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NOT DESIGNATED FOR PUBLICATION

No. 120,254

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SAUL HERNANDEZ JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; JENNIFER ORTH MYERS, judge. Opinion filed April 3, 

2020. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. 

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., and Derek Schmidt, attorney 

general, for appellee.

Before BRUNS, P.J., MALONE and GARDNER, JJ.

PER CURIAM: A jury convicted Saul Hernandez Jr. of aggravated assault and 

acquitted him of criminal discharge of a firearm. On appeal, Hernandez contends that the 

district court erred in permitting the State to endorse a late witness for the purpose of 

authenticating recordings of telephone calls he made from the jail. As a result of the late 

endorsement of the records custodian, he argues that recordings were admitted into 

evidence that were unfairly prejudicial and highly climactic. Based on our review of the 

record, we do not find that the district court abused its discretion by allowing the late 

endorsement of the records custodian. Thus, we affirm Hernandez' conviction. 
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FACTS

On the night of September 16, 2016, Kelsie Rosewicz went for a walk with her 

husband, Charles "CJ" Huddleston, near her house in Kansas City, Kansas. While 

Rosewicz was walking, her former roommate, and Ketner's boyfriend, Saul Hernandez, 

approached. Evidently believing that Rosewicz had possession of some of his property, 

Hernandez asked her when she was going to "give me my shit back." Hernandez then 

displayed a gun, cocked it, and pointed it at Rosewicz. As she was running back toward

her house, Hernandez chased Rosewicz and fired a single shot in her direction. 

Once inside her house, Rosewicz called the police. When officers arrived at the 

scene, they found a brass shell casing nearby and also discovered a bullet fragment in the 

wall of Rosewicz' detached garage. According to Rosewicz, she had seen Hernandez on 

previous occasions. However, she indicated that she did not know his last name and only 

knew him as Ketner's boyfriend. 

Later that day, Detective Heron Santana presented Rosewicz with a photo lineup

but she could not make an identification. The next day, Detective Violeta Hrgota 

presented Rosewicz with a second photo lineup—which included a more recent picture of 

Hernandez—and she was able to identify him as the shooter. Subsequently, officers used 

"ballistic evidence" from the September 16th shooting to allegedly link Hernandez to 

another shooting two months earlier involving Jennifer Galvan. 

On December 11, 2017, in a consolidated complaint, the State charged Hernandez 

with aggravated assault for the shooting incident involving Rosewicz and criminal 

discharge of a firearm for the shooting incident involving Galvan. Prior to trial, the State 

provided Hernandez with discovery. The items produced included a disk containing 

recordings of multiple calls Hernandez had made from jail while he was awaiting trial. 
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Although the initial jury trial ended in a mistrial, the district court convened a 

second trial on February 26, 2018. During the four-day jury trial, both shooting charges 

were presented to the jury. At trial, several of the State's witnesses—including 

Rosewicz—were less than candid in their testimony. As a result, the State was presented 

with unanticipated problems in positively identifying Hernandez as the shooter.

Specifically, Rosewicz claimed to have forgotten most of the details of the 

shooting incident and stated that she was only there because the State was "forcing" her 

to testify. Similarly, Rosewicz' husband—Huddleston—did not initially comply with a 

subpoena to testify at trial and a warrant was issued to compel his appearance. In 

addition, Ketner—who is Huddleston's cousin as well as Hernandez' girlfriend—could 

not be located to serve with a subpoena. 

After the second day of trial, the State moved to endorse a records custodian from 

the Wyandotte County Jail as a foundation witness in an attempt to admit recordings of 

four telephone calls made by Hernandez from the jail into evidence. Although the State 

had previously disclosed the recordings of the phone records during pretrial discovery, it 

had failed to endorse the records custodian as a witness or list any specific recordings to 

be used as exhibits at trial. 

The following day, the district court heard arguments on Hernandez' objection to 

the late endorsement of the records custodian as well as the admission of the recordings 

into evidence. After a spirited discussion, the district court decided to allow the late 

endorsement of the records custodian. The district court also decided to admit three of the 

four recordings into evidence. 

In reaching its decision, the district court determined that Hernandez was not 

surprised by the late endorsement of the records custodian or the admission of the 

recordings made from the jail. The district court noted that the State had disclosed the 
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recordings of the phone calls long before trial. In addition, the district court found that

Hernandez should have been aware of his own statements made during the phone calls. 

In the three recordings that the district court admitted into evidence, Hernandez is 

heard identifying himself in the first; he is heard discussing his romantic relationship with 

Ketner in the second; and he is heard saying that "my girl" was planning to pay off a 

witness in the third. In a fourth recording that the district court refused to admit into 

evidence, Ketner—not Hernandez—is heard speaking about potentially paying off a 

witness. The district court distinguished the fourth call from the others because 

Hernandez was not the one who referred to paying off a witness and noted that the 

admission of the recording would involve significant hearsay issues.

On the final day of trial, the jury found Hernandez guilty of aggravated assault for 

the incident involving Rosewicz. However, the jury found him not guilty of the criminal 

discharge of a firearm for the incident involving Galvan. The district court subsequently 

sentenced Hernandez to 27 months in prison. Thereafter, Hernandez filed a timely notice 

of appeal. 

ANALYSIS

The sole issue presented on appeal is whether the district court erred in permitting 

the State to endorse a records custodian to lay the foundation for the admission of the 

recordings of the three phone calls made by Hernandez from the Wyandotte County Jail.

Hernandez argues that the State's motion to endorse the records custodian on the second 

day of trial "came as a complete and unfair surprise to defense counsel in this case." In 

response, the State argues that the district court did not abuse its discretion in permitting 

it to endorse the records custodian because Hernandez had received the recordings during 

pretrial discovery. 
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K.S.A. 22-3201(g) grants a district court discretion over determining whether to 

allow a party to endorse witnesses during trial. State v. Donaldson, 279 Kan 694, 703-04, 

112 P.3d 99 (2005). On appeal, we review a district court's decision to permit the late 

endorsement of a witness under an abuse of discretion standard. State v. Brosseit, 308 

Kan. 743, 747, 423 P.3d 1036 (2018). Accordingly, we will generally uphold a late 

witness endorsement unless a defendant has been unfairly surprised and the testimony 

was "'climatic and highly damaging.'" Brosseit, 308 Kan. at 749. 

Judicial discretion is abused if an action is arbitrary, fanciful, or unreasonable. In 

other words, we will only reverse if no reasonable person would agree with a district 

court's decision or if the judicial action is based on an error of fact or law. State v. Schaal, 

305 Kan. 445, 449, 383 P.3d 1284 (2016). When reviewing the record for abuse of 

discretion, we do not reweigh the evidence nor do we assess the credibility of witnesses. 

State v. Woodring, 309 Kan. 379, 380, 435 P.3d 54 (2019). 

Here, Hernandez argues that he was surprised by the late endorsement of the 

records custodian and—as a result—he was prejudiced by the admission of the recordings 

of the three phone calls into evidence. Specifically, Hernandez argues that his attorney 

was not prepared to address the phone calls because he did not anticipate they would be 

used at trial. Although Hernandez does not dispute that he received the recordings during 

the course of discovery, he notes that the State provided a large amount of material in 

discovery and suggests that this made meaningful preparation for trial to be nearly 

impossible. 

A review of the 39-page transcript of the hearing on the State's motion to endorse 

the records custodian reveals that the district court thoroughly considered the arguments 

of counsel in light of what had occurred at trial. After doing so, the district court found

that the State had given a legitimate reason for requesting the late endorsement. The 

district court also found that neither Hernandez nor his attorney were unreasonably 
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surprised. In so ruling, the district court noted that the State had produced the recordings 

of the phone calls well in advance of trial. Further, the district court found it to be 

significant that the statements on the recordings admitted into evidence were made by

Hernandez, himself, "so he's very aware of the statements that he made . . . ."

While the late endorsement was, no doubt, problematic for Hernandez and his 

attorney, we do not find the district court's decision to be unreasonable—particularly 

given the content of the recordings. As the record reflects, the State explained that the 

late endorsement was due to the reluctance of the witnesses to testify rather than an 

intentional withholding of the witness as a trial strategy. This explanation was accepted 

by the district court, finding "no reason to believe that [the State] would misrepresent any 

law or facts to the Court." Absent evidence to the contrary, we have no reason to 

substitute our judgment for that of the district court on this point. 

Moreover, we do not characterize the testimony of the records custodian as 

climatic or unduly prejudicial. The testimony of the records custodian was limited to 

authenticating that the recordings of the phone calls that were made by Hernandez from 

the jail. Indeed, even Hernandez does not make the argument that the records custodian's 

testimony was climatic. For these reasons, we find no abuse of discretion by the district 

court in allowing the records custodian to testify at trial. 

Although Hernandez phrases the issue presented in this case as an error in the late 

endorsement of the records custodian as a witness, he also suggests that the admission of 

the recordings themselves was erroneous. In particular, Hernandez focuses on the 

recording of the third phone call from the jail in which Hernandez speaks about having 

"my girl" pay off a witness. Although the recording of this phone call was naturally 

unfavorable to Hernandez' defense because it suggests the consciousness of guilt, we do 

not find the district court abused its discretion in allowing it to be played to the jury. 
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Generally, 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. 

State v. Page, 303 Kan. 548, 550-51, 363 P.3d 391 (2015). 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. State v. Dean, 310 Kan. 848, 862, 450 P.3d 

819 (2019). 

"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). Likewise, Kansas courts have 

held "that evidence demonstrating a defendant's consciousness of guilt can be material to 

several issues in a criminal case, including intent, identity, plan, or other matters." State 

v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014); State v. Lippard, No. 114,588, 

2017 WL 3837700, at *5 (Kan. App. 2017) (unpublished opinion) (holding that 

statements made in call from jail encouraging witness not to testify were relevant as to 

consciousness of guilt and were not unduly prejudicial). 

In Huddleston, a defendant sent two letters from jail in which he advised one 

codefendant how to testify against another codefendant in a pending criminal trial. The 

Kansas Supreme Court agreed with the district court that the letters were both material 

and probative—and thus relevant—to the defendant's consciousness of guilt. 298 Kan. at 

960-61. Furthermore, our Supreme Court found that the district court did not abuse its 

discretion in finding that the probative value of the letters outweighed the prejudicial 

effect of admitting the letters into evidence. 298 Kan. at 963-64. 

Based on our review of the record, we find that Hernandez' statement that "my

girl" was going to pay off a witness was relevant, material, and probative in determining
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his consciousness of guilt. We also find that it was reasonable for the district court to 

determine that the probative value of the statement outweighed its prejudicial impact. 

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

the recording of Hernandez' statement into evidence. 

We, therefore, conclude that the district court did not abuse its discretion in 

allowing the late endorsement of the records custodian or in admitting the three 

recordings of the telephone calls into evidence. 

Affirmed.