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October 27, 2017 Digests

Posted By Administration, Tuesday, October 31, 2017

Kansas Supreme Court


NO. 113,104—OCTOBER 27, 2017

FACTS: The Chicago Pacific Railway Company operated on the disputed property beginning in 1886. In 1985, Chicago Pacific quitclaimed its interests in the property to Dirt & Gravel, Inc. Jenkins acquired her ownership interest via quitclaim deed from Dirt & Gravel. Jenkins later sued to quiet title, asking for a determination that she was a fee simple owner. Jenkins alternately claimed that she acquired fee title through the quitclaim deed or that she acquired title through adverse possession. Chicago Pacific moved for summary judgment, claiming that the 1886 deed only allowed a right of way that would revert to abutting landowners when the property was abandoned by the railroad. The district court granted the motion, finding that Jenkins could not have acquired any title through a quitclaim deed. The district court granted Jenkins' K.S.A. 60-254(b) motion in order to allow an immediate appeal on the question of ownership.

ISSUES: (1) Jurisdiction; (2) real property acquisition from a railroad; (3) the language of the 1886 deed

HELD: Jenkins filed her notice of appeal before the district court made the proper K.S.A. 2016 Supp. 60-254(b) certification. But subsequent certification cured this defect, rendering her notice of appeal timely. When a railroad acquires land for a right of way it generally obtains only an easement. When that easement is abandoned, the estate reverts to the original land owners. In this case, the 1886 deed described the subject property in a manner consistent with a right of way.

STATUTE: K.S.A. 2016 Supp. 60-254(b), -2102, -2102(a), -2102(b), -2102(c)


criminal procedure—evidence—statutes
state v. gray
harvey district court—reversed on issues subject to review
court of appeals—reversed on issues subject to review
112,035—october 27, 2017

FACTS: Officer followed and eventually stopped Gray’s car for failing to use turn signal. Gray filed motion to suppress evidence obtained in search of car, alleging the officer violated the biased-based policing statute, K.S.A. 2014 Supp. 22-4609 et seq.  District court denied the motion, and in bench trial convicted Gray of charged offenses. Gray appealed, in part challenging the denial of his motion to suppress, and challenging the district court’s jurisdiction to convict Gray of felony possession of marijuana. Court of Appeals reversed or downgraded some conviction offenses but affirmed the district court’s suppression ruling, finding substantial competent evidence supported the determination that Gray was not actually stopped because of his race. 51 Kan.App.2d 1085 (2015). Review granted, in part, on this issue.   

ISSUE: Remedy for violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609

HELD: Issue of first impression regarding test to be applied under Kansas’ biased-based policing statutes, the availability of a suppression remedy, and the test for determining whether a biased-based policing violation occurred. This appeal involves statutory, rather than constitutional, consideration. K.S.A. 22-3216(1), which permits a defendant aggrieved by an unlawful search and seizure to move to suppress evidence, provides a suppression remedy for violation of K.S.A. 2014 Supp. 22-4606 et seq. When considering such a motion, the district judge must examine more than the ultimate justification of a traffic stop and must consider wether the officer unreasonably used race or any other characteristic listed in K.S.A. 22-4606(d) in deciding to initiate the enforcement action. Unable to determine from the record in this case whether the district judge applied the correct test and evaluated whether the officer unreasonably used raced in deciding to initiate the traffic stop. Convictions reversed and remanded for further action in accord with this decision.   

STATUTES: K.S.A. 2014 Supp. 22-4606 et seq., -4606(d), -4607, -4609, -4609(d); K.S.A. 8-1548, 20-3018(b), 22-3216, -3216(1), -3216(2), -4609



appeals—criminal procedure—jury instructions—jurisdiction 
state v. saylEr
kingman district court—affirmed; court of appeals—affirmed
11,0048—october 27, 2017

FACTS: Sayler convicted in Kingman county of failing to register under the Kansas Offender Registration Act (KORA). On appeal he argued for first time that the trial court lacked subject matter jurisdiction over the prosecution because the charging document failed to allege he resided in Kingman County, and similarly, that the jury instructions permitted the jury to convict him without finding this essential element of the offense.  In unpublished opinion, the Court of Appeals rejected both arguments and affirmed the conviction. Review granted on both issues. Thereafter, State v. Dunn, 304 Kan. 773 (2016), significantly changed the law on charging document sufficiency, holding the sufficiency of the charging document does not implicate the state courts’ subject matter jurisdiction in criminal cases.

ISSUES: (1) Sufficiency of the charging document, (2) jury instructions

HELD: Issue considered for first time on appeal because the appeal straddled the period before and after Dunn and because parties were expressly asked to brief Dunn’s impact on the merits. The charging document in this case was sufficient under Dunn because it alleged facts that, if proved beyond a reasonable doubt, would constitute the crime of failing to register under KORA.

No error found in the jury instructions.

STATUTES: K.S.A. 2016 Supp. 21-5108(a), 22-4905(b); K.S.A. 2011 Supp. 22-4903; K.S.A. 20-3018(b), 22-3201(f), 22-4901 et seq., 60-2101(b)



constitutional law—criminal procedure—crimes and punishment—jurisdiction
state v. scuderi
reno district court—affirmed
court of appeals—affirmed on issues subject to review
107,114—october 27, 2017

FACTS: In unpublished opinion, Court of Appeals affirmed Scuderi’s two convictions and sentences for failing to register under the Kansas Offender Registration Act. Review granted on his claims that: (1) the registration requirements are ex post facto punishment for a drug offense committed before registration was required; (2) his criminal history was unconstitutionally used to calculate the sentences imposed; and (3) the complaint initiating one of his convictions was deficient because it failed to allege he resided in the county where the State alleged he failed to register.

ISSUES: (1) Ex post facto challenge, (2) criminal history score in sentencing, (3) sufficiency of the charging document

HELD: Scuderi’s ex post fact challenge is foreclosed by State v. Shaylor, 306 Kan. 1049 (2017)(retroactive imposition of registration requirement was not punishment). Scuderi failed to create a factual record in support of his claim that registration impacts drug offenders differently than sex offenders by making reintegration into society more difficult.

Kansas Supreme Court has repeatedly rejected Scuderi’s Apprendi claim.

Scuderi’s challenge to the sufficiency of the complaint was defeated by State v. Sayler, 306 Kan. __ (2017)(decided this same date), applying State v. Dunn, 304 Kan. 773 (2016).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her dissents in State v. Meredith, 306 Kan. 906 (2017), and State v. Huey, 306 Kan. 1005 (2017), she dissented from majority’s decision in this case on the ex post facto challenge.

STATUTE: K.S.A. 20-3018(b), 22-4901 et seq., -4904, 60-2101(b), 65-4161


Kansas Court of Appeals



NO. 116,415—OCTOBER 27, 2017

FACTS: Moulden transferred title to two classic cars to his daughter, Hope Hundley, in 2005. The cars were stored in Moulden's garage when she wasn't using them, and they were in Moulden's garage when Hope died in 2012. Hope's widower, Dustin, transferred the car titles to his name in 2013. But when Dustin attempted to take possession of the cars, Moulden asked the court to determine the rightful owner of the cars. He claimed that he never meant for Hope to be a full owner of the cars. When filing suit, Moulden also sought the return of furniture that he loaned to Hope. Dustin countersued, claiming that Moulden waited too long to make any such claim and asking that he be declared the owner of the disputed furniture. The district court ruled that Hope – and subsequently Dustin – owned the cars but that Moulden owned the furniture.

ISSUE: Property ownership

HELD: K.S.A. 59-2239 operates as a special statute of limitations for claims against an estate. Moulden did not petition to have the cars returned within the 6 months allowed by the statute. Despite Moulden's claims to the contrary, K.S.A. 59-2239 applies to the facts of this case. Mere possession of the cars did not change their ownership. A two-year statute of limitations applied to Moulden's attempt to reclaim the furniture. Hope used the furniture under a bailment, with Moulden being the bailor. After Hope died, Dustin continued to possess the property under a constructive bailment. Because the bailment existed, the statute of limitations clock did not begin to run until Dustin refused to return the furniture to Moulden. Moulden's suit was not time-barred, and the district court's ruling on ownership was correct.

STATUTE: K.S.A. 8-126(cc), 59-2239, 60-513(a), -513(b) 





constitutional law—crimes and punishment—evidence—fourth amendment
state v. carr
shawnee district court—reversed and remanded
116,228 - october 27, 2017

FACTS: Officer stopped vehicle he associated with Carr, a suspect in a drive-by shooting. Officers found the driver of the car was Carr’s aunt, and Carr was a passenger. Officers arrested and searched Carr, finding a car key, a cell phone, and cash. Marijuana was found in Carr’s pocket during a subsequent search. Without a search warrant, police used Carr’s cell phone to determine its phone number. Then with search warrant, obtained phone records from cell phone provider to determine cell-tower information to locate Carr near the scene of the shooting. Carr filed motion to suppress all evidence obtained in an unlawful car stop. District court denied the motion, finding the stop was lawful. District court also found the officers unlawfully searched the phone, but police would have inevitably discovered the cell phone number by lawful means and used it to get a search warrant. Carr appealed the denial of his motion to suppress, and the admission of testimony by a cell phone provider employee about Carr’s cell phone records.

ISSUES: (1) Reasonable suspicion for vehicle stop, (2) suppression of cell phone records, (3) suppression of marijuana, (3) suppression of car key, (4) cell phone records

HELD: Officers lacked reasonable suspicion to believe Carr was in the vehicle they stopped. To stop a vehicle based on suspicion that a person subject to police investigatory detention is in it, an officer must have specific and articulable facts that the person is in the vehicle. If officer knows only that a relative of the suspect owns a similar car that had at some point been seen at the suspect’s residence, the officer does not have specific and articulable facts to support reasonable suspicion that the suspect is in the vehicle at the time. The key, the cash, and the marijuana should not have been admitted as evidence at trial.

Carr’s cell phone was obtained through an unlawful car stop, and police then used Carr’s cell phone number to obtain relevant phone records. Under facts in case, however, district court did not err in determining the cell phone records were admissible under the inevitable-discovery exception to the exclusionary rule.

Carr’s conviction for possession of marijuana is reversed because the only evidence supporting this conviction stemmed from the unlawful stop.

Carr was connected to a vehicle used in a drive-by shooting in part because officers found car key in his pocket during an unlawful car stop the day after the shooting. Based on evidence in the case, court cannot say beyond a reasonable doubt that the admission of the key and other inadmissible evidence obtained through the unlawful car stop had no effect on the jury’s verdict. Carr’s conviction for aggravated battery was reversed and remanded for a new trial.

District court did not err in admitting cell phone records maintained in the ordinary course of business by a cell phone provider.  

STATUTES: K.S.A. 2016 Supp. 60-460(m); K.S.A. 22-2402(1), -3216(2)




constitutional law—crimes and punishment—Fifth Amendment—evidence—expert testimony—jury instructions—statutes
state v claerhout
johnson district court—affirmed
115,227—october 27, 2017

FACTS: Claerhout caused car crash while driving under the influence (DUI), which resulted in the death of another motorist. He was charged with reckless second-degree murder, or alternatively, involuntary manslaughter. Prior to jury trial he conceded guilt to involuntary manslaughter, and unsuccessfully challenged the admission of: expert witness testimony; statements Claerhout made to officers at the scene without Miranda warnings; and his prior DUI diversion agreement. District court also instructed jury over Claerhout’s objection that voluntary intoxication was not a defense agains the crime of reckless second-degree murder. On appeal Claerhout argued the district court erred by: (1) admitting Claerhout’s prior DUI diversion agreement; (2) allowing police officer to testify as expert accident reconstructionist; (3) not suppressing statements made to an officer following the crash; and (4) not granting request for instruction on voluntary intoxication as a defense to reckless second-degree murder.

ISSUES: (1) Admission of prior DUI diversion agreement, (2) expert testimony, (3) admission of statements to officer, (4) jury instruction on voluntary intoxication

HELD: No abuse of district court’s discretion in admitting the prior DUI diversion agreement for the stated purpose of showing Claerhout’s state of mind. This evidence was relevant to prove that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Probative value of the exhibit outweighed its prejudicial effect where the court limited the purpose for which it could be used, and where Claerhout was permitted, but failed, to raise additional information about the diversion, including the underlying circumstances which did not include erratic driving. Even if abuse of the district court’s discretion is assumed, the error was harmless. Statutory rather than constitutional analysis applies to the erroneous admission of 60-455 evidence, and overwhelming evidence supports Claerhout’s conviction.

Any error resulting from trial court’s determination that the officer was qualified to testify as an expert accident reconstructionist was harmless under facts in this case.

Any error resulting from the admission of statements Claerhout made at the scene of the crash about his previous consumption of alcohol was harmless under facts in this case.

District court appropriately instructed jury that voluntary intoxication is not a defense to the charged crimes. Reckless second-degree murder is not a specific intent crime, approving the rationale in State v. Spicer, 30 Kan.App.2d 317 (2002), and two unpublished opinions. Claerhout’s reliance on State v. Kershaw, 302 Kan. 772 (2015), is criticized.

DISSENT (Green, J.): The admission of Claerhout’s previous DUI diversion agreement was error, and unconstitutionally infringed on his right to a fair trial. Majority’s decision that this evidence was relevant conflicts with safeguards mandated in State v. Gunby, 282 Kan. 39 (2006), regarding the admission of 60-455 evidence, and the holding in State v. Boggs, 287 Kan. 298 (2008). Claerhout’s previous DUI was of no legal relevance as to whether his conduct showed an extremely reckless behavior. The probative value of this evidence was substantially outweighed by risk of prejudice, confusion, and distraction on that issue where the admission of this evidence shattered Claerhout’s confession and avoidance defense, and the prosecutor’s closing and rebuttal arguments improperly revolved around the propensity inference from the diversion agreement.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5205(b), -5403(a)(2), -5405(a), 60-261, -455, -456(b); K.S.A. 2014 Supp. 21-5403(a)(2), -5403(a)(3); K.S.A. 8-1566, 60-455

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