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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping; (2) jury instructions—lesser included offense; (3) jury instructions—unanimity; (4) cumulative error; (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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