State v. Gutierrez-Fuentes

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,339

STATE OF KANSAS,
Appellee,

v.

GELDY GUTIERREZ-FUENTES,
Appellant.

SYLLABUS BY THE COURT

1.
The general rule is that an issue not asserted before the trial court cannot be raised
for the first time on appeal, though there are three recognized exceptions if, in its
discretion, the appellate court believes the exception is justified under the facts of a
particular case. One of these exceptions is when consideration of the theory is necessary
to prevent the denial of fundamental rights. The right to a speedy trial is a fundamental
right.

2.
Before invoking one of the limited exceptions, an appellate court must also
determine whether the unpreserved issue is amenable to resolution on appeal. Even if a
discretionary exception would support a decision to review a new claim, an appellate
court has no obligation to do so.

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3.
Aggravated burglary under K.S.A. 2020 Supp. 21-5807(b)(1) prohibits a person
from entering, without authority, any dwelling in which there is a human being, with the
intent to commit a felony, theft, or sexually motivated crime therein.

4.
Regarding authority to enter in an aggravated burglary prosecution, a close
question may arise when the State does not present direct evidence about the defendant's
and the victim's property interests in the residence where an aggravated burglary occurs.
But circumstantial evidence can sufficiently support a finding that someone lacks
authority to enter a residence.

5.
The hearsay exception in K.S.A. 2020 Supp. 60-460(a) allows admission of a
statement previously made by a person who is present at the hearing and available for
cross-examination.

6.
When an out-of-court interpreter is utilized, there is more than one statement for
separate consideration under K.S.A. 2020 Supp. 60-460(a): first, the out-of-court foreign
language statement, in that foreign language; and second, the out-of-court English
language interpretation of the out-of-court foreign language statement. Because language
is complex, a one-to-one correspondence between words or concepts in different
languages is not always possible. Each statement, as uttered, must be separately
considered for admissibility. The English interpretation does not serve as a conduit for
admissibility of the foreign language statement.

2
 Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 70, 477 P.3d 1041 (2020).
Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed April 29,
2022. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in
part. Judgment of the district court is affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WILSON, J.: Geldy Gutierrez-Fuentes petitioned this court for review of three
issues after the Court of Appeals affirmed his convictions for aggravated battery,
aggravated burglary, and criminal threat. He argues (1) that his constitutional right to a
speedy trial was violated, (2) that there was insufficient evidence to support his
aggravated burglary conviction, and (3) that the district court erred by admitting out-of-
court statements of an interpreter over defense hearsay objections. We affirm his
convictions.

FACTS AND PROCEDURAL HISTORY

Gutierrez-Fuentes moved in with the victim, D.S., in late June 2016. After an
argument in early October 2016 which resulted in Gutierrez-Fuentes grabbing D.S. by the
throat and shoving her, D.S. told Gutierrez-Fuentes she did not want to be with him
anymore and he needed to move out of the apartment. In compliance, Gutierrez-Fuentes

3
gathered some of his belongings, but when D.S. asked him to return the key to the
apartment, he claimed he had lost it.

A few days after the split, D.S. was in the apartment behind a door locked with a
deadbolt. The deadbolt could not be unlocked from the outside. Because Gutierrez-
Fuentes had not returned the key, D.S. took extra precautions to secure her apartment and
placed a chair behind the door. That day, Gutierrez-Fuentes returned to the apartment,
knocked on the window, and asked D.S. to talk with him. She refused and did not give
him permission to enter the apartment. In response, Gutierrez-Fuentes broke through the
front door, went into the apartment, grabbed D.S., and started hitting her. Gutierrez-
Fuentes told D.S. that if she was not going to be with him, he would kill her. D.S. blacked
out. When she regained consciousness, she found help in the apartment upstairs, where
one of her neighbors called 911.

Officer Dane Myers responded to the assault call. He found D.S. covered in blood
and being consoled by a neighbor. He was not able to speak directly with D.S. at that
time because of a language barrier. Officer Myers concluded the apartment door had been
forced open, because wood chips were lying on the ground and the deadbolt was still in a
locked position.

An ambulance took D.S. to the hospital, where a staff interpreter facilitated a
conversation between D.S. and Officer Myers. At trial, Officer Myers gave testimony
outlining this conversation with D.S.

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 D.S. was examined by forensic nurse Tracy Hess. Through the services of a staff
interpreter, D.S. gave information to Hess. At trial, Hess gave testimony outlining this
conversation with D.S.

Officer Rick Peña, who speaks both English and Spanish and therefore needed no
interpreter, communicated directly with D.S. at the hospital and testified at trial about this
conversation with D.S. The information Peña provided was consistent with the trial
testimony given by D.S., Myers, and Hess.

Gutierrez-Fuentes, like D.S., does not speak English. He tried to turn himself in at
the police station on October 5, 2016—the same day as the attack—but he was turned
away. Charges were filed against him on October 31, 2016. Gutierrez-Fuentes was
arrested on February 3, 2017, and tried on August 20, 2018.

The jury convicted Gutierrez-Fuentes on two separate counts of aggravated
battery, one count of aggravated burglary, and one count of criminal threat. He was
sentenced to a controlling 82 months in prison. He timely appealed.

Before the Court of Appeals panel, Gutierrez-Fuentes argued that his
constitutional right to a speedy trial had been violated, there was insufficient evidence for
his aggravated burglary conviction, the district court had allowed inadmissible hearsay
evidence, and the district court erred when it instructed the jury on the elements of
aggravated battery. The panel affirmed the district court, and Gutierrez-Fuentes seeks
review of only the first three issues.

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 ANALYSIS

CONSTITUTIONAL SPEEDY TRIAL

Gutierrez-Fuentes first argues that his constitutional right to a speedy trial was
violated because he was held in jail for 18 months before being brought to trial. He
argues that the panel's analysis of the issue was deficient and that a full review and
application of the constitutional speedy trial test would show his rights have been
violated and his convictions need to be reversed.

Preservation

A defendant has both a statutory and constitutional right to a speedy trial. While
clearly related, they are two separate rights with different tests and different burdens. See
K.S.A. 2020 Supp. 22-3402 (setting forth the number of days after arraignment by which
trial must begin to avoid dismissal of charges); State v. Owens, 310 Kan. 865, 869, 451
P.3d 467 (2019) (outlining the constitutional balancing test of the Barker factors adopted
by this court). In this appeal, Gutierrez-Fuentes asserts that he made a timely objection—
before his case was concluded in the district court—that his constitutional right to a
speedy trial was violated, and thus he preserved this issue for appellate review.
Accordingly, our first task is to determine whether Gutierrez-Fuentes actually preserved a
claim that his constitutional right to speedy trial was violated.

The answer is not easy to ascertain. The record shows that neither Gutierrez-
Fuentes nor any of his attorneys specifically objected to the court that his constitutional
right to a speedy trial had been violated. Nor was a motion to dismiss filed on the basis

6
that the defendant's constitutional right to a speedy trial had been violated. Again, this
highlights the difference between a defendant's statutory right and constitutional right to a
speedy trial. The State has the burden of meeting the statutory speedy trial time
requirement, and the defendant does not have to assert the right. State v. Dreher, 239
Kan. 259, 260, 717 P.2d 1053 (1986). However, in terms of a defendant's constitutional
speedy trial right, neither the United States nor the Kansas Constitutions impose specific
time requirements for bringing a criminal defendant to trial, which is why courts utilize
the constitutional balancing test of the Barker factors. See Barker v. Wingo, 407 U.S.
514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). An effective review of the constitutional
right often requires consideration in context of both trial delay and any prejudice to the
defendant that may have resulted from that delay. Such an analysis of the constitutional
requirements is more complex than simply counting days. A defendant benefits from
ensuring the facts supporting the Barker factors are considered by the district court.
Otherwise, those facts will not be included in the appellate court's contextual analysis,
because appellate courts do not make findings of fact. In other words, the defendant also
carries a burden to establish the Barker factors. State v. Queen, 313 Kan. 12, 16, 482 P.3d
1117 (2021) ("[Defendant] has not argued . . . that he could meet his burden to establish
any of [the Barker] factors".). So, we look further. If evidence was presented by the
defense from which the court made fact-findings relevant to the alleged violation of
Gutierrez-Fuentes' constitutional speedy trial rights, the objection may be preserved even
if the court did not find that the evidence sufficiently supported the objection or the
motion.

Both the Sixth Amendment to the United States Constitution and section 10 of the
Kansas Constitution Bill of Rights guarantee defendants the right to a speedy trial.

7
 "The test to determine whether an accused has been afforded a speedy trial was
set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
Barker identified four factors to be considered when a claim of unconstitutional denial of
a speedy trial is asserted: the length of the delay, the reason for delay, the defendant's
assertion of the right, and prejudice to the defendant. Kansas adopted the Barker four-
point test in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972). [Citation
omitted.]" State v. Jamison, 248 Kan. 302, 306-07, 806 P.2d 972 (1991).

In weighing the Barker factors, the court must consider them together along with
any other relevant circumstances, because none of the factors alone is sufficient to find a
violation. However, the length of the delay could be determinative of the claim, because
"[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance." State v. Rivera, 277 Kan. 109, 113,
83 P.3d 169 (2004).

Turning to the record, we observe:

(1) Defendant did not articulate a constitutional speedy trial objection. While
defendant filed a document early in the case that he was asserting his right to a speedy
trial, he based that assertion on a specific number of days, which indicates a reference to
the speedy trial statute rather than the constitutional right. Then, despite his early
assertion, defendant later explicitly agreed to some continuances. After that, defendant
and his counsel objected to any further delays. However, the proactive assertion that one
objects to further delay is not the same as claiming that a right—either statutory or
constitutional—has been violated.

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 (2) Defendant identifies no hearing during which evidence was presented on a
claim that his constitutional right had been violated. Because no specific assertion was
made of a constitutional violation, the district court, in turn, neither addressed the Barker
factors nor made a fact determination as to whether those factors would weigh in favor of
Gutierrez-Fuentes or the State. Because the defendant did not identify to the trial court
the days that lapsed between Gutierrez-Fuentes' arrest and trial, the court did not make a
finding as to whether that lapse was presumptively prejudicial. No evidence was
presented concerning reasons for the delay. No evidence was presented on any prejudice
to the defendant that may have resulted from the delay. Without a pretrial or posttrial
motion to dismiss based on an alleged violation of his constitutional right to a speedy
trial, the district court was not able to make the necessary factual findings and
determination to resolve the issue. Our standard of review relies on the district court's
factual findings, which we only review for substantial competent evidence. Owens, 310
Kan. at 868. Fact-finding is simply not the role of appellate courts. State v. Nelson, 291
Kan. 475, 488, 243 P.3d 343 (2010).

Considering all of this, we find that the record below does not support a claim that
Gutierrez-Fuentes asserted a violation of his constitutional right to a speedy trial before
the district court. Consequently, we find that this issue was not preserved. The panel
below came to the same conclusion. Despite this finding, however, the panel continued,
opting to consider the merits of Gutierrez-Fuentes' constitutional speedy trial issue under
one of our limited exceptions which allows review of an unpreserved issue.

"Generally, the court does not address even constitutional issues for the first time
on appeal. Within its discretion, however, the appellate court may do so if the party trying
to raise a new issue shows a recognized exception to the general rule. Those exceptions
are:

9
 '(1) [T]he newly asserted claim involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; (2) the
claim's consideration is necessary to serve the ends of justice or to
prevent the denial of fundamental rights; or (3) the district court's
judgment may be upheld on appeal despite its reliance on the wrong
ground or reason for its decision.' [Citations omitted.]" State v. Harris,
311 Kan. 371, 375, 461 P.3d 48 (2020).

The right to a speedy trial is a fundamental right. Barker v. Wingo, 407 U.S. 514,
515, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). It is under this exception that the panel
reviewed the issue. However, before invoking one of the limited exceptions, an appellate
court must also determine whether the unpreserved issue is amenable to resolution on
appeal. State v. Allen, 314 Kan. 280, 281, 497 P.3d 566 (2021). Even then, the decision to
review an unpreserved claim under an exception is a prudential one; the court necessarily
exercises discretion. Despite an exception supporting review of a new claim, an appellate
court has no obligation to do so. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).
Since Gutierrez-Fuentes did not assert this constitutional theory before the trial court and
the necessary factual findings were never made, we hold the panel abused that discretion
because Gutierrez-Fuentes' constitutional speedy trial claims require factual development
out of our reach as an appellate court. We reverse the panel and decline to review
Gutierrez-Fuentes' unpreserved constitutional speedy trial claim.

SUFFICIENCY OF EVIDENCE ON AGGRAVATED BURGLARY

Next, Gutierrez-Fuentes argues there was insufficient evidence to support his
aggravated burglary conviction because the State did not prove that he was legally
unauthorized to be in the apartment.

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Preservation

Sufficiency of the evidence issues are not constrained by a preservation
requirement; "'[t]here is no requirement that a criminal defendant challenge the
sufficiency of the evidence before the trial court to preserve it for appeal.'" State v.
Chavez, 310 Kan. 421, 425, 447 P.3d 364 (2019).

Standard of review

When sufficiency of the evidence is challenged in criminal cases, the appellate
court must review all the evidence in a light most favorable to the prosecution to
determine if a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary
conflicts, or make witness credibility determinations. State v. Frye, 294 Kan. 364, 375,
277 P.3d 1091 (2012).

Discussion

The State charged Gutierrez-Fuentes with aggravated burglary under K.S.A. 2016
Supp. 21-5807(b)(1), which prohibits a person from entering, without authority, any
dwelling in which there is a human being, with the intent to commit a felony, theft, or
sexually motivated crime therein. The question turns on Gutierrez-Fuentes' legal
authority to be in the apartment where the crime occurred.

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 Gutierrez-Fuentes primarily relies on State v. Vasquez, 287 Kan. 40, 194 P.3d 563
(2008), to support his argument. In Vasquez, a husband successfully argued that there was
insufficient evidence to support his aggravated burglary charge when he entered his
marital home. The Vasquez court acknowledged that the victim wanted nothing to do
with the defendant: she asked him to stay away, she moved some of his belongings out
of the house, she was divorcing him, and she may have been planning to file a petition for
a protection from abuse order. But there was no actual evidence that he was legally
unauthorized to enter the marital home. Vasquez, 287 Kan. at 59-60.

Gutierrez-Fuentes argues that his case is like Vasquez. Even though the apartment
was not a marital home, he and D.S. had been living together for around four months
before she told him she was ending the relationship and wanted him to leave. He points
out that the record does not, with specificity, demonstrate what kind of legal interest D.S.
had in the apartment, such as a rental agreement or some other ownership interest that
would allow her legally to exclude him.

The panel distinguished this case from Vasquez. Instead, it chose to apply this
court's more recent holding in State v. Williams, 308 Kan. 1439, 430 P.3d 448 (2018). In
Williams, this court acknowledged that a "close question exists" when the State does not
present direct evidence about the defendant's and the victim's property interests in the
residence where an aggravated burglary occurs, but that circumstantial evidence can
sufficiently support a finding that someone lacks authority to enter a residence. 308 Kan.
at 1446.

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 The Williams court explained how there was circumstantial evidence that the
victim had to give permission for the defendant to enter and that the defendant recognized
her right to exclude him. The victim had taken back the defendant's key, which suggests
she had the right to give and revoke permission. The defendant also called the victim and
talked about dropping by, which suggests he did not think he had a right to demand
access to the residence. The victim also refused to let him in when he knocked on the
door, and the defendant eventually broke the door open to gain entry. 308 Kan. at 1446-
47.

The facts in Williams align closely with those in the present case. Not only did
D.S. tell Gutierrez-Fuentes to move out, but Gutierrez-Fuentes' actions in gathering his
things and leaving indicate recognition that D.S. had the authority to make such a
demand. This authority was reinforced when D.S. asked for Gutierrez-Fuentes' key, and
he told her that he had lost the key rather than telling her the key was his and she had no
right to ask for it. More, Gutierrez-Fuentes' act of knocking on the window and trying to
persuade D.S. to allow him to enter was an implicit recognition that she had the authority
to refuse his request. All of this is circumstantial evidence suggesting that D.S. did, in
fact, have authority to revoke his access to the residence and that his forcible entry was
without authority. Based on the evidence, and when viewed in a light most favorable to
the State, a rational fact-finder could conclude beyond a reasonable doubt that Gutierrez-
Fuentes entered the apartment without authority.

Gutierrez-Fuentes also asserts that he had authority to be in the apartment pursuant
to K.S.A. 58-2501, which states: "Any person in the possession of real property with the
assent of the owner is presumed to be a tenant at will, unless the contrary is shown . . . ."
But this statute governs the relationship and responsibilities between landlords and

13
tenants; a relationship we cannot ascertain based on the lack of evidence in the record.
Moreover, the same facts that constitute circumstantial evidence showing his absence of
authority to be present in the apartment for purposes of the above discussion also provide
circumstantial evidence to rebut the presumption he was ever a tenant at will. The actions
of D.S. and Gutierrez-Fuentes indicate he understood he was a guest of D.S. and living
there only with her permission and not because he was a tenant or co-tenant. Gutierrez-
Fuentes cites no additional authority to support his position on this point. His argument
fails.

INTERPRETER STATEMENTS AS HEARSAY

In his last issue for review, Gutierrez-Fuentes argues that the district court
erroneously admitted testimony given by Officer Myers and forensic nurse Hess about
statements D.S. made to them through one or more unidentified interpreters while they
were at the hospital. In addressing this issue of first impression, the panel interpreted the
relevant hearsay statute to determine that there is a "language conduit" between the
interpreter and D.S. so that statements of D.S. to Myers and Hess through the interpreter
should be attributed as D.S.'s direct statements without an additional layer of hearsay.
Even if this is incorrect and the district court erroneously allowed inadmissible hearsay,
the panel determined that any error was harmless.

Preservation

Gutierrez-Fuentes objected to the testimony of Myers and Hess about these
statements on hearsay grounds and obtained a continuing objection. By doing so, he

14
preserved this issue for appellate review. See State v. Mattox, 305 Kan. 1015, 1035, 390
P.3d 514 (2017).

Standard of review

This court reviews a trial court's determination of hearsay admissibility for an
abuse of discretion. Discretion may be abused if (1) no reasonable person would take the
view adopted by the trial court; (2) the action is based on an error of law; or (3) the action
is based on an error of fact. State v. Hillard, 313 Kan. 830, 838, 491 P.3d 1223 (2021).
To the extent this court must interpret K.S.A. 2020 Supp. 60-460, its review is unlimited.
State v. Davey, 306 Kan. 814, 820, 397 P.3d 1190 (2017).

Discussion

K.S.A. 2020 Supp. 60-460 states that:

"Evidence of a statement which is made other than by a witness while testifying
at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and
inadmissible . . . ."

Given the arguments before us, we limit our analysis to a single exception to the
hearsay rule, K.S.A. 2020 Supp. 60-460(a):

"(a) Previous statements of persons present. A statement previously made by a
person who is present at the hearing and available for cross-examination with respect to
the statement and its subject matter, provided the statement would be admissible if made
by declarant while testifying as a witness."

15
 Gutierrez-Fuentes' specific objections are over the testimony of both Myers and
Hess about their conversations with D.S. at the hospital, as facilitated by an interpreter
supplied by the hospital. He argues that it should be the interpreter testifying about the
statements made by D.S. rather than the officer or nurse who could not understand D.S.'s
statements directly.

Gutierrez-Fuentes objects to testimony about D.S.'s hospital statements on the
grounds of hearsay. He claims that the interpretation given by the hospital interpreter
provides an additional level of hearsay. Without the interpreter's testimony at trial, and
without an exception to the hearsay rule, the statements made by D.S. in Spanish to the
hospital interpreter cannot be admitted into evidence, even if D.S. is in court during trial
to testify about them.

Recognizing the hearsay exception in K.S.A. 2020 Supp. 60-460(a), which allows
admission of a statement previously made by a person who is present at the hearing and
available for cross-examination, the district court overruled the hearsay objections and
stated that Gutierrez-Fuentes could cross-examine D.S. regarding her hospital statements
and the accuracy of those statements as conveyed by Myers and Hess. We note here that
while the concurrence understands the district court's comments about D.S. being
available for cross-examination as a conclusion relating to both levels of hearsay, it does
not find any endorsement from the State for the exception found in K.S.A. 2020 Supp.
60-460(a), thus it would not discuss it. We disagree because at trial the State argued it
was following the rules of hearsay "because [D.S] will be present to be cross-examined
about these statements." We acknowledge that this is not an artfully-made argument and
it does not precisely reference K.S.A. 2020 Supp. 60-460(a). But we are inclined to find it
was enough to preserve the argument today and allow us to address it now. It is clear

16
K.S.A. 2020 Supp. 60-460(a) was both the hearsay exception the State was relying on in
its contention it was "following the rules of hearsay" and the hearsay exception the
district court relied on at trial.

Ultimately, the panel sided with the district court and determined that the hospital
statements were D.S.'s statements, despite the use of the interpreter; they were not the
statements of the interpreter. Therefore, there was no extra layer of hearsay, they fall
under the existing hearsay exception, and the statements were admissible. Gutierrez-
Fuentes argues that the panel amended the statute and added a new exception for
"language conduit" witnesses, the creation of which should fall only to the Legislature.

Because Kansas courts have not previously addressed this issue, both parties turn
to outside jurisdictions to support their arguments.

Gutierrez-Fuentes relies on State v. Morales, 173 Wash. 2d 560, 573-74, 269 P.3d
263 (2012), where the Washington Supreme Court decided that the hearsay rule applied
at least in certain situations involving an interpreter. In that case, the Morales court
affirmed that the State had failed to prove the defendant had been read his rights; without
the testimony of the interpreter, the State—through the testimony of an officer—could
only show that the officer had asked the interpreter to read the required warning. He
could not say that the interpreter did so. 173 Wash. at 573-74.

The State cites authority from the Georgia Court of Appeals which describes a
"language conduit," stating that "[u]nder the so-called 'language conduit' rule, '[a]bsent a
motive to mislead, distort or some other indication of inaccuracy, when persons speaking
different languages rely upon a[n interpreter] as a conduit for their communication, the

17
statements of the [interpreter] should be regarded as the statements of the persons
themselves without creating an additional layer of hearsay.'" Lopez v. State, 281 Ga. App.
623, 625, 636 S.E.2d 770 (2006).

The Lopez rationale fits within "[t]he basic premise of the language conduit theory
. . . that an interpreter is a neutral party whose translation does not add or detract meaning
from the speaker's words. The interpreter can be thought of 'as a machine into which one
language enters and another language exits.'" Comment, Invisible Touch: Analyzing the
Language Conduit Theory Through the Lens of Translation and Interpreting Principles,
88 UMKC L. Rev. 771, 777 (2020). In that sense, the interpreter is just a tool used to
facilitate communication. Absent a showing of dysfunction, it is reliable.

The panel explicitly adopted the language conduit rule, holding that except in
unusual circumstances, an interpreter is "'no more than a language conduit and therefor
[the] translation' is viewed as the declarant's own." 59 Kan. App. 2d at 84 (citing United
States v. Cordero, 18 F.3d 1248, 1253 [5th Cir. 1994]. It applied various factors to the
present case to determine that the record contained no evidence—or argument—of a
motive by the interpreter to mislead Myers or Hess, and the statements interpreted were
consistent with the testimony provided at trial. Therefore, the panel attributed the
statements directly to D.S. without the additional layer of hearsay.

To assist in our analysis of the issue, it is helpful to consider the events as they
occurred at the hospital, focusing on the D.S./Myers exchange, though the D.S./Hess
exchange would have been essentially the same. Before any discussion began, an injured
D.S., presumably knowing only Spanish, said nothing. At the same time, Myers,

18
presumably knowing only English, said nothing. Someone summoned an interpreter. That
person arrived and spoke to Myers in English and spoke to D.S. in Spanish.

Myers asked a question in English and listened to the hospital interpreter speak
Spanish to D.S. Without knowing Spanish, Myers had to assume the interpreter was
conveying a reasonable facsimile of what he had just said in English. Myers then listened
to D.S. reply in Spanish. Myers then listened in English to what the interpreter told him
D.S. had just said. Meanwhile, D.S. did not understand what the interpreter and Myers
were saying in English. And so on. The interpreter may have been completely accurate.
However, neither Myers nor D.S. knew enough to correct or applaud the interpreter's
efforts.

We do not know whether Myers' assumption about the accuracy of the
interpretation at the hospital was well-placed, and at trial Gutierrez-Fuentes had no way
of testing its accuracy or reliability because the interpreter did not testify. The State
asserts that the interpreter is just a tool, a conduit, unless there is some evidence of taint,
such as a conflict of interest or insufficient understanding of the language. Our record is
silent on those matters.

To demonstrate why the reliability of the hospital interpreter's separate statements
may be important, one must have some understanding of how language works. Consider
the "telephone game." Three or more players form a circle. The game begins with one
person whispering a detailed and specific message to the next person in the circle. The
second person then whispers precisely the same message to the third person—and so on
until you get to the last person, who announces the message out loud. The game is fun
and interesting because the first person is often surprised by the message as relayed by

19
the last person. Almost always, the message has changed—sometimes slightly,
sometimes dramatically—despite each player's best efforts to keep it the same. It is a
game which reminds us that language is a complicated enterprise and communication is
rarely perfect. Yet in the game, everyone is speaking the same language.

The State argues that the "conduit argument" is strengthened by the fact that both
D.S. and Myers are testifying, so they can testify at trial to what they said in the hospital.
But this begs the question. Memories fade, sometimes people are motivated to
exaggerate, and it is possible the memories of both D.S. and Myers have adopted the
message from the interpreter and not from each other. After all, neither of them knew
what the other said in the hospital. They simply trusted that the interpreter was telling the
truth and communicating the message accurately—just as in the telephone game, with the
added layer of complication provided by two languages. Notably, the complexity of
communication is only complicated further by the judgment decisions every interpreter
must make in changing the message from one language to another and then back again,
even in good faith. "Languages have unique nuances, and mastering their ebb and flow is
an art form that takes time, exposure, and practice. The translator or interpreter thus
'recodes and transmits a message received from another source.' Because the message is
recoded, not simply each word as a unit, end results may differ." 88 UMKC L. Rev. at
773.

We are not persuaded by the conduit theory. Instead, we identify two persons
making statements when an interpreter is utilized: the witness, who made out-of-court
foreign language statements; and the language interpreter, who made out-of-court foreign
and English language statements. See United States v. Charles, 722 F.3d 1319, 1324
(11th Cir. 2013) (finding two sets of statements were made by two different declarants

20
when an out-of-court interpreter was used). The inherent differences in languages mean
that interpreters do not always convey a "one-to-one correspondence between words or
concepts in different languages," the interpreter is a "declarant" of her out-of-court
statements, and the defendant must have an opportunity to confront such a declarant
about those statements if they are submitted for the truth of what was said. 722 F.3d at
1324-25. This is true even with an ethical, experienced, and well-intended interpreter.

The State concedes that D.S.'s out-of-court statements were hearsay. Those
hearsay statements, made in Spanish, would have been admissible at trial because D.S.
was present and subject to cross-examination. K.S.A. 2020 Supp. 60-460(a). Likewise,
the truth of the interpreter's out-of-court statements is important. Those statements, as
uttered, must be separately considered for admissibility. The English interpretation does
not serve as a "conduit" for admissibility of the foreign language statement.

Because no valid exception to their inadmissibility was asserted, the interpreter's
statements under these facts were inadmissible hearsay. Gutierrez-Fuentes was not
required to trust the hospital interpreter's understanding of the source and target
languages, the interpreter's motives, or the interpreter's reliability. His hearsay objection
should have been sustained.

Harmlessness

Even though the district court improperly admitted hearsay evidence, the inquiry
does not end. The error might be harmless. The erroneous admission is harmless if it does
not implicate a defendant's constitutional rights and there is no reasonable probability the
error affected the trial's outcome considering the entire record. State v. Chapman, 306

21
Kan. 266, 276, 392 P.3d 1285 (2017). Gutierrez-Fuentes has not argued that his
constitutional rights have been implicated by the admissions.

The only argument made by Gutierrez-Fuentes about how this evidentiary error
affected the trial's outcome is that the panel failed to appreciate the "persuasive content of
statements purported to be made closer in time to the alleged crime." It is true that a jury
might find more reliable what D.S. said at the hospital than what she said at trial, even if
only because memory fades over time.

Considering the entire record, however, there is no reasonable probability this
evidentiary error affected the trial's outcome. As the panel correctly notes, the challenged
testimony was also admitted through unchallenged witnesses. Officer Peña spoke directly
with D.S. at the hospital, without the use of an interpreter, and his testimony about her
statements at the hospital is consistent with the testimony of Myers and Hess. Further,
while the jury may have found what D.S. said at the hospital more reliable than what she
said during trial—as argued by the defense—its relative value is offset by her lengthy
testimony at trial about all the same facts relayed to the jury through Peña, Myers, and
Hess.

We hold that the erroneous ruling on this hearsay objection was harmless.

The judgment of the Court of Appeals is affirmed in part and reversed in part. The
judgment of the district court is affirmed.

22
 ***

LUCKERT, C.J., concurring: I write separately on one issue: Whether the district
court judge erred in categorically admitting all testimony from Officer Dane Myers and
forensic nurse Tracy Hess about statements a language interpreter made to them
concerning things D.S. said while at the hospital for treatment. I join the majority on all
other aspects of today's decision.

On the language interpreter issue, I agree with the majority's conclusions that
(1) the district court erred in admitting the interpreter's statements and the Court of
Appeals erred in affirming the admission of this testimony and (2) the erroneous
admission of the testimony was harmless error. But my reasons for finding error differ
from those of my colleagues.

I would hold that the State failed to preserve the argument it makes on appeal. It
contends the statements of the interpreter are not hearsay under the language conduit
theory applied by courts in some other states and adopted by the Court of Appeals panel
in this case. See State v. Gutierrez-Fuentes, 59 Kan. App. 2d 70, 84, 477 P.3d 1041
(2020). The State asks us to adopt the theory as explained in Lopez v. State, 281 Ga. App.
623, 625, 636 S.E.2d 770 (2006). That decision's holding requires factual determinations
about the interpreter's motive and about other issues that might impact the accuracy of the
interpretation. But the State failed to establish a factual foundation to make those
determinations. Plus, it failed in its appellate briefing to explain how the theory could
apply given Kansas' hearsay statute, K.S.A. 2020 Supp. 60-460. Given those failures, the

23
State has not preserved its arguments about the language conduit theory and appellate
courts should not consider the State's theory for the first time on appeal.

A brief recap of the evolution of the parties' arguments explains why I reach these
conclusions. At trial, Geldy Gutierrez-Fuentes' attorney objected on hearsay grounds
when Officer Myers began to testify about the statements D.S. made through an
interpreter. Gutierrez-Fuentes' attorney then argued the language interpreter should be
testifying because the officer was "testifying to what another person is telling him about
what a third person is saying. It's pure hearsay." He reiterates that argument on appeal.

Gutierrez-Fuentes' position finds broad support in cases decided before codes of
evidence were adopted for use in federal and most state courts, including those in Kansas.
Under those cases, "'[a] person conversing with a third person through an interpreter is
not qualified to testify to the other person's statements, because he knows them only
through the hearsay of the interpreter. Ordinarily, therefore, the third person's words
cannot be proved by anyone except the interpreter himself.'" Saavedra v. State,
297 S.W.3d 342, 345 (Tex. Crim. App. 2009) (quoting 2 Wigmore on Evidence § 812[3]
[2d ed. 1923]).

Kansas' statutory definition of hearsay follows this common law view. Under
Kansas' code of evidence and its definition of hearsay, out-of-court statements made for
the truth of the matter asserted are hearsay that are excluded from evidence unless one of
the statutory hearsay exceptions applies. These exceptions are set out in 31 provisions.
K.S.A. 2020 Supp. 60-460. At trial, everyone tacitly accepted that D.S. and the
interpreter uttered the objected-to statements outside the courtroom. And the State made
no argument that it offered either D.S.'s or the interpreter's statements for a reason other

24
than the truth of the matter asserted. The district court judge then determined the
evidence was hearsay.

No one at trial explicitly discussed the implications of K.S.A. 60-463, which
addresses admissibility in the context of multiple hearsay—often called hearsay within
hearsay. Here, multiple hearsay is at issue because the State asked the officer (and, later
in the trial, the forensic nurse) to testify to two layers of statements: (1) Those made by
D.S. to the interpreter and (2) those made by the interpreter to the officer and nurse.

K.S.A. 60-463 allows a judge to admit multiple hearsay only if a hearsay
exception applies to each layer of statements. State v. Brown, 285 Kan. 261, 279, 173
P.3d 612 (2007), abrogated on other grounds by State v. Williams, 306 Kan. 175, 392
P.3d 1267 (2017). Thus, to analyze the validity of Gutierrez-Fuentes' objection, the
district court needed to determine if each layer of the objected-to statements (1)
constituted hearsay and, (2) if so, if an exception applies.

The State argued that D.S. "can corroborate the correct translation, that's why it's
the State's position that it goes to weight and credibility and not admissibility under
hearsay because she will be present to corroborate the statements that were translated."
The State also tried to argue why the statements were reliable based on factors like who
employed the interpreter. Gutierrez-Fuentes' attorney objected, saying no evidence
supported those contentions.

In ruling on the arguments, the district court judge explicitly found the interpreter's
statements were hearsay and thus rejected the State's non-hearsay argument. But the
judge implicitly accepted the State's contention that he could admit the statements

25
because D.S. could corroborate the statements; the judge noted that D.S. would testify
and could be cross-examined about the accuracy of the interpretation. Yet no one argued
what hearsay exception this fell under. And Kansas has no general catchall exceptions for
reliability of hearsay or for hearsay that others can corroborate. See K.S.A. 2020 Supp.
60-460(a)-(ee).

On appeal, the State makes a different argument. For the first time, it raises the
language conduit theory to argue the language interpreter's statements are not hearsay. As
I have discussed, that assertion ignores the statutory hearsay definition in K.S.A. 2020
Supp. 60-460, which applies to all out-of-court statements offered for the truth of the
matter asserted. The State does not explain why the statement does not meet this
definition. I, like my colleagues in the majority, agree with the district court judge's
conclusion that the interpreter's statements were hearsay. The interpreter made
declarations about what D.S. said and the State offered the interpreter's declarations for
the truth of the matter asserted—that is, that D.S. made those statements.

Without discussion of why the interpreter's statements do not meet the definition
of hearsay in K.S.A. 2020 Supp. 60-460, the State cites Lopez v. State, 281 Ga. App. 623,
625, 636 S.E.2d 770 (2006), to support its argument. In Lopez, the Georgia Court of
Appeals held that "'[a]bsent a motive to mislead, distort or some other indication of
inaccuracy, when persons speaking different languages rely upon a translator as a conduit
for their communication, the statements of the translator should be regarded as the
statements of the persons themselves without creating an additional layer of hearsay.'"
281 Ga. App. at 625 (quoting Cassidy v. State, 149 S.W.3d 712, 715 [Tex. App. 2004]
abrogated on other grounds by Wall v. State, 184 S.W.3d 730 [Tex. Crim. App. 2006]).

26
 This brings us to the procedural point that reveals the State's failure to preserve its
argument about the language conduit theory, which it raises for the first time on appeal.
Again, I reach my conclusion the State failed to preserve its argument for two reasons.

The first reason arises because the Lopez holding requires the presence of certain
factual predicates before the language conduit theory can be applied. Those predicates
include establishing that the interpreter had no motive to mislead or distort and that
nothing else suggests inaccuracy in the interpretation. 281 Ga. App. at 625. Finding
motive (or the lack thereof) and judging circumstances that might impact the accuracy of
an interpretation are inherently factual determinations. The State began to argue some
indicia of reliability. But when Gutierrez-Fuentes' attorney accurately argued no evidence
supported the contentions, the State did not make another effort to lay a foundation. Nor
did the State ask the district court judge to make any findings, and the judge made none.

When these factual predicates have not been established or found at the trial court
level, appellate courts in other jurisdictions have refused to apply the theory for the first
time on appeal. These courts recognize that the proponent of the theory, which in this
case was the State, has the obligation to establish at trial the foundation for applying the
language conduit theory and to request findings sufficient for appellate review. See, e.g.,
State v. Rodriguez-Castillo, 345 Or. 39, 50-51, 188 P.3d 268 (2008) (noting [1] State did
not argue language conduit theory before the trial court, [2] neither defendant nor State
presented any evidence on factors, and [3] trial court had no chance to rule on factors,
which meant appellate court was "not in a position to rule as a matter of law" on theory's
applicability under that state's residual hearsay exception); Saavedra, 297 S.W.3d at 348-
49 (discussing burden proponent of evidence bears in establishing reliability of
interpretation before language conduit theory applies). These holdings align with Kansas

27
law, which requires proponents of hearsay evidence to establish the foundational basis for
applying a hearsay exception. See State v. Johnson-Howell, 255 Kan. 928, 935, 881 P.2d
1288 (1994), abrogated on other grounds by State v. Jefferson, 287 Kan. 28, 194 P.3d
557 (2008).

Unlike these courts and Kansas' general rule, the Court of Appeals panel scoured
the record to see whether it revealed a motive for the interpreter to mislead or distort or
any other indication of the interpretation's inaccuracy. Gutierrez-Fuentes, 59 Kan. App.
2d at 84-85. But appellate courts are not finders of fact and should not consider an issue
raised for the first time on appeal if doing so requires making factual findings. When an
appellate court engages in fact-finding, it abuses its discretion. See generally State v.
Allen, 314 Kan. 280, 284, 497 P.3d 566 (2021) ("An appellate court abuses its discretion
to take up a newly raised issue if deciding its merits would require the court to make
factual findings such as credibility determinations, resolving evidentiary conflicts, and
reweighing evidence. These are typically tasks an appellate court may not perform when
the factual issues could have been fully litigated before the appeal.").

Here, the State failed to preserve the issue it asserts on appeal and has thus
established no basis for introducing the interpreter's statements. Given that, the Court of
Appeals should not have considered application of the language conduit theory nor
should this court.

The second reason the appellate courts should not address the language conduit
theory is that the State in its appellate brief made no effort to discuss the doctrinal
underpinning of the Lopez holding. Yet the statutory structure of the hearsay rule on

28
which its holding is based differs in an important respect—the definition of hearsay—
from the definition in Kansas.

To explain, we must look beyond Lopez itself because it fails to explain its
rationale. Instead, it merely quotes and adopts the holding of the Texas Court of Criminal
Appeals in Cassidy, 149 S.W.3d at 715. Cassidy, also cited by the State, explains its
holding rests on "'the theory that the interpreter serves as an agent of, or a language
conduit for, the declarant.'" 149 S.W.3d at 715. Another Texas Court of Criminal Appeals
decision—Saavedra, 297 S.W.3d at 344-49—provides a fuller explanation of the
rationale and discusses the roots of the language conduit theory in common law and the
way the theory fits with the Federal Rules of Evidence and Texas' evidence rules, which
follow the federal rules.

As the Texas court explained, the language conduit theory evolved from a
common-law hearsay rule that recognized interpreters often function as an agent of the
declarant. Saavedra, 297 S.W.3d at 345 (quoting 2 Wigmore on Evidence § 812[4]).
With the advent of the Federal Rules of Evidence, federal courts recognized the common
law agent-interpreter theory could still be applied under Federal Rule of Evidence
801(d)(2)(C) and (D). Saavedra, 297 S.W.3d at 347. The Texas court cited a federal case
decided soon after the rules were adopted—United States v. Da Silva, 725 F.2d 828 (2d
Cir. 1983). The Da Silva court held that "'[p]rovided the interpreter has a sufficient
capacity, and there is no motive to misrepresent, the interpreter is treated as the agent of
the party and the statement is admitted as an admission unless circumstances are present
which would negate the presumption of agency.'" 725 F.2d at 831-32 (quoting 4 J.
Weinstein & M. Berger, Evidence ¶ 801(d)(2)(C)[01], at 801-158 n. 34 [1981], and citing
6 J. Wigmore, Evidence § 1810[2], at 376 [Chadbourn rev. ed. 1976]).

29
 Lopez and the State also cite, but do not discuss or quote People v. Gutierrez, 916
P.2d 598 (Colo. Ct. App. 1995). It, too, applies the language conduit theory in the context
of an agency exception to the hearsay rule. The Colorado court cited Colorado Rule of
Evidence 801(d)(2)(E) (admission of party; coconspirator), which it noted is "identical to
Fed. R. Evidence 801(d)(2)(E)." Citing federal caselaw, the court noted "a growing
majority of jurisdictions now allows admission of translated testimony in appropriate
circumstances assuring its reliability, on the theory that the interpreter serves as an agent
of, or a language conduit for, the declarant." 916 P.2d at 600.

Understanding that this interpreter-agency theory creates the rationale for the cases
cited by the State leads to my conclusion that the State failed to adequately explain how
the theory can be applied under Kansas law. That is because Federal Rule of Evidence
801 and state rule patterned on it define hearsay in a manner different from the definition
in the Kansas Code of Evidence. The federal rule excludes certain statements from the
definition of hearsay even if made outside court and offered for the truth of the matter
asserted. Fed. R. Evid. 801(d) ("A statement that meets the following conditions is not
hearsay."). These include statements defined in Rule 801(d)(2)(C), (D), and (E), which
relate to statements made by a party's agent, one acting under a party's authorization, or
one conspiring with a party—the circumstances federal courts have applied to interpreters
unless facts suggest otherwise. Da Silva, 725 F.2d at 831. State courts with codes of
evidence modeled after the federal rules, including Texas, have sometimes used the same
analysis. See Saavedra, 297 S.W.3d at 347-49 (citing Tex. R. Evid. 801[e]). And it is this
Texas analysis that supports Lopez. See Lopez, 281 Ga. App. at 625 (quoting Cassidy,
149 S.W.3d at 715); 149 S.W.3d at 715 (citing Tex. R. Evid. 801[e] and citing Gutierrez,
916 P.2d 598 [in turn citing Colo. R. Evid. 801(d)(2)(E)]).

30
 The Kansas Code of Evidence does not exclude out-of-court statements offered for
the truth of the matter asserted from the definition of hearsay regardless of the
trustworthiness of the circumstances in which the statements are made. See K.S.A. 2020
Supp. 60-460. The theoretical basis in Cassidy and Lopez for saying the interpreted
statement is not hearsay thus does not exist in Kansas law. Instead, K.S.A. 2020 Supp.
60-460 excludes hearsay unless an exception applies. The State consequently needed to
propose a hearsay exception justifying the admission of the interpreter's statements into
evidence. But it cites no exception in its appellate brief. It thus failed to meet its burden
and failed to preserve the issue for appellate review. See State v. Raskie, 293 Kan. 906,
919, 269 P.3d 1268 (2012) (holding defendant failed to brief hearsay exceptions and
inadequate briefing led to waiver of argument).

Even so, the majority chooses to discuss whether K.S.A. 2020 Supp. 60-460(a)
applies. While I understand one could read the district court judge's comments about D.S.
being available for cross-examination as a conclusion relating to both levels of hearsay, I
do not read either the State's trial arguments or its appellate arguments as proffering that
exception as a path to admission of the evidence. Rather, the State's arguments and the
ruling relate to trustworthiness and credibility (which in Kansas is not alone a basis for
admission of evidence) and to whether the interpreter's statements are hearsay (although
the State never addresses the Kansas definition). Unlike the majority, I would not discuss
an exception not cited by the State.

I also recognize that some courts have followed a different analytical path for
applying the language conduit theory than the path followed in Cassidy and Lopez (see
Saavedra, 297 S.W.3d at 347-49 [gathering cases]). But I would not analyze any other

31
path than the Cassidy/Lopez one without allowing the parties to brief the alternative. See
State v. Toothman, 310 Kan. 542, 547, 448 P.3d 1039 (2019) ("'[W]hen "an appellate
court raises a new issue sua sponte, counsel for all parties should be afforded a fair
opportunity to brief the new issue and to present their positions to the appellate court
before the issue is finally determined."'").

In sum, I would hold the district court erred in admitting the interpreter's
statements because the State has yet to establish a hearsay exception allowing its
admission. And I would hold the Court of Appeals abused its discretion in addressing the
language conduit theory when the State had not laid the foundation for its application and
had failed to adequately brief the issue. I thus agree with the majority that both the Court
of Appeals and the district court judge erred, although I do not join the majority's
rationale. And, like my colleagues in the majority, I would hold the district court's error
was harmless.

BILES, J., joins the foregoing concurrence.

32