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June 28 and July 1, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

Kansas constitution; School finance
Gannon v. State
Shawnee District District Court – Order affirming compliance
No. 113,267 – June 28, 2016

FACTS: In May 2016, the Kansas Supreme Court held that the legislature had not cured the inequities in the local option budget (LOB) and supplemental general state aid that had previously been found to exist. In response to that decision, the governor called the legislature into special session for the purposes of addressing this holding. After the legislature passed and the governor signed a new funding formula, the parties filed a Joint Stipulation of Constitutionally Equitable Compliance. The parties jointly asked the court to acknowledge that the legislature satisfied the court's orders regarding the equity of school finance, and that there was no judicial remedy needed.

ISSUE: Whether H.B. 2001 satisfies the court's prior rulings regarding equitable school funding in Kansas

HELD: H.B. 2001's revival of the prior School District Finance and Quality Performance Act, plus full funding, means that the school finance formula for fiscal year 2017 is in compliance with the equity component of Article 6, § 6 of the Kansas Constitution. The court retained jurisdiction to address the adequacy portion of the school finance litigation.

STATUTE: None

Kansas Supreme Court – Criminal

Due process; Mistrial; Prosecutorial misconduct
State v. Corey
Franklin District District Court – Affirmed
Court of Appeals – Affirmed
No. 110,149 – July 1, 2016

FACTS: In 2000, a 16-year-old girl was abducted. Her assailant drove her to a nearby parking lot, fondled her breasts, and masturbated. The assailant threatened to harm the girl if she called the police. She did so anyway, and during the investigation the police were able to obtain partial DNA profiles from various evidence left in her car. The at-the-time unknown DNA profile was entered into an FBI database, but it was not matched to Corey until 2011, who was at that time in federal custody. Corey categorically denied committing the crime. Corey was charged with aggravated kidnapping, attempted rape, criminal threat, and two counts of aggravated sexual battery. He was convicted as charged, but the district court granted an unopposed motion for new trial after it was discovered that a juror had used a cell phone during deliberations to pull up evidence about the case. At the second trial, the victim was unable to identify Corey as her attacker. Corey attacked the reliability of the DNA evidence and noted inconsistencies in the victim's testimony. The Court of Appeals affirmed Corey's convictions, and the Supreme Court accepted his petition for review.

ISSUES: (1) Whether juror misconduct warranted a second trial, (2) Whether the prosecutor misstated either the evidence or the law, requiring a reversal, (3) Whether there was error in ex parte communication with the jury or a lack of clear record about Corey's presence at certain portions of the trial

HELD: At trial, the jury discussed the fact that this was Corey's second trial. It was unclear whether the jury knew that the previous trial resulted in a conviction, and it was agreed that trying to determine the depth of the jury's knowledge would likely cause more harm. Corey requested a mistrial or, in the alternative, a curative jury instruction. The district court denied the motion for mistrial but agreed to give a curative jury instruction. When determining whether a fundamental failure made it impossible to proceed without injustice, a court must assess whether the failure affected a party's rights by altering the outcome of the trial. Any error must be evaluated under the constitutional harmless error standard. Under that standard, any error created by juror misconduct in this case was harmless. The prosecutor misstated the evidence by telling the jury that Corey's DNA was found on the victim's body. But the error was not gross or flagrant or the product of ill will, and there was a significant amount of evidence to support the inference that the DNA was Corey's. And the prosecutor's comments on why the rape was not completed were an accurate statement of the law. The other trial errors alleged by Corey were harmless, primarily in light of the weight of the evidence against Corey.

STATUTES: K.S.A. 2015 Supp. 60-261; K.S.A. 1999 Supp. 21-3301(a); K.S.A. 20-3018(b), 22-3423(1)(c), -3504(1), 60-261, -2101(b), -2105

Kansas Supreme Court – Criminal

Evidence; Statutory interpretation
State v. Darrow
Johnson District District Court – Affirmed
Court of Appeals – Affirmed
No. 109,397 – July 1, 2016

FACTS: Darrow was charged with DUI, third offense, after an officer found her passed out behind the wheel of a running vehicle. Darrow failed field sobriety tests and showed other markers of impairment. Darrow agreed to a bench trial on stipulated facts. The State stipulated that Darrow did not drive to the location where she was found, and Darrow stipulated that she was under the influence to the degree that she was not capable of safely operating a motor vehicle. The agreement ended, though, at the question of whether Darrow's act of "fumbling with the gear shift" constituted "operating or attempting to operate a motor vehicle." At that bench trial, the district court judge made inquiries beyond the written stipulation of facts that was presented. Unfortunately, due to an equipment malfunction the transcript of the bench trial was unavailable. The parties prepared and filed an agreed-upon statement of facts as to the substance of the bench trial hearing. Based on the stipulation at district court, Darrow was found guilty. She appealed to the Court of Appeals, which found that, under the totality of the evidence, Darrow was guilty when she "fumbled with" the car's gear shift. Darrow's petition for review was accepted.

ISSUE: Does "fumbling with" a vehicle gear shift constitute operating or attempting to operate a motor vehicle?

HELD: As used in the DUI statutes, "operate" means "driving" and "attempting to operate" means "attempting to drive." Therefore, Darrow could be convicted only if some evidence – direct or circumstantial – showed that Darrow was attempting to drive the vehicle. And in this case, the circumstantial evidence, when viewed in the light most favorable to the State, provided sufficient evidence to find Darrow guilty.

STATUTES: K.S.A. 2010 Supp. 8-1567(a)(3), -2,128; K.S.A. 1999 Supp. 8-1,128(j)

Kansas Supreme Court – Criminal

Sentencing; Statutory interpretation
State v. Jeffries
Johnson District District Court – Affirmed
No. 113,116 – July 1, 2016

FACTS: In 1987, prior to the enactment of the Kansas Sentencing Guidelines Act (KSGA), Jeffries pled no contest or guilty to multiple counts, including felony murder. He received a controlling prison term of life without the possibility of parole for 30 years. In 2014, Jeffries filed a motion to correct an illegal sentence in which he claimed that the Kansas Supreme Court's decision in State v. Murdock required his sentence to be converted to a guidelines sentence. Because of the severity level of his crimes, Jeffries had previously been told that his sentences did not qualify for conversion. The district court denied Jeffries' motion to correct an illegal sentence, finding that Murdock applied only to out-of-state convictions, and all of Jeffries' relevant criminal history occurred in Kansas. Jeffries appealed.

ISSUE: Whether Murdock allows for the conversion of an indeterminate sentence that is otherwise not convertible

HELD: Murdock is not directly applicable to Jeffries because it applies only to out-of-state convictions, not to mention the fact that it was overruled by the Kansas Supreme Court's holding in State v. Keel. Further, the retroactive application portion of the KSGA does not contain the same ambiguity that was addressed in Murdock. Because Jeffries' sentence remains ineligible for retroactive application of the KSGA it is not illegal, and the district court correctly denied Jeffries' motion to correct an illegal sentence.

STATUTES: K.S.A. 21-4711(e); K.S.A. 21-3427, -4724(a), -4724(b), -4724(c)(1), -4724(c)(4) (Furse 1995)

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