State v. Fry

── State v. Fry ── Court: Court of Appeals of Kansas Date: May 15, 2026 Category: General NOT DESIGNATED FOR PUBLICATION No. 125,932 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DAVID LEON FRY, Appellant. MEMORANDUM OPINION Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Submitted without oral argument. Opinion filed May 15, 2026. Reversed and remanded with directions. James M. Latta, of Kansas Appellate Defender Office, for appellant. Cheryl M. Pierce, assistant county attorney, and Kris W. Kobach, attorney general, for appellee. Before BRUNS, P.J., SCHROEDER and ISHERWOOD, JJ. ISHERWOOD, J.: David Leon Fry stands convicted of aggravated criminal sodomy with a child under the age of 14 years for acts perpetrated against his stepdaughter. At trial, the district court judge interjected numerous times by questioning four prosecution witnesses during their testimony. Fry now appeals and raises several trial errors for our consideration, including a claim that the district court judge committed judicial error in questioning witnesses. Based on our review of the record, we agree that the district court judge's questioning of the witnesses constituted improper judicial comment. Moreover, we are not convinced that the State has established that this error was harmless. 1 Accordingly, we reverse Fry's conviction and remand this case to the district court for a new trial. FACTUAL AND PROCEDURAL BACKGROUND Fry entered a long-term relationship with T.M.'s mother (Mother) sometime in 2020. After Fry and Mother married, T.M.'s maternal grandmother (Grandmother) discovered that Fry was a registered sex offender and told Mother that Mother should have informed the family sooner. Fry and Mother lived in a van parked in front of Grandmother's house, while T.M. slept in the house with Grandmother. One day, when T.M. was six years old, Fry picked up T.M. after school and they went fishing together. After fishing, Fry dropped off T.M. with Grandmother. As they were getting ready for bed, T.M. disclosed to Grandmother that Fry "made her suck his dick." Grandmother called the police, and police arranged for T.M. to have a forensic interview at the child advocacy center and a sexual assault nurse examination (SANE). During the forensic interview, T.M. made no disclosure of sexual abuse, instead telling the interviewer that she felt safe with Fry. The interviewer took three breaks from the interview to discuss with police how to obtain a disclosure from T.M. The interviewer also brought up T.M. being at the lake and asked her, "if she had told someone . . . that something had happened, that they would be concerned about her," to which T.M. responded, "'no.'" Following the interview, the interviewer told Grandmother that T.M. made no disclosure of abuse. Grandmother then drove T.M. to her SANE. T.M. told the nurse her "'dad'" made T.M. "'suck his dick.'" T.M. said the abuse occurred under a bridge while they were fishing at a new spot. In response to questions posed by the nurse, T.M. told the nurse Fry's penis was "hard" and that "green goo" came out of the top of it. T.M. said she 2 remained dressed, as did Fry except that he pulled his pants down. The nurse observed that T.M. had "abrasions and bruising on her knees" and noted that T.M. reported that she fell while at the lake with Fry. The nurse also obtained DNA samples from T.M. and collected her clothes for DNA testing by the Kansas Bureau of Investigation (KBI). Police interviewed Fry, who said that he took T.M. to El Dorado Lak