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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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August 30, 2019 Digest

Posted By Administration, Tuesday, September 3, 2019

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN RE LARRY DEAN TOOMEY
NO. 11,959—AUGUST 29, 2019

FACTS: In a letter dated August 13, 2019, Larry Dean Toomey voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending. Toomey was convicted of two counts of felony theft; the victim was his client.

HELD: The Court accepted the surrender, and Toomey is disbarred.

Tags:  Attorney Discipline  Disbarment 

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August 23, 2019 Digests

Posted By Administration, Monday, August 26, 2019

Kansas Supreme Court

Civil 

DRIVERS LICENSE—DUE PROCESS
CREECY V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
COURT OF APPEALS—
AFFIRMED IN PART AND REVERSED IN PART
NO. 117,035—AUGUST 23, 2019

FACTS: It is undisputed that law enforcement had probable cause to arrest Creecy for DUI. Creecy showed signs of a medical emergency, and EMS was called, but he momentarily recovered. Law enforcement gave Creecy the implied consent advisories, both orally and using the DC-70 written form. Creecy attempted to give a breath sample but was unable to produce enough air to register a sample. After the second failure, the officer told Creecy that his inability to provide a sample constituted a failure. The officer completed the notice of suspension form—the DC-27—and Creecy was arrested. Creecy requested an administrative hearing, paying the statutorily-required $50 fee. The ALJ affirmed the suspension, and Creecy petitioned for review. The district court affirmed the ALJ and Creecy appealed, claiming that his failure to complete the test was caused by a medical condition, that both the implied consent advisory and the notice of suspension were statutorily insufficient, and that the required $50 is facially unconstitutional. The court of appeals affirmed the district court. Creecy's petition for review was granted.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of service; (3) whether failure equaled refusal; (4) adequacy of implied consent advisory

HELD: There is no statutory provision for a waiver of the $50 fee that must be paid in advance of an administrative hearing. A driver's license is an interest which entitles the holder to procedural due process protections before revocation or suspension. Where fundamental rights are implicated, allowances should be made for indigent litigants. The lack of such allowances here creates a barrier to due process. Accordingly, the $50 fee is unconstitutional on its face. Evidence shows that Creecy was given the DC-27 form before being transported to the hospital. That is adequate to show that Creecy received adequate service. Creecy had the burden to show that his test failure was due to a medical condition. He did not introduce any evidence to show the cause of his failure to produce a sample. In the absence of this evidence, the district court is affirmed. The DC-70 advisory given by law enforcement substantially complied with the statute.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(a), -1001(b)(1)(A), -1001(k), -1001(q), -1002, -1002(c), -1012(d), -1013(i), -1020(a)(1), -1020(d)(2), -1020(o), -1020(p); and K.S.A. 77-611

DRIVERS LICENSE—DUE PROCESS
MEATS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,469—AUGUST 23, 2019

FACTS: Meats was arrested for DUI. He refused to perform a post-arrest evidentiary breath test. An officer gave Meats the implied consent advisory both orally and in writing. After being released, Meats requested an administrative hearing to challenge the administrative suspension of his driver's license. The suspension was affirmed by an ALJ, and Meats appealed to district court where he argued, among other things, that the $50 fee that is statutorily required before an administrative hearing is held is unconstitutional. The district court affirmed the license suspension but agreed with Meats that the fee is unconstitutional because it lacks reasonable accommodations for indigent drivers. The issue was moot with respect to Meats, who had already paid the fee. The Department of Revenue appealed the ruling on the fee, and Meats cross-appealed the suspension of his license. Under K.S.A. 60-2101(b), the appeal was heard directly by the Supreme Court.

ISSUES: (1) Constitutionality of mandatory fee; (2) adequacy of implied consent advisory

HELD: The $50 fee imposed by K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires payment of a fee, without provision for indigency, before a motorist can obtain procedural due process during the license suspension process. The DC-70 form given to Meats substantially complies with relevant statutes. The evidence before the court shows that law enforcement complied with the statute when serving Meats with the DC-27.

CONCURRENCE: Stegall, J. concurs in the result

STATUTES: K.S.A. 2014 Supp. 8-1001(k)(4)(A), -1002(c), -1013(i), -1020(a)(1), -1020(d)(2); and K.S.A. 60-2101(b)

  

DRIVERS LICENSE—DUE PROCESS
ROSENDAHL V. KANSAS DEPARTMENT OF REVENUE
MIAMI DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 117,862—AUGUST 23, 2019

FACTS: After responding to the scene of a car accident, law enforcement asked Rosendahl to perform field sobriety tests. After she failed the preliminary breath test, Rosendahl was arrested. The Intoxilyzer test showed she was well over the legal driving limit. Rosendahl requested an administrative hearing and paid the statutorily-required $50 fee. The ALJ affirmed the suspension, finding that the officer had reasonable grounds to believe that Rosendahl was operating a vehicle under the influence. Rosendahl petitioned for review, arguing before the district court that her intoxication was due to alcohol consumption after the accident but before law enforcement arrived. After hearing evidence, the district court reversed the ALJ finding that the breath test was due to Rosendahl's post-accident alcohol consumption. The district court also agreed with Rosendahl that the $50 filing fee was unconstitutional, but found the issue moot since Rosendahl paid the fee. The Department of Revenue appealed, and under K.S.A. 2015 Supp. 8-1020(d)(2) the case was heard directly by the Supreme Court.

ISSUES: (1) Reasonable grounds to request a breath test; (2) constitutionality of mandatory fee

HELD: Rosendahl failed to raise the issue of post-accident alcohol consumption before the ALJ. Based on the totality of the circumstances, law enforcement had no duty to inquire about whether Rosendahl was drinking after the accident, especially since Rosendahl did not raise the issue herself. The district court erred by giving controlling weight to testimony concerning intervening alcohol consumption. As held in other decisions issued this day, the nonrefundable $50 fee required by K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional on its face.

CONCURRENCE AND DISSENT (Stegall, J., joined by Rosen and Johnson, JJ.): The majority correctly found that the officer had reasonable grounds to request a breath test and that the administrative hearing fee is unconstitutional. But the district court should be affirmed as being right for the wrong reason. It is clear that Rosendahl was not driving under the influence

STATUTES: K.S.A. 2018 Supp. 8-259, 77-614(b)(6); and K.S.A. 2015 Supp. 8-1001(b), -1020(d)(2), -1020(h)(2), -1020(h)(2)(A), -1020(q)

HABEAS CORPUS
LITTLEJOHN V. STATE
SEDGWICK DISTRICT COURT—Case Remanded
COURT OF APPEALS—REVERSED

NO. 115,904—AUGUST 23, 2019

FACTS: Littlejohn confessed to killing someone during a botched robbery attempt. Before trial, counsel filed a motion to determine competency and a motion to suppress. A report pronounced Littlejohn competent but cautioned that IQ testing was warranted. At trial, counsel did not mount a mental defect defense and did not request any jury instructions relating to Littlejohn's low IQ. He was convicted as charged, and those convictions were affirmed on appeal. Littlejohn filed one K.S.A. 60-1507 motion which was denied. His second 60-1507 motion is the subject of this appeal. In that motion, Littlejohn argued that trial counsel was ineffective for failing to raise a mental defect defense. The motion was denied as successive and an abuse of remedy. Littlejohn appealed, and the court of appeals reversed the district court finding that trial counsel should have investigated Littlejohn's mental defect defense. The Supreme Court accepted the State's petition for review.

ISSUE: (1) Standard for determining exceptional circumstances

HELD: K.S.A. 60-1507 specifically bars second or successive motions for similar relief on behalf of the same prisoner. Over the years, case law has allowed exceptions if the movant can prove exceptional circumstances. The test is whether Littlejohn presented exceptional circumstances to justify reaching the merits of a successive motion, factoring in whether justice would be served by doing so. Because the court of appeals used the wrong test, the case is remanded to the court of appeals.

CONCURRENCE: Nuss, C.J., Biles and Stegall, JJ, concur in the result

STATUTE: K.S.A. 60-1507

HABEAS CORPUS
NOYCE V. STATE
SEDGWICK DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED

NO. 114,971—AUGUST 23, 2019

FACTS: Noyce was convicted of capital murder but pled guilty to avoid a death sentence. He received two consecutive hard 40 sentences, to be served consecutive to an aggravated arson sentence. Noyce did not appeal this sentence. Noyce did appeal the denial of a motion to correct illegal sentence, but his sentences were affirmed. Shortly thereafter, Noyce filed an untimely K.S.A. 60-1507 motion in which he claimed ineffective assistance of counsel and multiple instances of collusion between his counsel, the district attorney and the district court. The district court summarily denied the motion as untimely and Noyce appealed. The court of appeals reversed the district court, finding that two of Noyce's claims of ineffective assistance at the plea stage raised issues that could constitute manifest injustice. The Kansas Supreme Court accepted the State's petition for review.

ISSUE: (1) Existence of manifest injustice

HELD: It was Noyce's burden to produce a record on appeal which showed error. Noyce did waive appellate rights by pleading guilty, and he also waived any claims about multiplicity. Trial counsel's advice that Noyce's sentence was not appealable was not manifestly unjust, especially in light of the fact that Noyce was potentially facing a death sentence. Withdrawing Noyce's guilty pleas would potentially open him to an eventual death sentence. The district court's summary denial of Noyce's motion is affirmed.

STATUTE: K.S.A. 22-3504, 60-1507

criminal 

criminal law—evidence—jury instructions—statutes
state v. chavez
wyandotte district court—affirmed in part,
reversed in part, vacated in part
court of appeals—affirmed
no. 115,602—august 23, 2019

FACTS: Jury convicted Chavez of aggravated burglary, stalking and criminal threat. He  appealed claiming: (1) insufficient evidence supported the stalking conviction which required the State to prove legally impossible mental states; (2) district court should have instructed jury and allowed Chavez to argue that victim had waived her right to enforce the protection from abuse (PFA) order; (3) district court failed to give jury a limiting instruction concerning the PFA because it constituted evidence of prior crimes or civil wrongs; and (3) cumulative error denied him a fair trial. In an unpublished opinion, the court of appeals reversed the aggravated burglary conviction but affirmed the stalking and criminal threat convictions. Panel found in part that Chavez was not entitled to a K.S.A. 60-455 limiting instruction regrading the PFA because the existence of the PFA was an element of the stalking charge, and did not address the implied waiver claim. Chavez’ petition for review granted.

ISSUES: (1) Stalking; (2) implied waiver of PFA; (3) limiting instruction; (4) cumulative error

HELD: Kansas stalking statute, K.S.A. 2018 Supp. 21-5427 is reviewed to understand the culpable mental states at issue. Chavez’ reliance on State v. O’Rear, 293 Kan. 892 (2012), for his legal impossibility argument is undermined by the 2011 recodification of the Kansas criminal code to include a new culpable mental state paradigm. Here, sufficient evidence supported Chavez’ stalking conviction. He knowingly confronted the victim after being served with a court order not to do so, which satisfied the reckless element of the charged crime.

The protected person under a PFA order does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Chavez was not entitled to a jury instruction on principles of implied waiver of a PFA, and such an instruction was not legally appropriate.

Similar to approach taken in State v. Sims, 308 Kan. 1488 (2018), petition for cert. filed April 29, 2019, court will assume the PFA falls within ambit of the 60-455 requirement for a limiting instruction, but no showing the failure to give a limiting instruction in this case was clearly erroneous.

Error that led to the reversal of Chavez’ aggravated burglary conviction, combined with assumed limiting instruction error, did not create substantial prejudice that denied Chavez a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(b, -5202(c), -5427, -5427(a)(3), -5427(b)(1)-(3) -5427(c), -5427(f)(1), -5427(f)(1)(B), -5924, 22-3414(3), 60-455, -3107(f); K.S.A. 21-3201, -3201(b), 60-3101(b)

criminal procedure—sentences—statutes
state v. hambright
sedgwick district court—reversed and remanded
court of appeals—reversed on issue subject to review
no. 115,259—august 23, 2019

FACTS: Hambright entered a guilty plea to felony criminal damage to property and misdemeanor theft. Presumed probation period for Hambright’s severity level 7 felony was 24 months, but the district court imposed a 36-month probation term with $60,000 in restitution. Hambright appealed, arguing in part his sentence was illegal because the district court used K.S.A. 2018 Supp. 21-6608(c)(5) for severity level 8-10 crimes to increase the probation term. In an unpublished opinion, the court of appeals in part agreed that 21-6608(c)(5) did not apply to Hambright’s conviction, but found the increased probation term was within the district court’s discretion under K.S.A. 2018 Supp. 21-6608(c), and the departure sentencing procedures in State v. Whitesell, 270 Kan. 259, 13 P.3d 887 (2000), for increased probation terms no longer applied. Hambright’s petition for review granted.

ISSUE: (1) Departure sentence—increased term of probation

HELD: Panel’s analysis of Whitesell is criticized and reversed. District court’s imposition of an extended term of probation beyond the presumptive 24 months for Hambright’s conviction constitutes a departure that must be supported on the record by substantial and compelling reasons. Matter is remanded to district court for resentencing on the duration of probation under the correct legal standard.  

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6803(f), -6803(i), -6803(o), -6803(q), -6608, -6608(c), -6608(c)(1)(B), -6608(c)(2), -6608(c)(5), -6608(c)(6) -6608(c)(7), -6608(c)(8), -6815(a), -6815(b), -6817(a)(3); K.S.A. 2000 Supp. 21-4611; K.S.A. 1999 Supp. 21-4611(c)(1)(B), -4716; K.S.A. 22-3504; K.S.A. 21-3438(a), -4703(i) (Furse 1995)

Kansas Court of Appeals 

CIVIL

CIVIL PROCEDURE—TORTS
FLOREZ V. GINSBERG
DOUGLAS DISTRICT COURT—AFFIRMED IN PART, 
REVERSED IN PART, REMANDED
NO. 120,129—AUGUST 23, 2019

FACTS: Florez was admitted to the KU School of Education to pursue a Master's degree with an endorsement in Teaching English to Speakers of Other Languages. He successfully completed the coursework and received his Master's degree. From the time Florez applied to the school to the time he graduated, the KU School of Education website read that the coursework in the degree program "fulfills the requirement for the degree and a Kansas initial teaching license." This was incorrect—the coursework did not meet the qualifications necessary to obtain an initial teaching license in Kansas. After graduation, Florez learned for the first time that he did not meet the requirements for a teaching license. He would need to enroll in an additional two-year program and pay in excess of $10,000 to get the certification. His advisor and other school leadership disagreed with Florez that the website represented that Florez would graduate and meet the requirements for a teaching license. However, the next day, the website was changed that the language upon which Florez allegedly relied was removed. Florez sued, claiming common-law negligence plus violations of the Kansas Consumer Protection Act. All defendants sought dismissal, arguing that Kansas does not recognize a tort of educational malpractice. The district court agreed and dismissed Florez's petition. He appeals.

ISSUES: (1) Negligence; (2) negligent misrepresentation; (3) Kansas Consumer Protection Act; (4) motion to alter or amend

HELD: It is undisputed that Kansas does not recognize a tort of educational malpractice. But Florez's claim does not relate to the quality of the education provided. Instead, it focuses on whether the University knowingly placed false information on its website. The nature of Florez's claim means it is not one for educational malpractice. Florez's petition states an actionable claim of negligent misrepresentation and should not have been dismissed by the district court. A cause of action under the KCPA accrues when the harm is first suffered, whether the consumer recognizes the harm or not. Florez first became aggrieved when he relied on the school's website and enrolled in the program. A new cause of action under the KCPA arose any time he relied on the website. Florez must be given the opportunity to develop a record to show whether he suffered legal harm in the three years preceding the filing of his petition. The district court did not abuse its discretion by denying Florez's motion to alter or amend.

STATUTES: K.S.A. 2018 Supp. 50-626(b)(5); K.S.A. 50-634, 60-512(2)

OIL AND GAS UNITIZATION
LARIO OIL & GAS COMPANY V. KANSAS CORPORATION COMMISSION
SCOTT DISTRICT COURT—AFFIRMED
NO. 120,121—AUGUST 23, 2019

FACTS: Lario owns and operates working interests in several wells. Lario applied to the KCC for unitization and unit operations for one unit. Most of the working interest and royalty holders approved of unitization, but some did not, and they filed a protest to the application. After hearing extensive witness testimony, the KCC denied Lario's application to unitize. The KCC specifically found that Lario did not meet its burden to show that the proposed unit constituted a single-pressure system. Lario appealed to the district court, which affirmed the KCC, finding substantial competent evidence in the record to support the KCC's finding that Lario failed to establish a single-pressure system. Lario appealed.

ISSUES: (1) Whether the KCC misapplied the law; (2) existence of substantial competent evidence to support unitization; (3) whether KCC orders are arbitrary and capricious

HELD: The KCC did not improperly require full communication between pressure systems. It properly interpreted and applied the statutes when denying Lario's application. The witnesses who testified against unitization had experience and expertise on which the KCC could have relied. The KCC properly considered all of the evidence and weighed it when making a decision. The KCC's decision was not arbitrary or capricious.

STATUTES: K.S.A. 2018 Supp. 77-621(c)(8), -621(d); and K.S.A. 55-1302, -1302(b), -1304(a)(1), -1304(a)(2)

criminal

appeals—criminal procedure—sentences—statutes
state v. chardon
douglas district court—reversed
No. 119,464—august 23, 2019

FACTS: Chardon stipulated to violating terms of his probation, and was held in jail for 65 days awaiting disposition hearing. District court imposed 60-day jail sanction and extended probation for 12 months. District court refused Chardon’s request to credit the 65 days awaiting disposition toward the 60-day sanction, and instead ordered the sanction to begin from date of disposition with the 65 days credited toward the underlying sentence. Chardon appealed.

ISSUES: (1) Mootness; (2) jail sanction for probation violation

HELD: Chardon’s sentencing claim is moot because he had already served the 60-day sanction, but issue is considered because the question is capable of repetition and is of public interest.

Rule of lenity applies. Following State v. Petz, 27 Kan. App. 2d 805 (2007), and considering how the Kansas Legislature created the 60-day sanction, Chardon should have received credit for the 65 days served awaiting disposition of a probation violation.

STATUTES:  K.S.A. 2018 Supp. 21-6604(a)(3), -6615(a), 22-3716(c)(1)(B)-(E), -3716(c)(11); and K.S.A. 2017 Supp. 22- 3716(c)(11)

Tags:  Douglas District  Scott District  Weekly20190827 

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August 16, 2019 Digests

Posted By Administration, Monday, August 19, 2019

Kansas Supreme Court

Civil

DEEDS—REAL PROPERTY
JASON OIL COMPANY V. LITTLER
RUSH DISTRICT COURT—AFFIRMED
NO. 118,387—AUGUST 16, 2019

FACTS: Through deeds, Littler (Grantor) conveyed two tracts of real estate to two different couples, the Grantees. The deed excluded from conveyance all oil, gas, and minerals in and under the property that may be produced "for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced." That 20-year term expired in December 1987, and no oil, gas, or minerals were ever produced from either tract. In 2016, Jason Oil Company moved to quiet title to both tracts, claiming to hold valid oil and gas leases. The Grantor's descendants (the Grantor's Heirs) answered, claiming an interest in the mineral rights via will and arguing that any attempt to convey rights to the Grantees, or their heirs, was void under the Rule Against Perpetuities. The Grantees' Heirs also answered, claiming a successor interest in the mineral rights. Alternatively, they claimed that if the conveyance did violate the Rule it could be reformed under the Uniform Statutory Rule Against Perpetuities (USRAP). The district court granted the Grantees' Heirs' motion for summary judgment, finding there was no dispute that the Grantor conveyed all of his interest in the properties to the grantees and created a defeasible estate by reservation.

ISSUE: (1) Application of the Rule

HELD: The Rule is a creation of common law. The Grantor's mineral interest was a defeasible term mineral interest. This was a present interest which remained vested after the conveyances and for at least 20 years. Any mineral interest that passed to the Grantees was a future interest which vested no earlier than December 1987 at the end of the Grantor's 20-year term. The deeds conveyed by the Grantor created a springing executory interest. Applying the Rule in this case would result in the Grantor's Heirs holding the mineral interests in the real estate in perpetuity, and excepting agreements such as this from application of the Rule has many benefits, including promoting the alienability of land and reducing chaos.

STATUTE: K.S.A. 59-3405(b)

criminal

appeals—criminal law—criminal procedure—motions—statutes
state v. sartin
sedgwick district court—affirmed in part
court of appeals—affirmed in part, remanded
no. 115,172—august 16, 2019

FACTS: Criminal history score for Sartin’s 1995 Kansas sentence included scoring five prior Illinois convictions classified as person felonies. He filed 2015 motion to correct an illegal sentence, arguing one of his Illinois convictions should have been scored as a nonperson felony pursuant to State v. Murdock, 299 Kan. 312 (2014)(Murdock I). District court denied the motion, based on State v. Keel, 302 Kan. 560 (2015), overruling Murdock I. Sartin appealed, contesting the scoring of all five Illinois convictions. In unpublished opinion, court of appeals affirmed the district court’s denial of the motion, finding the Illinois crime of aggravated criminal sexual abuse was comparable to Kansas crime of aggravated sexual battery. Panel declined to consider Sartin’s challenge to the other four Illinois convictions because they were not mentioned in the K.S.A. 22-3504 motion. Sartin’s petition for review granted.

ISSUES: (1) Classification of Illinois crime of aggravated criminal sexual abuse; (2) consideration of other illegal sentencing claims

HELD: Pursuant to State v. Murphy,  309 Kan. 585 (2019)(Murdock II), Sartin is stuck with the “closest approximation” test for comparable offenses, the law in effect at the time his 1995 sentence was imposed. Panel correctly determined that Illinois’ aggravated criminal sexual abuse is comparable to Kansas’ aggravated sexual battery, and thus was properly scored as a person felony in Sartin’s criminal history score.

Appellate courts have statutory authority to consider illegal sentence issues for first time on appeal based on statutory directive in K.S.A. 22-3504(1). Panel erred when it declined to consider Sartin’s challenge to the classification of his other four Illinois convictions. Case remanded to court of appeals with instructions to consider and rule on merits of the person offense classification of the other four Illinois convictions.

STATUTES: K.S.A. 2018 Supp. 21-6811;  K.S.A. 21-4701 et seq., 22-3504, –3504(1); K.S.A. 1994 Supp. 21-3518

Kansas Court of Appeals

criminal

criminal law—criminal procedure—securities—sentences—statutes
state v. morley
shawnee district court—reversed, sentences vacated, remanded
no. 120,017—august 16, 2019

FACTS: Four Kansas investors lost $845,900 as a consequence of Morley’s actions in selling preferred stock shares in Summit Trust Company. Morley was indicted on multiple counts of securities fraud, sale of unregistered security and acting as an unregistered issuer agent. Pursuant to plea agreement, Morley entered no contest plea to one count of securities fraud and one count of acting as unregistered issuer agent, and State dismissed remaining ten counts. Both convictions have presumptive prison terms, and are subject to special rule of presumed imprisonment for violations of Kansas Uniformed Securities Act. Morley’s criminal history included similar wrongdoing that culminated in a 2006 consent order issued by Maryland Securities Commissioner permanently barring Morley from the securities and investment advisory business in that state. District court imposed concurrent prison terms, but granted Morley’s motion for dispositional departure, placed Morley on probation for 36 months, and ordered payment of $845,900 in restitution. Sole basis stated for the dispositional departure was Morley taking responsibility for his actions. State appealed.

ISSUES: (1) Substantial competent evidence for acceptance of responsibility; (2) substantial and compelling reason to support a dispositional departure

HELD: Kansas law applicable to departure decisions is summarized. Under facts of this case, Morley's acceptance of responsibility for his crimes may be a valid non-statutory mitigating factor in support of a downward durational departure sentence, but there was no substantial competent evidence to support that factor. As in State v. Theurer, 50 Kan. App. 2d 1203 (2014), motivation for Morley’s no contest pleas was not to accept responsibility but to mitigate his accountability by obtaining a very favorable outcome. And while Morley agreed to pay restitution, he offered no plan and had no real financial ability to pay all or a substantial part of victims’ losses given his age, limited income and pending bankruptcy proceedings.

Even if substantial competent evidence supported this mitigating factor is assumed, in this case the district court erred in its legal conclusion that this factor was real, substantial, and compelling such that the district court was forced by the case facts to abandon the status quo, venture beyond presumptive prison sentences, and grant probation. Reversed and remanded to district court for resentencing.

STATUTES: K.S.A. 2018 Supp. 17-12a508(a)(5), 21-6604(b)(1), -6604(b)(2) ,-6815(a), -6815(c)(1)(A)-(E), -6817(a)(1), -6817(a)(4), -6820(f); K.S.A. 17-12a301, 12a402, -12a501, 22-3209(2)

Tags:  8808  deeds  real property  Weekly20190820 

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August 2, 2019 Digests

Posted By Administration, Monday, August 5, 2019

Kansas Supreme Court

civil

attorney fees—courts—probate code—wills
In re estate of Oroke
jefferson district court—affirmed and remanded
court of appeals—reversed
NO. 116,333—august 2, 2019

FACTS: Testator (Oroke) deposited original will and codicil with probate court of home county. A few weeks after his death, heirs tried to locate the will but clerk of the court was unable to find it and informed heirs the will was not in the custody of the court. After a search elsewhere found no will, testator's daughter filed intestate probate proceeding. While that proceeding was pending, and after imitation period for petitioning a will for probate had passed, clerk of the court located the will and codicil. Testator's stepdaughter filed separate petition to probate the will. District court consolidated the two probate proceedings and admitted the will to probate, finding step-daughter had exercised due diligence in attempting to locate the will. Testator's daughter appealed. Court of appeals reversed. State v. Hirsh, 54 Kan. App. 2d 705, 405 P.3d 41 (2017). Panel found no exceptions applied to toll the running of the limitation period because the will was not “knowingly” withheld, and found this case indistinguishable from In re Estate of Strader, 301 Kan. 50, 339 P.3d 769 (2014). Stepdaughter's petition for review granted. After oral argument in Kansas Supreme Court, stepdaughter moved for appellate attorney fees and expenses for the entire appellate process to be paid from the estate.

ISSUES: (1) Probate—statute of limitations; (2) appellate attorney fees

HELD: Clerk’s failure in duty to produce the will distinguishes this case from Strader. Circumstances of this case conform in all respects with requirements of the unique circumstances doctrine. While that doctrine is used sparingly, neither the Legislature in repealing K.S.A. 59-620, nor the enactment of Supreme Court Rule 108(e)(4)(A), intended that an error by a judicial employee should be inconsequential as to the statute of limitations. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. This is not a modification of Strader, but ia holding limited to the unique and rare circumstances of a district court clerk not following a duty imposed by law.

Stepdaughter’s attempts to have the appellate courts uphold the district court's admission of the will to probate provides this court with authority to entertain her motion for attorney fees. Motion for attorney fees was timely filed for consideration of appellate services rendered before Kansas Supreme Court, but not for appellate services while appeal was pending in Court of Appeals. The attorney fee request, limited to appellate services provided after panel’s opinion was filed, is reviewed and found to be reasonable. Decision of the district court is affirmed and case is remanded for further proceedings conforming with this opinion.

STATUTES:  K.S.A. 2018 Supp. 20-343, 60-2601; K.S.A. 20-343, 59-617, -618, -620, -621, -1504; and K.S.A. 59-620 (Furse 1994)

criminal

constitutional law—criminal procedure—sentences—statutes
state v. ewing
sedgwick district court—sentences vacated and cases remanded
court of appeals—affirmed in part, reversed in part
NO. 116,641—august 2, 2019

FACTS: Ewing pleaded guilty to charges of felony theft and aggravated burglary in three cases. Presentence investigation report in each case included a person felony converted from combining a Kansas misdemeanor with two Arkansas misdemeanors. Ewing appealed, arguing district court’s classification of the Arkansas convictions as person offenses required judicial fact-finding in violation of Sixth and Fourteenth Amendments. In unpublished opinion, court of appeals held the Arkansas false imprisonment conviction was properly scored as a person crime, but vacated the sentences in each case and remanded for resentencing because record was unclear as to what statute or subsection the Arkansas battery offense arose under. Panel also rejected State’s procedural argument for presumption of proper classification because Ewing did not lodge an objection and failed to designate a record sufficient to identify the Arkansas offense in question. Petitions for review by both sides granted in consolidated appeals.

ISSUES: (1) Out-of-state conviction—false imprisonment; (2) out-of-state conviction—battery

HELD: District court pronounced Ewing’s sentences prior to State v. Wetrich, 307 Kan. 552 (2018). State’s arguments against application of Wetrich are rejected. Arkansas false imprisonment is not a person crime. A person who would not be guilty of criminal restraint in Kansas might be guilty of second-degree false imprisonment in Arkansas. Accordingly, the Kansas crime is not comparable to second-degree false imprisonment in Arkansas because circumstances justifying an act otherwise constituting the Arkansas crime are not identical to or broader than those in Kansas. District court and panel erred when concluding the Arkansas offense should be classified as a person crime.

Insufficient evidence supports the district court’s legal conclusion that Ewing’s battery conviction was a person crime. Even though Ewing failed to object, State had burden of establishing that he committed a version of the offense supporting the person classification. State v. Obregon, 309 Kan. __, __ (June 28, 2019). State did not meet its burden in this case. Sentences vacated and case remanded for recalculation of criminal history score and resentencing under Wetrich. If misdemeanor conversion to a felony is no longer possible without the Arkansas false imprisonment conviction being scored as a person misdemeanor, the person or non-person classification of the Arkansas battery conviction may be moot.:  

STATUTES: K.S.A. 2018 Supp. 21- 6801 et seq.,: -6809, -6811(a), 22-3504(3); K.S.A. 2015 Supp. 21-5425; K.S.A. 20-3018(b), 21-3110, -3715, -4711(e), 60-2101(b)

constitutional law—criminal law—juries—prosecutors—trials
state v. Hirsh
barton district court—affirmed in part, reversed in part
vacated in part, and remanded
court of appeals—affirmed
NO. 116,356—august 2, 2019

FACTS: Hirsh was convicted of aggravated assault, two counts of criminal threat for threatening wife and children, and domestic battery. Court of appeals affirmed the criminal threat and domestic battery convictions and sentences, reversed the aggravated assault conviction and vacated that sentence, and remanded for retrial on the aggravated assault charge. Review granted on five allegations of error: (1) Brady violation of right to timely disclosure of exculpatory evidence—­a sheriff’s testimony and production of a disciplinary report that provided an inconsistent account of where the incident occurred in the house; (2) two convictions for criminal threat are multiplicitous; (3) prosecutorial error; (4) erroneous refusal to recall jury to explore possible misconduct during voir dire of three jurors who did not disclose they were victims of domestic abuse; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Brady violation; (2) multiplicitous crimes; (3) prosecutorial error; (4) recall of jury; (5) cumulative error

HELD: Panel erred by rejecting in par the Brady argument because prosecutor had not suppressed the report, as knowledge and possession of information by law enforcement is imputed to the prosecutor. Nonetheless the Brady claim is rejected on the merits because on facts in this case, the one inconsistent location stated in the report did not qualify as “material” under Brady and its progeny.

Multiplicity claim challenges the two criminal threat convictions—threat to kill wife and threat to kill children. Hirsh demonstrated the threats were “unitary” conduct, but there were two units of prosecution for criminal threat in this case. Because Hirsh cannot demonstrate the second component under State v. Schoonover, 281 Kan. 453 (2006), of only one unit of prosecution for criminal threat, there is no double jeopardy or multiplicty problem.

Under longstanding Kansas caselaw, prosecutor telling jury that a witness told the truth is error. But under circumstances in this case, no reasonable probability that prosecutor’s error contributed to the verdict.

Transcript of voir dire does not support allegation that three jurors ever failed to respond appropriately during voir dire. Hirsh cannot satisfy threshold in State v. Ruebke, 240 Kan. 493 (1987), of just cause to recall jurors. Case is analogous to State v. Hopkins, 257 Kan. 723 (1995). State v. Jenkins, 269 Kan. 334 (2000), is distinguished.

Even if an individually immaterial Brady error is assumed, and combined with a single-sentence individually harmless prosecutorial error, these two minor errors are insufficient to employ cumulative error doctrine.      

CONCURRENCE (Beier, J., joined by Rosen and Stegall, JJ.): Concurs in all respects but for majority’s multiplicity analysis. Does not accept that Hirsch’s threats, separated by a plea from his wife to which he obviously reacted, qualify as “unitary” conduct. Would reject the multiplicity challenge on the first Schoonover component and not reach or analyze the second.

DISSENT (Johnson, J.): Dissents in part on majority’s determination that there were two units of prosecution with respect to criminal threat. Would reverse one of the convictions.

STATUTES: K.S.A. 2018 Supp. 21-5415,-5415(a), 22-3501(1); K.S.A. 21-3419(a)(1), 60-404

criminal procedure—sentences—statutes
state v. saucedo
reno district court—reversed, sentence vacated, case remanded
court of appeals—reversed
NO. 117,299—august 2, 2019

FACTS: Saucedo appealed his sentence, alleging the district court erred in classifying his prior Washington residential burglary conviction as a person felony. In its unpublished opinion, the court of appeals affirmed, relying heavily on State v. Moore, 52 Kan. App. 2d 799 (2016), prior to that case being reversed, 307 Kan. 599 (2018), by applying test in State v. Wetrich, 307 Kan. 552 (2018). Saucedo’s petition for review was granted, and parties were ordered to show cause why the court should not (1) summarily vacate the panel's decision; (2) summarily vacate Saucedo's sentence; and (3) remand the case to the district court for resentencing in accordance with Wetrich and Moore.

ISSUE: (1) Out-of-state conviction—residential burglary

HELD: Under Wetrich and Moore, Saucedo's Washington conviction was not comparable to any offense under the Kansas criminal code because the Washington crime's mental state element is not identical to, or narrower than that of the Kansas crime. As the durational departure sentence ultimately imposed obviously followed from district court’s erroneous view of the sentence, there was an abuse of discretion. Sentence is vacated and case remanded to district court for resentencing with a criminal history score characterizing the Washington conviction as a nonperson felony.

STATUTE: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -5807(a)(1) -6203, -6801 et seq., -6805, -6811(e)(3)

Kansas Court of Appeals

civil

civil procedure—creditors and debtors—estoppel and waiver—fraud and deceit—limitations of actions—statutes—summary judgment—torts
Foxfield Villa Assocs. v. Robben
johnson district court—affirmed
No. 119,611—august 2, 2019

FACTS: Parties were involved in a complex and unsuccessful real estate project that resulted in loss of millions of dollars, two federal lawsuits, a bankruptcy, and two district court lawsuits in Johnson County, one of which resulted in this appeal. Paul Robben, married to Lori Robben, was transaction broker for a 2008 real estate transactions involving Foxfield Villa Associates and parties (collectively “FVA”). FVA defaulted on a 2010 loan from Bank of Blue Valley (“BBV”) for purchase and development of acreage. FVA then sued BBV in Johnson County and federal court. District court ruled against FVA’s claims and in favor of BBV’s counterclaims. Based on Paul’s 2013 disclosure that he was acting as the transaction broker under Lori’s supervising authority during the 2008 transaction, FVA filed second suit in 2016 against Lori (collectively “Lori”) alleging negligent supervision, vicarious liability, aiding and abetting negligence, common-law negligent supervision, fraudulent transfer of three properties, conspiracy to commit fraudulent transfer, and aiding and abetting fraudulent transfer. District court granted Lori’s motion for summary judgment on all FVA claims, finding in part the two-year statute of limitations barred FVA’s claims of negligence, and FVA’s claims had been extinguished based on the Uniform Fraudulent Transfer Act (UFTA). FVA appealed arguing: (1) it could not have reasonably ascertained it was injured within the two-year statute of limitations and thus was entitled to equitable estoppel; and (2) its fraudulent transfer claims survive because FVA could not have reasonably discovered the transfers until after it filed suit in this case. FVA also asked for recognition of new causes of actions in Kansas—conspiracy to commit fraudulent transfers, and aiding and abetting fraudulent transfers.

ISSUES: (1) Negligence claims; (2) equitable estoppel; (3) fraudulent transfer claims; (4) new causes of actions

HELD: District court did not err in applying K.S.A. 60-513(b) to FVA’s negligence claims. The act causing FVA’s injuries happened on or before 2008. Even assuming FVA did not know of Lori’s involvement until 2016, FVA’s negligence claims are still barred because the statutory limitation period begins once FVA knew it was injured, not when FVA discovered who injured it. Summary judgment was appropriate because no facts disputed that FVA had reasonably ascertained it was injured when it filed its first lawsuit in 2011.

FVA is not entitled to equitable estoppel. FVA presented no facts to establish Lori or Paul committed affirmative acts to limit FVA’s discovery of alleged negligence. FVA’s claims of fraudulent concealment, dodging subpoena service, and refusal to attend depositions are waived by failure to cite to the appellate record. FVA presented no facts or law to support a finding that Lori had a fiduciary relationship to disclose any supervisory relationship she had with Paul. And FVA’s equitable estoppel claim presents no fact questions appropriate for trial.

District court did not err in granting summary judgment on FVA’s fraudulent transfer claim that was based on transfer of three properties. Each property transfer is reviewed. FVA’s fraudulent transfer claim relies on K.S.A. 33-204(a)(2) or K.S.A. 33-205(a) which grant a creditor the right to recover for a fraudulent transfer when a debtor does not receive reasonable value for transfer of the property. Such claims are subject to the four-year time limitation in K.S.A. 3-209(b) and are not entitled to saving clause in that statute. Even if fraudulent transfer of the properties for actual intent could be presumed as arising under K.S.A. 33-204(a)(1), FVA is not entitled to the savings clause on facts in this case. District court’s reliance on Bi-State Dev. Co, In., v. Shafer, Kline & Warren, Inc., 26 Kan App. 2d 573 (2018), was harmless error. FVA waived estoppel and limited discovery arguments by failing to brief the arguments.

District court did not err in granting summary judgment against FVA’s claims of conspiracy to commit fraudulent transfers, and aiding and abetting fraudulent transfers. Even if FVA had a cause of action for conspiracy to commit a fraudulent transfer, FVA cannot recover because summary judgment against the underlying claim of fraudulent transfer was appropriate. Kansas courts have never determined whether conspiracy can extend to include conspiracy for fraudulent transfers, or whether a party may raise a claim of aiding and abetting a fraudulent transfer. Split of authority in other jurisdictions is noted.

STATUTE: K.S.A. 33-201 et seq., -201(g), -204, -204(a)(1), -204(a)(2), -204(b)(1), -204(b)(3) -205, -205(a), -209(a), -209(b), 60-513(a), -513(a)(4), -513(b)

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July 26, 2019

Posted By Administration, Monday, July 29, 2019

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal procedure
evidence—fourth amendment—motions
state v. christian
reno district court—reversed and remanded
court of appeals—reversed
NO. 116,133—july 26, 2019

FACTS: Christian was arrested for failure to provide proof of insurance. Based on evidence discovered in search of Christian and his vehicle, he was charged and convicted in bench trial on drug crimes. District court denied motion to suppress. In an unpublished opinion, court of appeals reversed the convictions and sentences, holding Christian did not properly waive right to a jury trial, and provided guidance on remand about Christian’s motion to suppress evidence seized after police officer unconstitutionally detained him. Panel found the initial seizure was unsupported by reasonable suspicion. But citing Utah v. Strieff, 579 U.S. __ (2016), the panel applied the attenuation doctrine to conclude the evidence could be admitted because the officer’s discovery of an expired tag on the vehicle presented an intervening circumstance that attenuated the taint of the officer’s unconstitutional seizure. Christian’s petition for review was granted on the suppression issue.

ISSUE: (1) Attenuation doctrine

HELD: The panel’s finding that the officer unlawfully seized Christian is accepted because State did not cross-petition for review of that ruling. The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied. First, the temporal proximity factor favors suppression because no significant lapse in time between the unlawful seizure and discovery of evidence. Second, the intervening circumstances factor also favors suppression because discovering evidence of a crime when that discovery flows directly from the unconstitutional seizure does not attenuate the taint of the Fourth Amendment violation.  State’s comparison of the discovery of an expired license plate to the discovery of an outstanding warrant in Strieff is rejected. Third, the panel’s discussion of the flagrancy factor was partially incorrect and narrow, lacking a discussion of the officer’s subjective good faith.  The panel’s implied conclusion that the search of Christian’s vehicle was a proper search incident to arrest for no proof of insurance conflicts with the permissible scope for search of a vehicle. It was not reasonable for officers to believe they would find evidence of the lack-of-insurance crime in the vehicle. Guidance judgment of court of appeals affirming the district court on the single issue subject to review is reversed. Judgment of district court is reversed, and the case was remanded for further proceedings.

STATUTE: K.S.A. 20-3018(b), 22-2402

appeals—constitutional law—criminal procedure—
evidence—fourth amendment—motions
state v. sanders
shawnee district court—affirmed
court of appeals—reversed
NO. 118,640—july 26, 2019

FACTS: Officers stopped, handcuffed and searched Sanders after he walked away from car and then allegedly ran and attempted to conceal himself by standing behind a drainpipe in the alleyway. Sanders was arrested upon discovery of outstanding warrant. Further search of his possessions resulted in drug charges. Sanders filed motion to suppress, arguing he had been unlawfully seized and searched. The district court granted the motion, noting inconsistencies and problems with officers’ testimony. State filed interlocutory appeal. In an unpublished opinion, the court of appeals panel upheld the district court’s finding that officers lacked reasonable suspicion to detain Sanders, but reversed suppression of the evidence, applying the attenuation doctrine analysis in Utah v. Strieff, 579 U.S. __ (2016), based on discovery of Sanders’ outstanding arrest warrant. Sanders petitioned for review of the panel’s application of the attenuation doctrine. State cross-petitioned for review, arguing Sanders’ attempt to conceal himself and flee from the police was sufficient evidence for reasonable suspicion, and the inventory of possessions on arrest and booking would sustain application of the inevitable discovery doctrine.

ISSUES: (1) Reasonable suspicion to detain, (2) attenuation doctrine, (3) inevitable discovery

HELD: The only evidence that Sanders attempted to flee and conceal himself was the officer’s supposition which district court found incredible.  Under facts and circumstances in this case, State failed to show error in district court’s conclusion that the officers’ initial seizure of Sanders was unsupported by probable cause.

            Background of attenuation doctrine and exclusionary rule is reviewed.  The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied.  Here, all three factors favor suppression.  First, the timing between the investigatory detention without reasonable suspicion and the discovery of the outstanding warrant were in close proximity.   Second, the initial search of Sanders before discovery of the preexisting warrant was not an intervening circumstance that broke the causal chain between the unconstitutional seizure and search because Strieff’s reasoning was specific to a search incident to arrest after the warrant is discovered.  Third, officers committed several unconstitutional violations, and their actions were purposeful and flagrant misconduct.

            State did not preserve its arguments about either the inevitable discovery doctrine or an inventory search exception.   District court appropriately suppressed the evidence based on the arguments presented.  Judgment of Court of Appeals reversing the district court is reversed.  Judgment of the district court is affirmed. 

STATUTE:  K.S.A. 20-3018(c)

appeals—appellate procedure—constitutional law—
criminal procedure—evidence—motions—statutes
state v. soto
sedgwick district court—reversed and remanded
NO. 117,059—july 26, 2019

FACTS:  Soto convicted of first-degree premeditated murder. Convictions affirmed but hard-50 sentence vacated pursuant to Alleyne v. United States, 570 U.S. 99 (2013), and case remanded to district court for resentencing. Mandate signed in May 2014. Prior to resentencing, State discovered and shared with the defense some polygraph evidence that was contrary to testimony of a key witness against Soto. Soto filed June 2016 motion seeking a new trial based on a Brady violation and newly discovered evidence. He also argued the mandate rule did not apply because it prohibited only relitigation of issues and the Brady violation had never been litigated. State opposed the motion, and filed notice it would no longer seek a hard-50 sentence. Soto filed amended motion alleging ineffective assistance of trial counsel in failing to discover the witness polygraphs and related statements. District court denied the motion without addressing merits of the Brady claim, and resentenced Soto to hard 25 life sentence. Soto appealed. State’s brief argued in part the mandate rule eliminated district court’s subject matter jurisdiction beyond that necessary to replace Soto’s vacated hard 50 sentence. State also argued the motion for new trial was not filed within the two-years of final judgment. 

ISSUES:  (1) Mandate rule - subject matter jurisdiction, (2) timeliness of motion for new trial, (3) ineffective assistance of counsel

HELD:  K.S.A. 60-2106(c) and K.S.A. 20-108, designed to enforce the hierarchy of Kansas courts, were not designed to set up broad limits on subject matter jurisdiction once a case was remanded.  Soto sought district court action on a legal issue arising from facts unknown to him until the morning his resentencing trial was set to begin.  Mandate rule would not have prevented the judge from reaching the merits of the Brady issue. 

            Where Soto’s conviction was affirmed on appeal but some part of the sentence was vacated and remanded to the district court for resentencing, there was no final sentence, hence no final judgment under K.S.A. 2018 Supp. 22-3501(1).  District judge could have heard Soto’s motion seeking a new trial.  By failing to recognize he was legally authorized to hear merits of the Brady claim, district judge’s denial of Soto’s motion qualified as an abuse of discretion.  Case is remanded to evaluate merits of the Brady claim and whether discovery of the polygraph reports is so significant that new trial on Soto’s guilt is required.

             No need to reach merits of the ineffective assistance of counsel claim which Soto advanced only because it might make a procedure other than a motion for new trial available. 

STATUTES:  K.S.A. 2018 Supp. 21-6806(c), 22-3501(1), -3717(b)(2)(B); K.S.A. 20-108, -3401, 60-1507, -2106(c)

constitutional law—criminal procedure—evidence
fourth amendment—motions
state v. tatro
saline district court—remanded with directions
court of appeals—reversed
NO. 118,237—july 26, 2019

FACTS: An officer stopped Tatro who was walking with a flashlight in middle of a public street in a high-crime area for vehicle burglaries. Tatro was arrested when a warrant check disclosed an outstanding warrant. Seizure and search of Tatro’s purse resulted in Tatro being charged with possession of drug paraphernalia. She moved to suppress evidence, arguing she had been unconstitutionally detained and searched. District court granted the motion. State filed interlocutory appeal. In an unpublished opinion, the court of appeals upheld the district court’s finding that the encounter was involuntary and officer’s detention of Tatro was unsupported by reasonable suspicion. But it reversed district court’s ultimate decision, relying on Utah v. Strieff, 579 U.S. __ (2016), to hold an intervening circumstance attenuated the taint of an unlawful seizure and thus did not invalidate a later search. Tatro’s petition for review was granted. 

ISSUE: (1) Attenuation doctrine

HELD: The panel’s holding that the officer unconstitutionally seized Tatro is accepted because the State did not cross-petition for review of this adverse holding. The background of the exclusionary rule and attenuation doctrine is reviewed. The three attenuation doctrine factors stated in Brown v. Illinois, 422 U.S. 590 (1975), are discussed and applied. The district court did not err in finding the temporal proximity factor favored suppression, but the intervention factor strongly favored the State. Under Strief, the district court erred in failing to consider the officer’s discovery of an arrest warrant as a circumstance that intervened between the officer’s illegal detention of Tatro and the search of her purse after arresting her on the warrant. The district court’s findings are too unclear to determine whether it correctly decided the flagrancy factor. The case was remanded to district court for further appropriate findings of fact under the correct legal standard. 

STATUTE: K.S.A. 20-3018(b), 22-2402

 

Kansas Court of Appeals

Civil

UNINSURED MOTORIST
HEMENWAY V. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 120,358—JULY 26, 2019

FACTS: E.H. and the rest of her family were injured in an auto accident caused by another driver. The at-fault driver's insurance policy covered bodily injury up to $25,000 per person and $50,000 per accident. E.H.'s parents' own insurance policy had underinsured motorist coverage. After all of the claims were filed, the at-fault driver's policy settled up to policy limits with all of the injured parties. Both E.H. and her father filed a claim with Automobile Club Inter-Insurance Exchange, their insurer, for UIM benefits. ACIIE disputed the amount of UIM benefits due to E.H., and she filed suit in district court for breach of contract. E.H. believed she was due $38,000, which was the $50,000 per person UIM limit minus the $12,000 she received from the at-fault driver's coverage. ACIIE countered that the $50,000 limit was per accident and not per person. The district court agreed with E.H. and awarded her $38,000, subject to her actually proving damages. ACIIE appealed.

ISSUES: (1) Amount of UIM coverage available; (2) effect of state law

HELD: When calculating the amount of UIM coverage available, the district court should have added together everything that the family received from the at-fault driver's insurance coverage and subtracted that from the $100,000 per occurrence cap available through ACIIE. That results in a maximum available benefit to E.H. of $35,000. Any language in ACIIE's policy that attempts to limit coverage runs counter to the mandatory language of K.S.A. 40-284(b) and is void and unenforceable.

STATUTE: K.S.A. 40-284(b), -284(e)

criminal 

constitutional law—criminal procedure—fourth amendment—motions
state v. Arrizabalaga
saline district court—affirmed
NO. 120,209—july 26, 2019

FACTS: Trooper stopped Arrizabalaga on I-70 for traffic infraction, and noted the van smelled of a strong odor-masking product and was filled with boxes and bags. Ticket issued when dispatch confirmed Arrizabalaga’s license was valid and provided criminal history.  Arrizabalaga consented to further questioning about criminal record and to search of his van, but withdrew consent some 24 minutes into the stop when trooper stated he was searching for large amount of drugs and asked passenger to exit the van. Arrizabalaga was then detained for another 24 minutes for police dog to arrive. Dog alert resulted in Arrizabalaga’s arrest on drug charges. Arrizabalaga filed motion to suppress. District court denied the motion, finding in part that reasonable suspicion existed for the initial traffic stop, and that Arrizabalaga consented to additional questions until withdrawing his consent for search of the van. Arrizabalaga filed second motion to suppress, arguing the length of detention for drug dog’s arrival was too long.  District court granted this motion, based on trooper’s lack of diligence in pursuing purpose of stop, and holding Arrizabalaga for excessive time until drug dog arrived. State filed interlocutory appeal, citing Rodriguez v. United States, 575 U.S. 348 (2015), to argue the length of detention does not matter once trooper has reasonable suspicion during a traffic stop.

ISSUE: (1) Traffic stop—duration of detention

HELD: No Kansas caselaw directly addresses the narrow issue in this case as to whether trooper was diligent enough in verifying or dispelling his suspicion of drugs after finding reasonable suspicion. State’s reliance on Rodriguez is criticized. Here, district court properly applied analysis in United States v. Sharpe, 470 U.S. 675 (1985), to find in context of facts of this case that the length of the stop was excessive. Substantial competent evidence supports district court’s finding that trooper failed to diligently and reasonably pursue the purpose of the stop, because he did nothing about his suspicion until the second 24-minute period began.

DISSENT (Gardner, J.):  Would reverse the district court’s suppression of evidence. Neither the law nor facts in this case suggest that Arrizabalaga’s detention for 24 minutes based on trooper’s reasonable suspicion of a crime was unreasonable. No Kansas case has examined the permitted length of a detention justified by reasonable suspicion after the conclusion of a traffic stop to get a drug dog on site, but federal cases are cited and discussed. No authority suggests due diligence requires officer to call a drug dog as soon as the officer reasonably suspects criminal activity is occurring, particularly where other factors, such as consent, show no need for a drug dog at the time. Under facts in this case, trooper was diligent in trying to get drug dog as soon as possible under the circumstances.   

STATUTES:  K.S.A. 2018 Supp. 22-3608; K.S.A. 22-2402(1)

criminal procedure—motions—sentences
state v. schulze
saline district court—sentence vacated and case remanded
NO. 119,184—july 26, 2019

FACTS: Schulze entered no contest plea to felony theft. District court imposed sentence using a PSI report that showed a criminal history score of C and listed 18 prior convictions. Shortly after sentencing, court services provided an amended PSI that increased criminal score to B and listed 23 prior convictions, including two person misdemeanors not included in the original report. State moved to correct an illegal sentence. District court granted the motion and imposed an increased sentence, holding the original sentence violated applicable statutory provisions requiring all of a defendant’s prior convictions to be counted. Schulze appealed.

ISSUE: (1) Sentencing - error in presentence report

HELD: Schulze’s original sentence controls. State has burden of proving the defendant’s criminal history score, and if it fails to find one or more convictions, it is prohibited from later amending, and ultimately increasing, the severity level of the defendant’s criminal history for the crime(s) at issue. Based on State v. Dickey, 301 Kan. 1018 (2015), and State v. Weber, 297 Kan. 805 (2013), State cannot later challenge the factual basis for Schulze’s criminal history score when it failed to object to it before the district court. Invited error rule, and distinction between factual and legal stipulations, are discussed.  

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 2017 Supp. 21-6810(c), -6810(d)(6), -6811(a), -6814(a), -6814(b), 22-3504; K.S.A. 2016 Supp. 21-6804(a)

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July 19, 2019 Digests

Posted By Administration, Tuesday, July 23, 2019

Kansas Supreme Court

CIVIL

CONTEMPT
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,776—JULY 19, 2019

FACTS: Ogle and Jacobs were involved in a paternity and custody proceeding. It turned contentious, enough that the district court ordered Ogle to cease widespread slander of Jacobs. Ogle did not stop, and Jacobs moved the court to hold him in indirect contempt after his comments caused her to lose her job. The district court held Ogle in indirect contempt, even though neither Ogle nor his attorney appeared at the contempt hearing. Ogle appealed and the court of appeals vacated the contempt finding, holding that the district court could not hold Ogle in indirect contempt when he did not appear at the hearing. Jacobs' petition for review was granted.

ISSUE: (1) Necessity of personal appearance at the hearing

HELD: K.S.A. 2018 Supp. 20-1204a does not specifically mention whether an accused must appear at the hearing. But after reading all of the statute's provisions together, it is clear that a district court judge is allowed to proceed with a contempt hearing once the person accused is present, but not before.

STATUTE: K.S.A. 2018 Supp. 20-1204a

criminal 

criminal law—criminal procedure—jury instructions—motions—statutes
state v. cottrell
sedgwick district court—affirmed
court of appeals—affirmed
no. 114,635 —july 19, 2019

FACTS: Undercover officer (Padron) obtained hydrocodone and oxycodone from Cottrell, through sale set up by his daughter. Jury convicted Cottrell of distributing a controlled substance and conspiring to distribute a controlled substance. On appeal, Cottrell claimed: (1) district court erred in failing to give a unanimity instruction because State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and State failed to produce sufficient evidence to support each one; (3) district court erred in instructing jury that “knowingly” was the culpable mental state for distribution of a controlled substance; and (4) district court erred in denying Cottrell’s motion for judgment of acquittal because insufficient evidence supported the charges. Court of appeals affirmed. 53 Kan. App. 2d 425 (2017). Review granted.

ISSUES: (1) Unanimity instruction—multiple acts; (2) alternative means—crime of conspiracy; (3) jury instruction; (4) motion for acquittal

HELD: No unanimity instruction was required because alleging several overt acts in furtherance of one conspiracy does not present a multiple acts case. State presented arguments and evidence about one agreement between Cottrell and his daughter: to illegally sell hydrocodone and oxycodone to Padron.

Jury instruction that lists several overt acts in furtherance of a conspiracy does not create alternative means for the crime of conspiracy.

Following State v. Brown, 295 Kan. 181 (2012), only language of a statute can create alternative means for a crime, and the conspiracy statute does not do so. State v. Enriquez, 46 Kan. App. 2d 765 (2011), is overruled. A jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act.

Invited error precludes reaching the merits of Cottrell’s jury instruction challenge. Cottrell actively pursued an instruction for distribution of a controlled substance that included a knowing culpable mental state, was unwavering in this request, and any error was as obvious before trial as after. Defense counsel also stated on the record that he did not object to the final instruction.

No error in district court’s denial of the motion for acquittal. No appellate reweighing of Cottrell’s testimony, and significant evidence supported Cottrell’s knowledge that he was distributing controlled substances

STATUTES: K.S.A. 2018 Supp. 21-5302(a), -5402(c); K.S.A. 2912 Supp. 21-5302(a)

constitutional law—criminal law—jurisdiction
motions—securities—statutes
state v. lundberg
sedgwick district court—affirmed
court of appeals—reversed
no. 114,897—july 19, 2019

FACTS: Minnesota residents Lundberg and Elzufon, formed a Minnesota corporation they registered to do business in Kansas to develop properties in downtown Wichita. As principals for four Kansas limited liability corporations (LLCs), they sold securities by using intermediaries who resided in California who made sales presentations in California and sold the securities from California to individuals who did not reside in Kansas.  State filed criminal charges under the Kansas Uniform Securities Act (KUSA) against Lundberg and Elzufon for selling or offering to sell unregistered securities and committing fraud in selling or offering to sell securities. Lundberg and Elzufon filed motions to dismiss for lack of jurisdiction, arguing neither the offers to sell, the sales, the offers to purchase, nor the purchases were made or accepted in Kansas. Parties stipulated to the facts for deciding this motion. District court dismissed 56 of the counts related to sales involving the California intermediaries, rejecting State’s argument that any of the offers originated within Kansas. State voluntarily dismissed remaining charges and appealed. Court of Appeals reversed. 53 Kan.App.2d 721 (2017). Lundberg’s and Elzufon’s petitions for review granted.

ISSUE: (1) Jurisdiction for criminal charges - KUSA

HELD: KUSA is interpreted, examining “sale,” “offer to sell,” and whether “multiple sales” were consummated in Kansas. Nexus analysis applied by Court of Appeals is rejected. Even under expansive reading permitted by definition of “offer to sell” in KUSA, Kansas’ jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas—not just because the transaction has some sort of “nexus” to the state. On facts in this case the sales were not made in Kansas nor did the offers to sell originate in Kansas, thus no jurisdiction exists based on a sale occurring in Kansas.  

CONCURRENCE (Vano, D.Judge assigned): There is no stipulated fact regarding the place where any offer to sell originated, and the word “nexus” appears nowhere in the KUSA. The jurisdictional statute, K.S.A. 17-12a610, limits criminal sanction to sales or offers to sell originating within the state. On the stipulated facts in this case, the offers did not occur or originate in Kansas.  Dissent goes too far in adding a penal reach that is not expressed by the Legislature and is inconsistent with Kansas precedent on reading, construing, and applying criminal statutes and sanctions strictly in favor of the accused, and keeping the court out of the business of drafting legislation—particularly penal sanctions.

DISSENT (Luckert, J.) (joined by Beier and Rosen, JJ.): Would interpret the offers as originating with and the sales being made by the Kansas LLCs acting through their officers and shareholders—Lundberg and Elzufon—to retain California intermediaries who extended the Kansas LLCs’ offers to California investors. These acts are sufficient to say the sales or offers to sell originated in Kansas. Thus application of Kansas law and jurisdiction is proper, and applying KUSA here does not violate any federal constitutional restriction against extraterritorial application of Kansas law.   

STATUTES: K.S.A. 2019 Supp. 17-12a302, -12a303, -12a508(a)(2), -12a508(a)(3), -7662 et seq., -7663(1), -7668, 21-5106; K.S.A.17-12a101 et seq., -12a102, -12a102(17), -12a102(26), -12a310, -12a304, -12a501, -12a501(2), -12a501(3), -12a508, -12a610, -12a610(a), -12a610(b), -12a610(c), -12a610(e), 60-2101(b)

appellate procedurecriminal lawstatutes
state v. Rizal
johnson district court—affirmed; court of appeals—affirmed
no. 115,036 —july 19, 2019

FACTS: In bench trial on stipulated facts, Rizal convicted of possessing a controlled substance —naphthoylindole (“K2”), a synthetic cannabinoid — with intent to distribute it at gas station she owned. Rizal appealed, claiming in part that insufficient evidence supported the conviction because State only proved she knowingly sold what she thought was “incense,” and not that  she possessed K2 with “knowledge” as defined in McFadden v. United States, 576 U.S. __ (2015). Court of Appeals affirmed in unpublished opinion, distinguishing McFadden from the Kansas statute, but also finding substantial competent evidence if McFadden applied. Review granted. In supplemental brief Rizal argued new claim that that the substance she possessed was not a controlled substance, but a controlled substance analog, based on her lay analysis of chemical compounds in packets sold.

ISSUES: (1) New claim on appeal; (2) knowledge of nature of the controlled substance; (3) sufficiency of the evidence

HELD: Rizal’s new analog argument is unpreserved and not reviewed. Undisputed fact in the record that Rizal possessed the controlled substance naphthoylindole.

Court examines what it means to “knowingly” exercise control over a controlled substance, finding Court of Appeals erred in its interpretation of K.S.A. 2011 Supp. 21-5705(a)’s knowledge requirement. To convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either knew the identity of the substance or knew that the substance was controlled. A mistake of fact about the nature of a controlled substance can negate the knowledge requirement.

Under facts in this case, Rizal’s conviction is affirmed because State presented sufficient evidence that Rizal knew the substance was controlled.

STATUTES: K.S.A. 2018 Supp. 21-5207(a); K.S.A. 2014 Supp. 60-455(b); K.S.A. 2011 Supp. 21-5202(i), -5701(a), -5701(q), -5705(a), -5705(a)(7), -5705(c)(1)(A), 65-4101(bb)(1), -4101(bb)(2), -4105(h)(2); K.S.A. 60-455

appellate procedure—criminal procedure
evidence—jury instructions—prosecutors
state v. ross
sedgwick district court—affirmed
no. 117,850—july 19, 2019

FACTS: Ross convicted of felony murder and second-degree murder as a lesser included offense of premeditated murder, and felony abuse of a child. On appeal he claimed: (1) State committed prosecutorial error during rebuttal closing argument by stating the jury must find the defendant guilty if it did not believe the defendant’s testimony; (2) district court violated Ross’ statutory right to lesser included offense instructions by not offering an instruction on unintentional but reckless second-degree murder as a lesser included offense of premeditated murder; (3) district court erred in admitting into evidence two recorded jail phone calls between Ross and his mother; (4) pro se additional issues claiming the jury’s verdict operated as a de facto acquittal on the charge of first-degree felony murder, and claiming K.S.A. 2018 Supp. 21-5109(b)(1) infringed his right to present a complete defense; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) jury instruction; (3) admission of phone call evidence; (4) supplemental issues raised pro se; (5) cumulative error

HELD: Prosecutor’s misstatement was error, but in context of prosecutor’s surrounding comments did not effectively shift burden of proof. No reversible error shown.

An instruction on reckless second-degree murder was legally appropriate, but whether it was factually appropriate is immaterial because any error in failing to offer the instruction was harmless. On evidence in the case, no reasonable probability that jury could have inferred the killing of the child victim was done unintentionally but recklessly.

No error in admitting the two phone calls. Probative value of the calls far outweighed the resulting prejudice.

Ross’ newly raised arguments were insufficiently preserved for appellate review.

Aggregated effect of prosecutor’s misstatement which did not prejudice Ross’ right to a fair trial, and assumed instructional error which was harmless, did not constitute reversible error.             

STATUTES: K.S.A. 2018 Supp. 21-5108, -5109(b)(1), -5403(a)(2); K.

 

Kansas Court of Appeals

CIVIL

DUE PROCESS—PARENTAL RIGHTS
IN RE J.L.
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,504—JULY 19, 2019

FACTS: In April 2018 the State sought to have J.L. declared to be a child in need of care. Later that year, the State scheduled a pretrial conference hearing. Notice was mailed, but Father's address was listed as "unknown." Father's attorney appeared at that pretrial conference hearing, but Father was not in the room when the hearing started. Because of his absence, the State moved for a default judgment on the CINC petition. Father appeared within 10 minutes of the start of the hearing and moved to set aside the default judgment. Father appealed.

ISSUE: (1) Due process violation

HELD: Father has a fundamental liberty interest in parenting his child. Finding J.L. to be a CINC opens Father up to further intervention and potential liberty deprivations. To protect against undue deprivations, the State is required to prove the need for adjudication by clear and convincing evidence. It is uncertain that any portion of the default judgment statute can apply to proceedings held under the juvenile code. Further, Father was never told that a CINC adjudication would occur at the pretrial conference hearing. Even the State did not anticipate the finding and there were no witnesses available. Nothing about the default judgment advanced the State's interests or J.L.'s wellbeing; this was about the district court's annoyance. The default judgment is reversed and the case is remanded for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2239, -2248(e), -2250, -2251(a), 60-255, -255(a)

GRIEVANCE—HABEAS CORPUS
PETERSON V. SCHNURR
RENO DISTRICT COURT—AFFIRMED
NO. 119,869—JULY 19, 2019

FACTS: Peterson is an inmate who subscribed to a newspaper. The correctional facility seized two issues of the paper, claiming that they had content which was a threat to the facility's safety. Peterson appealed the seizure and the decision was upheld by the Secretary of Corrections' designee. Peterson then filed an inmate grievance claiming he was subject to improper censorship. That grievance was denied. Peterson followed up by filing a K.S.A. 60-1501 petition, arguing that the Department of Corrections was not properly applying its own regulations regarding censorship. The district court denied the petition as untimely, and Peterson appealed.

ISSUE: (1) Timeliness of petition

HELD: Peterson's use of the facility grievance procedure was not part of his administrative remedies and did not toll the time in which to file his 60-1501 petition. Because the time limit was not tolled, the district court properly dismissed Peterson's petition as untimely.

STATUTES: K.S.A. 2017 Supp. 60-1501, -1501(b); K.S.A. 75-52,138

Tags:  8807  Johnson District  Reno District  Sedgwick District  Shawnee District 

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