusation evidence is admissible only for one or more limited purposes, the 

court should prepare a limiting instruction to inform the jury of the specific purpose(s) for 

which the evidence is admitted.