State v. Miller

NOT DESIGNATED FOR PUBLICATION No. 129,238 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. HUNTER D. MILLER, Appellant. MEMORANDUM OPINION Appeal from Harvey District Court; JASON R. LANE, judge. Submitted without oral argument. Opinion filed November 13, 2026. Affirmed. Mark T. Schoenhofer, of Wichita, for appellant. Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before ARNOLD-BURGER, P.J., ATCHESON and CLINE, JJ. CLINE, J.: Hunter D. Miller appeals the denial of his motion for a new trial based on ineffective assistance of counsel. Miller claims his trial counsel should have hired an expert medical witness to support the defense theory. He also challenges the effectiveness of that theory and the adequacy of his counsel's investigation of the victim's claims. But after reviewing the record, we conclude the district court's findings were supported by substantial competent evidence. Miller's counsel had strategic reasons for his challenged decisions and Miller has failed to show his counsel's representation was deficient or prejudicial. We therefore affirm the district court's judgment. 1  FACTUAL AND PROCEDURAL BACKGROUND Miller was charged with rape and aggravated criminal sodomy of a child after D.S. disclosed to a teacher that Miller, a friend of her father's, had abused her when he stayed overnight at their house about three months earlier. D.S. came forward after watching a safety presentation to her third-grade class that addressed sexual abuse. She claimed that Miller touched her private parts, specifically, that "he put three fingers inside of her, and that he had a magic trick that he could make his private part hard and taste like candy." D.S. added that "[h]e made her taste it." The district court appointed attorney David Harger to represent Miller. Harger did not present any witnesses at trial, but he did cross-examine all but one of the State's eight witnesses. His defense focused on inconsistencies in D.S.'s story and the evidence and the State's failure to investigate the charges. For instance, he emphasized how the school resource officer, Steve Hamersky—who was responsible for investigating D.S.'s allegations—did not visit her house, interview her parents, or arrange for D.S. to get a sexual assault medical examination. Harger also highlighted the lack of physical evidence suggesting the crimes occurred, mentioning the lack of blood, bruising, pain, or other complaints. The jury ultimately convicted Miller of both charges. About five months after the trial, Miller moved for a new trial based on ineffective assistance of counsel. Relevant to this appeal, Miller claimed that Harger was ineffective for three reasons: (1) He conducted no interviews or field investigation; (2) his trial strategy of attacking the State's investigation and relying on a myth that there is always physical injury in child sex abuse cases was unreasonable; and (3) he failed to hire a sexual assault nurse examiner to support his defense strategy. At the hearing on Miller's motion, Miller first called Jennifer Johnson. Dr. Johnson has a doctorate of nursing and was board certified as a sexual assault nurse examiner. She 2 testified that Officer Hamersky deviated from the standard of care when he decided that D.S. did not need a medical examination. She said the standard of care calls for a medical examination of a prepubescent female involved in an abuse claim regardless of when the alleged abuse occurred—to look for physical evidence, test for sexually transmitted diseases, and to ensure the child is otherwise healthy. She explained that a medical examination might show physical findings, like a tear of the hymen, which "would have been very important information" because hymenal tears are consistent with penetrating trauma. Dr. Johnson said that, due to the passage of time, an examination would not have revealed blood or abrasions, but it might have revealed scarring, which could also have been important to note. While Dr. Johnson conceded that an examination might not have resulted in any physical findings, she still believed the absence of physical findings would have been important for a jury to know. Attorney Mark Orr also testified. He was a public defender for 26 years who had represented many defendants charged with sexual offenses against children. He thought Harger's representation was deficient for failing to employ an investigator or call an expert to testify. Because Orr believed Harger did not hire an investigator or expert and did not interview any of the State's witnesses, Orr thought Harger was not prepared for cross-examination. Orr said that if Harger had investigated more, it could have helped Harger refine his questions and let him present a more meaningful defense of Miller. Orr said he "[a]lways" employed a private investigator in child sex abuse cases, and that he "wouldn't try one without an investigator." He also thought sexual assault examinations were "absolutely critical," and that Harger should have objected to Officer Hamersky's testimony that a sexual assault examination was unnecessary. Finally, Harger testified. By the time of trial, he had practiced high level criminal defense since 1996, including many sex offense cases. He explained that his usual practice in these types of cases was to consult with investigator Bryan Weinbrenner at the beginning of a case. Harger believed that he and Weinbrenner had "reviewed hundreds of 3 sex offense cases together," and he estimated that they had been working together for close to 20 years. Usually, they reviewed the evidence independently and then met to discuss their thoughts. They would then meet again for what Harger called a "themes and theories meeting," where they would brainstorm how to effectively present a defense. Harger said he employed Weinbrenner in Miller's case, and the record shows that Harger filed a contract for Weinbrenner to provide expert services in Miller's case within a month after the complaint was filed. Harger believed Weinbrenner interviewed a witness or two whom Miller suggested might have helpful information, but those efforts did not generate helpful information for trial. Harger did not recall any other specifics of Weinbrenner's involvement in the case beyond knowing that they had their standard two meetings. Harger next explained that he had considered whether he should employ a medical expert in Miller's case and, specifically, whether he should employ Dr. Johnson. He had seen one of her reports in another case where she served as an expert witness. In that report, Dr. Johnson discussed what she calls "a myth that is generally known by the public," which is the belief that there are physical symptoms from child sex abuse. Harger said Dr. Johnson "clearly" puts in her reports that this myth is not medically true. In her report for the other case, she stated that physical symptoms of child rape are not always present. After talking to Dr. Johnson and an attorney involved in the other case, Harger determined that testimony along those lines would damage "the strongest argument I had in the case, which was that there were no observable signs or symptoms of the act that was alleged." Harger said that "rather than calling a witness that would have allowed the prosecution to undo that strong defense argument, the idea here is to play on the myth that people believe, which is that there will be signs if there was abuse." That is, Harger believed that if someone like Dr. Johnson testified, the State would have been able to admit testimony about how the lack of injuries is not conclusive proof that sexual abuse 4 did not occur. Instead, he wanted to "lean on" people's misunderstanding or preconceived ideas about child sex abuse cases and use those to his advantage rather than admitting "legitimate medical" evidence that could hurt Miller's defense. Harger also discussed how normally in a child sex abuse case, the defense calls a medical expert to explain away physical symptoms of abuse that were found. But this was not required since there was no medical examination of D.S. When questioned about his investigation, Harger said he did not visit the scene of the crime because he did not want to intrude on the family's home. He thought this might inflame them and make it harder to reach a plea agreement. He also thought, through discussions with Miller, that he understood the house well enough that the benefit of going there was outweighed by the potential disadvantage. For similar reasons, he did not talk to D.S. or her family because he thought it would be counterproductive to negotiations. And he questioned the propriety of interviewing D.S. because she had already been subjected to a forensic interview, and Harger had never heard of a court allowing a second serial interview of a child. In the end, Harger thought the defense effectively made the case that the State should have taken D.S. for a medical exam and failed to do so. The State's failure to find physical evidence was part of Harger's strategy to show that the State did not meet its burden because of its inadequate investigation. The district court ultimately denied Miller's motion, issuing a lengthy ruling explaining its decision. The court pointed out factual inaccuracies in Miller's claims and found that Harger "properly investigated the facts of the case allowing him to make strategic and objectively reasonable decisions not to pursue experts" and that Harger effectively followed through with his defense strategy, which the court also found was objectively reasonable. And it found Miller was not prejudiced by Harger's decision because it determined there was "no reasonable probability that the jury would have 5 reached a different verdict had Mr. Harger's representation conformed to Mr. Miller's post-trial suggestions." REVIEW OF MILLER'S APPELLATE CHALLENGE On appeal, Miller argues that the district court erred in denying his motion for a new trial, repeating the same argument he made before the district court. First, he contends Harger's representation was deficient because he failed to call any witnesses at trial, particularly a medical expert. Second, he contends that Harger was ineffective for failing to interview potential witnesses or conduct a field investigation. Finally, he asserts that Harger was ineffective for using an unreasonable trial strategy that relied on a myth that there is always physical evidence and physical injury in child sex abuse cases. Standard of Review and Relevant Legal Framework When the district court conducts an evidentiary hearing on a motion for a new trial that raises an ineffective assistance of counsel claim, the appellate court is presented with a mixed question of fact and law. "'Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo.'" State v. Reed, 302 Kan. 227, 244, 352 P.3d 530 (2015). "'Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved.'" Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021). "In reviewing a district court's factual findings for substantial competent evidence, we cannot reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence." 313 Kan. 472, Syl. ¶ 7. Kansas courts use the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 6 (1984), "for determining if a criminal defendant's right to effective assistance of counsel under the Sixth Amendment to the United States Constitution has been violated by the deficient performance of counsel." Edgar v. State, 294 Kan. 828, 829, 283 P.3d 152 (2012). To support an ineffective assistance of counsel claim, a movant "must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial." 294 Kan. at 837. Under the first prong of the Strickland test, a defendant must "show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances." Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Courts are highly deferential when scrutinizing counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 283 Kan. at 90. To demonstrate prejudice, a litigant must usually show "a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 283 Kan. at 90. Miller's arguments primarily attack Harger's strategic choices and investigation. On these points, the United States Supreme Court has said: "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 690-91. 7 Failure to Call Medical Expert Miller first argues that Harger was ineffective for failing to consult or hire a medical expert to offer testimony to support his defense strategy, namely Dr. Johnson. He says that Harger's representation was deficient because he offered no evidence to support his defense theory that a lack of physical evidence provided reasonable doubt that any abuse occurred. Miller contends that a medical expert could have described the type of injuries that could result from the described rape, which he says would have bolstered the idea that a lack of injuries is significant. Miller also claims Dr. Johnson could have provided helpful testimony about sexual assault examinations. For instance, she could have discussed the medical guidelines for such examinations, which require the examiner to state in their report that a lack of physical findings could mean that the alleged act did not happen, the act did not result in injuries, or the act resulted in injuries but the injuries healed. Miller claims such evidence would have bolstered the defense strategy based on a lack of evidence of injury. Miller also points out that Dr. Johnson could have testified that the standard of care for prepubescent females calls for a sexual assault examination regardless of the passage of time, which would have further supported the defense's strategy to characterize the State's investigation as inadequate. He says such testimony would also have allowed Harger to more effectively cross-examine Officer Hamersky about his belief that an examination was not necessary, to demonstrate the sloppiness of the State's investigation, and to show how law enforcement's neglect led to the loss of vital information. Miller relies heavily on Mullins v. State, 30 Kan. App. 2d 711, 717, 46 P.3d 1222 (2002), to support his position. Like Miller, Mullins was charged with child sexual abuse. After he was convicted, Mullins filed a K.S.A. 60-1507 motion alleging ineffective assistance of counsel in failing to hire or consult an expert on child interview techniques. At Mullins' K.S.A. 60-1507 hearing, Mullins called a defense attorney who testified that 8 the use of such an expert in this type of case was crucial, either for use at trial or in preparing to cross-examine the State's witnesses. Mullins also called a psychologist who was qualified as an expert on interviewing alleged child sexual abuse victims. The psychologist testified about various problems with the victim's police interviews that made his disclosures unreliable. On appeal, we found Mullins' trial counsel's representation was prejudicially deficient. 30 Kan. App. 2d at 717. But there are significant differences between Mullins and this case. First, we found trial counsel's representation in Mullins deficient because counsel failed to ever consider consulting or hiring an expert. That is, there was no showing of a strategic reason for Mullins' counsel's failure to consult or procure an expert. 30 Kan. App. 2d at 717. Here, Harger considered how testimony like Dr. Johnson's could fit into the case before making the strategic decision not to retain a medical expert. And Harger provided extensive testimony explaining his decision. He explored Dr. Johnson's potential testimony (albeit in another, but very similar case) and discussed the decision about whether to call her with an attorney involved in that other case. Harger ultimately decided not to call Dr. Johnson or another expert on sexual assault examinations because such testimony would not have helped—and might have even hurt—his defense theory. And the same point could be made on Miller's other argument about this evidence, which is that Harger could have called a medical witness to contradict Officer Hamersky's statement that he did not think a medical examination was necessary due to how much time had passed. A medical witness could have testified that an exam might have shown physical signs of injury. But they could—and most likely would—have also said a lack of physical injuries is essentially meaningless since it does not prove the abuse did not happen. Next, the reason we concluded Mullins was prejudiced by his counsel's deficient representation is not present in this case. In Mullins' K.S.A. 60-1507 hearing, an expert 9 testified about various problems with the victim's police interviews which made her disclosures unreliable. We found that if Mullins' "trial counsel procured the services of an available expert regarding proper interview techniques, the jury would have been presented with relatively strong evidence to potentially undermine the allegations of abuse." 30 Kan. App. 2d at 717. But here, Miller has not shown that Harger's decision not to call a medical expert had a reasonable probability of affecting the outcome of the trial. Miller has not claimed that an expert could have provided "strong evidence" to undermine D.S.'s allegations. Instead, he argues an expert could have offered support for Harger's defense strategy. Evidence to bolster a defense strategy is not the same character as evidence that directly calls into question the credibility of a victim's accusations. As the State points out, this case really did not turn on physical evidence. So speculation about what a physical examination might have shown carries little weight— especially when the witness Miller claims Harger should have called to provide this speculation would have likely provided other testimony undercutting the point of that speculation. And the lack of evidence of physical injury and the holes in the State's investigation was well established through other means, particularly by Harger's extensive cross-examination of the witnesses. Along with concluding that Harger provided effective representation, despite not hiring a medical expert to testify, the district court found this decision did not prejudice Miller's defense. In explaining its decision on the prejudice prong of the test, the district court said: "If Dr. Johnson was called to testify to rebut [Officer] Hamersky's medical statements, she also would have provided an opinion detrimental to the defense: that bleeding or bruising would not necessarily be found based on D.S.'s description of the sexual assault. The jury then would have an explanation as to why blood was not located or why D.S. never complained of pain due to the sexual contact. When challenging whether the State has met the burden of proof, the defense tries to create questions as to any subject the jury 10  may consider. The more questions or doubt a jury has, the less likely they are to find the evidence reached . . . beyond a reasonable doubt. Therefore, Dr. Johnson's testimony would not have aided the defense, but would have eliminated a potential doubt the jury may have considered." We find no fault in the district court's logic, and its factual findings are supported by substantial competent evidence. We agree that Miller's defense would have been prejudiced if Harger had called a medical expert like Dr. Johnson, rather than the other way around, and see no error in the court's determination that Miller was not entitled to a new trial on this basis. Failure to Investigate Miller's next argument is that Harger was ineffective for failing to interview witnesses—such as the victim, her parents, classmates, and teachers—or conduct a "field investigation." Miller also attacks Harger's reasoning for not interviewing D.S. or her parents. He says the prosecutor would not have been upset by such interviews, nor would it have disrupted plea negotiations. He also claims Harger's logic was unsound because mediation and plea negotiations failed. The first problem with Miller's argument is he does not address the district court's explanation for why it found Harger's decision not to interview certain witnesses was reasonable. As for the parents, the court found Harger's decision was reasonably based on his opinion that interviewing them was unlikely to lead to valuable information, and that interviewing them risked interfering with mediation and plea negotiations. And as for D.S., the court accepted Harger's testimony that such an interview may be improper after she had participated in a forensic interview. Allowing an untrained person to interview a child in a case like this would impact the reliability of any statements obtained. 11  Next, Miller's argument that the prosecutor would not have been upset misses the point—Harger believed the interviews would upset the parents, not the prosecutor. As for the failure of the plea negotiations, Miller admits those were ongoing and even cites Harger's testimony that they were not unsuccessful "until shortly before trial." The fact that Miller would not accept any of the State's offers during that negotiation does not address Harger's point about not wanting to jeopardize future negotiations—which might produce an offer Miller would accept. The district court was not persuaded by Orr's testimony that reviewing the witness statements provided by the State in discovery, without independent interviews, resulted in an inadequate investigation. And the court noted that Harger's investigation involved more than simply reviewing the State's discovery. Harger retained an investigator to assist with trial preparation, who tried to track down the witnesses Miller identified as potentially having helpful information. Harger also thoroughly researched the forensic interview protocols used in D.S.'s interview. The district court's findings are supported by the evidence presented at the hearing on Miller's motion for a new trial. Miller's strategic choice not to pursue interviews of the parents and D.S. was an informed decision that Harger made based on his experience and knowledge of the case. Unlike Mullins, where the attorney could provide no showing of strategic reasons for his decisions, Harger did make that showing, and he successfully controverted Orr's testimony to the contrary. Miller also fails to address how he was prejudiced by Harger's decision not to interview more witnesses. One of the reasons Harger did not interview more people is because he did not think they would have any valuable information. Yet, Miller does not identify any potential information these witnesses could have provided that would have had a reasonable possibility of changing the outcome of the case. And a review of the trial transcript shows that Harger effectively cross-examined the victim's parents. While 12 he did not question D.S. in depth, he did thoroughly cross-examine others about inconsistencies in D.S.'s statements. Because Miller fails to persuasively argue that the outcome of the proceeding would have been different if Harger had conducted additional interviews, we therefore also conclude that he has not shown he is entitled to a new trial on this basis. Unreasonable Trial Strategy Miller's final argument is that Harger was ineffective due to his choice of trial strategy. Essentially, Miller argues that Harger relied on a myth rather than actual evidence. The district court found that Harger's trial strategy was reasonable and included much more than a myth. The court said: "After review of the evidence and completion of his investigation, Mr. Harger made the strategic decision to focus upon cross-examination of witnesses called by the State and not present any witnesses during the defense case-in- chief." Harger's cross-examination of Officer Hamersky "clearly revealed the lack of law enforcement investigation of the allegations made by D.S." Harger elicited testimony that no one asked D.S. if she experienced any medical issues, D.S. did not get a medical exam, and Officer Hamersky "did almost nothing to investigate following the forensic interview." Harger also effectively used witnesses to show inconsistencies in D.S.'s disclosures to various people. The district court's findings are supported by the record. Additionally, Miller does not really suggest an alternate line of defense that Harger should have taken. While Miller does say that Harger should have employed a medical expert, as explained, that would not necessarily have led to any evidence favorable to Miller. In other words, Miller fails to demonstrate how a different trial 13 strategy could have changed the outcome of the trial. We therefore also find Miller has not shown he is entitled to a new trial on this basis, either. Affirmed. 14