1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 116,252

S TATE OF K ANSAS , Appel l ee ,

v

.
T ERRY R. B ALLOU S R ., Appell ant

.

SYLLABUS BY THE COUR T

1.
A prosecutor's actions or statements 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 when the prosecutor presents an argument to the jury that misstate s the law or argue s a fact or factual
inference with no evidentiary foundation

.

2.
P rosecutorial error is harmless if the State can show beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of
the entire record
, i.e.
, where there is no reasonable possibility that the er ror contributed to
the verdict.

3. K.S.A. 2018 Supp. 60

- 456(b) does not provide a basis for excluding a forensic
interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientifi c, technical
, or other specialized knowledge

.2

4.
E xpert testimony is not necessarily required as a foundation for introducing a child
witness ' interview into evidence
, and an interviewer need not apply a specific formula or
follow a specific protocol when interviewing a child witness.

5. Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct such inadequacies, and, without any objection, an appellate court
will not consider omissions in findings

.

6.
A n appellate court will usually not consider a pretrial objection to have been timely interposed because an in limine ruling is subject t o change when the case unfolds. This rule acknowledges that different, more, or less evidence may come in at trial than
was admitted or proffer ed at a pretrial hearing. Or a district court judge may simply see
the issue in a diff

erent light after hearing additional arguments and evidence. A timely interposed objection, as required by the plai n language of K.S.A. 60

- 404, is one that gives the district court the opportunity to make the ruling contemporaneous with an attempt to intro duce evidence at trial

.

7. Determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness requires a district court to consider six relevant
factors: ( 1) whether there was corroborating evidence of the comp laining witness ' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are prove n to be false, (5) whether the3

defendant's motion for a psychological evaluation of the complaining witness appears to
be a fishing expedition , and (6) whether the complaining witness provides an unusual response when questioned about his or her understand ing of wha t it means to tell the
truth.

8. An appellate court review s a district court's application of the factors for determining whether a criminal defendant is entitled to an independent psychological
evaluation of a witness and its ultimate decisio n to grant or deny a motion for a psychological evaluation of a witness for an abuse of discretion. An abuse of discretion

occurs if: (1) no reasonable person would take the view ado pted by the district court; (2) the decision is based on an error of law; or (3) the decision is based on an error of fact. The party asserting the district court abused its discretion has the burden to show
such an abuse of discretion.

9. A single, nonreversible error does not establish reversible cumulative error.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 18, 2017

. Appeal from Miami D istrict C ourt; A MY L. H ARTH , judge

. Opinion filed September 6 , 20 19

. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the dis trict court is affirmed in part and vacated in part.

Peter Maharry , of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Elizabeth H. Sweeney

- Reeder , county attorney , argued the cause, and Julia Le th

- Perez , assistant county attorney, and Derek Schmidt , attorney general, were with her on the brief for appellee.4

The opinion of the court was delivered by

L UCKERT , J

. : A jury convicted Terry R. Ballou Sr. of one count of rape and one
count of aggravated indecent liberties with a child . Ballou appealed
, assert ing five e rrors : (1) T he prosecutor erred when, in his closing argument , he expanded the time frame in which the crime allegedly occurred ; (2) the district court erred in admitting into ev idence
a video of a n interview of the child victim without ensuring compliance w ith K.S.A. 2018 Supp. 60

- 456(b) or conducting a taint hearing to determine its reliability ; (3) the district court erred by admitting evidence of alleged prior sexual misconduct by Ballou; (4) the district court erred in not ordering a psychological evaluation of the child victim ; an d (5)
the cumulative effect of all errors warrants revers ing his convictions. The Court of Appeals rejected Ballou's arguments and affirmed his convictions and sentence. State v.
Ballou , No. 116,252, 2017 WL 3575610 , at *1 (Kan. App. 2017) (unpublished opinion).
On review of that decision, we determine no reversible error occurred, and we affirm
B allou's convictions

. But we raise sua sponte the issue of whether the district court erred in sentencing Ballou to postrelease supervision and we vacate that portion of the

sentence.

F ACTS AND P ROCEDURAL B ACKGROUND

Ballou's convictions of one count of rape and one count of aggravated indecen t liberties with a child resulted from acts involving his then

- six

- year

- old daughter. Th e State originally alleged Ballou committed these crimes on or about April 13, 2014. On or about that date, Ballou's long

- time, live

- in girlfriend, Virginia Norris, lef t the house to
run a few errands . She returned much sooner than expected to find Ballou rubbing his erect penis on his daughter's vagina and anus while the daughter was face down on a chair in the living room with her pants pulled down

.5

Norris reported w hat she saw to her mother and her adult daughter , but she did not report the incident to law enforcement authorities. Sometime later
, Norris ' adult daughter reported the incident to the Kansas Department for Children and Families (DCF)

. A fter receiving the report, the DCF began an invest igation. Jennifer Stockard, a child protection specialist, contacted Norris about the allegation s, but Norris denied know ing anyth ing about the incident

.

S tockard and a sheriff's detective contacted Ballou's dau ghter whil e she was at her baby sitt er's house. Based on what the child said, t hey decided to take her into protective custody and transport her to Safe Harbor, an interview room in the basement of the Miami County courthouse. Stockard had some familiarity with the c hild because, t wo years earlier, Stockard had interviewed her while investigating whether her brother had
abused her.

After Stockard and the detective decided to take the child to Safe Harbor to continue their 2014 investigation, they contacted Norris

. S he came to the courthouse and gave them details about an occasion when she came home earlier than expected and found Ballou touching his daughter with his penis. Stockard then interview ed the child.
Stockard recorded the interview , which was later introd uced at trial over Ballou's objection. In the interview, the child revealed Ballou had penetrated her vagina and anus with his penis before Norris came home and found them

. The child also said Ballou had
committed th e same or similar acts on multiple prior occasions.

Based on the child 's allegations, Ballou was arrested and charged with and tried by a jury on the charges of rape, aggravated criminal sodomy, and aggravated indecent
liberties with a child. During the trial, t he State introduced evidence of the child 's reports of other uncharged sex crimes or instances of sexual misconduct . The State offered this
evidence under K.S.A. 2018 Supp. 60

- 455(d) to show Ballou's propensity to commit6

these acts . Ballou had filed a written pretrial objection to the admission of the evidence,
which the district court overruled. H e did not renew his objection at trial.

Although t he jury convicted Ballou of rape and aggravated inde cent liberties with a child, it acquitted him of aggravated criminal sodomy. The district court sentenced him

to a life sentence without the possibility of parole for 25 years on each count. The court
ordered consecutive sentences , for a total controlling sentence of lifetime imprisonment without par ole for 50 ye ars. The district court also imposed lifetime post release supervisi on for each charge

.

Ballou timely appealed his co nvictions and sentence. T he Court of Appeals

as sumed one error

— that the prosecutor committed error by expanding the time fra me in
which the State alleged the crime occurred . But the panel held the as sumed error was har mless. It rejected all other claims of error. See Ballou , 2017 WL 3575610. We granted Ballou's petition for review and the State 's cros s

- petition seeking review of the panel's
decision to assume the prosecutor err ed by expanding the time frame for the alleged
crimes

. Additional facts are set forth as necessary below.

A NALYSIS

I SSUE 1: Harmless p rosecutorial error occurred.

Ballou argues prosecutorial error occurred because the State , during its closing argument, expanded the time frame in which it alleged the crime occurred. In the State's initial complaint and two later amended complaints, the State alleged Ballou committed
the ch arged offenses " on or about the 13th day of April, 2014

. " In opening statements, the State told the jury the " story that you're going to hear begins on April 13th, 2014. " Later in the trial, t he State called Norris as a witness and she testified the crime occ urred on7

April 13, 2014 . But the State broadened the alleged time frame when, during its closing argument, the prosecutor discussed the evidence about when the crime occurred and told the jury " on or about " could encompass a four

- and

- one

- half

- month period :

"The act occurred on or a bout, very important words, ' or about' the 13th day of April 2014. There's been some confusion about the exact time that this happened, exact date that this happened. There's been some argument about that. [Norris] said, well

— at first, she said I thought it might have been Easter, week before that, or week after that, maybe Mother's Day, but she narrowed it down to what she thinks was April 13th. Okay. So that's the evidence we have regarding that.

"And it's important t hat is says 'on or about.' Why does it say 'on or about'? Well, sometimes you don't know exactly when a crime occurred. You go on vacation for four weeks. You come home. Your house is burglarized. You can't say the day. You can't say it actually happened o n this time. Sometimes you can, you know, if the neighbor saw the guy coming in and out and wrote it down, but a lot of times you can't. So it's not required that you find that this happened exactly on April 13th. You certainly can. And I believe
the evide nce presented is sufficient for that, but you just need to find that it occurred
about that time. Mr. Ballou testified that, I think, the four of them, [ Ballou, his daughter, his son, and Norris] had lived alone together in the house for about four and a h alf months before that, so we know it occurred in that time frame. "

Ballou objected to the State's comments and the district court overruled his objection.

On appeal, Ballou asserts the prosecutor erred by misstating the law defining the phrase " on or about. " For support he cites State v. Murr , No. 98,231, 2009 WL 596514 (Kan. App. 2009) (unpublished opinion)

. Considering Ballou's argument, t he Court of Appeals panel concluded " the holding and facts from Murr are analogous and persuasive. Thus, for the sake of argument, we will assume , for the present purpose only, that the prosecutor's statements were a misstatement of the law and therefore amounted to error. "8

Ballou , 2017 WL 3575610, at *7. But the panel concluded the as sumed er ror was harmless and di d not require it to reverse Ballou 's convict ion

. 2017 WL 3575610, at *8.

The State filed a conditional cross

- petition asking this court to hold that the prosecutor's comments were not a misstatement of law and no error occurred.

In considering a claim of prosecutorial error, we follow a two

- step analysis . We
first determin e whether an error occurred . Second, if an error has been found
, we evaluat e the prejudice it caused to determine whether it was harmless

. State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step, e rror occurs if the appellate court determines the prosecutor's actions or statements " 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. " 305 Kan. at 109. A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation . See State v.
Wilson , 309 K an. 67, 78, 431 P.3d 841 (2018); State v. Hilt , 307 Kan. 112, 124, 406 P.3d 905 (2017).

1.1 The pro secutor erred

.

Ballo u mainly argues the prosecutor's expansive interpretation of " on or about "

amoun ted to a misstatement of the law. T he Court of Appeals panel as sumed the validity of this argument and moved to the second step of evaluating the effect of the as sumed

error

. Ballou , 2017 WL 3575610, at *7. The State asks us to hold that the statement was not outside the wide latitude permitted the prosecutor. It, like Ballou, focuses on the legal meaning of the phrase " on or about. " We do not reach these legal argument s, however,
because the y depend on a fal lacious assumption that the argument , whether it misstates the law or not, fits the facts. But no evidence suggests the charged crimes occurred during9

a significant portion of the four

- and

- a

- half months Ballou and his family lived in the
house prior to Apr il 13, 2014 . Thus, there is no factual support for the prosecutor's argument.

To the extent there was any discrepancy in the time frame alleged, it related to the possibility the crime s occurred after April 13, 2014

. Ballou's cross

- examination of Norris revealed some uncertainty about the date of the incident

. I n Norris ' earlier statements to the investigators she expressed confusion about when the crimes occurred. She offered Memorial Day (May 26, 2014), Mother's Day (May 11, 2014), or Easter (April 20, 2014) as approximate times

. On redirect, Norris testified she later determined the date because she knew she had quit her job the day after Ballou committed the crimes and she had verified the date by going through her paystubs to determine the date she qu it. The State
admitted into evidence documents supporting the dates of her employment

.

Yet n o evidence suggested the incident charged in the complaint occurred before April 13, 2014. In fact, before the State's closing argument neither allegations, arguments,
nor evidence showed the crimes occurred before April 13, 2014. The prosecutor thus made an argument outside the evidence. And, as we have noted, a prosecutor commits error by argu ing a fact or a factual inference with no evidentiary foundation . See Wilson
, 309 Kan. at 78

.

1.2 The error did not prejudice Ballou

.

Although the prosecutor erred, we hold the misdirection about the potential time
frame in which the crime o ccurred di d not prejudice Ballou

. In assessing the prejudice caused by a prosecutor's error, an appellate court applies the traditional constitutional harmlessness inquiry demanded by Chapman v. California , 386 U.S. 18, 87 S. C t. 824, 17 L. Ed. 2d 705 (1967)

. Under this test, prosecutorial error is harmless if the State can10

show " beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the e rror contributed to the verdict. " State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011); s ee Sherman , 305 Kan. at 111.

To determine whether an error is harmless under Chapman , appellate courts must:

"consider any and all alleged indicators o f prejudice, as argued by the parties, and then
determine whether the State has met its burden

— i.e. , shown that there is no reasonable possibility that the error contributed to the verdict. The focus of the inquiry is on the impact of the error on the verdict. While the strength of the evidence against the defendant may secondarily impact this analysis one way or the other, it must not become the primary focus of the inquiry." Sherman
, 305 Kan. at 111.

Applying this test here, we conclude the State has met i t s Chapman burden of establishing there is no reasonable possibility the error contributed to t he verdict.

While Ballou's cross

- examination of Norris revealed that she had at first offered several possible dates, her initial uncertainty was replaced with a seeming assurance she had pinpointed the correct date by tether ing it to when she quit her job

. And corroborating evidence, including exhibits introduced by the State and admitted during
Norris ' testimony, supported the pinpointed date

— April 13, 2014

— as the correct date

.

To the extent Norris' early statements suggested a different d ate, Ballou had notice
of her statements , as evidenced by his questioning of Norris in which he test ed the State's
evidence

. His questioning reveals he was not misled into pursuing an inappropriate
defense based on the evide nce established at trial.11

Eve n so, Ballou focused on April 13 when he testified and put on multiple defense
witnesses. Through this evidence
, he tried to establish his whereabouts and his own
timeline of event s on April 13, 2014

. And given Norris ' testimony about why she pinpointed April 13 and the focus on April 13 throughout the trial, this defense remained
relevant. But Ballou did not pursue an alibi defense

. As the Court of A ppeals noted, Ballou did not dispute that he was with his daughter on April 13 in the house around the
time Norris stated the crimes took place

.

Ballou's overall defense was that he di d not commit the acts alleged regardless of the specific date

. Ballou testified about various motives Norris and her adult daughter may have had for fabricating the allegations. The Court of Appeals correct ly held Ballou
was not misled into pursuing an all

- or

- nothing, date

- specific defense. See Ballou , 2017 WL 3575610, at *7

- 8.

Based on the context in which the prosecutor's comments were made , the nature and strength of the evidence about the date , the timing and manner in which the evidence
was introduced , and the nature of Ballou's defense, we affirm the Court of Appeals ' ruling. S ee Ballou , 2017 WL 3575610, at *7

- 8. A fter " consider[ing] any and all alleged indicators of prejudice, as argued by the parties, . . . the State has . . . shown that there is no reasonable possibility that the error contributed to the verdict " Sherman , 305 Kan. at
111.

I SSUE 2: The district court did not err in admitting into evidence the child's interview.

Ballou actively litigated the admissibility of the child's interview through pretrial proceedings. He filed two motions in which he asked the district court to exclude
evidence of Stockard's interview. In the first, Ballou moved to " exclude [the child's] interview for improper interviewing techniques. " In the second, he asked for a pretrial12

ruling that the interview and Stockard's testimony would constitute expert testimony
because Stockard used the Finding Words/Child First protocol when interview ing the
child

. Before discussing the specifics of these motions, we note the terminology attached to the protocol

. F irst named Finding Words , t he protocol's name changed to Child First
around 2013. The parties and wi tnesses use both names, as wi ll we depending on which

term a party or witness used or we will u se the term Finding Words/Child First

. But we clarify that, regardless of the label, we are addressing o nly one protocol

.

Ballou's first motion attack ed the interview as " not reliable " because it resulted from overly suggestive interviewing techniques . He argued any resulting disclosure was not voluntary. Ballou supported his motion with cases decided under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. He argued these cases stand for the principle that suggestibility in a forensic interview undermines reliability, not simply credibility, and the issue should thus be determined pretrial so the jury does

not hear any tain ted evidence. Ballou also cited an article and State v. Michaels , 1 36 N.J.
299 , 642 A.2d 1372 (1994) , for authority that a " taint hearing " should be conducted by
the district court

.

In Michaels , the defendant showed " ' some evidence ' '' that the victims ' s tatements were the result of suggestive or coercive interviewing techniques and, based on that showing, the New Jersey Supreme Court held the trial court should have conducted a taint hearing

. 136 N.J. at 320

- 21 . The New Jersey Supreme Court held that, at such a hearing, the burden shifts to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. 136 N.J. at 321 . Once the State meets that burden, the statement s may be admitted at trial and the jury must assess the credibility of the statements. 136 N.J. at 323

.13

Ballou neither discussed nor cited State v. Gilliland , 294 Kan. 519, 276 P.3d 165 (2012), in which this court declined to answer the question of " whether a trial court must take on a gate

- keeping role and determine reliability before allowing a child's statement

to be presented to a jury " and cautioned that " our discussion of the issue should not be read to imply that outcome. " 294 Kan. at 547. In doing so, we noted Michaels was "con troversial " and a majority of jurisdiction s have rejected its holding. 294 Kan. at 547.

In response to Ballou's motion, t he State distinguish ed the egregious
circumstances involved in the interviews at issue in Michaels . It also criticized Ballou's
relia nce on Confrontation Clause cases involving hearsay statements by children alleging sexual abuse because the reliability issues addressed in those cases concern ed hearsay, not purported problem s with the interview leading to the hearsay statements. The Sta te
argue d the child's testimony should be governed by general rules of competency, citing
State v. Poole , 124 Idaho 346 , 859 P.2d 944 (1993). It further argue d whether an interview is suggestive is a credibility issue that should go to the jury, citing Sta te v. Karelas
, 28 So. 3d 913 (Fla. Dist. Ct. App. 2010).

Ballou's second motion ask ed the court to treat Stockard as an expert in testifying about the Finding Words /Child First protocol. Ballou argued the district court should apply K.S.A. 2018 Supp. 60

- 456(b) and conclude Stockard 's testimony did not meet its requirements

. K.S.A. 2018 Supp. 60

- 456(b) applies to the testimony of an expert witness

" qualified as an expert by knowledge, skill, experience, training or education " and states that the expert may testify in the " form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the
facts of the case. " Through this language, t he Legislature intended to bring " the requirements for admission of expert opinion into line with the United States Supreme
Court's decision in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 592

- 94, 11314

S

. Ct. 2786, 125 L. Ed. 2d 469 (1993). " State v. Sasser , 305 Kan. 1231, 1245, 391 P.3d 698 (2017). And Ballou argues the interview does not comply with Daubert 's holding.

The State responded the interview itself is not expert testimony and thus not subjec t to K.S.A. 2018 Supp. 60

- 456(b) or Daubert . It further posit ed Stockard would testify as a fact witness, not an expert. The State also point ed out that if interviewing techniques are treated as an area of expertise, every police detectiv e is an " expert " and
that the Finding Words/Child First protocol should not be subject to K.S.A. 2018 Supp.
60

- 456(b) because it is neither new nor novel.

The district court held a hearing on these motions a t which Ballou's expert, Dr.
Robert Barnett, testified . He said h e personally used his own method of interviewing that

was not based on any specific protocol but was based on his " education, training and experience as well as keeping up in my field through reading and consultation with other psychologists. " Citing studi es by the National Institute of Child Healt h and Human Development (NICHD), he emphasized the importance of using nondirective questioning. He critic ized the Finding Words protocol as not being supported by data
about its reliability or validity. He cited a n NICHD article that criticized Finding Words, noting t he article pointed out the biggest problem was that " Finding Words practitioners are not following the protocol. " He indicated not following the protocol could introduce a higher error rate, which he defined to mean false positives and negatives. Barnett also testified, " [Q] uite frankly, a lot of [the Finding Words] protocol is entirely valid and is used by other people. " But h e criticized some aspects of Finding Words , including its use of anatomic ally correct drawings and dolls . And then he reiterated that his " biggest objection to the Finding Words protocol, based on the many interviews I've reviewed, is that people typically don't follow the protocol. "15

Barnett also addressed the specific deficie ncies he observed in Stockard's
interviews of the child

—

both the interview two years earlier when the child had been
abused by her brother and the 2014 interview after Ballou had allegedly sexually abused
her . Barnett stated research suggests a child's res ponses in later interviews are impacted by the first interview. He also cited confirmatory bias and noninvestigation of alternative hypotheses as problems that can arise during an interview. He believed Stockard approached the interview with the belief the child had been abused by Ballou and
therefore failed to explore alternative hypotheses. He also criticized her use of leading questions, which the NICHD protocol advises only to use when an interviewer runs into trouble during the interview. He identified specific questions that he described as communicating the appropriate answers to the child. He said this skews the results, according to " empirical research
, " but he failed to cite a particular source. Barnett described reliability in this context: " If y ou did an interview this way and did an interview with nonleading questions, the presumption is you would get two different results; and so, therefore, no reliability. " He cited no research testing that presumption.

C ounsel then played both the interviews from 2014 (when Ballou was the alleged perpetrator) and 2012 (when another family member was the alleged perpetrator)

. Periodically, the videos were paused so Barnett could address a particular concern with
the interview.

After going through this proces s with the 2014 video, Barnett concluded the Finding Words protocol was followed " in some regards, not in all. " He testified the protocol was not followed in these areas: " Investigation of truth or lie, leading questions, confirmatory bias, lack of investigation of alternative hypotheses. " He later identified similar issues of concern with the 2012 interview. He also expressed concern about the length of the 2012 interview and the child's distress during the interview. He criticized the presen ce of t he child's mother at points duri ng the 2012 interview, observing that16

some disclosure came from the mother rather than the child. Ultimately, however, Barnett

agree d that the child, not the mother, identified the place the child was touched and that
the ch ild was able and willing to correct the interviewer when the interviewer got something wrong. He also acknowledged the child resisted what might be seen as pressure from authority figures to say someone else touched her inappropriately

. Yet h e faulted repe ated questions being asked on this issue, while acknowledging th e child did not change her response after repeated questioning.

Barnett was not asked , nor does the testimony he offered seem to imply, that he
found the results of the entire interview unre liable. Instead, he criticized particular practices used during the interview and explained the potential issues those practices

create d

.

Stockard testified about her education, training, and interviews of the child.

On a different date , t he State's exp ert, Kelly Robbins , testified . She detailed her experience, training
, and education. She also ad dressed the Finding Words/Child First protocol. Robbins described the interviews as " semi

- structured " to allow the interviewer to adapt to the child based on the child's developmental capacity and spontaneity. She
testified i nterviewers may customize their interviews based on the children , and she emphasized the need for open questions to avoid issues of suggestibility.

Robbins addresse d testability of the proto col. She point ed out absolute efficacy
could not be determined because it was impossible to know the truth of particulars the child reported. But she cited the testing of the interviewing techniques that had led to the development of best practices. She noted, however, that different children and circumstances sometimes required use of different techniques. Robbins distinguishe d the
interviewin g process from a scientific proc ess in which an error rate can be established

.17

Robbins reviewed Stockard's 2014 interview of the child and concluded Stockard appropriately fo llowed the Child First protocol . Robbins identified some leading questions but noted the child resisted leading questions. Overall, Robbins concluded the interview was not suggestive. Robbin s reached similar conclusions after reviewing Stockard's 2012 interview. Robbins aga in noted some leading questions but observed that the child resisted any suggestion she should adopt the premise of those questions. Robbins also produced a report respondi ng to the issues raised by Barnett through his report and testimony.

In ruling on the motions, the district court prefaced its findings by stating it would
address the motions simultaneously because the issues were " closely tied together. " The
district c ourt agreed with the State's position that K.S.A. 2018 Supp. 60

- 456 did not apply, reasoning Stockard was a fact witness. It analogized Stockard's testimony to that of a treating physician:

" That the treating physician has specialized training, as used in the statute, his medical degree does not, in and of itself, mean he is testifying as an expert. He is testifying about what he saw, heard, observed, and what actions he took as a result. Here, Miss Stockard is drawing no conclusions as to what did or di d not happen between the defendant and [the child] . She is merely gathering information from the complaining witness. That she has chosen to use a specific technique to gather that information does not automatically subject her

— subject her fact gathering t o a 60

- 456 analysis. Nowhere in the interview does she offer an opinion as to the truth of the statements offered by [the child] ."

The district court continued to explain why it found the discussion of the purported science of child interviews a distract ion:

" I think an attempt to get me to focus on the purported science of child interviews serves only as a diversion from the statute itself. I would note 60

- 456 is testimony in the18

form of opinion or inferences. Such do not exist in the context of the interview itself. The

st atute is not intended to apply to a fact witness, nor should the reverse be true. The opinion of an expert is not a fact. It is ju s t an opinion regardless of that expert's training or knowledge. "

The district court did not explicitly address the reliabi lity of the Finding
Words/Child First protocol or Stockard's implementation of the protocol

. But t he district
court ruled the child's statement and Barnett's testimony attacking the weight and
credibi lity of Stockard's interview were admissible

.

On appeal, Ballou attacked the Finding Words/Child First protocol as not having
been shown to be reliable, analogizing the protocol to other areas of scientific inquiry.
Then he fault ed any deviatio n from the protocol as violating K.S.A. 2018 Supp. 60

- 456(b)/ Daubert . He next argue d if the interview was not expert testimony, it should have
nonetheless been excluded as unduly suggestive. He again relie d on the Michaels
decision from New Jersey without acknowledgi ng this court's discussion of that case in
Gilliland

.

The Court of Appeals was not persuaded . It concluded Stockard's testimony was not expert testimony

. The panel characterized Ballou's arguments as " attempting to fit a square peg in a round hole. " Ball ou , 2017 WL 3575610, at *10

- 11 . It distinguished cases
that Ballou relied on , noting that while interviewing techniques may be outside the understanding of the jury, the interviews produced by those techniques are not necessarily inadmissible because the a verage juror does not understand the underlying
methods . The panel also noted that the interview er, during an interview, does not offer an opinion subject to K.S.A. 2018 Supp. 60

- 456(b)

. 2017 WL 35756 10, at *10

.

The panel next considered Ballou's Michaels argument. It distinguished Stockard's
interview from the problematic interviews that le d to the Michaels opinion. The panel19

concluded Stockard's techniques were not impermissibly suggestive, and therefore the district court did not abuse its discretion by admitting the interview at trial. 2017 WL 3575610, at *11

- 12.

On review, Ballou asks this court to find the panel erred in concluding the interview was not scientific evidence or subject to Daubert . He draws an analogy to evidentiary requirements relatin g to testing for the crime of driving under the influence

. Because Stockard had been trained in a particular method for interviewing a child
believed to have been abused , Ballou argues K.S.A. 2018 Supp. 60

- 456 require s the State
to establish the scientific reliability of the method used in conducting the interview before the jury can hear evidence about the child's statements

. Ballou challenges the panel's conclusion that the interviewing techniques were not unduly suggestive.

2.1 K.S.A. 2018 Supp. 60

- 456 (b) does not apply to the interview

.

Kansas rules of evidence are generally concerned with how a party present s facts
to the trier of fact. See K.S.A. 60

- 401. Typically , every person is qualified to be a witness and provide testimony about relevant matters within their personal knowledge. K.S.A.
60

- 407; K.S.A. 60

- 419. But see K.S.A. 60

- 417 (witness disqualified if unable to be
understood by judge and jury or unable to un derstand duty to tell the truth). In other words, most witness testimony is concerned with establishing facts.

K.S.A. 2018 Supp. 60

- 456 imposes some limitations on a witness ' testimony, however, and Ballou argues those limitations required the district co urt to rule that Stockard's interview of the child was inadmissible. Appellate courts apply a multi

- step analysis when reviewing claims of evidentiary error. Ballou's argument about the application of K.S.A. 2018 Supp. 60

- 456 places us at the second step i n the multi

- step analysis where an appellate court undertakes a de novo assessment of which legal20

principles apply. See State v. Shadden , 290 Kan. 803, 81 7

- 18, 235 P.3d 436 (2010) (identifying tiered appellate analysis of [1] reviewing objections to releva ncy; [2] determining which rules of evidence or legal principles apply; [3] reviewing the tr ial
court's application of the rules)

.

To determine K.S.A. 2018 Supp. 60

- 456(b)'s applicability, we must determine legislative intent . T he plain language of the s tatute is the best means for discerning this
intent . Only if the statutory language is unclear or ambiguous will we move on to consider other tools of statutory construction. State ex rel. Sec retary of DCF v. Smi th
, 306 Kan. 40, 48 , 392 P.3d 68 (2017)

.

K.S.A. 2018 Supp. 60

- 456 (a) applies to lay witness es and allows them to provide testimony in the form of opinions or inferences that are rationally based on the witness ' perception ; helpful to understanding the witness ' testimony ; and not based on scientif ic, technical, or other specialized knowledge. Subsection (b) applies to witness es who are qualified as an expert. In full, K.S.A. 2018 Supp. 60

- 456(b) provides:

" If scientific, technical or other specialized knowledge will help the trier of
fact to und erstand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on
sufficient fa cts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." (Emphases added.)

The statute focuses on testimony. But Ballou does not focus on Stockard's testimony. Instead, he focuses on the child's statement, arguing the district court should
not have admitted it

. Yet K.S.A. 2018 Supp. 60

- 456(b) does not provide guidelines or rules about the admissibility of out

- of

- cour t statements. And Stockard 's testimony only21

facilitated the admission of the child's statement by laying the foundation for when, where, and under what circumstances the recording of the statement was made

. Stockard's role was that of interviewer, not as a witness to the crime. And she did not offer an opinion during the interview . Given those circumstances, t he statutory language
itself reveals the infirmities in Ballou's argument that the interview is gov erned by 60

- 456(b).

The statute governs circumstances in which a witness may " testify. " To " testify " is

" [t]o give evidence as a witness <she testified that the Ford Bronco was at the defendant's
home at the critical time>" or " to bear witness <the incom plete log entries testified to his sloppiness>. " Black's Law Dictionary 1704 (10th ed. 2014). " Tes timony" is " [e]vidence that a competent witness under oath or affirmation gives at trial . . . . " Black's Law Dictionary 1704 (10th ed. 2014). And a " witness " is " [s]omeone who sees, knows, or vouches for something <a witness to a testator's signature>. 2. Someone who gives testimony under oath or affirmation . . . . " Black's Law Dictionary 1838 (10th ed. 2014). Because some of these terms rely on the word " evi dence, " we note that Kansas law
defines " evidence " as " the means from which inference s may be drawn as a basis of proof in duly constituted judicial of fact

- finding tribunals, and includes testimony in the form of opinion, and hearsay. " K.S.A . 60

- 401(a).

Our review of the interview reveals Stockard offered neither opinion nor factual testimony. She did not give evidence or bear witness during th e interview. Instead, during
the interview Stockard engaged in a fact

- finding process to learn about what, i f anything, happened . To that end, she asked the child questions. She d id make some factual representations about other witness ' statements. But each time, Stockard told the child
who had made the statement and the context sought to get information from the child. Nothing Stockard sa id or d id in the interview constituted testimony or testifying, nor d id any of her comment s constitute an opinion as contemplated by K. S.A. 2018 Supp. 60

-22

456(b). K.S.A. 2018 Supp. 60

- 456(b) does not provide a basis for excluding a forensic
interview.

2. 2 Stockard's testimony and the interview were admissible.

Nor does the statute support excluding Stockard's trial testimony. By way of introducing her , the S tate established Stockard's background, including her education as a

so cial worker, her training in the Fin ding Words/Child First protocol, and her experience in conducting interviews. This factual background has similarity to the foundation often laid for expert testimony
, but background alone does not make the entire testimony and interview subject to a K.S.A. 2018 Supp. 60

- 456 / Daubert process. As discussed, what separates her testimony from that of an expert is that she never offered an opinion or otherwise testif

ied to anything based on her scientific, te chnical
, or other specialized knowledge

. She simply testified to what she, the detective, Norris, or the child said or did. This testimony was based on her personal observations. She did not offer an opinion about the reliability of the child's statement o r whether she found the statement believable or truthful. She simply relayed the factual circumstances under which the statement was taken

.

Also, contrary to Ballou's argument, expert testimony is not necessarily required
as a foundation for introducing a child witness ' interview into evidence . Ballou argues the Court of Appeals panel held that expert testimony was required. But he misreads the panel's analysis

. Nor does his argument find support in the authorities he cites , which

were discussed by the pa nel

— State v. Gaona , 29 3 Kan. 930, 270 P.3d 1165 (2012), and State v. Huntley , 39 Kan. App. 2d 180, 177 P.3d 1001 (2008)

. See Ballou , 2017 WL 3575610, at * 9

- 10

.23

In Gaona , 293 Kan. 930, an investigator trained in Finding Words interviewed the
child victim. The investigator testified
, and the child's interview s were admitted into
evidence. The State also proffered an expert witness

— the same expert used here,
Robbins . W e classified Robbins ' testimony in Gaona as addressing two general areas: (1) the Finding W ords protocol as a way to bolster the State's investigator who employed the protocol and rebut the defense expert who criticized the investigator's interview, and (2) to explain common characteristics of abused children and to explain how the child
victim in that case demonstrated those characteristics. 293 Kan. at 947.

We held Robbins was not qualified to offer the second category of testimony
about the child 's behavior because Robbins, at that time, lacked train ing in psychology, psychiatry, social work, or child development. See 293 Kan. at 947

- 48

. In contrast, we held the district court did not abuse its discretion in allowing Robbins to testify about the Finding Words protocol and, more generally, about i nterviews of children who have alleged sexual abuse. We noted: " Jurors do not possess this information, and Robbins ' testimony was helpful to their understanding of the case. " 293 Kan. at 948.

But the decision did not go as far as Ballou suggests; it di d not hold that an expert

must lay the foundation for a n interview of a child victim. And, here, the district court recognized the role of experts discussed in Gaona

. T he district court specifically ruled the
child's statement was admissible and that Ballo u could present his expert testimony to the jury, although he ultimately chose not to do so.

Likewise, in Huntley , 39 Kan. App. 2d 180, the Court of Appeals panel di d not hold an expert must lay a foundation about the reliability of the interview . Inste ad, it
considered whether the district court abused its discretion when it denied a continuance after determining it would not admit the defense expert 's testimony about whether investigative techniques had been suggestive. Huntley argued the child's natur al mother24

was suggesting testimony to the child and the expert's testimony was relevant to bolstering his theory of defense

. The district court disagreed and concluded expert testimony was unnecessary because a juror using common sense could assess whether a mother had been instrumental in suggesting testimony to her child.

The Huntley panel reversed the district court a nd discussed caselaw from other jurisdictions

" holding that the proper protocols and techniques used to interview child victim
witnesses is a matter not within the knowledge and understanding of the average juror.

. . . This caselaw seems to be in step with an emerging trend to recognize and permit expert testimony on the impact of suggestive interviewing techniques on child
witne sses. " 39 Kan. App . 2d at 188.

The panel concluded the district court made an error of law based on the district court's legal conclusion that any defense expert testimony would be inadmissible. 39 Kan. App.
2d at 189. Again, however, the court did not hold that expert testimony about the efficacy of a protocol used when conducting a n interview of a child is necessary before the jury
can hear or view the interview.

Ballou finally attempts to bolster his argument by an alogizing the interview to a
test for blood alcohol content. Before test results are admitted
, we have held that a precise step

- by

- step protocol must be followed and scientific reliability must be established or test results are inadmissible

. See Shadden
, 290 Kan. at 823

- 25

. And, i n a supplemental

memo randum to the district court, Ballou compared the interview to horizontal gaze nystagmus testing, citing this court's opinion in City of Wichita v. Molitor , 301 Kan. 251, 341 P.3d 1275 (2015). There, we held the test was scientific and its reliability must be
established before it could be admitted . 301 Kan. at 260

- 64.25

Ballou's comparisons are inapt , however . A n interview of a child witness is not the type of scientific or technical process t hat is amenable to a precise, testable result. Regardless of protocol, no expert can proclaim the accuracy of the result of the interview or any conclusions to be drawn from it because no metric has been established of assuring reliability or truthfulness. A n interview is by its nature dynamic, where the discussion may vary as information is revealed . It is unrealistic to expect the same step

by

- step process one can apply to some areas of scientific o r technical inquiry to apply to test a child's disclosure that he or she has suffered abuse. Robbins ' testimony to the district court supports these conclusions. And n othing in Ballou's expert 's testimony suggests a meticulous s tep

- by

- step process is required or that the failure to follow a step negates the enti re results of the interview. Indeed, Barnett testified he does not follow any particu lar protocol. Barnett identified problems with the interview that may impact some aspects of the interview . But nowhere in his opinion did he go so far as to say the entir e disclosure wa s rendered suspect or unreliable.

Unless some area of study can develop such a process, we are left with different fields of inquiry, such as law enforcement, psychology, psychiatry, and social work, developing ways to obtain information a bout alleged abuse. And to the extent that the processes they develop are flawed, those flaws should be presented to a jury to weigh in
its analysis. Another case, State v. Howling
, 310 Kan. __, __ P.3d __ ( No. 116,524, this day decided ) , slip op. at 3

- 7, shows a jury's ability to do just that. But to the extent that a process yields an unreliable result because of improper suggestions during questioning, Kansas law provides other potential avenues to explore that possibility and exclude the
evidence if app ropriate.

In summary, expert testimony is not necessarily required as a foundation to introducing a child witness ' interview into evidence and no specific formula or protocol
need be followed when conducting an interview. Thus, the failure to present ex pert26

testimony or for an interviewer to follow a specific protocol does not render the interview
inadmissible.

2.3 Ballou failed to preserve his argument about the need for a taint hearing

.

As we have discussed , Ballou repeatedly invoked Michaels , 136 N.J. 299, which
held that New Jersey courts must hold a taint hearing in certain cases. In Gilliland
, we first considered Michaels and noted that " Kansas does not formally recognize pretrial taint hearings. " 294 Kan. at 545

. And we did not do so in Gilliland and have not done so
since. In Gilliland , we noted that the district court had considered the ultimate finding
mandated in Michaels by concluding the questioning was not unduly suggestive or leading and that the interview should be admitted . 294 Kan. at 546

- 47

.

Ballou makes no attempt to explain why the evidentiary hearing conducted by the district court did not constitute at least the functional equivalent of a taint hearin g. He received more process than did Vernon Ray Gilliland , who had been denied the ability through the district judge's ruling to present his own expert's testimony. In Gilliland , we recognized authorities allowing a defendant to present the issue of reliability without convening a hearing formally called a " taint hearing. " Se e 2 94 Kan. at 547

- 48 ( citing out

of

- state cases "permit t [ing] an inquiry into suggestiveness through the use of competency hearings " )

.

Here, citing Michaels
, Ballou argued the statements were tainted and unreliable. He presented Barnett's testimony. Afte r hearing Ballou's evidence, the district court denied his motion. The court ruled the jury could hear the interview. It also ruled that Ballou's expert could testify. Granted, the district court's rulings about reliability were not as precise as those in Gilliland or as detailed as the Michaels court directed. But Ballou had the obligation to request more precise or appropriate findings of facts and27

conclusions of law. His failure to do so puts this issue beyond this court's review.

" Generally, litigants and their counsel bear the responsibility for objecting to inadequate findings of fact and conclusions of law in order to give the trial court the opportunity to correct such inadequacies, and, when there is no objection, omissions in finding s are not

cons idered on appeal. " McIntyre v. State , 305 Kan . 616, 618, 385 P.3d 930 (2016).

Finally, we note that t he Court of Appeals panel considered the reasons the
interview was " not impermissibly suggestive " and, based on those reasons, held " the trial
court did n ot abuse its discretion in admitting the interview at trial. " Ballou
, 2017 WL
3575610 , at *12. In Ballou's petition for review, he argues the panel " incorrectly downplayed the suggestive nature of the interview and pressure applied by Norris " on the
child. But Ballou does not challenge the panel's holding that an abuse of discretion standard applies and under that standard, as applied by the panel, he must show that no reasonable person would agree that the interview was not unduly suggestive. He has
failed to meet that burden.

We hold the district court did not err in admitting the statement of the child.

I SSUE 3: Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct under K.S.A. 2018 Supp. 60

- 455(d)

.
Ballou argues the Court of Appeals panel erred in finding he failed to preserve his objection to the admission of K.S.A. 2018 Supp. 60

- 455(d) evidence by not contemporaneously objecting at trial. The panel noted Ballou filed a written pretrial objection bu t did not renew his objection at trial when the State presented evidence about uncharged ac ts of sexual misconduct

. T he panel held a timely objection under K.S.A. 60

- 404 requires making a specific objection on the record contemporaneous with the
introducti on of the evidence at tria l and Ballou failed to make such an objection. See28

Ballou , 2017 WL 3575610, at *13 (citing State v. Dupree , 304 Kan. 43, 62, 371 P.3d 862,
cert. denied 137 S. Ct. 310 [2016]).

As Ballou essentially acknowledges in his petition f or review, t he panel's reasoning relies on and follows this court's decisions. He argues , however, this court's contemporaneous objection rule is inconsistent with the plain language of K.S.A. 60

- 404,
which states :

"A verdict or finding shall not be se t aside, nor shall the judgment or decision based thereon be reversed, 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 objecti on."

Ballou asserts his written pretrial objection meets the dictionary definition of timely, which he argues is different from contemporaneous. He cites dictionary definitions for both, defining " timely " as " ' coming early or at the right time, ' " and

" contemporaneous " as " ' existing, occurring, or originating during the same time. ' " But he does not explain how our caselaw is inconsistent with his cited definitions for timely and contemporaneous. And we conclude no conflict exists.

We have explained a p retrial objection alone will not usually be considered timely for purposes of K.S.A. 60

- 404 because " an in limine ruling ' is subject t o change when the case unfolds, ' Luce v. United States , 469 U.S. 38, 41, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984)

. " State v . Inkelaar , 293 Kan. 414, 421, 264 P.3d 81 (2011), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016). This rule acknowledges that different, more, or less evidence may come in at trial than was admitted or proffered

at a pretri al hearing . Or a district court judge may simply see the issue in a different light after hearing additional arguments and evidence. A nd a " timely interposed

. . . objection "
is required by the plain language of K.S.A. 60

- 404 . (Emphasis added.)29

" Interpose " means " to place between or in an intermediate position [ ; ] to put forth by way of interference or intervention [ ; ] to introduce or throw in between the parts of a conversation or argument

. " (Emphasis added.) Webster's Third New International
Dicti onary 1182 (1993). A timely interposed objection , thus, comes between the
introduction of the evid ence at trial and its admission

. In other words, a timely interposed objection is one that gives the district court the opportunity to make the ruling
contemp oraneous with an attempt to introduce evidence at trial. See Inkelaar , 293 Kan. at
421. This is because "contemporaneous" means "occurring, or existing at the same time." Black's Law Dictionary 397 (11th ed. 2019). Accordingly, our contemporaneous objectio n rule tracks with the plain language of K.S.A. 60

- 404. See Dupree , 304 Kan. at
62. And to hold otherwise would not further the legislative intent of giving "'" the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial "'" State v. King , 288 Kan. 333, 342 , 204 P.3d 585 (2009).

We thus affirm the Court of Appeals panel's conclusion on this point. We pause to note our disagreement with one aspect of the panel's analysis, howeve r. T he Court of Appeals alternatively found Ballou had waived the argument because after the State admitted the complained

- of evidence, he used it to discredit the child's testimony. See
Ballou , 2017 WL 3575610, at *13

- 14. In support of its analysis, the p anel cited this
court's decision in State v. Berriozabal , 291 Kan. 568, 243 P.3d 352 (2010). Yet t he
circumstances in Berriozabal are distinguishable from the facts here. Jesus Berriozabal challenged the admission of evidence in a pretrial motion but faile d to object contemporaneously to its admission at trial. He then used the evidence throughout trial, discussing it in his opening statement, using it to question multiple witnesses, and generally relying on it in the overall theme and theory of his defense to the extent that we30

determined his " defense strategy is inconsistent with the argument Berriozabal asserts on appeal. " Berriozabal , 291 Kan. at 580.

Ballou did not use the evidence as part of a broader argument or theory of defense. Rather, Ballou mer ely respon ded to the State's reliance on the evidence through cross

examination . Under the facts here , it would be, as Ballou argues, " unfair to now say [the] evidence, which [he] had previously objected to, is untouchable and if he does address it,
he wai ves any objections he may have had to the evidence. "

R eliance on Berriozabal was not essential to the panel's holding , however . And we
affirm its ultimate conclusion that Ballou did not properly preserve his objection.

I SSUE 4: The lack of an independent psychological exam was not error.

Ballou argues the district court and Court of Appeals erred in determining it was appropriate to deny his pretrial motion for an independent psychological examination of Ballou's daughter

.

Here, the district court applied the appropriate factors for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness

. We have identified six relevant factors:

" (1) whether there was corroborating evid ence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when31

questioned about his o r her understanding of what it means to tell the truth." Berriozabal
, 291 Kan. 568, Syl. ¶ 5.

We review a district court's application of these factors

— often called the Gregg factors, see State v. Gregg , 226 Kan. 481, 489

- 90 , 602 P.2d 85 (1979)

— and its ultimate decision to grant or deny a motion for a psychological evaluation of a witness for an
abuse of discretion. Berriozabal , 291 Kan. at 580. An abuse of discretion occurs if: (1) no reasonable person would take the view adopted by the district court; (2) the decision is based on an error of law; or (3) the decision is based on an error of fact. State v.
Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the district court
abused its discretion has the burden to show s uch an abuse of discretion. State v.
Robinson , 303 Kan. 11, 90, 363 P.3d 875 (2015).

As to the first factor, the district court found there was corroborating evidence of
the child's allegations because Norris walked in as it was happening and her account of
the incide nt fit with the child 's. As to the second and third factors, the district court found there was no evidence presented that the child was mentally unstable or had problems with veracity. As to the fourth factor, the district court found Ballou had presented no evidence that the child had made similar accusations later proven false. As to the fifth factor, the district court found Ballou's motion appeared to be a fishing expedition , and
his " suggestion that such an evaluation would, in fact, be good for the c hild [lends] no support to his request. " As to the s ixth factor, the district court found the child did not
show any unusual or unexpected responses when asked to tell the truth and explain if she understood what it means to tell the truth and why it was n ecessary to do so in her interview with Stockard, in her testimony at the preliminary hearing , or in her testimony
at the pretrial motion hearing.32

Ballou's argument on appeal seeks to undercut these findings. Each argument goes to the weight and credibili ty of the evidence. He cites evidence and argues that evidence supports a contrary conclusion. But Ballou fails to show that no reasonable person would have taken the same position as the district court. " '" If reasonable persons could differ as
to the prop riety of the action taken by the trial court, then it cannot be said the trial court
abused its discretion. " '" State v. Reed , 282 Kan. 272, 280, 144 P.3d 677 (2006)

.

The Court of A ppeals panel properly considered and rejected Ballou's arguments
within th e standard of review for abuse of discretion . And the panel directly cited the district court's findings on each factor. See Ballou , 2017 WL 3575610, at *14

- 16. Ballou
has shown no error in its analysis, nor has he shown an abuse of discretion by the distr ict court. Thus, he has not carried his burden on appeal. See Robinson , 303 Kan. at 90. In

summary, w e find no abuse of discretion in the district court's denial of his motion for an independent psychological evaluation of Ballou's daughter

.

I SSUE 5: C umulative error did not deprive Ballou of a fair trial

.

Ballou argues that even if none of the errors he alleges are individually reversible, cumulative error deprived him of a fair trial. But we have found only one error

— an error b y the prosecutor in m aking an argument unsupported by the evidence. And we have held
that error was not reversible. A single , nonreversible error does not establish reversible
cumulative error. State v. Williams , 299 Kan. 509, 566, 324 P.3d 1078 (2014).

S UA S PONTE I SSUE : Th e p ostrelease supervision order is il legal

.

Although not discussed by the parties, the district court's sentence fo r Ballou's two
off

- grid life sentence included lifetime postrelease supervision. But, und er Kansas statutes, the life sentences for these c rimes are followed by parole, not postrelease33

supervision, and the imposition of postrelease supervision in this case makes the

sentence s illegal. See K.S.A. 2013 Supp. 21

- 5503(b)(2); K.S.A. 2013 Supp. 21

- 5506(c)(3); K.S.A. 2013 Supp. 22

- 3717(b)(5); K.S.A. 2013 Supp. 21

- 6627(a )(1) (B), (C) ; see also State v. Ruiz

- Ascencio , 307 Kan. 138, 146, 406 P.3d 900 (2017); State v. Phillips , 295 Kan. 929, 950, 287 P.3d 245 (20 12). This court may correct an illegal sentence at any time and may do so sua sponte. See K.S.A. 22

- 3504; State v. Johnson
, 309 Kan. 992 , 997 , 441 P.3d 1036, 1040 (2019); State v. Rogers , 297 K an. 83, 93, 298 P.3d 325 (2013). Typically, we emphasize that an appellate court should not d ecide any issue without input from the parties. See State v. Toothman, 310 Kan. ___, ___ P.3d ___, (No. 114,944, th is day decided), slip op. at 7 . But we discern no possible counterargument on this particular issue. And, in several cases, we have remedied the illegality by vacating the life time postrelease supervision term imposed at sentencing, and we do so here. See, e.g., State v. Conrad , 297 Kan. 76, 82, 298 P.3d 320 (2013); State v.
Seward , 296 Kan. 979, 991

- 92 , 297 P.3d 272 (2013). "Whether parole elig ibility will eventually become an actuality is not for us to decide." Johnson
, 309 Kan. at 9 98, 441
P.3d at 1040.

C ONCLUSION

Ballou has failed to show reversible error in any of the issues raised on review. As a result, we affirm his convi ctions

. We vacate the portion of the district court's judgment imposing postrelease supervision on Ballou's two hard 25 life sentences.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed in part and vacated in part.34

N USS , C.J., not participating.
M ICHAE L J. M ALONE , Senior Judge, assigned. 1

1 REPORTER'S NOTE: Senior Judge Malone was appointed to h ear case No. 116,252 vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20

- 2616.