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NOT DESIGNATED FOR PUBLICATION

No. 120,506

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MELVIN LASHAWN TOLIVER,

Appellant.

MEMORANDUM OPINION

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

2020. Affirmed.

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

Kendra Lewison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek 

Schmidt, attorney general, for appellee.

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

PER CURIAM: Melvin Lashawn Toliver was convicted of stalking but was 

acquitted of sexual battery for events occurring in May 2018. In this appeal, Toliver 

claims numerous trial errors denied him a fair trial, and he seeks reversal of his 

conviction. After a careful review of the record, we conclude that Toliver's challenges do 

not warrant reversal, and we affirm his conviction and sentence.
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FACTUAL AND PROCEDURAL BACKGROUND

From December 2017 until May 2018, K.M. lived on Fremont Street in 

Manhattan, Kansas. Starting in March 2018, Toliver began showing up at K.M.'s door. 

The first time, Toliver asked for someone named "Mario." The second and third time, 

Toliver asked for K.M.'s short-term roommate, Henry "Goldie" Jones. The first time 

Toliver asked for Jones, Jones was not at the residence, and K.M. told Toliver not to 

return. Nevertheless, Toliver continued to show up, once when Jones was at the Fremont 

residence and on several occasions after Jones moved out.

Most of the incidents fit a pattern. K.M. worked as a server at a local bar. After the 

bar closed at 2 a.m., K.M. would sometimes host people at her Fremont residence, and 

Toliver would appear during that time. If K.M.'s guests were still at her residence, K.M.

would answer the door; if she was alone, however, she would not. K.M. moved to a new 

residence on North 11th Street in Manhattan in May 2018, but Toliver appeared there as 

well. K.M.'s threat to call the police did not dissuade Toliver from coming to K.M.'s 

residence. In total, K.M. estimated that Toliver came to her residence six or eight times.

On May 4, 2018, S.H., K.M.'s girlfriend, was leaving a Manhattan bar with her 

friends around closing time. While S.H. was waiting with her friends for their ride to 

arrive, Toliver approached her from behind. Toliver asked S.H. if she was "interested in 

females" and "liked girls" and asked S.H. to go home with him. S.H. turned away but 

soon felt Toliver press his crouch against her thigh. S.H. quickly left the area after her 

friends' ride arrived and, upon encountering police officers nearby, asked the officers to 

walk her to her car. S.H. mentioned the encounter to the officers but did not ask them to 

make a report concerning the incident.

Two days later, in the early hours of May 6, 2018, K.M. walked home to her 11th 

Street residence following her night shift at the bar. Shortly after arriving at home, K.M.'s
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dog started barking at the bedroom window. When K.M. pulled back the curtains, she 

saw Toliver standing outside her apartment in the grass and looking at her through the

window. Afraid, K.M. called S.H. and asked her to come over.

Ten minutes later, S.H. arrived at K.M.'s residence and recognized Toliver from 

the incident two nights earlier. As S.H. entered K.M.'s residence, Toliver yelled to S.H., 

"Hey! Hey, I know you've seen me. Hey, come talk to me. I know you can hear me."

However, S.H. did not stop or talk to Toliver. Instead, S.H. entered K.M.'s residence, and 

together they called the police.

Toliver was charged with stalking K.M. and sexual battery for the incident 

involving S.H., both class A person misdemeanors. Toliver moved to have the charges 

severed, but the district court denied the motion. Following a jury trial, Toliver was found 

guilty of stalking but not guilty of sexual battery. Toliver was sentenced to an underlying 

sentence of 12 months, but, after spending 4 days in the Riley County Jail, he was placed 

on probation for 12 months.

Toliver timely appeals.

ANALYSIS

Toliver raises four issues on appeal. First, Toliver contends that the district court 

abused its discretion when it denied his motion to sever the stalking and sexual battery 

charges. Second, Toliver argues that the district court erred by admitting the statements 

made by K.M. and S.H. to police officers because they were not relevant and were 

unduly prejudicial. Third, Toliver argues that the State's decision not to have victims 

from Toliver's prior crimes testify was tantamount to suppression of exculpatory 

evidence. Fourth, Toliver contends that the cumulative effects of these errors resulted in 

an unfair trial. We address each claim in order.
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I. DID THE DISTRICT COURT ERR BY NOT SEVERING THE STALKING AND SEXUAL 

BATTERY CHARGES?

Toliver argues that the stalking and sexual battery charges were not of the same or 

similar character and were improperly joined for trial. He alleges the failure to sever was 

prejudicial and resulted in jury confusion. The State argues the district court correctly 

denied severance of the charges.

The appellate court reviews potential joinder errors using a three-step analysis, 

applying a different standard of review at each step:

"'First, we consider whether K.S.A. 22-3203 permitted joinder. Under that statute, 

multiple complaints against a defendant can be tried together if the State could have 

brought the charges in a single complaint. K.S.A. 22-3202(1) spells out the three 

conditions permitting the joining of multiple crimes in a single complaint. Whether one 

of the conditions is satisfied is a fact-specific inquiry, and we review the district court's 

factual findings for substantial competent evidence and the legal conclusion that one of

the conditions is met de novo.'

"'Second, because K.S.A. 22-3202(1) provides that charges "may" be joined, a 

district court retains discretion to deny a joinder request even if a statutory condition is 

met. We review this decision for an abuse of discretion.'

"'Finally, if an error occurred in the preceding steps, we determine whether the 

error resulted in prejudice, i.e., whether the error affected a party's substantial rights. 

K.S.A. 2012 Supp. 60-261.' [Citations omitted.]" State v. Ritz, 305 Kan. 956, 961, 389 

P.3d 969 (2017).

We first engage in a fact-specific inquiry to determine if the two separate crimes 

were properly joined in a single complaint. K.S.A. 22-3202(1) allows two or more crimes 

to be charged in the same complaint if: (1) the charges are of "the same or similar 
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character"; (2) the charges are part of the "same act or transaction"; or (3) the charges 

result from "two or more acts or transactions connected together or constituting parts of a 

common scheme or plan." The district court found that the two alleged crimes were 

properly joined because they were of the same or similar character. In so concluding, the 

district court identified no less than 11 similarities between the alleged crimes.

The district court noted that the victims were both female and of similar age; the 

crimes occurred in the same area of Manhattan around the same time of night; the crimes 

occurred within two days of each other; Toliver was identified by both victims as the 

perpetrator; and the crimes were reported to the same police officer. Both crimes were 

investigated as part of a single criminal investigation, carried the same gravity—both 

class A misdemeanors, required trial by jury, and shared the same potential for 

incarceration.

Toliver argues that the similarities identified by the district court are mere 

generalities, insufficient to warrant joinder under the statute. See State v. Barksdale, 266 

Kan. 498, 508, 973 P.2d 165 (1999) (warning against "relying solely on generalities when 

considering the propriety of joinder"). However, such similarities have routinely been 

upheld as sufficient to permit joinder under K.S.A. 22-3202, particularly when the 

alleged crimes have "multiple commonalities" and do not merely share the same 

classification of one of the crimes charged. State v. Smith-Parker, 301 Kan. 132, 157, 340 

P.3d 485 (2014). See, e.g., Ritz, 305 Kan. at 963-64 (finding two sets of crimes involving

fleeing law enforcement to be same or similar, despite factual differences in underlying 

theft charges and addition of felony-murder charge in only one case, when there were 

numerous factual similarities in how crimes were perpetrated, both sets of crimes

required trial by jury, and carried incarceration as punishment); State v. Cruz, 297 Kan. 

1048, 1050-53, 1055-56, 307 P.3d 199 (2013) (finding two murder charges to be same or 

similar, despite crimes being committed 17 months apart, when, among other things, 

crimes were committed at same time of night and in similar locations; defendant was 
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identified as perpetrator in both incidents; and same witnesses would be called at trial);

State v. Gihring, No. 118,234, 2019 WL 1868364, at *7 (Kan. App. 2019) (unpublished 

opinion) (finding two rape crimes to be same or similar when, among other things, 

victims were approximately same age and both identified defendant as perpetrator; and 

crimes were of same severity level, occurred in same jurisdiction, were scheduled for jury 

trial, and carried same punishment—incarceration).

As those cases demonstrate, "[w]hen all of the offenses are of the same general 

character, require the same mode of trial and the same kind of evidence, and occur in the 

same jurisdiction," the separate charges may be properly consolidated under K.S.A. 22-

3202(1). State v. Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994); see also Barksdale, 

266 Kan. at 507 (noting similarity of punishments is another factor to consider when 

considering crimes to be "of the same or similar character"). This is not an exacting 

standard. Instead, our courts have noted that it is rare for appellate courts to overturn 

convictions after a trial court denied severance and have even gone so far as holding that 

"joinder of similar crimes is the rule and severance is the exception." State v. Bunyard, 

281 Kan. 392, 402, 133 P.3d 14 (2006), disapproved of on other grounds by State v. 

Flynn, 299 Kan. 1052, 329 P.3d 429 (2014).

We note Toliver does not dispute that the district court's factual findings were 

supported by the record, and, after reviewing the record, we find there is substantial 

competent evidence supporting those factual findings. We agree with the district court's 

legal conclusion that the two crimes were of a same or similar character and therefore

properly joined under K.S.A. 22-3202(1).

The second step of our analysis requires us to determine whether the district court

abused its discretion. On appeal from the denial of a motion to sever, the party claiming 

error has the burden to establish a clear abuse of discretion. See Smith-Parker, 301 Kan. 

at 161. In this regard, Toliver does not argue that the district court abused its discretion, 
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and we see no basis for such an argument. To the contrary, we note that the district 

court's ruling was thorough and well-supported, demonstrating a careful exercise of 

discretion. Accordingly, we conclude that the district court did not abuse its discretion in 

denying the motion to sever. 

Finally, if an error occurred in the preceding steps, the third step of analysis

requires that we consider whether the error resulted in prejudice. Ritz, 305 Kan. at 961;

see K.S.A. 2019 Supp. 60-261. Having found no error in the district court's denial of 

severance of the charges, we need not proceed further. Nevertheless, we can additionally 

conclude, with conviction, no prejudice actually occurred as a result of joinder of the 

charges.

In particular, we note that Toliver's primary contention—the jury would be 

confused and unable to separately consider the charges as a result of joinder—was not 

born out at trial. For one, the jury was properly instructed to consider each charge 

"separately on the evidence and law applicable to it, uninfluenced by your decision as to 

any other charge." Our courts have routinely held that such an instruction negates any

jury confusion or prejudicial effect of trying a person on multiple counts. See, e.g., Cruz, 

297 Kan. at 1057-58; State v. Gaither, 283 Kan. 671, 687, 156 P.3d 602 (2007); Gihring, 

2019 WL 1868364, at *11.

Further, Toliver has not demonstrated any actual prejudice from the district court's 

decision not to sever the charges, as demonstrated by the jury acquitting Toliver of the 

sexual battery charge. Our courts have consistently held that such verdicts establish that 

the jury was able to differentiate the evidence and not jumble the charges. See Cruz, 297 

Kan. at 1058 ("Sometimes, we view acquittals as compelling evidence of a jury's ability 

to differentiate between charges joined for trial."); Bunyard, 281 Kan. at 401-02 (finding 

defendant's argument regarding "'jumbling defenses'" to be "inscrutable" when jury 

acquitted defendant of two of three counts); Gihring, 2019 WL 1868364, at *11
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("Multiple cases have held that a split verdict is compelling evidence that the jury was 

able to differentiate the evidence and not jumble the charges."); see also State v. Thomas, 

No. 119,240, 2019 WL 3977820, at *5-6 (Kan. App. 2019) (unpublished opinion) 

(finding similar jury instruction to have been "effective" when defendant was acquitted of 

some charges).

Finally, Toliver's related argument—the failure to sever resulted in the prejudicial 

admission of other-crimes evidence under K.S.A. 60-455—has also been routinely 

rejected by our courts. See Smith-Parker, 301 Kan. at 161; Gaither, 283 Kan. at 688; 

Barksdale, 266 Kan. at 510; Gihring, 2019 WL 1868364, at *11-12. Instead, "'Kansas 

case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not 

dependent upon the other crimes being joined meeting the admissibility test set forth in 

K.S.A. 60-455.'" Smith-Parker, 301 Kan. at 161; Gaither, 283 Kan. at 688; Barksdale, 

266 Kan. at 510.

In sum, based on the uncontested, substantial competent evidence, a reasonable 

person could agree with the trial court that the two crimes were of the same or similar 

character. Further, Toliver has failed to demonstrate that he was prejudiced as a result of 

the district court's decision not to sever the charges. Accordingly, we conclude that the 

district court did not err by denying severance of the sexual battery and stalking charges 

against Toliver.

II. DID THE DISTRICT COURT ERR BY ADMITTING STATEMENTS MADE BY K.M. AND 

S.H. TO THE POLICE OFFICER INVESTIGATING THE ALLEGED CRIMES?

Toliver contends that several statements made by K.M. and S.H. to Officer Daniel 

Todd, the officer investigating the alleged crimes, were improperly admitted, arguing the 

statements were speculative and their admission resulted in unduly prejudicial attacks on 

Toliver's character. A trial court's decision to admit or exclude evidence is assessed using 
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several standards of review. State v. Page, 303 Kan. 548, 550, 363 P.3d 391 (2015); State 

v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).

As a general rule, all relevant evidence is admissible under K.S.A. 60-407(f). 

Relevant evidence is defined as evidence having "any tendency in reason to prove any 

material fact." K.S.A. 60-401(b). To be relevant, evidence must be both material and 

probative. Page, 303 Kan. at 550-51. Evidence is material when the fact it supports "'is at 

issue and is significant under the substantive law of the case.'" State v. McCormick, 305 

Kan. 43, 47, 378 P.3d 543 (2016). Moreover, evidence is probative if it has any tendency 

to prove any material fact. See State v. Dean, 310 Kan. 848, 862, 450 P.3d 819 (2019).

Our standard of review regarding whether evidence is material is de novo. On the other 

hand, we review whether evidence is probative under an abuse of discretion standard. 

McCormick, 305 Kan. at 47.

Even if evidence is otherwise admissible, a district court may—in its discretion—

exclude such evidence under K.S.A. 60-445 when the evidence's probative value 

outweighs its potential for producing undue prejudice. Lowrance, 298 Kan. at 291. The 

appellate standard of review for balancing these competing interests is also abuse of 

discretion, with the burden of proof resting on the party alleging such abuse. 298 Kan. at 

291. In this regard, "Kansas law favors the admission of otherwise relevant evidence, and 

the exclusion of relevant evidence is an extraordinary remedy that should be used 

sparingly." State v. Seacat, 303 Kan. 622, 640, 366 P.3d 208 (2016).

Because Toliver pleaded not guilty to the stalking and sexual battery charges, 

every material fact alleged in the charges was at issue. See K.S.A. 22-3209(3); State v. 

Donesay, 265 Kan. 60, 75, 959 P.2d 862 (1998). Thus, the evidence regarding Toliver's 

identification as the perpetrator, Toliver's intent, and K.M. and S.H.'s state of mind was

material and probative.
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Toliver filed a motion in limine challenging the admission of statements made by 

K.M. and S.H. captured on body camera worn by the investigating officer during the 

initial investigation. There are nine statements or comments which are challenged in 

summary fashion as being "speculation, improper character evidence regarding the 

Defendant and or improper prior acts" and as lacking foundation, probative value, and 

relevance. Other than a citation to caselaw discussing and defining "relevant" evidence, 

Toliver fails to cite any authority, rule of evidence, or caselaw in support of his position. 

He does not analyze or explain how each individual challenged statement violates any 

statute, rule of evidence, or caselaw authority. For example, Toliver challenges many of 

the statements as "improper character evidence" without citing any authority or 

explaining how the statements were "improper" or how he was unduly prejudiced by their 

admission. We therefore find he has waived those challenges. See State v. Sprague, 303 

Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to adequately brief an issue it 

is deemed abandoned."). Nonetheless, because Toliver has properly challenged relevance, 

we address most of the challenged statements below.

Toliver challenges K.M.'s statement, "I think [Toliver] might have figured out my 

schedule." The statement is probative to the stalking charge as it demonstrates that K.M.

believed Toliver was following her and she was afraid of Toliver. We find no abuse of 

discretion by the district court in admitting the statement.

Toliver next challenges K.M.'s statement, "He hangs around bars" as speculative. 

However, as the district court noted, this statement is based on K.M.'s own observations 

and is therefore not speculation. K.M. worked at a bar in Manhattan and had multiple 

prior experiences with Toliver. And Toliver had the opportunity to cross-examine K.M.'s 

testimony at trial. Accordingly, we find no abuse of discretion to admit this statement at 

trial.
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In the course of describing the events on the evening of the sexual battery, S.H. 

made the unexpected decision to get into her friend's car out of fear for her safety, a fact 

supported by other uncontested evidence. In her statements to the officer, S.H. stated,

"My friend looked at me cause he was like, you were going to go to your car." Although 

the statement is of minimal evidentiary value when viewed in isolation, we conclude that 

S.H.'s statement was probative as it explained and provided credibility regarding her fear 

of Toliver and her actions immediately following the alleged sexual battery. Toliver was 

acquitted of the sexual battery, and he does not explain how the admission of this 

statement is unduly prejudicial. Accordingly, we find no abuse of discretion in the 

admission of the statement.

Finally, Toliver challenges a number of statements labelling him as a "predator."

On the recording, K.M. said, "Apparently this guy's a total predator [cross-talk] and he's 

acting like a predator"; and "There's tons of creepy dudes that are super creepy, but, you 

know, not follow you home creepy and knock on your door creepy. Like it's more than 

just a coincidence to me." Toliver also objected to K.M.'s and S.H.'s characterizations of 

Toliver as having a "very noticeable predator vibe," and K.M.'s statements that "women 

get instincts," "[e]veryone in the world is creeped out by this dude," and "[p]eople were 

choosing not to be close" to Toliver.

Toliver argues these statements are not probative, are speculative, and are 

improper character attacks. As noted above, Toliver did not provide any authority or 

argument setting forth a legal theory on how or why the statements were improper 

character attacks, so we decline to address this aspect of his objection. See Sprague, 303 

Kan. at 425. These statements are probative in explaining the basis for K.M.'s and S.H.'s

fear of Toliver and, therefore, are relevant. We conclude the district court did not abuse 

its discretion by allowing the admission of the challenged statements at trial.
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III. WAS TOLIVER PREJUDICED BY THE STATE'S DECISION NOT TO CALL TOLIVER'S 

PRIOR VICTIMS TO TESTIFY AGAINST HIM?

Prior to trial, the State sought, and was granted, the ability to call three witnesses

to testify regarding Toliver's prior conviction for residential burglary with the intent to 

commit a sexual battery. In opposing the admission of his prior burglary offenses before 

the district court, Toliver argued:

"The State seeks to introduce the information from the 2009 offenses merely to 

inflame the jury, to prejudice the Defendant as to the current allegations. The only thing 

that will result is prejudicial effect absent similarity in the facts which do not exist.

. . . .

". . . Presentation of the evidence regarding the 2009 matters is nothing but 

prejudicial." (Emphasis added.)

The district court ruled it would permit admission of testimony from the prior 

victims, the officer who investigated the prior crime, and a journal entry of the prior 

conviction. At trial, however, the State ultimately decided not to present any of that 

evidence. Toliver contends the State's decision resulted in an unfair trial and the State's 

failure to disclose its decision not to use that evidence before trial amounted to 

nondisclosure of exculpatory evidence. Toliver fails to adequately explain how evidence 

which he described as "nothing but prejudicial" at the trial court level was transformed 

into "exculpatory" evidence on appeal. In support of his contention Toliver points to State 

v. Kelly, 216 Kan. 31, 33, 531 P.2d 60 (1975), which provides:

"Prosecutors are under a positive duty, independent of court order, to disclose 

exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to 

disclose evidence, the evidence withheld held by the prosecution must be clearly and 

unquestionably exculpatory and the withholding of the evidence must be clearly 

prejudicial to the defendant."
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Toliver complains that he was prejudiced by the State's decision not to call the 

witnesses to testify because his attorney had prepared anticipating the testimony of those 

witnesses. He also contends it affected his decision whether to testify. However, Toliver 

does not explain how or why his attorney would have prepared differently had the State 

informed him, in advance, that it would not call Toliver's prior victims to testify. Further, 

at trial, following disclosure by the State of its decision not to call Toliver's prior victims, 

the district court offered Toliver yet another opportunity to testify on his own behalf, 

which he declined. As such, we fail to see how the State's decision not to call the victim 

witnesses affected Toliver's presentation of evidence in his defense. We find no merit in 

Toliver's argument and no basis to conclude that the State suppressed exculpatory 

evidence.

IV. DID CUMULATIVE ERROR RESULT IN AN UNFAIR TRIAL?

Based on our review of the record, we find no errors by the district court. Thus, 

Toliver's cumulative error argument fails. See State v. Marshall, 303 Kan. 438, 451, 362 

P.3d 587 (2015). Therefore, we affirm his conviction and sentence.

Affirmed.