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June 21, 2019 Digests

Posted By Administration, Monday, June 24, 2019

Kansas Supreme Court

Criminal

CONSECUTIVE SENTENCES
STATE V. DARRAH
MCPHERSON DISTRICT COURT - AFFIRMED
NO. 117,461—JUNE 21, 2019

FACTS: Darrah and two co-conspirators were implicated in the kidnapping and murder of an associate. He pled no contest and the parties made a sentencing recommendation. Before sentencing, Darrah asked the district court to impose concurrent rather than consecutive sentences, claiming that his culpability was less than his coconspirators' and that concurrent sentencing would make his sentence commensurate with his level of involvement in the crime. At sentencing, the State requested both the aggravated number for the kidnapping charge and that the sentence run consecutive to the murder sentence. Darrah asked for mitigated numbers with concurrent sentencing. The district court imposed a hard 25 for the murder charge and the aggravated sentence for kidnapping, to run consecutive to the murder sentence. Darrah appealed.

ISSUE: (1) Abuse of discretion with sentencing

HELD: The facts presented at trial show that Darrah was central to the conspiracy and acted as a leader in committing the crimes. A reasonable person could have concluded that the sentence imposed was proportionate to the harm and culpability associated with Darrah's actions. For these reasons, the sentence imposed by the district court was not an abuse of discretion.

STATUTE: K.S.A. 2018 Supp. 21-6815(c)(2)(H), -6819(b)

 

Kansas Court of Appeals

Civil

INTERMEDIATE SANCTIONS
STATE V. DURAN
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,303 AND 119,304—JUNE 21, 2019

FACTS: Guadalupe Duran was sentenced to probation in two cases. For each case, there was a lengthy underlying sentence. Duran stipulated to violating his probation. Both Court Services and the State asked the district court to impose Duran's underlying sentence. Instead of imposing a graduated, intermediate sanction the district court found that "public safety" would be negatively impacted by reinstatement, and it ordered Duran to serve his underlying sentences. Duran appealed.

ISSUE: (1) Failure to impose intermediate sanctions

HELD: A district court is given statutory authority to bypass intermediate sanctions only in limited circumstances. In order to make that bypass, the district court must establish with particularity the reasons for finding that public safety will be negatively affected or that the offender's welfare will not be served by the intermediate sanction. Those particularized findings must be more than a general finding that the offender is not amenable to probation. Here, the district court's findings were based on speculation and generalized predictions without connection to the particular facts of Duran's case. The district court abused its discretion by revoking probation without setting forth with particularity reasons which justified the refusal to impose an intermediate sanction.

STATUTE: K.S.A. 2018 Supp. 22-3716(c)(1), -3716(c)(9)(A)

 

RACE-BASED POLICING
STATE V. GILL
RENO DISTRICT COURT—AFFIRMED
NO. 119,986—JUNE 21, 2019

FACTS: Law enforcement went to an apartment complex to investigate a reported theft. There was no suspect description and the officer was not looking for anyone in particular. The officer spotted Gill and a passenger in an SUV; both men were African-American. When Gill attempted to leave, the officer told him that he was not free to go. Despite no evidence of wrongdoing, the officer asked for Gill's driver's license and proof of insurance. Eventually, officers searched Gill's vehicle and discovered evidence of drug activity. After he was charged, Gill moved to suppress the evidence from his vehicle, alleging that the officer unreasonably used race-based policing when initiating the encounter with Gill. The district court agreed and suppressed the evidence. The State appealed.

ISSUE: (1) Admissibility of evidence in light of race-based policing

HELD: This case does not involve normal Fourth Amendment inquiries; exclusion was granted because the district court found that law enforcement violated K.S.A. 2018 Supp. 22-4609. The district court correctly determined that approaching two African-American men because they are "staring hard at you" unreasonably used race when deciding to initiate an enforcement action. The contact between the officer and Gill was completely unrelated to the initial theft report. And the district court's finding that the officer could not have determined whether a marijuana smell was coming from Gill's vehicle is an unreviewable credibility determination. The district court correctly concluded that the officer unreasonably used race to initiate an enforcement action and, as a result, suppressed evidence found in Gill's vehicle.

DISSENT: (Powell, J.) Body camera video showed no evidence of racial animus. Absent that, the district court erred by suppressing the evidence.

STATUTES: K.S.A. 2018 Supp. 22-4604(d), -4606(d), -4609; K.S.A. 22-3216(1)

 

DUE PROCESS—PARENTAL RIGHTS
IN RE M.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,797—JUNE 21, 2019

FACTS: The State filed a child in need of care petition alleging that Mother's children were not being properly cared for in her home. The children were removed from her home and placed in DCF custody. Ultimately, the State sought to terminate Mother's parental rights. At the beginning of trial, Mother told the district court that she might need to leave early to help her mother home from a hospital. Mother finished the day but did not appear for the second day of trial. Mother told counsel that she was having transportation issues and intended to participate, but she failed to appear on either the second or third days of trial. The district court found her in "default", heard a proffer by the State, reviewed the evidence, and terminated Mother's parental rights. Mother appeals.

ISSUES: (1) Due process; (2) sufficiency of the evidence; (3) best interests of the children

HELD: Mother had a constitutionally protected, fundamental liberty interest in her relationship with her children. Mother was able to present her case-in-chief on the first day of trial. She had additional opportunities to be heard again on other days of the trial, but she chose not to attend. No evidence was presented on days that Mother was not present in court. The State had an interest in concluding the proceedings quickly so that the children had finality as soon as possible. The State had a justifiable interest in concluding the proceedings even in Mother's absence. K.S.A. 2018 Supp. 38-2269(b)(7) requires that reasonable – not effective – efforts be made towards rehabilitation. Efforts made towards rehabilitation were reasonable in this case. There was clear and convincing evidence that Mother was unfit and that that unfitness was unlikely to change in the foreseeable future. The district court did not abuse its discretion by finding that termination of Mother's parental rights was in the children's best interests.

CONCURRENCE: (Atcheson, J.) Mother chose not to appear at the last two days of her termination hearing. The State did not impede her ability to participate. Under these circumstances, Mother has no legal basis to complain about a denial of due process rights – she received all of the process she was due.

STATUTE: K.S.A. 2018 Supp. 38-2246, -2267(a), -2269(a), -2269(b), -2269(b)(7) -2269(b)(8), -2269(c), -2269(g)(1), -2271

Criminal

UNLAWFUL SEXUAL RELATIONS
STATE V. JOHNSON
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 118,380—JUNE 21, 2019

FACTS: Johnson worked as a paraprofessional educator. K.E. was a student in the district and was ordered to attend school at the facility where Johnson worked. K.E. and Johnson started flirting outside of school through social media. The relationship progressed, and the two had sexual intercourse one time. K.E. eventually told his father about the relationship, and he contacted law enforcement. After being questioned, Johnson admitted her actions to law enforcement. A jury convicted Johnson of unlawful sexual relations, one count of sexual exploitation of a child, and one count of promoting obscenity to a minor. She appealed.

ISSUES: (1) Constitutionality of K.S.A. 2015 Supp. 21-5512(a)(9); (2) sufficiency of the evidence; (3) alternative means; (4) transmission of obscene material

HELD: K.S.A. 2015 Supp. 21-5512(a)(9) prohibits consensual sexual activity when the offender is a teacher "or other person in a position of authority" employed at a school where the child is enrolled. The phrase "or other person in a position of authority" is not unconstitutionally vague; it has meaning that can be clearly understood through common understanding and practice. There was sufficient evidence to show that Johnson was in a position of authority at K.E.'s school, and he was a student enrolled at the facility. Sexual exploitation of a child is not an alternative means crime, so the State was not required to prove all of the listed means beyond a reasonable doubt. There was sufficient evidence to prove that Johnson promoted K.E.'s sexually explicit performance to arouse sexual desires. The photos and videos that Johnson sent to K.E. were "obscene material" as used in the statute. There is no requirement that the material be tangible, and digital photographs are allowable.

STATUTE: K.S.A. 2015 Supp. 21-5510(a)(1), -5510(d), -5510(2)(B) -5512(a), -5512(a)(9), -5512(d)(9)

Tags:  8807  Douglas District  McPherson District  Reno District  Sedgwick District  Shawnee District  unlawful sexual relations 

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