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May 17, 2019 Digests

Posted By Administration, Monday, May 20, 2019

Kansas Supreme Court


NO. 119,270—MAY 17, 2019

FACTS: Bowman was charged with rape, aggravated criminal sodomy, and intimidation of a witness after he allegedly sexually abused his three-year-old granddaughter. At trial, witnesses testified about what the child told them and the tape of a 911 call was introduced. The child was called to testify by closed-circuit television with a comfort aide next to her. But despite repeated prompting, the child would not respond when questioned about whether she would tell the truth, and she would not take the witness oath. When it became apparent that the child was not going to take the oath, the district court asked for guidance on how to address the hearsay issue that was now present. The district court granted the State's motion for mistrial and the jury was dismissed. Bowman later moved to have the case dismissed with prejudice since jeopardy had attached. The district court found that manifest necessity warranted allowing the State to try Bowman for a second time. Bowman sought original review of that decision.

ISSUES: (1) Original jurisdiction; (2) mistrial; (3) double jeopardy

HELD: The court may take jurisdiction over this matter under K.S.A. 60-1501 in order to address the double jeopardy claim. All analysis is based on statutory language rather than constitutional provisions. The child's failure to take the oath made the trial more difficult for the State, but it did not make the trial physically impossible. Jurors could have been instructed to ignore testimony that was now hearsay and jurors knew that counsel's arguments were not evidence. And the prosecutor knew that relying on a young child's testimony could be risky, yet chose to introduce hearsay evidence before attempting to have the child take the oath. In the absence of any statutory authority, the district court judge abused its discretion by granting a mistrial. Jeopardy clearly attached in Bowman's first trial. The child's refusal to take the witness oath did not render a verdict "impossible", as required by the double jeopardy statute, which means that the district court erred by finding that a second trial was permissible. Bowman's criminal case must be dismissed, and he must be released from confinement.

DISSENT: (Luckert, J., joined by Nuss, C.J. and Stegall, J.) The district court did not abuse its discretion by declaring a mistrial. The prosecutor's comments made it impossible for Bowman to receive a fair trial. Because of this fact, a second prosecution is not barred by double jeopardy.

STATUTES: K.S.A. 2018 Supp. 21-5110, -5110(a)(3)(C), -5110(f), 60-1501, -1501(a); K.S.A. 22-3423, -3423(1)(a), -3423(1)(c), 60-418, -460(a), -460(dd)


constitutional law—criminal law—evidence—jury instructions—statutes
state v. macomber
shawnee district court—affirmed
court of appeals—affirmed on issues subject to review
NO. 113,869—may 17, 2019

FACTS: Macomber charged with first-degree murder for fatally shooting an unarmed man in the victim’s driveway. He filed motion to dismiss the case, asserting self-defense immunity under K.S.A. 2018 Supp. 21-5231. District court denied the motion, finding State presented sufficient evidence to establish probable cause that deadly force was not statutorily justified. Jury found Macomber guilty of involuntary manslaughter, a conviction the Court of Appeals affirmed in unpublished opinion, finding in part that any error was harmless in district court’s denial of the request for an instruction on self-defense presumption of reasonable belief that deadly force is necessary. Macomber’s petition for review granted on two issues: (1) whether district court erred by denying the pretrial motion to dismiss on self-defense immunity grounds; and (2) whether district court’s failure to instruct jury on presumption of reasonableness violated Macomber’s due process rights to a fair trial.

ISSUES: (1) Self-defense immunity; (2) presumption instruction

HELD: There was probable case that Macomber’s use of deadly force was not statutorily justified. Disputed facts supporting the district court’s findings are itemized. District court’s probable cause determination was correct based on substantial competent evidence supporting the district court’s factual findings.

Kansas Supreme Court has never addressed whether jury must be instructed on the presumption, and no suggestion by parties or Kansas caselaw that the requested instruction was not legally appropriate. Because failing to instruct on presumption in this case would not have affected burden of proof—i.e. State’s duty to disprove the affirmative defense—any error in failing to give the instruction at issue would be classified as a state-law error. Statutory presumptions for and against the accused are discussed and compared. While evidence is inconclusive whether Macomber acted in self-defense, his own statements strongly undercut any claim that he subjectively believed deadly force was necessary to prevent harm to himself. Panel’s finding of harmless error is affirmed.

CONCURRENCE and DISSENT: (Johnson, J.)(joined by Nuss, C.J., and Luckert, J.) Agrees with majority opinion until majority improperly engages in evidence-weighing and credibility-assessment by ignoring contradictory evidence and relying on selected statements by Macomber that support its conclusion that he did not actually believe deadly force was necessary. Believes the conflicting testimony could not, as a matter of law, definitively rebut the statutory presumption that self-defense was necessary. Because evidence is not viewed in light most favorable to the State in this circumstance, would hold that State did not meet its burden to show that withholding an instruction on the presumption was harmless.   

STATUTES: K.S.A. 2018 Supp. 17-7207(a)-(c), 21-5222, -5224, -5224(b), -5231, 23-2208(b), 44-501(b)(1)(C); K.S.A. 20-3018(b), 60-2101(b)

criminal law—criminal procedure—sentences—statutes
state v. smith
johnson district court—vacated and remanded
court of appeals—affirmed
No. 116,586—may 17, 2019

FACTS: Smith was convicted of trafficking contraband in a jail. In calculating criminal history, sentencing court included Smith’s Missouri municipal ordinance violation for endangering welfare of a child as a person misdemeanor. Smith appealed, arguing her criminal history should not have included this out-of-state ordinance violation. Court of Appeals agreed in unpublished opinion, holding the rule of lenity applied because sentencing guidelines were silent about how to classify an out-of-state ordinance violation when the convicting jurisdiction does not consider an ordinance violation to be a crime. State’s petition for review granted.

ISSUE: (1) Classification of an out-of-state municipal ordinance violation

HELD: Panel’s decision is affirmed on different reasoning. It is undisputed that Smith’s ordinance violation is not a crime under Missouri state law or the city’s Municipal Code. Plain language of K.S.A. 2015 Supp. 21-6811(e)(2) precludes a sentencing court from scoring a municipal ordinance violation when the convicting jurisdiction’s municipal code fails to designate that violation as either a felony or misdemeanor while it uses those designations for other violations. The court cannot delete vital portions from a statute or supply vital omissions. No matter what the legislature may have intended, if it did not in fact do so under any reasonable interpretation of the language used, the defect is one the legislature alone can correct.  

STATUTES: K.S.A. 2018 Supp. 21-5601(a), -5601(c)(1); K.S.A. 2015 Supp. 21-6602(a), -6801, -6803(c), -6809, -6810, -6811, -6811(a), -6811(e)(2); K.S.A. 20-3018(b), 60-2101(b)

Kansas Court of Appeals


NO. 120,239—MAY 17, 2019

FACTS: The Mother's children were removed from her care after allegations of physical abuse. Mother appeared at all hearings during the reintegration process. Ultimately, the State moved to terminate Mother's parental rights, in part because she was recently incarcerated. At the termination hearing, Mother did not appear in person but did appear through her court-appointed attorney. The district court recessed for 10 minutes in order to allow Mother to attend, but when she did not come to court, the district court granted the State's motion for default judgment. Mother moved to reconsider, but her motion was denied; and Mother appealed.

ISSUE: (1) Ability to enter default judgment

HELD: There is statutory authority for a parental termination hearing where counsel attends in lieu of the parent appearing personally. If the parent does not appear, the State may proceed by proffer if there is no objection from the parent's counsel. If there is, the State must present evidence to the court in support of termination. The district court failed to follow this statutory procedure. Because of that failure, the record on appeal does not contain any evidence in support of termination. The case must be remanded to the district court for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2248(f), -2249(a), -2266(a), -2269(a), -2269(b), -2269(c), -2269(g)(1), -2267(d), -2234(a)(8), 60-255

NO. 119,605—MAY 17, 2019

FACTS: In 1997, Union Pacific Railroad and the Central Kansas Conservancy entered into a line donation contract where Union Pacific gave the Conservancy a quitclaim deed to its easement rights for over 12 miles of railroad corridor. With that deed, the Conservancy obtained the right to develop a recreational trail on the easement. Part of the trail runs through the Sideses' land. In 2015, the Conservancy petitioned the district court for quiet title and an injunction concerning its trail use easement. It claimed that the Sideses attempted to block access to the easement with fencing and equipment in the roadway. The Sideses admitted that fact, but claimed that these actions constituted adverse possession of the Conservancy's ownership interest or, in the alternative, that they had a prescriptive easement on the land. The parties filed competing summary judgment motions and the district court granted the Conservancy's motion and denied the Sideses'. The district court eventually granted the Conservancy's request for an injunction which required the Sideses to allow the Conservancy to have access to the easement property. The order further discussed the erection of a fence that would keep the Sideses' cattle from straying. The Sideses appealed.

ISSUES: (1) Jurisdiction; (2) adverse possession and prescriptive easement; (3) application of time limit; (4) fencing

HELD: The Conservancy's original petition brought claims of quiet title, injunction, and damages. A decision on that petition could not be final until all three claims were addressed. There was a gap in time before the district court held a hearing and issued a decision on the injunction, and the decision was not final until that ruling was issued. Some real property cannot be adversely possessed or obtained by prescriptive easement, including property that is meant for public use. The Conservancy's trial use easement is meant for public use, which prevents the Sideses from obtaining rights through either adverse possession or prescriptive easement. The Conservancy's right to develop a trail arose before the KRTA went into effect, which means the district court properly ruled that the two-year time limit did not apply. And even if it did, the Sideses' only remedy would be to require the Conservancy to complete the trailthere is no remedy that would allow the property to revert to the Sideses. The district court violated the plain language of the statute when it ordered the Sideses to pay for half of the cost of fencing. The Conservancy must install barbed wire and electric fencing along the railroad corridor. The Conservancy may enter the Sideses' property when constructing a fence.

STATUTES: 16 U.S.C. § 1247(d); K.S.A. 2018 Supp. 58-3215; K.S.A. 58-3212, -3213, -3213(a)(3), -3213(c), -3213(d), 60-503, -509


criminal procedure—motions—sentences—statutes
state v. Young
sedgwick district court—appeal dismissed
NO. 119,265—may 17, 2019

FACTS: Young was convicted in 1999 of aggravated indecent liberties with a child. Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). In 2017, Young entered guilty plea to fourth KORA violation which occurred while on probation for his third KORA violation with an underlying 61-month guideline sentence. In a combined hearing, district court revoked probation for the third KORA violation and ordered service of the underlying 61-month sentence. For the fourth KORA violation, district court rejected Young’s request for a concurrent downward departure sentence, and imposed the minimum-89 month guideline sentence under the Kansas Sentencing Guidelines Act (KSGA) with consecutive service of the sentences. Young appealed, arguing the district court abused its discretion in failing to make a special finding that manifest injustice would occur by allowing his KORA violation sentence to run consecutive rather than concurrent to sentence in his prior criminal case. State contends there is no jurisdiction to appeal the presumptive guideline sentence.

ISSUE: (1) K.S.A. 2018 Supp. 21-6819(a)—manifest injustice

HELD: Under K.S.A. 2018 Supp. 21-6819(a) which is part of the Kansas sentencing guidelines, the consecutive sentence called for in K.S.A. 2018 Supp. 21-6606(c) when a defendant commits a crime while on probation for a previous felony conviction, is not required if imposition of such a sentence would be manifestly unjust. Here, the district court considered whether a consecutive sentence would be manifestly unjust and determined that it would not. District court did not depart from sentencing guidelines by imposing a guidelines sentence with consecutive service. Appeal is dismissed because an appellate court has no jurisdiction to entertain challenges to imposition of consecutive guideline sentences.

DISSENT: (Arnold-Burger, J.) Dissents from majority’s conclusion that there is no jurisdiction to hear this appeal. Issue is whether Young can appeal a ruling on the existence of manifest injustice under K.S.A. 2018 Supp. 21-6819(a). Statute is clear and unambiguous. Under K.S.A. 2018 Supp. 21-6819(a) a court has discretion to determine whether manifest injustice exists to override the mandatory non-KSGA sentencing rule in K.S.A. 2018 Supp. 21-6606(c). Such a decision is distinctly different than whether to impose consecutive or concurrent presumptive KSGA sentences. On facts in this case, would affirm on the merits because the district judge did not abuse discretion in denying Young’s request for concurrent sentences.

STATUTES: K.S.A. 2018 Supp. 21-6606(c), -6801 et seq., -6803(f), -6803(i), -6803(q), -6819(a), -6819(b), -6820(a), -6820(c), -6820(c)(1), 22-4901 et seq., -4903(a), -4903(c)(1)(C), -4905(g); K.S.A. 21-4721(c)(1)

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