by Sagi Schwartzberg

The Supreme Court of Kansas held that a trial court erred by admitting evidence of uncharged, suspected child abuse that occurred over the period of two months preceding a baby’s death under K.S.A. 2022 Supp. 60-­455 (governing prior acts evidence) because the State failed to prove the defendant committed the prior crimes, resulting in the admission of highly prejudicial evidence since it indicated that the defendant had a propensity for child abuse.

Background

Kaleb Paul Ron Hogan and S.A. had a son born December 17, 2020, who died March 23, 2021, after Hogan called 911 reporting the baby was vomiting, not breathing, and unresponsive. That morning, S.A. fed and put the baby to sleep before leaving for work around 7 a.m. with Hogan’s mother, Amber Harp. Hogan remained alone with the baby. The baby woke around 9:30 a.m., was rocked back to sleep, woke again, drank a bottle, and slept until around 1 p.m. Later in the afternoon, the baby woke fussy. Hogan prepared bottles and returned to find the baby had vomited and stopped breathing. Responders arrived about 2:40 p.m., approximately eight hours after S.A. left.

Emergency room X-­ray revealed healing rib fractures, prompting the suspicion of child abuse. Dr. Kerri Weeks, a child abuse pediatrician, identified injuries around the brain and ribs at different healing stages, indicating prior abuse and a current episode. The fatal brain injury occurred around the time the baby became unresponsive, potentially moments or hours before, caused by shaking, slamming, or head impact, according to Weeks.

Law enforcement interviewed Hogan twice. He denied abuse initially and described the events of March 23. In the second interview, he admitted shaking the baby after it went limp that day to revive it (demonstrating wrapping hands around torso and moving a few inches back and forth) and a prior “gentle” shaking when the baby was about a month or month-­and-­a-­half old at 2 a.m. to calm crying. He again demonstrated what he did. He stated that the baby settled briefly and then handed the baby to S.A., who was asleep. He denied knowing if these caused injury, repeatedly denied shaking before the baby went limp on the March 23, and reported no falls or injuries. Investigators said that they believed Hogan was minimizing how he shook the baby and that his demonstrations would not cause the injuries.

The State charged Hogan with violating K.S.A. 2020 Supp. 21-­5602(a)(2) by unlawfully and knowingly shaking a child under 18 on March 23, 2021. Hogan defended by implicating S.A. as the person who caused the injuries.

Before trial, Hogan moved in limine to exclude evidence of prior injuries and his statements about pre-­March 23 handling, arguing lack of relevance (experts agreed fatal injuries occurred hours before 911, on March 23), no proof prior injuries caused or contributed to death, no evidence who committed prior abuse or how, and extreme prejudice. The State did not file a written response. The trial court denied the motion.

At trial, all prior injury evidence was admitted over Hogan’s continuing objection. Experts testified to prior healing rib fractures (up to 16, some up to 2 months old, others 7-­14 days); newer hemorrhaging on old fractures; brain bleeding of mixed density (different occasions); retinal/cervical hemorrhages; death from craniocerebral spine trauma with blunt force.

Weeks testified that the type of gentle shaking Hogan described would not cause the observed injuries, and she stated two to four hours could have elapsed from the time the fatal injury was inflicted to the time the baby stopped breathing. But she rejected the possibility that eight hours could have elapsed between the injury and symptoms. Dr. Jamie Oeberst performed the autopsy and could not rule out shaking as the cause of the trauma that resulted in the baby’s death.

Defense expert Dr. Lyle Noordhoek testified that the baby died from blunt trauma delivered longitudinally front to back, consistent with slamming the body rather than shaking. He stated that 12 to 24 hours could have elapsed between the trauma and death, with the baby initially showing no noticeable symptoms.

A jury convicted Hogan of felony murder and the underlying felony of child abuse by knowingly shaking the child and causing great bodily harm. Hogan timely moved for a new trial, arguing the trial court erred in admitting prior-­injury evidence – including medical records, the autopsy report, physician testimony, and his pre-­March 23 statements – and alleging jury instruction errors and ineffective assistance of counsel. The trial court denied the motion and sentenced Hogan to life imprisonment with parole eligibility after 25 years.

Hogan timely appealed, raising four issues: (1) the trial court erred by denying his motion in limine and admitting evidence of the baby’s prior injuries, which lacked relevancy or had probative value outweighed by prejudicial effect; (2) a limiting instruction on prior injuries evidence was erroneous; (3) a felony murder instruction improperly required a child abuse conviction; and (4) cumulative error.

Analysis

The Court began its analysis by noting that although Hogan raised four issues on appeal, one issue was dispositive – the trial court’s error in admitting evidence of prior, non-­fatal injuries to the victim, which the State alleged constituted prior acts of child abuse.

As such, the central issue on appeal was the trial court’s denial of Hogan’s motion in limine to exclude evidence of any injuries the victim sustained before March 23, 2021, the date of the fatal injuries. Hogan argued this evidence lacked relevancy because experts for both sides agreed the fatal injuries occurred on or about March 23, and that its probative value was outweighed by extreme prejudice, particularly because the State had presented no evidence identifying who committed the prior abuse.

The Court then recounted the relevant facts for its analysis. It noted that the State provided no written response and, at the hearing, offered only general arguments that a defendant’s voluntary statements are admissible and that the prior injuries were mentioned in the autopsy report. When pressed by the trial court for a specific foundation, the prosecutor replied, “I don’t really know what it is that [defense counsel] is talking about.” The Court observed that the district judge, rather than the State, “filled in the holes” by turning to a probable cause affidavit. Based on that affidavit, which mentioned Hogan’s statement that he had shaken the baby a month or six weeks prior, the judge sua sponte concluded that this action “logically, could be construed as being a cause of those old injuries” and found “a causal link between this defendant and the older injuries.”

According to the Court, this trend continued at trial. When Hogan objected, the State merely referenced the trial court’s prior ruling, and the objection was overruled. The jury was later given a limiting instruction, permitting it to consider the “older injuries” only in determining “an absence of mistake or accident, whether the defendant’s alleged actions were done knowingly on or about March 23, 2021, or in weighing the credibility of statements made by the defendant.”

The Court observed that the State never relied on K.S.A. 60-­455 in the trial court or in its briefing. Most critically, at oral argument before the Court, the county attorney conceded he did not know who caused the prior injuries, stating, “I have no idea who committed the injuries or how those injuries occurred from six weeks before.” He admitted this uncertainty was “precisely why [Hogan’s] not charged with the crime of child abuse” for those prior injuries.

Governing Law on
Prior Acts Evidence

The Court agreed with Hogan that the State repeatedly failed to meet its evidentiary burden to lay a foundation for the admission of disputed K.S.A. 60-­455 evidence. The initial analysis is on the issue of relevance because that is the starting point for most evidentiary disputes since “all relevant evidence is generally admissible.” K.S.A. 60-­407(f).

The Court stated that relevant evidence has “any tendency in reason to prove any material fact,” K.S.A. 60-­401(b), requiring materiality (real bearing on the case) and probative value. State v. Alfaro-­Valleda, 502 P.3d 66 (Kan. 2022). The admitting party bears the foundation burden. State v. Contreras, 492 P.3d 1180 (Kan. 2021). Hogan’s statements and the baby’s medical records were generally admissible. K.S.A. 2024 Supp. 60-­460(f) (hearsay exception allowing use of defendant’s statements); Miranda v. Arizona, 384 U.S. 436 (1966) (“Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.”); State v. Boyd, 532 P.2d 1064 (Kan. 1975) (recognizing use of medical and autopsy evidence to prove cause of death, although finding some autopsy photos prejudicial). But upon 60-­455 objection, judges may exclude, limit, or redact unduly prejudicial evidence to protect fair trial and presumption of innocence rights. State v. Lowery, 427 P.3d 865 (Kan. 2018); State v. Boysaw, 439 P.3d 909 (Kan. 2019).

K.S.A. 60-­455(a) bars prior crime/civil wrong evidence “to prove such person’s disposition” to commit the charged act, observed the Court. However, subsection (b) allows admission of evidence that the defendant committed a crime or civil offense on a specific occasion when that fact is relevant to prove some other material fact like “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60-­455(b). This is a non-­exhaustive list. State v. Gunby, 144 P.3d 647 (Kan. 2006).

The Court explained that the purpose of K.S.A. 60-­455(b) is to prevent evidence admission that proves a person’s propensity or disposition to commit crime in non-­sexual misconduct cases. State v. Bly, 523 P.2d 397 (Kan. 1974). Using such evidence against an accused creates three prejudicial risks: (1) juries may overvalue prior crimes and improperly infer guilt for the charged crime despite lack of proof beyond reasonable doubt, (2) juries may convict based on the defendant’s general wrongdoing rather than the specific charge, and (3) juries may disregard the defendant’s evidence due to prejudgment of criminal character. Gunby; see Advisory Committee on the Revised Code of Civil Procedure, Kansas Judicial Council Bulletin, Special Report 129-­30 (November 1961); Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 U. Kan. L. Rev. 411, 416 (1972).

In Gunby, the Kansas Supreme Court held that prior cases permitting prior crimes evidence admission “independent of K.S.A. 60-­455 are contrary to long-­held common law and the text of the statute itself.” The practice of admitting evidence independent of K.S.A. 60-­455 “is unnecessary and carries the potential to violate a criminal defendant’s fundamental right to a fair trial.” Gunby. The Court reiterated that Gunby ended “the practice of admission of other crimes and civil wrongs evidence independent of it [K.S.A. 60-­455].” Turning to the present case, the Court observed that the State’s arguments for admitting all of Hogan’s statements and medication information violate this prohibition, so it was required to present a foundation for the admission of such evidence under K.S.A. 60-­455.

To admit evidence under K.S.A. 60-­455, a trial court must conduct a three-­step analysis: (1) determine if the fact to be proven is material; (2) determine if the material fact is disputed and if the evidence is probative of that fact; and (3) weigh the probative value against the potential for undue prejudice. State v. Torres, 273 P.3d 729 (Kan. 2012).

The Court explained that a crucial component of laying the foundation for admitting proffered evidence is linking the defendant to the prior act. While a conviction is not required, State v. Powell, 551 P.2d 902 (Kan. 1976), there must be evidence of the defendant’s commission. The Court adopted the reasoning of the U.S. Court of Appeals for the Fifth Circuit in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978): “Obviously, the line of reasoning that deems an extrinsic offense relevant … is valid only if an offense was in fact committed and the defendant in fact committed it.” As a predicate, the Beechum Court instructed, “the Government must offer proof demonstrating that the defendant committed the offense. If the proof is insufficient, the judge must exclude the evidence because it is irrelevant.”

Failure to Establish a
K.S.A. 60-­455 Foundation

Turning to the present case, the Court stated that the State failed to offer any such proof. The trial court merely “projected” that evidence of a causal link “would be produced.” The trial record, however, confirmed the State’s failure, the Court determined. A law enforcement officer testified he had no evidence of who committed the prior injuries, and both that officer and a treating physician testified that the “gentle shaking” Hogan described in his statement would not have caused the traumatic prior injuries. Furthermore, the State’s experts pointed to multiple potential prior incidents. Hogan’s statement did not cover all of them, nor did any evidence exclude other caregivers.

The State’s admission at oral argument that it could not prove Hogan committed the prior acts was fatal to its position, according to the Court. It declined to establish a specific burden of proof (e.g., clear and convincing, preponderance) for this predicate fact because the issue was not fully briefed. Instead, the Court found State v. McCarthy, 589 A.2d 869 (Vt. 1991), analogous, in which the Vermont Supreme Court ruled it was error to use a prior crime statute when the Government had investigated but determined it could not prosecute the prior act.

Applying a de novo standard to the materiality analysis, the Court held that when proof of the defendant’s commission of the prior crime is insufficient, the evidence is irrelevant. The Court concluded: “[T]he State failed to establish the basis for the prior crimes evidence and error occurred when it was submitted to the jury.”

Prejudicial Error

Having found error, the Court analyzed whether it was harmless under K.S.A. 2024 Supp. 60-­261. The State, as the beneficiary, bore the burden of proving there was no “reasonable probability that the error … did affect the outcome of the trial.” State v. Ward, 256 P.3d 801 (Kan. 2011); State v. McCullough, 270 P.3d 1142 (Kan. 2012).

The Court determined the State could not meet this burden. The evidence regarding who inflicted the fatal injuries was “subject to the jury’s weighing.” The 12-­hour timeframe implicated both Hogan and the baby’s mother. Some evidence (e.g., immediate unresponsiveness before the 911 call) pointed to Hogan; other evidence (e.g., vomiting in the mother’s care, lethargy) pointed to the mother.

The evidence on this issue was highly contested, so the erroneously admitted prior-­acts evidence was “highly prejudicial,” according to the Court. It determined that the limiting instruction exacerbated the error. By instructing the jury it could use the “prior injuries” to assess “absence of mistake,” whether Hogan acted “knowingly,” and his “credibility,” the instruction “pointed to Hogan as the person who committed the prior crime … [and] fueled a sense he lied in his statement and had a propensity to commit crimes,” the Court explained.

Additionally, the Court noted the State admitted the prior injuries did not contribute to the baby’s death. Weeks testified the healing injuries did not kill the victim. Therefore, the evidence was not admissible independent of K.S.A. 60-­455 as part of the cause of death, the Court concluded.

Conclusion

Thus, the Court ruled that a reasonable probability existed that the evidence affected Hogan’s substantial rights and that the State failed to prove the error was harmless.

Accordingly, the Court reversed Hogan’s convictions and remanded the case for further proceedings consistent with its opinion. See: State v. Hogan, 573 P.3d 207 (Kan. 2025).   

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