## Facts

- Rodolfo M. Gaona was charged with multiple counts of rape and aggravated criminal sodomy against his minor stepdaughter, M.L., based on allegations of repeated abuse over years.
- A sexual assault nurse examiner examined and interviewed M.L. using the “Finding Words” forensic interviewing protocol.
- Gaona presented a clinical psychologist to criticize the Finding Words method and its application.
- The State called Kelly Robbins, an administrator and trainer for the Finding Words program who had conducted at least 150 child interviews but lacked licensure or formal academic training in psychology or child development.
- Robbins testified both about the Finding Words interviewing technique and, more broadly, about asserted common behaviors of sexually abused children (e.g., delayed/piecemeal disclosure and rarity of fabrication).
- The defense sought to introduce Gaona’s medical records to support a physical-condition theory; the district court excluded the records for foundational, relevance, hearsay, and discovery-violation reasons, while allowing other evidence about the condition.
- Evidence was admitted that Gaona showed M.L. pornographic videotapes; the defense did not make a specific contemporaneous objection on an “other crimes/wrongs” ground at trial.
- Prior consistent statements by M.L. were admitted; the defense did not object on the timing ground before her live testimony.
- A jury convicted Gaona. On appeal, one rape conviction had been reversed on separate grounds; the remaining convictions and sentence were reviewed by the Kansas Supreme Court.

## Issues

1. Whether Robbins was properly qualified under K.S.A. 60-456(b) to give expert opinions about common characteristics of sexually abused children, beyond forensic interviewing techniques.
2. Whether failure to instruct on attempted aggravated criminal sodomy as a lesser included offense was clearly erroneous.
3. Whether exclusion of Gaona’s medical records was evidentiary error or violated due process by impairing his ability to present a defense.
4. Whether challenges to pornographic-videotape evidence and to the timing of the victim’s prior consistent statements were preserved for appellate review.
5. Whether cumulative error required reversal of the remaining convictions.
6. Whether imposing the highest term within the applicable Kansas Sentencing Guidelines grid box required jury-found aggravating facts.

## Decision

- Robbins was qualified to testify as an expert on forensic interviewing techniques, but not qualified to testify as an expert on common behavioral characteristics of sexually abused children; admission of the overbroad testimony was harmless.
- The failure to instruct on attempted aggravated criminal sodomy was not clearly erroneous where the evidence supported only a completed offense or no offense.
- The district court did not err in excluding Gaona’s medical records; exclusion did not violate due process because other evidence of the medical condition was admitted.
- The pornography-evidence claim was not preserved due to the absence of a specific contemporaneous objection; the court declined to reach the merits.
- The timing challenge to prior consistent statements was not preserved because the defense did not object before the victim’s live testimony; the court did not reach the merits.
- Cumulative error did not warrant reversal of the remaining convictions.
- A court may impose the highest term within the applicable sentencing grid box without jury findings of aggravating factors beyond a reasonable doubt.
- Disposition: aside from the already-reversed rape conviction, Gaona’s remaining convictions and sentence were affirmed.

## Legal Principles

- Expert qualification under K.S.A. 60-456(b) is scope-specific; experience and training in forensic interviewing may support expert testimony on interviewing techniques but does not, without specialized psychological expertise, support opinions about common behavioral traits of sexually abused children.
- Erroneous admission of expert testimony warrants reversal only if it affects the trial’s outcome; otherwise, it is harmless.
- A lesser included instruction is not required (and omission is not clearly erroneous) absent a rational evidentiary basis for convicting on the lesser while acquitting on the greater.
- Medical records may be excluded when the proponent fails to lay foundation, demonstrate relevance, or satisfy hearsay rules, and exclusion may be used as a sanction for discovery violations.
- Excluding evidence does not violate due process when the defendant can present the substance of the defense through other admissible evidence.
- Appellate review of evidentiary rulings generally requires a specific, contemporaneous objection; general pretrial motions are insufficient to preserve particular trial-evidence issues.
- Under the Kansas Sentencing Guidelines, selecting a term within the authorized grid-box range (including the highest term) does not require additional jury-found aggravating facts.

## Conclusion

The Kansas Supreme Court held that a forensic-interviewing trainer could testify as an expert about interviewing methodology but not about generalized behavioral characteristics of sexually abused children; it found the overreach harmless, rejected or declined to reach other claims based on evidentiary rules and lack of preservation, and affirmed Gaona’s remaining convictions and guideline-range sentence.


State v. Gaona, 293 Kan. 930, 270 P.3d 1165 (Kan. 2012)