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April 5, 2013, Appellate Court Digests
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Kansas Supreme Court – Civil

NO. 102,744 – APRIL 5, 2013


FACTS: This case arises from a dispute over the administration of a trust between a beneficiary of the trust, Lawrence Hamel (Lawrence), and the trustees of that trust, Dennis Hamel (Dennis) and Leona Newell (collectively Trustees). Lawrence sought termination of his deceased father's trust, the Arthur L. Hamel Living Trust, dated February 7, 2003, and the First Amendment to the Arthur L. Hamel Living Trust, dated February 17, 2003, (collectively Trust) and immediate distribution of Trust assets based on the Trustees' alleged failure to properly administer the Trust. Lawrence later moved to set aside a contract for deed executed between Dennis and his wife, as buyers, and the Trustees, as sellers, for the sale of farmland owned by the Trust. Lawrence also sought to remove the Trustees, alleging they engaged in self-dealing and breached their fiduciary duties. The district court concluded that (1) Arthur did not intend the Trust to terminate immediately upon his death; (2) the Trust permitted the Trustees to finance the sale of the farmland to Dennis under the terms set forth in the contract for deed; (3) Lawrence violated the Trust's no-contest clause by challenging, without probable cause, the Trustees' sale of the farmland to Dennis; (4) Lawrence's violation of the no-contest clause required his disinheritance; and (5) Lawrence was not entitled to attorney fees and costs under K.S.A. 58a-1004. The Trustees cross-appeal from the district court's determination of the effective date of Lawrence's disinheritance and from the court's conclusion that they acted in bad faith by failing to provide Lawrence with an adequate accounting before being ordered to do so by the court.


ISSUES: Trusts


HELD: Court held the district court reasonably interpreted ambiguous Trust provisions as not requiring the Trust's immediate termination upon Arthur's death. However, Court concluded the Trustees lacked authority to sell the farm to Dennis under a contract for deed that exceeded the 3-year period expressly provided by the Trust. However, Court declined to set aside the sale. Instead, because the Trustees' execution of the contract for deed violated the terms of the Trust, Lawrence had probable cause to challenge the Trustees' sale of the farm to Dennis under the terms set forth in that contract. Court reversed both the district court's ruling regarding the Trustees' authority to finance the sale of the farm as well as its enforcement of the no-contest clause against Lawrence and remanded to the district court for further proceedings necessary, if any, to effectuate our rulings and for consideration of Lawrence's claim for attorney fees and costs. Court held the remand rendered the cross-appeal moot.


DISSENT IN PART: Justice Biles dissented in part. Justice Biles would hold the Trustees completed a purchase by reducing what was a farmland asset to a contract for ongoing installment payments. The Trust did not prevent the transactions and Justice Biles would affirm on that basis.


STATUTES: K.S.A. 16-207(b); K.S.A. 20-3017; K.S.A. 58a-112, -410(a), -813, -1004; and K.S.A. 79-3101

Kansas Supreme Court – Criminal

State v. Herbel
Marion District Court – Affirmed
No. 103,558 – April 5, 2013


FACTS: On appeal from Jessica’s Law convictions for rape and aggravated indecent liberties with a child, Herbel claimed: (1) district court violated Herbel’s constitutional and statutory rights when it replayed Herbel’s recorded statement to deliberating jury in the courtroom but outside Herbel’s presence; (2) presence of comfort person on stand alongside child victim violated Herbel’s right of confrontation, and was error where district court made no finding that victim needed a comfort person; (3) older stock PIK Crim. 3d 52.02 instruction on reasonable doubt given to the jury was legally inappropriate. Thirteen days before oral argument, Herbel filed three two-page letters per Supreme Court Rule 6.09 in support of supplemental brief regarding reasonable doubt instruction.


ISSUES: (1) Playback of recorded video – right to be present at critical stage of trial, (2) presence of comfort person, (3) reasonable doubt jury instruction, and (4) Supreme Court Rule 6.09


HELD: K.S.A. 22-3420(3) was violated by Herbel’s presumed absence where record does not affirmatively specify presence of Herbel or his counsel when recorded statements were replayed for jury. Under facts of case, where both constitutional and nonconstitutional error clearly arose from very same acts and omissions, analysis for constitutional error is first applied. After reviewing factors in State v. McGinnes, 266 Kan. 121 (1998), and considering overall standard of review or determining magnitude of constitutional error as articulated in State v. Ward, 292 Kan. 541 (2011), error in replaying the recorded excerpts was harmless.


Herbel repeatedly failed to raise or contest issue of comfort person’s presence to trial court, and trial court not required to raise issue sua sponte. Issue cannot be raised for first time on appeal.


No error in giving a reasonable doubt jury instruction that was legally appropriate, even if not the preferred instruction. Agreement stated with rationale and holding in State v. Beck, 32 Kan. App. 2d 784 (2004).


Letters filed pursuant to Supreme Court Rule 6.09 were improper and not considered. Combined length of letter, plus various arguments made and older legal authorities cited in each, could easily have been included in Herbel’s supplemental brief.


STATUTES: K.S.A. 21-3501(1), -4643; K.S.A. 22-3405, -3414(3), -3417, -3420(3), -3502(a), -3601(b)(1); and K.S.A. 60-252, -261, -404, -1507



State v. Lawson
Leavenworth District Court – Reversed and remanded
No. 103,509 – April 5, 2013

FACTS: Lawson convicted of aggravated criminal sodomy of child less than 14 years of age. On appeal he raised three sentencing issues and claim that his right to counsel under federal and state constitutions was violated when he was interrogated without his attorney being present and the resulting statements were admitted at trial when trial court denied motion to suppress.


ISSUES: Right to assistance of counsel, K.S.A. 22-4503


HELD: Police initiated its polygraph examination and interview of Lawson the day after he asserted his right to counsel when he submitted application for court-appointed counsel at first appearance. After a statutory right to counsel has attached, the defendant’s uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda waiver form, signed by the defendant during a police-initiated custodial interrogation, is not a valid waiver of a defendant’s entitlement to assistance of counsel under K.S.A. 22-4503. District court erred in refusing to suppress the Lawson’s uncounseled statement. Lawson’s convictions are reversed and remanded for new trial. Sentencing issues not addressed.


Court also discusses right to counsel provisions in Kansas and U.S. constitutions after Montejo v. Louisiana, 556 U.S. 778 (2009), overruled federal rule in Michigan v. Jackson, 475 U.S. 625 (1986).


CONCURRING: Nuss, CJ., Luckert and Biles, JJ., concur in the result.


STATUTES: K.S.A. 21-3506(a)(1), -4643(a)(1)(D); K.S.A. 22-3426, -3426(a), -3426(e), -3717(b)(2), -4503, -4503(a)


State v. Moses
Wyandotte District Court – Affirmed
No. 105,991 – April 5, 2013


FACTS: Moses convicted on 1992 guilty plea to first-degree murder and aggravated robbery. In 2004, after unsuccessful habeas petition and unsuccessful motion to correct illegal sentence, Moses filed motion to withdraw his pleas because district did not advise him of constitutional rights in open court. Kansas Supreme Court affirmed district court’s denial of that motion. 280 Kan. 939 (2006) (Moses I). Four years later, Moses filed second motion to withdraw pleas, arguing appointed counsel in Moses I was ineffective and pleas not voluntary. District court summarily denied the motion. Moses appealed.


ISSUES: Timely filing of motion to withdraw plea


HELD: Second motion to withdraw pleas was untimely filed and procedurally barred. One year filing period required by K.S.A. 22-3210 began running for preexisting claims on effective date of that statute, April 16, 2009. Moses filed his second motion to withdraw pleas on May 20, 2010, and made no showing of excusable neglect for his untimely filing.


STATUTES: K.S.A. 2012 Supp. 22-3210(d)(2), -3210(e)(1); K.S.A. 2009 Supp. 22-3210(1)(1), -3210(e)(2); K.S.A. 22-3210, -3504, -3601(b); K.S.A. 60-1507; and K.S.A. 2004 Supp. 22-3210(a)(3), -3210(e)(2)

Kansas Court of Appeals – Civil

NO. 108,108 – APRIL 5, 2013


FACTS: M.S., the father of the minor child A.E.S., appeals from an order entered by the District Court of Douglas County granting temporary custody of A.E.S. to Social and Rehabilitation Services (SRS). M.S. argues that K.S.A. 38-2243(f)(3), which allows a court to enter an order of temporary custody in a child in need of care (CINC) case, is unconstitutionally vague and overbroad. M.S. also argues that the evidence was insufficient to support the district court's findings and orders. SRS filed an application for an ex parte order of protective custody for A.E.S., a minor child born in 1998. The district court conducted a temporary custody hearing and found probable cause existed to believe the health and welfare of A.E.S. may be endangered without further care pending a formal CINC hearing. The court placed A.E.S. in the temporary custody of SRS pending a formal CINC hearing which was scheduled for April 24, 2012. M.S. filed a timely appeal from the order of temporary custody. A.E.S. was adjudicated as a CINC and was specifically ordered to remain in the custody of SRS. The court took some dispositional evidence and continued the dispositional hearing to September 28, 2012, due to time constraints. On September 28, 2012, the parents of A.E.S., their attorneys, the GAL, and the assistant district attorney appeared and requested the court approve an agreed order of disposition. An agreed order set forth that the father, M.S., supports the agreement and participated in its development through his attorney. The agreed order provided that custody of A.E.S. "shall remain vested with the Secretary [of SRS]," and further determined that "[r]eturning the child to a parental home on a full-time basis is contrary to the child's welfare." The detailed journal entry set forth the terms and conditions that the parents would have to meet in order to reintegrate the family. A permanency hearing was scheduled for February 11, 2013.


ISSUES: Child in need of care


HELD: Court held that M.S.’s appeal of the temporary custody order is moot. However, the Court retained the appeal because by the time an appeal of a temporary order reaches the Court, it would likely be moot and it is a matter of public importance. Court held that K.S.A. 38-2243(f)(3) is not unconstitutionally vague because it gives sufficient warning of prohibited conduct under common understanding and provides an adequate safeguard against arbitrary enforcement. Court also held the statute was not overbroad because a common-sense reading of the statute requires reasonable efforts to maintain the family unit or the existence of an emergency prior to entry of an order removing a child from parental custody.


STATUTES: K.S.A. 21-3608; and K.S.A. 38-2201, -2242, -2243(f)(3), -2251, -2273

Kansas Court of Appeals – Criminal

NO. 101,067 – APRIL 5, 2013


FACTS: Gallardo was convicted of unlawful sexual relations and the district court required him to register as a sex offender after finding the crime fell under K.S.A. 22-4902(c)(14), as it was sexually motivated. Gallardo appealed to the Court of Appeals arguing the district court erred in requiring him to register as a sex offender. Gallardo claimed the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was not applicable to the crime of unlawful sexual relations as it pertains to two consenting adults and the district court erred in determining his crime fell under the "catch-all provision" of K.S.A. 22-4902(c)(14). This court rejected Gallardo's claim. In doing so, the court first noted that Gallardo's crime is not among those specifically listed at K.S.A. 22-4902(c)(1)-(13)—a list of crimes deemed "'sexually violent.'" But then held there were sufficient findings to support the district court's determination that Gallardo's crime was sexually motivated. The Supreme Court ultimately granted review in Gallardo's case and remanded it to this court for reconsideration in light of Coman, 294 Kan. 84—a case decided in March 2012.


ISSUES: (1) Sexual offender registration and (2) sexually motivated crimes


HELD: Court held that based on the holding in Coman, this court must hold the district court erred in requiring Gallardo to register as a sex offender under the catch-all provision at K.S.A. 22-4902(c)(14). Gallardo was convicted of unlawful sexual relations in violation of K.S.A. 21-3520(a)(1). At that time, K.S.A. 22-4902(a)(5)(F) defined any person convicted of unlawful sexual relations (as defined in K.S.A. 21-3520) as a sex offender as long as one of the parties involved was less than 18 years of age. It is undisputed that neither of the parties involved in Gallardo's case was under age 18. Furthermore, K.S.A. 22-4902(c) did not include the crime of unlawful sexual relations in its list of sexually violent crimes. Under Coman, then, the district court erred in determining Gallardo's crime fell under the catch-all provision of the statute and requiring him to register as a sex offender. Following the directions established by the Kansas Supreme Court in Coman, Court reversed the district court's finding that Gallardo must register as a sex offender under K.S.A. 22-4902(c)(14) and vacated that portion of his sentence.


STATUTES: K.S.A. 21-3520(a)(1); and K.S.A. 22-4901, -4902(a)(5)(F), (c)(14)

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