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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

constitutional law—criminal procedure—motions—trials —statutes
state v. HAMMERSCHMIDT
Ellis District Court—reversed and remanded
no. 120,016—november 8, 2019

FACTS: Hammerschmidt was charged with a misdemeanor DUI. He filed motion to suppress evidence from the stop, arguing he was not given proper notices before the breath test. He also referenced two pending decisions awaiting rehearing in Kansas Supreme Court. District court granted continuances on its own initiative, citing the pending rehearing decisions. 607 days after a motion to suppress was filed, and 360 days after State v. Nece, 306 Kan. 679 (2017) (Nece II), and State v. Ryce, 306 Kan. 682 (2017) (Ryce II), the district court denied the motion to suppress. Hammerschmidt filed motion to dismiss, alleging violation of speedy trial statute. District court granted that motion and dismissed the complaint. State appealed, arguing in part that K.S.A. 2018 Supp. 22-3402(g) bars dismissal.

ISSUE: Speedy trial statute

HELD: District court erred by dismissing the case on statutory speedy trial grounds. Hammerschmidt first requested delay in the case by filing motion to suppress, and that delay was originally attributable to him. Because the matter was taken under advisement for an unreasonable amount of time and because it was unclear if Hammerschmidt consented to the delay, district court later attributed the delay to the State. Although the delay here was several hundred days, the legislature removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. K.S.A. 2018 Supp. 22-3402(g). Hammerschmidt did not argue that prosecutorial misconduct precipitated the lengthy delay or that application of K.S.A. 2018 Supp. 22-3402(g) violated his constitutional speedy trial rights, and his statutory speedy trial claim is based on circumstances which expressly forbid dismissal on statutory speedy trial grounds.

STATUTE: K.S.A. 2018 Supp. 22-3402, -3402(b), -3402(g)

constitutional law - criminal procedure - evidence - fourth amendment - motions
state v. fisher
Sedgwick District Court—affirmed
no. 120,031—november 8, 2019

FACTS: Officers entered the house in response to a 911 call report that someone in the house had been shot. No injured person was found, but officers discovered Fisher with drugs in plain view. Fisher was charged with drug offenses. He filed a motion to suppress, claiming the officers lacked a lawful justification to enter the house because they failed to first ask the two women standing outside the house any clarifying questions or whether they were injured. District court denied the motion, finding the clearing of the house to find if someone was hurt or dying was not unreasonable under the circumstances. Fisher was convicted in bench trial on stipulated facts. He filed timely appeal.

ISSUE: Emergency aid exception to warrantless search

HELD: District court did not err in denying the motion to suppress. The emergency aid exception test stated in State v. Neighbors, 299 Kan. 234 (2014), is applied, but an Eleventh Circuit Court of Appeals case is identified as more factually similar to the present case. Officers had authority under the emergency aid exception to act until assured that no one needed assistance. The mere presence of people outside the house where gunshots were reported did not remove the officer’s reasonable basis to search the house for victims. The possibility of someone suffering from a gunshot wound inside necessitated an immediate search.

STATUTES: None

criminal procedure—sentences—statutes
state v. wilmore
shawnee district court—affirmed
no. 120,171—november 8, 2019

FACTS: Wilmore was convicted of two counts of indecent liberties with a child. On appeal, he claimed the district court imposed an illegal sentence in calculating criminal history by using two prior domestic battery cases that had been used in an earlier case to elevate the classification of a third domestic battering conviction to a felony.

ISSUE: Sentencing—criminal history calculation of prior domestic battery charges

HELD: Wilmore’s “double-counting” challenge is rejected for same reasons stated in numerous unpublished court of appeals decisions. District court did not violate K.S.A. 2018 Supp. 21-6810(d) in calculating Wilmore’s criminal history score. Wilmore’s alternative interpretation of the statute is unreasonable. Under court’s longstanding interpretation of K.S.A. 2018 Supp. 21-6819(d), the unambiguous statutory language does not prohibit a district court from aggregating prior domestic battery person misdemeanors to create a person felony for criminal history purposes even when those same domestic battery convictions were used in an earlier case to elevate a domestic battery charge from a misdemeanor to a felony.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6810(d)(10), -6811(a), 22-3504(1)
K.S.A. 2015 Supp. 21-6810(d)(9)

Tags:  Constitutional Law  criminal procedure  Ellis District Court  evidence  Fourth Amendment  motions  Sedgwick District Court  sentences  Shawnee District Court  statutes  trials 

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November 1, 2019 Digests

Posted By Administration, Monday, November 4, 2019

Kansas Supreme Court

 

Civil

JURISDICTION—WORKERS COMPENSATION
VIA CHRISTI HOSPITALS V. KAN-PAK, LLC
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS REVERSED,
WORKERS COMPENSATION BOARD IS AFFIRMED
NO. 116,692—NOVEMBER 1, 2019
 

FACTS: Darin Pinion was severely burned while working at Kan-Pak. Via Christi provided medical care; his total bills exceeded $1 million. Kan-Pak's workers compensation insurance was provided by Travelers, who contracted with Paradigm to coordinate complicated cases. Paradigm paid only $136,451.60 of Pinion's considerable bill, under the 2011 Schedule of Medical Fees. For the 2011 Maximum Fee Schedule, language was added which allowed insurers to pay the lesser of the 70 percent stop loss calculation or the MS-DRG formula. It is unknown how the "lesser of" language ended up in the statute, as no one from the agency claimed knowledge of the addition. Via Christi requested reimbursement of 70% of Pinion's total bill. An ALJ found that the language in the regulation controlled and that it was without authority to ignore the "lesser of" language. The Board agreed and Via Christi appealed. The Court of Appeals reasoned that if no one at the agency knew that the "lesser of" language was added, that change was not properly promulgated and was ineffective. The Court of Appeals was unwilling to enforce an accidental rule, believing the outcome would be arbitrary and capricious. Paradigm's petition for review was granted.

ISSUES: (1) Jurisdiction, (2) effectiveness of the 2011 regulation

HELD: Jurisdiction exists to hear the merits of the case. The director of workers compensation is ultimately responsible for preparing the fee schedule. He is not a party to this action and the faulty rulemaking was not raised as a cause of action. The issue of rulemaking by the directoraccidental or otherwisewas never properly before the Board on appeal from the hearing officer. These proceedings were initiated as a fee dispute under a narrowly-drawn statute. It was not arbitrary or capricious to follow a plainly-worded regulation and enforce it as written.

STATUTES: K.S.A. 2018 Supp. 44-510i, -510j, 77-603(a), -614, -614(b), -614(c), -621(c), -621(c)(8); K.S.A. 44-556, 77-602(j), -606

 

criminal

constitutional law—criminal procedure—juveniles—speedy trial
state v. owens
sedgwick district court—affirmed; court of appeals—affirmed
No. 115,441—november 1, 2019

FACTS: 17-year-old Owens charged with juvenile offenses related to stealing a car at gunpoint. Six months later, the juvenile case was dismissed and Owens was charged with aggravated robbery, criminal use of a weapon and criminal deprivation of property. Jury convicted him as charged in trial that began some 19 months after his arrest. Owens appealed, claiming in part the delay between his arrest and trial violated his constitutional right to a speedy trial. Court of appeals affirmed in an unpublished opinion, finding right to speedy trial attached upon filing of the adult criminal charges, and the 13-month delay from that point until Owens’ trial was presumptively prejudicial. Review granted on Owens’ speedy trial claim that the delay was 19 rather than 13 months, and on State’s cross-petition alleging the panel erred in finding the length of delay presumptively prejudicial.

ISSUE: (1) Speedy trial

HELD: The federal and state constitutional right to a speedy trial applies to juvenile offender proceedings under the Revised Kansas Juvenile Justice Code, citing State v. Robinson, 56 Kan. App. 2d 567 (2018)(filed after briefs submitted in present case). Thus the delay in bringing Owens to trial was more than 19 months. Factors in Barker v. Wingo, 407 U.S. 514 (1972), are applied, finding no violation of Owens’ constitutional speedy trial rights. A presumption of prejudice arose from the length of a delay that was excessive given the relative simplicity of the case, but reasons for the delay weigh against Owens under facts in this case. While he complained about the delay, evidence supports that he wanted his attorney to seek consolidation of his cases and that these efforts resulted in some delay. And Owens made no showing he was prejudiced by the delay. Judgment of court of appeals affirming the district court is affirmed.

STATUTES: K.S.A. 2018 Supp. 22-3402(g), 38-2301 et seq., K.S.A. 2012 Supp. 22-3208(7); K.S.A. 20-3018(b)

 

Kansas Court of Appeals

criminal

constitutional law—criminal procedure—discovery—evidence—sanctions
state v. auman
douglas district court—affirmed
No. 120,438—november 1, 2019

FACTS: While turning left with sun in his eyes, Auman hit a motorcyclist he had not seen. State charged him with aggravated battery while driving under the influence of alcohol and prescribed medications, and made repeated requests to police department for evidence. On Friday before Monday trial that was scheduled at the last date within speedy trial statute, dashcam videos were obtained and disclosed to the defense. In part, Auman filed motion to dismiss, arguing Brady violation because videos were produced too late to investigate three identified witnesses at the scene and comments between two officers that would tend to show the sun’s glare, not intoxication, caused the collision. Given State’s delay in providing information and video’s potential exculpatory value, compounded by the speedy trial issue, district court dismissed the criminal case. State appealed, claiming the district court abused its discretion in taking such drastic action.

ISSUE: Duty to disclose evidence favorable to the defense

HELD: District court’s dismissal of the case is affirmed. Due Process Clause does not force a defendant to bear burden of a lack of cooperation between prosecutor and law enforcement, which in this case resulted in the eleventh-hour disclosure of potentially exculpatory information that was within State’s possession since Auman’s collision. State could have waited to file case until it received all discovery information from law enforcement, or—through cooperative efforts of prosecutors and law enforcement—could have arranged for all discovery to be provided within time frame ordered by district court.

STATUTES: K.S.A. 2018 Supp. 8-1567(a), 21-5107(d), - 5413(b)(3)(A), 22-3212(i); K.S.A. 2015 Supp. 21-5413(b)(3)(A)

Tags:  constitutional law  criminal procedure  discovery  Douglas County Court  evidence  jurisdiction  juveniles  sanctions  Sedgwick District Court  speedy trial  Workers Compensation  Workers Compensation Board 

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October 25, 2019 Digests

Posted By Administration, Monday, October 28, 2019

Kansas Supreme Court

 

Civil

DAMAGES—PRODUCTS LIABILITY
CORVIAS MILITARY LIVING, LLC V. VENTAMATIC, LTD. AND JAKEL, INC.
GEARY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 116,307—OCTOBER 25, 2019

FACTS: Corvias is a construction firm specializing in military housing. Corvias built thousands of units near Fort Riley. In these homes, it installed bathroom ceiling fans manufactured by Ventamatic, Ltd. and Jakel Motors, Inc. After installation, several fans caught fire and damaged homes. Corvias not only incurred damage with fire remediation, it also needed to replace all of the fans in other units, so it filed suit. The district court granted summary judgment to both defendants, finding that the suit was unquestionably a products liability claim governed by the Kansas Product Liability Act. The court ruled that all of Corvias' claims for damages was barred by the economic loss doctrine. The Court of Appeals reversed the grant of summary judgment on the issue of fire damage, finding that the fans were not an integral part of the house as a whole. But the panel did not address whether Corvias had an implied warranty claim covering whether the fans were inherently dangerous. Both defendants filed a petition for review, which was granted.

ISSUE:  (1) Recovery under the KPLA

HELD: The KPLA covers all product liability causes of action. That Act included liability for "damage to property", which shows that the Legislature intended to allow recovery for damage to any property, even the product itself. The Kansas economic loss doctrine does not preclude recovery for property damage within a product liability cause of action. Corvias' costs for fan replacement are undisputedly economic losses, and therefore not compensable under the KPLA. But the KPLA does not subsume all other legally viable causes of action for loss recovery. Corvias brought an action for unjust enrichment. The record is insufficient to show whether that claim can succeed, so the case is remanded.

STATUTE: K.S.A. 60-3302(c), -3302(d), -3302(d)(1)

 

Criminal

CRIMINAL THREAT—CONSTITUTION
STATE V. BOETTGER
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 115,387—OCTOBER 25, 2019
 

FACTS: One evening, Boettger was visiting with the employees of a convenience store. He was lamenting the fact that he had found his daughter's dog in a ditch after it had been shot. Boettger was upset that the sheriff's department would not investigate. Boettger told one employee that if he found the perpetrator they "might find themselves dead in a ditch somewhere." The employee who heard the remarks knew Boettger and his speaking style and was not concerned. Another employee, who knew Boettger very well, was closely related to a detective with the sheriff's department. Boettger, who was visibly angry, approached this man and said that he would "end up finding [his] dad in a ditch." The employee was concerned and ultimately called the police to report the incident. Boettger denied any intent to threaten or cause harm, but he was still convicted of one count of reckless criminal threat. Boettger appealed, but the Court of Appeals confirmed his convictions. Boettger's petition for review was granted.

ISSUE: (1) Whether K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad

HELD: Some tension can arise when the government attempts to criminalize true threats. An important inquiry centers on the speaker's intent to intimidate and cause fear. In order to be constitutional, the statute must require more than a purpose to communicate just threatening words. Instead, it must also require that the speaker wants the recipient to believe that the speaker intends to act violently—an intent to intimidate or convey a threat. K.S.A. 2018 Supp. 21-5415, which allows an individual to be punished for reckless conduct, potentially criminalizes protected speech and is facially overbroad. Boettger's conviction under that statute must be reversed.

STATUTES: U.S. Const. amend. I; K.S.A. 2018 Supp. 21-5415(a)(1)

 

FIRST-DEGREE MURDER—JURY INSTRUCTIONS
STATE V. DEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,568—OCTOBER 25, 2019

FACTS: Dean was accused of firing his weapon while at a crowded party in revenge for the death of his fellow gang member. After the shooting was over, Dean was charged with one count of premeditated murder, four counts of aggravated battery and one count of criminal possession of a firearm. During deliberations, the presiding juror brought in a personal notebook which contained notes that were taken outside of the trial. The district court dismissed this juror and questioned the rest of the panel, all of whom denied taking notes or seeing notes from another juror. As he was leaving, the removed panel member gave a partially completed verdict form to the bailiff. It is unknown what the form said, but after seeing it defense counsel moved for a mistrial, which was denied. Dean was convicted as charged. He appeals.

ISSUES: (1) Necessity of a mistrial, (2) cautionary instruction, (3) motion for new trial, (4) evidence of premeditation, (5) admissibility of evidence of gang affiliation

HELD: Because the partially completed verdict form is not in the record on appeal, there is no way to know its impact on the jury. Dean had the burden to designate a record adequate to show error. In that absence, he is not entitled to relief. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is potentially benefitting from the testimony. Defendant's cross-examination showed the witness' potential bias to the jury. The district court did not err by finding that evidence regarding the cooperating witness' arrangement was neither newly discovered nor material. And Dean's failure to provide the new evidence in the record on appeal precludes review. Premeditation involves forming the intent to kill beforehand. In this case, the State presented sufficient evidence of premeditation. The gang affiliation evidence presented at trial was relevant and not unduly prejudicial, especially in light of the mitigating instruction given by the district court.

STATUTES: K.S.A. 2018 Supp. 22-3412(c), -3501(l); K.S.A. 22-3423(1)(c), 60-401(b)

 

CRIMINAL THREAT—CONSTITUTION
STATE V. JOHNSON
MONTGOMERY DISTRICT COURT—COURT OF APPEALS IS REVERSED DISTRICT
COURT IS REVERSED, CASE REMANDED
NO. 116,453—OCTOBER 25, 2019

FACTS: Johnson's mother contacted law enforcement with claims that Johnson was abusing her. A deputy responded to her home and noticed signs of a struggle, but Johnson was not at the residence. A return visit occurred the next day after Johnson's mother claimed that he made statements in which he threatened to either harm or kill her. Johnson was charged with one count of criminal threat—for allegedly tearing a telephone off of the wall and threatening to burn down his mother's home and kill her. At trial, both Johnson's mother and wife testified that within their family it was common to threaten to kill each other, but that they never actually meant it. Johnson was also injured and in pain, causing frequent angry outbursts. A jury convicted Johnson of criminal threat. He appealed, and the Court of Appeals affirmed his conviction and Johnson's petition for review was granted.

ISSUES: (1) Sufficiency of the evidence, (2) constitutionality of K.S.A. 2018 Supp. 21-5415(a)(1)

HELD: The State charged Johnson with either intentionally or recklessly making a criminal threat. The jury was instructed on both mental states but was not asked to specify under which state Johnson was convicted. But the State presented sufficient evidence to convict Johnson under either theory. The government can only regulate "true threats." The "reckless disregard" provision of K.S.A. 2018 Supp. 21-5415(a)(1) encompasses more than true threats and thus potentially punishes constitutionally protected speech. It is unconstitutionally overbroad. Even though Johnson was potentially convicted for intentional behavior, the unconstitutionality of the reckless disregard provision is prejudicial enough that Johnson's conviction must be reversed.

DISSENT: (Stegall, J.) The majority is correct that K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad. But the error is not prejudicial under a modified harmlessness analysis, and his conviction should be affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5202(c), -5415(a)(1)

Tags:  constitution  criminal threat  damages  Douglas District Court  first degree murder  Geary District Court  jury instructions  Montgomery District Court  product liability  Sedgwick District Court 

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October 18, 2019 Digests

Posted By Administration, Monday, October 21, 2019

Kansas Court of Appeals

Civil

CHILD IN NEED OF CARE
IN RE D.H.
ELLIS DISTRICT COURT—REVERSED AND REMANDED
NO. 121,131—OCTOBER 18, 2019

FACTS: D.H. was born in December 2007. Mother and Father were not married and their relationship ended soon after D.H. was born. When D.H. was an infant, the State alleged that D.H. was a child in need of care. In a companion paternity case, Father's paternity was legally established. Father used that paternity case to seek residency and parenting time decisions for D.H. After a hearing, Father was given primary residency of D.H., with Mother having parenting time once per week. Soon after this hearing, Mother moved out of state. She delivered a son shortly after that, who was later diagnosed with autism. Mother sought and received services for this child, and also sought and received financial and residential stability for herself. For the next six years, Mother spoke on the phone with D.H., but did not actually visit in person. Mother finally had a personal visit with D.H. in 2017. Father died by suicide in 2018. Because of his death, D.H. was placed in protective custody and later sent to live with her paternal grandfather. The State filed a CINC petition. Mother traveled to personally appear at the temporary custody hearing. After hearing evidence, the district court found that D.H. was a CINC because Mother abandoned her. Mother appealed.

ISSUES: (1) Relevant time period; (2) sufficiency of the evidence

HELD: The district court found that Mother abandoned D.H. in 2009, meaning that D.H. was without adequate parental control at the time of the CINC hearing. The plain language of the statute does not require the district court to make its adjudication decision based only on the circumstances that exist on the day of the adjudication hearing. Rather, the district court's decision should be guided by the temporal language used in the relevant statutory subsection that is being considered. There was insufficient evidence presented that D.H. was in need of care.

STATUTE: K.S.A. 2018 Supp. 38-2202, -2202(a), -2202(d), -2250, -2251

JURY INSTRUCTIONS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF QUILLEN
JOHNSON DISTRICT COURT—VACATED AND REMANDED
NO. 120,184—OCTOBER 18, 2019

FACTS: Richard Quillen was committed as a sexually violent predator in 2006. As part of his civil commitment, Quillen was entitled to an annual review hearing. In 2013, Quillen asked for a jury trial when he challenged the Kansas Department for Aging and Disability Services' recommendation that he remain in custody. That request was granted, and after a hearing the jury found that the State met its burden to prove that Quillen did not meet the criteria for transitional release. Quillen sought a new trial, claiming the district court violated his due process rights by failing to instruct the jury on "serious difficulty controlling behavior" as a separate element that the State must prove. The district court denied the motion and Quillen appealed.

ISSUE: (1) Jury instructions

HELD: Quillen questioned whether the elements required to prove a committed person is not safe to be sent to transitional release are the same as those required to initially commit an individual. They are. Despite statutory changes and a consent decree, Quillen correctly notes that the State is constitutionally required to prove that Quillen would have serious difficulty controlling his behavior if transitionally released. The district court erred by not adding that essential element to the jury instructions, and the error was prejudicial. Quillen is entitled to a new trial.

STATUTE: K.S.A. 2018 Supp. 59-29a02(a), -29a07(a), -29a08, -29a08(a), -29a08(c), -29a08(d), -29a08(g)

Tags:  CINC  Ellis District Court  Johnson District Court  Sexually violent predators 

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October 11, 2019 Digests

Posted By Administration, Tuesday, October 15, 2019

Kansas Supreme Court

Civil

DUTY—IMMUNITY—LAW ENFORCEMENT
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 116,883—OCTOBER 11, 2019

FACTS: Agents from C-U-Out Bail Bonds came to the Williamses' home in search of the Williamses' daughter-in-law. Mrs. Williams told the agents that the woman they sought was not in her home. It was late at night, Williams was caring for her elderly and ill mother, and she denied the agents' request to enter the home. The agents attempted to enter the home by force, and Williams called the police. After the police arrived, agents forced their way into the home. The police officers on scene stood and watched and refused to assist Williams. The Williamses sued both C-U-Out and also the City of Overland Park, claiming the officers committed the tort of "negligent failure to protect." The district court granted the City's motion to dismiss, finding that the City was immune from liability under the Kansas Tort Claims Act and also finding that the City owed no duty to the Williamses. The Court of Appeals agreed that the City owed no duty to the Williamses. The panel also held that the City was immune under the discretionary function exception. The Kansas Supreme Court granted review.

ISSUES: (1) Sufficiency of facts to support illegal conduct, (2) existence of a duty, (3) discretionary function immunity

HELD:  The issue of whether C-U-Out's agents acted lawfully was, in part, a factual question. The Court of Appeals erred by disregarding factual allegations made in the Williamses' petition. Generally, law enforcement owes a duty only to the public at large. To succeed here, the Williamses had to prove that the City owed them a duty because of a special relationship or a specific circumstance. Although the existence of a duty is a question of law, where a duty is predicated on an affirmative act, there is a threshold factual question of whether the defendant's behavior could have triggered a duty. The district court erred by granting the motion to dismiss because of a lack of duty. The question of whether discretionary function immunity exists is high contextual. The district court erred by granting a motion to dismiss on these grounds.

STATUTES: K.S.A. 2018 Supp. 60-212(b)(6), 75-6104, -6104(e); K.S.A. 22-2809

 

Kansas Court of Appeals

CIVIL

JURY MISCONDUCT
KING V. CASEY'S GENERAL STORES, INC.
RICE DISTRICT COURT—AFFIRMED
NO. 120,241—OCTOBER 11, 2019

FACTS: King was injured after he slipped on some ice in a Casey's parking lot. He filed suit and the parties attempted to settle; when that was unsuccessful, the case proceeded to trial. During voir dire, panel member J.W. was asked whether he had any personal knowledge that would cause a problem for him if he was seated on the jury. J.W. said that he knew one of the witnesses—a Casey's employee—but said that wouldn't make him unable to be impartial when deciding the case. Another potential juror, R.W., was removed from the jury panel via peremptory strike because he knew King's family. The day after voir dire concluded, R.W. contacted King's attorney to tell her that one of the potential jurors told the panel that Casey's had offered to settle and that King should have accepted the offer. Further questioning revealed that the juror who brought up the settlement was J.W. King moved for a mistrial based on juror misconduct. After J.W. was questioned, the district court denied the motion but it did remove J.W. from the jury panel. The jury continued with 11 members and ultimately returned a verdict finding no fault by either party. King moved for a new trial based on juror misconduct, which was denied. King appealed.

ISSUE: (1) Whether J.W. tainted the jury

HELD: In most civil cases, a person asserting juror misconduct has the burden to prove that the misconduct occurred and that prejudice resulted. In this case, there was a factual dispute regarding how much J.W. knew about settlement proceedings and how extensively he shared that knowledge with other jurors. J.W.'s failure to volunteer information did not amount to prejudicial misconduct.

STATUTE: K.S.A. 2018 Supp. 60-259(a)

 

DUTY—NEGLIGENCE
MORGAN V. HEALING HANDS HOME HEALTH CARE, LLC
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,147—OCTOBER 11, 2019

FACTS: Morgan's son, Robert Cook, had "chronic, severe" paranoid schizophrenia and diabetes. His schizophrenia made him forgetful, which meant he had trouble remembering to take his medication. His doctors prescribed twice-daily home healthcare visits. Cook's health aides were supposed to evaluate his status, set up medications and remind Cook to take his pills, monitor his blood sugar, and draw labs as needed. Beginning in May of 2013, nurses noted that Cook's apartment was very warm. Some of Cook's medications made him unable to tolerate heat. The nurses counseled Cook on the temperature in his apartment and on his personal hygiene. Cook was unable or unwilling to follow their requests, and he continued to live in his apartment with no temperature control, resulting in him sweating and being warm. Medical logs noted that Cook's pulse was very rapid. In June 2013, Cook died of hyperthermia. Morgan brought a wrongful death and survival action against Healing Hands, claiming its negligence caused Cook's death. Healing Hands sought and received partial summary judgment on two issues: that it legally had no duty to alert Morgan to Cook's condition, and that Kansas' mandatory reporter statute did not require Healing Hands or its employees to report Cook's condition to law enforcement or state authorities. The remaining issues were tried to a jury, which found in Healing Hands's favor. Morgan appeals.

ISSUES: (1) Duty to warn and mandated reporter, (2) disputed issues of material fact, (3) jury instructions

HELD: The district court read the mandatory reporter statute too broadly. The statute did not require that Cook had previously been adjudicated incompetent or appointed a guardian or conservator before its obligations were triggered. There were fact questions on this issue that should have been heard by a jury. Evidence showed that while Cook lived independently, he required twice-daily nursing care to manage his physical and mental health. The mandatory reporter statutes created a duty of care, and the violation of these statutes may be used to establish a breach of that duty. The district court did not err when instructing the jury.

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

STATUTE: K.S.A. 39-1430(a), -1430(g), -1431, -1431(a), -1431(e), -1432(b)

Tags:  Author: Patti Van Slyke  duty  immunity  Johnson District Court  jury misconduct  law enforcement  negligence  Rice District Court  Sedgwick District Court 

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October 4, 2019 Digests

Posted By Administration, Tuesday, October 8, 2019

Kansas Supreme Court

Criminal

Appeals–Appellate Procedure—Constitutional law—evidence—fourth amendment—statutes
State v. Perkins
Ellis District Court—Affirmed
Court of Appeals—Affirmed
No. 112,449—October 4, 2019

FACTS: Perkins arrested for DUI. He filed motion to suppress results of breath test to which he had consented. District court denied the motion and convicted him on stipulated facts. Perkins appealed. Court of Appeals directed State to show cause why the matter should not be summarily reversed per State v. Nece, 303 Kan. 888 (2016)(Nece I), and State v. Nece, 306 Kan. 679 (2017)(Nece II). Reflecting the State’s redirected arguments, panel affirmed district court, finding the search incident to arrest exception to warrant requirement allows a warrantless breath test; and finding the good-faith exception applied in this case because officer acted with objectively reasonable reliance on statute that was later determined to be unconstitutional. State v. Perkins, 55 Kan.App.2d 372 (2018). Perkins’ petition for review granted.

ISSUES: (1) Preservation Exception; (2) Good-Faith Exception; (3) Search Incident to Arrest

HELD: State’s redirected arguments are considered. Panel’s request that State brief new arguments on appeal is akin to panel raising the issue sua sponte, and parties are to be afforded an opportunity to present their positions to the court. Nece is distinguished. 

District court’s refusal to suppress the result of breath test is affirmed. Good-faith exception to exclusionary rule would save evidence in this case even through Perkins’ consent to search was invalid. Case is analogous to State v. Daniel, 291 Kan. 490 (2010). Here, officer followed existing law and could not reasonably be expected to know that K.S.A. 2012 Supp. 8-1025 would later be found unconstitutional. While provisions that criminalized test refusal were unconstitutional, the entire implied consent statutory scheme was not invalidated. 

No need to discuss alternative argument about search incident to arrest exception.

CONCURRENCE (Luckert, J.): Agrees with application of good-faith exception. Also concurs with majority’s implicit application of U.S. Supreme Court caselaw to § 15 of Kansas Constitution Bill of Rights, but questions whether continued application should be in lockstep with federal caselaw. Open to reexamination of Daniel, but not in this case. Application by federal and state courts of Illinois v. Krull, 480 U.S. 340 (1987), warrants reconsideration of whether its exception leaves Kansas without the protection guaranteed by § 15.

STATUTES: K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B); K.S.A. 22-2501(c)

Kansas Court of Appeals

Civil

ADOPTION
IN RE ADOPTION OF C.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 120,359 – OCTOBER 4, 2019

FACTS: Father and Mother started a relationship in early 2017. By spring of that year, Mother was pregnant. At the time, both she and Father were under age 18, although Father turned 18 about five months into the pregnancy. During her pregnancy, Mother spent a great deal of time with Father at his mother's home, where she received food and clothing, but never any monetary support. Mother claims that she spent so much time with Father because he wanted to control her, and there was evidence that Father was verbally abusive. In an effort to get away from him, Mother moved to Florida to live with extended family for the last part of her pregnancy. C.S. was born in December 2017 and moved to live with potential adoptive parents in March 2018. Mother waived her parental rights but Father would not, so the adoptive parents filed a motion seeking to terminate his parental rights for lack of support. The district court granted the motion and Father appealed.

ISSUES: (1) Evaluation of support given Father's age; (2) sufficiency of the evidence

HELD: The obligation to provide support begins at pregnancy, not birth. That support need not be complete but must be of consequence and reasonable under the circumstances. Father was 18 for most of the relevant look-back period where support was required. And there is no statutory distinction between parents who are minors and parents who are legal adults during the relevant time period where support must be provided. Further, Father does not get credit for support that his mother provided to Mother. The district court's decision to terminate Father's parental rights is supported by clear and convincing evidence.

STATUTES: K.S.A. 2018 Supp. 59-2136(h)(1)(D), -2136(h)(2)(A), -2136(h)(2)(B), -2136(h)(4)

Criminal

Constitutional law - criminal procedure - motions - sentences - statutes
State v. Gales
Edwards District Court—Affirmed
No. 119,302—October 4, 2019

FACTS: Gales convicted of intentional second-degree murder and arson. Sentencing criminal history score included a 1976 California juvenile burglary adjudication that was classified asa person felony. Convictions and sentence affirmed on direct appeal. Gales I (unpublished, rev. denied). Gales filed motion to correct an illegal sentence to challenge classification of the California adjudication. Relying on State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), Court of Appeals vacated Gales’ sentence and remanded to district court to make additional findings under Dickey to determine classification of the California adjudication as a person or nonperson offense. Gales II (unpublished). Thereafter, State v. Dickey, 305 Kan. 217 (2016)(DickeyII) extended Dickey I; State v. Wetrich, 307 Kan. 552 (2018), held that a prior out-of-state crime must have identical or narrower elements that the Kansas offense being compared; and Legislature amended K.S.A. 22-3504. Supplemental briefing ordered. 

ISSUE: (1) Illegal Sentence - Retroactivity and Application of Dickey

HELD: Gales entitled to constitutional rule in Apprendi because his conviction became final after Apprendi was announced. Gales does not get benefit of the identical-or-narrower definition of comparable offenses announced in Wetrich which constituted a change in the law. Under complicated facts in this case, district court’s process for deciding to classify the prior California crime as a person offense violated Apprendi but the decision is affirmed utilizing the classification process set forth in Dickey which does not constitute a change in the law as contemplated by the 2019 amendment to K.S.A. 22-3504.

STATUTES: K.S.A. 22-3504, -3504(c)(amended 2019); K.S.A. 2018 Supp. 21-6811(d), -6811(e)(3); K.S.A. 2015 Supp 21-6811(e)(3); K.S.A. 2000 Supp. 21-4711; K.S.A. 21-3715, -3715(a), -3715(b), -3715(c), -4711(d), -6811(e)(3), 22-3504, -3504(c)

appeals—constitutional law—criminal procedure—trials
State v. Williams
Graham District Court—Reversed and remanded
No. 120,099—October 4, 2019

FACTS: Under a deferred prosecution diversion agreement, State would dismiss felony charges if, in part, Williams paid $490 in costs and fees within one year. After 11 months of nonpayment, State moved to rescind the agreement. District court granted the motion and immediately found Williams guilty as charged based on fact stipulations in the diversion agreement. Williams appealed.

ISSUES: (1) Diversion Agreement; (2) Waiver of Right to Jury Trial

HELD: District court’s revocation of the diversion agreement, based on Williams’ admitted lack of payments, was not error.

Issue is reviewed for first time on appeal to prevent denial of a fundamental right. A district court’s failure to comply with requirement to advise a defendant of right to a jury trial on the record requires reversal and remand. Here, no written waiver and the record does not show the district court ever advised Williams about his right to a jury trial. Reversed and remanded to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

STATUTE: K.S.A. 22-2911, -3403(1)

Tags:  Edwards District Court  Ellis District Court  Graham District Court  Shawnee District Court 

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September 27, 2019 Digests

Posted By Administrator, Monday, September 30, 2019

Kansas Supreme Court

Attorney Discipline

PUBLISHED CENSURE
IN RE JOSHUA T. MATTHEWS
NO. 120,924—SEPTEMBER 27, 2019

FACTS: After a stipulation was made, a hearing panel found that Matthews violated KRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(g) (conduct adversely reflecting on lawyer's fitness to practice law), and Supreme Court Rule 211(b) (failure to file answer in a disciplinary proceeding). Matthews failed to satisfy the CLE requirements for the 2017 reporting year. In an attempt to come in to compliance, Matthews enrolled in a day-long program in Missouri. While attending the live programming, Matthews watched on-demand CLE programs over the course of five hours. The affidavits submitted showed that Matthews attended more than eight hours of CLE in one day, which is not permitted by Kansas rules. When questioned, Matthews initially denied watching video on-demand programs while also attending in-person programming. After his inaccuracies were questioned, Matthews self-reported his conduct to the disciplinary administrator.

HEARING PANEL: Matthews stipulated to the rule violations. Matthews had prior rule violations and the panel found dishonest actions after lying about his attendance. Based on the nature of the misconduct, the disciplinary administrator recommended that Matthews receive a public censure. Matthews asked that he be informally admonished.

HELD: The hearing panel's findings of fact and conclusions were accepted. In light of his prior discipline, the court rejected Matthews' request for an informal admonition. The court accepted the disciplinary administrator's recommendation for published censure.

 

ORDER OF SUSPENSION
IN RE KEVIN P. SHEPHERD
NO. 120,875—SEPTEMBER 27, 2019

FACTS: A hearing panel determined that Shepherd violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(a) (safekeeping property), 1.15(d)(1) (preserving client funds), 1.16(a)(1) (withdrawing from representation), 8.1(a) (false statement in connection with disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Complaints arose regarding Shepherd's conduct after he failed to file an appellate brief, causing the appeal to be dismissed. Despite repeated promises that he would seek to have the appeal reinstated, Shepherd failed to act. Shepherd also had business checks returned for insufficient funds in diversion cases. This prompted an audit of his bank accounts, which revealed irregularities.

HEARING PANEL: The hearing panel found evidence sufficient enough to sustain violations of the KRPC. When considering the appropriate discipline, the panel noted that Shepherd had a history of prior offenses, including one from 2009 which resulted in a three-year suspension of Shepherd's license. There were also substantial mitigating factors present, including mental health struggles which contributed to the misconduct. Shepherd made restitution to his clients and enjoys the support of his local bench and bar. The disciplinary administrator recommended that Shepherd be indefinitely suspended. Shepherd asked that he be placed on probation, and he began working on some of his proposed probationary terms prior to the hearing. The hearing panel determined that Shepherd's dishonest conduct could not be cured by probation. Rather, the hearing panel recommended that Shepherd be suspended for two years, and that he be allowed to apply for reinstatement after one year.

HELD: The hearing panel's findings of fact and conclusions were deemed admitted. At the hearing, citing Shepherd's notable progress, the disciplinary administrator asked that Shepherd be indefinitely suspended but that the suspension be stayed to allow Shepherd to serve a five-year term of probation. The court found that Shepherd's misconduct was too serious to be cured by probation. A majority of the court imposed a two-year suspension, but stipulated that Shepherd should be allowed to seek reinstatement after one year. Other members of the court would impose either a more or less severe punishment.

 

Kansas Court of Appeals

 

Civil

CONSTRUCTION CONTRACTS—LEASES
DRYWALL SYSTEMS, INC V. A. ARNOLD OF KANSAS CITY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,091—SEPTEMBER 27, 2019

FACTS: A. Arnold entered a five-year lease for part of a building which was owned by BMJ. There were other tenants using part of the building, so before A. Arnold could use the space, it needed to have a partition wall built. Drywall Systems, Inc. submitted the winning bid for the project. Drywall completed the work, but A. Arnold did not pay and Drywall sued both A. Arnold and BMJ for breach of contract, unjust enrichment, and a mechanic's lien foreclosure. The district court found for Drywall on the breach of contract action. But it refused to award prejudgment interest and attorney fees because BMJ, the property owner, was not a party to the contract and A. Arnold, who was a party, was not an "owner" as defined by the Kansas Fairness in Private Construction Contract Act. Drywall appealed.

ISSUE: (1) Liability under the Act

HELD: Drywall did prevail on a contract claim under the Act. But the clear and unambiguous language in the Act shows that only an "owner" can be liable for prejudgment interest and attorney fees. It is undisputed that A. Arnold is not the owner because it only holds a leasehold interest in the property. Without status as an owner, Drywall cannot recover from A. Arnold.

STATUTE: K.S.A. 2018 Supp. 16-1802(e), -1803, -1803(d), -1803(e), -1804, -1805, -1806

 

VEHICLE LICENSURE
CENTRAL RV V. KANSAS DEPARTMENT OF REVENUE
FRANKLIN DISTRICT COURT—AFFIRMED
NO. 119,744—SEPTEMBER 27, 2019

FACTS: A travel trailer insured by Safeco Insurance was damaged in an accident in Oregon. Safeco obtained a salvage title from the State of Oregon which carried a "TOTALED" designation. Central RV bought the trailer from Safeco. When Central RV titled the vehicle with the State of Kansas it received a rebuilt salvage title. Central RV asked the Department of Revenue to reconsider and give it a clean title. The Department of Revenue refused, so Central RV filed suit hoping to force a title change. The district court sided with the Department of Revenue, and Central RV appealed.

ISSUE: (1) The type of title required

HELD: The trailer met the Kansas statutory definition for a rebuilt salvage vehicle that should receive a rebuilt salvage title. The fact that the salvage status was issued by another state does not keep the trailer from being a rebuilt salvage vehicle. In fact, the statute exists to prevent people from title washing vehicles which were totaled in other states.

STATUTE: K.S.A. 2018 Supp. 8-127, -135, -126(ll), -126(mm), -126(qq), -126(rr), -197, -197(b)(2), -197(b)(5)

 

DIVORCE—MILITARY RETIREMENT
IN RE MARRIAGE OF THRAILKILL
GRAHAM DISTRICT COURT—AFFIRMED IN PART AND DISMISSED IN PART
NO. 118,246—SEPTEMBER 27, 2019

FACTS: Doug and Denise Thrailkill were both in the military, although Doug continued his career until he retired as a commissioned officer. Because of the length of his service, Doug began receiving retirement pay as soon as he retired. Doug worked a civilian job for a bit, but ultimately quit and received military disability. Denise filed for divorce in 2016. The proceedings were bifurcated and the decree was handed down before the property settlement was complete. After a hearing on property settlement issues, the district court equally divided the parties' retirement pay. The court awarded maintenance to Denise and ordered Doug to pay half of the balance on a loan that was taken out to help finance their son's education. The district court also had to address Doug's Survivor Benefit Plan, which involved a survivor benefit for a spouse after a military member's death. Doug appealed.

ISSUES: (1) Authority to rule on Survivor Benefit Plan, (2) calculation of maintenance and child support, (3) Doug's obligation on the student loan, (4) postjudgment issues

HELD: After a 1986 statutory amendment, a divorce court can order a service member to retain his or her former spouse as the Survivor Benefit Plan beneficiary, even after divorce. Because Doug was married to Denise when he began receiving retirement pay, Denise was included in spouse coverage. And now, because of the divorce, Doug can elect former-spouse coverage for Denise. There is no statutory limitation to a state divorce court's ability to make orders regarding former-spouse coverage. The district court must consider all income when making maintenance and child support decisions. A portion of each party's retirement pay must be considered as income. In addition, the maintenance award served to equalize the parties' income for the next eight years. Denise borrowed $22,000 towards her son's educational expenses. At the time of the hearing on financial matters, the balance was $11,000. The student loan was correctly treated as a marital debt. The district court correctly ordered each party to pay half of the remaining balance. Doug cannot appeal issues involving postjudgment orders because they were not mentioned in the notice of appeal, and the court does not have jurisdiction to consider them.

STATUTES: 10 U.S.C. § 1447, § 1448, § 1450, § 1450(f)(3); K.S.A. 2018 Supp. 23-2801(a), -2802(b), -2902(a), -3001

 

MEDICAL MALPRACTICE
BROWN V. TROBOUGH
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,501—SEPTEMBER 27, 2019

FACTS: Katy Brown went into labor in September 2015. Her labor was managed by Dr. Schuchmann, a resident. Dr. Trobough was the on-call physician; as such, he was also Dr. Schuchmann's faculty advisor and supervisor. During Katy's labor process, even though he was informed that Katy had a high risk pregnancy, Dr. Trobough left the hospital and was updated by Dr. Schuchmann via text message. Dr. Trobough eventually arrived at the hospital 10 minutes before Katy's son, Carter, was born. Unfortunately, Carter was critically ill when born and suffered from lack of oxygen. Dr. Trobough later texted another physician that during labor, nurses were only monitoring Katy's heart rate and not Carter's, missing the fact that he was in distress. Katy and her husband sued Drs. Schuchmann and Trobough and the hospital for negligence. The hospital and Dr. Schuchmann settled. After that was done, the Browns were given permission to amend their petition to include as defendants Dr. Teply, Lincoln Center, the medical practice, and the Kansas University Medical Education Foundation. Dr. Teply was the training site director for KU Medical School at Lincoln Center. The district court granted Lincoln Center's motion to dismiss, finding that it was barred as derivative by K.S.A. 40-3403(h). Dr. Teply's motion for dismissal was similarly granted after the district court found that Dr. Teply had no independent duty to Carter.

ISSUE: (1) Whether claim is barred by K.S.A. 40-3403(h)

HELD: The plain language of K.S.A. 40-3403(h) bars Brown's claim against Dr. Teply. The statute applies regardless of whether the plaintiffs seek to apply a corporate negligence theory. Any claim against Dr. Teply, even if it seeks to hold him liable for his failure to enforce the resident supervision rule, is derivative of the other doctors' alleged negligence. Had Drs. Schuchmann and Trobough not allegedly injured Carter there would be no claim against Dr. Teply. As a result, K.S.A. 40-3403(h) prevents Brown from bringing suit against Dr. Teply.

STATUTE: K.S.A. 40-3401(f), -3403(a), -3403(h)

 

criminal

constitutional law—criminal law—JUveniles—sentences—statutes
state v. N.R.
reno district court—affirmed
NO. 119,796—september 27, 2019

FACTS: 14-yr.-old N.R. was adjudicated a juvenile offender in 2006. Magistrate granted probation and ordered registration under Kansas Offender Registration Act (KORA) as a sex offender. Prior to the 5-year registration period expiring, the legislature amended KORA to require lifetime registration for N.R.’s age and offense. N.R. was charged in 2017 of failing to register. He moved to dismiss, arguing lifetime registration violated ex post facto and cruel and unusual constitutional protections. District court denied the motion based on controlling Kansas Supreme Court precedent regarding lifetime registration requirements. N.R. appealed, arguing KORA’s lifetime registration requirement as a sex offender is unconstitutional as applied to juveniles. He also argued his sentence was illegal because the magistrate judge lacked authority to order him to register.

ISSUES: (1) Constitutionality of registration requirement—juveniles, (2) KORA registration ordered by magistrate

HELD: District court did not err in finding the registration requirement constitutional as applied to juveniles. Kansas courts have repeatedly held that KORA offender registration is not punishment, and that a registration requirement is not part of a defendant’s criminal sentence. State v. Dull, 302 Kan. 32 (2015), is distinguished by the mandatory postrelase supervision ordered in that case being part of the juvenile’s sentence. N.R. showed no reason why registration should be considered punishment for juveniles. Test in State v. Petersen-Beard, 304 Kan. 192 (2016), is summarized and applied finding no showing the outcome would have been different had it involved a juvenile instead of an adult.

            KORA itself, rather than a court order, imposes the duty to register upon sex offenders. Any lack of magistrate judge’s authority is immaterial because the duty to register arises by statute, falls on N.R., and is not part of N.R.’s sentence.

STATUTES: K.S.A. 2018 Supp. 20-302b(a)(6), 22-4902(b), -4906(h), 38-2356(b); K.S.A. 2006 Supp. 22-4906(h)(1); K.S.A. 2005 Supp. 21-3502(a)(2), -3502(c); K.S.A. 22-4901 et seq.,

 

appeals—constitutional law—criminal law—first amendment—statutes—torts
state v. smith
douglas district court—reversed and sentence vacated
no. 119,919—september 27, 2019

FACTS: Perez lived across the street from Smith who accused Perez of sexual misconduct with Smith’s child. District court denied Smith a final protection from stalking (PFS) order against Perez, but granted Perez a final PFS order against Smith that included a special prohibition against Smith making any direct or indirect disparaging statements in public regarding Perez being a child molester. While entering her residence, Smith told her husband who was standing in their driveway to come inside away from the pedophile. Perez and family heard and recorded that statement. Smith charged with violating the PFS order. She moved to dismiss, arguing the PFS order was an unconstitutional, content-based restriction on her free-speech rights, and that criminal prosecution under K.S.A. 2017 Supp.21-5924 for violating the order was unconstitutional as applied to her. She appealed on the same constitutional claims, and also argued insufficient evidence showed that her statement was made in public. State asserts the constitutional claim is an impermissible collateral attack on the earlier PFS order, and State questions whether the PFS order is a content-based restriction.

ISSUES: (1) Sufficiency of the evidence, (2) procedural bar to constitutional question, (3) First Amendment, (4) content-based restriction

HELD: Sufficient evidence shows that Smith made the statement in public. Her Fourth Amendment argument concerning privacy of curtilage of her home is not applicable. Even with a curtilage analysis, her words carried beyond that curtilage and invaded curtilage of Perez’ house.

            Smith’s appeal is not procedurally barred. She is appealing a criminal judgment with a statutory right to appeal, and her free speech issue is now ripe. Even if she could have raised her First Amendment objections when the district court issued the PFS order, there is no bar to her raising them now.

            Smith’s speech warrants First Amendment protection. State’s invocation of the defamation category of speech that may be restricted fails. Cases involving libel are distinguished from isolated slander in this case. Even if slanderous statement could be assumed as defamatory speech, no evidence that Smith’s statement was in fact defamatory. No showing that Smith’s statement was knowingly false, and that Smith’s statement caused any harm to Perez’ reputation.

            The PFS order in this case is a content-based prior restraint on speech, thus presumptively unconstitutional. State fails to show the PFS order serves a compelling state interest. Purpose of Kansas stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The statutes expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander. Under circumstances in this case, the PFS order, as applied solely to speech which did not subject a person to a reasonable fear of physical harm, was an improper prior restraint of Smith’s  constitutional right to freedom of speech. Conviction is reversed and sentence vacated.

STATUTES: K.S.A. 2018 Supp. 21-5427, 22-3602(a), 60-31a02, -31a02(d). -31a02(d)(1), -31a02(d)(2), -31a05(a); K.S.A. 2017 Supp. 21-5924

Tags:  1st Amendment  attorney discipline  Douglas District Court  Franklin District Court  Graham District Court  Johnson District Court  KORA Lifetime Registration for Juvenile Offender  medical malpractice  military retirement in divorce  Reno District Court  Shawnee District Court 

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September 20, 2019 Digests

Posted By Administration, Tuesday, September 24, 2019

Kansas Supreme Court

 

criminal 

constitutional law—criminal law—criminal procedure—evidence—jury instructions—restitution—verdicts
state v. gentry
saline district court—convictions affirmed, restitution vacated in part
No. 116,371—september 20, 2019

FACTS: Palacio fired a gun that killed a passenger in a passing truck. Gentry was charged with aiding or abetting by planning and fueling the encounter and directing Palacio to shoot. Jury convicted Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. Sentencing court ordered restitution that included $3642.05 for State’s trial preparation and witness expenses. On appeal, Gentry claimed district court erred by: (1) not instructing jury on unintentional but reckless second-degree murder, reckless involuntary manslaughter, and voluntary manslaughter as lesser included offenses of first-degree murder;  (2) not instructing jury on attempted unintentional but reckless second-degree murder, attempted reckless voluntary manslaughter, and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (3) instructional error that denied Gentry his constitutional right to a fair trial; (4) denying Gentry’s motion for continuance for additional time to secure the firearms expert in Palacio’s trial; and (5) ordering Gentry to pay $3642.05 in restitution to Saline County Attorney’s office for expenses related to witnesses and preparation of photographic trial exhibits.

ISSUES: (1) Lesser included offenses—first-degree murder, (2) lesser included offenses—attempted first-degree murder, (3) constitutional right to fair trial, (4) continuance, (5) restitution

HELD: Gentry’s requested instruction on voluntary manslaughter as a lesser included offense of first-degree murder would have been legally appropriate, but not factually appropriate where Gentry’s deliberate actions were not the actions of a person who had lost control, and an aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime. Because evidence would reasonably justify a jury finding that Gentry acted without an intent to kill but with knowledge that Palacio would engage in conduct dangerous to life when he gave assistance or encouraged Palacio in committing homicide, instructions on lesser included offenses of unintentional but reckless second-degree murder and reckless involuntary manslaughter would have been both legally and factually appropriate. District court erred in declining to give these requested instructions, but the error was harmless. Application of skip rule is discussed regarding situation in this case where jury split its guilty verdict between premeditated first-degree murder and first-degree felony murder.

            As held in State v. Shannon, 258 Kan. 425 (1995), and State v. Louis, 305 Kan. 453 (2016), attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kanas, and thus would have been legally inappropriate instructions. An instruction on attempted voluntary manslaughter would have been legally appropriate, but not factually appropriate where  evidence did not support a finding that Gentry acted in the heat of passion, and Gentry failed to explain how facts in the case might support finding that Palacio acted in the heat of passion.

            Constitutional claim raised for first time on appeal is not reviewed.

            No abuse of district court’s discretion in denying motion for continuance.

            District court could have taxed Gentry for the photocopying and witness expenses as court costs, but instead specifically ordered reimbursement of these expenses as restitution. This was a legal error and an abuse of discretion. That portion of restitution order is vacated.    

STATUTES: K.S.A. 2018 Supp. 21-5109, -5202(c), -5210(a), -5301, -5403(a)(2), -5404, -5405(a)(1), -6604, -6604(b)(1), 22-3414, 28-172a, -172a(d); K.S.A. 22-3801, -3801(a), 60-455

 

Kansas Court of Appeals

Civil

CONSTRUCTION—CONTRACTS
WHEATLAND CONTRACTING V. JACO GENERAL CONTRACTOR
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,401—SEPTEMBER 20, 2019

FACTS: Wheatland and Jaco contracted for Wheatland to perform plumbing and associated work on a commercial building in Johnson County. The contract contained a forum selection clause which stipulated that to the "extent permitted by law", venue would be in Sedgwick County. The relationship between the parties soured, and Wheatland sued Jaco in Johnson County District Court claiming breach of contract and other violations of the Kansas Fairness in Private Construction Contract Act. Jaco filed a motion to dismiss or, in the alternative, to transfer venue to Sedgwick County under the terms of the contract. The district court denied that motion, citing K.S.A. 16-1806 which requires that actions under the KFPCCA must be filed in the county where the project is located. The Kansas Court of Appeals granted Jaco's application for interlocutory review.

ISSUE: (1) Venue

HELD: The plain language of the KFPCCA does not allow parties to avoid rights or duties of the act through contractual terms. The clear language of K.S.A. 16-806 requires that venue for a lawsuit must be in the county where the real property is located. Venue selection is a "right or duty" under a contract, meaning the venue selection provision in the construction contract is unenforceable.

STATUTE: K.S.A. 16-1801, -1801(b), -1803, -1804, -1805, -1806

Tags:  constitutional law  construction  contracts  criminal law  Johnson District Court  Saline District Court 

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September 13, 2019 Digests

Posted By Administration, Monday, September 16, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF REINSTATEMENT
IN RE HARRY LOUIS NAJIM
NO. 116,943—SEPTEMBER 11, 2019

FACTS: Najim's license to practice law in Kansas was indefinitely suspended in December 2017. Najim petitioned for reinstatement in November 2018. After an investigation, Najim appeared at a hearing and the panel recommended that Najim's license be reinstated.

HELD: After a thorough review of the hearing panel's report, the court accepts the findings and finds that Najim's license should be reinstated.

 

ORDER OF REINSTATEMENT
IN RE DAVID E. HERRON,II
NO. 119,726—SEPTEMBER 11, 2019

FACTS: In May 2019, Herron's license to practice law in Kansas was suspended for 60 days. After that time elapsed, Herron filed a petition for reinstatement. The office of the Disciplinary Administrator had no objection to reinstatement

HELD: Seeing no objection, the court considered and granted Herron's petition for reinstatement.

 

Kansas Court of Appeals

 

criminal

criminal law—evidence—motions—statutes
state v. justice-puett
riley county district court—reversed and sentence vacated
no. 119,697—september 13, 2019

FACTS: Jurtice-Puett appealed her jury conviction for possession of a theft detection device remover. Citing the lack of evidence identifying what she had used to cut a security detection device from two phones, she argued in part that K.S.A. 2018 Supp. 21-5805(c) only prohibits possession of either a tool or device specifically designed to remove or defeat theft detection devices on merchandise.   

ISSUE: K.S.A. 2018 Supp. 21-5805(c)

HELD: K.S.A. 2018 Supp. 21-5805(c) is interpreted as issue of first impression. The statute is plain and unambiguous. State’s argument that statute prohibits possessing any kind of tool or device capable of removing a theft detection device is rejected. Instead, when words of K.S.A. 2018 Supp. 21-5805(c) are given their ordinary meaning, and read in context with other subsections, it is clear that "tool" and "device" are both modified by the descriptive phrase "designed to allow the removal of any theft detection device." Thus the phrase "designed to allow the removal of any theft detection device" requires an intentional design particular to, and designed for the purpose of, the removal of any theft detection device. Viewing evidence in light most favorable to the State, no rational fact-finder could have found Justice-Puett guilty of possessing a tool or device designed to allow the removal of any theft detection device. Without evidence of what tool she may have used, the burden of proof regarding the intentional design element is not met. Defendant's motion for judgment of acquittal should have been granted.

STATUTE: K.S.A. 2018 Supp. 21-5805(c)

Tags:  Attorney Discipline  Riley Co. District Court 

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September 6, 2019 Digests

Posted By Administration, Tuesday, September 10, 2019

Kansas Supreme Court

CIVIL

AMANUENSIS—ESTATES
IN RE ESTATE OF MOORE
COWLEY DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED

NO. 115,628—SEPTEMBER 6, 2019

FACTS: Roxie Moore owned close to 900 acres of land throughout the state. Over the years, she used portions of that land as security to help her son, Harvey. Not only did Roxie use land as collateral for Harvey, but Harvey took over $100,000 from Roxie through the years. Roxie's health began to decline, and she named Maureen—Harvey's ex-wife—as her durable power of attorney. Around this time, Roxie hired counsel to protect the rest of her property from Harvey. She wanted a transfer-on-death deed that would assign the land to Harvey's children through Maureen. After the deed was prepared and Roxie read it, she asked Maureen to sign the deed for her, with a note that she was the power of attorney. Roxie died in 2009, and Maureen executed a warranty deed transferring property to Harvey's sons, as Roxie wished. Harvey opened a probate proceeding seeking a determination of descent of the real estate. The sons responded that certain real estate had passed to them under the transfer-on-death deed. The district court granted summary judgment to the sons, finding that Maureen acted as amanuensis in signing the new deed for Roxie. The court of appeals affirmed, and the Supreme Court granted Harvey's petition for review.

ISSUES: (1) Signature by amanuensis; (2) undue influence

HELD: There is no statutory prohibition against signing a deed via an amanuensis. The amanuensis signs with the same authority and legal effect as if the signature were physically provided by the principal directing the signature. The district court properly found, by a preponderance of the evidence, that Maureen fulfilled Roxie's request to sign the deed on her behalf. That is a valid exercise of an amanuensis. When signing the deed, Maureen directed the property to herself and then on to her sons. A self-interested amanuensis presents a danger. But in this case, clear and convincing evidence rebutted any presumption of undue influence, and there was no evidence that Roxie was not competent to execute the deed.

CONCURRENCE (Stegall, J.): Kansas law clearly allows an amanuensis to sign a deed. But the majority improperly conflates amanuensis with an owner's agent. The use of an agent would not be a binding signature.

DISSENT (Johnson, J.): It is not permissible to skip the formalities associated with creating a property deed.

STATUTES: K.S.A. 2018 Supp. 58-654(f)(6); K.S.A. 58-2209, 59-605(b), -3501, -3501(a), -3502

NATURAL GAS
NORTHERN NATURAL GAS V. ONEOK
PRATT DISTRICT COURT—REVERSED AND REMANDED
NO. 118,239—SEPTEMBER 6, 2019

FACTS: Northern Natural Gas maintains an underground natural gas storage facility. It holds certifications which allow it to inject and store previously extracted natural gas, which allows Northern to sell it when there are favorable market conditions. In 2008, Northern filed suit against two producers, claiming they artificially created conditions which caused Northern's storage gas to migrate beyond the storage field's certified boundaries. That suit ultimately ended up with FERC issuing a certificate on June 2, 2010, authorizing Northern to expand its field boundaries, extending its buffer zone to protect migrating gas from capture. Back in district court, Northern's motion for reconsideration, which asked for different treatment for post-FERC decision gas capture, was denied. Northern appealed and the case was transferred to the Kansas Supreme Court after docketing.

ISSUE: (1) Right to capture storage gas after June 2, 2019

HELD: Northern became exempt from common-law rule of capture after June 2, 2010, when it received the FERC certificate authorizing additional condemnation. The district court erred when it ruled that K.S.A. 55-1210 superseded case law to the contrary. This caselaw is not an unconstitutional taking of property. The rule of capture does not vest title, it simple recognizes an ability to produce.

DISSENT (Johnson, J., joined by Stegall, J.): Neither a court nor a federal agency can take a property interest from a Kansas landowner.

DISSENT (Stegall, J.): In addition to agreeing with Justice Johnson, the prior caselaw relied on by the majority is wrong and should be reversed.

STATUTE: K.S.A. 55-1201, -1202, -1204, -1205, -1210, -1210(a), -1210(c)

APPELLATE PROCEDURE—RES JUDICATA
IN RE CARE AND TREATMENT OF SIGLER
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 118,914—SEPTEMBER 6, 2019

FACTS: Sigler was convicted of aggravated criminal sodomy and indecent solicitation of a child. Before he was released from prison, the State petitioned that he be committed as a sexually violent predator. That case went to trial in 2015, but after a hearing the district court determined that Sigler did not meet all of the criteria to be indefinitely committed. Sigler was released, but was returned to prison shortly thereafter for violating the terms of his parole. As it did before, the State filed a petition before Sigler's release asking that he be committed as a sexually violent predator. Sigler asked that the petition be denied on grounds of res judicata or collateral estoppel. The motion was denied and a jury determined that Sigler was a sexually violent predator. Sigler appealed and the court of appeals affirmed the jury's finding. Sigler's petition for review was granted.

ISSUES: (1) Existence of a material change in circumstances; (2) denial of motion for mistrial

HELD: Sigler failed to preserve for appeal any argument involving collateral estoppel. Under a res judicata analysis, the State presented evidence of a material change in Sigler's mental state and risk assessment. Specifically, the State proved that Sigler has serious difficulty controlling his dangerous behavior. Statements made about Sigler at trial were unquestionably wrong. But any prejudice which arose from those statements was cured, and the district court did not err by denying a motion for mistrial.

DISSENT (Johnson, J.): The Sexually Violent Predator Act should be interpreted to permit the State only one opportunity to seek involuntary civil commitment. In addition, viewing pornography or sexually explicit websites cannot be grounds for commitment.

STATUTE: K.S.A. 59-29a03, -29a03(a)(1)

 

EMPLOYMENT LAW—RETALIATORY JOB ACTION
HILL V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED IN PART
AND REVERSED IN PART, CASE REMANDED
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 114,403—SEPTEMBER 6, 2019

FACTS: Hill was hired by the Kansas Highway Patrol as a trooper. He was assigned to Troop H in southeastern Kansas. Hill was fired in November 2011 after he was involved in a dispute with a supervisor who was investigating a civilian complaint against Hill. The Kansas Civil Service Board reversed the termination but found that Hill deserved discipline and sanctioned him with a one-year suspension without pay. KHP abided by the decision and treated Hill as a new hire who could be assigned wherever staffing needs were greatest. At that time, Finney County in southwestern Kansas had the greatest need for troopers. KHP admitted that it was unusual to involuntarily reassign a trooper to a different geographic area. Hill asked the KCSB to prevent the transfer but the Board denied his request. Hill then asked KHP for a hardship assignment so that he could care for his mother, who had serious health problems. Hill reported to Finney County but quickly asked for reassignment back to his former duty station. Hill sued both KHP and his supervisor in district court, claiming that the transfer was retaliatory and in violation of public policy. In the time since the suit was filed, Hill received a transfer and a promotion. The district court granted the defendants' motion for summary judgment, finding that Hill did not establish prima facie proof of retaliation. The court of appeals affirmed that decision. The Kansas Supreme Court granted Hill's petition for review.

ISSUES: (1) Jurisdiction; (2) sovereign immunity; (3) summary judgment

HELD: Torts committed by a state agency fall outside of the Kansas Judicial Review Act and the Civil Service Act does not provide administrative review for wrongful transfers or job assignments. This gives the court jurisdiction to hear Hill's case. There are exceptions to Kansas's employment-at-will doctrine. Specifically, there is an anti-retaliation public policy. Some employee retaliations which fall short of termination or demotion may give rise to an actionable tort, as long as those retaliations are sufficiently coercive to undermine public policy. The Kansas Tort Claims Act does not immunize the defendants from liability for such a retaliation claim. Hill presented a prima facie case of job retaliation, which should have prompted the district court to ask KHP to provide a nondiscriminatory reason for the transfer.

DISSENT (Stegall, J., joined by Luckert, J.): The majority read the KTCA too broadly. The KTCA provides immunity to KHP.

STATUTES: K.S.A. 2018 Supp. 75-2929d(a)(1), -2949(g). -6103(a), -6104, -6104(h), -6104(n), -6104(s); K.S.A. 75-2947(a), -2957

Criminal

appellate procedure—criminal procedure—evidence—
prosecutors—sentences—statutes—witnesses
State v. Ballou
Miami District Court—Affirmed in part and vacated in part
Court of Appeals—affirmed
No. 116,252—september 6, 2019

FACTS: Ballou was convicted of rape and aggravated indecent liberties with a child. On appeal, Ballou claimed prosecutor erred in closing argument by expanding time frame when crime allegedly occurred. He also claimed district court erred in admitting evidence of videotaped interview of child victim without ensuring compliance with K.S.A. 2018 Supp. 60-456(b) for scientific evidence of Finding Words/ChildFirst protocol, or conducting a taint hearing to determine reliability; by admitting evidence of alleged prior sexual misconduct by Ballou; and in not ordering a psychological evaluation of child victim. Court of appeals affirmed the convictions and sentence, assuming in part the prosecutor misstated the law defining “on or about” the date of the alleged crime, but finding error was harmless. Review granted on Ballou’s issues and on State’s conditional cross-petition for holding that prosecutor’s comments were not a misstatement of law. Sentencing error considered sua sponte.    

ISSUES: (1) Prosecutorial error; (2) evidence—child interview and taint hearing; (3) independent psychological examination; (4) cumulative error; (5) sentencing error

HELD: No need to reach legal arguments about meaning of “on or about” in this case because no factual support for prosecutor’s suggestion that the charged crimes occurred during four-and-a-half months prior to the alleged date of the crime. Any time discrepancy in time frame related to the possibility the crimes occurred after the date alleged. Prosecutor’s argument outside the evidence was error, but State meet its Chapman burden of establishing no reasonable possibility this error contributed to the verdict.

K.S.A. 2018 Supp. 60-456(b) does not apply to the child’s interview, and district court did not err in admitting the interview. Expert testimony is not necessarily required as a foundation to introducing a child witness’ interview into evidence and no specific formula or protocol need be followed when conducting an interview. Here, examiner never offered an opinion or otherwise testified to anything based on her scientific, technical, or other specialized knowledge. She simply relayed the factual circumstances under which the statement was taken, and did not offer an opinion about the reliability of the child’s statement or whether she found the statement believable or truthful. Ballou failed to preserve his argument about the need for a taint hearing.

Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct. Panel’s conclusion on this point is affirmed, but disagreement stated with panel’s alternative finding—that Ballou waived the argument because after the State admitted the complained-of-evidence Ballou used it to discredit the child’s testimony—and with panel’s cite of State v. Berriozabal, 291 Kan. 568 (2010), for support.

No abuse of district court’s discretion in denying Ballou’s pretrial motion for an independent psychological examination of the child victim. District court applied the appropriate factors in State v. Gregg, 226 Kan. 481 (1979), for determining whether a criminal defendant is entitled to an independent psychological evaluation of a witness.

The single, nonreversible prosecutorial error found in this case does not establish reversible cumulative error.

Off-grid lifetime sentences are to be followed by parole, not lifetime postrelease supervision as ordered in this case. That portion of the district court’s judgment is vacated.

STATUTES: K.S.A. 2018 Supp. 60-455(d), -456, -456(a), -456(b); K.S.A. 2013 Supp. 21-5503(b)(2), -5506(c)(3), -6627(a)(1)(B), -6627(a)(1)(C), 22-3717(b)(5); and K.S.A. 22-3504, 60-401, -401(a), -404, -407, -417, -419

constitutional law—criminal procedure—judges—juries—jury instructions
State v. Boothby
Stevens district court—affirmed
court of appeals—affirmed
No. 116,505—september 6, 2019

FACTS: Jury convicted Boothby of aggravated assault and criminal threat for pointing a gun at victim and threatening to come back when victim was alone. On appeal, Boothby claimed reversible judicial misconduct during voir dire by district court judge’s suggestion to one venire panel that Boothby was charged with aggravated battery in a former case. Citing State v. Smith-Parker, 301 Kan. 132 (2014), as recognizing a right to jury nullification, Boothby also claimed district court erred when it instructed jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” Court of appeals affirmed in unpublished opinion, finding Boothby—as the party alleging judicial misconduct—failed to meet his burden of showing prejudice. Panel also found the challenged jury instruction was legally correct, and in the alternative, the instruction was not clearly erroneous. Boothby’s petition for review granted.

ISSUES: (1) Judicial comment error; (2) jury instruction—verdict

HELD: From now on, an erroneous judicial comment made in front of the jury that is not a jury

instruction or legal ruling will be reviewed as "judicial comment error" under the constitutional harmlessness test in Chapman v. California, 386 U.S. 18 (1967). Existing precedent concerning structural error or other kinds of error traditionally labeled “judicial misconduct” remains undisturbed. State’s invitation to adopt the federal plain error standard is declined. Judicial comment error will be analyzed in two steps: error and prejudice, with the prejudice step reviewed under the Chapman constitutional harmlessness test. Thus, judicial comment error is reversible unless the State, as the party benefitting from judicial comment error, proves beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. Judicial comment error is reviewable on appeal despite the lack of a contemporaneous objection at trial. Here, State met its burden to prove the judicial comment error was harmless.

Instruction challenged in this case is legally correct, and a district court does not err when it tells a jury to follow the law. Smith-Parker did not establish a “right” to jury nullification, and the Court declines to recognize such a right in this case. Also, the reasonable doubt instruction in Smith-Parker is distinguishable from the instruction Boothby challenges.

STATUTES: K.S.A. 2018 Supp. 22-3414(3); K.S.A. 22-3403(3), 60-455

criminal procedure—evidence
state v. howling
pratt district court—affirmed
court of appeals—affirmed
No. 116,524—september 6, 2019

FACTS: Howling was convicted of aggravated criminal sodomy. On appeal, he claimed district court erred in admitting a videotape of the forensic interview of the child victim, arguing this should have been treated as expert testimony. He also challenged sufficiency of the evidence supporting his conviction, citing the victim’s inconsistent statements and caregivers’ failure to observe any injury for more than 24 hours while the child was in their care. Court of Appeals affirmed in unpublished opinion, finding a video of a forensic interview is not expert testimony, and the evidence was relevant and admissible. It further found sufficient evidence supported the aggravated criminal sodomy conviction. Howling’s petition for review on both issues granted.

ISSUES: (1) Evidence—forensic interview of child; (2) sufficiency of the evidence

HELD: Trial court did not err in admitting the interview. As explained in State v. Ballou, 310 Kan. __ (decided this same day), a forensic interview standing alone is not expert testimony. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge. Whether to adopt a taint hearing process in Kansas is not considered. No separate taint hearing was required in this case where district court performed its gatekeeping function to consider the reliability of the child’s statements resulting from the forensic interview.

Under facts in this case, sufficient evidence supported Howling’s aggravated criminal sodomy conviction.  

STATUTE: K.S.A. 2018 Supp. 60-456, -456(b)

 

constitutional law—criminal law—criminal procedure—
jury instructions—sentences
state v. Perez-Medina
ford district court—affirmed
court of appeals—affirmed
No. 114,589—september 6, 2019

FACTS: A jury convicted Perez-Median as charged of aggravated battery for knowingly causing great bodily harm or disfigurement by using a knife to cut victim’s face. District court refused to give any recklessness-based lesser included crime instructions because evidence justified knowing rather than reckless actions. Sentence included registration under Kansas Offender Registration Act (KORA) based on sentencing court’s finding that a deadly weapon was used. Perez-Medina appealed, claiming in part the jury should have been instructed on reckless aggravated battery. He also claimed the sentencing court’s finding of a deadly weapon to impose KORA registration violated Apprendi. Court of Appeals affirmed in unpublished opinion, finding no clear error was shown by omission of instructions on lesser included crimes where such instructions were legally but not factually appropriate. Review granted on jury instruction challenge, and on challenge to KORA registration.

ISSUES: (1) Jury instructions; (2) KORA registration

HELD: Clear error standard does not apply because Perez-Median adequately preserved this issue for appellate review. Even assuming district court erred in refusing to instruct on reckless aggravated battery offenses, the error is not reversible because no evidence supported a reckless act by the defendant.

Perez-Medina must register as a violent offender. He provided no evidence or argument to establish the punitive effects of registration under KORA. Under State v. Petersen-Beard, 304 Kan 192, cert. denied 138 S.Ct. 2673 (2018), the registration requirement is upheld by an equally-divided court of six justices.

CONCURRENCE AND DISSENT (Johnson, J.)(joined by Beier and Rosen, JJ.): Agrees with majority’s handling of the lesser included offenses, but would vacate the registration requirement. He continues his vigorous dissent on majority’s holding that KORA registration is not punishment.

STATUTES:  K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(h), -5202(i), 22-3414(3), -4901 et seq.; K.S.A. 2014 Supp. 21-5413(b)(1)(A), -5413(b)(1)(B), -5413(b)(2)(A), 5413(b)(2)(B); and K.S.A. 60-404

 

appeals—appellate procedure—attorney and client—criminal law—
criminal procedure—jury instructions—sentences—statutes
state v. toothman
saline district court—affirmed
court of appeals—affirmed in part and reversed in part
No. 114,944—september 6, 2019

FACTS: A jury convicted Toothman of seven sex crimes for rape and sodomy of the victim over a two year period. District court imposed sentences for primary offenses of aggravated criminal sodomy and rape, and set aside convictions on alternative charges of criminal sodomy, aggravated indecent liberties with a child, and aggravated incest. Toothman appealed claiming district court: (1) committed clear error by failing to instruct jury that criminal sodomy is a lesser included crime of aggravated criminal sodomy; (2) abused its discretion by failing to adequately inquire about a potential conflict between Toothman and his trial counsel before sentencing; and (3) committed clear error by instructing jury that its verdict “must be founded entirely upon the evidence admitted and the law as given in these instructions.” In unpublished opinion on summary calendar, court of appeals sua sponte reversed two convictions and remanded with directions to resentence Toothman for aggravated incest as the more specific crime because Toothman had a familial relationship with the victim. Review granted on Toothman’s petition and on State’s cross-petition from panel’s reversal of the two convictions with reinstatement of lesser alternative counts of aggravated incest in their place.

ISSUES: (1) Panel’s sua sponte reversal of convictions; (2) jury instructions—criminal sodomy; (3) defendant’s dissatisfaction with attorney; (4) jury instruction—verdict

HELD: Court of appeals panel ignored cautionary directive that when an appellate court raises an issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue to present their positions to the appellate court before the issue is finally decided. Here, panel erred when it sua sponte reversed Toothman’s convictions for aggravated criminal sodomy and rape by relying on caselaw and statute at issue prior to Legislature’s 1993 change of aggravated incest statute to effectively overrule State v. Williams, 250 Kan. 730 (1992). Aggravated incest, as now defined, is not a more specific crime than aggravated criminal sodomy or rape. Panel is reversed on this ground. Toothman’s convictions for aggravated criminal sodomy and rape are affirmed.

District court did not err in listing criminal sodomy as an alternative offense to aggravated criminal sodomy, rather than as a lesser included offense as Toothman requested.   

No dispute that the letter Toothman submitted the day of sentencing triggered the district court’s duty to inquire, but under facts in this case, district court adequately inquired into Toothman’s dissatisfaction with his attorney.

Jury instruction challenged in this case is identical to that challenged in State v. Boothby, 310 Kan. __ (decided this same day). Following Boothby, the instruction is legally correct, and a district court does not err when it tells a jury to follow the law.

STATUTES: K.S.A. 2018 Supp. 21-5109(b), -5604(b)(2)(A), 22-3414(3); K.S.A. 2011 Supp. 21-5503(a)(1)(A), -5504(a)(3), -5504(b)(3)(A), -5506(b)(1), -5604(b)(2)(A); K.S.A. 1991 Supp. 21-3501(4), -3503; K.S.A. 21-3107(2), -3107(2)(b); K.S.A. 21-3603, -3603(2)(a) (Ensley 1988); K.S.A. 21-3603(1) (Ensley 1981); and K.S.A. 21-3603(1) (Weeks 1974); K.S.

Court of Appeals

CIVIL

NAME CHANGES
IN RE PETITION OF CLARK
NORTON DISTRICT COURT—REVERSED AND REMANDED
NO. 121,034—SEPTEMBER 6, 2019

FACTS: While serving a sentence at the Norton Correctional Facility, Clark filed a petition to change his last name. He wanted to re-take the name of his biological father to carry on that legacy. After a phone conference, the district court denied Clark's petition, finding that the name change was precluded due to Clark's status as an inmate. Clark appealed.

ISSUE: (1) Ability to change name while incarcerated

HELD: Name changes are governed by statute. Petitioners need not provide a compelling reason for the change, as long as the judge is satisfied as to the truth of the allegations made in the petition. There is no regulation or statute which would bar an inmate from obtaining a name change. Regulations do require that the inmate continue to respond to the name that was used at the time of conviction, and records will continue to reflect the original name. But nothing precludes the actual name change. Further, there is no requirement that a petitioning inmate show a compelling reason for the name change.

STATUTES: K.S.A. 2018 Supp. 22-4903, -4905(i), 23-2506, -2716; K.S.A. 60-1401, -1402(a), -1402(b), -1402(c), 77-425

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