1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 124,054

STATE OF KANSAS,

Appellee,

v.

MARK SCHEETZ,

Appellant.

SYLLABUS BY THE COURT

1.

The contemporaneous objection rule under K.S.A. 60-404 requires a party to make 

a timely and specific objection at trial to preserve an evidentiary challenge for appellate 

review. The statute has the practical effect of confining a party's appellate arguments to 

the grounds presented to the district court.

2.

K.S.A. 60-404 directs that a verdict "shall not" be set aside, or the judgment 

reversed, based on the erroneous admission of evidence without a contemporaneous

objection at trial.

3.

K.S.A. 60-2101(b) provides the Kansas Supreme Court with jurisdiction to vacate 

any act, order, or judgment of a district court or the Court of Appeals to ensure that such 

act, order, or judgment is "just, legal and free of abuse."
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4.

Relevant evidence under K.S.A. 60-401(b) means evidence having any tendency 

in reason to prove any material fact. Relevancy has both a probative element and a 

materiality element. Evidence is probative if it has any tendency in reason to prove a fact.

Evidence is material if it addresses whether a fact has a legitimate and effective bearing 

on the decision of the case and is disputed. Our well-established law is that all relevant 

evidence is admissible unless prohibited by statute, constitutional provision, or court 

decision.

5.

An appellate court reviews a district court's evidentiary determination on 

materiality de novo, while it reviews the decision on probative value for abuse of 

discretion. A district court abuses its discretion when no reasonable person could agree 

with its decision or when its exercise of discretion is founded on a factual or legal error.

6.

An appellate court reviews prosecutorial error claims by employing a two-step 

analysis: error and prejudice. To decide error, the court must determine whether the 

prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to 

conduct the State's case in its attempt to obtain a conviction in a manner that does not 

offend the defendant's constitutional right to a fair trial. Upon finding error, the court 

must consider whether that error prejudiced the defendant's due process rights to a fair 

trial.

Review of the judgment of the Court of Appeals in 63 Kan. App. 2d 1, 524 P.3d 424 (2023).

Appeal from Norton District Court; PRESTON A. PRATT, judge. Oral argument held September 13, 2023. 

Opinion filed January 12, 2024. Judgment of the Court of Appeals reversing the district court is reversed

on the issues subject to review and is vacated in part. Judgment of the district court is affirmed.
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Jacob Nowak, of Kansas Appellate Defender Office, argued the cause and was on the briefs for 

appellant. 

Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, former 

attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: K.S.A. 60-404 requires a party to make a timely and specific objection

at trial to preserve an evidentiary challenge for appellate review. The statute has the 

practical effect of confining a party's appellate arguments to the grounds presented to the 

district court. It also directs that a verdict "shall not" be set aside, or a judgment reversed, 

based on the erroneous admission of evidence without a contemporaneous trial objection. 

Here, the State argues a Court of Appeals panel untethered itself from these statutory 

commands when reversing a jury verdict convicting Mark Scheetz of aggravated criminal 

sodomy, rape, sexual exploitation of a child, and victim intimidation. See State v. 

Scheetz, 63 Kan. App. 2d 1, 524 P.3d 424 (2023). We agree with the State, reverse the 

panel, vacate a portion of its published opinion, and affirm the convictions.

The panel held the cumulative prejudicial effect of various trial errors, including 

the admission of propensity evidence about other underage girls, denied Scheetz his 

constitutional right to a fair trial. 63 Kan. App. 2d at 33-36. But it reached that outcome 

without individually considering the specific trial objection made to each piece of 

propensity evidence. Instead, it aggregated the objections and treated the propensity 

evidence generically as a group, which allowed the panel to adopt a novel perspective of 

K.S.A. 2022 Supp. 60-455(g) on the mistaken belief that the question was "not altogether 

different from what [Scheetz] argued below." 63 Kan. App. 2d at 10.
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The panel erred in its preservation analysis, causing it to overstep appellate 

boundaries to reach questions about K.S.A. 2022 Supp. 60-455(g)'s scope not presented 

to the district court. Accordingly, we vacate its ruling on those questions. See K.S.A. 60-

2101(b). We also reject the panel's relevancy, prosecutorial error, and cumulative error 

conclusions. We affirm the district court's judgment on the issues subject to our review. 

FACTUAL AND PROCEDURAL BACKGROUND

Scheetz lived for about three years with M.C.'s mother beginning around 

November 2012. In 2019, police met with M.C. as part of another investigation to ask 

about her interactions with him. She disclosed Scheetz had molested and raped her "[a] 

lot" when she was 11 to 13 years old. She said the sexual contact occurred "[a]ll the 

time"—"potentially 75 times." 

As a result, the State charged Scheetz with two counts of aggravated criminal 

sodomy under K.S.A. 2015 Supp. 21-5504(b)(1) (sodomy with a child under 14 years 

old), two counts of rape under K.S.A. 2015 Supp. 21-5503(a)(3) (sexual intercourse with 

a child under 14 years old), and sexual exploitation of a child under K.S.A. 2016 Supp. 

21-5510(a)(2) (possessing a visual depiction of a child under 18 years old shown 

engaging in sexually explicit conduct). Later, the State amended its complaint to include 

a count of intimidating a victim under K.S.A. 2020 Supp. 21-5909(a)(1) (trying to 

dissuade a victim from testifying at trial with an intent to interfere with the orderly 

administration of justice) after confiscating a letter Scheetz addressed from jail to M.C.

During an eight-day trial, the State presented 31 witnesses, including M.C., who 

was 19 by that time. She testified Scheetz was her mother's then boyfriend, and the three 

lived together for almost three years. She described her mother's frequent drinking, quick 

temper, and tendency to make her leave the house. She described this as making her life 
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"hell." When the prosecutor asked about her connection with Scheetz at that time, she 

answered, "He was all I had."

She detailed four separate sexual encounters with Scheetz when she was 11 to 13

years old. First, M.C. had a fight with her mother and ran away one night. Scheetz went 

looking for her. After he found her, they ended up spending the night at her grandfather's 

house. The two were in the bedroom, while her grandfather slept in another room. She

could not remember specifically what Scheetz told her but remembered he "[j]ust pulled 

down" his basketball shorts, and she had oral sex with him. Next, she said Scheetz 

digitally penetrated her vagina on a hunting trip, while he took videos using his iPhone, 

"probably the [version] 4, maybe the 5." She said Scheetz had a "photo vault" application 

on his phone, where he stored "all of [their] videos." Third, she testified they had sexual 

intercourse in the rec room at her mother's house. Finally, she described a time when

Scheetz performed oral sex on her in her bedroom.

When she was 13, she moved to her biological father's house in a different city,

and never saw Scheetz again. But the two exchanged pictures via Snapchat. Scheetz sent 

her pictures of his penis, and M.C. sent him naked photos of herself. Years later, when 

investigators came to her father's house to ask about Scheetz, M.C. told them about the 

photos on his phone. She also said she would not be surprised "if he still has a pair of 

[her] panties" because he told her, "He would go down and check [her] panties to see if 

he could make [her] wet one of those nights."

During a search of Scheetz' residence and vehicle, police seized two phones 

belonging to Scheetz. His iPhone 5 had an application called "Keepsafe," a password 

protected vault for storing images separate from where they would normally be on an 

iPhone. Of those images, M.C. recognized herself in seven sexually explicit photographs 

using clues like her blanket, pillowcase, navel piercings, and a hand scar. She identified 
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herself in a picture of a female from the belly button to her breast covered by one of the 

subject's and one of the female's hands; a picture of a topless female with both of her 

breasts visible; two pictures of a vagina and a hand with the subject's fingers inserted; a 

picture of an unclothed female lying on her back touching her vagina with one hand, and 

her breasts viewable; a picture of the same female's pubic area; and a picture of a female's 

vagina and anus. Police also found a Crown Royal bag containing six pairs of women's 

underwear. M.C. did not recognize any as hers, but DNA testing of one sample yielded a 

major profile consistent with Scheetz and a partial minor profile consistent with M.C., but 

not consistent with her mother.

M.C. testified about her mother's reaction to Scheetz' and her interactions. She

said, "[T]here was a day that Mom was really upset, and she ended upcoming [sic] 

outside and screaming that, 'He's touching my daughter.'" The mother called police and 

was "scream[ing] at the cops that her boyfriend was raping her daughter." The prosecutor 

asked what made her mother say that. She responded that one night her mother entered 

the rec room while M.C. was on top of Scheetz, who saw her mother approaching and 

immediately threw her off him. The mother asked what they were doing. They said they 

were in a nipple-pinching game.

To support the victim intimidation charge, the State presented a letter Scheetz 

addressed to his brother from jail that contained another letter addressed to M.C. Scheetz 

asked his brother to mail the letter inside to her. This happened while Scheetz awaited

trial. The letter to M.C. claimed to be written by an anonymous woman, called "[a] true 

friend," but appears to be written by Scheetz. It begins with the statement: "I wanted to 

reach out to you . . . and ask if you were truly aware of the full picture of this situation." 

Then it discussed the consequences of her testifying and tried to persuade her to drop the 

case:
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"You can be his Superhero . . . . . You alone can save him. Even if something ever did 

occur . . . . 

. . . .

"[T]ell them this didn't happen and you don't want to go through with this . . . . 

[S]o maybe they can get it dismissed before . . . and nobody has to know. . . . You can 

prevent both yourself and [Scheetz] from a lot of embarrassment, as well as other 

witnesses being embarrassed. . . . I don't want you to live with the regret of [Note: 

statement redacted] . . . you were involved with something equally."

Scheetz testified in his own defense. As to M.C.'s first allegation, he recalled the 

night when the two were in her grandfather's bedroom. He said he was in his blue jeans, 

not basketball shorts. He admitted talking with M.C. on the bed but denied any sexual 

activity. He made a general denial for the other three incidents. When asked about the 

time M.C.'s mother accused him of sexual contact with M.C., he said only, that "may 

have been" since "[i]t was not uncommon for [her mother] to get drunk and talk 

nonsense." He acknowledged playing a nipple-pinching game with M.C., and that her 

mother saw them doing it.

Scheetz then addressed his collection of women's underwear. He said he started 

keeping them during his junior high years. He said not every woman he had been 

involved with contributed, but some had. He believed one pair of underwear belonged to 

M.C.'s mother. Neither the defense nor the prosecutor asked him about the photos on his 

phone or his letter to M.C.

Scheetz called four witnesses who had spent time around M.C. and him. Each 

generally denied seeing anything inappropriate.
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The jury convicted Scheetz as charged. The district court sentenced him to life in 

prison without the possibility of parole for 50 years. He appealed to the Court of Appeals, 

claiming improperly admitted propensity evidence, prosecutorial error in closing 

arguments, and cumulative error. The panel reversed his convictions after it found the

individually harmless errors had a cumulative effect that deprived him of a fair trial. 

Scheetz, 63 Kan. App. 2d at 33-36.

The State petitioned this court for review, essentially challenging all adverse 

holdings. Scheetz did not file a cross-petition for review. See Supreme Court Rule 

8.03(c)(3) ("The purpose of a cross-petition is to seek review of specific holdings the 

Court of Appeals decided adversely to the cross-petitioner.") (2023 Kan. S. Ct. R. at 57). 

Consequently, the panel's determinations against Scheetz are settled. See State v. 

Gonzalez, 307 Kan. 575, 590, 412 P.3d 968 (2018).

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of 

Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review 

Court of Appeals decisions upon petition for review).

PROPENSITY EVIDENCE AND ISSUE PRESERVATION

K.S.A. 2022 Supp. 60-455 sets out the rules for admitting evidence relating to a 

person's past wrongdoing. Subsection (a) generally prohibits evidence of a person's crime 

or civil wrongs on a particular occasion from being used as proof of that person's 

tendency to commit another crime or civil wrong on a separate occasion. Subsections (b) 

through (d) provide exceptions to subsection (a)'s general prohibition. This case is about

subsection (d), which allows evidence of the defendant committing "another act or 

offense of sexual misconduct" to be admissible and "considered for its bearing on any 
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matter to which it is relevant and probative" in criminal cases involving sex offenses.

K.S.A. 2022 Supp. 60-455(d).

We focus first on subsection (d) and how the term "act or offense of sexual 

misconduct" is defined under subsection (g) because that was the panel's central 

emphasis. In the Court of Appeals, Scheetz argued for the first time that the State's 

propensity evidence was inadmissible under subsection (g), which lists 10 specific types 

of conduct defining what constitutes an "act or offense of sexual misconduct." He 

asserted the State's evidence did not satisfy subsection (g)'s enumerative listing, which he 

argued limited its scope to those examples. The State countered that Scheetz never

presented this statutory definition-based claim to the district court, so it was not preserved 

under K.S.A. 60-404 ("A verdict or finding shall not be set aside . . . by reason of the 

erroneous admission of evidence unless there appears of record objection to the evidence 

timely interposed and so stated as to make clear the specific ground of objection.").

The panel rejected the State's contention. It held Scheetz' definitional "argument 

on appeal is not altogether different from what he argued below." (Emphasis added.) 

Scheetz, 63 Kan. App. 2d at 10. On review, the State faults the panel's preservation 

analysis, which presents a critical threshold question because K.S.A. 60-404's legislative 

mandate is clear:

"K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal 

unless a party has lodged a timely and specific objection to the alleged error at trial. The 

trial judge must be provided the specific objection, so the judge may consider as fully as 

possible whether the evidence should be admitted. Thus, appellate review is precluded if 

a party objects to evidence on one ground at trial but then asserts a different ground on 

appeal." State v. Reed, 300 Kan. 494, Syl. ¶ 6, 332 P.3d 172 (2014).
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As another Court of Appeals panel recently observed and correctly understood, 

"K.S.A. 60-404 directs that the verdict 'shall not' be set aside, nor the judgment reversed, 

without a timely [and specific] objection." State v. Clingerman, 63 Kan. App. 2d 682,

688, 536 P.3d 892 (2023).

Additional factual and procedural background

The State filed a pretrial motion to admit propensity evidence, and the court 

conducted an evidentiary hearing to consider it. The State sought the testimony from 

three underage girls, G.H., H.T., and C.K., as well as Scheetz' internet search history 

from his iPhones 5 and 8. The State argued: "[W]e think it shows a clear pattern of his 

propensity for sexual contact with underage females, and that it would be relevant for the 

jury to understand that the charged counts in this case as currently charged aren't isolated 

incidents with one victim."

G.H.'s testimony demonstrated she knew Scheetz through her father who worked 

with Scheetz, and that Scheetz was like an uncle to her. One time, Scheetz sent her a 

picture of his penis. She believed he intended to send the picture to someone else because 

it came with a text reading something like "waiting for you to come over." Then, he 

immediately sent another text stating it was an accident and asked her not to tell her 

father. G.H. said this happened in 2018 when she was 11 or 12 years old.

H.T. testified she knew Scheetz through M.C. He had messaged H.T. on Snapchat 

and offered to fill up her Jeep with gas and buy her alcohol if she would go over to his

hotel and hang out with him. She declined. Later, Scheetz sent her two pictures of his 

penis via Snapchat. She was 16 at the time.
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C.K. testified she met Scheetz when she was 16. At the time, she lived with G.H. 

and her uncle, G.H.'s father. One day, Scheetz asked her to send him a nude picture, 

which she refused. He then sent her his nude photo, so she blocked him on Snapchat. He 

messaged her on Facebook, asking why she had blocked him. A screenshot of this 

exchange had statements: "You actually blocked me?"; "Like sending me nudes, and . . . 

you asking me I just don't think it's right!" C.K. reported this to the KBI.

Scheetz' internet search history from his iPhones 5 and 8 displayed search terms he 

had entered and the titles of the websites he visited. Of those, some were general—e.g., 

"When to Hunt," "what causes grey hair," "lansing pizza hut." But others were sexually 

explicit—e.g., "My stepdad finally touched me," "my step dad forced himself inside of 

me," "Sex At 9 years old," "I Enjoyed Being Molested," "Step Dad started blowing me at 

age 5," "Why Incest is Best," "Free Little Step Daughter Porn Videos," and "Incest and 

more incest!!!"

Defense counsel opposed the underage girls' testimony stating:

"[A]s to the information from [G.H.], we would ask the Court to deny the State the 

opportunity to use that. The testimony was very non-specific. There wasn't any detail 

concerning what she allegedly saw, and there wasn't anything to really back up what they 

said. Like I said, it was very non-specific, plus there was the statement that it was done 

by mistake. [. . . Also,] there was no description of what the picture was that she received.

"As to [H.T.], she also was very non-specific in her statements about what she 

supposedly saw. . . . She said that he did offer to give her gas or alcohol going to a hotel, 

but it doesn't indicate any kind of sexual content or any kind of sexual behavior on the 

part of the defendant or on the part of [H.T.] So I ask the Court to deny any information 

or any statements from her.

. . . .
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"[C.K.] does give specific sexual content, but, . . . again, those incidents she talks 

about happened . . . after the incidents that the State alleges occurred and that we're going 

to trial on, so they're not prior bad acts." (Emphases added.)

About the internet search exhibits, defense counsel argued:

"[T]he [internet search history] information . . . was after the fact. This isn't like prior bad 

acts. . . . In fact, they were like 2017 and 2018, where the incidents with [M.C.] happened 

before that . . . . So these aren't prior bad acts, these are acts that occurred after the fact 

of the crimes alleged to have occurred with [M.C.]." (Emphasis added.)

Scheetz' individual grounds for pretrial objection can be summarized as follows: 

G.H.'s allegation lacked specificity; H.T.'s allegation lacked specificity and sexual 

content; C.K.'s allegation was not prior bad acts; and the internet search history was not a 

prior act. C.f. State v. Sieg, 315 Kan. 526, 533, 509 P.3d 535 (2022) (to qualify as a prior 

bad act under K.S.A. 60-455, the statute requires "specificity" from the evidence).

The court granted the State's motion to admit this evidence. And while offering a

rationale for rejecting Scheetz' argument that the admissible bad acts had to occur before

the charged offense, the court dismissed the remaining grounds without explanation. The 

court said:

"60-455 is often referred to as prior bad acts, but that's just kind of a shorthand 

way of referring to it. There is nothing in the statute that says they have to occur prior to 

the charged crime. Actually, the statute says that evidence that a person committed a 

crime or civil wrong on some specific occasion, and so I did note that the charged crimes 

are several years ago, 2012, 2013, I don't have the Complaint right in front of me, but 

they are several years old, whereas the alleged bad acts are after that. 
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"But regarding [defense counsel's] argument that these alleged bad acts were not 

prior bad acts, that's not required by statute.

"Also, the statute is fairly clear that if it is a non-sex crime, then pretty tight on 

not allowing this type of evidence. However, for a sex crime, it's pretty broad on allowing 

this type of evidence. For a sex offense, then the prior acts or the other evidence of other 

crimes or other civil wrongs are admissible, if they go to propensity or any other matter 

which is relative and probative.

"My finding is that the request contained in the State's motion is both relevant 

and probative to the charged crimes. So the information that is contained within the 

motion is allowed under 60-455 in this particular case."

At trial, the State presented the propensity evidence to the jury. Scheetz made a 

series of objections related to the girls' allegations—all were timely but merely renewed 

the same pretrial objections made earlier without adding new grounds. Sometimes,

Scheetz made only general objections, such as, "Objection, Your Honor, 60-455 

information."

But as to the search history, defense counsel not only renewed the earlier pretrial 

objection (not a prior bad act) but added three more: the evidence was irrelevant; it was 

"more inflammatory than probative"; and it contained nothing illegal, suggesting they did 

not qualify as an "act or offense of sexual misconduct." As to the inflammatory argument, 

we note K.S.A. 60-445 allows a trial judge to "exclude evidence if he or she finds that its 

probative value is substantially outweighed by the risk that its admission will unfairly and 

harmfully surprise a party." The court overruled the search history objection, by stating:

"I did notice when I looked through these over the weekend that on [Exhibit]

122, which is excerpts from the iPhone 5, those searches are primarily from October, 

November of 2017, in that area; and in State's [Exhibit] 123, searches from the iPhone 8, 
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those are from 2019, generally in February of 2019. And some in March, also. So 

substantially after [M.C.] moved to Wichita in 2015.

"But under 60-455, it doesn't have to be prior conduct, it can be subsequent 

conduct and can also show propensity. And, of course, relevance is always an issue, 

whether it's under 60-455 or any other evidentiary rule, and so the evidence has to be 

relevant.

"But in this case, those searches, I think, are relevant to show that Mr. Scheetz's 

sexual attraction to young girls, even if they might be websites for girls over the age of 

18, but appear young or at least in the title young girls, and his sexual attraction for 

stepfather-stepdaughter or other type of incestuous sexual contact. So it is relevant to 

show those issues.

"So I do find that under 60-455, it should be allowed and that it also is relevant, 

even though it's several years after the alleged conduct in this case. So the objection on 

both of those are overruled."

Standard of review

"Preservation is a question of law subject to plenary review." State v. Campbell, 

308 Kan. 763, 770, 423 P.3d 539 (2018).

Discussion

The essential question is whether Scheetz gave the district court an opportunity to 

rule on his appellate claim that the propensity evidence did not meet subsection (g)'s 

definition because its listed examples were exhaustive rather than illustrative. See State v. 

Alfaro-Valleda, 314 Kan. 526, 533, 502 P.3d 66 (2022) (for a defendant's appellate 

argument related to trial evidence's admissibility, the defendant must give the district 
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court an "opportunity to consider the objections and to rule on them"). A review of the 

record shows the district court never had that chance.

The panel decided Scheetz properly preserved for appeal his new definitional 

challenges to subsection (g). It reasoned: (1) he "actively litigated the admissibility of 

this evidence under K.S.A. 2021 Supp. 60-455(d)"; (2) he "disputed the application of 

that subsection"; and (3) although he did not mention subsection (g), "the general theme 

underlying his objections" covered his definitional challenge. Scheetz, 63 Kan. App. 2d at 

10. It then concluded his "argument on appeal is not altogether different from what he 

argued below" and proceeded to delve into the merits. 63 Kan. App. 2d at 10.

The panel's rationale commits at least three obvious errors. First, it fails to 

individually assess each piece of evidence and its associated objection specifically. 

Instead, the panel improperly considered the evidence collectively for K.S.A. 60-404

purposes. Second, it accepts entirely new legal questions not advanced to the district 

court, specifically: (1) whether the challenged evidence satisfied the statute's subsection 

(g) definitional requirements; and (2) what the meaning of the term "includes" is, as used 

in the statute. Third, the panel did not review the district court's ruling and analysis with 

particularity; instead, it examined the evidence de novo. See State v. Freeman, 195 Kan. 

561, 564, 408 P.2d 612 (1965) ("[K.S.A. 60-404] has a legitimate purpose in the 

appellate court, whose function is that of review rather than trial de novo."). Its approach 

disregards statutory mandates.

Preserving an evidentiary challenge under K.S.A. 60-404 requires a timely and 

specific objection. It is not optional. The specificity requirement can be explained this 

way:
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"The Kansas Legislature has established the rule for evidentiary objections by statute. 

The legislature, not this court, requires that the objection at the trial court to the 

admission of evidence 'make clear the specific ground of objection.' Otherwise, the 

verdict cannot be set aside. Under the separation of powers doctrine, this court has no 

constitutional authority to essentially negate the legislature's decision to require a specific 

ground of objection in the trial court by then allowing a different objection to be argued 

in the appellate court. [Citations omitted.]" State v. McCaslin, 291 Kan. 697, 709-10, 245 

P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 324 

P.3d 1046 (2014).

To be sure, "Exceptions exist for raising issues on appellate review without 

expressing an objection to the trial court, but K.S.A. 60-404 does not allow those 

exceptions to come into play in the context of the admissibility of evidence." (Emphasis 

added.) State v. Carter, 312 Kan. 526, 535, 477 P.3d 1004 (2020). If it stands for 

anything, K.S.A. 60-404 must mean a party cannot object to evidence on one ground at 

trial and then substitute another ground on appeal or assert a general ground at trial and 

then specify more particular grounds on appeal. This is well settled. State v. GarciaGarcia, 309 Kan. 801, 808-11, 441 P.3d 52 (2019); State v. Dukes, 290 Kan. 485, 489, 

231 P.3d 558 (2010).

Here, the trial transcript unambiguously shows Scheetz failed to preserve his

subsection (g) definitional issues for appellate review. The panel's "not altogether 

different" rationalization hopelessly strains the governing statute's plain language and our

well-established caselaw. See State v. Betts, 316 Kan. 191, 198, 514 P.3d 341 (2022)

("When a statute is plain and unambiguous, the court must give effect to express 

language."); Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 168, 298 P.3d 1120 

(2013) ("[T]he Court of Appeals is duty bound to follow Kansas Supreme Court 

precedent.").
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Campbell is instructive. There, defense counsel attacked a witness' credibility at 

trial. When the State called a second witness to rehabilitate the first's credibility, defense 

counsel timely objected on hearsay grounds and of bolstering or vouching for the first 

witness' credibility. But on appeal, the defendant contested the evidence on the basis that 

the second witness' testimony impermissibly used specific prior instances. See K.S.A. 60-

422(d) (specific prior instances to rehabilitate witness' credibility are inadmissible). The 

Campbell court declined to consider the defendant's rephrased objection. 308 Kan. at 771. 

Likewise, on appeal, Scheetz fashioned a new argument over sexual misconduct's 

statutory definition that was never presented to the district court.

Similarly, in State v. Bryant, 272 Kan. 1204, 1207-08, 38 P.3d 661 (2002), a 

defendant raised a hearsay objection at trial but on appeal claimed a Confrontation Clause

violation. The Bryant court refused to consider the confrontation claim because the 

defendant failed to make that objection in the district court. And in State v. McCaslin, 

291 Kan. 697, 708, 245 P.3d 1030 (2011), the court noted "there may be some overlap of 

objections based upon hearsay and confrontation" because "all statements violating the 

Confrontation Clause are also necessarily hearsay." But the McCaslin court still held 

"their overlap does not satisfy the specificity requirement of the objection" and 

reaffirmed Bryant's holding and its rationale. 291 Kan. at 708.

Here, Scheetz did not object to the internet search history on a statutory 

interpretation ground. Rather, he specifically objected at trial that the internet search 

history did not qualify as an "act or offense of sexual misconduct" because it contained 

"nothing illegal." These are not the same thing, and while the trial objection might 

superficially resemble Scheetz' subsection (g) appellate argument at a quick glance, the 

precedent set by Campbell, Bryant, and McCaslin uniformly indicate this "nothing 

illegal" objection is insufficient under K.S.A. 60-404 to allow the panel to engage in the 

subsection (g) interpretation issue advanced for the first time on appeal. See City of 
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Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993) ("[T]he trial 

should not be a game, where counsel is forced to guess what the objection is and what the 

trial court considers is lacking. A balance should be struck. . . . [I]t should be specific 

enough that the trial judge can rule intelligently upon the objection, and the specific 

contemporaneous objection must be made known to the opposing counsel when the 

objection is lodged.").

Similarly, Scheetz never objected to the young girls' testimony on statutory

interpretation grounds. At trial, the defense expressly objected to the girls' testimony as 

lacking specificity, lacking sexual content, and failing to qualify as a prior bad act. These 

cannot be converted on appeal into the more general subsection (g) argument the panel 

embraced as to this testimony. See McCaslin, 291 Kan. at 708.

Our caselaw sets out the appropriate process for preserving appellate review to the 

admission of evidence, and that process was not followed here. K.S.A. 60-404 cannot be 

glossed over by appellate judges lured into exploring uncharted legal frontiers. Left 

unchecked, the panel's approach "would undermine the language and the purpose of the 

[60-404] objection rule." State v. Dukes, 290 Kan. 485, 489, 231 P.3d 558 (2010). 

Finally, we must discuss Scheetz' frequent refrain that K.S.A. 60-404 is a 

prudential rule rather than a jurisdictional bar, citing State v. Hart, 297 Kan. 494, 510, 

301 P.3d 1279 (2013). He seems to suggest that absent a jurisdictional bar, appellate 

judges can ignore these statutory directives when it suits them. But our caselaw shows we 

have not been so cavalier with this prudential rule. See, e.g., State v. Spagnola, 295 Kan. 

1098, 1103, 289 P.3d 68 (2012) (timely objection not required during bench trial because 

same suppression arguments were made to the same judge pretrial); State v. Breedlove, 

295 Kan. 481, 490-91, 286 P.3d 1123 (2012) (noting record made clear trial judge 

understood the legal basis for an objection when counsel simply referred to it as an 
19

"'earlier objection'" or a "'prior objection'"). Even in Hart, the court only agreed to 

proceed with its "unorthodox approach" of reviewing a colorable preservation concern on 

appeal because both parties agreed to do so, in hopes of gaining "a definitive 

interpretation" of a recently amended statute. Hart, 297 Kan. at 510. That situation is not

presented here. We hold the Scheetz panel erred in proceeding with the K.S.A. 2022 

Supp. 60-455(g) issues as it did.

We also hold that in taking the approach it took, the panel abused its statutory 

power under K.S.A. 60-2101(a) (Court of Appeals' appellate jurisdiction) to consider the 

propensity evidence question concerning subsection (g)'s definition. And the panel's firstof-its-kind merits holding that the statutory listings are exhaustive rather than exemplary 

necessarily leads us to yet another concern because we now must decide how to treat the 

panel's subsection (g) analysis when it so clearly overstepped appellate boundaries to 

reach the merits. See McCaslin, 291 Kan. at 709 ("Under the separation of powers 

doctrine, this court has no constitutional authority to essentially negate the legislature's 

decision to require a specific ground of objection in the trial court by then allowing a 

different objection to be argued in the appellate court.").

In Hart, the court held a panel's failure to follow the rule of applying "'the 

statutory law on evidence as it was at the time'" "render[ed] all that [the panel] said 

regarding the interpretation and application of the amended statute erroneous; it has no 

force or effect as precedent." Hart, 297 Kan. at 510. Similarly, K.S.A. 60-2101(b) 

(Supreme Court's appellate jurisdiction) provides us with "jurisdiction to correct, modify, 

vacate or reverse any act, order or judgment of a district court or court of appeals in order 

to assure that any such act, order or judgment is just, legal and free of abuse." Based on 

this, we vacate the panel's decision on K.S.A. 2022 Supp. 60-455(g) and hold it should 

have no force or effect as precedent.
20

RELEVANCE OF THE INTERNET SEARCH HISTORY EVIDENCE

Defense counsel at trial not only renewed the earlier pretrial objection (not a prior 

bad act) about the internet search history but added three other grounds, including 

relevancy. These added grounds apparently went unnoticed by the panel because it 

included the search history evidence in its erroneous "not altogether different" 

preservation analysis, rather than just directly addressing relevancy because both parties 

and the district court considered it. Scheetz, 63 Kan. App. 2d at 10, 26. Regardless, the 

State's challenge to the panel's decision is properly preserved for our review.

Additional factual and procedural background

As noted earlier, the State filed a pretrial motion to admit evidence of Scheetz' 

internet search history under K.S.A. 2019 Supp. 60-455(d). That motion described how 

the evidence would demonstrate Scheetz' involvement in "search[ing] for and/or 

view[ing] child pornography." The court granted the motion.

During trial, when the prosecutor sought to admit this evidence, defense counsel 

timely objected, asserting it did not "even fall[] within the order of the court on 60-455 

order" since the evidence lacked reference to child pornography. Then, the defense 

argued the evidence was "not relevant." And the district court ruled the evidence relevant 

to show Mr. Scheetz' sexual attraction to young girls, even if they might be websites for 

girls over the age of 18 but appear young or show young girls in the title.

The court asked whether defense counsel wanted to redact any irrelevant, general 

search terms from the excerpts. Counsel responded, "I'm not asking for further 

redactions." So the court admitted both the general and the sexually explicit search 

language, and the defense preserved its relevancy objection for appeal.
21

Standard of review

"[T]here are two elements of relevancy: a materiality element and a probative 

element. . . . An appellate court reviews a district court's determination that evidence is 

probative for abuse of discretion whereas the district court's decision regarding 

materiality is reviewed de novo." State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 

(2013). "A district court abuses its discretion if no reasonable person could agree with its 

decision or if its exercise of discretion is founded on a factual or legal error." State v. 

Butler, 315 Kan. 18, Syl. ¶ 1, 503 P.3d 239 (2022).

Discussion

Our law is well established: "Unless prohibited by statute, constitutional 

provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f)." State 

v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). "'Relevant evidence' means evidence 

having any tendency in reason to prove any material fact." K.S.A. 60-401(b). "Evidence 

is probative if it has any tendency in reason to prove a fact," and "[m]ateriality addresses 

whether a fact has a legitimate and effective bearing on the decision of the case and is in 

dispute." Boleyn, 297 Kan. 610, Syl. ¶ 1.

Without conducting a pertinent materiality-and-probative analysis within the 

specific context of Scheetz' case, the panel instead relied on Boleyn and State v. Smith, 

299 Kan. 962, 327 P.3d 441 (2014), as well as State v. Ewing, No. 118,343, 2019 WL 

1413962 (Kan. App. 2019) (unpublished opinion)—none of which are on point. So, to 

revisit the admissibility question, we engage in a materiality-and-probative analysis at the 

outset and then explain why the cases cited by the panel are inapplicable.
22

First, we consider materiality. Recall the district court correctly found the 

evidence relevant to establish Scheetz' sexual attraction towards young girls and a 

stepfather-stepdaughter theme. It determined the evidence was relevant because sexual 

exploitation of a child requires the State prove sexual attraction beyond a reasonable 

doubt. See K.S.A. 2022 Supp. 21-5510(a)(2) ("possess[ed] any visual depiction of a child 

under 18 years of age shown or heard engaging in sexually explicit conduct with intent to 

arouse or satisfy the sexual desires or appeal to the prurient interest of the offender . . . ." 

[Emphasis added.]). To demonstrate Scheetz' specific intent and sexual attraction to 

underage girls, the State presented his search history with the terms of "Sex At 9 years 

old" and "Step Dad started blowing me at age 5." We hold Scheetz' sexual desire for 

underage girls constituted a material fact in the child exploitation charge.

Second, turning to the probative element, the court in State v. Willis, 312 Kan. 

127, 142, 475 P.3d 324 (2020), "stressed that relevance is a generally low threshold." 

There, the Willis court discussed State v. Scott-Herring, 284 Kan. 172, 175-77, 159 P.3d 

1028 (2007) (holding that a photo showing the defendant with a revolver was relevant to 

establishing his possession of a gun like the possible murder weapon). The Willis court 

emphasized the evidence did not need to prove the gun in the photo was the actual 

murder weapon to be admissible. It noted that if the testimony sufficiently stated the

similarity between a weapon in the defendant's possession and the weapon used in the 

crime, the lack of positive identification "'goes to the weight, not the admissibility, of the 

evidence.'" Willis, 312 Kan. at 143 (quoting Scott-Herring, 284 Kan. at 177).

The panel erred in holding the search history evidence was irrelevant. The panel 

reasoned there was "no indication as to how long Scheetz accessed these webpages or 

whether he even watched the videos they contain" and "no information . . . as to what 

these videos depicted apart from the titles, leaving the jury to speculate about their actual 

content." Scheetz, 63 Kan. App. 2d at 28. But that is unnecessary for this evidence to be 
23

admitted. Scheetz deliberately searched terms such as "Sex," "9 years old," and "age 5." It 

also does not matter that other irrelevant, general terms could have been redacted,

because that failure was the result of defense counsel's refusal to request it when asked.

An appellate court reviews a district court's probative ruling for abuse of 

discretion, and we conclude a reasonable person could agree with the district court on this 

matter. Relevancy does not require conclusive proof of a fact—any tendency is sufficient. 

If evidence has even limited probative value, it should be assessed against its prejudicial 

effect when an opponent raises an issue under K.S.A. 60-445 (allowing exclusion of

evidence if its probative value is substantially outweighed by its undue prejudicial effect) 

but not under K.S.A. 60-407(f) ("[A]ll relevant evidence is admissible.").

Moving next to the three cases relied on by the panel, they are not on point. In 

Boleyn, the victim was a boy under 14. During direct examination, defense counsel asked 

the defendant if he was gay, and he said no. After that, the court admitted the parties' 

stipulation the defendant possessed photographs and video showing pornographic 

homosexual and heterosexual images under K.S.A. 60-420 (evidence affecting 

credibility). Boleyn, 297 Kan. at 624-25. The Boleyn court held the stipulation's 

admission was error because the evidence demonstrated he could be bisexual, bolstering 

his claim he was not gay. It reasoned "at the most, the evidence establishes that Boleyn 

may have had an interest in viewing both homosexual and heterosexual pornography, but 

this conclusion is a far cry from the inference that Boleyn is exclusively attracted to or 

sexually active with men." 297 Kan. at 626-27. Admittedly, there is one sentence in 

Boleyn the panel relied on that may cause misunderstanding: "[W]e hold that evidence of 

Boleyn merely possessing homosexual pornography would not be probative to rebutting 

or impeaching his claim of not being gay." 297 Kan. at 626; see Scheetz, 63 Kan. App. 2d 

at 26-27. The problem, of course, is this language must be read in context with the case 

facts discussed above, not in isolation.
24

In Smith, the defendant unlawfully touched two girls wearing bikini-style bathing 

suits while photographing them in provocative poses. The State sought to admit

photographs showing pornographic magazines and video covers seized from the 

defendant's house. The defense objected to the photographs' relevance, and the State 

countered they undermined the defendant's claim "'he was gay' and that 'he/she's or 

women with penises, is what aroused him.'" Smith, 299 Kan. at 973-74. The Smith court 

rejected the State's justification because its rationale was logically inconsistent with

Boleyn. The court noted, "If possession of homosexual pornography is not relevant to 

prove a person's sexual practices, then possession of heterosexual pornography is 

likewise not relevant for that purpose." 299 Kan. at 976.

When it comes to one's real sex life, such evidence could be viewed as irrelevant;

but Scheetz was charged with sexual exploitation of a child under K.S.A. 2019 Supp. 21-

5510(a)(2), so the question is whether he "possess[ed] any visual depiction of a child 

under 18 years of age . . . with intent to arouse or satisfy the sexual desires . . . of the 

offender." (Emphasis added.) In this regard, Smith is distinguishable. Scheetz' search 

history had at least some probative value to demonstrate the material fact of the required 

element of sexual desire for an underage child. As discussed, the search history meets

K.S.A. 60-401(b)'s requirement that evidence demonstrate "any tendency in reason to 

prove any material fact." (Emphases added.) Cf. State v. Creitz, No. 98,852, 2009 WL 

596522, at *6 (Kan. App. 2009) (unpublished opinion) ("[W]e view the probative value 

of this evidence to be somewhat tenuous. Nevertheless, given our standard of review and 

the low threshold suggested by the 'any tendency' standard for relevance found in K.S.A. 

60-401[b], we conclude that the district court did not err in finding that evidence of the 

wire warning was relevant.").
25

In Ewing, 2019 WL 1413962, at *17-24, another panel's unpublished opinion, 

evidence of a defendant's internet search history accessing violent pornography was 

admitted not under K.S.A. 60-455 but simply as relevant evidence. The Ewing panel 

found error, reasoning there was no evidence he had viewed the portions of the videos 

containing acts like those of which he was charged: rape, aggravated criminal sodomy, 

and battery. 2019 WL 1413962, at *23. And following Ewing, the Scheetz panel held the 

evidence had no probative value because there was no indication "whether he even 

watched the videos [those webpages] contained" and "what these videos depicted apart 

from the titles, leaving the jury to speculate about their actual content." Scheetz, 63 Kan. 

App. 2d at 28. But what really mattered here was not whether Scheetz watched the 

videos, but that he searched particular terms in his internet searches and visited websites 

with those titles. The exhibits contained the "Last Visited" information, providing the 

exact time the websites were viewed. And while the contents of videos or images 

provided by those websites might have helped the State's theory of its case, they were not 

necessary to admit the evidence.

In sum, we conclude the panel erred in holding the search history was irrelevant 

under Smith, Boleyn, and Ewing. Those cases are distinguishable. We also conclude that

under a materiality-and-probative analysis, the evidence tended to prove the material fact

of sexual desire, which was a criminal element of the sexual exploitation of a child 

charge. The district court correctly determined it was relevant.

Finally, we note the panel declined to address undue prejudice under K.S.A. 60-

445 as it found the evidence irrelevant. Scheetz failed to cross-petition on this matter. See 

Supreme Court Rule 8.03(c)(3) (if Court of Appeals assumes an outcome on an issue 

without deciding or does not decide an issue properly presented to it, "the cross-petitioner 

must raise that issue to preserve it for review") (2023 Kan. S. Ct. R. at 57). Consequently, 

we do not proceed to the undue prejudice question.
26

PROSECUTORIAL ERROR

On appeal, Scheetz claimed the prosecutor misstated the facts and law and 

presented arguments designed to inflame the jury's passions during closing arguments. 

The panel agreed the prosecutor misstated facts when claiming: (1) G.H. received "a 

picture of the defendant's erect penis," and (2) B.C. "started to think it wasn't an accident"

when referring to Scheetz sending H.T. a naked photo. It concluded these errors were 

isolated and comparatively minor, so they were individually harmless. Scheetz, 63 Kan. 

App. 2d at 33-34. But it added these prosecutorial errors to its cumulative error analysis

when reversing Scheetz' convictions. 63 Kan. App. 2d at 34-36. The panel rejected 

Scheetz' other prosecutorial error arguments.

In its petition for review, the State contests the panel's error determinations.

Scheetz did not cross-petition on the matters decided against him, so they are settled. See 

Rule 8.03(c)(3) (2023 Kan. S. Ct. R. at 57) ("The purpose of a cross-petition is to seek 

review of specific holdings the Court of Appeals decided adversely to the crosspetitioner."). As explained, we agree with the State. The first comment accurately stated

the evidence because Scheetz told an interviewing officer he sent G.H. a picture of his 

erect penis. The second error was a reasonable inference based on the evidence.

Standard of review

An appellate court employs a two-step analysis to review prosecutorial error 

claims: error and prejudice. To decide error, the court determines whether the 

prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to 

conduct the State's case and attempt to obtain a conviction in a manner that does not 

offend the defendant's constitutional right to a fair trial. State v. Sieg, 315 Kan. 526, 535, 
27

509 P.3d 535 (2022). Upon finding an error, the court considers "whether the error 

prejudiced the defendant's due process rights to a fair trial." 315 Kan. at 535.

Discussion

On appeal to the panel, Scheetz claimed the prosecutor's statement that G.H. 

received a picture of his "erect penis" was error because there was no evidence his penis 

was erect in the photo. At that time, the State mistakenly conceded the point but argued it 

was a reasonable inference because G.H. testified the photo came with a message stating 

he was waiting for "you to get here." The panel held there were two errors: it was not 

supported by the evidence, and it was designed to inflame the jury's passions. Scheetz, 63 

Kan. App. 2d at 31. But the record shows a different reality.

Before this court, the State corrects its earlier mistake by pinpointing the exact 

location in the record during a police interview when Scheetz said his penis was "erect" 

on the photo sent to G.H. The interview reflects this exchange:

"[Q (first officer)]: Okay. . . what are we talkin' about here? What was the 

picture of?

"[A (Scheetz)]: It was a picture of my penis.

"[Q]: Okay . . . paint a picture for me. Were you in bed, were you . . . .

"[A]: Yeah, I was like sittin' in bed . . . .

"[Q]: Okay . . . .

"[A]: It was a message sayin' just waitin' for you to get here.
28

"[Q]: Okay.

"[Q (second officer)]: Erect? Not erect? Hands . . . .

"[A]: Erect.

"[Q (second officer)]: —involved?

"[A]: Erect, yeah."

Scheetz argues this correction was "unpreserved" from the Court of Appeals, so it 

is improper for us to consider it now. We disagree. Informing a reviewing court where to 

look in the record to establish a fact is not equivalent to raising a new issue. Even so, the 

question whether the evidence supported the prosecutor's "erect" statement was properly 

preserved by Scheetz in the Court of Appeals when he claimed the prosecutor fabricated 

this as fact. And the issue remains properly presented to us by the State because it 

challenges the panel's ruling that this fact was fabricated and inflammatory. See Rule 

8.03(a)-(b).

Besides, it is the parties' duty to supply a statement of the facts in their briefs and 

"key[] to the record on appeal by volume and page number." Kansas Supreme Court Rule 

6.02(a)(4) & 6.03(a)(3) (2023 Kan. S. Ct. R. at 36-37). And a consequence of a party's 

failure to do so is: "The court may presume that a factual statement made without a 

reference to volume and page number has no support in the record on appeal." Rule 

6.02(a)(4) & 6.03(a)(3). But this circumstance does not implicate any preservation rule. 

Moreover, as the State correctly notes, the Kansas Rules of Professional Conduct 

3.3(a)(1) (2023 Kan. S. Ct. R. at 390) declares: "A lawyer shall not knowingly . . . make 

a false statement of fact . . . or fail to correct a false statement of material fact . . . 

previously made to the tribunal by the lawyer." Here, the State is not raising a new issue. 
29

Rather, it attempts to correct a misstatement of material fact by the panel relevant to a

properly preserved issue.

The panel also held the State misstated the fact to inflame the jury. Scheetz, 63 

Kan. App. 2d at 31. But since we know from the record it was a correct statement, the 

prosecutor's closing accurately described the evidence, and the transcript shows the 

prosecutor did not inflame the jury when mentioning it. The "erect penis" references 

occurred only twice, both times within close proximity, and in the context of a factual 

recitation. The prosecutor simply said:

"And that rings a bell for [B.C.] because [his] 12-year-old daughter has gotten a 

picture of the defendant's erect penis that he sent to her. And she immediately says, 'I've 

got to block you,' you know. She's sending a text to her parents, 'Oh, my gosh, call me as 

soon as you get done with the concert. Call me as soon as you can.' But [B.C.] hadn't 

originally done anything about it because he chalked it up to being an accident. Things 

happen with cell phones, he just assumed it was intended for somebody else.

"But once [B.C.] had the information that Norton was also investigating the 

defendant for exactly the same behavior with another girl, he started to think it wasn't an 

accident. He started to think it's an intentional act on behalf of the defendant, that he's not

just accidentally sending pictures of his erect penis to random teenagers." (Emphases 

added.)

What is obvious is that the prosecutor did not sensationalize this evidence, despite 

its aggravating nature. No error occurred. 

The other prosecutorial error the panel found concerned the State's revisiting the 

inception of the investigation that led officers to M.C. The prosecutor said:
30

"This actually began with the tip from the defendant. He called [Assistant Chief 

of Police for the Norton Police Department, Jody Enfield] and said, 'I think [H.T.] is 

involved with a local officer. You should check into that.' As a result of that, . . . Enfield 

did go talk to [H.T.], and she said it's not a local officer . . . . That's off base here. But 

[Enfield] does talk to her about some pictures that she has gotten, and . . . [H.T.] won't 

tell him who it is, but she says she'll say if he guesses.

"So Assistant Chief Enfield guesses, and he says, 'Is it Mark Scheetz?' And she 

said yes. It was the defendant that she had gotten naked pictures from.

"So then . . . Enfield takes the next step and talks to [B.C.] . . . . And when he 

talks to [B.C.], he [asked], you know, 'Is the defendant still working for you?' And [B.C.] 

says, 'No, he's moved on. But why?' [Enfield] said, 'Well, you know, we've got a case 

over here where the defendant was sending naked pictures to [H.T.] . . . .'

"And that rings a bell for [B.C.] because [his] 12-year-old daughter has gotten a 

picture of the defendant's erect penis that he sent to her. . . . But [B.C.] hadn't originally 

done anything about it because he chalked it up to being an accident. Things happen with 

cell phones, he just assumed it was intended for somebody else.

"But once [B.C.] had the information that Norton was also investigating the 

defendant for exactly the same behavior with another girl, he started to think it wasn't an 

accident. He started to think it's an intentional act on behalf of the defendant, that he's 

not just accidentally sending pictures of his erect penis to random teenagers." (Emphases 

added.)

Scheetz argues the prosecutor's statement that B.C. "began to think Scheetz sent 

the photo to G.H. intentionally" was wrong, and the panel agreed by relying on the 

testimony of Brian Diercks. Scheetz, 63 Kan. App. 2d at 30-31. Diercks testified:
31

"[W]e kind of took [G.H.] as possibly just . . . an accident because it could have been . . . 

possibly [Scheetz] was trying to send it to his girlfriend . . . . So we just kind of chalked 

that up as a possible accident with no intent or anything like that.

"And so when we received that phone call from Officer Enfield, we discussed, 

talked about, you know, since [G.H.] had sent out a streak off of Snapchat, and so that's 

how she received that photo, we believe that's how she got it is because on the streak, she 

became the top of his list. And if what Enfield was telling us, that this 16-year-old girl 

was receiving . . . Snapchat messages, pictures, then maybe that photograph that was 

actually sent to [G.H.] was actually supposed to go to the 16-year-old girl."

But a fuller record review tells a more complete story. At trial, B.C. testified

Enfield called to inform him he was working on an electronic solicitation case involving 

Scheetz. After that call, B.C. talked with Dierck. B.C. told the jury: "After discussing 

what [Enfield] had informed . . . us, we felt that it was in the best interest to contact the 

Kansas Bureau of Investigation." (Emphasis added.) And based on this, we conclude the 

prosecutor's remark constitutes a reasonable inference. B.C. said he felt "it was in the best 

interest to contact the Kansas Bureau of Investigation," which contradicts the panel's 

conclusion because if he honestly believed what happened to his daughter was an

accident or innocent mistake, there would be no reason to contact the KBI. No 

prosecutorial error occurred.

CUMULATIVE ERROR

The panel used a cumulative error analysis to reverse Scheetz' convictions. But we 

have determined no errors occurred, so this doctrine does not apply. See Sieg, 315 Kan. at 

536.

Judgment of the Court of Appeals reversing the district court is reversed on the 

issues subject to review and is vacated in part. Judgment of the district court is affirmed.