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August 10, 2018 Digests

Posted By Patti Van Slyke, Monday, August 13, 2018

Kansas Supreme Court 

Civil

 

NEGLIGENCE
MANLEY V. HALLBAUER
LABETTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,531—AUGUST 10, 2018

FACTS: Manley died in a car accident which occurred at the intersection of two gravel roads. Neither road had a traffic sign. A law enforcement investigation concluded that vegetation on one of the corners likely created a blind spot, making it impossible for either driver to see approaching traffic. The Hallbauers owned the property with the trees, which had been there since before they purchased the lot. Manley's estate's wrongful death suit included the Hallbauers as defendants. The Hallbauers moved for summary judgment, claiming they could not be held liable for failing to remove trees or other vegetation. The district court granted that motion and Manley's estate appealed. The Court of Appeals turned to the Restatement of Torts (Second) in concluding that the Hallbauers had no duty to clear vegetation from their lot. The estate's petition for review was granted.

ISSUE: (1) Existence of duty

HELD: Kansas law reflects a public policy not to impose tort liability on a landowner for natural obstructions on the landowner's property. Because it is not necessary to do so, the court takes no position at this time on whether the Restatement (Third) should be used in Kansas. There is no justification to depart from the established rule that a landowner owes no duty in a case such as this. It is especially true when, as was the case here, the landscape was rural.

STATUTES: No statutes cited

 

Criminal

 

criminal lawcriminal procedureprobationstatutes
state v. dooley
mcpherson district court—reversed and remanded
court of appeals—reversed
No. 111,554—august 10, 2018

FACTS:  Finding Dooley admitted to drug usage, failed to report to Oxford House, failed to report to Dodge City Community Corrections and absconded, district court revoked Dooley’s probation and ordered him to serve underlying prison term. Dooley appealed, claiming district court failed to base its decision on a statutory exception that would have authorized bypassing the intermediate probation violation sanctions mandated by K.S.A. 2013 Supp. 22-3716 before completely revoking probation. Court of Appeals affirmed in unpublished opinion, noting the district court accepted Dooley’s stipulation that he had absconded, and journal entry stated revocation was based in part on that basis.  Review granted.    

ISSUE:  Revocation of probation

HELD:  Changes in the dispositional alternatives for a probation violation after the 2013 amendments to K.S.A. 22-3716 are discussed. Court rejects State’s argument, raised for first time on appeal, that the 2013 amendments are not applicable in this case. Under the 2013 amendments, Dooley had received a first-step intermediate sanction so the next graduated intermediate sanction should have been a prison sanction of 120 or 180 days unless a statutory bypass exception existed. To invoke the bypass exception under K.S.A. 2013 Supp. 22-3716(c)(8), State must show and district court must find that the probation violator engaged in some course of action (or inaction) with the conscious intent to hide from or otherwise evade the legal process. Here, the revocation hearing transcript does not confirm the district court made a specific finding that Dooley absconded, and the journal entry was ambiguous on this point. The meaning of “absconds from supervision” is adopted, citing Oregon Supreme Court’s efforts as persuasive. District court’s ruling that Dooley violated the terms of his probation is affirmed. The revocation of probation and imposition of the underlying sentence is reversed and remanded for district court to either impose an intermediate sanction under K.S.A. 2013 Supp. 22-3716(c)(1)(C) or (D), or to invoke the bypass provision of K.S.A. 2013 Supp. 22-3716(c)(8) based on a finding, supported by substantial competent evidence, that Dooley absconded from supervision.  

STATUTE:  K.S.A. 2013 Supp. 22-3716, -3716)b), -3716(b)(4), -3716(c)1), -3716(c)(1)(B)-(E), -3716(c)(8), -3716(c)(9)

 

DUI—STATUTORY INTERPRETATION
STATE V. FISHER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,277—AUGUST 10, 2018

FACTS: Fisher was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Fisher's counsel filed a motion to dismiss, arguing that the prior conviction could not be used because the ordinance is broader than the state statute. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A.  8-1485

 

appeals—criminal law—criminal procedure—statutes
state v. fitzgerald
cowley district court—reversed; court of appeals—affirmed
No. 112,492—august 10, 2018

FACTS:  Fitzgerald was convicted of aggravated criminal sodomy of a child. On appeal he claimed that insufficient evidence supported the charged offense under K.S.A. 2017 Supp. 21-5504(b)(2) of causing the victim to engage in sodomy ”with another person.” Relying on State v. Labore, 303 Kan. 1 (2015), and State v. Dickson, 275 Kan. 683 (2003), Court of Appeals reversed in unpublished opinion, finding State proved aggravated sodomy of the victim by the defendant [K.S.A. 2017 Supp. 21-5504(b)(1)], but failed to present evidence of the charged offense which was causing the victim to engage in sodomy with someone else. State’s petition for review granted. Parties were asked to supplement briefs to address State v. Dunn, 304 Kan. 773 (2016), which reformed the analysis on charging document error.

ISSUES:  Sufficient evidence of the crime charged

HELD:  Charging document in this case does not suffer from any of the infirmities identified in Dunn. As in Labore, the issue is the evidence supporting the verdict on the crime charged. No overruling of holding in Dickson that “any person” in identically worded predecessor statute to K.S.A. 2017 Supp. 21-5504(b)(2) means “a person other than the defendant.” State charged Fitzgerald under subsection (b)(2), but proved aggravated criminal sodomy under subsection (b)(1). State presented insufficient evidence of the charged offense. Fitzgerald’s conviction is reversed. 

CONCURRENCE (Biles, J.):  Concurs in the result.

CONCURRENCE (Lukart, J., joined by Nuss, C.J. and Rosen, J.):  Explains reasons for not departing from Dickson, relying on rules of statutory interpretation and rules of statutory construction of the ambiguity in K.S.A. 2017 21-5504(b).

DISSENT (Stegall, J.):  Would overrule Dickson, and criticizes the statutory interpretation in that case. Instead, argues the use of “any person” in K.S.A. 2017 Supp. 21-5504(b)(2) includes rather than excludes Fitzgerald, thus sufficient evidence supports his conviction. 

STATUTES:  K.S.A. 2017 Supp. 21-5504(b), -5504(b)(1), -5504(b)(2); K.S.A. 22-3301(a), -3301(b)

 

Appeals—constitutional law—criminal procedure—statutes
state v. fleming
johnson district court—affirmed; court of appeals—affirmed
No. 125,449—august 10, 2018

FACTS:  Jury found Fleming guilty of aggravated robbery and aggravated burglary, but not guilty of theft of a television, PlayStation, laptop computer, and watches. Fleming appealed, claiming in part error in the aggravated robbery jury instruction which referred to the taking of “property” without specifying the stolen property alleged in the complaint—a cell phone and wallet. In unpublished opinion, Court of Appeals held that Fleming had not preserved that issue because he invited the error by proposing the instruction. Review granted.

ISSUE:  Invited error 

HELD:  Invited error precludes review of Fleming’s alleged instruction error. Invited-error doctrine is reviewed, and parties in future cases are urged to more deeply explore whether Kansas cases follow or should follow concepts of estoppel or waiver because application of the doctrine may vary depending on which doctrinal route applies. Clear-error test imposed by K.S.A. 22-3414(3) does not preclude application of the invited-error doctrine to claimed errors in a jury instruction. Pretrial requests may invite error and did so here, where the language difference between the complaint and the proposed instruction was as obvious before trial as after. Mere fact that Fleming raises constitutional issues regarding the instruction’s deviation from the charging document does not prevent application of the invited-error doctrine. There is no bright-line rule for application of the invited-error doctrine. An appellant’s actions in causing an alleged error and the context in which those actions occurred must be carefully reviewed in deciding whether to apply the doctrine. Such analysis is appropriate in this and future cases to ensure application of the doctrine is limited to cases in which the complaining party truly invites error. 

STATUTE:  K.S.A. 22-3414(3), 60-404, -1507

 

DUI—STATUTORY INTERPRETATION
STATE V. GENSLER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 112,523—AUGUST 10, 2018

FACTS: Gensler had two prior DUI convictions when he was charged with a third DUI. The prior convictions were obtained under a Wichita municipal ordinance. Prior to trial, Gensler objected to the inclusion of the municipal convictions because, he claimed, the ordinance in effect at the time of his conviction prohibited a broader range of conduct than the state DUI statute. Gensler's objection was overruled, and he was convicted after a bench trial on stipulated facts. Gensler also objected to the two prior convictions being used to enhance his criminal history score. The objection was overruled. The Court of Appeals found that Gensler was appropriately convicted because the documents from his prior convictions showed that he was cited for operating a motor vehicle while under the influence. Gensler's petition for review was granted.

ISSUE: (1) Classification of prior convictions

HELD: The state DUI statute is ambiguous in what  t allows to count as a prior conviction. Under the version of the statute as it existed at the time of Gensler's conviction, the municipal ordinance could not criminalize a broader range of acts than are criminalized under the state DUI statute. The Wichita ordinance defined "vehicle" much more broadly than the state statute, in a way that cannot be treated as alternative elements. Because the elements of the ordinance are not the same as or narrower than the statute, Gensler's prior convictions should not have been used in this DUI prosecution.

DISSENT: (Stegall, J.) K.S.A. 2017 Supp. 8-1567(i)(1) is not ambiguous. The Legislature clearly intended to allow consideration of a prior conviction which arose from an ordinance such as the one in place in Wichita.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A. 8-1485, -1567(j)

 

capital sentences—constitutional law
criminal procedure—juries—statutes
state v. lloyd
sedgwick district court—affirmed
No. 115,834—august 10, 2018

FACTS:  Lloyd was convicted of first-degree premeditated murder, felony murder, and abuse of an infant victim. Hard 50 sentence imposed without a jury. Convictions affirmed on direct appeal, but remand ordered for resentencing in compliance with Alleyne v. United States, 570 U.S. 99 (2013). State v. Lloyd, 299 Kan. 620 (2014). At resentencing, same evidence presented but in part through prior testimony of a key witness (Loudermilk) who was unavailable for the resentencing proceeding. Hard 50 sentence again imposed, based on jury’s finding that Lloyd’s 2007 guilty plea to aggravated assault for shooting Loudermilk in the foot was a prior  felony resulting in great bodily harm, and that Lloyd committed the instant crime in an especially heinous, atrocious, or cruel manner. Lloyd appealed, claiming district court erred by allowing Loudermilk’s coerced pretrial statements and testimony from the first trial. Lloyd also claimed the State presented insufficient evidence that he had a prior felony conviction for a crime in which he inflicted great bodily harm because the crime of aggravated assault contains no such essential legal element. 

ISSUES:  (1) Coerced testimony, (2) sufficient evidence of prior conviction as aggravating factor

HELD:  United States Supreme Court case has not addressed whether testimony of a coerced witness may be used against a defendant at trial, but Kansas Supreme Court has held that basing a conviction in whole or in part on the coerced statement of a witness may deprive a criminal defendant of due process. State v. Daniels, 278 Kan. 53 (2004). Assuming without deciding the admission of Loudermilk’s transcribed testimony was erroneous, any such error was harmless under facts in this case. 

            Nothing in K.S.A. 2017 Supp. 21-6624(a) requires that bodily harm be an element of the felony serving as an aggravating factor. Jury had sufficient evidence to enable it to reach the reasonable conclusion that Lloyd committed a felony that inflicted great bodily harm or disfigurement on Loudermilk. 

STATUTE:  K.S.A. 2017 Supp. 21-6620(e) -6620(e)(3), 6624(A), -6624(f)

 

DUI—STATUTORY INTERPRETATION
STATE V. MEARS
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,278—AUGUST 10, 2018

FACTS: Mears was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Mears' counsel  filed a motion to dismiss, arguing that a Wichita municipal conviction could not serve as the basis for a felony DUI conviction. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A. 2016 Supp. 8-1567(b); K.S.A.  8-1485

 

DUI—STATUTORY INTERPRETATION
STATE V. SCHRADER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,196—AUGUST 10, 2018

FACTS: Schrader was charged with five counts including involuntary manslaughter while driving under the influence. After entering a no contest plea, Schrader objected to the inclusion in his criminal history score of a prior felony under a Wichita municipal DUI ordinance. The court overruled the objection and Schrader's sentence included the disputed municipal conviction. On appeal, the Court of Appeals agreed that the municipal ordinance's breadth precluded its use as a person felony in Schrader's criminal history. The State's petition for review was granted.

ISSUES: (1) Use of prior conviction in criminal history

HELD: Prior municipal convictions may be used to enhance sentencing only if the ordinances are the same as, or narrower than, the state DUI statutes. The comparison of the ordinance and the statutes is driven by their elements. The Wichita ordinance under examination here defines "vehicle" more broadly than the state statute. Because this results in the ordinance criminalizing more behavior than the statute, Schrader's prior conviction under that ordinance cannot be used to enhance his sentence here.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A.  2014 Supp. 21-5405(a)(3), -6811(c)(2)

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