State v. Hogan: Prior-Acts Evidence Under K.S.A. 60-455 Is Inadmissible Without Proof the Defendant Committed the Prior Acts

State v. Hogan: Prior-Acts Evidence Under K.S.A. 60-455 Is Inadmissible Without Proof the Defendant Committed the Prior Acts

Introduction

In State v. Hogan, No. 126,442 (Kan. Aug. 1, 2025), the Kansas Supreme Court reversed felony-murder and child-abuse convictions arising from the tragic death of a three-month-old infant. The pivotal evidentiary issue was the State’s use of extensive “old injury” evidence—suspected prior child abuse—during Hogan’s trial. The State introduced medical testimony and records pointing to multiple healed rib fractures and other signs of trauma over the two months preceding the infant’s death. Yet, at oral argument, the prosecution conceded it did not know who caused those prior injuries and indeed had not charged Hogan with any crimes for those earlier events.

The Court held that this prior-acts proof was inadmissible under K.S.A. 60-455 because the State failed to lay the necessary foundation that Hogan committed the prior acts. Reaffirming State v. Gunby, the Court also rejected any admission of “other crimes” evidence independent of the statutory framework. The limiting instruction given to the jury, which allowed use of the prior injuries to assess knowledge, absence of mistake, and Hogan’s credibility, compounded the prejudice because it effectively assumed Hogan was the prior abuser. Finding a reasonable probability that this error affected the verdict, the Court reversed and remanded.

Summary of the Opinion

  • Relevance and foundation: All relevant evidence is generally admissible under K.S.A. 60-407(f), but the proponent bears the burden to establish a proper foundation and overcome exclusionary rules and prejudice-based limitations.
  • 60-455 rule and exception: K.S.A. 2024 Supp. 60-455(a) bars prior-crimes/civil-wrongs evidence to prove propensity; subsection (b) permits such evidence only to prove a material, disputed fact (e.g., motive, intent, plan, identity), subject to relevance and prejudice balancing.
  • No “independent” admission: The Court reiterates that admitting prior-acts evidence independent of K.S.A. 60-455 is contrary to Kansas law (Gunby).
  • Foundational failure: Because the State conceded it did not know who caused the infant’s prior injuries and never established that Hogan committed those acts, the 60-455 foundation failed. Without proof linking Hogan to the earlier injuries, that evidence was irrelevant for 60-455 purposes.
  • Harmless error: Applying K.S.A. 2024 Supp. 60-261, the State (as beneficiary of the error) failed to show harmlessness. The case involved two possible perpetrators (the parents) during the relevant timeframe; the improper prior-acts evidence—and the limiting instruction’s framing—tilted critical adjudicative inferences against Hogan. The Court reversed the convictions and remanded.
  • Remand guidance: Trial courts should explore whether “old injuries” evidence can be segregated or redacted (e.g., from autopsy testimony/records) and employ remedial steps if segregation proves impracticable. The Court flagged potential improvements to the felony-murder instruction but did not decide that issue.

Analysis

Precedents Cited and Their Influence

  • Relevance framework:
    • K.S.A. 60-407(f) and K.S.A. 60-401(b) define relevance as evidence having “any tendency in reason” to prove a material fact. The Court cites State v. Alfaro-Valleda for the two-part concept of relevance: materiality and probative value.
    • State v. Contreras underscores that the proponent bears the burden to lay the foundation for admissibility.
    • State v. Lowery reiterates that even relevant evidence may be excluded or limited due to undue prejudice.
  • 60-455 doctrine:
    • K.S.A. 2024 Supp. 60-455(a) is a propensity bar, with a limited exception in subsection (b) for specified non-propensity purposes. The list of permissible purposes is illustrative, not exhaustive (Gunby).
    • State v. Gunby is reaffirmed: Kansas forbids admitting “other crimes” evidence independent of 60-455. This is both a statutory and constitutional safeguard (protecting fair trial and presumption of innocence, see State v. Boysaw).
    • State v. Torres provides the three-step analytic structure for 60-455 admissibility: (1) assess materiality; (2) determine whether the material fact is disputed and whether the evidence tends to prove it; (3) weigh probative value against undue prejudice; and (4) craft appropriate limiting instructions.
    • State v. Claerhout imports the Boysaw balancing factors to non-sexual misconduct cases, guiding judges to consider strength of proof, dispute, availability of less prejudicial alternatives, potential for improper verdicts, distraction, and time consumption.
  • Proof that the defendant committed the prior act:
    • United States v. Beechum (5th Cir.) emphasized that prior-acts evidence is relevant only if there is proof that an extrinsic offense was in fact committed and that the defendant committed it; absent that, the evidence is irrelevant and must be excluded. Hogan expressly adopts this relevance predicate.
    • State v. McCarthy (Vt.) supports the principle that a prosecutor cannot circumvent charging deficiencies by invoking a prior-acts statute to try uncharged, unprovable conduct; the prejudice is intolerable.
    • Notice and proffer expectations find support in State v. McGinnis (W.Va.) and in PIK Crim. 4th 51.030 commentary: 60-455 issues are best vetted in orderly, pretrial settings with a concrete evidentiary proffer.
    • The Court notes approaches in other jurisdictions regarding the quantum of proof required (Huddleston’s “sufficient evidence” standard under FRE 104; contrasting state standards requiring clear-and-convincing or preponderance), but declines to choose among them because the State here conceded it lacked proof linking Hogan to the prior acts.
  • Harmless error:
    • K.S.A. 2024 Supp. 60-261; State v. Ward articulates the Kansas harmless-error standard: whether there is a reasonable probability that the error affected the outcome in light of the whole record.
    • State v. Carapezza and State v. McCullough place the burden to prove harmlessness on the party benefiting from the error—the State.

The Court’s Legal Reasoning

  • The State’s foundational failure:
    • Hogan moved in limine to exclude “old injuries” evidence (pre–March 23) and any references to a prior “gentle” shaking, arguing irrelevance and undue prejudice because the fatal injuries occurred close in time to the 911 call and the State could not show he committed earlier abuse.
    • The prosecutor offered no substantive proffer of 60-455 materiality, disputation, or probative value, instead relying on Hogan’s admissible statements generally and the medical/autopsy record broadly. The district judge filled in the gaps—relying on a probable cause affidavit and the inference that Hogan’s “gentle” shaking could explain the prior injuries—to admit the evidence.
    • At oral argument before the Supreme Court, the Butler County Attorney conceded the State did not know who caused the prior injuries, acknowledging multiple caregivers and the absence of charges for those earlier injuries.
    • Given the concession and the trial record (including medical testimony that the “gentle” shaking Hogan described would not cause the observed injuries), the State failed the necessary threshold: proof that Hogan committed the prior acts. As a result, the “old injuries” evidence was irrelevant for 60-455 purposes and inadmissible.
  • The 60-455 analytical steps:
    • Materiality: The Court reviews materiality de novo and finds that without proof Hogan was the prior actor, the “old injuries” evidence did not bear on a material, permissible 60-455 purpose tied to him (such as identity, intent, or absence of mistake).
    • Probative value: Applying abuse-of-discretion review, the Court concludes the State did not show that the prior injuries tended to prove a disputed, material fact about Hogan. The link to Hogan was missing; therefore, there was no probative value under 60-455.
    • Prejudice balancing: Even if there had been some probative value, the Claerhout/Boysaw factors would weigh heavily against admission; the risk of an improperly based verdict and juror propensity reasoning was acute, and less prejudicial alternatives (segregation/redaction) were not explored.
  • The limiting instruction made it worse:
    • The instruction told jurors they could use the prior injuries to evaluate absence of mistake or accident, whether Hogan acted “knowingly” on March 23, and Hogan’s credibility. By framing the prior injuries in terms that applied only to Hogan, the instruction tacitly assumed he was the prior abuser—an assumption the State had not proven. This magnified prejudice, not cured it.
  • No separate causal relevance:
    • The Court observes no evidence showed the prior injuries contributed to the fatal injuries or their treatment—thus there was no non-60-455 ground (e.g., medical causation context) to admit the old-injury material.

Harmless Error and Prejudice

The case turned on which of two caregivers—Hogan or the mother—inflicted the fatal injuries within a disputed window. Some experts opined the injuries would likely render the infant immediately or quickly unresponsive; others, particularly the defense pathologist, allowed for a 12–24-hour arc with delayed decompensation, potentially placing the causal event earlier when the mother was present. In this equipoise, the “old injuries” evidence became a powerful propensity anchor pointing jurors toward Hogan:

  • It implicitly portrayed a pattern of abuse by Hogan without proof he was the earlier abuser.
  • The limiting instruction directed jurors to use that pattern to assess Hogan’s intent, absence of mistake, and credibility.
  • The State admitted it could not link Hogan to the earlier harms; the medical witnesses agreed a “gentle” shake could not cause the observed injuries; and the prior injuries were not causally linked to death.

On this record, there is a reasonable probability the error affected the outcome. The State, carrying the burden to show harmlessness, did not meet it. Reversal was therefore required.

What the Decision Requires Going Forward

  • Proof-of-actor predicate: Before offering prior-acts evidence under 60-455, the State must proffer competent evidence that the defendant committed the prior act. Without that link, the evidence is irrelevant and inadmissible under 60-455.
  • No end-run via “background” or “context”: Gunby is re-emphasized—prior-acts evidence cannot be admitted “independent of” 60-455.
  • Pretrial procedure and notice: Prosecutors should use K.S.A. 60-455(e) notice and make a full pretrial proffer (witnesses, exhibits, precise purposes under 60-455(b), and how the evidence tends to prove those purposes) to enable structured gatekeeping and tailored limiting instructions.
  • Segregation and redaction: Where medical/autopsy records interweave old and new injuries, courts should explore redactions or narrow scopes of testimony to avoid prejudice when earlier acts cannot be linked to the defendant.
  • Limiting-instruction rigor: Instructions must not presuppose the defendant’s commission of prior acts or steer jurors into propensity inferences; they should be tightly tethered to proven facts and permissible non-propensity purposes that are genuinely in dispute.

Position Within Broader Jurisprudence

  • Federal and sister-state standards: The Court canvasses approaches to the quantum of proof that the defendant committed prior acts (Huddleston; Terrazas; Rugemer; Harrell) but declines to choose among them. The holding instead rests on a threshold principle of relevance—akin to Beechum—that absent proof the defendant was the prior actor, the prior-acts evidence is irrelevant and inadmissible under 60-455.
  • Kansas-specific clarity: By centering admissibility on a proof-of-actor predicate and reaffirming Gunby’s insistence on 60-455 compliance, Hogan sharpens Kansas practice even without adopting a numeric burden (e.g., preponderance or clear-and-convincing).

Impact

For Prosecutors

  • Do not offer prior-injury or prior-acts evidence unless you can proffer competent evidence that the defendant committed those acts. A concession that you “don’t know who did it” is fatal to admissibility.
  • Provide timely 60-455(e) notice and a detailed pretrial proffer identifying:
    • Which specific prior acts you will prove;
    • How you will prove the defendant committed those acts;
    • Which 60-455(b) purpose(s) the evidence serves and why that issue is genuinely disputed;
    • Why the probative value outweighs undue prejudice, including why less prejudicial alternatives are inadequate.
  • With medical/autopsy evidence, prepare redactions and narrow testimony focused on acute injuries unless you can link prior injuries to the defendant and to a permissible purpose beyond propensity.
  • Draft neutral, accurate limiting instructions that do not assume the predicate fact (that the defendant committed the prior act).

For Defense Counsel

  • File targeted motions in limine invoking 60-455 and object to any attempt to admit prior-acts evidence absent a concrete proffer that your client committed those prior acts.
  • Insist on segregation/redaction of medical records and expert testimony to exclude unlinked “old injuries.”
  • Scrutinize proposed limiting instructions; object to any that assume your client as the prior actor or that invite propensity reasoning.
  • Preserve harmless-error arguments: Emphasize alternative-actor evidence, the absence of causal linkage, and the risk of propensity taint.

For Trial Judges

  • Enforce a structured 60-455 gatekeeping process: demand a concrete proffer covering identity of the prior actor, materiality, probative value, and prejudice balancing (Claerhout/Boysaw factors).
  • Require redactions or narrowly tailored testimony where feasible; make detailed findings if segregation is impracticable and consider remedial measures (e.g., stipulations, neutral language, strict limitations).
  • Craft carefully calibrated limiting instructions that do not embed disputed predicates.
  • Avoid filling evidentiary gaps left by the proponent; rulings must rest on the record, not judicial inference.

Complex Concepts Simplified

  • Relevance (K.S.A. 60-401, 60-407): Evidence is relevant if it helps prove a fact that matters to deciding the case. But even relevant evidence can be excluded (for example, if it is unduly prejudicial).
  • Propensity evidence: Proof that someone did something bad before to show they are the “type” of person who does bad things. Kansas law generally forbids this (60-455[a]).
  • 60-455 exception: Prior acts can be admitted for limited, non-propensity purposes (like proving identity, intent, plan, absence of mistake)—but only if those issues are genuinely in dispute and the State can show the defendant committed the prior act and the probative value outweighs prejudice.
  • Foundation: The proponent must supply the necessary predicate facts and legal basis for admission. Here, that meant showing Hogan was the prior abuser; the State did not.
  • Limiting instruction: A direction to the jury about specific, permitted uses of evidence. It cannot fix a missing foundation and should not assume disputed facts.
  • Harmless error: An error that likely did not affect the verdict will not require reversal. The State must show there is no reasonable probability the error changed the outcome. In Hogan, the State failed this burden.

Conclusion

State v. Hogan significantly clarifies Kansas law on prior-acts evidence. The Court holds that K.S.A. 60-455 requires proof that the defendant committed the prior acts before such evidence is relevant and admissible for any non-propensity purpose. Reaffirming Gunby, the Court disallows any “independent” admission of other-crimes evidence. Because the State conceded it could not identify who caused the infant’s prior injuries, the foundational predicate failed; the prior-acts evidence should not have been admitted. The limiting instruction aggravated, rather than cured, the prejudice by steering jurors to use the unproven prior injuries against Hogan on core issues.

The decision will shape charging and evidentiary practices in homicide and child-abuse prosecutions involving complex medical records and mixed timelines of injury. Prosecutors must now be prepared to prove the defendant’s authorship of prior acts before invoking 60-455, and trial courts must rigorously police the foundation, probative value, and prejudice. Hogan’s reversal underscores a fundamental principle: in close cases, unproven prior-acts evidence can tip the scales via impermissible propensity inferences. Kansas law will not allow it.

Case Details

Year: 2025
Court: Supreme Court of Kansas

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